Posts tagged religion

Flurry of recent court decisions impacting schools and universities

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There have been a series of recent court decisions effecting schools and universities.  They involve institutions in a variety of different provinces, which means slightly different rules may apply, and they touch on various different issues - but they should be kept in mind by any institution’s decision-maker or legal advisor. 

Here they are:

1.   Solicitor-Client Privilege (Alberta)

In Lana v. University of Alberta (CanLII), a university appeals tribunal penalized a student based on allegations of non-academic misconduct in connection with an allegation of sexual assault.  The student sued for judicial review.  A part of that lawsuit, he also claimed that the university should be required to produce all communications between the appeals tribunal and its lawyer.  Although normally lawyer-client communications are allowed to be withheld on the basis of “privilege” (Wikipedia), the student argued that either that privilege was waived or an exception to the rule should apply because the appeals tribunal broke rules of procedural fairness.  The court ruled against the student and upheld that the privilege should remain in place. 

2.    Anxiety Disorder (British Columbia)

In Singh v. University of British Columbia (CanLII), the Supreme Court of Canada denied a student leave to appeal in connection with her lawsuit for judicial review, which is discussed further here.  The student failed four courses and claimed her performance was due to an anxiety disorder.  She got unfriendly outcomes from university tribunals and took the issue to court, where she failed repeatedly.  This is cautious reminder about how far courts will go to try to give students a fair shake.

3.    Negligence (Ontario)

In Rollins v. English Language Separate School Board #39 (CanLII), the Ontario Court of Appeal upheld the decision of a lower court dealing with a claim of negligence resulting in injuries suffered by a student due to a rollerblade accident.  There was very little evidence about the event itself, and the initial judge refused to draw certain inferences that would establish the facts needed by the student to advance the claim.  That decision was validated.

4.    Negligence / Jury Direction (Nova Scotia)

In Marshall v. Annapolis County District School Board (CanLII), the Nova Scotia Court of Appeal ordered a new trial in connection with a school bus that hit a young child, causing serious injuries.  The first trial involved a determination by jury, and the child’s guardian successfully argued that the judge failed to give the jury the right guidance.  A further appeal of this decision will appear before the Supreme Court of Canada (CanLII).

5.    Religious Freedom

In S.L. v. Commission scolaire des Chenes (Lexum), Catholic parents wanted a local school board to exempt their children from receiving a mandatory ethics and religious culture educational program, which is required in Quebec schools.  They took the issue to the Supreme Court of Canada, which ruled that the parents had failed to show that the program interfered with their ability to pass along their faith to their children.  Rather, the court considered the program to expose students to a comprehensive overview of various faiths, which does not amount to an indoctrination of relativism but merely reflects a fact of modern life.

Pro-life students suing Carelton are forced to pay costs

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The lawsuit against Carleton University from two anti-abortion student activists is slowly (and expensively) winding its way through the courts. 

The two students – Ruth Lobo and John McLeod – were arrested last fall for participating in an unauthorized protest on campus (see here and here for background information).  Subsequently, they sued the university.  The university responded by applying to the court to dismiss their claims on the basis that their pleadings (Wikipedia) did not disclose a reasonable cause of action (e.g. their claims were frivolous).

Madam Justice Toscano Roccamo of the Ontario Superior Court of Justice ruled over the summer against the university on this application and allowed the students’ lawsuit to continue but ordered (CanLII) that certain portions of their pleadings be amended.  Also, she struck one claim made by the students, namely that the university owed the students a fiduciary duty.  Finally, she recently ordered the students to compensate the university for a portion of its costs incurred in the application ($18,400.87 plus tax).  Carleton Lifeline, the group Lobo and McLeod were a part of, has posted pleadings revised by the students.

Many students have been arrested before for unauthorized on-campus protests, but the interesting thing about this lawsuit is that the students are trying to assert the Charter of Rights and Freedoms (Department of Justice) applies to the university and protects the students’ actions, which is a novel claim prompted by the Pridgen decision.  Justice Roccamo commented in her recent judgement that “this litigation raises matters of particular interest to these parties which may result in the evolution of jurisprudence having broad application to universities and students across the country…”

We’ll see where the next step leads.

Tis the season to accommodate traditional employees of minority religions and cultures

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Labour Day – the first Monday in September – is widely recognized in Canada as summer’s swan song.  Some people stretch out their three-day weekend into a four-or five-day weekend, but ultimately the days and weeks after Labour Day are generally about getting things back in gear after sunny and relatively relaxed work days of summer.   School starts.  Businesses pick up.  Days get shorter and colder.  Vacation season dies down.

