Posts tagged human rights

Ontario court sides with U of Ottawa against MD accused of “unprofessional and disruptive behavior”


The recent decision of the Ontario Superior Court of Justice in AlGhaithy v. University of Ottawa (CanLII) is an important one for universities to consider when setting up internal rules and procedures and addressing concerning behavior of students. 

Accordingly to the decision, Dr. AlGhaithy practiced in Saudi Arabia for several years before beginning a neurosurgery residency with the University of Ottawa.  As the years of his residency went by, others in the program expressed concern about his conduct.  The particulars are described in the decision, and Dr. AlGhaithy was eventually dismissed from the program.  He appealed the decision internally, and when that failed he looked for judicial review (i.e. for the internal decision to be undone) from the courts.

His claim led the court to emphasize several points relevant to all universities:

1.    Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted or the decision is unreasonable.

This basic principle is relied on regularly by universities and is the single largest hurdle for student litigants to overcome.  If an internal decision connected to an academic issue is “reasonable”, then the courts will not fiddle with an internal university decision.  Here is how the task of the court in those circumstances is described:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to    outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

In this case, even though the initial decision was made with a questionable procedure, the appeals process made up for it in terms of fairness, and the outcome was deemed to be reasonable.

2.     The Charter of Rights and Freedoms does not generally apply to universities.

Even since the Pridgen decision involving the University of Calgary (see here for more discussion on that), student litigants have routinely claimed that their university has infringed on the student’s rights under the Charter.  The idea is that even though the university is not, strictly speaking, part of the government, it should be considered to be implementing a government program, and thus while so doing it must respect the Charter rights of students. 

Many students, particularly political activists, were hoping that Pridgen meant a whole new world of possible claims against universities, but the courts seem to have played down the significance of the decision by limiting it to the unique legislation applicable to the Alberta universities.

In this case, here is how the court treats that argument:

The applicant relies on a decision of the Court of Queen’s Bench of Alberta, Pridgen v. University of Calgary, [2010] ABQB 644, which held that a decision of the University of Calgary to discipline students was subject to Charter scrutiny.  An appeal of that decision is under reserve at the Alberta Court of Appeal at this time.  In any event, the case is distinguishable, given that Alberta legislation requires universities to carry out a specific government objective of facilitating access to post-secondary education.  There is no equivalent legislation in Ontario.


The University was not implementing a government program or policy nor exercising a power delegated by the Royal College of Physicians and Surgeons of Canada or the College of Physicians and Surgeons of Ontario when it disciplined the applicant.  Instead, the Appeals Committee was making a decision about an internal matter, the dismissal of a student for a violation of standards of academic conduct.  Therefore, the Charter of Rights does not apply in the circumstances, and I need not consider the argument that s. 2(b) of the Charterwas infringed. 

This is similar to how the Charter argument is dealt with in Lobo v. Carleton University (CanLII):

The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII), 2010 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement.  On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

Dr. AlGhaithy is also among the students who are suing (Calgary Herald) the University of Ottawa for over $150 million for various issues, including an allegation of discrimination.  Here is a link to their Statement of Claim.  Apparently, the group had filed a human rights complaint against the university roughly a year ago, but there is no information readily available with any indication of how that is progressing.

Student claimants have to think about jurisdiction when appearing before BCHRT


The British Columbia Human Rights Tribunal (BCHRT) rendered an interesting decision last week in Ayotte v. Liberty University and another involving a human rights claim launched by a student in British Columbia attending an educational institution in the United States.

In a nutshell, in 2008 Bonnie Ayotte was enrolled at Liberty University in Virginia to complete a Master’s degree in Professional Counselling.  She also has a physical and mental disability, which did not stop her from acing her courses.  She had only one course and an internship left to finish the degree, when a problem arose.  As a distance learning student, she was responsible for finding an internship and getting all necessary insurance.  Ms. Ayotte was refused certain coverage because of her disability, and she lost the internship.  Liberty refused to let her join their group plan and pointed to a policy on its website stating that distance learning students have to get their own insurance.  She filed a complaint with the BCHRT against Liberty and the Ministry of Children and Social Development (her intended employer) alleging violations of the following provisions of the Human Rights Code (BCLaws):

8  (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

13  (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

The Tribunal handling Ms. Ayotte’s claim asked the parties for their arguments about whether this dispute was within the jurisdiction of the BCHRT, relying on the following test set out in Carlisle v. Law School Admissions Council, 2003 BCHRT 152:

It is not the location of the Respondent, but rather the location of the incidents giving rise to the Complaint, that will determine the Tribunal’s jurisdiction.

