Ross v. New Brunswick School District No. 15

Ross v. New Brunswick School District No. 15
Collection
Supreme Court Judgments
Date
1996-04-03
Report
[1996] 1 SCR 825
Case number
24002
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
New Brunswick
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 24002
Decision Content
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825
David Attis Appellant
v.
The Board of School Trustees, District No. 15 Respondent
and
The Human Rights Commission of New Brunswick,
Malcolm Ross, the Department of Education of
New Brunswick, the New Brunswick Teachers'
Federation, and the Canadian Jewish Congress Respondents
and
Brian Bruce, Brian Bruce Consultants Ltd.,
the Human Rights Board of Inquiry, and the
Minister of Labour of New Brunswick Respondents
and between
The Human Rights Commission of New Brunswick Appellant
v.
The Board of School Trustees, District No. 15 Respondent
and
David Attis Respondent
and
Malcolm Ross, the Department of Education of
New Brunswick, the New Brunswick Teachers'
Federation, and the Canadian Jewish Congress Respondents
and
Brian Bruce, Brian Bruce Consultants Ltd.,
the Human Rights Board of Inquiry, and the
Minister of Labour of New Brunswick Respondents
and between
The Canadian Jewish Congress Appellant
v.
The Board of School Trustees, District No. 15 Respondent
and
Malcolm Ross Respondent
and
David Attis Respondent
and
The Human Rights Commission of New Brunswick,
the Department of Education of New Brunswick,
and the New Brunswick Teachers' Federation Respondents
and
Brian Bruce, Brian Bruce Consultants Ltd.,
the Human Rights Board of Inquiry, and
the Minister of Labour of New Brunswick Respondents
and
The Attorney General of British Columbia,
the League for Human Rights of B'Nai Brith Canada,
the Canadian Civil Liberties Association, and
the Canadian Association of Statutory Human
Rights Agencies Interveners
Indexed as: Ross v. New Brunswick School District No. 15
File No.: 24002.
1995: October 31; 1996: April 3.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for new brunswick
Civil rights ‑‑ Discrimination ‑‑ Services to the public ‑‑ Teacher publicly making discriminatory statements in his off‑duty time ‑‑ Whether school board which employs teacher discriminating with respect to services it offers to public ‑‑ Human Rights Act, R.S.N.B. 1973, c. H‑11, s. 5(1).
Judicial review ‑‑ Standard of review ‑‑ Human rights tribunal ‑‑ Issues raised involving constitutional and administrative law components ‑‑ Different standards of review applicable ‑‑ Relationship between administrative law standard of review and constitutional standard of review under Canadian Charter of Rights and Freedoms .
Administrative law ‑‑ Human rights tribunal ‑‑ Jurisdiction ‑‑ Teacher publicly making discriminatory statements in his off‑duty time ‑‑ Human rights board of inquiry making finding of discrimination against school board which employs teacher ‑‑ School board ordered to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti‑Semitic materials or sold his previous publications ‑‑ Whether Board's finding of discrimination and order beyond its jurisdiction ‑‑ Human Rights Act, R.S.N.B. 1973, c. H‑11, ss. 20(1), (6.2), 21(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Teacher publicly making discriminatory statements in his off‑duty time ‑‑ Human rights board of inquiry ordering school board to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti‑Semitic materials or sold his previous publications ‑‑ Whether order infringes on teacher's freedom of expression ‑‑ If so, whether infringement justified ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b).
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of religion ‑‑ Teacher publicly making discriminatory statements in his off‑duty time ‑‑ Human rights board of inquiry ordering school board to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti‑Semitic materials or sold his previous publications ‑‑ Whether order infringes on teacher's freedom of religion ‑‑ If so, whether infringement justified ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a).
