CITATION: Alexander v. Renfrew County Catholic District School Board, 2024 ONSC 6444
DIVISIONAL COURT FILE NO.: DC-24-00002846-0000 DATE: 20241121
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. A. Ramsay, O’Brien, and Leiper JJ.
BETWEEN:
JOSHUA ALEXANDER
James SM Kitchen, for the Applicant
Applicant
– and –
RENFREW COUNTY CATHOLIC DISTRICT SCHOOL BOARD
Jennifer Birrell and Patrick Twagirayezu, for the Respondent
Respondent
HEARD at Ottawa by videoconference: November 13, 2024
Leiper, J.
[1] This application for judicial review involves a decision of the Suspension and Exclusion Appeals Committee of the Renfrew County Catholic District School Board which denied four appeals by the applicant, former student Joshua Alexander, from suspension and exclusion orders made by the principal of St. Joseph’s Catholic High School under the Education Act, R.S.O. 1990, c E.2 between November 23, 2022, and September 13, 2023.
[2] The Committee, comprised of three school board trustees, issued its decision on December 18, 2023, after a two-day hearing. The parties tendered extensive evidence and made oral and written submissions.
[3] The Committee confirmed the principal’s decisions to suspend and to exclude the applicant from school premises.
[4] The applicant seeks to judicially review two of the Committee’s decisions:
The Committee’s decision to uphold a 20-day suspension confirmed on December 20, 2022, and
The Committee’s decision to uphold an exclusion order issued on January 8, 2023, extended on January 26, 2023 to the end of the 2023 school year.
[5] The applicant submits the Committee’s decision was not reasonable. He submits that the Committee’s reasons show that it did not meaningfully grapple with his arguments about his rights. He submits that the reasons are further flawed by not being justifiable in law, by fundamentally misapprehending the evidence, by failing to consider the impact of the orders on the applicant’s dignity, and by failing to explain why its decision best reflected the legislature’s intention.
[6] The respondent, Renfrew County Catholic School Board submits that the Committee’s decision was reasonable, because the reasons displayed an understanding of the applicant’s position, including his submission that he was being discriminated against for his religious beliefs. The respondent argues that the applicant was given a full hearing, an opportunity to challenge his suspensions and exclusions from school, and provided with detailed, transparent and intelligible reasons upholding the principal’s decisions regarding suspension and exclusion. In the alternative, the respondent submits that the issues are moot.
[7] For the reasons that follow I would dismiss the application for judicial review.
The Preliminary Issue of Mootness
[8] The respondent submits that this application is moot, because the applicant does not challenge the committee’s decision to uphold the final exclusion order issued for the 2023-2024 school year. The respondent submits that any decision on the earlier suspension and exclusion orders will have no practical impact on his current educational status.
[9] The respondent relies on the principle that a case is moot where it no longer presents a live controversy, or where the issues raised are merely academic: Borowski v Canada (Attorney General), 1989 123, [1989] 1 SCR 342.
[10] I would not find that the application is moot. The 20-day suspension is a disciplinary decision and forms part of the applicant’s student record. While the subsequent decision to accept the exclusion order of September 2023 may attenuate the practical effect of the prior suspension, in my view it does not address the applicant’s interest in having his school records reflect decisions made about his conduct. There was no evidence before us as to the applicant’s intentions to finish his high school education. Applicant’s counsel did not know whether his client had obtained his high school diploma as of the date of this hearing.
[11] As such, I would not dismiss this application based on mootness. It should be heard on the merits.
Standard of Review
[12] The Committee’s decisions are subject to the reasonableness standard of review as expressed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.
[13] To be reasonable, the Committee’s reasons must “exhibit the requisite degree of justification, intelligibility and transparency.” Reasons are to be assessed holistically, considering the record and the administrative context in which they were issued. While administrative decision makers are not subject to “formalistic constraints” they must avoid fatal flaws in logic, such as absurd premises, circular reasoning or unfounded generalizations: Vavilov at paras. 100-104.
[14] A reasonable decision will also be justifiable relative to the legislative scheme within which it is made, related jurisprudence and the relevant facts. This element is as important as the logic of the decision: Vavilov at paras. 105-106.
The Legal Framework
[15] The Education Act authorizes school principals to uphold a safe and positive learning climate within schools. Under the Act, a principal may rely on disciplinary measures, such as suspensions, or non-disciplinary measures, such as exclusion orders, to ensure a safe and positive learning climate.
