Posts tagged Supreme Court of Canada

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.

Does the Charter apply to universities? The plot thickens with recent decision

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Many university administrators and student leaders have been watching with interest as the legal dispute between anti-abortion activists and Carleton University winds it way through the courts (see here and here for background). 

Specifically, the curiosity surrounds one issue: does the Canadian Charter of Rights and Freedoms apply to universities? 

If the Charter does apply, then political activists, not to mention anyone else with a grievance against a university, have an incredible legal tool at their disposal, while universities have the nightmare of a possible deluge of Charter claims winding up on their doorsteps. 

In a decision (CanLII) released last week, Madam Justice Toscamo Roccamo of the Ontario Superior Court of Justice ruled that the portion of the pleadings (Wikipedia) of the anti-abortion activists dealing with the Charter argument against Carleton should be struck because it fails to disclose a reasonable cause of action. 

Translated into normal words: the Charter argument – in the court’s view – stinks and should not be allowed to form part of any ongoing litigation. 

After a string of Supreme Court of Canada decisions dealing with this question (discussed more here), a university would be subject to the Charter if either of the following applied:  

  1.  the university, in its entirety, is fairly said to be an “organ of government” because of the degree of governmental control over it as an organization; or
  2. a specific activity of a university is fairly said to be “government” even though the rest of university’s activities would not be.

This approach makes sense: the Charter applies to government actors, and universities should not be subject to the Charter unless they are, or are doing something, governmental.

For a long time, universities liked this view, which was echoed repeatedly in court decisions.  But the recent Pridgen decision (discussed more here and here) was reason for concern.  In that case, the court reviewed the legislation behind the University of Calgary and found that the university “is not part of the government so as to make all of its actions subject to the Charter .  That is, even though, among other things:

  • universities in Alberta are established by legislation;
  • various members of governing university bodies are appointed by the province; and
  • the Lieutenant Governor in Council has the ability to restrict how those rights are used,

the court still did not consider the university to be “government” in its entirety.  However, the court did find that the university “was implementing a specific statutory scheme or government program with respect to the actions” at issue, given that universities in Alberta generally function within that legislation hand-in-hand with government – at least as far as post-secondary education is concerned – to carry out what is essentially a government program.  In that sense, the university operates as a “partner” with Alberta when it comes to educating (though not necessarily when hiring and firing employees, for example). 

This is key:

When a university committee renders decisions which may impact, curtail or prevent participation in the post‑secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible educational system as entrusted to it under the PSL Act. The nature of these activities attracts Charter scrutiny.

In Lobo v. Carleton University, the Ontario decision released last week, the court kicked aside any sort of precedent from Pridgen:

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.

Here’s the take-over message: ultimately, whether the Charter applies to a particular university or university activity may depend on the legislation behind the university.  Assuming neither Lobo nor Pridgen are appealed, universities and students will have more to work with when trying to find out whether the relevant legislation is on one side of the fence or the other.

SCC hyperlink decision has implications for educators

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The blogosphere has had two weeks now to digest the recent ruling of the Supreme Court of Canada in Crookes v. Newton (CanLII), where the high court ruled that simply the act of hyperlinking to defamatory material elsewhere on the internet does not alone constitute defamation.  The decision upholds the rulings of two lower courts, so the outcome is not necessarily a surprise; however, the details of the decision have broad implications for anyone who posts commentary online. 

Educators, in particular, should pay attention, given that teaching is increasingly shifting to become an online activity.  More professors and teachers are blogging than ever before, and students are demanding more and more that materials be made available through the web.

Hyperlinking (Wikipedia) is an active connection or reference to another website through a sensitive word or phrase, allowing the reader to cut directly to additional information relevant to what they are currently reading.  A hyperlink can be “shallow” – i.e. linking to page with relevant articles, like a newspaper’s homepage – or “deep” – i.e. linking directly to a relevant article. 

The relationship of hyperlinking to defamation is timely because the internet, or more significantly the way we use the internet, has created an environment where defamation is easy, simple and common.  In the past, if you wanted to defame an enemy, you generally had to use or be a member of the media.  But current communication technologies provide nearly everyone with access to the tools of defamation.

Here is a summary (The Canadian Encyclopedia) of the ingredients of defamation from Lewis N. Klar, an expert in Canadian tort law:

In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person.  Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished.  This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.

The specific issue in Crookes was the third item in this paragraph, namely whether the plaintiff had established that the defendant had conveyed defamatory meaning to a single third party that had received it.   If nobody hears or reads it, then it’s not defamation.