But some Canadians reserve their vacation time for that particular window of time a couple of weeks after Labour Day, when the country’s calendar heads in the opposite direction and refocuses on getting back to business.  Christian Canadians, or Canadians with cultural connections to traditionally Christian holidays, rarely need to worry about taking off time to participate in their religion or culture.  In British Columbia, statutory holidays (BC Government) overlap with the holidays of Western Christians.

For other Canadians, though, that’s a real concern: how am I going to celebrate fixed, weekday calendar events without compromising my business or employment obligations?  Despite the increasing diversity of Canadian society, that same issue still needs to be acknowledged and respected by employers, even in the educational community: how should educational institutions deal with employees who don’t mind working on Christmas but need to take off days at different times of the year for their own cultural or religious holidays?

The central case on this issue in the educational context is Commission scolaire régionale de Chambly v. Bergevin (CanLII), which involved three Jewish teachers employed by a local school board who took a day off to celebrate Yom Kippur (Wikipedia).  The school board had granted them a leave of absence without pay and the teacher’s union sought reimbursement for that amount.  The Supreme Court of Canada ultimately found for the union, and maintained that the school board had a duty to accommodate the needs of the teachers, short of such accommodation resulting in undue hardship (i.e. being unreasonably costly) for the school board.

The high court determined that the calendar of statutory holidays is discriminatory against non-Western Christian employees:

In my view, the calendar which sets out the work schedule, one of the most important conditions of employment, is discriminatory in its effect.  Teachers who belong to most of the Christian religions do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided for in the calendar.  Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur.  It thus inevitably follows that the effect of the calendar is different for Jewish teachers.  They, as a result of their religious beliefs, must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work.  In the absence of some accommodation by their employer the Jewish teachers must lose a day’s pay to observe their holy day.

Educational institutions should review Chambly and other decisions when drafting policies related to employees to ensure this issue is dealt with sensitively and in advance of any disputes arising.  Outside of the employment and labour context, schools and universities should provide sufficient measures for students of minority cultures and religions to take their holidays without suffering significant hardship.

Oy to the world

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Wearing a yamulka this time of year means hearing a lot of this: “Merry… er, um… Hanukkah!”

Some of this: “Happy… er… Christ… um. Hey, did you ever see Elf?”

And at least one of these: “In case I don’t see you later, have a… er, um… Do you know my dentist? He had a Jewish candelabra thingy in his office during my appointment last week.”

Noticeable discomfort from many people I speak with, all of whom earnestly want to wish me and my family the best for the season.  But they are suddenly caught off guard by not knowing whether wishing me a proud “Merry Christmas!” will offend me, have me thinking they know diddly squat about Jews or Judaism – or worse – figure them for some cultural imperialist who expects everyone to get with the program, especially those members of minority faiths that take their beliefs seriously enough to turn them into outer-wear.

Just a couple of pointers, then, for any of you looking to avoid the experience:

  1. Relax! There are worse things you could do than try extending some yuletide joy to someone like me. In fact, I’d feel worse if you didn’t want to wish me anything.
  2. Hanukkah ended weeks ago. It’s also a very different kind of holiday. It has to do more with celebrating freedom from oppression than watching gently falling snow and drinking eggnog. Many Jews I know can’t stand the fact that Hanukkah’s proximity to Christmas has meant that a lot of the features of Christmas are presumed during Hanukkah. Gifts are always welcome, though.
  3. Many Jews have Christmas traditions that have nothing to do with celebrating Christmas. Elena Kagan, the newest addition to the US Supreme Court, earned Jon Stewart’s respect when she responded (youtube) as follows to a question during her confirmation hearing about where she was one Christmas day: “Y’know like all Jews I was probably at a Chinese restaurant.”  Japanese restaurants work too. Before I had kids, it was a day for volunteering at soup kitchens.
  4. Some Jews celebrate Christmas as a cultural event that they feel a part of. Not me, but I’ve heard of others that do.  I remember reading a column in the New York Times a couple of years ago by one of the creators of “Sex In The City” who explained how for the first time in her life she decided to put up a little Christmas tree.  My sense is she’s definitely in the minority.