For several years, R, a teacher, publicly made racist and discriminatory comments against Jews during his off-duty time. R's writings and statements communicating his anti‑Semitic views include four books or pamphlets, letters to a local newspaper, and a local television interview. A Jewish parent filed a complaint with the New Brunswick Human Rights Commission, alleging that the School Board, which employed R as a teacher, violated s. 5(1) of the Human Rights Act by discriminating against him and his children in the provision of accommodation, services or facilities on the basis of religion and ancestry. The Board of Inquiry (the "Board") found that R's off‑duty comments denigrated the faith and belief of Jews. The Board further found that the School Board was in breach of s. 5(1), concluding that it discriminated by failing to discipline R meaningfully in that, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out‑of‑school activities and writings. The Board directed the School Board to comply with the following, in clause 2: (a) place R on a leave of absence without pay for a period of 18 months; (b) appoint him to a non‑teaching position, if one became available during that period; (c) terminate his employment at the end of that period if, in the interim, he had not been offered and accepted a non‑teaching position; and (d) terminate his employment with the School Board immediately if he published or wrote anti‑Semitic materials or sold his previous publications any time during the leave of absence period or at any time during his employment in a non-teaching position. The Court of Queen's Bench allowed R's application for judicial review in part, ordering that clause 2(d) of the order be quashed on the ground that it was in excess of jurisdiction. The court also concluded that paragraph 2 of the order violated ss. 2 (a) and 2 (b) of the Canadian Charter of Rights and Freedoms but that, with the exception of clause 2 (d), it could be saved by s. 1 of the Charter . The Court of Appeal dismissed the cross-appeals with respect to clause 2 (d) and allowed R's appeal, holding that clauses 2(a), (b) and (c) of the order infringed R's freedom of expression and freedom of religion and could not be justified under s. 1 .
Held: The appeal should be allowed and clauses 2(a), (b) and (c) of the order restored.
(1) Standards of Review
This appeal raises two general issues in relation to the standard of judicial review. The first relates to the administrative law issue of the standard of deference to be applied to the Board's finding of discrimination and its remedial order. The second relates to the standard of constitutional review to be applied to the Board's order. With respect to the administrative law issue, the superior expertise of a human rights tribunal is confined to fact‑finding and adjudication in a human rights context, and the standard of review on the basis of reasonableness is applicable to these matters. For general questions of law, a standard of correctness is appropriate. In the process of performing its adjudicative function, a human rights tribunal applies general legal reasoning and statutory interpretation, matters which are ultimately within the province of the judiciary. Human rights tribunals, however, have relative fact-finding expertise and should be accorded deference by the courts in this function. This may be reinforced in this case by s. 21(1) of the Act which may import some privative effect. This fact‑finding expertise of human rights tribunals should not be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. Here, the Court must decide whether the Board's finding of discrimination was beyond its jurisdiction. The Board's authority to determine the issue of discrimination is found in s. 20(1) of the Act. Since a finding of discrimination is impregnated with facts, and given the complexity of the evidentiary inferences made on the basis of these facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board's superior expertise in fact‑finding ‑‑ a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. As for the order, the Board's discretionary power set forth in s. 20(6.2) of the Act is in such broad terms that the order cannot be said to fall outside its jurisdiction. Here too the tribunal is entitled to the same deference in fact finding.
This case also involves a constitutional challenge to the Board's order. An administrative tribunal acting pursuant to its delegated powers exceeds its jurisdiction if it makes an order that infringes the Charter . The Charter standard and the administrative law standard, however, must not be conflated into one. Where the issues involved are untouched by the Charter , the appropriate administrative law standard is properly applied as the standard of review; but when, as in this case, the values invoked are Charter values, it is necessary to subject the decision to a s. 1 analysis. In such a case, there is no need for an administrative law review of the values that have been dealt with pursuant to Charter examination under s. 1 . If the decision is found to be constitutional, it is difficult to see how it could be patently unreasonable. A review of these same values on an administrative law standard should not impose a more onerous standard upon government than under the Charter review. Conversely, if the decision is unconstitutional, then its acceptability according to an administrative law standard is no longer relevant, as the decision is invalid and in excess of the Board's jurisdiction.
