CITATION: E.T. v. Hamilton-Wentworth District School Board, 2016 ONSC 7313

COURT FILE NO.: 12-36939

DATE: 2016-11-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

E.T.

Applicant

– and –

HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD

Respondent

A. Polizogopoulos,

for the Applicant

M. Zega and G. Di Sauro,

for the Respondent

ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO and ATTORNEY GENERAL OF ONTARIO

Intervenors

K. Hughes and L. Sheffield,

for the Intervenor Teachers’ Fed’n

J. Hunter and E. Bala,

for the Intervenor Attorney General

HEARD: June 23, 2016

The Honourable Mr. Justice Robert B. Reid

Introduction:

[1] Cultural and religious plurality is a reality in this country.

[2] With that plurality comes conflict. Previously unquestioned norms are subject to debate. Accepted religious tenets are challenged by different belief systems. Public authorities seek to establish general standards, while affected individuals respond with efforts to maintain their individual traditions.

[3] The Canadian Charter of Rights and Freedoms[^1] (the “Charter”) over-arches these conflicts with a constitutional framework protecting individual rights, within a broad context of general application. The Ontario Human Rights Code[^2] (the “Code”) protects against discrimination and imposes a duty to accommodate within provincial jurisdiction.

[4] In this case, the applicant has turned to the court to endorse the view that his guaranteed rights to freedom of religion have been unjustifiably infringed, and to seek relief accordingly.

Background:

[5] The applicant is the father of two children, both of whom attended elementary school in the public education system when this application was started.

[6] He is a member of the Greek Orthodox Church, which is a Christian denomination.

[7] One of the tenets of the applicant’s religious beliefs is that he has an obligation to protect his children from “false teachings”, and that it would be sinful for him to fail to provide that protection.

[8] According to the applicant, various aspects of the public school curriculum constitute “false teachings”. Those include, but are not limited to, moral relativism and issues around human sexuality.

[9] The applicant sought accommodation from the respondent Hamilton-Wentworth District School Board (the “Board”), which, if granted, would have stopped his children from being exposed to “false teachings”.

[10] The Board, supported by the Elementary Teachers’ Federation of Ontario (the “Teachers Federation”) and the Ontario Ministry of the Attorney General (the “MAG”) as intervenors, takes the position that it is not appropriate or possible for an accommodation to be given that would satisfy the applicant’s concerns.

Relief Requested:

[11] The applicant has asked for:

a. a declaration that, as a parent, he has final authority over the education of his children; and

b. an order that the Board provide him with information, in advance, as to specific curriculum areas being taught to his children, and an order that he be permitted to withdraw the children from certain classes, lessons or activities that conflict with his religious beliefs.

[12] The applicant’s primary basis for the request for information and accommodation is his assertion that, without it, his right to freedom of religion under s. 2(a) of the Charter is violated.

[13] The applicant’s secondary basis for requesting accommodation is his assertion that, without it, his right to freedom from discrimination on the basis of creed under the Code is violated.

Should there be a Declaration of Parental Authority?

[14] The applicant submits that there is a long-standing common-law principle that parents and guardians have ultimate authority over their children, including their education.

[15] He admits to delegating his parental authority to the Board as to his children’s education, but asserts that he retains the ability to reclaim this authority as he sees fit.

[16] The Board does not dispute that the applicant has parental rights and obligations as regards his children. However, it maintains that those rights and obligations must be interpreted according to law. As such, they must be consistent with the regulations and policies established under the Education Act[^3].

[17] It is clear that the Education Act imposes obligations on parents in a variety of ways. For example, it mandates that a parent must require a child to attend school, except under certain limited circumstances. Failure to do so makes the parent guilty of an offense.[^4]

[18] It is also clear that a parent in Ontario has the choice to send a child to a publicly-funded school, a privately-funded school or no school, provided that a child is “receiving satisfactory instruction at home or elsewhere.”[^5]

[19] I do not take it to be the position of the applicant that his authority over his children and their education supersedes the law. Rather, the applicant seeks the declaratory order to support his main claim that he can assert his Charter and Code rights without the Board responding by asserting a superior level of authority when it comes to the education of his children.

[20] The issue is whether it is appropriate or necessary for a declaration to be made.

[21] Clearly, a declaration is a discretionary remedy. It should only be granted when justified by the facts and where there is a legitimate reason for doing so. It must have a useful purpose.

[22] In this case, the applicant wishes to assert his parental rights in support of his submissions about the unjustified infringement by the Board regarding his right to freedom of religion in the education of his children. I suspect he considers that a declaratory order will assist him in his submissions about how the Board must accept his accommodation requests on behalf of his children.

[23] I consider the applicant’s parental rights to be a matter requiring some nuance. In part, this case involves the confluence of authority between the applicant and the Board as regards his children’s education in the public school system. A black-and-white declaration of parental authority in favour of the applicant would, in my view, oversimplify the common law principles with which neither party disagrees.

[24] The applicant is able to fully articulate and advance his position in the absence of the requested declaration.

[25] Therefore, I am not satisfied that the declaratory relief is justified by the facts, nor that there is a useful purpose in granting such an order in the context of this litigation.

[26] I choose not to exercise my discretion to grant the declaratory relief requested by the applicant.

Should Accommodation be Ordered?

Freedom of Religion under the Charter:

[27] The Charter provides in s. 2(a) that everyone has fundamental freedom of conscience and religion. That freedom has been described by the Supreme Court of Canada as follows:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination. But the concept means more than that. […] Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.[^6]

[28] The Charter guarantee of freedom of religion was examined further by the Supreme Court which held that:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices.[^7]

[29] However, the guarantee of freedom of religion is not “free-standing”. An alleged breach of a s. 2(a) right must be analyzed within a particular framework.

