R.C. v. District School Board of Niagara, 2012 HRTO 1591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.C. and S.C. by her next friend R.C. Applicants

-and-

District School Board of Niagara Respondent

-and-

Ontario Human Rights Commission and Canadian Civil Liberties Association Intervenors

INTERIM DECISION

Adjudicator: David A. Wright Date: August 20, 2012 Citation: 2012 HRTO 1591 Indexed as: R.C. v. District School Board of Niagara

WRITTEN SUBMISSIONS

District School Board of Niagara, Respondent Derek J. Bell and Ranjan K. Agarwal, Counsel

Ontario Human Rights Commission, Intervenor Sunil Gurmukh, Counsel

Canadian Civil Liberties Association, Intervenor Stuart Svonkin and Sarah Whitmore, Counsel

1These are Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to services because of creed. R.C. is the father of a student attending the respondent school board and S.C. is his daughter. R.C. identifies as an atheist. This Interim Decision relates to Requests to Intervene by the Ontario Human Rights Commission and the Canadian Civil Liberties Association, and confirms the consolidation of these Applications.

BACKGROUND

2The Applications relate to the respondent Board’s practices on distribution of religious publications in its schools. At the time of filing the Application, the Board’s policy permitted the distribution of bibles by Gideon’s International to students in Grade 5 with parental permission, if the principal and school council agreed. When S.C. was in grade 5, she was sent home with a permission form, which R.C. did not sign. She did not participate in the distribution of bibles.

3Shortly after the Application by R.C. was filed, the respondent amended its policy to allow distribution of other religious publications and religious presentations by other recognized religions in schools. R.C. sought permission to distribute what he describes as an age-appropriate book explaining atheism entitled “Just Pretend” and was denied permission to do so. The applicants allege, among other things, that original and the revised policies are discriminatory because of creed, as are the refusal of the respondent to distribute “material from a non-belief perspective”, the fact that no materials from non-Christian religions have been distributed, and the failure of the respondent to solicit material from non-Christian religions.

4The respondent takes the position that atheism is not a “creed” within the meaning of the Code, and that the policies do not discriminate on this basis or target people who do not have a religious belief. They deny that the policies are discriminatory in a substantive sense, as they do not perpetuate disadvantage or stereotyping. In the alternative, they argue that the policies and practices are reasonable and bona fide. They take the position that “Just Pretend” contained content that made it inappropriate to distribute.

5In a previous Interim Decision, 2012 HRTO 583, the Tribunal granted R.C. leave to amend the Application and to file a Form 4 to bring an Application on behalf of his daughter. He has done so, and S.C.’s Application has now been given File No. 2012-11245-I. The parties were given the opportunity to file comprehensive new pleadings, which they have also done. As I understand it, no party objects to the consolidation of the two Applications or to the documents filed in the previous file being treated as the documents in both files. The Applications are therefore consolidated.

REQUESTS TO INTERVENE

6The Ontario Human Rights Commission seeks leave to intervene. Its proposed arguments focus on the appropriate legal analysis under the Code. It seeks to make opening remarks, oral and written argument, and to ask clarifying questions. The respondent takes no position on whether the Commission should be granted intervenor status, but argues that it should not be permitted to make opening remarks, lead any evidence in chief, or conduct cross-examination. It states that the presiding adjudicator should decide the extent of the submissions and whether they should be written or oral.

7The Canadian Civil Liberties Association (“CCLA”) also seeks leave to intervene. In its original request, it sought leave to intervene to solely argue that the policies violate ss. 2(a) and 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”). The respondent opposed this request on the basis that the applicants did not raise Charter issues themselves, the Charter issues are outside the Tribunal’s jurisdiction, the CCLA does not have a significant interest in the issues in dispute, and the CCLA will not assist the Tribunal.

8In a reply submission, the CCLA clarified that it seeks leave to intervene to make submissions on: (i) the jurisdiction of the Tribunal to consider the constitutionality of the policies and practices at issue in the Application; (ii) how values of the Canadian Charter of Rights and Freedoms (“Charter”), including s. 2(a) (freedom of religion) and s. 15(“equality”) should inform the interpretation of the Code and the meaning and application of the term “creed”; and (iii) whether the policies and practices infringe ss. 2(a) and 15 of the Charter. It argues that the issue of the Tribunal’s jurisdiction to consider whether the policies violate the Charter should be considered together with the merits, rather than at the stage of deciding its intervention. It argues that it does have an interest and expertise in the issues and meets the test for leave to intervene.

