In a recent decision in E.T. v. Hamilton-Wentworth District School Board, the Superior Court of Justice upheld the decision of the Hamilton-Wentworth District School Board (the "Board") denying a request to accommodate two students pursuant to its Equity Policy. The Applicant, a father of two children attending a public elementary school, challenged the Board's refusal to grant a request for accommodation to be informed about, and permit his children to be excused from classes on the basis of religion with respect to, specific subject matter that he characterized as "false teachings."

In 2009, in accordance with the Ontario Ministry of Education's policy and its guidelines regarding equity and inclusive education, the Board developed an Equity Policy to ensure that educational practices within the district were consistent with Ministry expectations. The policy provided a process to request and consider religious accommodation with respect to religious practices and curriculum.

Following the implementation of the Board's Equity Policy, the Applicant sought accommodation on the basis of religion as follows: (1) to be notified when "objectionable" instruction would be taught to his children; and (2) to have the right to have his children excused from classes in which he deemed the instruction to be objectionable. After discussing the matter with the Applicant and reviewing his letter, the Board denied his request.

The Applicant then sought relief from the Court, asking for: (1) a declaration that, as a parent, he has final authority over the education of his children; and (2) an order that the Board provide him with information, in advance, as to specific curriculum areas being taught to his children, and that he be permitted to withdraw them from certain classes that conflict with his religious beliefs.

The Applicant argued that the Board's failure to grant the request for information and accommodation was a direct breach of his right to freedom of religion under section 2(a) of the Charter of Rights and Freedoms (the "Charter"). In the alternative, he argued that his right to freedom from discrimination on the basis of creed under the Ontario Human Rights Code (the "Code") was violated.

The Board acknowledged that in denying the Applicant's requests for accommodation, it engaged and infringed upon his right to freedom of religion. However, the Board argued that its decision sought to balance the statutory objectives of the Education Act and the Charter.

Decision

From the outset, the Court held that the Applicant's relief for a declaration that, as a parent, he have final authority over the education of his children could not be granted. While the common law provides that parents have authority over their children on matters such as education, these obligations must also align with the legal framework and regulations established under the Education Act. The Court refused to grant the relief sought on the basis that giving the Applicant a "black and white" declaration that he would have authority over the education of his children would oversimplify the interplay between the common law principles and those ingrained in the legislation.

The Court also refused to grant an order that the Board provide the Applicant with information about the curriculum before the lessons would be taught and that he be granted permission to withdraw his children from classes or activities that his religious beliefs would consider "false teachings" or "objectionable."

The Court found that the Board's decision to deny the request for accommodation was reasonable for two primary reasons. First, if the Board were to grant the accommodation requested, it would cause undue hardship on the teacher. To fulfil the request, the teacher would have to interpret what parts of the curriculum may be objectionable. The list provided by the Applicant was fairly extensive. The Board found that it would be extremely difficult for teachers to be familiar with the concerns raised and then to provide advance notice.

The second reason was the potential for non-attendance. The Board viewed this issue from two perspectives. Allowing some children to be excused from particular classes protects their religious freedoms by removing them from situations that may be considered uncomfortable or sinful for them. On the other hand, isolating children from the classroom may also cause discomfort for those who remain, as well as those who would be removed. The Court ultimately found that past cases favoured inclusion and held that the Board's decision was reasonable.

Additionally, the Court noted that the Board's decision did not leave the Applicant without further recourse. Although the Applicant did not agree with the Board's Equity Policy, he still had the option of placing his children in a privately funded school or home schooling them as an alternative to enrolling them in the publicly funded education system.

With respect to the Applicant's argument that he had been discriminated against under the Code, the Court found that it did not have the jurisdiction to address the Applicant's submissions and that the matter should be referred to the Human Rights Tribunal.

The decision in E.T. v. Hamilton-Wentworth supports the implementation of inclusive education policies and curriculum. Where a student's religious beliefs and the Ontario curriculum conflict, a school board is required to conduct an analysis of the competing rights. In the present case, the decision to deny the request for accommodation was based not only on the unreasonable nature of the breadth of the requested accommodation, but also on the impact that removal from class would have on all students.