(2) Discrimination
The Board was correct in finding that R's continued employment as a teacher constituted discrimination under s. 5(1) of the Act, with respect to educational services available to the public. On the basis of the factual evidence disclosing the substance of R's writings and statements, and the notoriety of his anti‑Semitic comments in the community and beyond, the Board properly concluded that R's off‑duty comments undermined his ability to fulfil his teaching position. The evidence establishes a "poisoned" educational environment characterized by a lack of equality and tolerance. Although there is no direct evidence establishing an impact upon the school district caused by R's off‑duty conduct, a reasonable inference is sufficient in this case to support a finding that R's continued employment impaired the educational environment generally in creating the "poisoned" environment. R's off‑duty conduct impacted upon the educational environment in which he taught. Public school teachers assume a position of influence and trust over their students and must be seen to be impartial and tolerant. By their conduct, teachers, as "medium" of the educational message (the values, beliefs and knowledge sought to be transmitted by the school system), must be perceived as upholding that message. A teacher's conduct is evaluated on the basis of his or her position, rather than whether the conduct occurs within or outside the classroom. A school board has a duty to maintain a positive school environment for all persons served by it and it must be ever vigilant of anything that might interfere with this duty. It is not sufficient for a school board to take a passive role. Here, the Board found that the School Board failed to maintain a positive environment and concluded that the School Board had discriminated in its failure to take a proactive approach to the controversy surrounding R, thus suggesting the acceptance of R's views and of a discriminatory learning environment. There is no error in the Board's finding of discrimination against the School Board.
(3) Sections 2 (a) and 2 (b) of the Charter
The Board's order infringes R's freedom of expression. R's writings and statements clearly convey meaning and are protected by s. 2 (b) of the Charter . The truth or popularity of their contents is not relevant to this determination. The order is intended to remedy the discrimination with respect to services available to the public, by preventing R from publicly espousing his views while he is employed as a public school teacher. On its face, its purpose and effect are to restrict R's expression. The order therefore violates s. 2 (b) of the Charter . The order also infringes R's freedom of religion. This freedom ensures that every individual must be free to hold and to manifest without state interference those beliefs and opinions dictated by one's conscience. Assuming the sincerity of the beliefs and opinions, it is not open to the courts to question their validity. Both ss. 2(a) and 2(b) must be given a broad interpretation, generally leaving competing rights to be reconciled under the s. 1 analysis. In certain cases this can be done in a relatively peremptory manner, but in this case, where R's claim is to a serious infringement of his rights in circumstances requiring a detailed contextual analysis, the detailed s. 1 analytical approach provides a more practical and comprehensive mechanism to assess competing interests.
(4) Section 1 of the Charter
The Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. This involves a close attention to context. Here, the educational context must be considered when balancing R's freedom to make discriminatory statements against the right of the children in the School Board to be educated in a school system that is free from bias, prejudice and intolerance; relevant to this particular context is the vulnerability of young children to messages conveyed by their teachers. The employment context is also relevant to the extent 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. Teachers are also employees of a school board and a teacher's freedoms must be balanced against the school board's right to operate according to its own mandate. The anti‑Semitism context is relevant as well because the Board's order was made to remedy the discrimination within the public school system that targeted Jews. In its order, the Board balanced R's freedoms against the ability of the School Board to provide a discrimination‑free environment and against the interests of Jewish students; it may therefore be entitled to greater deference. An attenuated level of s. 1 justification is appropriate in this case in light of the nature of the rights allegedly infringed by the order. The expression sought to be protected is at best tenuously connected to the core values of freedom of expression. R's religious belief, which denigrates and defames the religious beliefs of others, erodes the very basis of the guarantee in s. 2 (a) of the Charter . R's religious views serve to deny Jews respect for dignity and equality.
