In Kandaharian (Litigation Guardian of) v. York Catholic District School Board, the Ontario Divisional Court held that a Catholic school board’s policy requiring candidates for student trustee to be baptized Roman Catholics was unconstitutional and outside the scope of the school board’s authority.
The Applicant was a grade 10 student of the Catholic school board (“Board”) who sought to be a candidate for student trustee. She was selected by her school principal, vice-principals, and guidance counsellors to be the candidate from her school. However, two days before the election, the Applicant’s candidacy was rescinded on the basis that the Board’s policy required student trustees to be baptized Roman Catholics, and the Applicant was an Orthodox Christian. The Applicant brought an application to the Divisional Court challenging the validity of the policy.
The Divisional Court’s Decision
The Court began by reviewing section 55 of the Education Act and O. Reg. 7/07, which govern student trustees and apply to all school boards, not just Catholic school boards. The Court then provided an overview of the history of the constitutional protection for Catholic education in Ontario under section 93(1) of the Constitution Act, as well as the case law which has considered the extent and parameters of that protection.
The Court found that the history and case law establishes that section 93(1) of the Constitution Act provides constitutional protection to Roman Catholic separate schools in Ontario to the extent of the rights they had at the time of Confederation. Those rights can be implied and can survive changes to the education system over time, however to receive the protection of section 93(1) such changes must be referrable back to rights present at the time of Confederation.
The Court stated that any application of the case law, legislation, and history to the facts of a particular case must begin with a consideration of whether the right being relied upon was present at the time of Confederation. The Court found that there was no right or privilege extended to separate schools (or for that matter any other public schools) allowing for student trustees at the time of Confederation. The position of student trustee did not exist in its current form until 2006, after first being introduced through amendments to the Education Act in 1997. As such, the Court found that the protection offered by s. 93 of the Constitution Act would not be available in respect of the treatment of student trustees by the board.