



COURT OF APPEAL FOR ONTARIO

CITATION: E.T. v. Hamilton-Wentworth District School Board,
    2017 ONCA 893
DATE: 20171122
DOCKET: C63149

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

E.T.

Appellant

and

Hamilton-Wentworth District School Board

Respondent

and

Christian Legal
    Fellowship, Elementary Teachers Federation of Ontario and Attorney General of
    Ontario

Intervenors

Albertos Polizogopoulos, for the appellant

Mark J. Zega and Giovanna Di Sauro, for the respondent

Derek B. M. Boss, for the intervenor Christian Legal
    Fellowship

Kate Hughes and Lauren Sheffield, for the intervenor
    Elementary Teachers Federation of Ontario

Joshua Hunter and Emily Bala, for the intervenor
    Attorney General of Ontario

Heard: June 26, 2017

On appeal from the order of Justice Robert B. Reid of the Superior
    Court of Justice, dated November 23, 2016.

Charter - Freedom of religion - Request for
    accommodation from school board - Parent's desire to shield children from false
    teachings.

Sharpe J.A.:

[1]

The appellant E.T. is the father of two primary school-aged children who
    attend a school within the jurisdiction of the respondent Hamilton-Wentworth
    District School Board (the Board). E.T. is a committed Christian and a member
    of the Greek Orthodox Church.

[2]

The appellant advised the Board that his religious beliefs require him
    to shelter his children from what his religion regards as false teachings. He
    provided the Board with a standard form list of topics that included matters
    such as moral relativism, environmental worship, instruction in sex
    education, and discussion or portrayals of homosexual/bisexual conduct and
    relationships and/or transgenderism as natural, healthy or acceptable. He
    asked the Board to provide him with advance notice of any classroom instruction
    or discussion of these issues so that he could decide whether or not to
    withdraw his children from those classes or activities.

[3]

The Board offered to exempt the appellants children from the Healthy
    Living strand in the elementary program, which is offered as a discrete part
    of the curriculum and involves education on human development and sexual
    health. However, the Board explained to the appellant that its Equity Policy
    aims to provide an integrated secular and respectful learning environment that
    does not discriminate against any child. The Boards program aims to promote a
    positive and inclusive environment that accepts all pupils, including those of
    any sexual orientation, gender identity and gender expression. The Board
    advised E.T. that, given the integrated nature of its program and the
    generality of the items on his list, it was neither practical nor possible to
    comply with his request for prior notification of any time one of the items on
    his list would arise for discussion in the classroom. The Board also expressed
    the concern that if E.T.s children were required to leave the classroom every
    time one of these topics came up for discussion, the Boards policy of
    providing an inclusive and non-discriminatory program would be undermined.

[4]

E.T. brought this application seeking declaratory relief, asserting that
    his parental authority over the education of his children had been denied and
    that his freedom of religion as guaranteed under s. 2(
a
) of the
Charter
    of Rights and Freedoms
was violated by the Boards failure to provide him
    with the accommodation he requested. He also asserted a claim of religious
    discrimination under the
Human Rights Code
, R.S.O. 1990, c. H.19 and a
    violation of the
Education Act
, R.S.O. 1990, c. E.2.

[5]

E.T.s application rested on the general assertion that the Boards
    policies and decisions violated his religious freedom. He provided no evidence
    of any actual instance where his or his childrens religious freedom had been
    violated.

[6]

E.T. appeals the application judges determination that, while the Boards
    refusal to provide the accommodation he requested engaged his religious
    freedom, the Boards refusal to provide accommodation was reasonable.

[7]

For the following reasons, I would dismiss the appeal on the ground that
    E.T. has failed to establish any interference with or violation of his
    religious freedom.

A.

FACTS AND BACKGROUND

(1)

The Boards Equity Policy and Accommodation Process

[8]

At the time the application was filed, E.T.s children attended one of
    the Boards elementary schools. The Board oversees 103 schools of which 88 are
    elementary schools attended by over 34,000 pupils.

[9]

In carrying out its responsibilities, the Board is required to comply
    with the
Education Act
and regulations authorized thereunder, as well
    as ministerial directives and policies, and the policies the Board itself
    promulgates. The central statutory objectives relevant to this appeal are
    neutrality in matters of religion, inclusion in the school community and
    student well-being. Section 169.1(1) of the
Education Act
requires
    schools to promote a climate that is inclusive and accepting of all pupils,
    including pupils of any race, ancestry, place of origin, colour, ethnic origin,
    citizenship, creed, sex, sexual orientation, gender identity, gender
    expression, age, marital status, family status or disability. Further, the
    Ministry of Education has issued several directives to school boards and
    principals regarding the promotion of diversity, equity and inclusive
    education:
Realizing the Promise of Diversity: Ontarios Equity and
    Inclusive Education Strategy, 2009
(EIES), the Policy/Program Memorandum
    No. 119:
Developing and Implementing Equity and Inclusive Education
    Policies in Ontario Schools
, June 24, 2009, (PPM No. 119), and the
Equity
    and Inclusive Education in Ontario Schools: Guidelines for Policy Development
    and Implementation, 2009
(EIEOS). In response to and in accordance with these
    directives, the Board developed its own Equity Policy No. 1.01 (the Policy).

[10]

These directives and policies are all designed to combat racism,
    religious intolerance and homophobia, and to ensure that all students feel
    welcome and accepted in public schools.

[11]

Students are to be provided with learning materials that are bias-free
    and that reflect the diversity of the schools population, including diversity
    of sexual orientation and gender identity. A central feature of the Policy is
    that diversity, anti-discrimination and anti-homophobia are not taught in
    stand-alone lessons but rather are fully integrated into the curriculum so that
    acceptance of difference becomes routine. For example, teaching materials for a
    lesson in mathematics might feature children with two fathers or two mothers.
    In this way, all courses are infused with equity principles and teachers are
    directed to ensure that all studentsincluding lesbian, gay, bisexual,
    transgender, transsexual, two spirited, intersex, queer and questioning peoplewill,
    in the words of the EIES, be engaged, included, and respected, and  see
    themselves reflected in their learning environment.

[12]

The religious accommodation guideline included in the Boards Policy states
    that the Board will seek to reasonably accommodate students where there is a
    demonstrated conflict between a specific class or curriculum and a religious
    requirement or observance. Where a parent requests such an accommodation, the
    school should have an informed discussion with the students parents/guardians
    to understand the nature and extent of the conflict. The aim of the Boards
    religious accommodation guideline is to protect students  from harassment and
    discrimination because of their religion but the Policy makes it clear that
    the Board cannot accommodate religious values and beliefs that clearly
    conflict with mandated Ministry of Education and Board policies.

(2)

E.T.s request for accommodation

[13]

E.T. holds a sincere religious belief that he is obliged to shield his
    children from what his religion regards as false teachings, and to ensure
    that his children are taught about marriage and human sexuality from a
    perspective that is consistent with his understanding of biblical and Greek
    Orthodox teachings. These teachings include the following: sexual relations
    should only be between a man and a woman within the sacred institution of
    marriage; same-sex relations are contrary to Gods will; and there are only two
    genders, male and female.

