Attis v. Board of Education of District No. 15 et al., (1996) 171 N.B.R.(2d) 321 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 03, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 171 N.B.R.(2d) 321 (SCC);437 APR 32;[1996] 1 SCR 825;1996 CanLII 237 (SCC);171 NBR (2d) 321;133 DLR (4th) 1;195 NR 81;37 Admin LR (2d) 131;AZ-96111042;JE 96-739;[1996] SCJ No 40 (QL);[1996] ACS no 40;25 CHRR 175;35 CRR (2d) 1;437 APR 321

Attis v. School Bd. No. 15 (1996), 171 N.B.R.(2d) 321 (SCC);

    171 R.N.-B.(2e) 321; 437 A.P.R. 321

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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David Attis (appellant) v. The Board of School Trustees, District No. 15 (respondent) and The Human Rights Commission of New Brunswick, Malcolm Ross, the Department of Education of New Brunswick, the New Brunswick Teachers' Federation and the Canadian Jewish Congress (respondents) and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry and the Minister of Labour of New Brunswick (respondents)

The Human Rights Commission of New Brunswick (appellant) v. The Board of School Trustees, District No. 15 (respondent) and David Attis (respondent) and Malcolm Ross, the Department of Education of New Brunswick, the New Brunswick Teachers' Federation and the Canadian Jewish Congress (respondents) and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry and the Minister of Labour of New Brunswick (respondents)

The Canadian Jewish Congress (appellant) v. The Board of School Trustees, District No. 15 (respondent) and Malcolm Ross (respondent) and David Attis (respondent) and The Human Rights Commission of New Brunswick, the Department of Education of New Brunswick and the New Brunswick Teachers' Federation (respondents) and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry and the Minister of Labour of New Brunswick (respondents) and the Attorney General of British Columbia, the League for Human Rights of B'Nai Brith Canada, the Canadian Civil Liberties Association and the Canadian Association of Statutory Human Rights Agencies (interveners)

(24002)

Indexed As: Attis v. Board of Education of District No. 15 et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

April 3, 1996.

Summary:

Malcolm Ross, a public school teacher, published virulently anti-Jewish books and wrote articles and letters to the editor and gave interviews on the same subject. A Jewish parent in the school district com­plained to the New Brunswick Human Rights Commission that the promulgating of such views by a teacher poisoned the at­mosphere in the schools and constituted discrimination against Jewish children, in­cluding his own. Further, the School Board's failure to effectively deal with Ross also constituted discrimination. After the Com­mission failed to resolve the matter, it was referred to a Board of Inquiry under the Act.

The Board of Inquiry, in a judgment re­ported at 121 N.B.R.(2d) 1; 304 A.P.R. 1, upheld the complaint and found that the teacher's off-duty conduct constituted dis­crimination against Jewish children in the school district. Not only was the School Board responsible for the discrimination caused by Ross, but the Board's own failure to act effectively constituted discrimination. The Board ordered Ross to be removed from the classroom, suspended without pay for 18 months and given a non-teaching position, if one was available within the 18 month period. If a non-teaching job was not of­fered and accepted within the 18 month period, Ross's employment was to be ter­minated (the removal order). Further, Ross's employment was to be immediately termi­nated if, following the Board's order, he published or distributed any of his works (the gag order). The provincial Department of Education was ordered to modify its curriculum to accommodate Holocaust stud­ies. The Department was also ordered to take certain remedial steps involving, inter alia, multiculturalism, race relations and discrimi­nation. Ross applied for judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 121 N.B.R.(2d) 361; 304 A.P.R. 361, allowed the application in part and struck out the gag order as well as the order af­fecting the Department of Education. Ross was then placed in a non-teaching position. Ross appealed. The New Brunswick Human Rights Commission et al. cross-appealed to have the gag order reinstated.

The New Brunswick Court of Appeal, Ryan, J.A., dissenting, in a decision reported at 142 N.B.R.(2d) 1; 364 A.P.R. 1, allowed the appeal and quashed the removal order. The court dismissed the cross-appeals re­garding the gag order. The New Brunswick Human Rights Commission et al. appealed seeking the reinstatement of the removal order and the gag order.

The Supreme Court of Canada allowed the appeal in part and reinstated the removal order.

Administrative Law - Topic 3202

Judicial review - General - Scope of review - Human rights tribunal - The Supreme Court of Canada considered the standard of review to be applied in the case of a human rights tribunal - The court stated that "the Court confined the superior expertise of a human rights tri­bunal to fact-finding and adjudication in a human rights context. The standard of review on the basis of reasonableness is applicable to these matters. In relation to general questions of law, courts must be supposed to be competent, and a standard of correctness is appropriate" - See para­graph 24 - Furthermore "it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board's superior expertise in fact-finding, a conclusion supported by the existence of words importing a limited privative effect into the constituent legis­lation" - See paragraph 29.

Civil Rights - Topic 345

Freedom of conscience and religion - Exercise of - Restrictions - A teacher was removed from the classroom by a Board of Inquiry in allowing a complaint against the school board that it violated the Human Rights Act by continuing to employ him in the face of his publishing anti-Jewish hate literature - He was sus­pended (without pay) for 18 months and to be terminated if a non-teaching position was not offered and accepted within that period - Immedi­ate termination would result if he con­tinued with the offending off-duty conduct - The teacher applied for judicial review on the ground that the order violated his s. 2 Charter right to freedom of religion and expression - The Supreme Court of Cana­da affirmed that part of the order which removed the teacher from the classroom and struck out the portion controlling the teacher's con­duct once he was removed from the class­room - See paragraphs 56 to 113.