The facts in this case are fairly straightforward: Crookes claimed that Newton had defamed him by having hyperlinks on Newton’s website to other websites containing allegedly defamatory material.  On first blush, Crookes’ argument makes sense.  If you aren’t allowed to call someone bad names, you shouldn’t be allowed to direct traffic to another site where those names are being tossed around.  But, at the same time, you should be allowed to present a portal to possibly offensive material without taking ownership of everything that appears there.  Freedom of expression vs. the right to protect one’s reputation.  The stuff of interesting judgments.

Justice Abella, who wrote the majority decision in Crookes, had several important comments:

  • The law should not create a presumption of liability for all “hyperlinkers”.  That would seriously curb the free exchange of information.
  • A hyperlink is generally used more as a reference than as a way to reproduce text conveying an idea – that is, it’s more like a footnote than an excerpt.  It establishes a door and does not demonstrate any content set out on the other side.  A hyperlink, then, is “content neutral”. 
  • A hyperlinker can select the destination of the hyperlink but has no control over the content, which may vary from time to time.
  • Consequently, a hyperlinker only publishes hyperlinked material when they reproduce the defamatory content in some way.

The high court ruled that since all Newton did was hyperlink to allegedly defamatory material, his actions were not sufficient to establish “publication”.  

Two other judgments were released by other members of the court, each of which agreed with Justice Abella’s conclusion but emphasized different concerns and arguments.  For example, Justices McLachlin and Fish added that using a hyperlink as a reference should not constitute defamation, but where a secondary author endorses or recommends defamatory material through a hyperlink, well, that’s a different story.  Justice Deschamps expressed concern that Justice Abella’s decision provided too great an exclusion to the rule of publication, and remarked that going after the originator and not the reporter (i.e. the hyperlinker) may be a challenge given the anonymity and global nature of the internet. 

The lesson?  Don’t think you can get away doing indirectly that would get you stung for doing directly.  Trashing reputations is generally not a protected exercise of free expression.  If you are going to play with fire by hyperlinking to potentially toxic material, use the hyperlink as a footnote without taking ownership over the material or sharing too much of it.

Here (The Court) is a link to additional analysis on the judgment.

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.

The Supremes dismiss two education-related leaves to appeal

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The Supreme Court of Canada this morning dismissed two education-related applications for “leave to appeal” (i.e. requests to be heard by the high court).   The Supremes can either:

  1. grant leave to appeal, in which case they will eventually hear the appeal;
  2. dismiss the application with costs, in which case the applicant will need to pay some amount of money to the other side for dragging them through the application process; or
  3. dismiss the application without costs.

The first education-related application, which was dismissed with costs, involved the request of the James Fowler High School and the Calgary Board of Education for the high court to overturn the decision of the Alberta Court of Appeal in Thompson v. James Fowler Senior High School (CanLII).  Here is a summary provided by Eugene Meehan, Q.C.:

The Applicant Ms. Thompson was a 17-year-old grade 12 student with an impressive academic record at High School.  On October 31, 2008, she became involved in a fight with a male student with whom she had a history of conflict.  His mother and sister became involved in the fight, as did one of Ms. Thompson’s friends.  The fight was broken up by some teachers. Ms. Thompson, the male student, and the friend were all suspended immediately.  Ms. Thompson was expelled on November 17, 2008, and the suspension and expulsion were confirmed with no meaningful objection from Ms. Thompson or Ms. Allen.  Attempts were made to allow Ms. Thompson to continue her education, but the disruption set her education back significantly.  Ms. Thompson, by her mother and next friend, filed a Statement of Claim making numerous allegations and claims.  The Respondents moved to strike the Statement of Claim, or, alternately, summary judgment.  The motions judge struck portions of the Statement of Claim and summarily dismissed most other aspects of the claim.  TheC.A.dismissed an appeal in part.  It reinstated paras. 17, 18 and 30, but rejected claims of improper procedure, reasonable apprehension of bias, and unreasonable conclusions.

The second education-related application, which was dismissed without costs, involved the request of a disgruntled doctoral student to overturn the decision of the Quebec Court of Appeal in Dehkissia v. Kaliaguine (CanLII).   Again, here is a helpful summary provided by Eugene Meehan, Q.C.:

The Respondent, a professor in the chemical engineering department at Université Laval, was the Applicant’s thesis supervisor and also headed a laboratory where the Applicant worked as a research assistant.  In January 2002, after a dispute had arisen between them as a result of mutual dissatisfaction, the professor terminated his agreement to supervise the student’s doctoral thesis, fired the student from his laboratory and had the student removed by security officers.  Since the student had a good academic record, the university resolved the situation by giving him another thesis supervisor and new research conditions.  The Applicant received his doctorate in 2004.  He then sued his former supervisor for $500,000 in damages.  The Superior Court found the Applicant’s evidence to be insufficient to support his allegations, and the C.A.upheld that decision.

Interestingly, both students in these cases were not represented by lawyers, which is often the case with these sorts of claims.   The Supreme Court of Canada has actually provided a substantial amount of resources on its website for self-represented litigants.