[16] Subsection 306(1) of the Education Act sets out the activities that can lead to a suspension. These activities include “bullying” which is defined as follows:
“bullying” means aggressive and typically repeated behaviour by a pupil where,
(a) the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,
(i) causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual’s reputation or harm to the individual’s property, or
(ii) creating a negative environment at a school for another individual, and
(b) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education;
[17] In certain circumstances, suspension is mandatory. Section 310 of the Education Act provides for the mandatory suspension of a pupil in the following specific circumstances:
(a) Bullying, if the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person;
(b) Any activity listed in subsection 306(1) of the Act that is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor; and
(c) Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil and, therefore in accordance with this Part, conduct an investigation to determine whether to recommend to the board that the pupil be expelled.
Where a principal suspends a student under this section, s. 311.1(1) of the Act requires that there be an investigation into whether the student should be expelled.
[18] The respondent’s Safe Schools–Pupil Suspension Policy provides, amongst other things, that a principal may suspend a pupil if that pupil engages in certain activities at school, at a school-related activity, or in other circumstances where engaging in the activity will have an impact on the school climate. These activities include:
(a) Persistent opposition to authority;
(b) Conduct injurious to the moral tone of the school or to the physical or mental well- being of others in the school;
(c) Harassing another person by use of mechanical/electronic technology or communications; and
(d) Serious breaches of the Boards’ Code of Conduct or the School Code of Conduct.
[19] The respondent’s Policy on Safe Schools–Pupil Expulsion provides for the mandatory suspension of a pupil where that pupil has engaged in identified activities at school, at a school-related activity, or in other circumstances where engaging in the activity will have an impact on the school climate. Those activities include:
(a) Hate and/or bias motivated occurrences;
(b) A pattern of behaviour so refractory that the pupil’s presence is injurious to the effective learning of others; and
(c) Repeated and serious breaches of the Board Code of Conduct where all previous interventions and legal sanctions have proven ineffective.
[20] Paragraph 265(1)(m) of the Education Act requires a principal to refuse to admit to a school or classroom a person whose presence would, in the principal’s judgement, be detrimental to the physical or mental well-being of pupils. Subsection 3(1) of Access to School Premises, O. Reg 474/00, provides that a person is not permitted to remain on school premises where the principal, vice-principal, or another authorized person makes the determination under para. 265 (1)(m) of the Act.
[21] Where a principal is deciding whether to suspend a student under s. 306(1) or determining the length of a mandatory suspension under s. 310 of the Education Act, Regulation 472/07 requires the principal to consider mitigating factors including:
(a) The pupil does not have the ability to control his or her behaviour;
(b) The pupil does not have the ability to understand the foreseeable consequences of his or her behaviour; and
(c) The pupil’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
[22] Although not required by the legislation, the respondent’s exclusion policy adopts the same mitigating features which are considered in the case of a decision to suspend a student from school.
[23] Finally, the respondent’s Safe Schools-Pupil Expulsion policy defines “hate and/or bias motivated incidents” as:
Hate-and/or bias motivated Incidents (e.g., involving statements, words, gestures) are motivated by hatred occurrences or bias towards an identifiable group (i.e., a group distinguished by colour, race, religion, gender, sexual orientation, or ethnic origin) that are publicly communicated and that are wilfully intended to promote or incite bias or hatred against such a group.
Background
[24] On November 23, 2023, Principal Lennox invoked the provisions under section 310 of the Education Act. He placed the applicant on suspension pending his investigation into possible expulsion.
[25] The principal took these steps after receiving allegations about the applicant making inappropriate statements to transgendered students.
[26] During the investigation, the principal spoke with students. He offered the applicant and his parents an opportunity to meet. They did not accept the invitation to meet, however on December 15, 2022, the applicant’s parents sent an email to the principal conveying their response to the allegations, including that many of the quotes attributed to the applicant were inaccurate. They denied that Josh’s social media posts had contained any “warnings” but that the phrase “line in the sand” was a reference to a walkout and peaceful protest.
[27] On December 20, 2022, the principal communicated with the applicant’s parents about the results of his investigation and his findings that the applicant had:
(i) Made inappropriate comments to trans students;
(ii) Continued to refer to a trans student by their deadname, and refused to recognize the gender they lived by;
(iii) Made comments that trans students were a risk to other students in reference to use of washroom facilities in the school
(iv) Made inappropriate comments with respect to trans students in the school and on social media; and
(v) Used a derogatory term in reference to a trans student.
