Recent Cases of Note

Welcome to our latest edition of the School Board Update.

In this update we discuss two significant decisions. The first is an arbitration decision where the grievor alleged the Ottawa Catholic School Board failed to accommodate her and discriminated against her on the basis of her age by requiring her to teach on site rather than remotely.

In the second decision, the Ontario Divisional Court dismissed an application for judicial review of an administrative decision denying the applicant’s request to speak at the Bluewater District School Board meeting.

We hope you find these cases of interest.

Arbitrator Comments on Duty to Accommodate Virtual Learning

In Ottawa Catholic School Board v Ontario Public Service Employees Union, Local 423, 2023 CanLII 33027 (ON LA) Arbitrator Parmar recently issued a decision concerning the Ottawa Catholic School Board’s (the Board) requirement to accommodate a request to teach virtually after the Board had returned to in-person instruction.

Here, the grievor was an English-as-a-second-language instructor and prior to the COVID-19 pandemic, she taught 23 hours per week in person.

At the outset of the COVID-19 pandemic in March 2020, the Board transitioned to virtual learning before resuming in-person learning in September 2020. The Board implemented several workplace controls including COVID-19 guidelines and protocols.

On August 24, 2020, the grievor was assigned to teach one morning class and one evening class. The grievor was expected to teach the morning class in person for the 2020–2021 school year, subject to any changes brought about from the COVID-19 pandemic.

On September 3, 2020, the grievor sought an accommodation to teach her morning class virtually. The reasons for her accommodation were her age (70 years old) and because one of her family members was ill.

The Board requested additional information from the grievor’s doctor by way of a questionnaire. A cover letter accompanying the questionnaire referenced a number of measures the Board was implementing to limit the spread of COVID-19. The grievor’s doctor advised that the grievor had an “age related risk to COVID-19” but that she was medically capable of leaving home and being present in the general community. In response to a specific question, the grievor’s doctor advised that the grievor could attend work with social distancing guidelines but requested that consideration be given to reduce her risk of exposure.

The Board modified the grievor’s morning assignment, allowing her to teach virtually from a classroom at her home school location.

The grievor filed a grievance, alleging that the Board had failed to accommodate her and had discriminated against her on the basis of age. The grievance did not allege discrimination on the basis of disability.

The Ontario Public Service Employees Union’s (the Union) position at arbitration was that the assignment of in-person teaching exposed the grievor to COVID-19 and she was at greater risk of illness due to her age. The Union argued that there was a link between the grievor’s age and the adverse impact of increased risk of complication from contracting COVID-19. The Union asserted that a prima facie case of discrimination was established.

The Board argued that its assignment for the grievor was a voluntary act that went beyond its legal obligations. The Board argued that the grievor’s assignment to teach virtually from her home school had no adverse impact on the grievor. Further, this assignment was given in response to the doctor’s suggestion that “consideration” be given to reduce the grievor’s risk of exposure.

Arbitrator Parmar dismissed the grievance.

Arbitrator Parmar relied on the medical documentation to hold that, with social distancing guidelines in place, the grievor could be present at the workplace and in the general community. The medical documentation confirmed that the grievor could attend work and suggested only that “consideration” be given to reducing the grievor’s risk of exposure. This request for “consideration” was not sufficient to establish an Ontario Human Rights Code-related need to not be present at the workplace.

Arbitrator Parmar concluded that the grievor did not have any restrictions in relation to her work assignment and did not suffer a disadvantage regarding her employment. The Union did not establish a prima facie case of discrimination and, therefore, the legal duty to accommodate was not triggered.

Takeaways

This decision offers helpful guidance as to the types of inquiries school boards ought to make when determining whether an employee requires an accommodation to work from home. It is also a good reminder that employers should not presume characteristics of a group but must engage in an individualized assessment. A school board is not required to accommodate an employee’s preference to work from home where there is no medical evidence to support that preference.

Divisional Court Dismisses Application for Judicial Review Relating to Right to Freedom of Expression at School Board Meeting

The Ontario Divisional Court has dismissed an application for judicial review of an administrative decision denying the applicant’s request to speak at the Bluewater District School Board (the Board) meeting. In Gillies v Bluewater District School Board 2023 ONSC 1625 (CanLII), the applicant sought to quash the decision and sought a declaration that the decision unjustifiably violated her freedom of expression under the Canadian Charter of Rights and Freedoms (the Charter).

The Board’s Decision

The applicant made a request to make an oral presentation related to the flying of the rainbow pride flag at all Ontario schools in June 2019. The applicant provided a copy of the presentation to the Board and had made a similar presentation the year before. The presentation spoke of the “Trans movement” and its “agenda,” and stated that “transgender children do not exist.” The presentation also claimed that flying the rainbow pride flag would support “harmful transgender ideology.” The request to speak was denied and the applicant was offered the chance to provide her presentation to trustees by email.

The Board’s decision to deny the applicant’s request to speak at the meeting was based on the content of the proposed oral presentation running contrary to the Board’s duties and responsibilities, including under the Education Act, the Ontario Human Rights Code, and the by-laws and policies of the Board itself.

The applicant brought a judicial review application to court. She challenged the Board’s decision on two grounds: she argued that the Board’s reasons were insufficient to provide for meaningful review of the decision and she argued that the Board failed to properly balance her right to expression against the Board’s objectives and policies.

The Court’s Decision

The Divisional Court dismissed the applicant’s judicial review application.

The Court held that the applicant’s claim that the flying of a rainbow pride flag was discriminatory “ha[d] virtually nothing to do with whether it is discriminatory to other groups” and that the presentation was an attack on the movement for transgender rights. The Court noted that the Board offered the applicant the opportunity to provide her presentation by email, and that the applicant had previously been afforded the opportunity to make a similar presentation one year earlier.

The Court held that there was no difficulty in understanding the reasoning process that led to the Board’s decision and that “it is clear that to permit the applicant’s proposed presentation to be publicly aired at a Board meeting would run contrary to the laws, by-laws and policies regarding inclusiveness that bind it, and that permission was being denied for that reason.”

With respect to balancing her freedom of expression against the Board’s objectives and policies, the Court agreed with the Board that the Board’s decision reflected a proportionate balance, especially considering the Board’s offer to provide the trustees with an emailed copy of the applicant’s presentation. The minimal impairment of expression reflected in the denial of an oral presentation did not outweigh the Board’s duties to promote an inclusive school climate for pupils of any sex, sexual orientation, gender identity and gender expression.

Takeaways

As we approach Pride Month, many school boards are facing decisions about their obligations with respect to pride flags. The news is also full of reports relating to contentious school board meetings. These issues will often require the balancing of rights and interests and, as highlighted by this decision, will involve important legal and practical considerations. These decisions are best made with legal advice.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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