Appendix D: Case examples for resolving competing rights

Scenario 1: The Prom

Recognizing rights

1. What are the claims about?

Matt’s Claim Matt is a gay 17-year-old student attending a publicly funded Catholic high school. He wishes to go to the prom with a same-sex date. The prom is being held at a rental hall off school property. He is considering seeking a court injunction because the prom is only weeks away.

Catholic School Board Claim The school principal and the School Board have said no on the grounds that this would be endorsing conduct contrary to the Catholic Church’s teachings. Matt believes that this is a violation of his human rights.

2. Do claims connect to legitimate rights and interests? 

a. Does the situation involve individuals or groups rather than only operational interests?

Matt’s claim:

• Matt and his boyfriend who attends another school
• Matt’s school friends and peers can bring their opposite sex dates
• Other LGBTQ students who might have liked to bring dates
• Matt’s parents and parents of other LGBTQ students who are involved in school life and look forward to this “rite of passage” for their children
• School staff who have worked hard with students and want to support their celebration
• LGBTQ community members and advocates who could not bring same sex dates to their proms and continue to experience stigma and discrimination

• Catholic school principal who understands his job responsibilities to cover instilling a religious environment across extra curricular and social activities
• Catholic school board members who understand their responsibilities to include upholding religious teachings through board policy and practice
• Catholic Church sees its role as the spiritual guide to school board policy & practice over religious matters
• Other students, staff and parents who are concerned about maintaining a Catholic environment and not promoting the “gay lifestyle”
• Other schools in the board may have to address similar requests and are watching the outcome of this case

• Freedom from discrimination based on sexual orientation including poison-free environment under Ontario Human Rights Code s.1 & Charter equality rights s.15(1)
• Freedom of expression, Charter s. 2(b)
• Freedom of association, Charter s. 2(d)
• Reasonable limits on rights Charter s.1
• Right to and requirement for elementary and secondary school education from age 6 to 18 under Ontario Education Act
• Right to education without discrimination under UN Convention on Economic Social and Cultural Rights articles 2 and 13.1 & 2
• Freedom of religion only limited by need to protect rights of others, UN Convention on Civil and Political Rights article 18.3
• School sanctioned extracurricular and social activities may be a bona fide reasonable benefit of school life

• Separate (Catholic) school rights preserved under Ontario Human Rights Code s.19, Charter s.29, 1867 Constitution Act s. 93
• Education Act provisions and regulations relating to Roman Catholic Boards
• Freedom of conscience and religion under Charter s. 2(a), and under UN Convention on Civil and Political Rights article 18.1

• Extracurricular/social activities held off school premises not at the core of teaching
• Prom is not a religious event, is not educational in nature, and is held off of school property
• Diversity and inconsistency of Catholic opinion and practice: school accepts gay students but wishes to suppress all activity connected with their sexuality

• Catholic school rights include full board discretion over religious matters
• All school sanctioned activities, on or off site, must promote and uphold religious teachings
• School board practice has been consistent with policy, even if diversity of Catholic opinion exists

• Unlike other students, he is not free to choose his date for school social functions, would have to go without his boyfriend
• Prohibiting a same-sex date substantially interferes with nature of a prom which typically involves bringing a date and or dancing with a partner of choice
• Would miss out on this end of school/graduation “rite of passage”
• Differential treatment based on sexual orientation amounts to serious injury of dignity

• Allowing same sex date at extracurricular/ social activities would impede school’s ability to promote religious school environment and teach religious curriculum consistent with tenets of the faith during core hours
• Would have broad impact on other Catholic schools and Catholic Church

Reconciling rights

• Prohibit non-LGBTQ students from bringing formal “dates” to the prom as well
• Allow any student to bring a “guest” who is not a student of that school
• Require all students to refrain from intimate behaviour
• Such neutral terminology and inclusive policy approach could help avoid further stigmatizing individuals based on their sexual orientation
• School would otherwise limit upholding formal Catholic board policy and Church position on religious tenets to educational settings and core hours
• Board could maintain position that a “don’t ask don’t tell” guest policy would not prejudice Catholic school rights

• Change school/board policy to no longer sanction/organize/fund proms as official school events; such events would be left entirely as a student-initiated responsibility held offsite without any formal connection to the Catholic school or board

5. If not, is there a next best solution for one or both rights?

• Allow Matt to attend with a “guest” friend of his choice while allowing other students to attend with their formal opposite sex “date”

