Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged Supreme Court of Canada
Supreme Court of Canada refuses to hear appeal of UBC ticket case
Jul 12th
The Supreme Court of Canada recently dismissed (CanLII) an application by Daniel Barbour – the accountant who claimed UBC had no right to issue parking tickets – to hear an appeal to the decision (CanLII) of the BC Court of Appeal rejecting his claim. This brings his lawsuit to a final close. Here is a press release by UBC’s Office of the University Counsel.
There are many interesting elements of Barbour’s story – see my previous posts here and here.
Supreme Court of Canada issues final word on UBC discrimination case
May 6th
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.
Quebec to reform language education law deemed unconstitutional by top court
Jan 11th
CBC reported that Quebec’s Liberal government plans to reintroduce legislation to replace Bill 104, which the Supreme Court of Canada ruled over the summer was unconstitutional. This marks the beginning of another chapter in the ongoing drama surrounding the language of instruction debate in Quebec.
As a very brief history, the linguistic legal battles in Quebec began around the language of legislation and the administration of justice. Consider section 133 of the Constitution Act:
Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec… The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
In 1977, the Parti Québécois government of René Lévesque (links to wikipedia) brought in The Charter of the French Language, which defined French as the sole official language of Quebec and created broad language rights for every person in the province, particularly related to commercial signs and the language of instruction for schoolchildren. During the late 1970s and early 1980s, English-speaking lawyers in Quebec succeeded in having the Supreme Court of Canada strike down certain provisions of the Charter of the French Language as unconstitutional, specifically those dealing with the language of legislation and the administration of justice.
Chapter VIII of the Charter of the French Language deals with the language of instruction and includes in s. 73 criteria enabling certain children to receive education in English. After the advent of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada, in Quebec (AG) v. Quebec Protestant School Boards, ruled that some of the provisions contained in the original version of s. 73 were unconstitutional. The provincial government revised the eligibility criteria, and in Gosselin v. Quebec (AG) the Supreme Court of Canada held that those revised criteria were constitutionally valid. Section 73 now reads as follows:
The following children, at the request of one of their parents, may receive instruction in English:
(1) a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;
(2) a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada;
(3) a child whose father and mother are not Canadian citizens, but whose father or mother received elementary instruction in English in Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received in Québec;
(4) a child who, in his last year in school in Québec before 26 August 1977, was receiving instruction in English in a public kindergarten class or in an elementary or secondary school, and the brothers and sisters of that child;
(5) a child whose father or mother was residing in Québec on 26 August 1977 and had received elementary instruction in English outside Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received outside Québec…
Bill 104 was enacted to tighten the loopholes used by some parents to squeeze their children into the English school system. In October of this year, the Supreme Court of Canada ruled in Nguyen v. Quebec (Education, Recreation and Sports) that Bill 104 is unconstitutional. This recent announcement by the provincial government will continue the debates carried out in these decisions.
A footnote for those unfamiliar with Quebec linguistic politics: a language law remains a “Bill” in public discourse among English publications in Quebec because even after it is passed it is hotly contested.
The Duty to Accommodate: Happy to work on Christmas, but not on Yom Kippur
Dec 24th
The culture of Christmas in Canada is pervasive. It is the highlight of the year for many Canadians, when work ceases for a day and families reunite. Every provincial government has designated it as a statutory holiday, allowing Western Christians the ability to participate fully in their religious experience without any expectation of professional achievement.
But, for many Canadians, the most important days on the calendar don’t fall out in late December. They don’t coincide with statutory holidays. How should educational institutions – as employers of people of varied religious and cultural backgrounds – deal with employees who don’t mind working on Christmas but need to take off days at different times of year for their own religious holidays?
The main case on this issue is Commission scolaire régionale de Chambly v. Bergevin. Three Jewish teachers employed by a local school board took a day off to celebrate Yom Kippur. 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 court acknowledged 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.
It’s as simple as this: one group doesn’t have to work on their holidays, the other does. That’s discriminatory. The court held that this issue has to be resolved without adverse consequences to non-Western Christian employees. Logistically and legally, this is often dealt with by scheduling changes.
Educational institutions should review Chambly and similar decisions when drafting policies relating to employees and holidays to ensure that this issue is dealt with in advance with sensitivity to non-Christian groups.
