On November 23, 2016, the Ontario Superior Court of Justice (the “Court”) released its decision in E.T. v. Hamilton-Wentworth District School Board, 2016 ONSC 7313 (“E.T.”). The Court declined to issue a declaration as to parental authority, dismissed the applicant’s request for an order of accommodation, and found it had no jurisdiction to deal with the applicant’s claim of discrimination under the Human Rights Code (the “Code”).
The applicant, E.T., alleged that the Hamilton-Wentworth District School Board had failed to accommodate his and his children’s religious beliefs when it did not allow his children to be withdrawn from class in order for them not be exposed to “false teachings”. The applicant’s concern with “false teachings” engaged a number of broadly defined topics, including but not limited to moral relativism and issues around human sexuality. The applicant had originally filed a request for accommodation using a standard form/letter, the “Spiritual Values/Issues in Education Form”.
The Board and two intervenors, the Ministry of the Attorney General and the Elementary Teachers’ Federation of Ontario, took the position that it was neither appropriate nor possible to accommodate the applicant. The Board took the position that it was not possible to know, in advance, what does or does not amount to a “false teaching”, and that permitting the applicant’s children to be withdrawn from classes where certain topics are taught would be contrary to the values of inclusion and student well-being that underline a number of Ministry and Board policies, including the Board’s Equity Policy. The Board also argued that granting the accommodation requested by the applicant could lead to feelings of exclusion by students, including the applicant’s children.
Justice Reid found that the applicant had satisfied the threshold requirements for bringing an application alleging a breach of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms (the “Charter”), and that he had also established that his sincerely held religious beliefs were at odds with the Board’s Equity Policy. While concluding that the Board’s discretionary decision not to accommodate the applicant constituted a limit to the applicant’s protections under section 2(a) of the Charter, Justice Reid upheld the Board’s decision to deny the applicant’s accommodation request as reasonable.
In upholding the Board’s decision, Justice Reid found that the Board, in the particular factual context of the case, had appropriately balanced the applicant’s Charter rights with its statutory objectives and the relevant Charter values and protections. At paragraph 104 of his decision, Justice Reid took note of the difficulties inherent in achieving such balance, noting that “[i]n the particular facts of this case, it is difficult to find other accommodation for the applicant that mitigates his concern. The choice is clear: include or isolate. The Board chose the former.”
Justice Reid found that, given the variety of Charter values engaged, it was not possible to say that the accommodation request by the applicant, which was calculated to protect his and his children’s freedom of religion, should trump the other values at play in the circumstances. In this case, these values included the Board’s duty of neutrality, equality, and the multicultural nature of Canadian society.
Finding that “the weight of legislative policy and judicial comment favours inclusion rather than isolation” in the context of a public education system, Justice Reid concluded that the Board had proportionally balanced competing Charter protections when it chose to support the values of inclusion and equality over the applicant’s request for individual religious accommodation.
E.T. suggests that the key legal question in accommodation decisions implicating Charter protections is whether the school board proportionately balanced the applicable Charter protections and values in order to ensure that any limitations on Charter protections are constrained no more than necessary, keeping in mind the applicable statutory objectives, the relevant Charter values and protections, and the particular factual context of the case. It now appears that, in those cases where a board’s decision achieves this balance, the court may defer to the school board’s accommodation decision.
It should be noted that the Court made no comment on the merits of the applicant’s claim of discrimination under the Code. School boards continue to have an obligation to provide accommodation to the point of undue hardship in cases where parents and/or students can prove a prima facie case of discrimination under the Code.
It is also important to note that the accommodation analyses under the Charter and under the Code engage different considerations, which should be carefully assessed on a case-by-case basis prior to granting or not granting individual accommodation requests.
* * *
The Court’s recent decision in E.T. may be subject to appeal. Should you have any questions relating to Charter or human rights accommodation issues, please contact Mark J. Zega at 905-667-1994, Giovanna Di Sauro at 416-408-5513, or your regular lawyer at the firm. Mark and Giovanna appeared before the Ontario Superior Court of Justice on behalf of the Hamilton-Wentworth District School Board in the above-noted case.