Branch Affilates Incorporating Secondary Teachers v. Dufferin-Peel Roman Catholic Separate School Board

Branch Affilates Incorporating Secondary Teachers v. Dufferin-Peel Roman Catholic Separate School Board Collection Decisions of the Court of Appeal Date 1999-04-27 Docket numbers C25054 Judges Weiler, Karen Merle Magnuson; Rosenberg, Marc; Goudge, Stephen Thomas Subject Civil Decision Content DATE: 19990427 DOCKET: C25054 COURT OF APPEAL FOR ONTARIO WEILER, ROSENBERG and GOUDGE JJ.A. BETWEEN: ) ) Barry W. Earle THE BRANCH AFFILIATES (ONTARIO ) and Ronald Foerster ENGLISH CATHOLIC TEACHERS ) for the appellant ASSOCIATION and L’ASSOCIATION DES ) ENSEIGNANTS FRANCO-ONTARIENS) ) INCORPORATING SECONDARY ) Paul J.J. Cavalluzzo TEACHERS ) for the respondents Applicants ) (Respondents)) ) Peter Lauwers and ) for the intervenor ) Ontario Separate School THE DUFFERIN-PEEL ROMAN CATHOLIC ) Trustees SEPARATE SCHOOL BOARD, GAIL ) BRENT, ROY FILION and DOUG KNOTT ) ) Respondents ) (Appellant) ) ) Heard: July 30, 31, 1998 ) WEILER J.A. OVERVIEW [1] This appeal concerns the policy of the appellant, Dufferin- Peel Roman Catholic Separate School Board (“the Board”), prohibiting the promotion of a group of non-Catholic teachers (“the Teachers”) hired by the Board. The Teachers are represented by the Branch Affiliates, the respondents in this appeal. [2] A grievance submitted by the Teachers alleged in part that the Board’s promotion policy was unreasonable and contrary to the collective agreement between the Board and its Teachers. The teachers alleged that the Board’s promotion policy was unreasonable because it discriminated against non-Catholics contrary to the equal employment provisions of s. 5 of the Human Rights Code, R.S.O. 1990, c.H.19 (the Code). Section 5 of the Code prohibits discrimination on the basis of creed unless such discrimination can be defended as a bona fide occupational requirement pursuant to s. 24 (1)(a) of the Code. For ease of reference the relevant portion of s. 24 of the Human Rights Code is reproduced below: The right under section 5 to equal treatment with respect to employment is not infringed where, a) a religious … educational … organization that is primarily engaged in serving the interests of persons identified by their … creed … employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment. [3] In reasons released concurrently in Daly v. The Ontario Secondary Teachers’ Federation, s. 24 has been found by this court not to be affected by the operation of s. 136 of the Education Act, R.S.O. c. E.2, as that provision was found to violate s. 93 of the Constitution Act. Accordingly, for the purposes of these reasons, s. 24 is presumed to be unaffected by the scheme laid out in the Education Act. [4] The Board of Arbitration before which the grievance was brought rejected the Teachers’ claim. Before determining whether the appellants’ policy was protected by s. 24 of the Code, the Board of Arbitration was first required to determine if that section was itself unconstitutional as a violation of s. 93 of the Constitution Act, 1867. The majority of the Board of Arbitration1 concluded that the right to promote teachers to positions of responsibility is a right that was enjoyed by Roman Catholic Boards of Education in Ontario in 1867. It is part of the right to hire teachers and to manage schools expressly granted under pre-Confederation legislation. The majority further held that the power to manage was linked to the denominational character of the schools under the Board’s control. By virtue of s. 93(1) of the Constitution Act, 1867 no law may prejudicially affect any right or privilege that Roman Catholics had by law concerning separate schools at the time of Confederation. Therefore, the majority concluded that the application of s. 24 of the Code would prejudicially affect the right enjoyed by the Board under s. 93 of the Constitution Act, 1867 to manage schools. Accordingly, the Board denied the Teachers’ the relief sought in their grievance without deciding whether the policy was indeed protected by s. 24 of the Code. [5] The Teachers applied to the Divisional Court for judicial review.2 The court held that s. 93(1) of the Constitution Act, 1867 does not absolutely prohibit provinces from legislating in a way way which affects denominational schools; its reasons are found at (1995), 128 D.L.R. (4th) 179. McMurtry C.J.O.C., as he then was, relied on the decision of the Supreme Court of Canada in Protestant School Board of Greater Montreal v. Attorney General of Quebec (1989), 57 D.L.R. (4th) 523 in coming to his conclusion. This decision holds that it is necessary to distinguish between those aspects of the pedagogical regime which are absolutely protected by s. 93(1), and other aspects that are protected only to the extent necessary to maintain or give effect to denominational guarantees. He implicitly held that the promotion policy was protected only to the extent necessary to maintain the denominational guarantee, stating at p. 183: [6] The power to promote teachers in a denominational school system may very well be related to the maintenance of the denominational character of the system. However the question that must be asked in the circumstances of this matter is whether a promotion policy based on a requirement for a specific religious affiliation was necessary to maintain the denominational character. On the facts of this matter does the application of the Human Rights Code in the words of s. 93 (1) of the Constitution Act 1867 “prejudicially affect any Right or Privilege with respect to Denominational schools”? [7] McMurtry C.J.O.C. then reviewed the decisions in Re Ontario Human Rights Code1961-62 and Gore, an unreported decision released December 7th, 1971, by W.S. Tarnopolsky, Chair of the Board of Inquiry, and Re Caldwell et al and Stewart et al.