CITATION: Carolyn Burjoski v. Waterloo Region District School Board, 2023 ONSC 6506
DIVISIONAL COURT FILE NO.: Hamilton, DC-22-126-JR
DATE: 20231129
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
E. STEWART, LOCOCO AND WILLIAMS JJ.
BETWEEN:
Carolyn Burjoski
Appellant
– and –
Waterloo Region District School Board
Respondent
Jorge Pineda and Rob Kittredge, counsel for the Appellant
Kevin McGivney and Natalie D. Kolos, counsel for the Respondent
Heard at Hamilton via videoconference: June 5, 2023
REASONS FOR DECISION
STEWART J.
Nature of the Proceeding
Carolyn Burjoski (“Burjoski”) applies for judicial review of the decision of the Waterloo Region District School Board (the “WRDSB”) to uphold the Chair’s decision to stop Burjoski’s presentation to a Committee of the Whole Meeting on January 17, 2022.
Burjoski seeks an order quashing the decision, a declaration that the decision was unreasonable and a breach of the duty of fairness and in violation of the principles of natural justice, and an order requiring the WRDSB to allow her to make her presentation in full at a future meeting to be scheduled.
Burjoski also seeks a declaration pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”), on the basis that the decision unreasonably breached her right to freedom of expression under s. 2(b) of the Charter.
The WRDSB asks that this application be dismissed.
Background Facts
Burjoski is a resident of the Waterloo Region. She is an elementary school teacher who taught English as a second language with the WRDSB until she retired about two years ago.
The WRDSB is a public school board that exercises statutory authority under the Education Act, R.S.O. 1990, c. E.2., composed of 11 trustees. The WRDSB is responsible for serving the interests and needs of the general public and for advocating for a strong public education system that benefits the Waterloo Region.
On January 17, 2022, the WRDSB held a Committee of the Whole Meeting to which members of the public were invited. One of the topics for consideration at the meeting was a proposal for a “Library Review”.
Burjoski sought registration as a delegate to speak at the meeting. In her request form, Burjoski indicated that she wished to speak on the topic of transparency in the library review process and to offer recommendations in that regard. Specifically, Burjoski in her request form stated the following:
I would like to address the Board on issues of transparency regarding the library and classroom teacher's collections culling project. I would also like to express my concern regarding Board Policy 1235 Section 4 which states that we teachers must not disclose a student's transgender status to their parents.
- Bujoski’s proposed recommendations included the following:
Be more transparent in general. The Board should have been ready to answer the reporter's questions about criteria for the library cull for the National Post's October 8, 2021 article.
From the subsequent November 8 memo "Reviewing Our Library Collections", the Board listed the CREW method and the MUSTIE criteria for reviewing collections. Be transparent about the criteria for titles that will be considered "Misleading, Superseded, Trivial or Irrelevant" when using the CREW method, or keep lists of titles that are being removed from the library.
Do not cull teacher collections.
Create committees which include diverse thinkers when making decisions. Be ready to share how the Board arrived at decisions and explain why the people who were on the committee were chosen. Include people from both within and outside of the LGBT banner when you create committees and include diversity of thought in your criteria.
Strike a committee that properly represents parents and teachers to discuss the intersection of biology and gender and clarify which direction teachers should follow. For example, the Living Things strand of the Science curriculum teaches children to classify living things based on physical characteristics of their bodies. This differs from the Gender Lessons which teach children that they can choose if they are a boy or a girl or something in between.
Demonstrate more respect for the role of parents when making policy decisions. Change policy 1235 to state that schools must inform parents if their child asks to be called a different name, pronoun, etc. It is their right to know this information.
Burjoski did not include in her request form any indication that she would be advocating for the removal of any specific books.
On December 20, 2021, Burjoski was advised that, while her delegation request was for two separate topics, only her request for a delegation regarding the need for transparency in the library review was approved. Accordingly, Burjoski was permitted to appear at the meeting solely to address her first issue, which she had described as addressing the WRDSB “on issues of transparency regarding the library and classroom teacher's collections culling project”.
