School Board Update
Court of Appeal Reiterates that a Sincerely Held Belief is Insufficient to Found a Violation of the Charter
Date: November 29, 2017
In an important decision which weighs competing rights, the Ontario Court of Appeal dismissed an appeal on the basis that the appellant had failed to provide any evidence that the inclusion of what he referred to as “false teachings” in the school curriculum interfered with or violated his right to religious freedom or that of his children. Learn more in this School Board Update.
In E.T. v. Hamilton-Wentworth District School Board, the Ontario Court of Appeal dismissed the appeal brought by a father for an order that the Hamilton-Wentworth Distinct School Board (School Board) provide him with advance notice of the specific curriculum being taught to his children for the purpose of allowing him to remove his children from instruction that conflicts with his family’s religious beliefs. The Court of Appeal dismissed the appeal on the basis that there was no concrete evidence of interference with the right of either the father or his children to religious freedom. This finding was central and fatal to the father’s appeal.
By way of the background, the appeal arose as the result of the School Board’s alleged infringement of the right of the father and his children to religious freedom. They identify as members of the Greek Orthodox Church and the father testified that one of the tenets of the religion is that he has an obligation to protect his children from false teachings. This would include protecting them from exposure to various aspects of the public school curriculum which constitute false teachings, such as Ministry of Education directives to promote diversity, equity and inclusivity.
In order to prevent such exposure, the father approached the School Board around September 2010, shortly after the School Board introduced its own Equity Policy, and made a written request for accommodation. He asked that whenever concepts or values are presented that may conflict with the values of the home, the teacher contact him prior to instruction so that he may choose whether to include his children in the instruction. The topics for which he requested notification included:
- values neutral education, including instruction on moral relativism and principles of situational ethics;
- discussion of occultic principles and practices and environmental worship;
- instructions with respect to sex education, including teachings about birth-control and abortion;
- discussions or portrayals of sexual conduct that the father determined to be unnatural or unhealthy;
- discussions or portrayals of homosexual or bisexual conduct and relationships and/or transgender individuals as natural or healthy; and
- discussions encouraging the acceptance of infanticide or euthanasia.
After receipt of the written request, the School Board denied the requested accommodation on the basis that the Education Act allows the Ministry of Education to prescribe courses of study that shall be taught and that teachers must follow the mandated curriculum and policies. The School Board then held an extended meeting with the father in order to better understand his position. No resolution was reached at the meeting and thereafter the father brought an application for a declaration that he be provided with the requested accommodation on the basis that the School Board had violated his rights under the Canadian Charter of Rights and Freedoms (Charter) and the Ontario Human Rights Code. That application was dismissed by the Superior Court of Justice, as we previously reported in our School Board Update of March 28, 2017, in part on the basis that the decision of the School Board was reasonable.
The father appealed the finding of the Superior Court of Justice that the School Board’s refusal to provide the requested accommodation was reasonable.
In dismissing the appeal, the Court of Appeal was not unanimous with respect to whether the reasonableness analysis applied by the lower court was appropriate in the circumstance. However, the Court of Appeal was unanimous in its finding that although the father has a sincerely held religious belief that he has an obligation to protect his children from exposure to false teachings, a sincere belief alone is insufficient to establish interference with freedom of religion. Rather, the father must also have proved that the School Board’s decision burdened or interfered with his sincerely held beliefs in more than a trivial or insubstantial way.
In this respect, the Court of Appeal found that the father’s request for accommodation rested solely upon his general and pervasive dissatisfaction with the nature of the School Board’s curriculum with respect to matters of equity, non-discrimination and inclusiveness. In his testimony, the father was not able to prove a single instance where his children were coerced to do something that was contrary to his or their religious beliefs or where they were denied the right to manifest or observe their religion as they wished. Nor was the father able to provide any evidence that his right to inculcate his children with his own religious views has been curtailed or infringed.
The Court of Appeal therefore dismissed the appeal on the basis that there was no evidence that the school curriculum interfered with or violated the father or his children’s religious freedom. It reiterated that exposure to ideas that may challenge, or even contradict, a parent’s sincerely-held religious beliefs in the context of attendance at a non-denominational public school does not amount to an infringement of religious freedom. As such, a parent cannot, by virtue of their own religious beliefs, insist that a non-denominational public school board restructure its inclusive and integrated program in a manner that ensures that their own children are not exposed to any views that they do not accept.
Similarly, a school board cannot be expected to ensure that discussions of values, such as equality, inclusivity and acceptance, be discussed as matters of fact rather than “value judgment.” Indeed, in the opinion of the Court of Appeal, “Equality, inclusivity and acceptance of difference are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner”.
If you would like to discuss the implications of this case for your district school board, please contact Amanda Lawrence-Patel at 416.864.7030 or your regular Hicks Morley lawyer.
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