(1984), 15 D.L.R. (4th) 1 (S.C.C.) which rejected the argument that the Human Rights Code prejudicially affected the rights held pursuant to s. 93(1). McMurtry C.J.O.C. held that the Board of Arbitration should not simply have stated that the provisions of the Human Rights Code did not apply to the Board’s promotion policy. Rather, he held that the Board should have engaged upon a determination as to whether the particular promotion policy was a reasonable and bona fide occupational qualification within the meaning of s. 24 of the Human Rights Code. Accordingly, he allowed the Teachers’ appeal and e remitted the matter back to a differently constituted Board of Arbitration. [8] For the reasons that follow, I am of the opinion that the Divisional Court was correct. The Board of Arbitration failed to correctly interpret s. 93(1) of the Constitution Act, 1867, and thereby exceeded its jurisdiction. In addition, the Board of Arbitration erred in law because it failed to apply s. 24 of the Human Rights Code. I would dismiss the appeal and uphold the disposition of the Divisional Court. FACTS [9] The Board’s impugned Promotion Policy was passed in March 1991 and provides, in part, as follows: 1. Effective September 1991, all persons promoted to the positions of responsibility [Principal, Vice Principal, Department Head, Assistant Department Head, Coordinator or Consultant], with the exception of those described in #4 below, must be baptized, practicing Catholics with a demonstrated commitment to Catholic education; 2. The Board’s hiring policy will be amended to include a provision that all candidates being considered for a teaching position with the Board will be made expressly aware, at the time of hire, that a qualification for promotion to a position of responsibility with the Board will be that they be Catholic; 3. It is further recommended that candidates acknowledge having been informed by signing a prepared statement to that effect; 4. Recognize that this is a “Catholic” system and a Catholic system imbued with a spirit of justice, that those non- Catholics currently employed by the Board be allowed to pursue their goals in Dufferin-Peel. [10] Prior to passing this policy, the practice of the Board had been to allow all teachers in the Branch Affiliates to apply and be eligible for promotion. The fact that a teacher was not a Catholic, albeit a factor in the promotion process, was not an automatic impediment to selection. [11] The Board passed the Promotion Policy during a period of re- evaluation of the separate school system. Two factors were particularly important in leading the Board to this decision: (i) the extension, in 1985, of public funding for Catholic secondary schools in Ontario; and (ii) the increasing number of non- Catholic teachers at Catholic schools, resulting from a shortage of qualified Roman Catholics. [12] In 1988, in response to these factors a task force was convened to analyse the administrative and educational aspects of the separate school system in Ontario.3 The task force issued a report known as the COSS (Completion Office-Separate Schools) Report. In addition, the Ontario Separate School Trustees’ Association issued a document entitled “Guidelines for Incorporating the Faith Dimension in the Teacher Personnel Policies of Roman Catholic Separate School Boards” (“the Guidelines”). Neither the COSS Report nor the Guidelines explicitly prohibited the promotion of non-Catholics. The Guidelines did state leadership activity in the parish and the local community was important and teaching personnel required a significant participation in the religious life of the school. The COSS Report and the Guidelines were one of the roots for the Board’s policy. [13] The second root for the Board’s policy was the concern that an increasing number of non-Catholic teachers would be hired as a result of the needs created by the extension of public funding to the Catholic education system. McMurtry C.J.O.C. stated at p. 181: The Board admitted before the Board of Arbitration that “it did not do a thorough examination of the number of non-Catholics teaching in the system because it regarded the matter as one of principle”. The Board stated in that regard that its decision was not based on any hard evidence or statistics but rather as an impression and life experience about what was needed to protect the Catholicity of the system. The Board also conceded that with respect to the "roots” of the Board’s policy that the number of non-Catholics teaching in the system posed no serious threat to Catholicity. [14] The effect of the Board’s policy