Framework for Analysis:

[30] Initially, an applicant alleging a breach of s. 2(a) must show the court two things, namely:

that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.[^8]

[31] In this case, there is no challenge by the respondent or the intervenors to the applicant’s assertion that as a practicing member of the Greek Orthodox Church, he satisfies the two threshold requirements for making this application. I agree.

[32] The framework for analysis used when considering any alleged Charter breach follows the means by which the breach occurs. For example, when a legislative provision is challenged as unconstitutional, the first question is whether the statute violates a section of the Charter and if so, whether the infringement of a Charter right can be justified under s. 1. The onus of establishing the Charter breach is on the applicant and the onus of proving a justification under s. 1 is on the party seeking to uphold the legislation. This process was established by the Supreme Court of Canada in the seminal case of R. v. Oakes[^9] where the constitutionality of a provision of the Narcotic Control Act[^10] was challenged.

[33] A different analysis applies in judicial review of administrative decisions where the result of the decision is an alleged Charter breach. Charter values are protected by requiring administrative tribunals or other discretionary decision-makers to integrate those protected Charter values into their decisions. In those cases, it is typically the rights of an individual that are affected by the administrative decision in a particular set of facts rather than the broader sweep that applies to the constitutionality of a law of general application. That analysis was undertaken by the Supreme Court of Canada in Doré v. Barreau du Québec[^11] and in Loyola High School v. Québec (Attorney General)[^12]. In Doré, the issue involved judicial review of the decision of a disciplinary body to reprimand a lawyer. In Loyola, a school sought judicial review of the decision by the Québec Minister of Education not to grant an exemption from requirements to teach a provincially mandated program on ethics and religious culture. In both cases, the administrative decision was judicially reviewed on the basis of reasonableness.

[34] In this case, there is no challenge to any specific legislation, nor is there a request for judicial review. The requested relief is in the nature of a declaration. The applicant challenges the decision of his children’s school principal, and through her, the Board.

[35] The Nova Scotia Court of Appeal recently held[^13] that the Doré/Loyola approach applies to a discretionary administrative decision despite the fact that the tribunal was not strictly adjudicative. The court found that the reasonableness standard of judicial review is not reserved for decisions of quasi-judicial tribunals that exercise a classic adjudicative function. In that case, pursuant to a school board policy, the school principal had declined to approve the plaintiff’s distribution of religious tracts on school premises during school hours. The claim was not framed as a request for judicial review but rather a lawsuit alleging a violation of s. 2(a) and 2(b) of the Charter.

[36] The applicant submits that to determine this case, it is inappropriate to borrow from the administrative law jurisprudence concerning judicial review because he seeks a declaration, not judicial review. At the very least, the applicant submits that the standard of review should be correctness. He notes the absence of factors that often attract judicial deference on a reasonableness analysis. For example, there is no privative clause in the Education Act. The applicant submits that the tribunal, (or in this case, the principal acting on behalf of the Board), was not interpreting its own statute closely connected to its function with which it would be deemed to have particular expertise. He made reference to the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick[^14] in support of his position. However, I also note that the court in Dunsmuir held that as a first step, courts should “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question”[^15]. “This simply means that the analysis required is already deemed to have been performed and need not be repeated.”[^16]

[37] I am satisfied that in this case, it is appropriate to apply the same Charter analysis that has been used in similar cases seeking judicial review of administrative decisions. The factual underpinning is the same, that is, the challenge is to a specific decision affecting the applicant and his children in a particular set of factual circumstances. There is no statute or legislative scheme of general application being challenged. In addition, based on such appellate level precedents as Loyola, Doré, and Bonitto, I am satisfied that the appropriate standard for review of the Board’s decision in this case is reasonableness.

[38] Further, I accept that the basic principle against which the Board’s actions must be measured is as identified by Justice Abella in Loyola:

[W]here a discretionary administrative decision engages the protections enumerated in the Charter -- both the Charter’s guarantees and the foundational values they reflect -- the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that he or she is obliged to pursue.[^17]

[39] Therefore, the task of this court is to consider the facts of this case contextually, to determine whether there has been a proportional balancing by the Board between its governing statutory objectives and the applicable Charter values including those raised specifically by the applicant.[^18]

[40] The applicant bears the onus, on a balance of probabilities, of satisfying the court that the Board’s decision was unreasonable. I find that to be the appropriate test to guide my discretion in considering whether to grant a declaration. Importing the notion of deference from administrative law makes sense and is no barrier to considering the question of Charter protection.

Applicable Policies and Legislation:

[41] The Board operates under the statutory framework of the Education Act. In providing services to its students, it acknowledges the necessity of abiding by the principles set out in the Charter and the Code. Its policies, operational directives and requirements are established pursuant to the requirements of the Education Act, including s. 169.1(1), which requires school boards to:

(a) promote student achievement and well-being;

(b) ensure effective stewardship of the board’s resources;

(c) deliver effective and appropriate education programs to its pupils;

(d) develop and maintain policies and organizational structures that,

(i) promote the goals referred to in clauses (a) to (c), and

(ii) encourage pupils to pursue their educational goals.