My grandmother once told me how when she was a child Christmas was one of the scariest days of the year because Christian leaders in neighboring towns in Poland would use Christmas mass to pump their congregants full of antisemitic energy that spilled out into bad news for the Jews.  Even though I live in a very different world than she did, and my Christmas celebrants are effectively the opposite of hers, the association is hard to shake. And it’s hard for me to ignore the religious roots in the day or to find personal meaning in a holiday with “Christ” in its name.

Christmas stirs this and more in many people. In North America, Christmas is one of the most powerful cultural events of the year and, suitably, is a subject of considerable debate and controversy.

Here’s a glimpse of the tip of the iceberg:

  • Marion Cohen, a judge on the Ontario Court of Justice, caused an uproar (CBC) several years ago by sending out a memo ordering that a Christmas tree be moved from the courthouse lobby.  She viewed the tree as a Christian symbol, and its placement was inappropriate in a courthouse of a multicultural society.  Judges are generally restricted from speaking to the media on many issues (for good reason), and its unfortunate in this case that she was unable to participate in the debate that ensued.
  • More recently, Chilliwack School District #33 made headlines (Vancouver Sun) last month by passing a motion to call the school vacation in December the Christmas holidays, prompting criticism that the move fails to recognize non-Christian groups.  Here is the answer from SD #33, effectively arguing that Christmas is a secular Canadian holiday.   Here (Kamloops Daily News) is an interesting response from a school board in Kamloops.  The Ministry of Education calendar refers to it as “winter vacation”.
  • The government of Quebec decided (Globe and Mail) recently that publicly funded day cares that teach a particular faith to their tots will lose their government funding.  How will the government decide what is part of a “religion” as opposed to a secular culture that grows out of it?  Excellent question. I have no idea.  It is going to be interesting to hear government officials try to draw the line.  Which classic Christmas songs will be allowed in day cares operated in church basements?  Can a day care in a Jewish neighborhood tell the story of Hanukkah?  We’ll see.

Rightly or wrongly, the fact is that Christmas, like other traditionally Christian holidays, has the strength of the law of our province and country behind it. For example, the term “statutory holiday” is defined in our Employment Standards Act (BCLaws) to include “Good Friday” and “Christmas Day”.

My take on it: live and let live. There are problems with the system, but there are more important battles to fight and nothing that spreads goodwill, generosity and concern for our common humanity should be impaired unthinkingly. Individuals are complicated, and groups of individuals are exponentially more complicated – the law, if it can be improved, will take some time to catch up.

In the meantime, I enjoy each Christmas with a dose of Hanukkah, appreciating that I live in a place and time of exceptional freedom and security relative to other places and times, where the issues I mentioned above are debated freely, where Christmas cakes have kosher symbols on them and the worst that can happen to me after a Christmas party is a hangover rather than a hanging.  That’s what makes me happy.  I’m lucky to live among people that give me a reason to look forward to time off, whether called “winter holidays”, “Christmas break” or anything in between.

On a related note, this marks just over a year of this blog.  Thanks to every reader who has contributed to it’s success, especially my family, colleagues and clients who have shown nothing but support and, more importantly, constructive criticism. Enjoy the break.  Take a breather, if possible.  I am fortunate to have you.  All the best for 2011.

From campus to court: church and state clash again south of the border

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Campus activism makes for interesting court decisions.  Traditionally, universities have served as battlegrounds for major social issues confronting not only students but the rest of society.  Often, these disputes spill out of the classroom and into the courtroom, where student affairs expose fundamental questions about what rules should restrict or direct a nation’s centres of higher learning.

For decades, the major court decisions in North America arising from campus events have generally stemmed from left-wing activism.  Recently, however, religious groups have approached the courts to address instances of perceived injustice suffered at the hands of administrators or student politicians.  In Canada, an anti-abortion group, Youth Protecting Youth, has made headlines because student governments have taken steps to restrict its ability to voice its message on campus with the same rights and privileges as other student clubs (see here for a previous post on the subject).

Similar confrontations are occurring south of the border – and the decisions keep on coming.  Here is a recent post explaining one example.  Yesterday, Inside Higher Ed, an impressive online source for news and opinion involving higher education, ran an interesting article on a recent judgment from a high level appelate court in the US, ruling that the University of Wisconsin at Madison improperly refused to fund activities of a Roman Catholic student group, placing unconstitutional limits on activities that included worship.  The central issues seems to have been whether the university could refuse to grant funding with respect to such events, or whether it had to consider them to be in the same category as an other extracurricular activities.