[14]

Using a standard form request provided by Public Education Advocates for
    Christian Equality (PEACE), E.T. asked the Board to provide him with advance
    notice any time his children would be involved in or exposed to activities or
    instruction on a list of matters including the following:

·

Values
    neutral education - indoctrination of students in moral relativism and
    principles of situational ethics. This ism is a central tenet of the religion
    of secular humanism;

·

Occultic
    principles and practices ...

·

Environmental
    Worship - placing environmental issues/concerns above the value of
    Judeo-Christian principles and human life;

·

Instruction
    in sex education;

·

Discussion
    or portrayals of sexual conduct that we determine to be unnatural/unhealthy
    (anal sex, oral sex, masochism, bestiality, fetish, bondage, etc.);

·

Discussion
    or portrayals of homosexual/bisexual conduct and relationships and/or
    transgenderism as natural, healthy or acceptable.

[15]

The Board engaged in a series of discussions with E.T. extending over a
    two-year period. These included a lengthy meeting between E.T., the school
    principal and the Boards Principal of Organizational Leadership-Equity. After
    considering E.T.s requests and reviewing the matter with its equity
    consultant, the Board maintained its refusal of the accommodation E.T.
    requested. In these discussions with E.T., it became clear that his concerns were
    focused on issues pertaining to sexual orientation. He indicated that he did
    not object to his children being taught facts about such matters but he did
    object to his children being exposed to views or value judgments that did not
    match his worldview.

[16]

The Board indicated that it could excuse E.T.s children from the human
    development and sexual health segment of the curriculum. However, the Board
    advised E.T. that, given its commitment to creating schools that are safe,
    respectful and supportive of all, where diversity is valued and everyone feels
    accepted, it could not otherwise accommodate his request. As the Boards Equity
    Principal explained in an affidavit filed on the application:

The message to classmates if E.T.s request was accepted, is
    not tolerance but rather that family structures or discussion of sexual
    orientation will require the withdrawal of a student from the classroom. This
    cannot be reconciled with the Boards legal obligations with respect to human
    rights and tolerance.

[17]

As it was unable to provide the accommodation E.T. had requested, the
    Board suggested that E.T. might consider enrolling his children in a public
    Catholic school or a private Christian school or homeschooling them.

(3)

The ruling of the application judge

[18]

The application judge gave detailed and considered reasons for
    dismissing the application.

[19]

He found that a declaration of E.T.s parental authority over his
    childrens education should not be granted on the ground that a black-and-white
    declaration of parental authority in favour of the appellant would oversimplify
    a nuanced point in the application of settled common law principles and would
    not serve any useful purpose.

[20]

The application judge found that E.T. had demonstrated a sincerely held
    religious belief, particularly in relation to marriage and sexuality, which was
    at odds with the Boards Policy, and that there was an interference with his
    religious beliefs that was neither trivial nor insubstantial. However, applying
    the framework established by the Supreme Court of Canada in
Doré v. Barreau
    du Québec
, 2012 SCC 12, [2012] S.C.R. 395 and
Loyola High School v.
    Québec
, 2015 SCC 12, [2015] 1 S.C.R. 613, the application judge concluded
    that the Boards refusal to provide E.T. with the accommodation he requested
    was not unreasonable. The application judge found that Board had taken account
    of the claim of religious freedom and had reasonably concluded that any
    constraint of E.T.s religious freedom was proportionate and no more than
    necessary given the applicable statutory objectives. The application judge
    noted that other options, including independent schools and homeschooling,
    remain available to the appellant in the event that his concerns about false
    teachings outweigh in his view the advantages of the public school system.

[21]

The application judge also dismissed the claim under the Ontario
Human
    Rights Code
.

B.

ISSUES

[22]

E.T. does not appeal the refusal of a declaration of parental authority
    nor does he appeal the dismissal of his claim under the
Human Rights Code
or any of the other grounds raised in his Notice of Application.

[23]

E.T.s central submission on appeal is that his and his childrens freedom
    of religion as protected by s. 2(
a
) of the
Charter
has been
    violated. He argues that the application judge erred in finding that the Board
    reasonably refused his request for advance notification of any classes, lessons
    or activities involving topics that he has identified as being sensitive, and
    for permission to withdraw his children from such classes, lessons or
    activities.

C.

ANALYSIS

[24]

I begin my analysis by pointing to what I consider to be a central and
    fatal shortcoming in the case E.T. presented to the application judge and to
    this court, namely the lack of any concrete evidence of interference with his
    right to religious freedom.

[25]

E.T.s children have now been pupils at a Board school for several
    years. E.T. first requested accommodation for his religious beliefs in
    September 2010. This application was filed in September 2012. When directly
    asked on cross-examination in November 2012, E.T. was unable to point to any
    evidence demonstrating that any false teachings had in fact been presented to
    his children. The matter was heard by the application judge in June 2016 and
    decided in November 2016. Despite the fact that almost six years had passed
    between the date E.T. first made his request for accommodation and the date the
    application was heard, E.T. could offer no evidence or any example of a single
    incident where his or his childrens religious freedom was constrained.

[26]

I accept that E.T. has a sincere religious belief that he has an
    obligation to keep his children from being exposed to what he describes as false
    teachings. This sincere belief was the basis on which the application judge
    found that the Boards Policy and its denial of the requested accommodation
    engaged the
Charter
by limiting its protections under s. 2(
a
)
    for E.T. and his children. However, a sincere religious belief alone is
    insufficient to establish interference with E.T.s freedom of religion. An
    infringement of the right to religious freedom cannot be established without
    objective proof of an interference with the observance of that practice (
S.L.
    v. Commission scolaire des Chênes
, 2012 SCC 7, [2012] 1 S.C.R. 235, at para.
    2). The claimant must also demonstrate that the Boards decision burdened or
    interfered with his sincerely held beliefs in more than a trivial or
    insubstantial way:
Syndicat Northcrest v. Amselem
, 2004 SCC 47, [2004]
    2 S.C.R. 551, at paras. 57-59.

[27]

E.T.s claim rests upon his general and pervasive dissatisfaction with
    the nature of the Boards curriculum with respect to matters of equity,
    non-discrimination and inclusiveness. However, he has not proved 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 has he provided any evidence that
    his right to inculcate his children with his own religious views has been
    curtailed or infringed.

[28]

E.T.s complaint is that, given the very nature of the Boards
    curriculum, his children may be exposed to views with which he, for religious
    reasons, does not agree. In my view, the jurisprudence from the Supreme Court of
    Canada makes it clear that exposing students who are attending
    non-denominational public schools to ideas that may challenge or even
    contradict their parents sincerely-held religious beliefs does not amount to
    an infringement of religious freedom. As the Attorney General puts it in his
    factum, requiring students in public school to gain an awareness of Canadas
    diverse reality is not a substantial infringement of religious freedom.