[42] School principals are in charge of the instruction and discipline of pupils in the school (subject to the authority of the appropriate Board supervisory officer), and have a statutory duty to provide for the instruction of these pupils.[^19]

[43] In 2009, the Ontario Ministry of Education issued various directives to school boards and principals including Policy Program Memorandum No. 119 (“PPM 119” or the “Memorandum”).[^20] PPM 119 provided direction on the review, development, implementation and monitoring of equity and inclusive education policies to support student achievement. Pursuant to PPM 119, the Board was required to review and/or develop, implement and monitor an equity and inclusive education policy established in accordance with the Memorandum. That policy was required to include allowances for religious accommodation in accordance with the Code and other Ministry policies. The Code prohibition of discrimination on the grounds of creed including religion and the related duty to accommodate was acknowledged in PPM 119.

[44] In part, PPM 119 was designed to respond to a concern that racism, religious intolerance, homophobia and gender-based violence were still evident in school communities.

[45] In providing background for PPM 119, the Ministry of Education acknowledged previous policies against racism and promoting ethnocultural equity. Those policy directives were expanded and the Memorandum provided that: “it is now recognized that such factors as race, sexual orientation, physical or mental disability, gender, and class can intersect to create additional barriers for some students.”[^21] It purported to promote:

a system-wide approach to identifying and removing discriminatory biases and systemic barriers to help ensure that all students feel welcomed and accepted in school life. … The strategy is designed to promote fundamental human rights as described in the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms, with which school boards are already required to comply.^22

[46] In turn, the Board developed its Equity Policy,[^23] by which it purported to follow the ministry directives including PPM 119.

[47] Under the section of the Equity Policy dealing with antiracism and ethnocultural equity,[^24] it established as a guiding principle a commitment to ensure “that all policies, guidelines and operating practices actively demonstrate a respect for Aboriginal, racial, ethnocultural and religious differences”.

[48] Another section of the Equity Policy deals with sexual orientation. In it, the Board committed to ensure that classroom practices are anti-homophobic and anti-heterosexist.[^25] The Board committed to provide leadership that “fosters an environment of respect for all people regardless of sexual orientation” and to raise awareness of issues related to sexual orientation and equity throughout the Board jurisdiction.[^26] Later in that section of the Equity Policy it states that:

The leadership of the Hamilton-Wentworth District School Board will strive to ensure that educational practices are inclusive and reflect the contributions of the Lesbian, Gay, Bisexual and Transgender communities and that all forms of stereotyping, prejudice, discrimination, and homophobia and violence against these communities are challenged and eliminated.[^27]

[49] Further in the same section of the Equity Policy, and under the heading of promoting the principles of equity through the curriculum, it sets out that:

The Hamilton-Wentworth District School Board will strive to ensure that curriculum delivery in all subject areas is consistent with the principles and practices of Equity as they relate to sexual orientation. The Hamilton-Wentworth District School Board will honour this commitment by:

• Ensuring that its staff has access to a wide variety of bias-free teaching and learning materials;

• Supporting staff who choose to use learning materials with themes, topics or characters that reflect the diversity of sexual orientations;

• Ensuring that best practice, age and developmentally appropriate teaching and learning strategies are used to address the topic of sexual orientation;

• Ensuring that its facilities are spaces in which Lesbian, Gay, Bisexual and Transgender students can participate in learning experiences without fear of harassment.

The Hamilton-Wentworth District School Board will strive to deliver program, provide learning materials and promote best practices in all accepted subject matter that reflects a balance of perspectives and includes a diversity of experiences including those of Lesbians, Gays, Bisexuals and Transgender communities.[^28]

[50] Included in the Equity Policy is a religious accommodation guideline. That guideline includes an acknowledgment by the Board of an individual’s right to follow or not follow religious beliefs and practices, free from discriminatory or harassing behaviors. It indicates a commitment to take all reasonable steps to provide religious accommodations. As a general principle, the guideline states that the Board recognizes and values religious diversity within its community, and is committed to providing a safe, respectful and equitable environment for all, free from all forms of discriminatory or harassing behaviors based on religion.[^29]

[51] The guideline continues by way of introduction:

The Board commits to work with the community it serves to foster an inclusive learning environment that promotes acceptance and protects religious freedom for all individuals. While the Board and its staff will take all reasonable steps to ensure freedom of religion and religious practices consistent with the Ontario Human Rights Code, it is expected that students and their families will help the Board to understand their religious needs and will work with the Board and its schools to determine appropriate and reasonable accommodations.^30

[52] The guideline includes reference to the Charter and the Code confirming freedom of religion, and quotes the policy on creed and the accommodation of religious observances produced by the Ontario Human Rights Commission.[^31]

[53] In the event that a discrimination concern based on religion is unresolved, the guideline commits the Board to “take reasonable and timely steps to address the unresolved issues raised by the affected person which could include dispute resolution mechanism”.[^32]

[54] The guideline also includes the following statements:

The Board will seek to reasonably accommodate students where there is a demonstrated conflict between a specific class or curriculum and a religious requirement or observance. Where academic accommodation is requested, the school should have an informed discussion with the student’s parents/guardians to understand the nature and extent of the conflict.

