Education Law Cases
Submitted by
Mary Jo Andow
Matthew Belliveau
Aaron Hatfield
John Hickey
Vanessa Paesani
Becky-Anne Taylor
Dr. Ray Williams School Law
14 October 2009
Case One: Mary Jo Andow
Theme: Charter of Rights & Education
Name of Court Case:
Ross v. New Brunswick School District No. 15
David Attis, appellant;
v.
The Board of School Trustees, District No. 15, respondent, and
The Human Rights Commission of New Brunswick, Malcolm Ross,
the Department of Education of New Brunswick, the New
Brunswick Teachers' Federation, and the Canadian Jewish
Congress, respondents, and
Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights
Board of Inquiry, and the Minister of Labour of New Brunswick,
respondents.
And between
The Human Rights Commission of New Brunswick, appellant;
v.
The Board of School Trustees, District No. 15, respondent, and
David Attis, respondent, and
Malcolm Ross, the Department of Education of New Brunswick,
the New Brunswick Teachers' Federation, and the Canadian
Jewish Congress, respondents, and
Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights
Board of Inquiry, and the Minister of Labour of New Brunswick,
respondents.
And between
The Canadian Jewish Congress, appellant;
v.
The Board of School Trustees, District No. 15, respondent, and
Malcolm Ross, respondent, and
David Attis, respondent, and
The Human Rights Commission of New Brunswick, the Department
of Education of New Brunswick, and the New Brunswick Teachers'
Federation, respondents, and
Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights
Board of Inquiry, and the Minister of Labour of New Brunswick,
respondents, and
The Attorney General of British Columbia, the League for Human
Rights of B'Nai Brith Canada, the Canadian Civil Liberties
Association, and the Canadian Association of Statutory Human
Rights Agencies, interveners.
Source of Case: [1996] S.C.J. No. 40; [1996] A.C.S. no 40; [1996] 1 S.C.R. 825; [1996] 1 R.C.S. 825; 133 D.L.R. (4th) 1; 195 N.R. 81; 171 N.B.R. (2d) 321; 37 Admin. L.R. (2d) 131; 96 CLLC para. 230-020;
35 C.R.R. (2d) 1; 62 A.C.W.S. (3d) 266.
File No.: 24002
Supreme Court of Canada
1995: October 31 / 1996: April 3
Background / Summary:
For several years, Malcolm Ross made public statements that were discriminatory against Jewish persons. Ross' anti-Semitic views had been communicated in four books, as well in published letters and media interviews. A Jewish parent (David Attis) filed a complaint with the New Brunswick Human Rights Commission (NBHRC) alleging that the School Board violated Section 5(1) of the Human Rights Act by discriminating against him and his children on the basis of religion and ancestry by continuing to employ Ross as a teacher. Attis complained that Ross’ out of school activities impacted the experience of his Jewish children within the school.
The Supreme Court Case noted above in the introduction was the culmination of a process that began in 1988 when Attis first filed his complaint with the NBHRC. Attis alleged that by failing to take action against Ross in the past, the school board had condoned Ross’ anti-Jewish views and thus discriminated against Jewish students in the provision of a public service. The NBHRC appointed Brian Bruce (a UNB law professor) as a one-person board of inquiry in 1988, with no actual hearings taking place until 1990.
A decision was issued in 1991. The decision found that Ross did not spread his anti-Semitic views in the classroom, but that his off-duty writings had denigrated the Jewish faith, questioned the number of Jews killed in the Holocaust, and so on. The board (Brian Bruce) believed that this created a poisoned environment in the school district and that the school board had failed to address this issue before 1988. The board decided on the following:
2(a) place Ross on a leave of absence without pay for a period of 18 months;
2(b) appoint him to a non-teaching position, if one became available during that period;
2(c) terminate his employment at the end of that period if, in the interim, he had not been offered and accepted a non-teaching position; and
2(d) terminate his employment with the School Board immediately if he published or wrote anti-Semitic materials or sold his previous publications any time during the leave of absence period or at any time during his employment in a non-teaching position.