Although the constitutional background is quite different in the US and Canada, it is fascinating to watch the types of issues and arguments that are raised by parties on the various sides of these disputes and, more importantly, to see how courts are reacting to them.  Recent cases in the US have shown that courts have been fairly supportive of religious student groups claiming discrimination. 

 The cultural authority held by religion has waned considerably over the past decades to the extent that now religious groups are increasingly being made to feel, particularly on campuses, as the targets of prejudice.  As social attitudes towards religion continue to shift, and religious student groups establish a growing presence on campuses with the support of affiliated communities elsewhere, we should expect courts to spend even more time piecing apart the basic question of what role religion should play within public educational institutions.

UVIC pro-life student group sues student society

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Youth Protecting Youth, a pro-life student group active at the University of Victoria, has begun a lawsuit against the UVIC Students’ Society, arguing that a decision to bar funding to the group was illegal.  The petition filed last week by YPY in BC Supreme Court asks for a declaration that all previous refusals to fund or ratify the group’s status were illegal; an order for immediate funding and ratification; an order preventing similar treatment in the future; an order for the deposit of the funds denied in the past few years, and so on. (See my previous post on this issue here.)

The BC Civil Liberties Association intends to try to become an intervenor in the legal proceedings.

Justin McElroy at McLean’s On Campus commented that restrictions on pro-life campus groups are becoming part of a common script:

Step 1: A pro-life student club (or traveling exhibition) compares abortion in some way to murder/genocide/terrible, terrible things

Step 2: The university’s student council, in all its wisdom, decides to ban said group or club from campus.

Step 3: Gnashing of teeth commences.

As McElroy points out, there have been a series of similar decisions by student governments across the country over the past couple of years, and rarely has the dispute wound up in court:

Case law on the subject is murky. In 2008, BC’s human rights tribunal dismissed a complaint by UBC-Okanagan’s pro-choice student club, Students For Life, allowing the student union to continue to deny them club status. However, at the time William Black, a law professor at UBC, said the case probably wasn’t precedent setting, arguing “It looks like it was rejected not as a matter of principle, but based on the facts.” At UBC-O, a special general meeting was held to ban Students For Life. At UVic, all decisions involving YPY have been made exclusively by the UVSS council. In America however, the Supreme Court ruled in 2000 that student clubs cannot be denied funding based on their viewpoint.

The costs of commencing an action usually require a certain basement dollar amount at stake before proceeding.  Experience shows that legal fees, up to a certain point, often total a third of the amount being claimed.  In this case, it’s all about principle. 

Two prior claims before the BC Human Rights Tribunal by similar groups have resulted in different decisions (see judgments on CanLII here and here).  YPY’s choice of how to frame its complaint is likely based on lessons learned from those experiences.  Many other pro-life groups – and student governments – will no doubt be watching this case for a sign of things to come.

Supreme Court of Canada issues final word on UBC discrimination case

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The University of British Columbia celebrated last week’s decision by the Supreme Court of Canada refusing to hear an appeal from Cynthia Maughan, a student who alleged discrimination by the university and several professors on the basis of her Christian beliefs (see here for a previous post on this issue).

In 2008, the Supreme Court of British Columbia dismissed Maughan’s claim on the basis that there was no evidence to support one or more of its critical elements.  This decision was upheld by the Court of Appeal.  The rulings are available at CanLii here (BCSC), here (BCCA), and here (SCC).

Maughan has had ample opportunity to have hear claim heard at considerable expense to the university and to the court system.  If she failed to convince the Court of Appeal that had enough evidence to support her claim (which, even if the court was wrong, would still be a far cry from deciding in her favour), then it is a good idea to let the top court in the country focus on other matters.

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

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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.

U.S. Supreme Court to hear claim of religious student group denied recognition because of university non-discrimination policy

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Should a university recognize and allow funding for a student group that requires its leaders to abide by a strict personal code that includes limits on sexual orientation?  

Tomorrow – April 19 - the U.S. Supreme Court is scheduled to hear oral arguments on precisely that issue with respect to CLS v. Martinez.  This is the background to the case.  The University of California Hastings College of the Law is a top-ranked American law school.  The Christian Legal Society (CLS) is an organization of Christian judges, lawyers and others with more than 150 law school chapters.  In the 2004-2005 academic year, the Hastings chapter of CLS applied for recognition as a student club and was rejected.  The CLS sued Hastings, claiming that by Hastings’ denial of recognition the school violated the CLS’ “expressive association, free speech, free exercise, and equal protection rights” under the American Constitution.  