was to create three different classes of non-Catholic teachers employed by the Board. They were as follows: 1. non-Catholic teachers hired before September 1991 (when the policy was passed) who were not prohibited from reaching positions of responsibility because of their religion; 2. non-Catholic teachers who had been designated under s. 135 of the Education Act as teachers being transferred from the public school to the separate school system as a result of the extension of funding to Catholic sigh schools. The Board was prohibited by s. 35(28) of the Education Act from discriminating against these persons in respect of their employment, advancement and promotion by the Board. The Catholic school boards did not contest this provision which was linked to the extension of funding; 3. non-Catholic teachers hired after September 1991 who were prohibited from positions of responsibility because of their religion. [15] It is the third group of non-Catholic teachers who are the subject of this appeal. ISSUES [16] This appeal raises the following issues: 1. Did the Board of Arbitration fail to correctly interpret s. 93(1) of the Constitution Act? 2. Did the Board of Arbitration err in failing to apply s. 24 of the Human Rights Code? ANALYSIS 1. Did the Board of Arbitration fail to properly interpret s. 93(1) of the Constitution Act? [17] It was conceded before this court that the appropriate standard of review of the Board of Arbitration’s interpretation of s. 93(1) is that of correctness. [18] Section 93 (1) provides: In and for each Province the Legislature may exclusively make Laws in relation to Education subject and according to the following Provisions: (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Person have by Law in the Province at the Union. [19] The Board’s position in this appeal is that the right to manage the schools within its jurisdiction, including the right to adopt a policy that only Catholics may be promoted, is a right which is protected by s. 93(1) of the Constitution. The imposition of an obligation to justify its policy as a bona fide occupational requirement pursuant to s. 24(1) of the Human Rights Code, it says, prejudicially affects this right and cannot stand. [20] The opening words of s. 93 of the Constitution Act, 1867 clearly grant to the province the power to make laws in relation to education. That basic power is subject to the limitation that the law cannot violate any right or privilege pertaining to denominational schools existing at the time of Confederation: Hirsch v. Protestant Board of School Commissioners of Montreal, [1928] 1 D.L.R. 1041 (J.C.P.C.) at 1052. There are two stages to the constitutional analysis of the interpretation of s. 93(1). Initially, one must determine whether there was a right or privilege enjoyed by a particular class of persons by law at the time of Confederation. If so, one must go on to the second stage of the analysis which is to determine whether the legislation at issue prejudicially affects this right or privilege: Quebec Association of Protestant School Boards v. Attorney-General of Quebec (1993), 105 D.L.R. (4th) 266 (S.C.C.) at 306-307. Within the first stage of the analysis concerning s. 93(1) one must answer two questions. First, what was the extent of the power of the Trustees at the time of Confederation? Second, in what measure is this power a “Right or Privilege with respect to Denominational Schools”: Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377 at 405. [21] Beginning with the first stage of the analysis, the power of the Trustees at the time of Confederation is not in issue in this appeal. It is not disputed that Catholics had, at the time of Confederation, the right by law to employ teachers and the right to manage their separate schools and that this right would include the right to promote teachers. See, for example, Reference re Act to Amend the Education Act (Ont.) (1987), 40 D.L.R. (4th) 18 (S.C.C.) (the Bill 30 Reference). The question here is the extent to which the power to promote teachers is a “Right or Privilege with respect to Denominational Schools”. [22] As stated in Greater Montreal Protestant School Board, supra, at 402, cited with approval by Iacobucci J. in Ontario Home Builders’ Association v. York Region Board of Education (1996), 137 D.L.R. (4th) 449 (S.C.C.) at 489: The approach courts have taken to the interpretation of the expression “with respect to Denominational Schools” in cases such as [Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575] …demonstrates that the law in force “at the Union” cannot on its own set the content of the constitutional rights in s. 93(1). [23] The constitutional guarantee in s. 93(1) has both denominational and non-denominational aspects: Greater Montreal Protestant School Board, supra, at 410 citing the decision of Chouinard J. in Attorney General of Quebec v. Greater Hull School Board supra, at 584. The aim of s. 93(1) was to ensure equality of educational opportunity for Roman Catholics: Ontario Home Builders’ Association, supra, at 489. At the same time the ultimate aim of the section is also a religious one: Greater Montreal Protestant School Board, supra, at 411 citing with approval the text of Professors