The Board's order aims at remedying the discrimination found to have poisoned the educational environment in the School Board. This objective is clearly of sufficient importance to warrant overriding a constitutional freedom. There is also a rational connection between the order and its objective. While the evidence did not establish a direct link between the poisoned educational environment and R's anti‑Semitic views, it is sufficient that the Board found it "reasonable to anticipate" that there was a causal relationship between R's conduct and the harm. It is possible to "reasonably anticipate" the causal relationship in this case because of the significant influence teachers exert on their students and the stature associated with the role of a teacher. R's removal from his teaching position was thus necessary to ensure that no influence of this kind is exerted by him upon his students and to ensure that the educational services are discrimination‑free. Accordingly, clauses 2(a), (b) and (c) of the order, which deal with R's removal from his teaching position, are rationally connected to the order's objective. They were also carefully tailored to accomplish this objective and minimally impair R's constitutional freedoms. The deleterious effects of these clauses upon R's freedoms are limited to the extent necessary to the attainment of their purpose. R is free to exercise his fundamental freedoms in a manner unrestricted by this order, upon leaving his teaching position, and he is not prevented from holding a position within the School Board if a non‑teaching position becomes available. The objectives of preventing and remedying the discrimination in the provision of educational services to the public outweigh any negative effects on R produced by these clauses. Clauses 2(a), (b) and (c) of the order are justified under s. 1 and were properly made within the Board's jurisdiction.
Clause 2 (d), however, fails the minimal impairment branch of the s. 1 analysis. It may be that R's continued presence in the School Board would produce a residual effect even after he was removed from a teaching position, which may be what the clause sought to address. However, the evidence does not support the conclusion that the residual poisoned effect would remain indefinitely. For that reason, clause 2 (d), which imposes a permanent ban, does not meet the minimal impairment test. Clause 2 (d) should be severed from the remainder of the order on the basis that it does not constitute a justifiable infringement of the Charter and is therefore in excess of the Board's jurisdiction.
Cases Cited
Applied: Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; R. v. Oakes, [1986] 1 S.C.R. 103; referred to: R. v. Zundel, [1992] 2 S.C.R. 731; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Re Cromer and British Columbia Teachers' Federation (1986), 29 D.L.R. (4th) 641; Abbotsford School District 34 Board of School Trustees v. Shewan (1987), 21 B.C.L.R. (2d) 93; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Young v. Young, [1993] 4 S.C.R. 3; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Butler, [1992] 1 S.C.R. 452.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), (b), 15 .
Human Rights Act, R.S.N.B. 1973, c. H‑11, ss. 5(1) [rep. & sub. 1985, c. 30, s. 7; am. 1992, c. 30, s. 5(a)], 20(1) [rep. & sub. 1985, c. 30, s. 13(a); am. 1987, c. 6, s. 41], 20(4.1)(d) [ad. 1985, c. 30, s. 13(d)], 20(6.2) [idem, s. 13(g)], 21(1) [rep. & sub. idem, s. 14].
Authors Cited
Reyes, Allison. "Freedom of Expression and Public School Teachers" (1995), 4 Dal. J. Leg. Stud. 35.
APPEAL from a judgment of the New Brunswick Court of Appeal (1993), 142 N.B.R. (2d) 1, 364 A.P.R. 1, 110 D.L.R. (4th) 241, 19 C.H.R.R. D/173, allowing an appeal and dismissing cross-appeals from a judgment of Creaghan J. (1991), 121 N.B.R. (2d) 361, 304 A.P.R. 361, 86 D.L.R. (4th) 749, 16 C.H.R.R. D/250, which allowed in part an application for judicial review of a decision of a human rights board of inquiry (1991), 121 N.B.R. (2d) 1, 304 A.P.R. 1, 15 C.H.R.R. D/339. Appeal allowed.
Neil Finkelstein, George Vegh, Joseph Weir and Janice Spencer, for the appellant Attis.
