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Queen's University
 

Ross

Facts

This case involved a school teacher (Malcolm Ross) who, in the name of Christianity, held, published and pronounced anti-Semitic values;  a school board (Board of School Trustees, District No. 15), who continued to employ him, and a complainant (David Attis), who claimed that both the teacher and the board discriminated in the provision of educational services. A Board of Inquiry ruled in favour of the complainant, and ordered that the school board a) remove Ross from the classroom for a period of 18 months; b) place Ross in a non-teaching position, should one become available within that 18 month period; c) terminate his employment if, by the end of the 18 month period, he had not been placed in a non-teaching position and d) terminate his non-teaching employment at any time in the future should he pronounce, write, sell or publish anti-Semitic statements.  A New Brunswick Court upheld the first three parts of the order, but quashed the fourth on the grounds that the Board of Inquiry did not have the jurisdiction to make such an order.  A New Brunswick Court of Appeal quashed the remaining parts of the order on the grounds that the remedy (removing Ross from the classroom) did not meet a "pressing and substantial" purpose, given that the complaint arose from his off-duty activities. The Supreme Court of Canada upheld the decision of the original Board of Inquiry while quashing the fourth part of its proposed remedy.  (Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.))

Questions

  1. Did Ross and the Board of School Trustees, District No. 15, discriminate under s. 5(1) of the New Brunswick Human Rights Act ?
  2. Did the order made by the Board of Inquiry infringe ss, 2(a) and 2(b) of the Charter of Rights and Freedoms ?

Rulings

  1. Yes
  2. Only in part.

Reasoning

  1. School children are unable to distinguish between professional and personal value statements made by their teachers, who are a medium for the transmission of values. Even in the absence of direct evidence, it is reasonable to assume that Ross, whose off-duty anti-Semitic activity had gained a certain notoriety,  contributed to the poisoning of the district's educational environment.  The School board had a responsibility to provide a discrimination free educational environment for its students.  By continuing to employ Ross, the Board of Trustees silently condoned his discriminatory behaviour and contributed to the district's discriminatory environment. Therefore both the teacher and the school board violated s. 5(1) of the Act.
  2. The remedy proposed by the Board of Inquiry partially met the Oakes test (as outlined in previous case). The objective of the order was to eradicate discrimination against Jews in School District 15. This objective was both substantive and pressing, especially in the context of the persecution suffered by Jews throughout history. However, only the first three parts of the proposed remedy, which aimed to remove Ross from the classroom, were rationally connected to this objective. As long as Ross was interacting with students in the classroom, it was reasonable to censor his freedom of expression and of religion because it was impairing his capacity to provide educational services without discrimination.  However, once Ross was removed from the classroom, he was free to express himself freely and to practice his religion freely, according to his interpretation.  Because he would no longer be part of the educational environment, he could not poison it with his anti-Semitic propaganda. Therefore, the first three parts of the order interfered minimally with the constitutional rights of the respondent, whereas the last part interfered grievously.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000