The Tribunal declined to reject Ms. Ayotte’s claim entirely at this stage.  But the decision raises the interesting issue of when exactly a student’s claim against an educational institution outside of British Columbia will be subject to the jurisdiction of the BCHRT. 

Disputes in the context of education are often resolved on the basis of the jurisdiction of the adjudicator that the parties appear before (e.g. a judge or panel) rather than which party has more justice on its side.  As a result, anyone involved in these sorts of grievances should first understand – before all else – the basis, if any, for arguing a claim before a particular court or tribunal.

My thanks to Vancouver lawyer and human rights expert Mike Weiler for sending me a link to this decision.

The threshold for suing a school board for bullying


Parents of a bullied child are in a horrible bind.  For those who are aware of the situation, they send their children off to school each day knowing that the taunting, the insults and the rest of it will be waiting.  They can take an active role in trying to diffuse the problem – meeting with teachers and other staff, contacting the parents of the bullies, making the home environment more supportive to give children the right tools to respond – but all too often the only thing that works is switching schools.  Or letting time pass.

Schools also have a difficult role to play with respect to bullying.  A principal can introduce an anti-bullying policy, teachers can discuss the harmful and immoral aspects of bullying, students caught bullying others can be reprimanded, and so on.  But, ultimately, bullying is nearly impossible to stamp out entirely. 

What should a parent do when they feel the school isn’t doing enough?  And what should a school do when it feels it has done enough but the problem persists?

As with many other areas of human interaction, the courts will only get involved with incidents of bullying when things get pretty bad.  But where is that threshold?  The cases are few, but the news stories are many:

  • CBC reported last August that a mother was suing a Winnipeg school board because she alleges her son suffered brain damage as a result of a bullying incident at school while an educational assistant looked on.  No news since, and no judgment either.
  • CBC reported last February that a mother was suing an Ottawa school board because she alleges her daughter suffered (and continues to suffer from) depression and anxiety as a result of repeated bullying and harassment.  She was seeking over $300,000 in damages arising from the school board’s failure to protect her daughter from these events, but news broke yesterday that a settlement was reached.
  • Law Times reported last month that four families were suing a school board in southwestern Ontario because they allege their children were harassed, tormented and abused by teachers and students.  They were seeking $35 million in damages.  The article also notes the trend among parents to start lawsuits against school boards in small claims court involving these sorts of issues (see here for a previous post on the subject).

These types of claims are a relatively recent phenomenon, and there do not appear to be any cases on the books (at least not in BC) that can be relied on as a direct precedent.  Traditionally, it has been expected that parents of a bullied child could only seek a remedy through human rights legislation – that is, bullying could only be resolved by legal means if there was an element of discrimination and the educators failed to take all measures short of “undue hardship”. 

The most well-known bullying case is School District No. 44 (North Vancouver) v. Jubran (CanLII), where the BC Court of Appeal ruled on a claim in the context of homophobic bullying at a public school.  Mr. Jurban, who did not self-identify as gay, had suffered through five years of homophobic insults and harassment by other students.  Before he graduated, he complained to the BC Human Rights Commission, which took up his claim.  The BC Human Rights Tribunal held that he had been subject to harassment on the basis of sexual orientation, and the school board was liable for not providing an educational environment free from this harassment.  This decision was upheld by the BC Court of Appeal and the Supreme Court of Canada.  They school board was liable because it was determined that it had not done enough to stop the harassment.  Jubran should be studied by schools to determine what measures were insufficient in responding to bullying that involves discrimination.

Another human rights complaint related to bullying is the subject of a very recent decision of the BC Human Rights Tribunal.  In JT v. School District No. 36 (CanLII), a father filed a human rights complaint on his daughter’s behalf claiming that a school board in Surrey discriminated against her on the basis of physical and mental disability (she has cerebral palsy and a mental disability).  The father claims that three students taunted and insulted his daughter about her condition and in one instance physically assaulted her, while the school response was insufficient.  His daughter suffered from serious depression as a result.  The school board had tried unsuccessfully to prevent the claim from being filed on the basis that a time limit had expired, but the Tribunal ruled that the bullying and the school’s response constituted a “continuing contravention”, which extended the time limit.