[29]

In
S.L. v. Commission scolaire des Chênes
, parents asked to
    have their children exempted from Quebecs mandatory Ethics and Religious
    Culture (ERC) Program that had replaced Catholic and Protestant programs of
    religious and moral instruction. The parents objected that the ERC Program
    would expose their children to a form of relativism, which would interfere
    with [their] ability to pass their faith on to their children (at para. 29)
    because it presented different beliefs on an equal footing. The Supreme Court
    accepted the sincerity of the parents religiously based objection to the
    nature of the ERC program, but held that sincerity of belief was insufficient
    to make out a s. 2(
a
)
Charter
claim of infringement of
    religious freedom. Writing for the seven-judge majority, Deschamps J. accepted,
    at para. 26, that [t]he appellants sincerely believe that they have an
    obligation to pass on the precepts of the Catholic religion to their children
    but she then held, at para. 27, that [t]o discharge their burden at the stage
    of proving an infringement, the appellants had to show that, from an objective
    standpoint, the ERC Program interfered with their ability to pass their faith
    on to their children.

[30]

Deschamps J. rejected the assertion that exposing children to contrary
    views, without more, amounts to an infringement of freedom of religion, at
    para. 40:

Parents are free to pass their personal beliefs on to their
    children if they so wish. However, the early exposure of children to realities
    that differ from those in their immediate family environment is a fact of life
    in society. The suggestion that exposing children to a variety of religious
    facts in itself infringes their religious freedom or that of their parents
    amounts to a rejection of the multicultural reality of Canadian society and
    ignores the Quebec governments obligations with regard to public education. Although
    such exposure can be a source of friction, it does not in itself constitute an
    infringement of s. 2(
a
) of the
Canadian Charter
and of s. 3
    of the
Quebec Charter
.

[31]

Deschamps J. drew support for this conclusion from the judgment of
    McLachlin C.J.C. in
Chamberlain v. Surrey School District No. 36
, 2002
    SCC 86, [2002] 4 S.C.R. 710, where the Supreme Court of Canada considered a
    challenge to a school boards decision to refuse to approve books suggested by
    a teacher depicting same-sex parented families for use at the
    kindergarten-grade one level. The Supreme Court held that, given the Boards
    statutory mandate of secularism and tolerance, its decision was unreasonable.
    The Board had failed to proceed on the basis of respect for all types of
    families and had instead proceeded on an exclusionary philosophy, responding to
    the concerns of certain parents regarding the morality of same sex
    relationships. This approach failed to consider the right of children of same-sex
    parented families to be accorded equal recognition and respect in the public
    school system.

[32]

As McLachlin C.J.C. pointed out, at paras. 64-67, the cognitive
    dissonance that a child might experience from learning about things that do
    not correspond to the views of the childs own parents is part and parcel of
    growing up in a diverse society committed to the acceptance of the fact of
    differences in lifestyles and moral and religious views. [S]uch dissonance,
    wrote McLachlin C.J.C., is neither avoidable nor noxious but rather something
    children encounter every day as members of a diverse student body in a public
    school system. This kind of cognitive dissonance is simply a part of living in
    a diverse society and a part of growing up and arguably necessary if
    children are to be taught what tolerance itself involves. She went on to
    write:

[T]he demand for tolerance cannot be interpreted as the demand
    to approve of another persons beliefs or practices. When we ask people to be
    tolerant of others, we do not ask them to abandon their personal convictions. We
    merely ask them to respect the rights, values and ways of being of those who
    may not share those convictions. The belief that others are entitled to equal
    respect depends, not on the belief that their values are right, but on the
    belief that they have a claim to equal respect regardless of whether they are
    right. Learning about tolerance is therefore learning that other peoples
    entitlement to respect from us does not depend on whether their views accord
    with our own. Children cannot learn this unless they are exposed to views that
    differ from those they are taught at home.

[33]

Here, while E.T. has made out a sincere religious belief, his subjective
    belief that he must shield his children from hypothetical false teachings
    does not gain absolute protection. The onus remains on E.T. to proffer evidence
    that, from an objective standpoint, the instruction and activities to which his
    children are in fact exposed interferes with his ability to do so. E.T. has failed
    to satisfy that onus.

[34]

It follows that, while I agree with the result reached by the
    application judge, I respectfully disagree with his conclusion that E.T. has
    established an infringement of his s. 2(
a
) right to freedom of
    religion.

[35]

As I have found no interference with the appellants freedom of religion
    that would engage the protection of s. 2(
a
), it is unnecessary for me
    to consider whether, under the
Doré/Loyola
framework, the application
    judge correctly concluded that the Boards decision refusing E.T.s request for
    accommodation was reasonable. However, for the sake of completeness, I add that
    even if there were an interference with E.T.s s. 2(
a
) protections, I
    agree with the application judge that the Boards decision to deny him the
    accommodation he requested was reasonable and proportionate in light of its
    statutory mandate to promote equity and inclusive education. The record
    supports the application judges finding that the Board
properly considered the appellants request and the conflicting interests
    involved.
The Boards decision to deny the requested form of
    accommodation constrained the appellants
Charter
protections no
    more than was necessary given the statutory objectives the Board is required to
    pursue.

[36]

The protection of religious freedom, like that of other any other
Charter
right, must be measured in relation to other rights and with a view to the
    underlying context in which the apparent conflict arises (
Amselem
, at
    para. 62;
S.L.
, at para. 25). The relevant context in this case is
    that E.T.s children attend a non-denominational public school with a mandate
    to provide an open, accepting and inclusive educational experience for all
    children. E.T. did not ask to have his children exempted from certain specific
    and well-defined elements of the curriculum whose subject matter conflicts with
    his religious views. He declined the Boards proposal that he withdraw his
    children from the sex education strand of the curriculum. Instead, he seeks to
    have advance notice and the ability to have his children leave the classroom at
    any time a false teaching will arise, an exercise that would undermine the
    message of diversity and inclusion which is woven throughout the integrated
    curriculum.

[37]

Exempting some students on a regular basis from classroom discussions
    touching on diversity, inclusivity and acceptance, within a public school
    program designed to promote precisely those principles, would run a serious
    risk of endorsing the non-acceptance of students of other family backgrounds,
    sexual orientations, gender expressions and gender identities. One of the
    principles at the heart of Ontarios EIES is ensuring that all students are
    able to see themselves reflected in their curriculum, their physical
    surroundings, and the broader environment, in which diversity is honoured and
    all individuals are respected. That principle would be contradicted and
    undermined if, every time certain students families and/or identities were
    discussed as being healthy and acceptable, they saw some other members of their
    class leave so that they would not be exposed to such statements of honour and
    respect. I do not accept E.T.s submission that this proposition should be
    rejected as based upon pure speculation. The Board does not have to wait for
    harm to occur before it is permitted to act on its experience and judgment and
    govern itself accordingly in order to avoid what it perceives, on eminently
    reasonable grounds, to be a very real risk of harm.