[28] The principal confirmed the 20-day suspension based on his conclusion that the applicant’s public and private comments were:
(a) Bullying and harassing;
(b) Injurious to the moral tone of the school or to the physical or mental well-being of others in the school; and
(c) Motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or other similar factor.
[29] At the end of the 20-day suspension, the principal advised the applicant that as a condition of returning to school he was required to:
(a) Be respectful;
(b) Not use transgendered students’ deadnames;
(c) Avoid contact with two identified transgendered students; and
(d) Attend an alternate classroom for the remaining weeks of his mathematics and world religion courses to avoid contact with the two identified transgendered students. The last instructional day of the semester was January 26, 2023.
[30] On January 8, 2023, after the applicant made it known that he would not abide by these conditions, and his lawyer wrote to the principal that there would be an “unfortunate and unnecessary” conflict at the school upon the applicant’s return, the principal made an exclusion order. The applicant attended at school despite the order. He did not attend his scheduled morning classes, but instead chose only to go to the two classes in which the affected transgendered students were enrolled.
[31] The principal ordered a further suspension. The principal extended the exclusion order on January 26, 2023 because the applicant refused to comply with the principal’s conditions for returning to school.
[32] The principal issued a second exclusion order on September 13, 2023, in response to on-line content posted by the applicant. The post included a 28-second video showing the applicant discharging a firearm into a target in the woods. The message on the video read: “Given the multitude of weak men that have corrupted our society, hard times are inevitable. Prepare accordingly”. The music playing in the background of the video contained the following lyrics:
Try that in a small town
See how far ya make it down the road
Around here, we take care of our own
You cross that line, it won't take long
For you to find out, I recommend you don't
Try that in a small town
[33] The applicant confirmed at a meeting with the principal on September 9, 2023, that the reference to “weak men” was a reference to those who allow males to enter female washrooms. He confirmed that he “expected a whole lot of them in the school board.”
[34] The Committee’s decision which upheld this exclusion order is not the subject of this application for judicial review.
The Hearing Before the Committee
[35] The applicant made extensive submissions before the committee about his beliefs, freedom of religion under s. 2 of the Canadian Charter of Rights and Freedoms Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 and his right to be free from discrimination based on creed as protected by the Human Rights Code, R.S.O. 1990, c H.19.
[36] The applicant provided the Committee with material as part of his submission that the measures taken against him were “faithism,” defined by the Human Rights Commission as including “prejudicial attitudes and perspectives, based on stereotypes, that devalue and denigrate people who follow beliefs and ways of life that differ from what may be considered “normal” or “acceptable”” : Policy on Preventing Discrimination Based on Creed, 2015, Ontario Human Rights Commission at p. 12.
[37] The applicant’s submissions included his account of the facts leading up to the suspension decision and the expulsions. They included paragraphs of biblical scripture supporting his views and how those views informed his position that he could not “speak falsehoods about gender when required to do so by human authorities.”
[38] The applicant submitted that his rights to be protected under the Code were not lesser than other rights and his rights should be accommodated.
[39] The applicant submitted to the committee that the school washroom policy was at the heart of the reason he was suspended and excluded and that he was being sanctioned because he opposed that policy. He submitted that the sanctions imposed on him failed to accommodate his right to “[express] minority creed beliefs regarding gender and sexuality, including beliefs that people cannot actually change their gender or sex and that people should not be compelled to share sex-segregated spaces with people of the opposite sex.”
[40] In his written submissions, the applicant did not accept that he had objectively caused any harm to any student. His submissions stated that while he may have offended students, there was no actual harm.
[41] The applicant requested the following relief from the Committee on appeal:
(i) Reinstatement to St. Joseph’s to complete his education in an environment free of harassment and intolerance of his sincerely held creed beliefs, and free of segregation based thereupon, and a written accommodation agreement to this effect;
(ii) Removal of any record of discipline regarding the events leading to the appeal;
(iii) Development and implementation of policies that protect the expression of minority religious beliefs regarding gender and sexuality, in particular, beliefs based on the Bible.
