Considering Key Charter and Human Rights Developments in Education Law

  • June 01, 2018
  • Jean-Frédéric (J-F) Hübsch

On April 4, 2018, the OBA Constitutional, Civil Liberties and Human Rights Section with the OBA Education Law Section hosted a panel to discuss key Charter and human rights developments in education law. Chaired by Nicola Simmons of Keel Cottrelle LLP, the event brought together four expert panelists: Jennifer Scott, associate chair of the Child and Family Services Review Board and vice-chair with the Human Rights Tribunal of Ontario; Kimberley Ishmael, associate at Keel Cottrelle LLP; Azin Samani, senior associate at Bakerlaw; and, Joshua Hunter from the Ministry of the Attorney General’s Constitutional Law Branch.

Jennifer Scott started the event with a presentation about the Child and Youth Division at Social Justice Tribunals Ontario (SJTO), the tribunals cluster that, among others, includes the Human Rights Tribunal of Ontario, the Child and Family Services Review Board, and the Special Education Tribunals. She told the assembled crowd that SJTO’s Child and Youth Division came about out of recognition that the tribunals needed to a better job serving parents and children, particularly since conflicts involving children are often ongoing.

Because timeliness is critical, the Child and Youth Division triages cases according to the immediacy of the impact on the child. Mediations tend to be fast-tracked, and focus on the best interests of the child. The objective is to ensure the mediation is about the substantive impact on the child’s life and what can be done going forward. Ms. Scott noted that it is important for children and youth to participate in the process so their voices and opinions can be heard.

The program continued with a survey of recent human rights and constitutional cases related to education law. Panelists spoke about a Human Rights Tribunal of Ontario decision with respect to service dogs in schools, in which the tribunal found that the school board had met its procedural and substantive obligations when it refused to allow a student with autism to bring his dog to school (J.F. v. Waterloo Catholic District School Board,, 2017 HRTO 1121). The key takeaway from that case according to the panel was the importance of early engagement with parents about school boards’ obligation to investigate accommodation requests, and that independent and contextual evidence to support the decision-making process is key.

In another case, the Divisional Court awarded special damages to cover a portion of private school fees after a mother had withdrawn her child with multiple disabilities from a public school (L.B. v. Toronto District School Board et al, 2017 ONSC 2301). The court found that the school board had failed to sufficiently explore options with the parent to meet her child’s needs. The panelists noted that this case signals the importance of keeping a record of options explored by both school boards and parents when attempting to meet a student’s needs, even after a student has been withdrawn from the public school system.

Issues surrounding religious accommodation in the public school system and admission of students to separate schools rounded out the panel. In E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893, a case at the intersection of equity/inclusion and parental choice, the Court of Appeal found that the school board’s decision not to accommodate a parent’s request that his children be exempt from certain parts of the curriculum did not infringe on the parent’s religious rights. No evidence was put forward to demonstrate that the parent’s ability to transmit his religious beliefs was being undermined by the school board. The panelists noted that the court left open the question of how far the Charter analysis framework set out by the Supreme Court in Doré/Loyola with respect to adjudicated administrative decisions applies to discretionary decisions of individual school administrators.

The event concluded with an overview of the constitutional law case of Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109. Following extensive historical evidence, Saskatchewan’s Court of Queen’s Bench found that the Catholic school board had no right to educate non-Catholics using public funds. The Court suspended its declaration of invalidity of the relevant legislative provisions until June 30, 2018. However, the Government of Saskatchewan has signaled its intention to invoke the notwithstanding clause of the Constitution to override the decision.

The panelists provided the audience many practical notions for working through human rights and constitutional issues in the education context. It will be interesting to see where some of these cases go next.

About the author

J-F is counsel at Ombudsman Ontario and a member of the OBA Education Section executive. His LLM research focuses on procedural fairness and student voice in education law.