[38]

I agree with the Boards submission that E.T.s list of objectionable topics
    set out in the standard PEACE form, which includes items such as moral
    relativism and environmental worship, is 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.

[39]

The problem of providing advance notice to the appellant in accordance
    with his request is further compounded by the integrated nature of the Boards
    curriculum. Discussion of topics such as, for example, same-sex parenting does
    not arise in a specific, discrete class or lesson. It is part of the daily lived
    experience of some schoolchildren and, as such, discussion of it might arise at
    any point in any class, in ways that could not be predicted in advance. As the
    application judge found, at para. 96, the list of objectionable subject matter
    identified by E.T. was extensive and [i]t would be extremely difficult for
    teachers to be sufficiently familiar with the variety of concerns raised by
    parents for individual students so as to advise in advance of their mention in
    lessons. As pointed out by the intervenor Elementary Teachers Federation of
    Ontario, it would be unrealistic to expect teachers to anticipate discussions of
    all such subjects in class and to vet all teaching materials in search of any
    endorsement of family structures, relationships or other matters that are
    contrary to E.T.s subjective view of biblical teaching, particularly as E.T.s
    list includes such nebulous topics as moral relativism.

[40]

E.T. cannot, by virtue of his religious beliefs, insist that a
    non-denominational public school board restructure its inclusive and integrated
    program, designed to meet its statutory objective of ensuring a respectful and
    accepting climate for all children, so that he can ensure that his own children
    are not exposed to any views that he does not accept. Nor do I accept E.T.s
    suggestion that the Board could or should ensure that discussion of matters
    such as sexual orientation and gender identity are discussed purely as matters
    of fact rather than as matters of value judgment. The Board has a statutory
    mandate to provide an inclusive and tolerant educational environment, one that
    respects the principles of equality enshrined in s. 15 of the
Charter
.
    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.

D.

DISPOSITION

[41]

For these reasons, I would dismiss the appeal and, in accordance with
    the parties agreement, make no order as to costs.

Robert J. Sharpe
    J.A.

Lauwers J.A. (Concurring)

A.

Introduction

[42]

I have had the benefit of reading
    the reasons of my colleague, Justice Sharpe. I concur in the result he reaches
    and would dismiss the appeal for lack of evidence. However, my reasoning to
    that result differs.

B.

Overview

[43]

What is the scope of a school
    boards duty to accommodate the religion of a parent whose children attend its
    schools? The appellant raises this issue in the context of provisions of the
Education
    Act
, policy documents issued by the Ministry of Education, and by the
    respondent school board, as well as the decision made by school board officials
    to reject his request for the accommodation of his religious beliefs.

[44]

The underlying issue engaged by
    this appeal is this: What are the limits imposed by the
Canadian Charter of
    Rights and Freedoms
on a provinces power to use publicly funded education
    to inculcate, in the language of s. 264 of the
Education Act
, certain
    beliefs and dispositions educational authorities have determined are desirable
    or necessary?

[45]

It is common ground among the
    parties and the application judge that the appeal is governed by the
Doré/Loyola
framework. As Abella J. explains in
Loyola,
at
    para. 39, the
Doré/Loyola
framework has two steps. The first is to
    determine whether the decision engages the
Charter
by limiting its protections.
    If so, the second step is to determine whether, in assessing the impact of the
    relevant
Charter
protection and given the nature of the decision and the
    statutory and factual contexts, the decision reflects a proportionate balancing
    of the
Charter
protections at play".

[46]

My analysis proceeds through the
    following propositions: First, public education is designed to inculcate
    children in necessary civic virtues. Section 169.1 of the
Education Act
,
    the statutory authority underpinning the challenged school board decision, was
    enacted to further this purpose. Teachers play a critical role in inculcating
    civic virtues in schoolchildren.

[47]

Second, the law recognizes the
    primacy of parental rights and provides parents with a measure of control over
    the education of their children. The extent of that measure of control is
    contested in this appeal.

[48]

Third, much is at stake for the
    appellant as a parent, and he makes a plausible claim that the school boards
    decision to refuse to provide him with the accommodation he seeks limits his
    freedom of religion. His claim meets the first half of the first step of the
Doré/Loyola
framework: his religious freedom is implicated.

[49]

Fourth, I am unable to find, based
    on the evidence, that the appellant has proven substantial interference with
    his freedom of religion, as the balance of the first step of the
Doré/Loyola
framework would require. I would join with my colleague and dismiss the appeal
    on this basis.

[50]

Fifth, although I would dismiss
    the appeal, I would refrain from applying the proportionality analysis from the
Doré
/
Loyola
framework and I would not approve the school boards
    decision or the program on which it was based; I have serious concerns about
    the application of this framework to line decision makers such as teachers,
    principals and supervisory officers.

C.

Analysis

(1)

Public Education is Designed to Inculcate Children in Necessary
    Civic Virtues

[51]

I would reject the school boards
    submission that the program the appellant challenges is morally neutral. Public
    education has never been morally neutral.

[52]

One of the purposes of public
    education has been to inculcate civic virtues in school children. These civic
    virtues are those habits, dispositions and behaviours people need to live
    together peaceably in civil society. This has been a systemic moral commitment
    for a very long time. Consider s.264(l)(c) of the
Education Act
, which
    imposes on teachers the duty:

to inculcate by precept and
    example respect for religion and the principles of Judaeo-Christian morality
    and the highest regard for truth, justice, loyalty, love of country, humanity,
    benevolence, sobriety, industry, frugality, purity, temperance and all other
    virtues
[1]
.

The content of the civic virtues is not
    the unique preserve of any religion or ideology. They are important in any
    civil society.

[53]

Several cases have recognized the
    inculcation mission of the public system. In
Canadian Civil Liberties
    Association v. Minister of Education
(1990), 71 O.R. (2d) 341 (C.A.) at p.
    380, this court expressed agreement with the conclusions of the Report of the
    Mackay Committee regarding both the appropriateness of teaching civic virtues
    in the classroom and the imperative not to undermine families in the process:

[T]here are ways of encouraging
    the development of young people in public school of high standards of character,
    ethical ideals, and an understanding of moral values, without trespassing on
    the personal religious beliefs which they have learned at home or in their
    places of worship.

[54]

As distinguished from religious
    education, this court stated, "the inculcation of proper moral standards
    in elementary school children" is a legitimate objective of government
    through education. This conclusion was endorsed by the Supreme Court in
S.L.
,
    at para. 20. See also
Chamberlain
, at paras. 64-67; see also LeBel J. at
    paras. 211-212 and Gonthier J. in dissent but not on this point, at para. 184;
S.L.
,
    per Deschamps J., at para. 40, LeBel J. at para. 54 and see generally
Loyola
.