The school should make it clear during the discussion that its role is to protect students and staff from harassment and discrimination because of their religion and cultural practices. Where these conflict with the school routines and activities or curriculum, the school should consider accommodation. It cannot, however, accommodate religious values and beliefs that clearly conflict with mandated Ministry of Education and Board policies.[^33]

[55] At the end of the guideline it is noted that the right to freedom of religion is not absolute and that the Board will limit practices or behavior in its schools which may put public safety, health, or the human rights and freedoms of others at risk.[^34]

[56] The respondent has noted that on September 1, 2012, shortly before the commencement of this application, Bill 13, the Accepting Schools Act[^35] came into force. This Bill amended the Education Act. Its preamble stated in part:

The people of Ontario and the legislative assembly: […]

Believe that a healthy, safe and inclusive learning environment where all students feel accepted is a necessary condition for student success;

Believe that students need to be equipped with the knowledge, skills, attitude and values to engage the world and others critically, which means developing a critical consciousness that allows them to take action on making their schools and communities more equitable and inclusive for all people, including LGBTTIQ (lesbian, gay, bisexual, transgender, transsexual, two spirited, intersex, queer and questioning) people;

Recognize that a whole-school approach is required, and that everyone -- government, educators, school staff, parents, students and the wider community -- has a role to play in creating a positive school climate and preventing inappropriate behavior, such as bullying, sexual assault, gender-based violence and incidents based on homophobia, transphobia or biphobia;

Acknowledge that an open and ongoing dialogue among the principal, school staff, parents and students is an important component in creating a positive school climate in which everyone feels safe and respected […]

[57] Bill 13 amended s. 169.1(1) of the Education Act to requiring boards of education to:

(a.1) promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability;

(a.2) promote the prevention of bullying;

[58] I do not refer to these 2012 amendments to demonstrate their direct relevance to this case. Although they were in force before this application was commenced, the applicant’s request for accommodation and the Board’s response occurred under the regime in place in 2010. However, Bill 13 is an after-the-fact confirmation of the previous mandate of the Education Act, as was understood by the respondent and is consonant with the provisions of PPM 119 and the Board’s Equity Policy.

Conflict between the Board Policy and the Applicant’s Beliefs:

[59] When the applicant became aware of the equity initiative promulgated by the Ministry of Education and adopted by the Board, he became concerned that the policy and teachings dealing in particular with sexual orientation were contrary to his religious beliefs. He feels that he has the religious obligation to keep his children from participating in certain activities or being exposed to certain materials that would be contrary to his beliefs. He sees it as his obligation to shield his children from “false teachings”, which he considers indirect attacks on his faith.

[60] In particular, the applicant’s faith compels him to ensure that his children are taught about marriage and human sexuality from a biblical perspective and in accordance with the teaching of the Greek Orthodox Church.

[61] His religious beliefs are that marriage is a sacrament and that sexual relations are sacred and should only be between a man and a woman within the sacred institution of marriage. Likewise, he believes that same-sex sexual relations are not God’s intention and that there are only two genders, namely male and female.

[62] As well, the applicant’s faith compels him to prevent his children from engaging in certain activities and behaviors or being exposed to materials which he considers to be sinful.

[63] Specifically, he notes that the Board’s Equity Policy as to sexual orientation seeks, among other things, to:

• ensure that educational practices are inclusive and reflect the contributions of the Lesbian, Gay, Bisexual and Transgender communities and that all forms of stereotyping, prejudice, discrimination, and homophobia and violence against these communities are challenged and eliminated;[^36]

• engage with Lesbian, Gay, Bisexual and Transgender communities and thereby identify and remove unlawful barriers which may prevent full participation in school-community partnerships;[^37]

• strive to ensure that curriculum delivery in all subject areas is consistent with the principles and practices of Equity as they relate to sexual orientation

o by ensuring that its staff has access to a wide variety of bias-free teaching and learning materials;

o supporting staff who choose to use learning materials with themes, topics or characters that reflect the diversity of sexual orientations;

o ensuring that the best practice, age and developmentally appropriate teaching and learning strategies are used to address the topic of sexual orientation; and

o ensuring that its facilities are spaces in which Lesbian, Gay, Bisexual and Transgender students can participate in learning experiences without fear of harassment.[^38]

• strive to deliver programs, provide learning materials and promote best practices in all accepted subject matter that reflects a balance of perspectives and includes a diversity of experiences including those of Lesbians, Gay, Bisexuals and Transgender communities.[^39]

• develop in students’ critical thinking skills about heterosexism to enable students to challenge bias and stereotypical assumptions.[^40]

• ensure that Counseling/Guidance and Support services are free from discriminatory biases related to sexual orientation and gender identity and strive to include representation from Lesbian, Gay, Bisexual and Transgender students, families and community organizations in program development and review processes.[^41]

The Request for Accommodation:

[64] In or about the spring of 2010, the applicant attended a meeting convened by the Board for the purpose of introducing and explaining the Equity Policy.

[65] In September, 2010, the applicant made a written request for accommodation as is contemplated in the Board’s Policy. He provided a written document to the principal at his children’s school entitled “Our Family’s Traditional Values Letter”. Part of that letter read as follows:

To assist the school, I/we have included the attached information that is intended to identify some of the issues that we would find sensitive and controversial. My/our request is that whenever concepts or values are presented that may conflict with the values of the home, the teacher(s) will contact me/us prior to instruction. With an understanding of what is to be taught, I/we may choose to not have my/our child participate, or choose to include my/our child in the instruction and have a family discussion about what was learned.

[66] The attachment to the letter was entitled “Spiritual Values/Issues in Education Form”. In it, the applicant requested that he be advised prior to the children’s involvement in any activity or program containing the following issues and topics:

• Values neutral education - instruction of students in “moral relativism” and principles of situational ethics. This “ism” is a central tenet of the religion of “Secular Humanism”.

• Occultic principles and practices - witchcraft, black magic, spirit guides, Satanism, wizardry, new age, channeling, astrology, horoscopes, psychic powers and other such practices, which are contradictory to Judeo-Christian principles.

• Environmental Worship - placing environmental issues/concerns above the value of Judeo-Christian principles and human life.

• Instruction in sex education.

• Discussion or portrayals of sexual conduct that we determine to be unnatural/unhealthy (anal sex, oral sex, sadism, masochism, fetishes, bondage, etc.).