The Issue on Judicial Review
[42] The respondent’s submissions in this court included material from the Ontario Human Rights Commission describing the vulnerability of transgendered youths in schools including the recognition that “Trans youth can face a wide range of prejudice and discriminatory treatment at a very challenging time in their life. This can include educators and fellow students not addressing them by their chosen name and pronoun, and a lack of access to appropriate and safe washrooms and change room facilities. Trans youth are especially vulnerable to harassment and bullying from peers. The Commission’s gender identity and expression policy reported that:
A 2011 Canadian survey found:
• 78% of trans students feel unsafe in their schools
• 74% of trans youth had been verbally harassed because of their gender identity
• 49% had experienced sexual harassment in school because of their gender identity
• 37% had been physically harassed or assaulted because of their gender identity or expression.
[43] The central issue on this application is whether the Committee’s decision in upholding the impugned suspension and exclusion order was reasonable, applying the principles from Vavilov.
Analysis of the Issue
[44] Under the heading, “Subject of the Appeals” the Committee prefaced its decision by identifying the positions of the parties and addressing how the applicant had framed the issues on appeal before it. This was in direct response to the applicant’s submissions about his belief system, his request to be reinstated and his request to remove any record of discipline, while implementing policies to protect his beliefs.
[45] The Committee explained that the appeal was not about religious beliefs, and that it “goes without saying” that individuals are entitled to their beliefs, religious or otherwise. The Committee wrote that the appeal was not about organizing or attending a rally, quoting from scripture, or holding opinions about the Board’s bathroom policies. The Committee wrote “to be abundantly clear, this Appeal is not about beliefs and/or opinions of any kind.”
[46] After identifying what the appeal was not about, the Committee framed the appeal issue before it as follows:
This Appeal is about behaviour and in particular, behaviour towards other people. While individuals are entitled to their religious beliefs, opinions, and views, what they are not entitled to do is act in a manner that disrespects, discriminates, insults, denigrates, harasses, bullies, or otherwise creates an unsafe environment for any person in the school. Beliefs, opinions, and views, no matter how genuinely held, cannot be used to justify treating any individual with disrespect or in any way that devalues them or makes them feel unsafe.
Our society, as enshrined in the Charter, is founded on the premise that all human beings are worthy of respect and dignity and are recognized as human beings to be treated equally. The Catholic Faith and faith-based education, express similar principles that all individuals are made in the likeness and image of God, worthy of respect and dignity. Behaviour that disrespects, devalues, and/or creates an unsafe environment will not and should not be tolerated. As per the Catholic Bishops of Ontario, ‘Catholic schools should consciously create an environment where students who feel marginalized, rejected or vulnerable can experience safe, nurturing, inclusive communities of faith.’
It is Mr. Alexander’s behaviour and actions towards others and not his beliefs that are the subject of these appeals.
[47] The applicant submits that the Committee undertook no legal analysis of his claims of religious discrimination, nor did it refer to any caselaw which he cited in his submissions. He submits that the Committee unreasonably accorded undue preference to the respondent’s submissions on the Ontario Human Rights Commission gender identity and expression policy.
[48] The reference to the gender expression policy can be found at the Committee’s reasons for decision at paragraph 27. This paragraph reads:
- The Policy on Preventing Discrimination because of Gender Identity and Gender Expression published by the Ontario Human Rights Commission states that gender-based harassment can include, among other things: (a) derogatory language towards trans people; (b) insults, comments, that ridicule, humiliate or demean people because of their gender identity; (c) refusing to refer to someone by the self-identified name.
[49] In assessing the 20-day suspension imposed on the applicant by the principal, the Committee found on the evidence tendered before it that the applicant had engaged in gender-based harassment by:
(a) Referring to transgendered students using the bathroom of their choice as “perverted” in public advertising to hold a rally against the school board’s bathroom policy;
(b) “Tagging” the school in the public advertising for the rally, which the Committee found could suggest that the school sanctioned the rally;
(c) Referring to transgendered students’ use of the bathroom of their choice as “perverted”, that the students were “predators” and that the bathroom policy was part of a “pedophilic agenda;
(d) Using insulting and demeaning language toward them, including use of the term, “tranny”, intentionally and repeatedly using a trans students deadname, and using the wrong pronouns.
[50] The Committee also considered the mitigating factors required by the legislation. It found that the first two mitigating factors did not apply. The Committee found that on the third mitigating factor, there was evidence that the applicant knew his comments were offensive, and that there was evidence from students and parents as to the harmful effects of the applicant’s behaviour, including its impact on their feeling of safety.
