Education
Education ........................................................................................................................................................ 1
Canada ............................................................................................................................................................ 1
University of British Columbia v. Berg (1993), 18 C.H.R.R. D/310 (S.C.C.) [Eng./Fr. 29 pp.]:
disabled student denied access to university services and facilities -- education facilities defined as
public services or facilities ..................................................................................................................... 1
Education
29. (1) Everyone has the right a.to a basic education, including adult basic education; and
b.to further education, which the state, through reasonable measures, must make progressively available
and accessible.
(2) Everyone has the right to receive education in the official language or languages of their choice in
public educational institutions where that education is reasonably practicable. In order to ensure the
effective access to, and implementation of, this right, the state must consider all reasonable educational
alternatives, including single medium institutions, taking into account a.equity;
b.practicability; and
c.the need to redress the results of past racially discriminatory laws and practices.
(3) Everyone has the right to establish and maintain, at their own expense, independent educational
institutions that a.do not discriminate on the basis of race;
b.are registered with the state; and
c.maintain standards that are not inferior to standards at comparable public educational institutions.
(4) Subsection (3) does not preclude state subsidies for independent educational institutions.
Also see ‘Equality’ and ‘Distribution of Powers’.
Canada
University of British Columbia v. Berg (1993), 18 C.H.R.R. D/310 (S.C.C.)
[Eng./Fr. 29 pp.]: disabled student denied access to university services and
facilities -- education facilities defined as public services or facilities
Human Rights Act Applies to University
Keywords: PUBLIC SERVICES AND FACILITIES -- access to university facilities and services denied -definition of public services and facilities -- DISABILITY -- student discriminated against on basis of
depression -- EDUCATION -- disabled student denied access to university services and facilities -education facilities defined as public services or facilities ---COURTS -- appeal court's authority to
interfere with findings of fact -- appeal court may consider reasons for decision under review – APPEALS
AND JUDICIAL REVIEW -- findings of fact not reviewable -- ADMINISTRATIVE TRIBUNALS -absence of privative clause ---- INTERPRETATION OF STATUTES -- legislative intent as an aid to
interpretation -- definition of "customarily available to the public", "public", and "customarily available" -HUMAN RIGHTS -- nature and purpose of human rights legislation -- survey of human rights legislation
Summary: The Supreme Court of Canada restores the decision of the B.C. Council of Human Rights and
rules that the University of British Columbia discriminated against a student, Janice Berg, because of her
mental disability when it refused her a rating sheet required for an application for a dietician's internship
program and a key to university facilities.
Janice Berg was a student with an above-average academic record in the Master's program at the
University of British Columbia's School of Family and Nutritional Sciences in 1979. She experienced
recurring depression and one day in 1981 she wrote "I am dead" on the mirror in the School's washroom.
Later the same day she was frightened by R.C.M.P. and security personnel in the hallway and attempted to
jump through a plate glass window.
When the School moved to new premises in 1982 Ms. Berg was denied a key to the building, although
graduate students were regularly issued keys so that they could use computer and research facilities after
hours. Ms. Berg was also denied a rating sheet required for an application for a hospital internship.
The B.C. Council of Human Rights found that Ms. Berg had been discriminated against after the incident
in 1981 and that the refusals to issue her a key and a rating sheet were due to her mental disability. The
Council found that Ms. Berg had been discriminated against with respect to a service customarily available
to the public, contrary to s. 3 of the B.C. Human Rights Act.
The University of British Columbia appealed this decision and the B.C. Supreme Court set it aside,
ruling that the key and the rating sheet could not be considered services which were customarily available
to the public. The B.C. Court of Appeal affirmed the decision of the B.C.S.C.
Chief Justice Lamer, writing for the majority, finds that the question of what constitutes a service
customarily available to the public is a general question of law with wide social implications. No deference
to the B.C. Council of Human Rights’ expertise is required when a general question of law is at issue,
though deference is due to the Council's factual findings regarding what is customarily available to the
students in the Faculty of Family and Nutritional Sciences.
The majority of the Court rejects the distinction made by the respondent University and the lower courts
between admission to the University's services and discrimination with respect to services to those already
admitted. The University of British Columbia argued, and the lower courts agreed, that s. 3 of the B.C.
Human Rights Act applied to admission to the University, but not to services provided to students once
admitted. The Supreme Court of Canada finds that since the Charter does not apply to universities, and no
other recourse is available, this interpretation would leave students once enroled in university with no
protection from discrimination. This would allow institutions to admit students without discrimination and
then deny them the accommodations, services and facilities they require to make their admission
meaningful.
The Court rejects the argument that services do not fall within the provisions of s. 3 of the Act unless
they are available to all members of the public. Focussing on a quantitative analysis is not satisfactory
when any subset of the public as a whole loses its identity as "the public" and consequently can be
discriminated against. No service is available to every member of the public and therefore this quantitative
analysis robs human rights protections of their impact. Rather, every service has its own public and once
that public has been defined by eligibility criteria, the B.C. Human Rights Act prohibits discrimination
within that public.