At the beginning of the meeting, the Chair made a statement that indicated that each delegation would have up to ten minutes to make their submissions and that all presentations were to be confined to the issue that the delegate was registered to address. Any discourteous language or statements that might contravene human rights legislation would not be tolerated.
It is not difficult to understand why the Chair considered it necessary and advisable to deliver this early warning to all persons in attendance at the meeting. It is the Chair’s responsibility to maintain decorum and order at meetings and to ensure that the available time is used effectively for the purposes at hand.
Soon after Burjoski began her delegation, she digressed from the scope of the issue that had been approved. She embarked instead upon an outline of her views about what she perceived to be books that discuss gender identity, shifting rapidly toward a critique of specific books that were available in school libraries. This went well beyond the “transparency” concerns that had been represented and approved in her request form as being the core subject of her presentation.
Burjoski stated that some books in the school libraries were inappropriate for young children and further argued that certain books make it “seem simple or even cool take puberty blocks or opposite sex hormones.” At this stage, the Chair expressed his concern that the contents of Burjoski’s delegation may be problematic and cautioned her to make sure that she would not say anything that would violate human rights legislation.
Burjoski was allowed to continue her delegation. Despite the Chair’s admonition, she continued to persist in commenting on the appropriateness for students of specific books about gender identity issues. She described these books as misleading and stated that at least one of them “makes very serious medical interventions seem like an easy cure for emotional and social distress”.
The Chair again interrupted Burjoski’s presentation and required its conclusion because he considered that it could violate human rights legislation and WRDSB policies for delegations, as he noted that gender identity and gender expression are protected grounds under the Human Rights Code, R.S.O. 1990, c. H.19 (the “Human Rights Code”).
One of the trustees challenged the Chair’s decision to stop Burjoski’s presentation. The Chair again explained his reasons for stopping her presentation. The WRDSB took a vote on the issue and, by a majority, voted to sustain the Chair’s decision to end Burjoski’s delegation.
Burjoski now asks this Court, among other things, to quash the WRDSB’s decision.
Jurisdiction
- The Divisional Court has jurisdiction to hear this application for judicial review under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1.
Standard of Review
- The standard of review applicable to this subject matter for judicial review is that of reasonableness (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653). For an issue of procedural fairness, the standard is that of correctness (see: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-20).
Discussion
- This judicial review application raises three issues:
A. Was the decision unreasonable?
B. Was there a breach of procedural fairness?
C. Was there a reasonable apprehension of bias in the decision?
Was the decision unreasonable?
Burjoski submits that the WRDSB’s decision was unreasonable because the WRDSB failed to consider her Charter right to freedom of expression and failed to engage in a “robust balancing exercise”. She also claims that the WRDSB did not have the authority to find that Burjoski engaged in improper conduct, and the WRDSB did not have the authority to find that she breached the Human Rights Code.
Burjoski argues that the contents of her delegation were protected under s. 2(b) of the Charter and submits that the decision of the WRDSB required a robust explanation as a prerequisite. The decision cannot be fair or reasonable if the WRDSB did not engage in the balancing exercise as set out in the prevailing legal authorities (see: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395).
Burjoski submits that the WRDSB does not have the authority to end a presentation, or censor a presenter, that it deems or perceives to be a violation of the Human Rights Code. She submits that the only option available to the WRDSB, pursuant to the Education Act, is the removal of the presenter from a meeting. She argues that the Education Act does not provide the WRDSB with the authority to curtail speech on the basis that such speech is misconduct. She submits that the improper conduct contemplated by the Act must be something that interferes with the WRDSB’s ability to conduct a proper meeting and carry out its functions. She submits that, as such meetings are supposed to be open to the public, the decision to stop her delegation was unreasonable.
Burjoski also argues that the WRDSB did not provide adequate reasons to indicate how Burjoski breached the Human Rights Code, and therefore the decision was unreasonable.