Ross challenged the above order from the board of inquiry in the Court of Queen's Bench in 1991. Here, Justice Paul Creaghan upheld most of the board of inquiry order. His only change was to quash clause 2(d) which as per above determined that Ross could be terminated immediately if he published or wrote anti-Semitic materials, etc. while serving a leave of absence or acting in a non-teaching position. The Court of Queen's Bench held that the clauses infringed Ross's rights under sections 2(a) and (b) of the Canadian Charter of Rights and Freedoms. He concluded that clauses 2(a) to (c) were saved by section 1 of the Charter but that clause 2(d) could not be saved, as was mentioned above.
Next, Ross moved to the New Brunswick Court of Appeal in 1992. A decision on this case was made in 1993 wherein Ross’ appeal was allowed and the court ordered that he be reinstated to his teaching position. To that end, clauses 2(a), (b) and (c) of the Order were all quashed as had 2(b) been quashed in previously. The removal of Ross from the classroom did not pass section 1 scrutiny. The Board expressly found that Ross did not attempt to further his views in the classroom. Thus his removal from the classroom failed to meet the requirement of being a specific purpose so pressing and substantial that the guarantee to freedom of expression should be overridden.
After the above ruling, the New Brunswick Human Rights Commission and Attis appealed the decision to the Supreme Court of Canada, the case that is documented within this report. In the April 1996 decision, the Supreme Court of Canada decided that Ross could not be a teacher since his presence impaired the educational environment with a lack of equality and tolerance. The court decided that the off-duty conduct of a teacher was relevant in this case since it poisoned the environment and the off-duty conduct was likely to produce a loss of confidence in the teacher and the system. The Supreme Court upheld the original decision that Ross should be moved to a non-teaching position.
Beyond the stated case, Ross filed a communication to the UN Human Rights Committee in May 1996 to challenge the Supreme Court of Canada decision confirming his transfer to a non-teaching position. The UN committee agreed with the Supreme Court of Canada and the same decision was upheld.
Issues / Questions Before Court:
1. Did Ross and the Board of School Trustees, District No. 15, discriminate under s. 5(1) of the New Brunswick Human Rights Act?
5(1) No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall
(a)deny to any person or class of persons any accommodation, services or facilities available to the public, or
(b)discriminate against any person or class of persons with respect to any accommodation, services or facilities available to the public,
because of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition, political belief or activity.
Based on the above act, the answer was yes. Students in the K-12 school system are unable to distinguish between professional and personal views and value statements supported by their teachers. Teachers, inherent to their position, are a medium by which values are transmitted to students. Despite no direct evidence that Ross purported these views in class, it can be reasonably assumed that Ross’ off-duty anti-Semitic activity (which was notorious in the Moncton area), was poisoning the district’s educational environment. The school board was responsible to provide an educational environment that is free of discrimination for its students. By continuing to employ Ross after learning of his activities, the school board had silently condoned his discriminatory behavior. To that end, both the teacher and the school board violated s. 5(1) of the Act.
2. Did the order made by the Board of Inquiry infringe on sections 2(a) and 2(b) of the Charter of Rights and Freedoms ?
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
Only partially. The decision made by the Board of Inquiry in New Brunswick worked to meet the Oakes test. The Oakes test is derived from the case entitled R. v. Oakes [1986] 1 S.C.R. 103, which offers an analysis of the limitations clause (Section 1) of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society. The Oakes test should be applied flexibly, so that it achieves a balance between individual rights and the needs of the community. This means that educational context must be considered when balancing Ross’ freedom to make discriminatory statements against the right of students to be educated in a system that is free from bias, prejudice and intolerance. Further to this context is the vulnerability of students to messages conveyed by teachers. The fact that Ross was employed by the state means that there is a duty to ensure that public functions are undertaken such that they do not undermine public trust and confidence (as Ross clearly did).