Civil Rights - Topic 973

Discrimination - Facilities and services customarily available to public - Dis­crim­ination on basis of race - [See Civil Rights - Topic 345 ].

Civil Rights - Topic 1042

Discrimination - Religion - Schools - General - [See Civil Rights - Topic 345 ].

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limi­tations on - Hate messages and literature - [See Civil Rights - Topic 345 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 345 ].

Education - Topic 6468

Teachers - Duties - Off-duty conduct - [See Civil Rights - Topic 345 ].

Education - Topic 6468

Teachers - Duties - Off-duty conduct - The Supreme Court of Canada stated that "[b]y their conduct, teachers as 'medium' must be perceived to uphold the values, beliefs and knowledge sought to be trans­mitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the com­munity to be the medium for the edu­ca­tional message and because of the com­munity position they occupy, they are not able to 'choose which hat they will wear on what occasion' ...; teachers do not necessarily check their teaching hats at the school yard gate and may be perceived to be wearing their teaching hats even off duty" - See paragraph 44.

Cases Noticed:

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, consd. [para. 14].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, consd. [para. 23].

Pezim v. British Columbia (Superintendent of Brokers) - see Pezim v. British Columbia Securities Commission et al.

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R 554; 149 N.R. 1, consd. [para. 24].

Dayco (Canada) Ltd. v. National Auto­mobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1, consd. [para. 27].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, consd. [para. 31].

Cromer v. British Columbia Teachers' Federation (1986), 29 D.L.R.(4th) 641 (B.C.C.A.), refd to. [para. 44].

Abbotsford School District No. 34 v. Shewan (1987), 21 B.C.L.R.(2d) 93 (C.A.), consd. [para. 44].

Fraser v. Public Service Staff Relations Board (Can.), [1985] 2 S.C.R. 455; 63 N.R. 161; 23 D.L.R.(4th) 122, consd. [para. 46].

Irwin Toy Ltd. v. Québec (Procureur gé­néral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 59].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; 64 D.L.R.(4th) 577; [1990] 1 W.W.R. 577; 71 Alta. L.R.(2d) 273; 45 C.R.R. 1, consd. [para. 59].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193; [1991] 2 W.W.R. 1; 61 C.C.C.(3d) 1; 3 C.R.R.(2d) 193, refd to. [para. 61].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, consd. [para. 71].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, consd. [para. 72].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, appld. [para. 73].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, consd. [para. 73].

R.B. v. Children's Aid Society of Metro­politan Toronto - see Sheena B., Re.

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, consd. [para. 74].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, consd. [para. 78].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, consd. [para. 78].

Brown v. Board of Education of Topeka (1954), 347 U.S. 483, consd. [para. 81].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, consd. [para. 86].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Taylor and Western Guard Party v. Cana­dian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, consd. [para. 97].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 101].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 8]; sect. 2(a) [para. 68]; sect. 2(b) [para. 56]; sect. 15 [para. 83].

Human Rights Act, R.S.N.B. 1973, c. H-11, sect. 5(1)(b) [para. 35]; sect. 20(1) [para. 33]; sect. 20(4.1)(d), sect. 20(6.2) [para. 9]; sect. 21(1) [para. 25].

Authors and Works Noticed:

Miramichi Leader (1986), generally [paras. 38, 51, 58].

Reyes, Allison, Freedom of Expression and Public School Teachers (1995), 4 Dal. J. Leg. Stud. 35, pp. 37 [para. 44]; 42 [para. 43].

Counsel:

Neil Finkelstein, George Vegh, Joseph Weir and Janice Spencer, for the appel­lant, David Attis;

Thomas S. Kuttner, Charles Ferris and Irwin Cotler, for the appellant, the Human Rights Commission;

Joel Richler and Keith Landy, for the appellant, the Canadian Jewish Congress;

Douglas H. Christie, for the respondent, Malcolm Ross;

Frank A. Falzon, for the intervener, the Attorney General of British Columbia;

David Matas, Marvin Kurz and Jacquie Chic, for the intervener, the Human Rights of B'Nai Brith Canada;

Edward L. Greenspan, Q.C., for the inter­vener, the Canadian Civil Liberties Association;

Joseph J. Arvay, Q.C., written submissions only for the intervener, the Canadian Association of Statutory Human Rights Agencies.

Solicitors of Record:

Blake, Cassels & Graydon, Toronto, Ontario, and Joseph E. Weir, Moncton, New Brunswick, for the appellant, David Attis;

Thomas S. Kuttner, Fredericton, New Brunswick, for the appellant, the Human Rights Commission;

Blake Cassels & Graydon, Toronto, Ontario, for the appellant, the Canadian Jewish Congress;

Douglas H. Christie, Victoria, British Columbia, for the respondent, Malcolm Ross;

Ministry of the Attorney General, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Dale, Streiman & Kurz, Brampton, Ontario, and David Matas, Winnipeg, Manitoba, for the intervener, the Human Rights of B'Nai Brith Canada;

Greenspan, Rosenberg & Buhr, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Arvay, Finlay, Victoria, British Columbia, for the intervener, the Canadian Associ­ation of Statutory Human Rights Agen­cies.

This appeal was heard on October 31, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The decision of the court was delivered on April 3, 1996, in both official languages, by La Forest, J.