The Court finds that rather than focussing on a quantitative analysis or numerical approach to the
meaning of public, it is more fruitful to adopt a relational approach, analyzing the relationship between the
offerer of the service and the service user. The Court concludes in this case that the key and the rating sheet
were incidents of the public relationship between the School and its representatives and the student, Janice
Berg.
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The Court accepts the Council's findings of fact that keys to the facilities were customarily provided to
graduate students, that rating sheets were also customarily issued to students, and that at least one of the
reasons for Ms. Berg's being denied these services was her mental disability.
Additionally, the Court rules that where the service provider has discretion with respect to the granting or
withholding of a service, or where a personal evaluation is involved, the service provider is not insulated
from human rights scrutiny. Discretion must be exercised in a non-discriminatory way and personal
evaluations must also be non-discriminatory.
The Court rules that Ms. Berg was discriminated against with respect to a service customarily available
to the public because of a mental disability. The decision of the B.C. Council of Human Rights is restored
and costs against the University of British Columbia are awarded to Ms. Berg.
In a dissenting opinion, Major J. finds that the B.C. Human Rights Act does not apply to the internal
operation of a university regarding services not customarily available to the public. The discrimination
exercised by members of the University in refusing Ms. Berg a key and of professors refusing to fill out a
rating sheet are matters unique to the University and not thought of as customarily available to the public. If
a student is unfairly treated in respect of matters such as grades, hours of class, and length of terms, the
remedy lies with the University not with the B.C. Council of Human Rights. Major J. finds that the Council
had no jurisdiction to consider the issues complained of. He would dismiss the appeal.
Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.) [Eng./Fr. 38 pp.]
Board Finding of School District Liability for Actions of Teacher Upheld
Keywords: PUBLIC SERVICES AND FACILITIES -- EDUCATION -- RELIGION AND CREED -discrimination against students on the basis of religious belief -- poisoned atmosphere at public school -impact of teacher’s beliefs on students -- teacher’s right to freely express opinion on any subject -teacher’s beliefs and impact on students -- conflict between teacher’s expression of religious belief and
teacher’s religious rights -- school board condones discrimination -- school board is liable for teacher’s
conduct and has a right to discipline teacher for off-duty conduct -- HATE PROPAGANDA -- exposure to
hatred on the basis of religion --- ADMINISTRATIVE TRIBUNALS -- BOARDS OF INQUIRY /
TRIBUNALS -- COURTS -- standard of review of court over administrative tribunals -- privative clause -APPEALS AND JUDICIAL REVIEW -- findings of fact are patently unreasonable -- LIABILITY -employer liability for teacher -- REMEDIES -- leave without pay from employment -- employment
termination
CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 1 (reasonable limits) and
application of Oakes test -- s. 2(a) (freedom of conscience and religion) -- s. 2(b) (freedom of expression) -FREEDOM OF EXPRESSION -- freedom of speech and the right to freely express opinion on any subject
-- HUMAN RIGHTS -- nature and purpose of human rights legislation.
Summary: In a unanimous ruling the Supreme Court of Canada upholds the decision of a Board of
Inquiry which ruled that the Board of School Trustees, District No. 15 discriminated with respect to a
public service because it failed to take appropriate action against a teacher, Malcolm Ross, who made
repeated public attacks on Jewish people. David Attis, a Jewish parent, complained in 1988 that Malcolm
Ross, a teacher in School District No. 15, publicly made racist and discriminatory comments about Jewish
people during his off-duty time, and that this created a "poisoned environment" in the school district,
negatively affecting the Jewish children and other minority students. Mr. Ross’s writings and statements
communicating his anti-Semitic views included books, letters and interviews with local media. The
Board of Inquiry found that, despite mounting complaints about Mr. Ross’s activities between 1978 and
1987, the School Board reprimanded Mr. Ross ineffectively, and, by its almost indifferent response to the
complaints and by continuing his employment, it endorsed his out-of-school activities and writings. This
resulted in an atmosphere in the school district where anti-Jewish sentiments flourished, where students
engaged in anti-Semitic acts, and where Jewish students were subject to a "poisoned environment."
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The Board of Inquiry issued a two part order. Clause 1 of the order required the Department of Education
to take a number of steps to prevent discriminatory treatment in the schools. In clause 2 the Board of
Inquiry ordered the School Board to a) immediately place Malcolm Ross on a leave of absence without pay
for a period of eighteen months; b) appoint Mr. Ross to a non-teaching position if one came available for
which he was qualified during this period; c) terminate his employment at the end of eighteen months if he
had not been offered and accepted a non-teaching position; and d) terminate his employment with the
School Board immediately if at any time he published or wrote about a Jewish conspiracy or attacked
followers of the Jewish religion, or published, sold or distributed Web of Deceit, The Real Holocaust,
Spectre of Power, or Christianity vs. Judeo-Christianity (The Battle for Truth).