The objective of the board of inquiry’s order was to eradicate discrimination against Jews in School District 15. The first three parts of the ruling by the board of inquiry which removed Ross from the classroom helped to meet the objective, while part ‘d’ did not. As long as Ross was in the classroom, it was reasonable to censor his freedom of expression and religion since it was impairing his capacity to provide educational services without discrimination. Once removed from the classroom, however, Ross was free to express himself freely. Outside of the classrrom, Ross could no longer poison the educational environment with his anti-Semitic propaganda. With this in mind, the first three sections of the ruling interfered minimally with Ross’ constitutional rights whereas part ‘d’ interfered beyond what was reasonable.
Final Judgment:
”IV- Disposition
111 In my assessment, the evidence reveals that the School Board discriminated within the meaning of s. 5(1) of the Act, with respect to educational services available to the public. The continued employment of the respondent contributed to an invidiously discriminatory or "poisoned" educational environment, as established by the evidence and the Board's finding that it was "reasonable to anticipate" that the respondent's writings and statements influenced the anti-Semitic sentiment. In my opinion, this finding is necessarily linked to the finding that the respondent's statements are "highly public" and that he is a notorious anti-Semite, as well as the supported view that public school teachers assume a position of influence and trust over their students and must be seen to be impartial and tolerant.
112 I have concluded that clauses 2(a), (b) and (c) of the Board of Inquiry's order are properly made within the Board's jurisdiction; any resulting infringement of the respondent's freedom of expression or freedom of religion is a justifiable infringement. Clause 2(d) of the order is not a justifiable infringement of the respondent's fundamental freedoms and is accordingly struck from the remainder of the order.
113 I would allow the appeal, reverse the judgment of the Court of Appeal and restore clauses 2(a), (b) and (c) of the order, with costs to the appellant Attis.”
Case Two: Vanessa Paesani
Theme: Charter of Rights & Education
Name of Court Case: British Columbia (Ministry of Education) v. Moore
Court levels in which the case was considered:
British Columbia Supreme Court (BCSC) (2008)
British Columbia Human Rights Tribunal (BCHRT) (2005)
British Columbia Supreme Court (BCSC) (2001)
Source of Retrieval:
[2008] B.C.J. No. 348, 2008 BCSC 264, [2008] 10 W.W.R. 518, 81 B.C.L.R. (4th) 107, 2008 CarswellBC 388, 165 A.C.W.S. (3d) 501, 62 C.H.R.R. D/289
Background / Summary:
Frederick Moore, on behalf of his son Jeffrey Moore, alleged both individual and systemic discrimination against the British Columbia (BC) Ministry of Education (Ministry) and School District 44 (District) in regards to his son, a learning disabled student with dyslexia. In 2001, the Ministry was ordered by the BC Human Rights Tribunal (Tribunal) to produce documents to determine whether systemic discrimination against dyslexic students had occurred in British Columbia. The Ministry sought to quash the order to produce the documents because it did not concern any other district aside from No. 44. The BCSC 2001 ruling dismissed this petition and production of the documents was ordered.
The Tribunal then investigated the alleged British Columbia Human Rights Code (Code) violation of section 8, which considers “Discrimination in accommodation, service and facility” as follows:
8 (1)A person must not, without a bona fide and reasonable justification,
(a)deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b)discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.
The Tribunal ruled that the Code had been violated. The Ministry was ordered to provide funding for Severe Learning Disability (SLD) students at actual incidence levels, ensure each district had early intervention strategies, and ensure a mechanism for delivery and range of services to meet the needs of special needs students. The Ministry and District were also ordered to restore the costs of an individual tutor for Moore that had been funded by his parents (Orton-Gilligham tutor for dyslexia), the costs of tuition for private schooling, half of the transportation costs for Moore’s schooling, and the costs of obtaining expert evidence for the trial. The Tribunal ruled that the failure to accommodate Moore’s dyslexia constituted discrimination.