E.T. v Hamilton-Wentworth District School Board: ONCA Continues to Debate Appropriate Role of Charter Values

The dialogue over the role that Charter values should play in administrative and judicial reasoning continues to expand and evolve. In one of my entries for TheCourt.ca last year, I assessed how the recent decision of the Ontario Court of Appeal (“ONCA”) in Gehl v Canada (Attorney General)2017 ONCA 319 [Gehl] fits into this larger debate. In November, the same judicial panel that decided Gehl—Justices Sharpe, Lauwers and Miller—released their ruling in the matter of E.T. v Hamilton-Wentworth District School Board, 2017 ONCA 893 [E.T.]. Like Gehl, E.T. concerns an administrative decision alleged to have interfered with rights guaranteed by the Charter of Rights and Freedoms [Charter]. Once again, as with Gehl, E.T. also sees the ONCA divided over the important question of when and how Charter values should be applied when reviewing an administrative decision.

Factual and Legal Background: E.T.’s Request for Religious Accommodation

The facts of the appeal are straightforward. The appellant, E.T., is a member of the Greek Orthodox Church whose children (at the time he filed his application) attended one of the elementary schools overseen by the Hamilton-Wentworth District School Board (the “Board”). As part of his religion, E.T. believed that he was obligated to protect his children from “false teachings” that are inconsistent with the tenets of his faith. More specifically, E.T. believed that he was obligated to shield his children from teachings about marriage and sexuality that conflict with Biblical and Greek Orthodox teachings (E.T., para 13).

To this end, E.T. submitted a standard form that he had been provided by a parental rights advocacy group to the Board, requesting that he be given advance notice whenever certain subjects were scheduled to be taught in his children’s classes, including values neutral education, occult principles and practices and instruction in sex education. Regarding this latter category, the form requested that E.T. be provided notice whenever his children would be exposed to “[d]iscussion or portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy or acceptable.” (E.T., para 14)

Several representatives of the Board subsequently met with E.T. over a period of two years to determine whether he and his children could receive the religious accommodation that he had requested. In the end, the Board concluded that E.T. could not be accommodated under the terms that he had proposed (E.T., para 15). Although they had indicated that E.T.’s children could be excused from human development and sexual health classes, representatives of the Board maintained that their commitment to “creating schools that are safe, respectful and supportive of all, where diversity is valued and everyone feels accepted” precluded them from granting E.T.’s request for religious accommodation (E.T., para 16).

In an affidavit filed at the time of E.T.’s application, the Board’s Equity Principal offered a more detailed explanation for why E.T.’s request had been denied. “The message to classmates if E.T.’s request was accepted,” the affidavit explained, “is not tolerance but rather that family structures or discussion of sexual orientation will require the withdrawal of a student from the classroom.” Accommodation of E.T., the Board thus concluded, would be inconsistent “with the Board’s legal obligations with respect to human rights and tolerance” (E.T., para 16). To the extent that E.T. was dissatisfied with the Board’s response, he was advised that he should consider homeschooling his children or enrolling them in a public Catholic school or private Christian school (E.T., para 17).

The original judge who heard the case dismissed E.T.’s application. While he accepted that E.T. had successfully made out an infringement of his freedom of religion under section 2(a) of the Charter, he concluded that the Board’s decision was reasonable under the framework adopted by the Supreme Court of Canada (“SCC”) in Doré v Barreau du Québec, 2012 SCC 12 [Doré] and Loyola High School v Québec (Attorney General), 2015 SCC 12 [Loyola] (E.T., para 20). Specifically, the application judge found that the Board had sufficiently taken into account E.T.’s claim to religious freedom and reasonably and proportionately balanced this against Charter values of inclusion and equality (E.T. v Hamilton-Wentworth District School Board, 2016 ONSC 7313, para 103).

Justice Sharpe Dismisses the Appeal on Evidentiary Grounds

In dismissing the appeal, Justice Sharpe highlighted a lack of “concrete evidence of interference with [E.T.’s] right to religious freedom,” something which he considered to be “a central and fatal shortcoming” in E.T.’s claim (E.T., para 24). Despite accepting the sincerity of E.T.’s religious belief that he had an obligation to protect his children from “false teachings,” Justice Sharpe found that the list of objectionable subjects he had provided the Board was “so broad and ill-defined that it would be impossible for the Board to determine in advance when a lesson or activity might result in exposure to a ‘false teaching’” (E.T., para 38). On this basis, Justice Sharpe concluded that E.T. had failed to make out the second branch of the religious freedom test established by the SCC in Syndicat Northcrest v Amselem, 2004 SCC 47 [Amselem], wherein claimants must establish that their beliefs have been interfered with in a manner that is more than trivial or insubstantial (E.T., para 26).

Because E.T.’s objections to the public-school curriculum were so broad, Justice Sharpe found that he had failed to prove “a single instance where his children were coerced to do something that was contrary to his or their religious beliefs or were denied the right to manifest or observe their religion as they wished” (E.T., para 27). Yet even if E.T. had established a Charter violation, Justice Sharpe concluded that the infringement would still have been a reasonable one under the Doré/Loyola framework. Although he did not explicitly rely on Charter values language in reaching this conclusion, Justice Sharpe’s reasons were nevertheless reinforced by the logic of Charter values.