Thomas S. Kuttner, Charles Ferris and Irving Cotler, for the appellant the Human Rights Commission of New Brunswick.
Joel Richler and Keith Landy, for the appellant the Canadian Jewish Congress.
Douglas H. Christie, for the respondent Ross.
Frank A. Falzon, for the intervener the Attorney General of British Columbia.
David Matas, Marvin Kurz and Jacquie Chic, for the intervener the League for Human Rights of B'Nai Brith Canada.
Edward L. Greenspan, Q.C., for the intervener the Canadian Civil Liberties Association.
Written submissions only by Joseph J. Arvay, Q.C., for the intervener the Canadian Association of Statutory Human Rights Agencies.
The judgment of the Court was delivered by
1 La Forest J. -- This appeal concerns the obligation imposed upon a public school board pursuant to provincial human rights legislation to provide discrimination-free educational services. It further involves the fundamental freedom of an individual teacher to publicly express his views and to exercise his religious beliefs during his off-duty time. The main issues raised by this appeal are 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, R.S.N.B. 1973, c. H-11, and 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 Canadian Charter of Rights and Freedoms .
I. Facts
2 The factual context within which these issues arise is as follows. On April 21, 1988, the appellant Attis filed a complaint with the Human Rights Commission of New Brunswick, alleging that the Board of School Trustees, District No. 15, violated s. 5 of the Human Rights Act by discriminating against him and his children in the provision of accommodation, services or facilities on the basis of religion and ancestry. The appellant Attis alleged that the School Board, by failing to take appropriate action against the respondent Ross, a teacher working for the School Board who publicly made racist, discriminatory and bigoted statements, condoned his anti-Jewish views and breached s. 5 of the Act by discriminating against Jewish and other minority students within the educational system served by the School Board.
3 On September 1, 1988, a human rights board of inquiry was established to investigate the complaint. In the complaint, the appellant Attis, a Moncton resident, described himself as a Jew. He alleged that the discriminatory conduct by the School Board occurred from March 29, 1977 to April 21, 1988, and arose out of the actions of the respondent Ross, a teacher at Magnetic Hill School. The latter made racist and discriminatory statements in published writings and in appearances on public television. In his published writings, which consist of four books or pamphlets published from 1978 to 1989, and three letters to New Brunswick newspapers, Ross (whom I shall hereafter refer to simply as the respondent) argued that Christian civilization was being undermined and destroyed by an international Jewish conspiracy.
4 At the time of the hearing before the Board of Inquiry, the respondent did not have a homeroom class, but was a modified resource teacher. He had been employed at the school since September 1976, and before that as a teacher at the Birchmount School. Concerns about the respondent's writings had been expressed publicly since 1978, when the Chairman of the Human Rights Commission had sent a letter to the School Board requesting that his classroom performance be supervised. By 1987, the School Board's response to the controversy had become a public issue and the Department of Education of New Brunswick became involved.
5 In 1988, the School Board instituted disciplinary action against the respondent. On March 16, 1988, he was reprimanded and warned that continued public discussion of his views could lead to further disciplinary action, including dismissal. He was also informed that the warning was applicable to his out-of-school activities. The reprimand remained in force until September 20, 1989. On November 21, 1989, the respondent made the television appearance previously mentioned and was again reprimanded by the School Board on November 30, 1989.
6 The Board of Inquiry found there was no evidence of any direct classroom activity by the respondent on which to base a complaint under s. 5 of the Human Rights Act. However, it also found that his off-duty comments denigrated the faith and belief of Jews. It concluded that his actions violated s. 5(1) of the Act and that there was no reasonable excuse to justify the discriminatory effect of those actions. It further found that the School Board was liable for any breaches of s. 5 of the Act by its teachers and, as such, the School Board was also in breach of s. 5 of the Act. The Board concluded that the School Board discriminated by failing to discipline the respondent meaningfully in that, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings. This, it held, resulted in an atmosphere where anti-Jewish sentiments flourished and where Jewish students were subject to a "poisoned environment" within the School District "which has greatly interfered with the educational services provided" to the appellant Attis and his children: (1991), 121 N.B.R. (2d) 1, 304 A.P.R. 1, 15 C.H.R.R. D/339 (hereinafter cited to N.B.R.).
