( Disponible en anglais seulement )
Late last year, the Ontario Court of Appeal upheld a lower court’s finding that a decision by the Hamilton-Wentworth District School Board (the “Board”) to deny a parent’s accommodation request to shelter his children from “false teachings” was reasonable.
An in-depth summary of the lower court’s decision can be found here.
The appellant, a father of two children attending a school of the Board, challenged the Board’s refusal to grant his request: (1) to be notified when “objectionable” instruction would be taught to his children; and (2) for the right to have his children excused from classes in which he deemed the instruction to be objectionable. The appellant was a committed Christian and a member of the Greek Orthodox Church.
In his application to the court, he sought a declaration that, as a parent, he has final authority over the education of his children, as well as an order that the Board provide him with information, in advance, as to specific curriculum areas being taught to his children so that he would be permitted to withdraw them from classes conflicting with his religious beliefs. He argued the denial was a breach of his right to freedom of religion under section 2(a) of the Charter of Rights and Freedoms (the “Charter”) and that it violated his right to freedom from discrimination under the Ontario Human Rights Code (the “Code”).
The Court refused the application for a declaration, finding that while parents have authority over their children on matters such as education under the common law, these obligations must also align with the legal framework and regulations established under the Education Act (the “Act”).
The Court went on to find that the Board’s decision to deny the request for accommodation was reasonable on two grounds: (1) granting the request would cause undue hardship on the teacher; and (2) granting the request had the potential for non-attendance.
Court of Appeal
The father appealed the judge’s determination that while the Board’s refusal to provide the accommodation engaged his religious freedom, the refusal was reasonable.
Justice Sharpe, writing alone, dismissed the appeal on the ground that the appellant had provided no evidence of any actual instance where his or his children’s religious freedom had been violated and had, therefore, failed to establish any interference with, or violation of, his religious freedom. Thus, while he ultimately agreed with the result reached by the judge, he disagreed with the conclusion that the appellant had established an infringement of his right to freedom of religion under the Charter.
Justice Lauwers wrote a concurring judgment for the majority, finding that the appellant had not put forward any objective evidence that the school board’s decision to refuse accommodation had functioned to undermine his ability to transmit the precepts of his religion, including teachings about human sexuality, to his children. There was no evidence that his children had experienced “value judgments” of the sort he feared. He also had not put forward any expert evidence detailing how the actual operation of section 169.1 of the Act (which requires schools to promote inclusive and accepting climates, and on which the Board’s Equity Policy was based) would have this negative effect on his ability to transmit his religious faith to his children in the absence of the accommodation he sought.
Notably, Justice Lauwers went on to state that had there been evidence that section 169.1 of the Act undermined a parent’s ability to transmit religious faith, together with a refusal to provide accommodation, the result might well have been different.
While the decision reaffirms a school board’s ability to reasonably deny requests from parents for religious accommodation, it leaves the door open to future cases challenging a school board’s equity and inclusion policy, if there is evidence that the policy conflicts with the parent’s ability to transmit their religious faith to their children.