I agree with the submission of the WRDSB that the decision was not unreasonable. The WRDSB has codified certain operational matters in its Bylaws that include procedures for delegations, for its committees and committee members, for public meetings, and for WRDSB meetings. The Bylaws identify duties of the Chair to maintain order in WRDSB meetings and, in particular, to preserve order and decorum and decide upon all questions of order, subject to an appeal to the WRDSB. The Bylaws also set out procedures for delegations to make submissions at meetings which include the requirement to make written submissions ahead of time that provide a summary of the points being presented.
The WRDSB has multiple policies that commit to providing working and learning environments free of discrimination and harassment as well as ensuring that individuals are treated with respect and dignity. The WRDSB policy on Equity and Inclusion identifies the WRDSB’s mandate to “identify and remove systemic and attitudinal barriers and biases to learning and employment opportunities that have a discriminatory effect on any individual” as well as the WRDSB’s duty “provide a safe, inclusive environment free from inequity, discrimination and harassment….” including by incorporating “the principles of equity and inclusive education into all aspects of its operations…” The Policy further acknowledges that all “partners in education” “have a critical role to play in leading the identification and removal of bias [and] discrimination.” The Policy commits to “the principle that every person within the school community is entitled to a respectful, positive school climate… free from all forms of discrimination and harassment.”
In the context of decisions made by elected decision-makers like the WRDSB, a high degree of deference must be given. The WRDSB trustees are accountable to their community and are well-versed in the goals of the education system and the boundaries of proper debate at meetings. School boards should be free to act as modern, democratic, dynamic legal personalities, provided only that there be some statutory foundation for, and no express statutory prohibition of, their conduct (see: Radio CHUM 1050 Ltd. v. Toronto (City) Board of Education, 1964 164 (ON CA), [1964] 2 O.R. 207 (C.A.)).
The WRDSB made no finding that Burjoski breached the Human Rights Code. The Chair merely referenced that statute and expressed concerns that Burjoski’s comments were becoming problematic. It was reasonable for him to do so.
There is no duty to give formal reasons in a context where the decision was made by elected representatives pursuant to a democratic process. A school board’s reasoning may be deduced from the debate, deliberations and the statements of policy that give rise to the decision in question (see: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293). Accordingly, given that the decision was reached through a democratic process by elected trustees, it was not necessary for the WRDSB to give detailed formal reasons for the decision. In any event, the Chair made known to Burjoski the reasons for his ruling. In my view, the explanation when taken in context was adequate.
The written materials Burjoski submitted expressed her concerns about the WRDSB being transparent in how the “library cull” was to be conducted. Her written materials did not indicate she intended to address the WRDSB about specific books within the WRDSB collection. Burjoski was permitted to continue with her presentation after receiving a warning that she refused to abide. There is nothing preventing Burjoski from voicing her opinion on these library books in another forum. The decision was ultimately about Burjoski’s choice of words, which were, in the opinion of the WRDSB, derogatory and contrary to its Bylaws, the objectives of the Education Act, and potentially the Human Rights Code, as gender identity and expression are both explicitly listed as protected grounds under both the Education Act and the Human Rights Code.
In making its decision, the WRDSB sought to achieve, and did achieve, a reasonable balance between Burjoski’s Charter right to free expression and the objectives of its Bylaws, its Equity and Inclusion Policy, the Education Act. It prioritized the maintenance of a safe and inclusive school environment for its community members and was in accordance with the requirements of reasonableness as set out in Vavilov.
Accordingly, I consider the decision of the WRDSB to be reasonable and would not give effect to this ground of review.
Was there a breach of procedural fairness?
Burjoski also argues that there is no doubt that the WRDSB owed her a duty of procedural fairness because it made a decision that “affects the rights, privileges, or interests” of individuals is enough to trigger the duty of fairness. She maintains that she was denied such procedural fairness (see: Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817).
If any procedural fairness was owed to Burjoski, it was on the low end of the spectrum and it was not breached. The impact of the decision on Burjoski was relatively minimal. She was given an opportunity to speak about the library review process itself, as she requested to do in her request for delegation. It was only when she began to speak of topics irrelevant to those outlined in her request for a delegation that her presentation was interrupted with a warning. When she continued expressing her opinion about the content of books, and not the library review process, she was stopped by the Chair. In these circumstances and in this context, I consider that the restriction on her freedom of expression was minimal.