7 The Board of Inquiry made an order (at pp. 90-90B) dealing with the matter, which gives rise to the issues dealt with in this appeal. Paragraph (1) of the order requiring the Department of Education to take a number of steps aimed at encouraging policies for preventing discriminatory treatment was held by the judge on judicial review to be outside the jurisdiction of the Commission, an issue not taken up on appeal. Paragraph (2) of the order, however, is central to this appeal, and I therefore set it forth at length:
(2) That the School Board:
(a) immediately place Malcolm Ross on a leave of absence without pay for a period of eighteen months;
(b) appoint Malcolm Ross to a non-teaching position if, within the period of time that Malcolm Ross is on leave of absence without pay, a non-teaching position becomes available in School District 15 for which Malcolm Ross is qualified. The position shall be offered to him on terms and at a salary consistent with the position. At such time as Malcolm Ross accepts employment in a non-teaching position his leave of absence without pay shall end.
(c) terminate Malcolm Ross' employment at the end of the eighteen month leave of absence without pay if, in the interim, he has not been offered and accepted a non-teaching position.
(d) terminate Malcolm Ross' employment with the School Board immediately if, at any time during the eighteen month leave of absence or if at any time during his employment in a non-teaching position, he:
(i) publishes or writes for the purpose of publication, anything that mentions a Jewish or Zionist conspiracy, or attacks followers of the Jewish religion, or
(ii) publishes, sells or distributes any of the following publications, directly or indirectly:
‑ Web of Deceit
‑ The Real Holocaust (The Attack on Unborn Children and Life Itself)
- Spectre of Power
- Christianity vs. Judeo-Christianity (The Battle for Truth)
8 The respondent applied for judicial review requesting that the order of the Board of Inquiry be removed and quashed. On December 31, 1991, Creaghan J. of the Court of Queen's Bench allowed the application in part, ordering that clauses 1 and 2(d) of the order be removed and quashed on the ground that they were in excess of jurisdiction. Creaghan J. also concluded that clause 2(d) of the order violated ss. 2 (a) and 2 (b) of the Charter and could not be saved by s. 1 of the Charter : (1991), 121 N.B.R. (2d) 361, 304 A.P.R. 361, 86 D.L.R. (4th) 749, 16 C.H.R.R. D/250. The respondent appealed to the Court of Appeal for New Brunswick which allowed the appeal, Ryan J.A. dissenting: (1993), 142 N.B.R. (2d) 1, 364 A.P.R. 1, 110 D.L.R. (4th) 241, 19 C.H.R.R. D/173. The appellants, Attis, the Human Rights Commission and the Canadian Jewish Congress sought leave to appeal to this Court, seeking to have clause 2 of the Board's order upheld; no appeal was taken in relation to clause 1 of the order.
II.Decisions Below
A. Court of Queen's Bench (1991), 121 N.B.R. (2d) 361
9 Creaghan J. found that the Board of Inquiry had the right, under s. 20(4.1)(d) of the Human Rights Act, to determine that the Department of Education should be one of the parties to the inquiry. He also found that s. 20(6.2) of the Act provides that "where the Board of Inquiry finds, on a balance of probabilities, that a violation of the Act has occurred, it may order any party found to have violated the Act to do certain things designed to rectify the violation" (p. 368). Basing himself on that provision, he concluded with respect to clause 1 of the order that (at p. 368):
In this instance, there was no claim that the Department of Education violated the Act; there was no investigation as to whether the Department of Education violated the Act; and there was no finding that the Department of Education violated the Act.
