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Supreme Court of Canada Upholds Ethics & Religious Culture Program

Sylvain Rouleau, Toronto

On February 17, 2012 the Supreme Court of Canada ruled on the latest challenge by parents to religious freedom and education.

In S.L. and D.J. and Commission scolaire des Chênes and Attorney General of Quebec the Supreme Court of Canada was asked to decide whether or not the Province’s Ethics and Religious Culture (“ERC”) Program, which became mandatory in Quebec schools in 2008, infringed on S.L. and D.J.’s right to freedom of religion.

S.L. and D.J., two parents of school aged children attending a public school, sought to have their children made exempt from the ERC Program, because they believed that the ERC Program interfered with their obligation to pass on their Catholic faith to their children and caused their children to question their faith at an age when they should be following parental direction in matters of religion.

The Supreme Court of Canada applied a well established two part test to determine whether or not the Province infringed upon the parents’ right to freedom of religion.  The first step of the test is subjective and requires the person to demonstrate they have a sincerely held religious belief.  The second part of the test requires the person to demonstrate that this belief has been infringed by state action.

The Supreme Court of Canada accepted that S.L. and D.J. sincerely held religious beliefs.  However, the Court was unanimous in its decision that there was no evidence that the ERC Program had interfered with those sincerely held beliefs.  In other words, the parents did not prove that the ERC Program interfered with their obligation to pass on their Catholic faith to their children nor did they demonstrate that the ERC Program caused their children to question their faith at an age when they should be following parental direction in such matters.

The Supreme Court of Canada commented that the concept of state religious neutrality has grown out of the multicultural makeup of Canada and a need to protect minorities.  The goal is to permit all religions to exist and practice their beliefs without being stymied by governmental institutions.  The Court commented that such an objective is achieved when the state neither favours nor hinders any particular religious belief, when it shows respect for all religions as well as respect for the decision not to hold any religious beliefs, and takes into account competing rights.

The Supreme Court of Canada found that the ERC Program was neutral in its teachings about religion, morals and ethics and that the Program espoused universal truths.  However, the parents who sought to have their children made exempt from the Program argued that the obligation to teach morals, ethics and universal truths, was their religious duty.  They have since removed their children from the public school system and placed them in a private Catholic school, which has been exempted from the ERC Program.

The Supreme Court of Canada’s decision in S.L. and D.J. and Commission scolaire des Chênes and Attorney General of Quebec and specifically, its application of the second part of the legal test regarding infringement of freedom of religion as it applies to educational programming, might have a significant impact on education.  For example, the Ontario Government’s Bill 13, Accepting Schools Act, and the Government’s previous attempts to create curriculum regarding sexual education have faced criticism on the basis of freedom of religion.  The present case suggests that the Supreme Court of Canada will require significant evidence demonstrating interference with religious beliefs in order to find that the right to religious freedom has been impeded.

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Pre-Reform Decisions from the Ontario College of Teachers Discipline Committee

Gillian Tuck Kutarna, Guelph

The Ontario College of Teachers ("College") recently announced that it has hired retired Justice Patrick LeSage to undertake a comprehensive review of its disciplinary process, to be completed by May 2012. 

Education Minister Laurel Broten has also introduced reforms, including an examination of the College’s current dispute resolution policies and processes, which allow teachers to negotiate a plea along with the terms of their penalty.  In the interim, effective January 4, 2012, sexual offences will be specifically ineligible for dispute resolution, and the College must publish all of its disciplinary decisions on its website.

A review of two 2011 decisions of the College's Discipline Committee, may suggest some of the impetus behind these developments.

The Case of Massimilano Silvio Tallarico

The decision in this case was based on a ‘Statement of Uncontested Facts, Pleas of No Contest, and Joint Submission on Penalty’.  The member agreed to admit the allegation of professional misconduct based on failing to maintain the standards of the profession, and committing acts which would reasonably be regarded as disgraceful, dishonourable and unprofessional.  In exchange for this admission, all allegations of abuse of students, and in particular sexual abuse, were withdrawn by the College.