Like every administrative body, a school board such as WRDSB is “the master of its own procedure and need not assume the trappings of a court.” Important weight must be given to the choice of procedures made by the agency itself and its institutional constraints.
The WRDSB followed its own procedures in coming to a resolution to end Burjoski’s presentation. Although the Bylaws do not specify how the board may stop a delegation, even where a mode of procedure is not prescribed by statute, any reasonable mode not expressly forbidden by law may be adopted (see: Knight v. Indian Head School Division No 19, 1990 138 (SCC), [1990] 1 S.C.R. 653). The Chair did provide brief reasons when he referenced the delegation procedure and his concern that Burjoski’s comments may have violated the Human Rights Code.
I consider that the process that was afforded to Burjowski was not unfair. She was given more than one opportunity to deliver her delegation on the topic approved in advance, but declined to do so even after she was reminded of its scope. I therefore would not give effect to this ground of review.
Was there a reasonable apprehension of bias in the decision?
Burjoski submits that the statements made by the Chair subsequent to the meeting can leave no doubt that the decision was motivated by bias. She submits that the Chair disparaged her comments as “transphobic”; inexplicably stated that she “questioned the right to exist of trans people”; claimed she had not been “respectful and courteous”; that she engaged in “hate” and “derogatory speech”; and that she had in fact caused “harm.”
She argues that these comments are not reflective of a sober and impartial decision maker. She argues that a reasonable person would perceive that the decision maker in this case formed a biased opinion against Burjoski based on his own personal perspective on the issue. Because of this bias, Burjoski submits that the decision should be quashed.
The test for bias is objective. In this case, the question that must be answered is whether a reasonable, informed and right-minded person viewing all the facts would believe that the WRDSB had a “closed mind” before making the decision because they were not amenable to persuasion (see: Citizens for Accountable and Responsible Education Niagara Inc v. Niagara District School Board, 2015 ONSC 2058, 335 O.A.C. 101 (Div. Ct.)).
The only evidence of bias raised by Burjoski are statements that were made after the meeting. The WRDSB submits that the comments that Burjoski takes issue with merely support the decision that was made after the fact and do not in any way leave a reasonable person to believe that the Chair had a closed mind before he voted in support of the decision. In addition, the decision was made by five members of the elected WRDSB. The Chair also specifically passed the chair position to the Vice-Chair to preside over the vote. Having formed a reason for voting a certain way is not the same as being biased before the vote is cast.
I see no basis established upon which any finding of a reasonable apprehension of bias, or any actual bias, on the part of the WRDSB could be justified.
Conclusion
- For these reasons, this application is dismissed.
Costs
The WRSDB has been successful in its response to this application and seeks its costs as a result.
Burjoski submits that the WRDSB should not receive any award of costs. Instead, she submits that the issue she has raised is of such public interest that no costs should be ordered.
I see no compelling reason why the usual approach as to awarding costs to the successful party should be departed from in this case. Although Burjoski’s perspective on what students should and should not read may be shared by others, it is not of such a nature as to operate to insulate her from an order that she contribute to the costs of the opposing party when she initiates a court proceeding.
Costs fixed at $5000, inclusive of disbursements and applicable taxes, shall be paid by Burjoski to the WRDSB if demanded.
E. Stewart J.
I agree:
Lococo J.
I agree:
Williams J.
Released: November 29, 2023
CITATION: Carolyn Burjoski v. Waterloo Region District School Board, 2023 ONSC 6506
DIVISIONAL COURT FILE NO.: Hamilton, DC-22-126-JR1
DATE: 20231129
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
E. Stewart, Lococo and William, JJ.
B E T W E E N :
Carolyn Burjoski
Appellant
- and –
Waterloo Region District School Board
Respondent
REASONS FOR DECISION
Released: November 29, 2023