There was no jurisdiction in the Board of Inquiry to make an order requiring compliance by the Department of Education simply because it was designated as a party to the inquiry.
10 He thus quashed clause 1 of the order as being beyond the jurisdiction of the Board. He found there was no claim other than that the School Board had violated the Act by continuing to employ the respondent as a teacher in the classroom. He specified that the investigation centred on whether there was a violation of the Act resulting from continuing to employ the respondent, and concluded (at p. 370):
There was no jurisdiction in the Board of Inquiry to make an order [clause 2 (d)] that directed the School Board to place restrictions on Malcolm Ross' activities outside the classroom in the event he was no longer employed by the School Board as a teacher in the classroom.
11 Creaghan J. stated that the principal ground for alleging that the decision of the Board of Inquiry and the resulting order were patently unreasonable was that the Board had no evidence on which it could make the findings necessary to support its order. He noted that the Board of Inquiry found that there was evidence to support its conclusion. He reviewed the findings of the Board and stated that the function of a court on review is not to measure the findings against a standard of correctness. There was some evidence to support the conclusions of the Board, and he found that clauses 2(a), (b), and (c) of the order were not patently unreasonable.
12 Creaghan J. then undertook a Charter analysis. He concluded that the respondent's rights under ss. 2 (a) and 2 (b) of the Charter had been infringed and then, applying the Oakes test, concluded that clauses 2(a), (b) and (c) of the order were saved as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Charter . Despite his finding with respect to lack of jurisdiction in the Board to make clause 2(d) of the order, he stated he would not have applied s. 1 of the Charter to save it. He was not satisfied that the clause would meet the proportionality test, as the rational connection to the objective of s. 5 of the Act was tenuous.
B. Court of Appeal (1993), 142 N.B.R. (2d) 1
(1) Hoyt C.J.N.B. (for the majority)
13 In the Court of Appeal, Hoyt C.J.N.B. (with whom Angers J.A. concurred) held that clauses 2(a), (b) and (c) of the order offended the respondent's rights under ss. 2 (a) and 2 (b) of the Charter because they penalized him by preventing him from continuing to teach because of his publicly expressing his sincerely held views. He defined the issue in the following manner (at p. 16):
The issue is whether an individual's freedom of expression can prevail against the fear that there will be a public perception that Mr. Ross' discriminatory remarks directed against a religious or ethnic minority are being condoned. The discrimination here is aggravated because the minority is one that has been historically targeted for discrimination and because the author of the discrimination is a teacher, who might be considered a role model to students.
14 Hoyt C.J.N.B. stated that there was "no doubt that a teacher may be disciplined for off-duty activities" (p. 17). He referred to the decision of this Court in R. v. Zundel, [1992] 2 S.C.R. 731, and stated that the purpose of the order, removing the respondent from the classroom, must be pressing and substantial before his constitutional guarantee of freedom of expression can be overridden by s. 1 of the Charter . Viewed in that context and considering the evidence, he concluded that the order could not stand. He emphasized that it was the respondent's activities outside the school that attracted the complaint. In such circumstances, he did not find the remedy met a "specific purpose so pressing and substantial" as to override the respondent's constitutional guarantee of freedom of expression. To find otherwise "would, in [his] view, have the effect of condoning the suppression of views that are not politically popular any given time" (p. 20). The denial of an individual's freedom of expression should, he stated, be restricted to the clearest of cases and the evidence in this case did not meet that test.
(2) Ryan J.A. (dissenting)
15 The dissenting judge, Ryan J.A., stated that "a teacher cannot discriminate, in the sense of show bias, inside the classroom or publicly, in such an important area as is this target in the Human Rights Act of this province" (pp. 27-28). He added that anti-discrimination was a "laudable goal", an "important provincial aim", and stated (at p. 29):
The right to be free from discrimination is not rooted merely in provincial legislation. It might be said to be quasi-constitutional from a provincial perspective but it is aided by s. 2 itself of the Charter .... Inherent in the evilness of discrimination is an outright attack on the freedoms of others protected under s. 2 by persons urging their own freedoms as though there were no consequences to the exercise of them.
