R.C. v. District School Board of Niagara, 2015 HRTO 212

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.C. Applicant

-and-

District School Board of Niagara Respondent

-and-

Eden High School Spiritual Life Centre Intervenor

DECISION

Adjudicator: Douglas Sanderson Date: February 18, 2015 Citation: 2015 HRTO 212 Indexed as: R.C. v. District School Board of Niagara

APPEARANCES

R.C., Applicant Self-represented

District School Board of Niagara, Respondent Michael Hines, Counsel

Eden High School Spiritual Life Centre, Intervenor Geri Sanson, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to goods, services and facilities because of creed.

Decision Anonymized

2As will be seen below, this Decision refers to a previous Decision R.C. v. District School Board of Niagara, 2013 HRTO 1382. The applicant and his daughter were the applicants in that matter and, as the applicant's daughter is a minor, the Tribunal anonymized the Decision by referring to them with initials. Reference to the applicant's name in this matter could identify his minor daughter; therefore, I have anonymized this decision by again referring to the applicant with initials. The Tribunal previously issued a Case Assessment Direction that did not refer to the applicant with initials, but I note that Case Assessment Directions are publicized.

The Application

3The applicant is a resident of the Niagara Region and his children attend or have attended (i.e., until graduating from high school) schools operated by the respondent school board. The applicant identifies himself in terms of creed as being a non-believer or Secular Humanist. In this Application, the applicant alleges that the respondent exhibits preferences for Protestant Christianity and excludes other creeds at its facilities, i.e., schools.

4In that regard, the applicant alleges that the respondent operates Eden High School ("Eden") as a specifically Protestant Christian public high school. The applicant alleges that the respondent does not offer similar facilities to any other creed based organization. The applicant also alleges that the respondent continues to allow missionary organizations to operate Christian mission activities within its programs. Specifically, the applicant alleges that the respondent works with Habitat for Humanity in an initiative known as DSBNi that he alleges operates missionary trips to third world countries. The applicant states that the respondent is obliged to ensure that, to the extent it engages in creed based activities, it does not exclude any creed.

The Response

5The respondent is an English language public school board under the Education Act, R.S.O. 1990, c. E2, as amended. The respondent provides elementary and secondary education to English-speaking public school students in the Regional Municipality of Niagara. The respondent was formed upon the amalgamation of the former Lincoln County Board of Education and the former Niagara South Board of Education on January 1, 1998.

6The respondent described the history of the Eden school. Eden was originally founded in 1945 as Eden Christian College by the Virgil Bible Society School. The Ontario Conference of Mennonite Brethren Churches acquired Eden in 1948 and operated it as a private high school until September 1, 1989, when the former Lincoln County Board of Education assumed responsibility for the school. At the time, instruction in religious doctrine was permitted under the Education Act. Eden continued to provide religious instruction in its curriculum until 1990, when the Ontario Court of Appeal declared the provisions of the Education Act and the regulation thereunder to be unconstitutional. This ruling resulted in amendments to a regulation under the Education Act, R.R.O. 1990, Reg. 298 ("Regulation 298"). The respondent states that all of its schools, including Eden, complied with these changes.

7The respondent states that the curriculum taught at Eden is the same as that delivered in its other high schools. That is, the curriculum is secular and does not include religious instruction. The respondent acknowledges that it has a relationship with the intervenor. The respondent states, however, that the intervenor is privately funded and receives no financial support from the respondent. The intervenor organizes chapel services, retreats and trips and also provides spiritual and personal mentoring upon request.

8The respondent notes that section 29(3) of the Regulation 298 permits a person "to conduct religious exercises or to provide instruction that includes indoctrination in a particular religion or religious belief in a school" if certain criteria are met. For convenience, section 29 of Regulation 298 states as follows:

29. (1) Subject to subsections (2) and (3), a board shall not permit any person to conduct religious exercises or to provide instruction that includes indoctrination in a particular religion or religious belief in a school.

(2) A board may enter into an agreement with a Roman Catholic board that permits the Roman Catholic board to use space and facilities to conduct religious exercises or provide religious instruction for the purposes of the Roman Catholic board.

(3) A board may permit a person to conduct religious exercises or to provide instruction that includes indoctrination in a particular religion or religious belief in a school if,

(a) the exercises are not conducted or the instruction is not provided by or under the auspices of the board;

(b) the exercises are conducted or the instruction is provided on a school day at a time that is before or after the school's instructional program, or on a day that is not a school day;

(c) no person is required by the board to attend the exercises or instruction; and

(d) the board provides space for the exercises or instruction on the same basis as it provides space for other community activities.

(4) A board that permits religious exercises or instruction under subsection (3) shall consider on an equitable basis all requests to conduct religious exercises or to provide instruction under subsection (3).