Justice Sharpe began by restating the SCC finding from Amselem that the Charter’s protection of religious freedom “must be measured in relation to other rights and with a view to the underlying context in which the conflict arises” (E.T., para 36 citing Amselem, para 62). From this perspective, Justice Sharpe found that exempting students from class discussions relating to diversity, inclusion and acceptance “would run a serious risk of endorsing the non-acceptance of students of other family backgrounds, sexual orientations, gender expressions and gender identities” (E.T., para 37). To accept E.T.’s request for accommodation, Justice Sharpe concluded, would run counter to the Board’s “statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter” (E.T., para 40).

Justice Lauwers’ Questions the Applicability of Doré/Loyola to Line Decision-Makers

Like his colleague, Justice Lauwers (with Justice Miller concurring) dismissed the appeal on evidentiary grounds, finding that E.T. had not “proven substantial interference with his freedom of religion” (E.T., para 49). In contrast to Justice Sharpe, however, Justice Lauwers found that in the context of E.T.’s appeal that any analysis under the Doré/Loyola framework would be inappropriate. Specifically, Justice Lauwers expressed “significant” doubt as to “the [applicability] of this framework to line decision makers such as teachers, principals and supervisory officers” (E.T., para 50).

Unlike the application judge, Justice Lauwers concluded that it was not necessary to determine whether inclusion qualified as a Charter value under the Doré/Loyola framework. Indeed, to the extent that the application judge had relied on this sort of reasoning in his ruling, Justice Lauwers found that he had “erred in doing so” (E.T., para 102). In a firm rebuke, Justice Lauwers echoed many of the comments that he had made several months earlier in his concurring reasons with Justice Miller in Gehl:

The application judge’s decision brings into sharp relief the subjective nature of decisions invoking Charter values and the lack of transparency in the reasoning process leading to their identification. Invariably, the conception is used to identify a particular moral commitment that the sponsor asserts is not only desirable but should be given additional or decisive weight in legal reasoning, on the basis that it is entailed or implied by the Charter. (E.T., para 103)

Beyond this, Justice Lauwers expressed additional concern over the suitability of the Doré/Loyla framework when assessing the reasonableness of the discretionary actions of line decision-makers (i.e. non-adjudicative administrative actors). Doré, he emphasized, had been decided within the context of an adjudicative administrative ruling. In Loyola, however, Justice Abella had expanded the analysis to include non-adjudicated discretionary decisions. “The shift in doctrine from Doré to Loyola,” Justice Lauwers warns, “is not a small one” (E.T., para 109).

Within the context of E.T.’s appeal, Justice Lauwers found the application of the Doré/Loyola framework to be specifically misplaced. In his view, because line decision-makers such as school board employees (including teachers, principals and other supervisory officials) lack Charter expertise, their ability to balance infringed Charter rights against their statutory objectives is limited. In particular, Justice Lauwers cautioned that few line decision-makers will be able to undertake the “constitutional assessment” of deciding whether their statutory objectives qualify as pressing and substantial. “As I see it,” he concluded, “applying the Doré/Loyola approach to a line decision maker effectively imports a presumption that the statutory objective on which the decision rests is always ‘pressing and substantial’” (E.T., para 117).

More fundamentally, however, Justice Lauwers expressed open skepticism that line decision-makers such as teachers, principals and school board officials possess the necessary constitutional expertise for their decisions to attract a deferential standard of review. “When they are confronted with the claim that their decision is not sufficiently respectful of Charter rights,” he rhetorically asked, “will they understand how to reason from constitutional principles?” (E.T., para 122). Yet more disconcertingly, Justice Lauwers warned, none of the mechanisms developed by administrative law to promote impartiality and fairness currently apply to line decision-makers. The likely result, he concluded, is that the first impartial decision-maker that Charter claimants will encounter when challenging discretionary action “will be a court or other adjudicative tribunal” (E.T., paras 123-124).

Predicting the Future of the Charter Values Debate

In my analysis of Gehl v Canada, I predicted that Justice Lauwers and Miller’s concurring decision was unlikely to be the end of the debate over Charter values. The same prediction could just as easily be made of E.T. v Hamilton-Wentworth District School Board. Perhaps even more than in Gehl, Justice Lauwers’ reasons in E.T. take aim at many of the conceptual uncertainties that have arisen in the wake of the SCC’s decisions in Doré and Loyola. As legal scholars and commentators continue to debate the efficacy of the framework established in those cases, Justice Lauwers has—quite validly—questioned whether Charter values are a suitable lens through which to assess the actions of line decision-makers. In particular, his reasons raise legitimate concerns over the extent to which the subjective conceptions of the Charter held by line decision-makers are being afforded undue deference by the Doré/Loyola framework. At this point, it seems inevitable that the SCC will eventually be forced to respond to Justice Lauwer’s pointed critiques.

Kristopher Kinsinger

Kristopher is a co-Managing Editor of TheCourt.ca and a 3L student at Osgoode Hall Law School. His research and writing has focused on constitutional and administrative law, with a special focus on issues related to religious freedom and religious equality. Outside of his contributions to TheCourt.ca, his writings have been featured in the the Vancouver Sun, the Ottawa Citizen, the Montreal Gazette, the National Post, and the Lawyer’s Daily. He will be articling with Miller Thomson LLP in Waterloo beginning in 2019.

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