The Discipline Committee accepted both the reduced list of allegations and the statement of uncontested facts, which included an acknowledgement that the member “engaged in an inappropriate relationship with the student”.  They also adopted the joint submission on penalty, and so imposed the following sanctions:

• a reprimand by the College; and
• completion of an approved course on appropriate boundaries and boundary violation issues, taught by a provider who had reviewed the Decision of the Committee and joint submissions of the parties.

The College was not prepared to agree that the teacher’s name should be withheld in the College’s quarterly publication of Professionally Speaking, arguing that a public record served as a deterrent.  However, the Committee disagreed and would not publish the member’s name, stating that the member had been sufficiently ‘reprimanded’ and upon completion of the course on boundaries, would be ‘rehabilitated’.  The Committee’s Order and findings could be published in summary form only, with no mention of the member’s name. In its reasons, the Discipline Committee described their decision as providing a “general and specific deterrent”, and the “transparency and openness required by the public”.

The Case of Richard Donald Lorne Burdett

Mr. Burdett, like his colleague Mr. Tallarico, submitted a Statement of Uncontested Facts, Plea of No Contest and Joint Submission on Penalty.

In admitting to the allegation of Professional Misconduct, Mr. Burdett acknowledged being guilty of sexual abuse of a student or students as defined by Sections 1 and 40(1.1) of the Ontario College of Teachers Act, 1996.

The joint submission on penalty was adopted in its entirety by the Committee.  It included:

• a reprimand by the College;
• suspension of his Certificate for 12 months, commencing February 3, 2011.  However, the suspension would be lifted for the latter 6 months, that is, by August 31, 2011, if by that date,

  (a) Mr. Burdett completed a pre-approved course on appropriate boundaries and boundary violation issues, taught by a provider who had reviewed the Decision of the Committee and joint submissions of the parties; and

  (b) Successfully underwent treatment with a registered psychological therapist who had also reviewed the Committee’s decision and joint submissions of the parties, and certified that they had examined him and he posed no “undue risk to students”.

• Mr. Burdett would fulfill the above requirements before returning to work as a teacher; and
• Mr. Burdett would take all reasonable steps to ensure that he received a performance appraisal within two years of returning to work, reporting the results to the Registrar of the College.

The Committee supported the College’s submission that the member’s name be published in Professionally Speaking.  It held that this, along with the other “severe penalties” it had imposed, would demonstrate that the Committee “treats matters of this nature very seriously”. 

Minister Broten has stated that her Ministry will be paying particular attention to Justice LeSage’s recommendations with regards to the establishment of possible mandatory penalties for specific types of misconduct, such as sexual offences, and the circumstances under which a member’s name may be withheld.

Although we will never know, because the details of the alleged misconduct have not been released, it would be an interesting exercise to compare the outcomes in these two cases with the outcomes of cases after reforms are made.  As revised policies and processes are unveiled, we will watch for features that support greater transparency, and we will assess whether there may be a shift away from the historical focus on rehabilitation of members, as demonstrated in the cases reviewed here, to discipline.

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OLRB Will Not Take Jurisdiction of Harassment Cases

Nadya Tymochenko, Toronto

The Ontario Labour Relations Board ("OLRB") recently put to rest the question of whether or not changes to the Occupational Health and Safety Act brought about by Bill 168 also changed the OLRB’s authority to supervise employers with respect to issues of employee harassment. In another recent decision, the OLRB provided some guidance in obiter about behaviour that would not be sufficient to be considered harassment.

Recently, the OLRB found that it does not have jurisdiction to act pursuant to section 50 of the Occupational Health and Safety Act ("OHSA") when an employee alleges an employer has breached the Act by failing to properly respond to an allegation of harassment.  In the case before the OLRB, an employee alleged that following harassment by her co-workers she filed a complaint, which she alleged her employer failed to investigate.  As well, the employee argued that her employer failed to properly process her WSIB application. 