Chevrette, Marx and Tremblay, Les problemes constitutionnels poses par la restructuration scolaire de l’ile de Montreal (Quebec: Ministere de l’Educatoin, 1972). A number of means to ensure that the denominational status of education is respected are also protected by s. 93(1). The following translated passage from the text of Professors Chevrette, Marx and Tremblay was cited with approval by both Beetz J. in Greater Montreal Protestant School Board,, supra, at 410-411 and by Gonthier J. in Reference Re: Education Act (Quebec), [1993] 2 S.C.R. 511 at 541: It should be noted that in themselves, and viewed in isolation, these means are not necessarily religious in nature, for they may include financial powers, the power to hire teachers and so on: however, such means should still be related to the denominational status of education directly and connected directly with maintaining it. [Emphasis added.] [24] In other words one of the means of ensuring the denominational status of education is through the power to hire teachers. In this regard, see the reasons of this Court in Daly v. The Ontario Secondary School Teachers’ Federation, released concurrently with these reasons. The constitutional protection in s. 93(1) applies to the power to hire teachers and, inferentially, the power to promote teachers to the extent that such power is related to maintaining the denominational character of Catholic schools and education. The power to promote teachers has been entrenched only in so far as this power is necessary to maintain the denominational status of education. While the right and privilege of Catholics to a denominational education in s. 93 obviously includes the means and framework in which the right is exercised, the means to achieve that end are not themselves constitutionally guaranteed. Gonthier J. made this clear when he stated in Reference re: Education Act (Quebec), supra at 541-542 and at 579: I note that in G.M.P.S.B., supra, this Court has already held that rights of ownership, powers to hire staff and powers to use material resources are incidental rights that are only protected to the extent that they are necessary to preserve the denomination character of education. [Emphasis added.] [25] The Board of Arbitration ruled that the Board’s promotion policy was constitutionally protected. It did so without considering whether the policy was in fact justified under the Human Rights Code. However, in reaching its conclusion the Board did not consider the second question within the first stage of the constitutional analysis, namely, the extent to which the power was a right or privilege with respect to denominational schools. The Board of Arbitration ought to have considered that the promotion policy was a means to an end, namely a denominational system of education. As a means, the promotion policy is constitutionally protected only insofar as it is necessary to maintain or achieve that end. As a result, the Board of Arbitration failed to correctly interpret s. 93(1) of the Constitution Act, 1867. 2. Was the Divisional Court correct in concluding that the Board of Arbitration erred because it failed to apply s. 24 of the Human Rights Code? [26] In the first part of my reasons I concluded that the Trustees’ right to promote teachers was constitutionally protected only insofar as it was necessary to maintain a denominational system of education. It is now appropriate to go on to the second stage of the analysis concerning s. 93(1) and determine whether s. 24 of the Code prejudicially affects the rights or privileges guaranteed at the time of Confederation. [27] The Board of Arbitration held that the right of the Separate School Board to manage separate schools to preserve their denominational character was not subject to any review under the Human Rights Code. In reaching this conclusion the Board of Arbitration erred. The province has the power to pass laws and to regulate certain aspects of Catholic education so long as that power is exercised in conformity with s. 93(1): Reference re Act to Amend the Education Act (Ont.) (1987), 40 D.L.R. (4th) 18 (S.C.C.) per Wilson J. at p. 55. It does not follow from the fact that the power to promote teachers existed at Confederation that the equality provisions of the Human Rights Code automatically have no application. The Board should have inquired whether the application of s. 24 of the Code prejudicially affected a right or privilege guaranteed by s. 93(1). [28] As stated in Re Ontario Human Rights Code 1961-62 and Gore, supra, cited by McMurtry C.J.O.C. with approval, at p. 184 of the reasons below: Section 93(1) could not have been intended, therefore, to prevent the legislature from enacting any law which affects the rights and powers of Separate School Boards…it could not be argued that the province could not today apply, for example, collective bargaining or trade union legislation to the separate schools merely because in 1867 such legislation did not exist. If recognition of trade unions or teachers’ associations can now be made applicable to school boards, despite the fact that there could be an argument that school boards were free to ignore such associations in 1867, then surely the province could decide