Conflict of Rights
50 This leaves the issue of whether the Proposed Act will create an impermissible collision of rights. The potential for a collision of rights does not necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be reconciled: Trinity Western University v. British Columbia College of Teachers, (2001) 1 S.C.R. 772, 2001 SCC 31, at para. 29. Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter: Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), (1996) 1 S.C.R. 825, at paras. 73-74. In both steps, the Court must proceed on the basis that the Charter does not create a hierarchy of rights (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), (1994) 3 S.C.R. 835, at p. 877) and that the right to religious freedom enshrined in s. 2(a) of the Charter is expansive.
57 The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice: Big M Drug Mart, supra, at pp. 336-37. The performance of religious rites is a fundamental aspect of religious practice.
 I acknowledge that the Supreme Court has held that propaganda promoting hatred against particular groups lies outside the core of freedom of expression: Ross, above; R. v. Keegstra, 1996 CanLII 237 (SCC), (1996) 1 SCR 825; Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), (1990) 3 SCR 892. However, the use of stereotypes based on prohibited grounds to convey a political point is of a completely different nature than the promotion of hatred. Indeed, this distinction is at the heart of the analysis in Whiteley. The fact that they lie at the core of freedom of expression is one of the reasons why newspaper editorials cannot lead to Code claims, even if they contain racist or sexist statements that would offend the Code if said by a service provider to a customer, a worker to a co-worker, or a vocational association to its members. The use of stereotypes, on its own, does not diminish the importance of political expression.
In this case, the Board was faced with a clear conflict of rights -- the private property rights of Cadillac Fairview on the one hand, and the statutory organizing rights of the employees on the other. In weighing those conflicting rights to determine whether s. 64 had been contravened, the Board, in my opinion, was not obliged as a matter of law to treat Cadillac Fairview property rights as absolute. Its responsibility was to apply the general prohibitory language of s. 64 to the circumstances which formed the basis of the complaint. In other words, the Board was to decide whether Cadillac Fairview's conduct in prohibiting all organizing activity on its property in the circumstances of this case interfered with the employees' s. 3 rights in such a manner as to constitute an unfair labour practice. Section 64, as I noted earlier, is cast in broad terms and the conduct that might constitute an interference with the formation, selection or administration of a trade union is unspecified. Whether a particular form of conduct violates the section has been left to the judgment, discretion and expertise of the Board.
The relationship between the conduct proscribed by s. 64 and the rights protected by s. 3 mandates that the Board, in the exercise of its jurisdiction, resolve conflicts between property rights and organizational rights. The resolution of the conflict will turn upon a balancing of those rights with a view to arriving at a fair accommodation between the interests sought to be vindicated by the assertion of the rights. The enforcement of s. 64 must contemplate incursions into the domain of private property rights and, as the complaint against Eaton's illustrates, into the domain of commercial and business rights as well. In my opinion, notions of absolutism have no place in the determination of issues arising under a statute designed to further harmonious labour relations and to foster the freedom of employees to join a trade union of their choice. In this area of the law, as in so many others, a balance must be struck between competing interests which endeavours to recognize the purposes underlying the interests and seeks to reconcile them in a manner consistent with the aims of the legislation.