[51] The Committee then turned to the evidence on the exclusion order of January 8, 2023, which was extended on January 26, 2023 to the end of the 2023 school year. The exclusion order was made because the applicant refused to abide by the conditions required for his return to school which were:
(a) Be respectful;
(b) Do not use a transgendered student’s dead name;
(c) Not to have contact with the two identified transgendered students;
(d) For the two classes that he had with the transgendered students he would attend the student success centre for the remaining few weeks of the semester.
[52] The Committee also considered the at the end of the suspension, the applicant made it known to the principal he would not abide by these conditions, and if there was no agreement about his return to school on January 9, 2023, “there would be a conflict” at the school.
[53] In relation to the finding on the exclusion order, the Committee noted again that the applicant’s beliefs and views were not the point, but that it was focusing on the evidence that he was being asked to conduct himself in a way that would not disrespect or harass other students. The Committee referred to the evidence before it that other students confirmed that the behaviour which the applicant was being asked to refrain from repeating, made them feel unsafe.
[54] Having found on the evidence that the applicant had refused to cease the behaviours, the Committee wrote at paragraph 46 of the reasons: “The Principal could not permit a student who has clearly stated that they will continue the impugned behaviour to attend the school. To do so would be to allow a person’s presence that would be clearly injurious to others at the school and detrimental to their wellbeing.”
[55] After considering the evidence on the remaining suspension and exclusion orders, which are not the subject of this judicial review, the Committee concluded its reasons by returning to the theme of religious freedom as presented to it by the applicant. The Committee wrote:
Mr. Alexander has argued that he is being discriminated against because of his religious beliefs. He spent considerable time in both his oral and written submissions quoting the Bible and outlining his religious beliefs and convictions. He is fully entitled to his beliefs. His beliefs are not being questioned nor is he being disciplined in any way because of his beliefs. As mentioned, YZ has similar beliefs, and she has never been disciplined. Furthermore, some of Mr. Alexander’s beliefs align with the teachings of the Catholic Church on human sexuality and RCCDSB’s own Family Life education curriculum. People are entitled to their beliefs. But what is indisputable is that no one can rely on their beliefs to justify the discriminatory, hurtful, disrespectful, or otherwise demeaning treatment of others. It is not about beliefs. It is about behaviour.
[56] It is evident that the Committee understood what the applicant was seeking from the appeal and the rationale for his position. The Committee considered its mandate under the Education Act, the mitigating factors required by the Regulation, the Code rights of the transgendered students and those of the applicant. The Committee referred to the impact of the applicant’s behaviour on the school climate and the evidence it received of his defiance of the principal’s exclusion order.
[57] The Committee’s logic is clear throughout its reasons: the applicant has the right to his religious beliefs, including to voice his concerns about school policy in ways that do not harm others, such as by holding a rally or quoting scripture. The Committee focused on the school board’s obligations to ensure a safe school environment for all students. As the Human Rights Commission has highlighted, transgendered students can be vulnerable. The evidence before the Committee was that the applicant’s conduct was making some transgendered students feel unsafe. The Committee chose to uphold the principal’s decision to place limits on the applicant’s behaviour, specifically his past conduct and future intentions to use demeaning, derogatory or harassing language toward transgendered students.
[58] The Committee’s discussion of the applicant’s arguments reveals that it understood those arguments but did not agree that they should prevail or that they were a basis on which he should be permitted to return to school unconditionally at the cost of the safety to other students. The Committee concerned itself with the proportionality of the principal’s responses to the conduct, which reveals it was balancing the applicant’s interests with those of the affected students. It considered the efforts made to have him return to school and reduce conflict. It found those efforts were reasonable.
[59] In the context of a school discipline case, I would find that the way in which the Committee addressed the arguments before it, and its framing of the issues within an education context was reasonable. The reasons contain no flaws in logic. They are intelligible, clear and grounded in the evidence on the record before it. Further, the Committee demonstrated it was aware of the relationship between the applicant’s beliefs and his conduct, and that there were competing human rights in play.
[60] I conclude that the Committee reasonably grappled with the issues as presented by the applicant. It listened to the applicant and demonstrated in its reasons, more than once, that it understood his position. The Committee operated within the context of its legislative mandate, and with reference to the Human Rights Code policies. In doing so, it was not required to undertake a formalistic rights analysis, rather it was acceptable for the Committee to express itself in plain language. In doing so, the Committee reasonably explained why and where it was drawing limits on the applicant’s behaviour within the school setting.