[55]

Dr. Bernard Shapiro asserted in
    the
Report of the Commission on Private Schools in Ontario
(October
    1985), (Toronto: The Commission on Private Schools in Ontario, 1985) at p. 39,
    that public schools are necessary in order to ensure that, in a pluralistic
    and multi-cultural society, schools can contribute to the strengthening of the
    social fabric by providing a common acculturation experience for children. He
    added at p. 50 that:

[I]t would also be difficult to
    underestimate the importance of a common, non-commercial acculturation
    experience in the socialization of the young. Indeed, the more fragmented the
    society and diverse the groups striving for their place, the greater the need
    for schools to seek a common unifying core.

[56]

This development of a common
    culture, which includes civic virtues, is the dominant argument for
    specifically
public
schools, as the cases set out.

(2)

Section 169.1 of the
Education Act
is an Iteration in
    Inculcation

[57]

Section 169.1 of the
Education
    Act
, first enacted in 2012, is part of the inculcation effort. It now
    provides:

169.1
(1)  Every
    board shall,

(a)   promote student
    achievement and well-being;

(a.1)   promote a
    positive school climate that is inclusive and accepting of all pupils,
    including pupils of any race, ancestry, place of origin, colour, ethnic origin,
    citizenship, creed, sex, sexual orientation, gender identity, gender
    expression, age, marital status, family status or disability;

(a.2)   promote the
    prevention of bullying;

[58]

In the context, I see the use of
    the word promote in s. 169.1 to denote something close to inculcate. The
    prescribed methods are aimed at securing acceptance by the pupils of the
    morality of the Ministrys concept of inclusion, and their disapproval of the
    listed types of discrimination.

[59]

My colleague identifies the
    ministerial directives and policy documents by which the implementation of s.
    169.1 is to be effected, at paras. 10-11. I repeat for convenience his general
    characterization of their purposes:

These directives and policies are
    all designed to combat racism, religious intolerance and homophobia, and to
    ensure that all students feel welcome and accepted in public schools.

Students are to be provided with
    learning materials that are bias-free and that reflect the diversity of the
    schools population, including diversity of sexual orientation and gender
    identity. A central feature of the Policy is that diversity,
    anti-discrimination and anti-homophobia are not taught in stand-alone lessons
    but rather are fully integrated into the curriculum so that acceptance of
    difference becomes routine. For example, teaching materials for a lesson in
    mathematics might feature children with two fathers or two mothers. In this
    way, all courses are infused with equity principles and teachers are directed
    to ensure that all studentsincluding lesbian, gay, bisexual, transgender,
    transsexual, two spirited, intersex, queer and questioning peoplewill, in the
    words of the EIES, be engaged, included, and respected, and  see themselves
    reflected in their learning environment.

[60]

This is a fair description of some
    of the attitudes the schools and teachers are expected to inculcate in pupils,
    and the methods by which they are expected to do so. For convenience I will
    call this effort the s. 169.1 program.

(3)

Teachers Play a Critical
    Role in Inculcating Civic Virtues

[61]

The Supreme Court has also
    addressed the important role of the teacher in inculcating civic virtues in
    school children: By their conduct, teachers as "medium" must be
    perceived to uphold the values, beliefs and knowledge sought to be transmitted
    by the school system:
Ross v. New Brunswick School District No. 15
,
[1996] 1 S.C.R. 825, per La Forest J. at
    para. 44. In that case the court
upheld
    the dismissal of a teacher who publicly made discriminatory statements in his
    off-duty time.
See also
Toronto
(City)
Board of Education v.
    O.S.S.T.F.
, [1997] 1
    S.C.R. 487, 144 D.L.R. (4th) 385, per Cory J. at para. 55,
R. v. Audet
, [1996] 2 S.C.R. 171, per La Forest J. at p. 196.

[62]

As Dr. Glenn Watson observed
in his
Report
    of the Ministerial Inquiry on Religious Education in Ontario Public Elementary
    Schools
(January, 1990) at
    p. 57
:

An educational system cannot be
    neutral. If there is no religious education or any form of religion in the
    schools, then secular humanism, by default, becomes the basic belief system.
    Secular humanism does not represent a neutral position.

[63]

He noted at p. 50:

In every relationship, and
    especially in that between a teacher and a student, there is something that can
    be referred to as religious education. It is the transmission of ideas, or
    answers to significant life-related questions, or it is the exemplification of
    values by 'precept and example.' There is no way to avoid such an interaction
    and the learning experience associated with that relationship over a period of
    time.

[64]

The appellants intuition that
    teachers play a critical role in inculcating beliefs in school children is
    amply supported.

(4)

Parental Rights in
    Education

[65]

Education of the young is bound to
    be formative; if the state educates the young, it also forms them, at least in
    part, and perhaps the major part. However, the right of parents to care for
    their children and make decisions for their well-being, including decisions
    about education, is primary, and the states authority is secondary to that
    parental right. This has been recognized in many different cases, statutes, and
    international instruments.

[66]

The
Charter
protection of
    parental rights under s. 2(a) is more broadly based than freedom of religion
    under s. 2(a) of the
Charter
. Although the rights of parents to make
    choices for the education of their children may be supported by religious
    beliefs and practices, they are not conditional on religious belief. They are
    equally protected under s. 2(a) as a matter of conscience.

[67]

The law is clear that the
    authority of the state to educate children is a delegated authority: Parents
    delegate their parental authority to teachers and entrust them with the
    responsibility of instilling in their children a large part of the store of
    learning they will acquire during their development.
R. v. Audet
, at
    para. 41.

[68]

The law recognizes the central
    role of parents in education, and their concomitant rights. In
B. (R.) v.
    Children's Aid Society of Metropolitan Toronto
, [1995] 1 S.C.R. 315 at
    para. 223, the Supreme Court noted that the constitutional freedom [of
    religion] includes the right to educate and rear their child in tenets of their
    faith. The court added: until the child reaches an age where she can make an
    independent decision regarding her own religious beliefs, her parents may
    decide on her religion for her and raise her in accordance with that religion.

[69]

In a case involving homeschooling,
R. v. Jones
[1986] 2 S.C.R. 284,
La Forest J. specified that some governmental
    restraint is warranted, noting at para. 63: Those who administer the
    Province's educational requirements may not do so in a manner that unreasonably
    infringes on the right of the parents to teach their children in accordance
    with their religious convictions. He echoed s. 1 of the
Charter
in
    saying: The interference must be demonstrably justified.

[70]

This judicial understanding is
    consistent with recognized international documents. Article 26(3) of the
    Universal Declaration of Human Rights (1948) provides: Parents have a prior
    right to choose the kind of education that shall be given to their children.

[71]

The
Declaration of the Rights
    of the Child
, G.A. Res. 1386 (XIV), U.N. GAOR, 14th Sess., Supp. No. 19, UN
    Doc A/4354 (1959), 19 at Principle 7, para. 2 provides that: The best
    interests of the child shall be the guiding principle of those responsible for
    his education and guidance; that responsibility lies in the first place with
    his parents.

[72]

Finally, Article 18(4) of the
International
    Covenant on Civil and Political Rights
, 19 December 1966, 999 U.N.T.S. 171
    acknowledges the liberty of parents and, when applicable, legal guardians to
    ensure the religious and moral education of their children in conformity with
    their own convictions.