The school’s position was based primarily on two documents: the CLS Statement of Faith, and Hastings’ non-discrimination policy.  

All officers and voting members of CLS must sign the national CLS Statement of Faith, which provides:

Trusting in Jesus Christ as my Savior, I believe in:One God, eternally existent in three persons, Father, Son and Holy Spirit.God, the Father Almighty, Maker of heaven and earth.The Deity of our Lord, Jesus Christ, God’s only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.The presence and power of the Holy Spirit in the work of regeneration.The Bible as the inspired Word of God.  
On the issue of sexual orientation, for greater clarity the national CLS passed a resolution in 2004 expressly prohibiting adultery and “homosexual conduct”. In contrast, Hastings’ non-discrimination policy provides as follows:   
 
 
 

The University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admissions, access and treatment in Hastings-sponsored programs and activities.  

The basic legal issue in this case is whether the CLS is suffering religious discrimination (as the CLS claims) or whether it is seeking special permission to violate the non-discrimination policy (as Hastings claims). 

Although much about this case is specific to the U.S., many of the arguments apply in the Canadian context, specifically to the debate involving pro-life groups on campus.  As a result, even though a decision of the U.S. Supreme Court will not bind universities or student societies when dealing with such circumstances, it will highlight the unique tensions at play and may encourage a Canadian court to advance in a particular direction if a similar case comes before it. 

UVIC Students’ Society votes to revoke status of pro-life club

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The University of Victoria Students’ Society (UVSS) voted last week to revoke the club status of Youth Protecting Youth (YPY), a pro-life group on campus.  The move caps a stormy series of events between the UVSS and YPY.  In October 2008, the UVSS denied club funding for YPY but maintained its status as a club.  This decision was repeated in the fall of 2009, and activism surrounding abortion at UVIC reached a peak in October 2009 with a well-attended public debate on campus.  Erin Millar at Maclean’s has recent coverage here and some older coverage see here

The dispute between the UVSS and YPY has cast a wider scope of interest with the B.C. Civil Liberties Association (BCCLA) throwing its hat into the ring in favour of YPY, condemning the UVSS’ conduct.

The UVSS’ position appears to be based on its powers under Part E (Discipline) and Part F (Harassment) of Part III of the Board of Directors Policy Manual.  Anyone who feels that a student club has engaged in harassment can complain to the Clubs Council committee of the UVSS.  The Clubs Council investigates and reports to the UVSS board of directors, which is entitled to discipline the club by taking certain measures, including denying funding or revoking club status.  The UVSS has stated that in this case it is responding to such a complaint in relation to YPY.

The problem is, according to the BCCLA, that it appears the decision was taken as a result of the premise behind YPY rather than particular conduct (i.e. what it is rather than what it does).  This, simply put, is anti-democratic.  Now, as Erin Millar suggests, the battle might shift to the courtroom.

The UVSS’ decision raises two interesting questions:

  1. what is the role of the university – UVIC – in all this; and
  2. how will the dispute likely get resolved if it did go to court?

First, despite the obvious connections, there probably isn’t much of a legal relationship between this decision and any claim by the students in YPY that UVIC has done something wrong or should do something different now.  In general, student unions are societies independent from the universities on which they operate (see here as an example).  The members of each society – namely, students at a particular university – contribute fees to provide funding, part of which is allocated to various student clubs.  When the powers that be within the society determine a certain club has been acting out of line, they have the discretion to turn off the tap. 

Politically, as well, it is generally unwise for a university to wade into a dispute between student groups unless unrest is involved.  UVIC probably doesn’t want to touch this one with an opening ceremony length torch. 

Second, the preliminary hurdle here is whether the dispute will make it to court.  Law is expensive.  Money is something many students and campus groups don’t have.  But if this dispute did get before a judge, the decision would depend largely on the type of claim launched by YPY (or BCCLA).  One the one hand, they may claim that the UVSS’ decision was inconsistent with the Society Act (British Columbia), which governs societies.  On the other hand, they may launch a complaint under the Human Rights Code (British Columbia) before the B.C. Human Rights Tribunal, alleging the UVSS’ course of action constituted discrimination.  If that happens, both sides will likely look at Gray v. UBC Students’ Union, where the court rejected the claim of a pro-abortion group that it had suffered discrimination on the basis of religion.  The court there found that the student group had been shut down because of its offensive conduct and nothing else (but see also this decision).  As well, a court might insist first that YPY exhaust any dispute resolution mechanism available within the UVSS or UVIC before approaching a judge.