to apply the Ontario Human Rights Code to schools unless the discrimination practised by the school board is such as can be described as being a “reasonable occupational qualification”. [29] The appellant Board submits that the application of the bona fide occupational requirement standard should only be applied if its right to pursue its promotion policy is not protected by s. 93(1). I have already determined that the policy itself is not protected. Rather, it is only to the extent that the policy is necessary to preserve the denominational aspect of the school that the policy is protected. Section 24 of the Human Rights Code provides an objective means by which to measure the extent to which the policy in this case is necessary to maintain the denominational aspect. If the policy is a bona fide occupational requirement, it surely can be said to be necessary to the preservation of denominational education. Hence the application of s. 24 to the policy does not prejudicially affect the denominational guarantee in s. 93(1); on the contrary, it is consistent with it. [30] In Re Caldwell, et al v. Stuart et al. (1984), 15 D.L.R. (4th) 1 at 17 (S.C.C.), McIntyre J. was dealing with the application of the equality provision of the Human Rights Code in the context of a dismissal for denominational cause. The contract of a teacher at a Roman Catholic school was not renewed because she married a divorced person in a civil ceremony. In his reasons, McIntyre J. noted that he had had occasion to consider the nature of a bona fide occupational requirement in Ontario Human Rights Com’n et al. v. Borough of Etobicoke (1982), 132 D.L.R. (3d) (S.C.C.) 14 under different statutory provisions. He held, at 16-17, that the test of a bona fide occupational requirement has two branches. The first is subjective. It is whether the limitation has been imposed honestly and in good faith. There is no issue here as to the Board’s good faith. The second branch, as adapted to the circumstances of dismissal for denominational cause, was phrased as follows: Is the requirement of religious conformance by Catholic teachers, objectively viewed, reasonably necessary to assure the accomplishment of the objectives of the Church in operating a Catholic school with its distinct characteristics for the purposes of providing a Catholic education to its students? [31] A similar test is appropriate in the present case. The essence of the test may be phrased in this way: “Is the policy of prohibiting certain non-Catholic teachers from promotion, objectively viewed, reasonably necessary to preserve the Catholic nature of the schools?” If so, the policy would be a reasonable and bona fide employment qualification within the meaning of s. 24 of the Code. [32] The Divisional Court was correct in concluding that the Board of Arbitration erred because it failed to apply s. 24 of the Human Rights Code. I would accordingly confirm the order of the Divisional Court remitting the issue to a differently constituted Board of Arbitration. DISPOSITION [33] For the reasons given, I would dismiss the appeal with costs to the respondents and confirm the order of the Divisional Court. Released: Apr 27 1999 “K.M. Weiler J.A.” KMW “I agree M. Rosenberg J.A.” “I agree S.Goudge J.A.” _______________________________ 1 Date format is yyyymmdd 2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS 1 Board member Warren Winkler dissented. He held that at the time the School Board entered into the 1990-1992 collective agreement with the Branch Affiliates it was aware of the implications of the Constitution in respect to Separate schools and denominational rights. At that time the practice of the Board had been to allow all teachers in the Branch Affiliate to apply and be eligible for promotion. The fact that a teacher was not a Catholic was a factor in the selection process but was not an automatic impediment to selection. As a result he held the Board could not unilaterally declare its denominational rights to be prejudicially affected by its own previous practices without first demonstrating that the change in policy was required and reasonable. 2 Saunders J. concurred in the decision of McMurtry C.J.O.C. White J. wrote separate reasons agreeing that the decision of the Board should be quashed and that the matter should be remitted to a differently constituted Board. White J. disagreed on the standard of review to be applied to the Board’s decision. McMurtry C.J.O.C. held that the decision should not be subject to judicial review unless the decision was patently unreasonable. White J. held that insofar as the Board was dealing with rights that existed at the time of Confederation a standard of correctness was to be applied. On this appeal it is not in issue that insofar as s. 93(1) is concerned the Board was required to be correct. 3 The task force was comprised of the Ontario Separate School Teachers’ Association, the Ontario English Catholic Teachers’ Association, the Ontario Conference of Catholic Bishops, the Ontario Supervisory Officers’ Association, the Ontario Separate School Business Officials’ Association, the Federation of Catholic Parent-Teacher Associations of Ontario, and the Metropolitan Toronto Separate School Board.