[73]

Everywhere and at all times
    parents have desired to pass their religious and cultural identities on to
    their children, as well as their understanding of what it means to be a good
    and successful human being. As Abella J. noted in
Loyola v. Quebec (A.G.)
[2015] 1 S.C.R. 613 at paras. 64-65: [A]n essential ingredient of the vitality
    of a religious community is the ability of its members to pass on their beliefs
    to their children, whether through instruction in the home or participation in
    communal institutions.

[74]

For many parents, that store of
    cultural knowledge includes convictions about ultimates such as their place in
    the universe and their relationship with God. I need not rehearse the cases on
    freedom of religion. Few have matched the eloquence of South African
    Constitutional Court Justice Albie Sachs, who observed: For many believers,
    their relationship with God or creation is central to all their activities. It
    concerns their capacity to relate in an intensely meaningful fashion to their
    sense of themselves, their community and their universe:
Christian
    Education South Africa v. Minister of Education
, [2000] ZACC 11, 2000 (10)
    B. Const. L.R. 1051 (S. Afr. Const. Ct.), at para. 36.

[75]

Chief Justice Dickson expressed a
    similar understanding: The purpose of s. 2(a) is to ensure that society does
    not interfere with profoundly personal beliefs that govern one's perception of
    oneself, humankind, nature, and, in some cases, a higher or different order of
    being:
R. v Edwards Books
[1986] 2 S.C.R. 713, at para. 97.

[76]

Chief Justice Dickson had earlier
    noted: [w]ith the
Charter
, it has become the right of every Canadian to
    work out for himself or herself what his or her religious obligations, if any,
    should be and it is not for the state to dictate otherwise in
R. v. Big M
    Drug Mart Ltd
., [1985] S.C.J. No. 17, [1985] 1 S.C.R. 295, at
    para. 135.

[77]

These words about freedom of
    religion apply with necessary modifications in the context of the parental
    right to a measure of control over the moral and religious education of their
    children. There is really no dispute about the existence of this parental
    right. The issue is about its reach.

(5)

What is at Stake for the Parent?

[78]

Parents know that the world in
    general and education in particular can defeat them in transmitting their
    religious faith to their children, so the stakes are high. It is therefore
    especially important for the court to attend to the appellants reasons for
    believing that his right to freedom of religion has been infringed. In
    particular, the court must attend to the nature of the interest he is trying to
    protect and advance  the formation of the character and religious faith of his
    children.

[79]

The courts responsibility in
    addressing a religious freedom claim is to engage deeply and sympathetically in
    the agonistic analysis needed to fully understand the religious claim in the
    claimants own terms, as Professor Benjamin Berger asserts in
Laws
    Religion: Religious Difference and the Claims of Constitutionalism
(Toronto: University of Toronto Press, 2015), at p.111, 188.

[80]

We would not be paying due respect
    to the appellants faith commitment by merely accepting, as the application
    judge and my colleague do, that the appellant holds a sincere religious belief
    guided by Biblical and Greek Orthodox teachings. We must go further and ask
    whether the school boards refusal to provide the accommodation the appellant
    sought unduly impedes the appellant in fulfilling his duties as a parent.

[81]

This was the question facing the
    principals when they considered the applicants accommodation demand letter
    dated September 20, 2010. This was the PEACE standard form that included the
    list of ten sensitive topics described by my colleague.

[82]

I do not criticize the manner in
    which the school board principals approached the delicate task of discerning
    just what was truly important to the appellant from the amorphous list my
    colleague accurately described as 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. Nor do I underestimate the difficulty
    faced by teachers and principals. They must navigate humanely, sensitively and
    fairly between the appellant, his children and their classmates who are living
    in the same-sex circumstances that the appellant considers to be morally
    unacceptable. This is a frontier on which deep and wounding emotions can be
    engaged, and where reconciling and balancing is both difficult and necessary.

[83]

The PEACE letter, entitled Our
    Familys Traditional Values, sets out the basic request that the parent be
    given notice whenever concepts or values are presented that may conflict with
    the values of the home. It requests that the parent be given an opportunity to
    not have my/our child participate and to be put in a position to know that a
    family discussion about what was learned was needed. The letter noted that the
    parents concern was to ensure that the school do nothing to undermine the
    values taught at home which are important for achieving eternal life.

[84]

The appellants request morphed
    somewhat as the case progressed over the years. It was narrowed in the
    appellants discussions with the principals and in the appellants affidavit,
    but expanded again to the original list in his cross-examination.

[85]

As is evident from the transcript
    of the November 18, 2010 meeting with the principals, the appellant was
    especially concerned about issues of human sexuality. This would include the
    use of school books that depicted two mommies in a book. The appellant wanted
    his children to be excused from class when such discussions arose.

[86]

The school board representatives
    were resolute in stating that they would not permit the appellants children,
    then four years old and six years old, to be excused. They stated that doing so
    would discriminate against classmates who might happen to be living in the
    same-sex circumstances the appellant found to be unacceptable. In the course of
    the meeting, an interesting exchange occurred:

The appellant: If my son sees a
    picture of two mommies in a book and he says Excuse me, I dont think God
    wants two women to be married. Will my son be disciplined for that?

[School Board's Equity
    Principal]: No, absolutely not.

[Elementary School Principal]:
    No, but I think the teacher would probably say something like You know [sons
    name], thats something you want to go home and speak to youtalk to your
    parents about. And completely taken out of the classroom its a parent issue
    to discuss that

[87]

The appellant received a letter
    dated February 3, 2011 from the Superintendent of Student Achievement, who
    refused his accommodation request. The letter explained that students were all
    expected to participate, in learning activities that reflect the diversity of
    our community. The reason given for refusing the accommodation was that
    allowing his children to be absent from activities where various dimensions of
    diversity are addressed would have a negative impact [] on other students and
    the learning environment, as it fosters a climate of exclusion.

[88]

The appellant repeated his request
    for religious accommodations more than a year later. The school board again
    refused the request by letter dated August 30, 2012. The application to the Superior
    Court was issued a week later.

[89]

In my view, the school boards
    factum fairly summarized the appellants cross-examination evidence:

The Appellant conceded on
    cross-examination that he is not opposed to the teaching of the topics listed
    on the Form as facts; rather, the Appellant is concerned with a teacher stating
    that something is ok or alright.

In addition, the Appellant
    clarified in his cross-examination that he does
not
seek advance
    notification of his childrens participation, or removal of his children from
    class, even if what is discussed conflicts with his religious, moral and
    beliefs if:

(i)It arises
    from student generated discussions;

(ii)The
    teacher participates because of student generated discussions;

(iii)The
    teacher provides factual information and not value judgments;

(iv)The
    discussion is limited to facts related to the proscribed topics identified on
    the Form he submitted as long as the discussion does not involve value
    judgments.