[61] In response to my colleague’s concern that the school did not implement progressive discipline, I note that this submission was not raised before the Committee and neither party advocated for a lesser penalty. However, the Committee had before it evidence that during its initial investigation, the respondent invited the applicant and his parents to a meeting to present their perspective on the issues under investigation, which they declined to attend. At the end of the investigation, the principal did not recommend expulsion, but did uphold the 20-day suspension, which had already been served during the investigation. The respondents also made numerous attempts to re-engage the applicant in his education by offering various academic supports and arrangements. He generally failed to respond to these offers.
[62] I would reject the submission that the Committee’s reasons amount to a conclusion that the applicant could not “declare or otherwise manifest” his religious beliefs contrary to Supreme Court of Canada jurisprudence in R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, 1985 69 (SCC) or in Syndicat Northcrest v. Amselem, 2004 SCC 47.
[63] The Committee expressly recognized both the applicant’s freedom of belief but also his ability to express those beliefs and it gave examples of how he could do that. However, it also recognized that there are limits on freedoms. While it may not have expressed itself in the way that the Supreme Court of Canada did in Amselem, the Committee’s reasons as a whole show that it amply applied the principles expressed in Amselem at para. 61:
In this respect, it should be emphasized that not every action will become summarily unassailable and receive automatic protection under the banner of freedom of religion. No right, including freedom of religion, is absolute: see, e.g., Big M, supra; P. (D.) v. S. (C.), 1993 35 (SCC), [1993] 4 S.C.R. 141, at p. 182; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, at para. 226; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29. This is so because we live in a society of individuals in which we must always take the rights of others into account. In the words of John Stuart Mill: “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it”: On Liberty and Considerations on Representative Government (1946), at p. 11. In the real world, oftentimes the fundamental rights of individuals will conflict or compete with one another.
[63] This distinction was recently confirmed in a decision of the Court of Appeal for Ontario which quoted Volpe v. Wong-Tam, 2023 ONCA 680, 487 D.L.R. (4th) 158, leave to appeal refused, [2024] S.C.C.A. No. 41041, at para. 42 as follows:
The problem with the appellants’ articles was not that they took a position adverse to that of LGBTQ2S+ advocates with respect to Roman Catholic doctrine and education about sexuality. The problem was that they “used derogatory and prejudicial language” to do so, using stereotypes of “predation, pedophilia, and socially destructive behaviour.” This was the aspect of the appellants’ speech that exposed them to the complaint that they expressed discriminatory statements.
Del Grande v. Toronto Catholic District School Board, 2024 ONCA 769 at para. 40.
Conclusion
[64] I would dismiss the application for judicial review. Costs submissions may be directed to the panel’s attention, in writing on a schedule to be determined by the parties with all submissions due by December 10, 2024.
Leiper J.
I agree _____________________________
O’Brien J.
J.A. RAMSAY J. (dissenting in part)
[65] I do not agree that the applicant’s conduct before December 22, 2022 met the definition of “bullying”. It was not reasonable to conclude that it occurred “in a context where there is a real or perceived power imbalance between the pupil and the individual.” The applicant was in a similar position to the transgendered students. He was invited to give his views in math class, and when he did he was called a transphobe, a homophobe and so on. The applicant was subject to what the Ontario Human Right Commission calls “faithism” at school. Moreover, I am concerned that the Committee seems to have ignored its statutory duty under O.Reg. 472/07, section 3 clause 2, to consider progressive discipline, as opposed to starting one step before expulsion. Finally, I would also have set aside the Committee’s finding of bias as unreasonable. It was beyond question on the evidence that the applicant’s views were the product of sincerely held beliefs in a recognized religion. I would have quashed the suspension.
[66] However, when the applicant persisted in attending school after he had been excluded he made himself unmanageable. I agree that the exclusion order should be upheld.
J.A. Ramsay J.
Date: 21 November 2024
CITATION: Alexander v. Renfrew County Catholic District School Board, 2024 ONSC 6444
DIVISIONAL COURT FILE NO.: DC-24-00002846-0000 DATE: 20241121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J.A. Ramsay, O’Brien, Leiper
BETWEEN:
JOSHUA ALEXANDER
Applicant
-and-
RENFREW COUNTY CATHOLIC DISTRICT SCHOOL BOARD
Respondent
REASONS FOR JUDGMENT
Leiper, J.
Date: November 21, 2024