SCC grants leave to appeal in Moore decision

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The Supreme Court of Canada announced this morning that it has granted leave to appeal the decision of the BC Court of Appeal in the case of Jeffrey Moore, which involved the claim that North Vancouver School District 44 had discriminated against him by failing to provide certain services aimed at special needs children.   The Court of Appeal decision was a landmark in the legal treatment of students with special needs in relation to the nature of accommodations a school district and ministry of education are required to provide. 

Given the important social issues connected to this case, it is unsurprising that the highest court in the land has agreed to hear it, and many educators and parents are looking forward to how it will be resolved.

SCC grants leave to hear appeal in Access Copyright dispute

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The Supreme Court of Canada earlier this month granted leave for an appeal of the Alberta Minister of Education from the decision of the Federal Court of Appeal in Alberta (Education) v. Access Copyright (CanLII). 

In a nutshell, the dispute pits ministries of education and school boards against Access Copyright, a copyright collective.  Access Copyright successfully argued before the Copyright Board of Canada that unauthorized reproduction of certain materials by schools was a violation of its copyright, which did not fall within the fair use provisions of the Copyright Act (Department of Justice).   The Board also ordered that certain copying entitled Access Copyright to royalties.

Here is an early discussion on this case from this blog.  Here is a discussion of the broader concerns for Access Copyright.  



SCC balks on two student grievance cases against universities

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The Supreme Court of Canada announced this morning that it has dismissed separate applications by two students in claims against their universities for leave to appeal (Wikipedia) respective decisions of the Ontario Court of Appeal, each of which were discussed previously on this blog.  Both of the appellate court decisions are powerful statements on the approach of courts to student grievances and, more precisely, the limits of the jurisdiction of judges when confronted by a student claimant:

  1. In Gauthier c. Saint-Germain (CanLII), a graduate student in education at the University of Ottawa sued the university and her two thesis supervisors, alleging that her initial supervisor promised her a scholarship, acted inappropriately, negligently supervised her work and caused her mental distress, and claiming that her new supervisor was incompetent.  Additionally, she argued that the university breached her contract by not providing competent faculty.  The university responded that the court did not have jurisdiction to hear the student’s claim because it was essentially an academic issue to be resolved within the university’s internal processes.  The university won before the motions judge but lost at the appellate level, where the Ontario Court of Appeal found that the grievance could properly proceed within the jurisdiction of the court because it involved a claim in tort and contract, even though it arose from academic matters.
  2. In Jaffer v. York University (CanLII), a student with Down Syndrome claimed York University failed to properly accommodate his disability.  Similar to the student in Gauthier, Jaffer framed his arguments in terms of tort and contract; the Ontario Court of Appeal agreed that the court had jurisdiction because of how the claims were framed but held that the legal documents filed by the student (at least in their current condition) showed that the claims were untenable.

The issue at the heart of these cases - to what extent are disputes between students and universities involving academic matters beyond the jurisdiction of the courts – has been subject to a series of judgments over the decades that have left students and university administrators with a confused sense of the boundaries of the “internal autonomy” of universities.   These decisions, along with Nazik Amdiss and University of Ottawa, Ltd. (CanLII), indicate a renewed interest on the part of the courts to assert jurisdiction over student grievances when they are properly pleaded in tort or contract, despite the connection to academics.

None of the universities in these cases really got what they wanted, namely a declaration by the courts that despite the increasing integration of university life and mainstream society the traditional autonomy granted to universities to manage disputes related to academic affairs should be maintained.  Many (see, for example, McMillan LLP’s case comment here) had hoped for the Supreme Court of Canada to hear appeals to these decisions and clarify the line that should be drawn, but no such luck.

UBC succeeds in closing the door on teacher evaluation complaint of faculty association

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The Supreme Court of Canada announced this morning that it has dismissed with costs the application of the University of British Columbia Faculty Association for leave to appeal to the high court the decision (CanLII) of the BC Court of Appeal regarding the policy of the UBC Senate on teaching evaluations.  The Faculty Association had claimed that the policy violated its collective agreement with the university and brought the matter before arbitration.  The arbitrator concluded that he did not have jurisdiction over the policy (see here for a previous post on the subject).

This is the second time in the past couple of years that the Supreme Court of Canada has dismissed with costs an application of the Faculty Association for leave to appeal – see here (CanLII).  The facts of the matter, as set out in the decision (CanLII) of the BC Court of Appeal, involve the recommendation of the UBC President not to promote a particular professor.  It appears the Faculty Association and UBC square off fairly regularly before the Labour Relations Board.

Supreme Court of Canada refuses to hear appeal of UBC ticket case

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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

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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.

Quebec to reform language education law deemed unconstitutional by top court

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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

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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.

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