• Discussions or portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy.

• Teaching about or the provision of birth-control drugs and devices, without parental consent.

• Teaching that abortion is an acceptable method of birth control and that life does not begin at conception.

• Encouraging the acceptance of infanticide or euthanasia.

• Providing a false sense of security with regard to the effectiveness of condoms in preventing the spread of sexually transmitted diseases.

[67] The document concluded with a request that teachers who would be in contact with the children be informed about the attachment and that the document be placed into the children’s Ontario Student Record.

[68] The Board responded by denying the accommodation request and advising the applicant that the Education Act allows the Ministry of Education to prescribe courses of study that shall be taught and that the school is obliged to do so. It further advised that teachers must follow the mandated curriculum and Board policies. The Board referred to its ability to excuse students based on parental request from the sex education segment of the curriculum and invited the applicant to advise the school authorities accordingly.

[69] The applicant responded by alleging that the denial of the requested religious accommodation was a violation of Board policies, and that it constituted discrimination against his family. He repeated the request that his children be excused from all instruction relating to human sexuality and sexual orientation.

[70] A meeting took place on November 18, 2010 between the applicant, the children’s principal, and the Board’s Equity Principal, to review the parties’ positions. The matter was not resolved and the Board did not agree to provide the applicant with information identifying the specific material that his children will be taught or to which they will be exposed in the areas enumerated by him. Nor was there any agreement to allow the applicant’s children to be withdrawn from class or stay at home when certain aspects of the curriculum are taught.

[71] The applicant anticipated a meeting with a Board superintendent. That meeting did not occur since the Board did not confirm the applicant’s written summary of the November 18, 2010 meeting, and this confirmation was required by the applicant as a precondition to the meeting.

Justification for Failing to Provide the Requested Accommodation:

[72] The Board accepts responsibility for the discretionary administrative decision not to accommodate in accordance with the applicant’s request. The decision was originally made by the school principal in consultation with the appropriate supervisory officers and the decision was confirmed in correspondence between the applicant and the Board.

[73] Further, at the hearing, the Board acknowledged that its decision does engage or impinge on the applicant’s right to freedom of religion. However, it takes the position that a proportional balancing did occur between the statutory objectives of the Education Act and applicable Charter values.

[74] In its submission, the Board confirmed the applicant’s right under the Charter to freely exercise his religion, but also noted its statutory duty of neutrality in such matters, which is implied in the requirements for inclusivity and student well-being set out in s. 169.1 of the Education Act. The Board submitted that it balanced religious freedom with other Charter values including equality[^42] and the multicultural nature of Canadian society[^43] when it determined not to grant the requested accommodation.

[75] It is the Board’s position that withdrawing the applicant’s children from classes containing portions of the curriculum that the applicant found objectionable would be contrary to the values of inclusion and student well-being, and could lead to feelings of exclusion or marginalization by students, including the applicant’s children.

[76] While supporting the respondent’s position, the Teachers’ Federation identifies the practical aspect of the accommodation decision. It submits that the curriculum has so fully integrated the requirements for gender equity, antiracism, respect for people with disabilities and respect for people of all sexual orientations and gender identities that it would be impractical if not impossible to advise the applicant in advance when any of the positions that he considers objectionable were to be taught. The Teacher’s Federation makes the argument that accommodations of the nature requested by the applicant would have to be made generally available. Further, it would be an undue burden on teachers, of whom there are some 75,000 in Ontario within the Federation, to keep track of the variety of possibly objectionable subjects listed by parents of students, and to provide individual accommodations accordingly. The long list of topics in the applicant’s “Spiritual Values/Issues in Education Form” is a case in point.

Analysis:

[77] I have already identified that the applicant has satisfied what I consider to be the two threshold requirements to bring an application based on a s. 2(a) breach: evidence that he has a practice of belief, having a nexus with religion, which calls for a particular line of conduct; and that the applicant is sincere in his religious belief.

[78] I also accept that the applicant has demonstrated an initial justification for his accommodation request. He has established that his sincerely held religious beliefs, particularly as to matters of marriage and human sexuality, are at odds with the Board’s Equity Policy, which it is mandated to implement by the Ministry of Education. The applicant has articulated his position that to allow his children to be exposed to the “open” approach to human sexuality contained in the Equity Policy would be to allow them exposure to what he characterizes as “false teachings”, which is contrary to his faith. The exposure that he anticipates is not hypothetical when it is so clearly mandated in the policy. Exposure is a matter of “when”, not “if”, and it is the fact of the exposure, not its result, that the applicant feels under a religious obligation to prevent.

[79] This is different from the situation considered by the Supreme Court of Canada in S.L. v. Des Chênes (Commission scolaire).[^44] There, the applicants were parents of school-aged children, and submitted that the school board’s refusal to exempt the children from the provincially mandated Ethics and Religious Culture course infringed their protected rights under s. 2(a) of the Charter. They claimed that their ability to pass on their faith to their children was impaired by virtue of the Ethics and Religious Culture course. The court was not satisfied that there was objective evidence of actual interference with the parent’s practice. As the trial judge said in that case: [TRANSLATION] “to claim that the general presentation of various religions may have an adverse effect on the religion one practices, it is not enough to state with sincerity that one is a practicing Catholic.”[^45]

[80] The respondent submits that the manner in which the applicant justifies his accommodation request is in reality the same as in S.L.: he does not want his children to be exposed to alternative views that might erode his ability to pass on the tenets of his faith to them. Although that may be the underlying concern, I consider that it is not the role of the court to go behind his assertion that it is sinful for him to allow his children to be exposed to “false teachings”.