Time will tell.

British Supreme Court Finds Admission Policy in Jewish Private School Illegal

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The highest court in England last week weighed in on the admission policy of a private Jewish day school (“JFS”) in London.  Here is the coverage by the New York Times. The decision maintained that giving a yea or nay to a child based on their heredity rather than religious practice violates the country’s discrimination laws.

Although there has been no similar ruling from Canadian courts, this may be relied upon in future litigation in our side of the Atlantic.

The policy of JFS was to:

admit up to the standard admissions number children who are recognized as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) or who have already enrolled upon or who have undertaken, with the consent of their parents, to follow any course of conversion to Judaism under the approval of the OCR.

The OCR recognizes as Jewish a child born of a Jewish mother or a mother who converted to Judaism under an accepted rabbinic authority within Orthodox Judaism. The plaintiff’s mother, in this case, converted to Judaism under a rabbinic authority not recognized by the OCR.

The heredity-as-discrimination argument was the cover for what ultimately amounted to a dispute between different Jewish denominations regarding the definition of Jewishness, yet another forum for the long-standing “Who is a Jew?” debate. Perhaps for this reason, the court went out of its way to emphasize that the policy was not “racist” in the manner in which the term is often thrown about. The decision forces JFS – and by extension other Orthodox schools – to be more open to children of other Jewish denominations.

The ruling marks a clear entrance by the British judiciary into the affairs of faith-based schools, which are funded publically, more so than in any province in Canada. JFS, like other such schools, has to take public funds along with the likelihood of judicial intervention. Faith-based schools in Canada may want to re-evaluate their admission policies in light of this decision.

UBC Celebrates Legal Victory in Prolonged Discrimination Claim

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The storm of controversy and commentary surrounding Cynthia Maughan, the UBC student who alleged discrimination by the university and several professors on the basis of her Christian beliefs, reached what many think is an ultimate conclusion a couple of weeks ago.  The BC Court of Appeal for British Columbia released its decision in Maughan v. University of British Columbia et al, which capped something of a litigation nightmare for UBC. The court’s decision on CanLII is here.

Here’s a brief summary of the facts. Maughan was an Anglican Christian pursuing a Masters of Arts degree in English at UBC, during which time she alleged several incidents of discrimination occurred:

  • An email was sent to the English graduate student listserv, where a student jokingly suggested Christians should be stoned; and
  • She experienced what she said amounted to discrimination in a seminar course, where she asserted an anti-religious bias motivated the course’s professor to treat her poorly.

The professor had agreed to schedule a course event on a Sunday, refused to grant Maughan an extension on her final paper, provided negative comments on that paper, and awarded her an unsatisfactory grade, all of which Maughan attributed to the professor’s opposition to her religious beliefs. 

Maughan, disturbed by her experience with the professor and disappointed with her grade, pursued redress through the avenues available within UBC, including an appeal to the Senate Committee, which ultimately ruled against her. She subsequently commenced an action against the professor, UBC and other professors who she alleged facilitated or ignored the discrimination she experienced. 

The Court of Appeal emphatically rejected Maughan’s claims. The court held that Maughan presented no evidence to demonstrate that her treatment by the professors was based on her religion. Similarly, Maughan failed to show that they were acting in bad faith, which is a requirement under the University Act (BC) to establish negligent conduct in this sort of relationship.

The decision included a couple of important points for parties involved in these sorts of disputes:

  1. There is a high standard to meet for claimants attempting to win against a university or professor where something was done while executing duties on behalf of a university (see this provision of the University Act, from BCLaws). They must demonstrate bad faith – like malice or a dishonest purpose - which can be very difficult to prove.
  2. The strength and legitimacy of internal bodies devoted to dispute resolution is significant. The court referred to UBC’s Senate Committee approvingly as a “quasi-judicial body”.
  3. Despite the court’s conclusion, the fact that Maughan’s claim received the attention and resources of two judicial levels – requiring UBC to respond with counsel at every turn – shows the degree of concern courts have for university students, particularly ones pursuing advanced degrees. Maughan’s claim consumed a considerable degree of time, money and effort just to be dismissed for no evidence.

This article in University Affairs discusses the decision and other examples of student lawsuits and how universities and their lawyers are confronting them.

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