JT and the news stories cited above point to an increasing reliance by parents on the legal system to address a percieved insufficient response by schools to bullying.  School board should take note of these developments and understand the standard their schools should meet to prevent these sorts of claims from arising.

Treatment of Catholic school teacher raises questions about the appropriate limits of autonomy for religious institutions


Vancouver music teacher Lisa Reimer announced (Vancouver Sun) this week that she was effectively fired from Little Flower Academy, a Catholic girls’ high school, after parents heard that she was a lesbian parent.  Reimer was preparing to return to work after taking a three-week leave following the birth of her son when she was informed she would work from home for the duration of her one-year employment contract.

Education Minister Margaret MacDiarmid responded to the announcement with concern, saying “Stepping way back, there are labour laws, human rights laws in British Columbia and they have to be followed.  They apply to everyone. The law is the law.”

A more precise question is which law, if any, was broken by the school and how will Reimer pursue a remedy, if at all.  She may have a valid claim under labour and employment law, but that depends on a variety of factors, and she may be able to claim the school violated the terms of her contract, but that depends on the terms she originally agreed to.  She has already mentioned (CBC) that she will not be filing a human rights complaint against the school. 

The most interesting legal aspect of this event is how the school’s freedoms should be reconciled with Reimer’s, a question emphasized by the contract Reimer apparently signed preventing her from endorsing homosexuality in the classroom.  Vancouver Sun columnist Douglas Todd highlighted the dilemma posed by the application of Canadian human rights law to religious institutions, particularly with respect to employment and discrimination on the basis of sexual orientation:

On one hand, Reimer has a right to escape discrimination based on her sexual orientation. 

On the other, the Catholic school has the right to “freedom of association,” which permits members of religious and other non-profit groups to hire only people who follow their moral teachings.

Despite a widespread belief in tolerance in our culture, Canadians are slowly becoming aware of this stark anomaly in human-rights law: Privately funded religious and other charitable groups are exempt from certain anti-discrimination codes.

How much autonomy should be provided to religious institutions that preach discrimination based on sexual orientation?  Where should the law draw the line between the rights of a group to condemn a certain lifestyle and the rights of individuals to freely express their commitment to that lifestyle?

These issues were discussed most prominently by the Supreme Court of Canada in Trinity Western University v. British Columbia College of Teachers.  TWU had applied to the BCCT to assume full responsibility for its teacher education program, many graduates of which would thereby be qualified to teach in public schools.  The BCCT rejected the application, in part, based on the fact that all students, faculty and staff at TWU had to sign a contract committing to refrain from “biblically condemned” activities, including “homosexual behavior”.  TWU brought the matter to court.

The Supreme Court of Canada held that while the BCCT did have jurisdiction to consider discriminatory practices in relation to the TWU application, the BCCT did not properly weigh the rights involved in its assessment and it acted unfairly by focusing only on the religious precepts of TWU rather than the actual impact of those beliefs on the public school environment.  The court acknowledged that as a private institution TWU was largely exempt from the application of British Columbia human rights legislation and the Canadian Charter of Rights and Freedoms.  But the heart of the matter is how to reconcile religious freedoms – i.e. the right of a minority group to their religious beliefs free from a “tyranny of the majority” – with equality rights of individuals, specifically to protect individuals from discrimination or inequality on the basis of their sexual orientation:

[This] is a case where any potential conflict should be resolved through the proper delineation of the rights and values involved.  In essence, properly defining the scope of the rights avoids a conflict in this case.  Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute… 

In addition, the Charter must be read as a whole, so that one right is not privileged at the expense of another…

Consideration of human rights values in these circumstances encompasses consideration of the place of private institutions in our society and the reconciling of competing rights and values.  Freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation…

[The] proper place to draw the line in cases like the one at bar is generally between belief and conduct.  The freedom to hold beliefs is broader than the freedom to act on them.  Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. 