9The applicants did not file submissions on either Request to Intervene.

DECISION

10For the reasons that follow, the Commission is granted leave to intervene and to make an opening statement. Its role at the hearing, including whether and how it may ask questions of witnesses, will be decided during the hearing when the issues arise. The CCLA is granted leave to intervene only on the second of the three questions it seeks to raise, the influence of the Charter on the interpretation of the Code and the interpretation and application of the Code in the circumstances of this case.

11In Jeppesen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, which has often been followed, the Board of Inquiry held that the following questions should be considered in determining whether leave to intervene should be granted: (i) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding; (ii) whether the proposed intervenor has a significant interest in the issue on which intervention is sought; and (iii) whether the proposed intervenor is likely to provide assistance that will not otherwise be provided.

12In CAW-Canada v. Presteve Foods, 2011 HRTO 1581, the Tribunal made the following comments on the application of the Jeppesen test in the context of the current human rights system:

…[I]n the new system in which individuals have direct access to the Tribunal and where the Ontario Human Rights Commission is not a party to every case, the Tribunal should be more liberal in granting intervenor status to groups and individuals who wish to bring forward their perspectives on the quasi-constitutional issues it hears, particularly where the issues have significant public importance. The Tribunal can apply its active adjudication approach to ensure that, once intervention status is granted, the intervenor’s evidence focuses on the issues of assistance to the Tribunal in the case and minimizes any resulting costs to the parties.

13This case involves important issues of Code interpretation, and could have consequences for school boards, students and parents across Ontario. Both proposed intervenors are likely to provide assistance to the Tribunal that will not otherwise be provided, in particular given that the applicants are self-represented. The CCLA has a significant interest in these issues as a result of its longstanding involvement as an advocate on similar issues, and Commission has one as a result of its role under the Human Rights Code, discussed in detail in Dream Team v. Toronto (City), 2011 HRTO 1691. The proposed Commission submissions, and the proposed CCLA submissions on the influence of the Charter on the interpretation of the Code, will in my view not unduly delay the proceedings or prejudice the parties.

14However, it would not be consistent with the fair, just and expeditious resolution of this Application to permit the CCLA to significantly expand the issues by arguing that the Tribunal should find that the respondent’s policies and practices violate the Charter. First, this issue has not been raised by the applicants. In proposing to add an allegation of Charter violations, the CCLA seeks to introduce an entirely new and significant issue. Assuming that the Tribunal has jurisdiction to consider the constitutionality of the respondent’s policies and practices, this would likely add to the evidence to be called, length of argument, and costs to the parties, for example by potentially requiring the respondent to call evidence on s. 1 of the Charter.

15Second, the CCLA’s proposition that the Tribunal has jurisdiction to consider the constitutionality of the respondent Board’s policies and practices is inconsistent with several Tribunal cases that have held the opposite: Barber v. South East Community Care Access Centre, 2010 HRTO 581, at para. 7; Wilson v. Toronto Catholic District School Board, 2011 HRTO 1040, at para. 19; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, at para. 8; and Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388, at para. 18. It is certainly open to an applicant or respondent to argue in an appropriate case that this line of jurisprudence is wrong. However, it would not be fair to the parties, or consistent with the proportionate administration of justice, to permit the CCLA to do so in this case when the applicants have not raised their Charter rights. To do so would delay the proceedings, impose additional costs, and distract the parties and the Tribunal from the issues of Code application and interpretation that lie at the heart of this matter.

16As for the respondent’s objection to the making of opening statements by intervenors, I disagree that they should be restricted as proposed. The making of opening statements can be of assistance to all participants in ensuring that the issues are clearly defined and everyone understands the case to be met. In my view, an articulation of the positions of the applicants, respondent, and intervenors in this case before the evidence is heard would be of assistance. The issue of the role of intervenors in conducting examination or cross-examination is best dealt with at the hearing in considering the specific questions proposed to be asked.

ORDER

17The Applications are consolidated. The Ontario Human Rights Commission and the Canadian Civil Liberties Association are granted leave to intervene, in accordance with the terms set out in this Interim Decision. The Application will be scheduled for a two-day hearing.