[90]

To summarize the evidence, it
    appears that the appellant agrees to his children being told about the fact of
    same-sex families or to his children being told that they must accept the
    equality of children in same-sex households. He agrees this is necessary in a
    society where all need to get along. While the appellant accepts the equal
    dignity of each person, he does not want his children to be inculcated in the
    view that acceptance of other persons requires full endorsement of all of their
    choices, such as same-sex marriage, which the appellant does not endorse.

[91]

What I glean from this evidence is
    that the appellant fears that his children will be persuaded to abandon the
    insights of their religion if the moral positions taken in the policy materials
    receive the active endorsement of their teachers, which the appellant
    characterized as a value judgment on the sensitive topic.

[92]

This is a legitimate fear, as Dr.
    Watson made clear in his
Report of the Ministerial Inquiry on Religious
    Education in Ontario Public Elementary Schools
quoted earlier
.
    The mores contained in the s.169.1 program can conflict with parental religious
    views, particularly if it is premised on the proposition that true acceptance
    of another person can only be achieved by embracing all of their
    self-understandings.

[93]

The appellant has demonstrated
    that the school boards decision to refuse the accommodation he sought could
    act to limit his freedom of religion. His claim meets the first half of the
    first step of the
Doré/Loyola
framework: his religious freedom is
    implicated.

(6)

Has the Appellant Proven Substantial Interference with his
    Freedom of Religion?

[94]

It is not necessarily contrary to
    a parents freedom of religion for children to be exposed to ideas that
    contradict those of the parents. Some kinds of cognitive dissonance can be
    acceptable, as McLachlin C.J. explained in
Chamberlain
at paras. 64-67.
    See also LeBel J at paras. 211-12 and Gonthier J. in dissent but not on this
    point, at para. 184,
S.L.
, Deschamps J. at para. 40, LeBel J. at para.
    54, and see generally,
Loyola
. However, acceptability depends on the
    purpose and effect of the challenged educational program, and also the age of
    the children involved.

[95]

If the purpose of the challenged
    educational program is to undermine the religious beliefs of school children,
    then the program, and any decisions made to instantiate it, would limit the
    freedom of religion of the parents unacceptably and beyond the capacity to
    justify under s. 1 of the
Charter
:
R. v. Big M Drug Mart Ltd
.,
    [1985] 1 S.C.R. 295 at para. 88. Sometimes, as the Supreme Court found in
Loyola
,
    the infringing purpose is easily found on the face of the policy. That is not
    this case. The appellant has put forward no expert evidence that the s.169.1
    program set by the Ministry of Education and implemented by the school board
    has such a purpose.

[96]

However, if the effect of the
    s.169.1 program were to undermine the efforts of parents to transmit the tenets
    of religious faith to their children, that would also limit the religious
    freedom rights of parents and engage their s. 2(a)
Charter
right to
    freedom of religion, subject to justification under s. 1 of the
Charter
.
    The parents bear the burden proving this limiting effect objectively on the
    balance of probabilities:
S.L.
at paras. 2, 23-24. The burden of
    justifying the limit is on the state actor.

[97]

In this case, the appellant has
    not put forward any objective evidence that the school boards decision to
    refuse accommodation is functioning to undermine his ability to transmit the
    precepts of his religion, including teachings about human sexuality, to his
    children. There is no evidence that his children have experienced negative
    teacher value judgments of the sort he fears, over the many years this case
    has been pending. Nor has he put forward expert evidence detailing the way in
    which the s.169.1 program actually operates that would have this negative
    effect on his ability to transmit his religious faith to his children in the
    absence of the accommodation he seeks. The lack of such evidence is fatal to
    the appellants appeal, which must be dismissed on that basis.

[98]

Dismissing this appeal does not,
    however, give the s.169.1 program a clean constitutional bill of health. Were
    there evidence that the s.169.1 program undermined a parents ability to
    transmit religious faith, together with a refusal to provide accommodation, the
    result might well be different.

[99]

To return to the question posed at
    the outset of these reasons, in my view there are limits imposed by the
Charter
on a provinces power to use publicly funded education to inculcate children in
    beliefs that educational authorities have determined are necessary; these
    limits cannot be specified in advance except very generally, as I have done. To
    repeat the words of La Forest J. in
Jones
, at para. 63: Those who
    administer the Province's educational requirements may not do so in a manner
    that unreasonably infringes on the right of the parents to teach their children
    in accordance with their religious convictions.

See also
Christian
    Education South Africa,
Sachs J., at
    para. 35
.

[100]

In these circumstances, I would
    take LeBel J.s approach in
S.L
. at para. 58, and decline to rule
    definitively on the constitutionality of the s. 169.1 program. It would not be
    hard to imagine that a tweak to the program would pose a problem, or to imagine
    a teacher actively using both the force of personality and approved curriculum
    materials to undermine the faith commitments of students, which could make the
    provision of accommodation necessary. But that is not the case here.

[101]

In light of these considerations,
    the court does not reach the second stage of the
Doré
analysis, which
    would address whether the limits on the appellants freedom of religion are
    demonstrably justified under s. 1 of the
Charter
.

[102]

Accordingly, there is no need to
    determine that inclusion is a 
Charter
value, and the application
    judge erred in doing so. The application judges use of the concept
    instantiates the concerns this court expressed in
Gehl v Canada
(A.G.)
    2017 ONCA 319.

[103]

The application judges 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 concept 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
.

[104]

Labelling a moral
    commitment as a 
Charter
value is, in practice, a rhetorical move
    -
a result-selective conclusion -
and not the outcome of a transparent
    analytical process.
In doing so the
    sponsor seeks to justify setting apart the desirable moral commitment as
    decisive or worthy of a preference in legal analysis. But whether it is worthy
    of weight in the proportionality calculus should not depend on rhetoric; the
    parties respective interests must be analyzed directly.
What interests are the competing moral
    commitments striving to advance, protect or instantiate?  Are any of the
    competing moral commitments
Charter
rights? If they are, how should we sort
    out the contest under the proportionality test in s. 1 of the
Charter
?

[105]

The school board takes
    the position that there is no need for this court to decide that inclusion is
    a
Charter
value. I would agree. This is not a surprising
    position for the board, since the issue of inclusion remains alive in special
    education, twenty years after
Eaton v. Brant
    (County) Board of
Education
[1997] 1 S.C.R.
    241. This is a delicate and sensitive area
into which it would be imprudent to effectively invoke closure by
    utilizing
Charter
values, newly minted or otherwise. The impact would
    be completely unpredictable, which is another reason to avoid the instantiation
    of
Charter
values.

[106]

My colleague Miller
    J.A. and I referred to some of these issues in
Gehl
, but neither that case nor this case is the one in which to resolve
    them.


[107]

I now turn to make some
    observations about problems in the application of the
Doré/Loyola
framework to the discretionary decisions of line decision makers who do not
    have an adjudicative function.