Therefore, . . . both values must be weighed.
16 Ryan J.A. would have applied s. 1 of the Charter to save clause 2(d) of the order. In his view, severing that part of the order "from the classroom situation simply does not answer the problem in a meaningful way" because it "falls too short of the mark" (p. 31). He emphasized that the wrong was in the continued discrimination the respondent, a public servant and role model to children, publicly promoted. He added that the respondent was known as a teacher whether within or outside the classroom, and that in this age of pervasive mass communication, we cannot underestimate the effect on young people of statements and writings made outside the classroom.
17 Ryan J.A. expressed the view that the objective of the order, ensuring a discriminatory free environment in the school, was sufficient to limit a Charter right or freedom, and that the order was rationally connected with that purpose. The Human Rights Act was conciliatory in nature and, as such, well suited to remedy discriminatory conduct.
18 Ryan J.A. found that "the redeployment order coupled with the restraint order tempers the harshness of an otherwise appropriate order of outright dismissal" (p. 35). A balance had to be struck between the respondent's freedoms, the victims' freedoms and an educational system that is based on impartiality and does not espouse prejudice, bigotry or bias. He concluded (at p. 35):
A teacher teaches. He is a role model. He also teaches by example. Children learn by example. Malcolm Ross teaches by example. He is a role model who publishes and promotes prejudice. This is wrong.
In any event, the Board of Inquiry acted within its mandate and determined, in the balancing of conflicting interests, to protect and improve the conditions and interests of the disadvantaged and disempowered.
19 The rights and freedoms guaranteed by the Charter , he continued, had to be measured against the underlying values and principles of a free and democratic society such as "the inherent dignity of the human being, commitment to social justice and equality and respect for cultural and group identity" (p. 36). To affirm the respondent's unrestrained freedom of expression and of religion would, in his view, be to trample upon these underlying values and principles, which themselves have been entrenched under the Charter and in international law (at p. 36). The respondent, he noted, was free to leave his public employment and exercise his freedom of expression and of religion without restraint. He added that the restriction placed on his freedoms by the order is not absolute, and concluded that the order was a justified infringement, the primary goal of which was to remedy the effects of discrimination.
III. Issues
20 Two broad issues are raised in this appeal. The first concerns whether the Board of Inquiry erred in finding that the School Board, in continuing to employ the respondent as a teacher, discriminated under s. 5(1) of the Act. The second issue is whether the Board of Inquiry's order directing that the School Board remove the respondent from a teaching position infringes ss. 2 (a) and 2 (b) of the Charter and whether it is saved by s. 1 thereof. Before proceeding to an analysis of these issues, however, I propose to dispose of a number of issues raised by the parties having to do with the appropriate standard of review this Court should adopt in these proceedings.
A. Judicial Review: Administrative Law Standard and Charter Standard
21 The appellant Attis' submissions in this appeal focused almost exclusively on the constitutionality of the Board's order. The Human Rights Commission, however, further submitted that the Court of Appeal erred in leaving undisturbed the judgment of the court of first instance quashing clause 2(d) of the order as in excess of jurisdiction. This submission is founded upon the standard of curial review appropriate for a court reviewing a tribunal's findings in the administrative law context.
22 The respondent's submissions on this point involve a constitutional and an administrative law component. With respect to the administrative law component, he submitted that there was insufficient evidence upon which to base a finding of discrimination under s. 5 of the Act, and thereby urged this Court to review the Board of Inquiry's finding on this point. He further submitted that the order granted to remedy the alleged discrimination is unconstitutional. Thus, this appeal raises two general issues in relation to the standard of judicial review. The first relates to th