The respondent states that it permits the intervenor to use an area adjacent to the cafeteria in Eden as a chapel, but asserts that Eden operates in strict compliance with section 29(3) of Regulation 298. For example, chapel services are held prior to the start of the school day.

9The respondent denies that it does not offer similar facilities to any other creed based organizations. Rather, the respondent states that it has received few requests from creed based organizations to use its space. The respondent states that it has had agreements to use its space with Baha'i, Muslim and Greek Orthodox organizations. The respondent states that it has never received a request to use its space from an atheist or Secular Humanist organization. The respondent states that its relationship with the intervenor does not reflect an endorsement of Christianity or a rejection of Secular Humanism. Rather, the intervenor is simply exercising its rights under the Education Act, which the respondent submits does not amount to a violation of the Code.

10The respondent stated that its relationship with Habitat for Humanity began in 2004 when it was looking for opportunities for its technology students to employ their skills. Habitat for Humanity was receptive and the respondent's students have participated in several "home builds", both locally and internationally. The respondent created DSBN International or DSBNi to coordinate international educational trips. According to the respondent, planning for international home builds involves instruction in a number of areas (first aid, safety, construction, etc.), but does not include religion. In the host country, students work with local participants and spend no time involved in or witnessing evangelical proselytization. The respondent states that none of the builds, whether in Canada or internationally, it has participated in with Habitat for Humanity have had any evangelical or religious component.

Pre-Hearing

11The intervenor filed its Request to Intervene on December 24, 2014. On January 8, 2015, the Tribunal held a Case Management Conference Call to deal with the intervention request and to advise the parties and allow them to make submissions regarding the fact that this writer is related, through marriage, to a senior member of the respondent's administration. During the call, I granted the Request to Intervene, but restricted the scope of the intervention to making opening and closing submissions. I undertook to provide written reasons for that decision, which are included below. The parties stated that they had no objection to me continuing as the adjudicator for this Application.

Request to Intervene Granted

12Pursuant to Rule 11 of the Tribunal's Rules of Procedure, the Tribunal may grant intervention status to an organization that complies with the requirements of Rule 11 and will determine the extent to which an intervenor will be permitted to participate in a proceeding. In exercising its discretion, the Tribunal is generally guided by the following non-exhaustive considerations:

(a) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding;

(b) whether the applicant has a significant interest in the issue on which intervention is sought; and

(c) whether the applicant is likely to provide assistance to the Tribunal that will not otherwise be provided.

See Jeppersen v. Ancaster (Town), [2001] OHRBID No. 1, and Carasco v. University of Windsor, 2011 HRTO 630.

13As noted above, the intervenor uses space in the Eden school to provide chapel services and the intervenor provides other spiritual services. Amongst other things, the applicant's remedial request includes closure of Eden or that Eden be "re-branded" as a completely secular institution and an order forbidding the respondent from providing "private creedal education". Accordingly, this Application has potentially serious ramifications for the intervenor and I am satisfied that it has a significant interest in the issues arising therein. The intervenor was prepared to proceed on the hearing dates scheduled by the Tribunal; therefore, its participation would not delay these proceedings. I was not convinced, however, that the intervenor's full participation in the hearing would assist the Tribunal; therefore, the scope of the intervention was limited to making opening and closing submissions.

Standing

14On January 9, 2015, the Tribunal issued a Case Assessment Direction directing the parties to be prepared to make submissions regarding whether the applicant has standing to bring this Application at the commencement of the hearing. Submissions on this issue were necessary because the applicant filed this Application pursuant to section 34(1) of the Code, which states as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

[Emphasis added]

Therefore, to have standing to bring an application under section 34(1) of the Code, an applicant must allege that his or her Code rights have been infringed and it was not clear on the face of the Application that the applicant's rights were engaged.

15A person whose rights have not been infringed may not file an application that he or she believes to be in the public interest. Only the Ontario Human Rights Commission has standing to bring "public interest applications", pursuant to section 35 of the Code, which states as follows:

35. (1) The Commission may apply to the Tribunal for an order under section 45.3 if the Commission is of the opinion that,

(a) it is in the public interest to make an application; and

(b) an order under section 45.3 could provide an appropriate remedy

A person whose rights have not been infringed may bring an application on behalf of another person whose Code rights may have been infringed, pursuant to section 34(5):

(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

The applicant did not file this Application on behalf of another person; therefore, section 34(5) is not applicable.

