Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged discrimination
The threshold for suing a school board for bullying
Nov 24th
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.
Ontario Court of Appeal: Courts have jurisdiction over academic disputes grounded in contract or tort
Nov 14th
An interesting debate is popping up repeatedly in judgments from Ontario that may have an impact on universities in British Columbia, which centers around the issue of whether a student’s academic grievance may be heard by a court. The topic of jurisdiction is concerning for universities, which have traditionally been afforded the exclusive authority – akin to administrative agencies – to resolve academic disputes internally.
Earlier this year, the Ontario Court of Appeal, the decisions of which are generally binding on courts across the country, dealt with a dispute involving the scope of the court’s jurisdiction in the academic affairs of universities in Gauthier v. Saint-Germain (CanLII). The decision is published only in french, but there is a helpful discussion of Gauthier in Nazik Amdiss and University of Ottawa, Ltd. (CanLII). As quoted in Nazik Amdiss, Mr. Justice Rouleau in Gauthier stated several relevant principles:
(1) The Superior Court is a court of general jurisdiction and its jurisdiction may only be delimited by clear and express legislative or contractual provisions. If there are no such provisions, the court is competent to rule on the dispute (i.e. even in matters of an academic nature), (paragraph 29);
(2) Where the remedy sought is to alter an internal academic decision made by university authorities, the appropriate proceeding is normally judicial review. In that context, the court should be hesitant in becoming embroiled in the internal affairs of a university.
(3) There is a contractual aspect to a student’s relationship with the university and when a breach of contract is properly alleged, the court has jurisdiction to hear the case (paragraph 32).
In Nazik Amdiss, a student in her final year of an undergraduate psychology degree received a conditional acceptance to the French Language MD program at the University of Ottawa. She had excellent grades and was excited to start medical school in the 2021/2022 academic year. The conditions of acceptance involved the student successfully completing the 2009/2021 academic year, providing proof of citizenship, etc. But at the end of July, she received an email from the Faculty of Medicine advising her that the offer of acceptance was being withdrawn because she failed to maintain an average of 3.60. The student alleged that this was not a condition of acceptance and thus the withdrawal was a breach of contract.
The university argued that the court did not have jurisdiction over the subject matter identified by the student. Even though this is a framed as a contractual dispute (i.e. whether the university had a contractual obligation to accept her into the program, her sudden poor grades notwithstanding), the student’s claims are essentially academic in nature and are therefore within the exclusive jurisdiction of the court, and courts have long accepted the principle that they should not interfere with the core academic functions of universities, including setting admissions policies (see Mulligan v. Laurentian University - CanLII).
This was quickly rejected by the court because the student’s claims went to whether those policies were followed. However, the court found that the average grade criteria was part of the conditional acceptance even though it had been poorly communicated to the student by the university, and the student was unsuccessful.
Another Ontario judgment involving similar issues was released by the Ontario Court of Appeal last month. The following is a summary by Allison MacIsaac in The Court of the background to Jaffer v. York University (CanLII):
After gaining admission to York University, Ashif Jaffer and his mother approached the school to discuss accommodation measures to address his Trisomy 21 Down Syndrome disability. No formal agreement was ever reached. At the culmination of Jaffer’s first year, a professor offered Jaffer the opportunity to resubmit a paper and confirmed he would grant Jaffer deferred status for that course. Assuming this meant his status as a student would be granted a deferred status, Jaffer enrolled in second year. He was soon informed however, that he no longer qualified as a student since he had failed to obtain a D+ academic average. Jaffer then initiated a claim against the University seeking damages, arguing a contractual breach – specifically, a breach of good faith and negligent misrepresentation. York responded by claiming the matter was academic in nature and outside the court’s jurisdiction, and also that Jaffer had initiated a human rights claim, which fell within the exclusive jurisdiction of the Ontario Human Rights Commission.
At the Superior Court of Justice, the University brought a Rule 21 motion (of the Rules of Civil Procedure) for an order striking out the appellant’s Statement of Claim on the basis that it failed to plead a known cause of action within the jurisdiction of the Superior Court of Justice. Pitt J. agreed with the University’s counsel, finding that the issue was academic and fell within the university’s discretion. He also found that Jaffer was effectively making a human rights claim, which must be heard before the provincial human rights tribunal.
Fundamentally, the motion judge maintained that if the core of a student’s grievance involves academic conduct, then it cannot be heard by the courts, even if there are embedded issues involving contract or tort. This essentially summarizes the university’s position: the student’s claim arises out of academic decisions and procedures of the university, the substance of which are beyond the jurisdiction of the court. (The only way these sorts of claims can reach the courts is by a process of judicial review – that is, the student has to take their grievance to every relevant adjudicative body within the university and, if they are still unsatisfied, they must then approach the court and ask that the zone of deference owed to a university and surrounding those decisions be demolished. A claim for judicial review is far more difficult to argue than a fresh cause of action. And, as the court in Mulligan said above, courts should not interfere with decisions relating to the core academic functions of universities.)
However, Madam Justice Karakatsanis, in a unanimous decision, rejected that position and stated clearly on the basis of Gauthier that:
where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even if the dispute is academic in nature and arises out of the academic activities of the university.