[81] Further, I am satisfied that interference with the applicant’s s. 2(a) rights is not trivial or insubstantial, which is another preliminary requirement to maintaining a claim of Charter infringement.[^46] He has demonstrated that his religious tenets are significantly at odds with numerous aspects of the Board’s Equity Policy including, but not solely, as regards sexual orientation.

[82] It follows, then, that the decision by the Board not to provide the accommodation requested by the applicant engages the Charter by limiting its protections under s. 2(a) for the applicant and his children.

[83] The key question using the Doré/Loyola analysis is whether the Board proportionately balanced the applicable Charter protections including freedom of religion to ensure that any limitations on those protections were constrained no more than was necessary given the applicable statutory objectives. In other words, given the factual and statutory context, including the relevant Charter protections, was the Board reasonable in its decision not to provide the accommodation requested by the applicant? If so, the court will give deference to that decision.

Was the Board’s Denial of Accommodation Reasonable?

[84] Although the Board’s Equity Policy was drafted to achieve its goals in compliance with certain Charter and Code values such as equality and antidiscrimination in matters of sex, sexual orientation, gender identity, and gender expression, it created a direct impingement on the applicant’s right to religious freedom, as he defines it.

[85] The applicant sought to avail himself of the Board’s Interim Religious Accommodation Guideline. His request was denied.

[86] The applicant challenged the Board’s good faith in considering accommodation. While he acknowledged that an extended meeting did take place to discuss the matter, he noted internal communications where the Board instructed teachers on how to handle the objections of parents to the Equity Policy. In those communications, justification was provided for refusing to exclude children from the classroom.

[87] Rather than a matter of bad faith, I find it equally reasonable to conclude that the Board gave consideration to the type of accommodation requested by the applicant in advance of the request being made. That seems to be a prudent course of action and the mere fact that the applicant was not successful in receiving the accommodation requested does not make the denial unreasonable.

[88] The context of the Board’s decision not to provide the requested accommodation is, in part, the need for religious neutrality and tolerance in a public institution. It must respect religious differences and attempt not to interfere with the beliefs or practices of any religious group while recognizing that there are 103 schools within its jurisdiction. Of those, 88 are elementary schools, attended by over 34,000 students. I accept the Board’s evidence that within the student body, there are many races, sexual orientations, genders, religions and religious denominations represented, and it is reasonable to assume that there are also many students with no faith background. The delicate balance must be found between not supporting or preferring the practice of any one group over another while at the same time interfering as minimally as possible with the beliefs or practices of any particular group.

[89] As the Nova Scotia Court of Appeal noted in Bonitto, “the Board’s duty of neutrality tempers the Charter value of [the applicant’s] religious expression. Both tenets emanate from s. 2(a) of the Charter. Doré’s proportionality must accommodate that equilibrium.”[^47]

[90] Another part of the context within which the Board’s decision was made is the need to support the statutory requirements of the Education Act, as embodied in the Board’s Equity Policy, to which I have already referred. The Education Act recognizes the protections afforded by the Charter and the Code, but also links student achievement and well-being to its policies which require inclusivity and equity. In turn, inclusivity and equity are responses to concerns about racism, religious intolerance, homophobia and gender-based violence in schools.

[91] I have already identified some of the aspects of the Board’s Equity Policy that are designed to raise awareness about issues related to sexual orientation and equity with a view to eliminating stereotyping, prejudice, discrimination, homophobia and violence.

[92] The Board’s statutory requirements are consistent with, and arguably required by the Charter-protected values of equality and multiculturalism. Also consistent with those values is the Board’s religious accommodation guideline which provides that the Board cannot “accommodate religious values and beliefs that clearly conflict with mandated Ministry of Education and Board policies.”[^48]

[93] In Loyola, the court recognized that the state has an interest through public education:

in ensuring that students in all schools are capable, as adults, of conducting themselves with openness and respect as they confront cultural and religious differences. A pluralist, multicultural democracy depends on the capacity of its citizens to “engage in thoughtful and inclusive forms of deliberation amidst, and enriched by” different religious worldviews and practices.[^49]

It is equally true to encourage the same thoughtful and inclusive forms of deliberation by exposure to different cultural worldviews and practices.

[94] The applicant framed his accommodation request as two-fold: communication to him of subject areas in advance of teaching followed by the permission for non-attendance by his children.

[95] The Board denied its ability to provide advance notice to the applicant as to the teaching of potentially objectionable information. It viewed accommodation, in accordance with the applicant’s request, as creating undue hardship, since the teacher would have to interpret what the applicant’s form (in which he listed objectionable topics) meant and then determine whether the curriculum may or may not engage those topic areas. As well, the Board focused on the potential discriminatory effect on the applicant’s children and others if the advance notice request was granted. The Board noted that the integrated curriculum had embedded within it equity and inclusiveness principles. In short, the Board considered it unreasonable to provide the requested advance notice accommodation.

[96] The Board’s failure to provide accommodation by way of advance notice to the applicant was, in part, a practical response. Its teachers were required to teach from an integrated curriculum pursuant to Board policy as to equity and inclusivity while, in his request, the applicant identified a list of concerns in his “Spiritual Values/Issues in Education Form” including “values neutral education”. The list of objectionable subject matter provided by the applicant was extensive. It would be extremely difficult for teachers to be sufficiently familiar with the variety of concerns raised by parents for individual students so as to advise in advance of their mention in lessons.

[97] Whether the advance notice request by the applicant created undue hardship for the Board may well be a question for a human rights tribunal. I address that issue below. However, in my view, that aspect of the accommodation request only minimally impinges the applicant’s Charter right to freedom of religion since it does not relate to the actual exposure of his children to “false teachings”.