Submissions

The Applicant

16The applicant submitted that he has a child in the respondent school board and that his overall objection is that the respondent operates as a Christian organization. The applicant submitted that there was an "overall perception" of preference to a certain creedal perspective, which perception he states is supported by cumulative evidence. The applicant submitted that it is contrary to the Code to present one creed as "normal" and that exposure to the apparent preference for one creed creates a poisoned environment for other creeds. The applicant submitted that his position as a Secular Humanist is not treated equally and that he is discriminated against because of the preference for other creeds.

The Respondent

17The respondent noted that the Code does not address perceptions. Rather, pursuant to section 1 of the Code, individuals have the right to equal treatment in services. Accordingly the Code addresses the respondent's behaviour, not perceptions that may exist in the community. The respondent submitted that it would be a remarkable result if perception were enough to establish a violation of Code rights, rather than actual treatment. The respondent submitted that enforcing the Code based on the subjective perceptions of applicants would pose significant issues for the human rights system.

18The respondent submitted that it serves the community it is given. In that respect, the respondent submitted that there appears to be more "uptake" of opportunities by those that associate with Christianity, for example at the Eden school. The respondent, however, is prepared to listen to anybody who wishes to exercise the right, under Regulation 298, to use school facilities outside of the school day, whatever their creed may be. The respondent does not control who comes forward.

19Counsel for the respondent provided a thorough review of the case law regarding standing. The respondent noted that the applicant referred to his status as a taxpayer in his Application. The respondent submitted, however, that the Ontario Superior Court of Justice recently rejected the proposition that status as a taxpayer is sufficient to provide individuals standing to bring a claim against the government. See Landau v. Ontario (Attorney General), 2013 ONSC 6152.

20The respondent submitted that the applicant never made a request pursuant to Regulation 298 to use the respondent's facilities for activities related to his creed. The respondent also submitted that there is no evidence that the respondent rejected requests from creed based organizations to conduct activities similar to Habitat for Humanity.

21The respondent submitted that the Tribunal case law indicates that an applicant must show a concrete disadvantage, i.e., that he or she has requested a service, job etc. and been denied based on a prohibited ground of discrimination. Where there has been no request, and therefore no denial, there can be no violation of the Code. See for example Mason v. Clearlane Investments Inc., 2013 HRTO 80 and Brideau v. Wynne, 2014 HRTO 357. The respondent also submitted that the Tribunal's jurisprudence is clear that individuals may not bring applications "in the public interest", i.e., where his or her own rights have not been implicated.

22The respondent submitted that the applicant could not show that the respondent's actions caused him any prejudice or disadvantage and therefore the applicant has no standing to pursue this application. By contrast, the respondent submitted that the applicant clearly had standing in R.C. v. District School Board of Niagara, 2013 HRTO 1382, where he asked the respondent for the same opportunity to distribute materials about his creed that it had provided to the Gideons to distribute Bibles and was refused.

The Intervenor

23The intervenor restated the respondent's submissions to the effect that the applicant has not requested and been denied any service and therefore cannot have standing.

Reply

24In reply, the applicant submitted that perception of unequal treatment is indeed sufficient basis for an application to the Tribunal. The applicant submitted that there is evidence that Eden is a Christian school and his perception is that one creedal background is preferred. The applicant also submitted that, in his view, the respondent must ensure that it is perceived accurately. With respect to his allegations regarding Habitat for Humanity, the applicant submitted that his perception is that Habitat for Humanity has a missionary purpose. The applicant stated this causes his family to feel that they have not been treated equally. The respondent submitted that the Supreme Court of Canada's decision in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 SCR 825 indicates that a human rights claim can be based on perceptions. The applicant submitted that the Court upheld the finding of a human rights board of inquiry that a teacher's off-duty anti-Semitic activities were perceived to contribute to a poisoned environment for Jewish students.

25The applicant acknowledged the respondent's submission that it would be happy to consider equivalent provision for activities related to his creed pursuant to Regulation 298. The applicant, however, submitted that part of his claim is that the respondent is acting in breach of section 29 of Regulation 298.

26The applicant submitted that the term "taxpayer" was colloquial and intended to convey the meaning of a citizen, someone in the community who has the right to equal consideration.

27The applicant submitted that the Tribunal decision in R.C. v. District School Board of Niagara, above, means that he has standing to bring this Application because he has a child attending a school in the respondent's system.

Analysis and decision

28The applicant does not allege that he requested and was denied use of the respondent's facilities for activities related to his creed, pursuant to section 29(3) of Regulation 298. Neither has he asserted that the respondent denied creed based service organizations, other than Habitat for Humanity, the opportunity to work with the respondent and its students.

29Accordingly, the applicant cannot have standing on the basis that he was denied such opportunities because of his creed. The applicant's claim, however, is not that he made requests for service that were denied. Rather, he alleges that the respondent shows a preference towards Protestant Christianity in the manner in which it operates its schools. In determining whether the applicant has standing to bring this Application it is important to bear in mind the scope of the Application, which is defined by the applicant's specific allegations. As noted above, the applicant's allegations are twofold: (1) that the respondent operates Eden as a Christian Protestant school and (2) the respondent allows missionary organizations to operate Christian mission activities within its programs.

