“Holder of a Religious Office” Exemption under Ontario ESA Interpreted

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[author: Adrian Miedema]

The Ontario Employment Standards Act excludes from its protection holders of a “religious office”. The Ontario Labour Relations Board has issued a decision interpreting this rarely-litigated provision.

The organization, the Kashruth Council, is a not-for-profit organization the main objective of which is to ensure the availability of Kosher food products through Kashruth (Jewish dietary laws) certification and supervision of food service production and manufacturing businesses.

To do this, the Kashruth Council engages Kosher food inspectors, referred to as “Mashgiachim”, to supervise hundreds of industrial food establishments. Rand was one such inspector.

A series of events resulted in the Kashruth Council issuing a letter to Rand advising that his “employment . . . is terminated effective immediately for just cause”. Rand filed a claim for amounts owing to him as an “employee” under the Employment Standards Act.

The OLRB found that the Mashgiach was a “religious position” which has “no duties which do not serve a religious purpose”. However, Rand did not hold a “religious office”.

The OLRB held that, “The essential feature of the holder of a political or religious office is independence. A person is elected or appointed to the office and then acts in that capacity with minimal oversight”. Also, the functions or work that the person performs must be significant or important to fulfill religious obligation or ritual. According to the OLRB, Rand was not independent. The council exercised employment control over him. Also, the manner in which the Kashruth Council carried out the termination suggested that Rand was subject to the Kashruth Council’s control, which pointed to an employment relationship. The Council even referred to him, in the termination letter, as an “employee”.

One wonders whether the OLRB’s “independence” test is correct. It would seem that the test should be whether the person holds an “office” that is “religious”; independence does not seem to be a hallmark of either of those two factors. The exemption would appear to have been intended to exclude, from the protection provided to “employees”, people who are not seen, and do not see themselves, as employees, but rather as in a spiritual or religious position. It remains to be seen whether future panels of the OLRB will apply the same test.

Kashruth Council of Canada v. Rand, 2011 CanLII 71786 (OLRB)