[98] In fact, it is the potential non-attendance accommodation which most directly engages the competing Charter considerations. That is the point where there is an intersection between the children, their classmates, teachers and elements of the curriculum that the applicant characterizes as objectionable.

[99] From one perspective, the isolation of some children from the teaching of specific subject areas protects their religious freedom, as opposed to requiring them to them to stay in class, which could be uncomfortable (and possibly sinful) for them. From another perspective, isolating some children could create discomfort for those who remain (and possibly for those who are isolated), while if everyone remained in class, it would seem innocuous. There is no solution to the inclusion/exclusion option what would satisfy all interests.

[100] Accommodation by non-attendance, which is sought by the applicant, would allow him to isolate his children from aspects of the curriculum that in his religious belief would amount to “false teachings”. However, isolation is antithetical to the competing legislative mandate and Charter values favoring inclusivity, equality and multiculturalism.

[101] Justice Deschamps, writing for the Supreme Court of Canada in S.L. observed:

Parents are free to pass their personal beliefs onto their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Québec government’s obligations with regard to public education.[^50]

[102] A further comment in the same vein, also from the highest judicial level, written by Chief Justice McLachlin is as follows:

The number of different family models in the community means that some children will inevitably come from families of which certain parents disapprove. Giving these children an opportunity to discuss their family models may expose other children to some cognitive dissonance. But such dissonance is neither avoidable nor noxious. Children encounter it every day in the public school system as members of a diverse student body. They see their classmates, and perhaps also their teachers, eating foods at lunch that they themselves are not permitted to eat, whether because of their parents’ religious strictures or because of other moral beliefs. They see their classmates wearing clothing with features or brand labels which their parents have forbidden them to wear. And they see their classmates engaging in behaviour on the playground that their parents have told them not to engage in. The cognitive dissonance that results from such encounters is simply a part of living in a diverse society. It is also a part of growing up. Through such experiences, children come to realize that not all of their values are shared by others.

Exposure to some cognitive dissonance is arguably necessary if children are to be taught what tolerance itself involves. As my colleague points out, the demand for tolerance cannot be interpreted as the demand to approve of another person’s beliefs or practices. When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions. We merely ask them to respect the rights, values and ways of being of those who may not share those convictions. The belief that others are entitled to equal respect depends, not on the belief that their values are right, but on the belief that they have a claim to equal respect regardless of whether they are right. Learning about tolerance is therefore learning that other people’s entitlement to respect from us does not depend on whether their views accord with our own. Children cannot learn this unless they are exposed to views that differ from those they are taught at home.[^51]

[103] The weight of legislative policy and judicial comment favours inclusion rather than isolation. This is in the context of a public education system. The Board prefers to support the values of inclusion and equality over individual religious accommodation, in this instance. In doing so, the Board has proportionally balanced the competing Charter protections.

[104] The Board’s obligation is to ensure the impingement of a Charter protection is as minimal as possible, in the circumstances. In the particular facts of this case, it is difficult to find other accommodation for the applicant that mitigates his concern. The choice is clear: include or isolate. The Board chose the former.

[105] Given that there are a variety of engaged Charter values, it is not possible to say that the accommodation requests by the applicant, which was calculated to protect his and his children’s freedom of religion, should trump the other values at play in the circumstances. The applicant has not established on a balance of probabilities that the administrative decision of the principal and the Board was unreasonable.

[106] This does not mean that the applicant has no options in satisfying his religious obligation to avoid “false teachings” on behalf of his children. It may well be that the legislated mandate of the Education Act, and through it the Board’s Equity Policy, which the applicant finds objectionable, operate to preclude his children’s participation in the public education system. That system, by definition, must provide education to the broadest possible cross-section of the population. Independent schools, whether faith-based or otherwise, may be available as is, of course, the option of homeschooling. To the extent that the concern about “false teachings” outweighs other advantages of the public school system, the applicant may need to seek such other alternatives.

Has there been Unlawful Discrimination under the Ontario Human Rights Code?

[107] The applicant has included a claim under the Code alleging a failure to accommodate, and therefore unlawful discrimination on the basis of creed.

[108] Section 1 of the Code requires that the Board provide the applicant with equal treatment with respect to services without discrimination on the basis of his and his children’s religious beliefs and practices. As such, the applicant submits that he is entitled to reasonable religious accommodation and that the Board has an obligation to provide the accommodation requested.

[109] The Board does not deny its obligations under the Code, including its obligation to provide reasonable accommodation to prevent discrimination up to the point of undue hardship. The Board denies that a failure to accommodate has occurred. In any event, it asserts that the accommodation requested by the applicant was unreasonable, and that implementation would have created undue hardship.

[110] Before analyzing the accommodation issue, there is a threshold jurisdiction question which must be answered. Typically, a claim for discrimination under the Code is made to the Human Rights Tribunal of Ontario (the “Tribunal”) which has statutory authority to adjudicate such disputes.

[111] Until the Code was amended in June 2008, courts were precluded from granting remedies at common law for human rights violations, instead deferring to the comprehensive legislated enforcement scheme set out in the Code.

[112] The Code now provides at subsection 46.1(1) that the court may make remedial orders if it finds a breach by a party of the protected right of another. The ability to seek a remedy in court is constrained by subsection 46.1(2), which mandates that a person may not commence an action “based solely on an infringement of a right under Part I”.

[113] In short, a court does not have jurisdiction to grant a remedy based on a breach of the Code unless the claim is brought as an adjunct to another cause of action. Otherwise, litigants must defer to the comprehensive enforcement scheme of the Code if its substantive terms are violated.