TWU could ban certain conduct but it could not ban certain belief.  The BCCT’s role was to determine whether the ban on conduct meant that teachers from this program would be unable to teacher properly.

Little Flower Academy was free to require Reimer to sign a contract preventing her from endorsing homosexuality in the classroom because it limited her conduct and not her beliefs.  The validity of the school’s decision to send her home without her having crossed that line is a different matter altogether.

Unreasonable accommodation or unreasonable accommodators?


Should a school offer an ultimatum to a devout Muslim woman who cover her face with a niqab: our way or the highway?

Over the past two weeks, there has been a fascinating story emerging in Quebec that cuts to the heart of how we think our educational institutions should respond to demands imposed by students with different cultural values.  Here is a summary from Margaret Wente of the Globe and Mail:

Naema Ahmed, a 29-year-old pharmacist from Egypt, joined a language class for immigrants last August. She insisted on wearing a face veil and she sat at the back of the class so that the men wouldn’t be able to see her. (There were three men in the class of 20). For private instruction, she would retreat to a corner with the female instructor.

Tensions reportedly mounted in the class, which was also designed to help integrate the students into Quebec society. The next part of the course required the students to sit around a U-shaped table and converse. She didn’t want to do it because of the men. The school couldn’t guarantee her another female instructor. It also decided she couldn’t be taught properly unless the instructor could see her mouth. So it asked her to leave.

Faced with this ultimatum, Ms. Ahmed chose to leave and subsequently lodged a human rights complaint with Quebec’s Human Rights Commission.  The provincial government endorsed the school’s position and argued vehemently in favour of its underlying premise: our values are irreconcilable with your values – when it comes to public services, you should accommodate us, not the other way around.  This is part of a larger government initiative unrestricted to public-funded academic institutions.  Last week, the Montreal Gazette reported that the government intends to insist that all citizens uncover their faces when dealing with public officers and receiving state services.

This story has sent commentators buzzing.  Wente argued that the divide over Quebec’s position has followed linguistic lines: English Canada is disgusted, French Canada the reverse.  Julius Grey, a local lawyer that Montreal media love to quote because of his involvement with high profile human rights cases, has turned heads by delivering support for the ultimatum: “I think this is an illustration of when an accommodation becomes unreasonable”.  Face-covering is inconsistent with our values.  Integretation and developing relationships in our society require we see each other’s faces.

This debate has yet to reach educational institutions in British Columbia in the same way, but it won’t be long before it does. 

See here for more background (National Post); and here (CBC); and here (Globe and Mail).

Choosing the right forum is half the battle


Gone are the days when getting justice in your dispute meant you had to face the regular court system.  Now, it seems like everybody is a judge of something and quasi-judicial entities abound.  Organizations have internal panels to handle complaints.  Administrative agencies have specialized tribunals to deal with industry-specific issues.  Courts appreciate the wisdom of a less expensive and uniquely-oriented body having first crack at an issue that can only reach a judge on appeal.

In the educational context, the common first move in court by counsel for institutions is to argue the dispute should not be heard by the court; that is, the court should decline to exercise its jurisdiction in this matter because it is more properly dealt with elsewhere.  Where a dispute has already been heard before a specialized tribunal (e.g. a university senate committee), courts will defer largely to that tribunal’s judgment.

Many of the issues that arise within education law involve an apparent overlap in jurisdiction between several adjudicative bodies.  Several recent judgments show courts declining jurisdiction when they determine the core of a dispute to lie within the jurisdiction of another body:

  • In Jaffer v. York University, a student with Down syndrome alleged a tort and breach of contract by the university for its failure to accommodate him.  The Ontario Superior Court of Justice agreed with counsel of the university that the student was effectively making a human rights claim, which should be heard before the provincial human rights tribunal.
  • In Abrams v. Johnson, a teacher brought a defamation claim against principals and school board administrators.  The Alberta Court of Queen’s Bench agreed with the defendants that the claim involved, in essence, an employment dispute.

In both Jaffer and Abrams the claims by the plaintiffs involved elements that were within the jurisdiction of the courts, but upon scrutiny in each case the courts determined that they were more properly dealt with by other bodies. 

To reduce legal fees and proceed quickly, parties to disputes within the world of education must make sure their claims are brought before the right adjudicator.

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