30In my view, the applicant does not have standing to bring these allegations. In Landau, above, the Court described the criteria for an individual to have private interest standing as follows, at paragraph 16:

Being a citizen, resident, taxpayer, does not give someone a private interest standing to challenge government action a person believes is unconstitutional. This is trite law. Rather, to have private interest standing, a person must have a direct personal legal interest in the issue. In respect to issues of public policy, to have standing an applicant must show that she is "exceptionally prejudiced" or is "specially interested" in the issue. "Interested" here means having a legal interest, not having one's intellectual passion aroused. Ms. Landau has no "special interest" here, nor is she "exceptionally prejudiced" by the funding of Catholic separate schools.

31The applicant is an adult and obviously does not attend Eden and neither do any of his children. Consequently, the applicant cannot and does not claim that either he or his children were subject to religious instruction based on Protestant Christianity at Eden or were subject to discrimination because of creed related to the respondent's and/or the intervenor's activities at Eden. The applicant's children are not in any event parties to this Application. The applicant does not suggest that either he or his children have participated in activities organized by the respondent and Habitat for Humanity and been subjected to evangelical activities or religious proselytization in the course of those activities. In that sense, the applicant does not have any direct personal legal interest in the operation of Eden or the respondent's activities with Habitat for Humanity. To put it another way, neither the operation of Eden nor the respondent's partnership with Habitat for Humanity affects him in a sufficiently concrete manner to put him in a place of standing. The applicant's "feeling" that his family is not treated equally does not amount to exceptional prejudice or create a special interest that would give the applicant standing to bring this Application.

32The applicant's perception that the respondent is engaged in inappropriate creed based education/activities is not a proper basis for finding that he has standing to bring this Application. Regardless of whether his perceptions are accurate, he has not been subject to these alleged activities. In that respect, the applicant has disclosed evidence, albeit apparently hearsay, pursuant to his prehearing disclosure obligations that, if accepted, may indicate that the respondent has permitted the intervenor to overstep the boundaries set by section 29(1) of Regulation 298 and that some students have experienced creed-based discrimination at Eden. If so, such an affected student may file an application pursuant to section 34(1), have one filed on his or her behalf, pursuant to section 34(5), or the Ontario Human Rights Commission may file a public interest application pursuant to section 35. The applicant, however, has no standing to bring this Application because his rights are not engaged. The applicant effectively seeks to complain about alleged activities to which he objects, but that do not involve him. This is the essence of a public interest application.

33In my view, the applicant has misconstrued the Court's decision in Ross, above. The Court upheld the Board of Inquiry's conclusion that the evidence supported a finding that a poisoned environment existed for Jewish students in the school system in question. The Court also found, as did the Board of Inquiry, that, given the important role of teachers in schools, it was reasonable to infer that a teacher's off duty anti-Semitic conduct had contributed to this poisoned environment. There was also evidence that knowledge of the teacher's behaviour had caused Jewish students to feel threatened. The decision was not based on perceptions, but on conclusions that could reasonably be made based on the evidence before the Board of Inquiry.

34Whether the applicant characterizes himself as a "taxpayer" or a "citizen" or a "member of the community" is in my view of no moment. The Code permits individuals to enforce their own human rights, not to complain about matters occurring in their communities that do not involve them. In any event, the Court found in Landau, above, that being a "citizen, resident or taxpayer" does not convey private interest standing on an individual.

35I find no merit in the applicant's submission that the Tribunal's decision in R.C. v. District School Board of Niagara, above, stands for the proposition that he has standing to bring this Application because his child is a student in the respondent school system. In that case, the Tribunal found that the respondent discriminated against the applicant and his daughter by permitting representatives of one creed (Christian) and no others, including atheism, to distribute religious materials in the respondent's schools. The applicant was asked, pursuant to this practice, to consent to his daughter receiving the text of a creed that she did not identify with and there was no opportunity to receive materials regarding other creeds. The applicant's request to distribute materials regarding his own creed was denied. In that way, the applicant's and his daughter's interests were directly engaged and he clearly had standing to bring the application. In my view, nothing in that decision can be taken to mean that the applicant is entitled to challenge any action of the respondent before this Tribunal, including actions not affecting him or his children, merely because his child is a student in the respondent school system. Given the scope of this Application, the applicant is in effect advancing a claim that the respondent has breached the human rights of others. The structure of the Code does not permit this. I find the applicant has no standing to bring this Application.

36The Application is dismissed