The OLRB found that section 50 of the OHSA, which identifies specific jurisdiction for some workplace reprisal allegations, does not equally apply to allegations that an employer has failed to address an allegation of harassment.  The OLRB held that the new provisions added by Bill 168 specifically omit an obligation by an employer to prevent workplace harassment or to keep the workplace free of harassment, and as such, section 50 of the OHSA cannot be engaged by the employee.  Moreover, the OLRB found that the OHSA only requires that an employer put in place a policy and inform its employees about that policy the OHSA imposes no other duties on employers with respect to workplace harassment.  The OLRB held that it had no authority to adjudicate on the application of an employer’s policy regarding harassment, including how it might investigate or act during its investigation results.

While it would appear that the OLRB does not have authority with respect to allegations that employers have failed to implement or comply with workplace harassment policies, it is possible that an employee could argue that the harassment had so impacted their work and workplace as to cause their constructive dismissal.

As a result of the decision, the OLRB is unlikely to provide a great deal of direction on harassment. Previously, however, the OLRB had an opportunity to provide some guidance regarding what behaviour will not constitute harassment.  In a case involving a teacher alleging reprisal by his employer and failure to properly address harassment allegations, the OLRB found that it did not need to determine if it had jurisdiction pursuant to section 50 of the OHSA to deal with the complaint, because the allegations of harassment were not in fact harassment.

Namely, the teacher alleged that a fellow teacher’s: teaching methods and style; tardiness; lack of attention to matters of student health and safety during lab work; gossip about another teacher; refusal to meet to discuss departmental issues; confrontation about criticisms made of her as a teacher; and shouting at the teacher to turn off the lights during the course of a meeting, were harassing.

The OLRB found that these allegations were not harassment as defined by the OHSA, “[H]arassment under the OHSA is defined as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”.  The OLRB found that most of the allegations were not related to or directed at the teacher, save one confrontation and one request to turn out the lights, which the OLRB found could not be considered a course of vexatious comment or conduct toward the teacher.

School boards will have to wait for further direction from grievance arbitration cases to have a full picture of what will be considered harassment.

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Student Codes of Conduct Not Subject to Arbitration in B.C.

Ana Simoes, Articling Student, Toronto

A recent B.C. Court of Appeal decision held that the B.C. Teachers’ Federation could not require school boards to establish and enforce student codes of conduct through the collective agreement because they were never negotiated between the parties.

By Ministerial Order, the Ministry of Education made it mandatory for school boards to establish and enforce student codes of conduct in consultation with employees, parents and others.  But, following a survey which showed that many districts had not complied with their obligations, the Teachers’ Federation grieved, alleging that the school boards had violated and continued to violate their collective agreement provisions by failing to comply with the Ministry of Education’s requirement to establish and enforce student codes of conduct. The school boards argued that the matter was neither grievable nor arbitrable.

The arbitrator found that the core of the grievance was to ensure school boards established student codes of conduct in compliance with the Ministry of Education’s requirements. The arbitrator also found that, although there was similarity between the Ministry of Education’s student code of conduct requirements and matters that had been pursued in collective bargaining by the Teachers’ Federation, student codes of conduct had never been negotiated between the parties, making it “difficult to equate them to a significant part of the employment relationship.”

Further, although the School Act and regulations were, absent to the contrary, made a term or condition of a teacher’s contract of employment, the arbitrator found that it did not make student codes of conduct a term or condition of the teachers’ collective agreement.

The decision of the arbitrator was judicially reviewed on the standard of correctness and further appealed to the B.C. Court of Appeal.

The Court of Appeal agreed that the standard of review was correctness, because the Ministerial Order of the Ministry of Education was law of general application and not within specialized jurisdiction of the arbitrator. The Court of Appeal found that the Ministerial Order was not subject to arbitration because it dealt with consequences for students and there was nothing in the Order or in the School Act expressly importing it into teachers’ collective agreements.

The Court of Appeal agreed with the arbitrator that the requirement to establish and implement student codes of conduct, as required by the Ministerial Order, was not employment-related, but was rather focused on student safety.  The Court of Appeal found that, while the Ministerial Order, did benefit teachers by fostering a safe, caring environment and prohibiting certain types of discrimination that was not sufficient to make it employment-related legislation so as to vest enforcement authority in a grievance arbitrator. 

In Ontario, codes of conduct are also required of school boards, and some local agreements have provisions specifically speaking to codes of conduct, their application and/or amendment.

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