The New Brunswick Court of Queen's Bench quashed clause 1 of the Board of Inquiry's order on the
grounds that it was beyond the jurisdiction of the Board of Inquiry. The complaint was against the School
Board, and no investigation was made with respect to the practices of the Department of Education. It also
ruled that the Board of Inquiry had no jurisdiction to make the order contained in clause 2(d) which placed
restrictions on Malcolm Ross’s activities outside the classroom when he was no longer a classroom teacher.
The remaining parts of the order were upheld.
Malcolm Ross appealed this decision to the New Brunswick Court of Appeal. There the majority found
that the Board of Inquiry's order could not stand because it was the respondent's activities outside the
school that attracted the complaint. In these circumstances, it ruled that the remedy did not meet a specific
purpose so pressing and substantial as to override the Mr. Ross’s constitutional right of freedom of
expression.
This is an appeal by David Attis from that decision. The issues in this appeal are (1) whether a school
board, which employs a teacher who publicly makes invidiously discriminatory statements, discriminates
with respect to services it offers to the public pursuant to s. 5(1) of the New Brunswick Human Rights Act,
and (2) whether an order to rectify the discrimination which seeks to remove the teacher from his
teaching position, infringes upon the teacher's freedom of expression and freedom of religion guaranteed
under ss. 2(a) and 2(b) of the Charter.
The Court finds that two standards of review are in play in this case -- an administrative law standard and
a Charter standard. The administrative law standard applies to the Board's finding of discrimination and to
its order. The Charter standard applies to the Board's order only.
In the administrative law context, and in light of the wording of the privative clause in the New
Brunswick Human Rights Act, the Court rules that it is appropriate to exercise a degree of deference to the
findings of fact of a human rights Board of Inquiry. Also, the Court finds that the Board of Inquiry clearly
had the discretionary power to issue the order that it did. However, the Court finds that an administrative
tribunal exceeds its jurisdiction if it makes an order that infringes the Charter.
The Court upholds the Board of Inquiry's finding that although there was no evidence that students
engaging in anti-Jewish behaviour were directly influenced by Malcolm Ross’s teachings, it was reasonable
to anticipate that, given the high degree of publicity surrounding his publications and media interviews, his
off-duty conduct was a factor influencing discriminatory conduct by the students.
The Court finds that teachers are inextricably linked to the integrity of the school system. They occupy
positions of trust and confidence and exert considerable influence over their students as a result of their
positions. Where a "poisoned environment" within the school system is traceable to the off-duty conduct of
a teacher, that is likely to produce a loss of confidence in the teacher and in the system as a whole. A
reasonable inference concerning the effect of Mr. Ross’s conduct is sufficient in this case to support a
finding that his continued employment impaired the educational environment generally, by creating an
environment characterized by a lack of equality and tolerance.
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The Court also upholds the Board of Inquiry's conclusion that the School Board had a duty to maintain a
positive school environment for all persons served by it, and that it failed to maintain that positive
environment.
Regarding the order of the Board of Inquiry, the Court finds that the order infringed Malcolm Ross’s
rights to freedom of expression and freedom of religion. The
purpose of the order is to restrict the respondent's expression, including the expression of his religious
beliefs.
The Court considers whether the order can be saved by s. 1 of the Charter as a reasonable limit on these
rights by considering the educational context, the
employment context, and the context of anti-Semitism. The Court finds that the educational context here
is the education of young children who are less likely
to make an intellectual distinction between comments a teacher makes in the school and those the teacher
makes outside the school. Children are also more
likely to feel threatened and isolated by a teacher who makes comments that denigrate personal
characteristics of a group to which they belong. The children
have the right to be educated in a school system that is free from bias, prejudice and intolerance. It is this
right that must be balanced against the respondent's
right to make discriminatory statements.
Regarding the employment context, the Court finds that the state, as employer, has a duty to ensure that
the fulfilment of public functions is undertaken in a
manner that does not undermine public trust and confidence.
It also finds, considering the context of anti-Semitism, that Malcolm Ross must not be permitted to use
the Charter to roll back advances made by Jewish
persons to combat discrimination against them.
The Court concludes that the Board's order asserts a commitment to the eradication of discrimination in
the provision of educational services to the public, and
that this is a pressing and substantial objective which justifies overriding Mr. Ross’s rights to freedom of
expression and religion.
The Court also finds that there is a rational connection between Mr. Ross’s conduct and the harm -- the
poisoned educational environment -- when he was in a
teaching position. Clauses 2(a),(b) and (c) which remove Mr. Ross from his teaching position are
rationally connected to the objective of the order. However, the
Court rules that clause 2(d), which restricts Mr. Ross off-duty conduct when he is not in a teaching
position, does not meet the minimal impairment test; it
impairs the right to freedom of expression more than is necessary. The evidence does not support the
conclusion that the residual poisoned effect would last
indefinitely once Ross was placed in a non-teaching role. Clause 2(d) of the order is not justified under s.
1.
The appeal is allowed, and clauses 2(a), (b) and (c) of the Board of Inquiry's order are restored. Costs are
awarded to the appellant Attis.
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