Courts have rejected similar claims by other students not because the court lacked jurisdiction or because procedurally the claims should have been made in the form of judicial review but because the claims were untenable. It is as simple as that. Here is an unofficial translation in Jaffer of a key passage in Gauthier:
In my opinion, to determine whether the court has jurisdiction it is more useful to look at the remedy claimed by the plaintiff. When a party is seeking to have the internal academic decision of a university reversed, the proper procedure is judicial review. However, if the plaintiff is alleging the basis for a cause of action in tort or breach of contract and claiming damages, the court will have jurisdiction even if the dispute arises out of the scholastic or academic activities of the university in question.
This does not necessarily mean it will be easy to students to simply head off to court if they disagree with the decision of a professor or associate dean. By enrolled with a university, they agree to submit themselves to the discretion of the university on academic affairs. To get the attention of the court, they will have to show that they have a valid claim in contract or tort. As well, the court will try to sniff out whether the claim is “simply an indirect attempt at judicial review”, like what amounts to an appeal of a determination of grades or admission.
What, then, is a reasonable cause of action on the part of a student against a university in contract or tort? In a claim for breach of contract, the student has to show:
- the existence of an implied or express term in the contract between the student and the university that arose by virtue of the student’s enrolment; and
- a breach of that term by the university that resulted in harm to the student.
In Jaffer, the student failed to show that it was a term of the contract with the university that the university would accommodate the student’s disabilities. The student skipped that step in the arguments, instead focusing on how the university failed to accommodate the student’s disabilities.
A similar test should be applied in a claim in tort against a university. The student must raise the same elements – duty of care, causation, etc. – that appear in any successful tort claim. In Jaffer, the student failed to do that, so the claim was rejected by the court.
These cases contain a roadmap for how a student can mount a successful claim against a university without the disadvantages of proceeding by way of judicial review. They also show the arguments a university should raise in trying to stifle such a claim before reaching a trial.
From campus to court: church and state clash again south of the border
Sep 3rd
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.
Kwantlen Student Association threatens human rights claim over credit card tuition decision
Aug 12th
Bradley Head, Director of Academic Affairs for the Kwantlen Student Association, announced (BClocalnews.com) recently that the KSA is considering taking legal action against the Kwantlen Polytechnic University over its recent decision to refuse to accept credit cards for tuition payments. Kwantlen’s decision appears to reflect a position shared with other major universities in the province.
The exception to this restriction: international students. They can continue to pay tuition by credit card. The university justifies this distinction on the basis that international student do not have the same banking options as non-international students given their immigration issues. The KSA is now considering out loud whether this distinction amounts to discrimination that violates principles of human rights law. Whether the KSA actually commences a lawsuit on this basis is another matter, but the threat does raise the question of what human rights legislation would apply. The news piece refers to a lawyer suggesting that Kwantlen’s decision amounts to a violation of “the Charter of Rights and Freedoms and B.C. Human Rights Code”.
Universities, particularly those in British Columbia, are likely familiar with how the Canadian human rights regime applies to public bodies and private bodies and where universities and other educational institutions fall among those categories. In addition to other potential issues that may be raised by the KSA, the question of whether the Canadian Charter of Rights and Freedoms applies to universities has been considered in several prominent decisions:
- In McKinney v. University of Guelph (CanLII), eight professors and a librarian applied for a declaration that the university’s policy of mandatory retirement at age 65 was a violation of the equal protection provision of the Charter. La Forest J. of the Supreme Court of Canada found that the Charter does not apply to the university’s decision and even if it did the policy was justified.
- In Harrison v. University of British Columbia (CanLII), there was a similar claim and a similar outcome. Former employees of UBC who were let go through a mandatory retirement policy at age 65 sought a declaration that the policy violated s. 15 of the Charter. Dickson C.J. of the Supreme Court of Canada applied the tests set up in McKinney and denied that the Charter applied to the university.
- In Maughan v. University of British Columbia (CanLII), which I discuss in a previous post, a graduate student alleged that she suffered discrimination at the hands of the university and tried to turn it into a Charter claim. The British Columbia Court of Appeal soundly rejected her argument, saying that UBC is not a government actor.
The rationale behind this position is that the Charter is structured to serve as a check on government power; it doesn’t apply to every institution, organization or business. Universities, by and large, fall outside the scope. Accordingly, La Forest wrote as follows in McKinney:
The government thus has no legal power to control the universities even if it wished to do so…
The fact is that the universities are autonomous, they have boards of governors, or a governing council, the majority of whose members are elected or appointed independent of government. They pursue their own goals within the legislated limitations of their incorporation…
The legal autonomy of the universities is fully buttressed by their traditional position in society. Any attempt by government to influence university decisions, especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously resisted by the universities on the basis that this could lead to breaches of academic freedom. In a word, these are not government decisions. Though the legislature may determine much of the environment in which universities operate, the reality is that they function as autonomous bodies within that environment. There may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government …
The human rights law that may apply is the Human Rights Code (UBC), which sets out the following at s. 8(1) (BCLaws):
(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.
It is always challenging to try to learn legal information from the media. Regardless what KSA decides to do in these circumstances, they would be wise to explore each possible law that may apply in terms of crafting a human rights complaint.
UVIC pro-life student group sues student society
May 10th
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
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.
Treatment of Catholic school teacher raises questions about the appropriate limits of autonomy for religious institutions
May 2nd
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.
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.
British Supreme Court Finds Admission Policy in Jewish Private School Illegal
Dec 21st
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
Dec 1st
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:
- 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.
- 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”.
- 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.