(7)

Reflections on the Application of
Dor
é
/
Loyola
to Line Decision Makers

[108]

The doctrinal methodology for
    determining whether a limit placed on a
Charter
right is justified
    shifts from context to context. In the context of
Charter
rights challenges to statutes, the test
from
R. v. Oakes
, [1986] 1 S.C.R. 103
gives
prima facie
priority to the
Charter
right claim, placing
    the burden on the state actor to establish, among other things, that the
    reasons for enacting the impugned statutory provision are sufficiently
    compelling to justify the limit placed on the right.
Charter
rights thus have a defeasible priority over statutory objectives. This priority
    is also reflected in the minimal impairment requirement, as Dickson C.J. noted:
    The limiting measures  must impair the right as little as possible
Edwards Books
,
    at p. 768.

[109]

In
Doré,
Abella J. was
    reflecting on the proper approach to an adjudicated administrative decision
    at para. 4. But in
Loyola
the analysis is made to apply to a
    discretionary decision that is not adjudicated. The shift in doctrine from
Doré
to
Loyola
is not a small one.

[110]

The
Doré/Loyola
framework is intended to adapt the s. 1 justificatory methodology to the
    assessment of potential
Charter
infringement by decisions of administrative decision
    makers. I have concerns that this project miscarries in para. 4 of
Loyola
,
    which both the application judge and my colleague invoke.

[111]

Abella J. states in para. 4 of
Loyola
that,
    under
Doré
,

the discretionary decision-maker
is required to proportionately balance the
Charter
protections to ensure that they are limited no more than is necessary given the
    applicable statutory objectives that she or he is obliged to pursue. The
    language used by Abella J. seems to suggest that the statutory objectives have
    indefeasible priority over
Charter
rights, contrary to the
Oakes
methodology. Perhaps the logic of para. 4 is that if a statutory objective is
    pressing and substantial (understood in the
Oakes
sense), that would be
    sufficient to justify the limit of the
Charter
right, irrespective of any countervailing
    considerations. See
Doré
, para.6.
I am
    uncertain.

Other Difficulties
    with the
Doré/Loyola
Framework


[112]

The context of the underlying
    decision under appeal raises some methodological problems. The
Doré/Loyola
framework cannot easily be applied to a line decision made by several educators
    who were not operating in a context that would yield an adjudicated
    administrative decision, as
Doré
contemplated at para. 4.

[113]

Where what is at issue is the
    discretionary decision of a line official, as in this case, and not, as in
Doré
,
an
    adjudicated administrative decision, the rights claimant caught by the
Doré/Loyola
framework faces several
    serious difficulties
.

[114]

Consider the context of this case
    as an example. In Ontario, school boards are corporations and have a board of
    trustees (sometimes confusingly referred to as the school board), composed of
    democratically elected citizens. Boards of trustees are occasionally required
    to exercise statutory powers in a natural justice hearing under the aegis of
    the
Statutory Powers Procedures Act
, R.S.O. 1990, c. S.22. However,
    most school board decisions are made by its employees, such as teachers,
    principals, and supervisory officers, as in this case. Sometimes they proceed
    in a manner consistent with policy direction from the
Education Act
, the
    Ministry of Education, or the board of trustees, and sometimes they are left to
    respond to the exigencies of the circumstances without much policy guidance
    apart from common sense, and their training and experience. These individuals
    typically lack
Charter
expertise.

[115]

At first sight, it seems to be
    eminently reasonable to invoke reasonableness as the applicable standard of
    review of discretionary decisions, as the application judge and my colleague
    do.

[116]

But some questions emerge. I
    reflect on several difficulties with the application of the
Doré/Loyola
approach to a line decision maker.

[117]

First, in the necessary
    constitutional analysis, who has decided that the underpinning statutory
    objectives are pressing and substantial? Is the line decision maker competent
    and qualified to make that constitutional assessment? As I see it, 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. But this is a contestable proposition. Not every
    legislative or policy objective implemented by a challenged line decision would
    have this character. But a presumption would effectively reverse the s. 1
Charter
onus to the rights claimants disadvantage.

[118]

Second, does such a presumption
    put the rights claimant in the position of having to challenge the legislative
    objective in order to defeat the presumption, when all she wants to do is
    challenge a specific decision?

[119]

Third, who is called upon to
    exercise the justificatory muscles to which Abella J. refers in paragraph 5
    of
Doré
, when there is no adjudication at the moment of the challenged
    decision?

[120]

Fourth, what sort of justification
    must the line decision maker offer for the challenged decision? Is it to be
    provided at the moment of decision, or is it in the hands of creative lawyers
    when the decision is challenged judicially? In my view, in order to justify a
Charter
limit, the record of evidence considered by the line decision maker should
    demonstrate the elements of accountability, intelligibility, adequacy and
    transparency courts expect from administrative tribunals.

[121]

Finally, what is the applicable
    standard of review? Is it to be reasonableness as the deferential standard,
    derived from
Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 1 at
    para. 47? This is implied in
Doré
at para. 47, but that was in
    relation to a regulator functioning in an adjudicative setting, not to a line
    decision maker.

[122]

Can these decision makers be
    considered expert in the manner generally understood by administrative law to
    justify a deferential standard of review? Within a narrow professional compass,
    individual school board employees can have a measure of expertise in the
    education profession, acquired by qualifications and training, and by
    experience, but these vary among individuals. When they are confronted with the
    claim that their decision is not sufficiently respectful of
Charter
rights, will they understand how to reason from constitutional principles?

[123]

Further, can we be sure that these
    line decision makers will inevitably be impartial and fair, even when their own
    decisions are challenged? Can we be sure that their supervisors, also being
    human, will be impartial and fair, and not defensive of the conduct of their
    subordinates? The administration of justice has developed numerous mechanisms
    to ensure impartiality and fairness on the part of decision makers, but none of
    them apply to discretionary line decision makers.

[124]

Where a person challenges the
    decision of a line official on the basis that it violates a
Charter
right, there is every prospect that the first impartial decision maker in the
    sequence will be a court or other adjudicative tribunal.

[125]

I would be reluctant to apply a
    robust concept of reasonableness burdened by a standing obligation of
    judicial deference to a line decision makers discretionary decision. There is
    a real risk that a claimants
Charter
rights will not be understood and
    will not be given effect by the line decision maker. I would prefer a more
    sensitive application of the nostrum that reasonableness takes its colour from
    the context, and "must be assessed in the context of the particular type
    of decision-making involved and all relevant factors," as Stratas J.A.
    observed in
Re: Sound v. Canadian Association of Broadcasters
2017 FCA
    138 at para. 34, 148 C.P.R. (4th) 91, citing several Supreme Court decisions.
    It is one thing to defer to an educator on educational matters, but something
    else to defer to an educator on constitutional matters.

Released: November 22, 2017

P. Lauwers J.A.

I agree B.W. Miller
    J.A.





[1]

The first appearance of this language in a
    statute was in

1896
, in

An Act Consolidating and Revising the Public Schools Acts
, (1896),
59 Vict., c.
    70,
at s. 76(1).