[114] The remedies sought in this case, as noted, include a declaration as to the applicant’s authority over the education of his children and an order that the Board provide the requested accommodation.

[115] In its essence, the application is based on a claim of discrimination and failure to accommodate.

[116] Although judicial economy would lead to a conclusion that the two matters, that is an alleged breach of the Charter and of the Code could be heard together, the legislative intent to have the Tribunal adjudicate Code violations should be respected. The court is given jurisdiction when, for example, parties have a separate cause of action as well as a possible Code breach. In Jaffer v. York University,[^52] Justice Karakatsanis noted: “whether or not a claim for breach of the duty to accommodate disabilities can proceed in the Superior Court depends upon whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code.” To allow an alleged Code violation to be adjudicated in court whenever a corresponding Charter violation is alleged would amount to a drafting sleight of hand that would negate the legislative restriction in subsection 46.1(2).

[117] In this case, the same facts underlie both the alleged Charter and Code violations. The requested declaration as to parental authority is designed as a starting point to support the breach as claimed. The declaration and alleged Charter breach do not constitute separate causes of action contemplated by s. 46.1 of the Code, sufficient to open the door to a human rights claim under the Code at common law.

[118] I therefore conclude that this court does not have jurisdiction to consider the applicant’s claim for breach of duty to accommodate under the Code.

[119] Given my conclusion, it is unnecessary for me to consider whether the Board breached its duty to accommodate under the Code.

Conclusion:

[120] For the reasons set out above, I have concluded that this is not an appropriate case for a declaration as to parental authority. I do not find the decision of the Board unreasonable, and therefore dismiss the request for an order of accommodation. I make no comment on the merits of the applicant’s request for accommodation pursuant to the Ontario Human Rights Code based on my conclusion that I do not have jurisdiction pursuant to s. 46.1 of the Code. The application is therefore dismissed.

Costs:

[121] I encourage the parties to discuss the resolution of the costs issue and reach an agreement accordingly. In the event that no agreement can be reached, costs submissions may be made in writing, according to the following schedule:

• The respondent and intervenors are to serve the applicant with written costs submissions and bills of costs on or before December 16, 2016.

• The applicant is to serve the respondent and intervenors with written costs submissions and a bill of costs on or before January 13, 2017.

• The respondent and intervenors are to serve the applicant with any responding submissions on or before January 27, 2017.

• All submissions are to be filed with the court by no later than February 4, 2017. If submissions are not received by that date or any agreed extension, the matter of cost will be deemed settled.

Reid J.

Released: November 23, 2016

[^1]: Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

[^2]: RSO 1990, c H.19

[^3]: RSO 1990, c E.2

[^4]: Education Act, s. 21(5) and s. 30(1)

[^5]: Ibid s. 21(2)(a)

[^6]: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR. 295 at paras. 94 and 95.

[^7]: R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 SCR 713 at para. 98.

[^8]: Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 56.

[^9]: 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103

[^10]: R.S.C. 1970 c. N.1

[^11]: 2012 SCC 12

[^12]: 2015 SCC 12

[^13]: Bonitto v. Halifax Regional School Board, 2015 NSCA 80 at para. 49

[^14]: 2008 SCC 9

[^15]: Ibid. at para. 62

[^16]: Ibid. at para. 57

[^17]: Ibid at para. 4

[^18]: Bonitto at para. 38

[^19]: Reg. 298, R.R.O. 1990, Operation of Schools – General.

[^20]: Ontario Ministry of Education, Policy/Program Memorandum No. 119 (June 24, 2009).

[^21]: PPM No. 119, at page 3

[^23]: Hamilton Wentworth District School Board, Equity Policy No. 1.01 [Equity Policy 1.01]

[^24]: Equity Policy 1.01 - Supporting Guidelines: Antiracism and Ethnocultural Equity at para. 1.0

[^25]: Equity Policy 1.01 - Supporting Guidelines: Sexual Orientationat para. 1.1

[^26]: Ibid at para. 2.1

[^27]: Ibid at para. 2.3

[^28]: Ibid at paras. 4.2 and 4.2

[^29]: Equity Policy No. 1.01 - Interim Religious Accommodation Guideline, Introduction

[^31]: Ibid, I Legislative and Policy Context and II Definitions, 1. Accommodation

[^32]: Ibid, III Accommodation Guidelines; 3. Unresolved Requests

[^33]: Ibid, IV General Guidelines and Procedures; 7. Participation in Daily Activities and Curriculum

[^34]: Ibid, V Limitations to Religious Accommodation

[^35]: S.O. 2012, c.5

[^36]: Equity Policy No. 1.01 Supporting Guidelines: -Sexual Orientation at para. 2,3

[^37]: Ibid at para. 3.1

[^38]: Ibid at para. 4.1

[^39]: Ibid at para. 4.2

[^40]: Ibid at para. 4.5

[^41]: Ibid at para. 7.2

[^42]: s. 15.(1): “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.”

[^43]: s. 27: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

[^44]: 2012 SCC 7

[^45]: S.L. at para 27.

[^46]: Syndicat Northcrest, at paras. 57 - 59

[^47]: Bonitto at para. 83

[^48]: Equity Policy No. 1.01 - Interim Religious Accommodation Guideline, IV General Guidelines and Procedures; 7. Participation in Daily Activities and Curriculum

[^49]: Loyola at para. 48

[^50]: S.L. at para. 40

[^51]: Chamberlain v. Surrey School District No. 36, 20020 SCC 86, at paras. 65 and 66.

[^52]: 2010 ONCA 654 at para 44.