• Comply with any court injunction and allow Matt to attend the prom with his “boyfriend” in this case only
• Take the position that such an injunction does not prejudice Catholic school rights
• Examine Church doctrine more closely against school/board policy to deem whether proms are at the core or periphery of Catholic school rights

Making decisions

• Hall v. Powers, Ont. Superior Curt 2002 (injunction order allowing Hall to attend prom with same-sex date)
• Smith v. Knights of Columbus, BCHRT 2005 (re: scope of organizational obligations on versus off premises)

• Hall v. Powers, Ont. Superior Court 2002 (did not rule on Catholic school rights)
• Ross v. New Brunswick School District No. 15, SCC 1996 (re: poisoned environment)

• Schools fall under Code s.1 “service”
• Matt’s claim involves Code ground of sexual orientation

• Catholic board claim falls under Code s.19 defence

Scenario 2: College Admission Standards

Recognizing rights

• The college’s religious students, faculty and administrative staff who wish to follow the tenets of the faith
• Other public or private Canadian colleges and universities with traditional religious affiliations
• Christian churches and religious organizations

• LGBTQ students (and their parents) and teachers in the public school system
• Prospective LGBTQ or non-Christian students to the college
• Teacher education governing bodies and other accreditation boards across Canada
• Other self-governing professional bodies across Canada

• Freedom from discrimination in services and employment based on creed under Ontario Human Rights Code ss.1, 5 and 9
• Defence for religious organizations under Code s.18
• Freedom of conscience and religion under Charter s. 2(a) and under UN Convention on Civil and Political Rights article 18.1
• Equality rights under Charter s.15 based on religion
• Right to free expression under Charter 2.b
• Liberty to choose religious education under UN Convention on Economic, Social and Cultural Rights article 13.3

• Freedom from discrimination in services based on sexual orientation including a poison-free classroom environment under Ontario Human Rights Code s.1
• Equality rights under Charter s.15 based on religion
• Right to education directed to strengthen respect for human rights under UN Convention on Economic, Social and Cultural Rights article 13.1

• Freedom to hold beliefs is broader than the freedom to act on them
• The college’s policy only prohibits homosexual activities of students while they attend the College
• The college’s policy says nothing about proselytizing against homosexual behaviour or otherwise singling out or treating LGBTQ students differently in the public school system
• There is no evidence that other graduates have engaged in such behaviour

• Adhering to the college’s policy prohibiting homosexual behaviour can lead to intolerant and discriminatory behaviour and even a poisoned environment in the public school environment
• Governing body and schools boards have legal obligations under the Code to ensure welcoming environments free from discrimination and harassment

• Denial of program certification for a religious teachers’ college would bar graduates from pursuing employment and a career in teaching
• They would have to be trained at a certified “secular” teachers’ college instead, denying them the freedom of religion they could have otherwise enjoyed while attending a religious teachers’ college

• Public school students who identify as LGBTQ are already extremely marginalized and face extensive harassment and discrimination. They also experience higher rates of mental illness and suicide. 
• Schools and governing bodies should not condone certification and employment of teachers who might not respect, protect and promote equality and freedom from discrimination and harassment for LGBTQ students

Reconciling rights

• Without limiting the religious college’s policy against homosexual behaviour, certify the college’s teaching program therefore allowing graduates to seek employment at public schools
• Assume the college’s graduates will not harass or discriminate or otherwise fail to respect, protect and promote the human rights of LGBTQ students
• If such behaviour does happen, address it quickly through normal complaint mechanisms and performance reviews including discipline up to and including dismissal
• Educate all staff and students about their human rights obligations and ensure they promote equality, respect and a welcoming environment for LGBTQ students

• Amend the college’s policy to be silent on any prohibition against homosexual behaviour altogether 
• Add to the amended policy, or to the existing policy, a provision that student teachers have human rights obligations to respect, protect and promote the Code rights of LGBTQ and other students

• Certify the religious college’s teaching program regardless of the college’s prohibitive policy
• At the same time, require its graduates to complete additional requirements regarding their human rights obligations
• Or, require all teacher training programs regardless of religious affiliation to include requirements on teachers’ human rights obligations
• Making decisions

• Trinity Western University v. British Columbia College of Teachers, SCC 2001

• Chamberlain v. Surrey School District No. 36, SCC 2002
• Ross v. New Brunswick School District No. 15, SCC 1996
• R v. Jones, SCC 1986 (public interest in maintaining and improving supportive environments in the classroom)

• College would need to argue that the governing body’s certification power is a “service” within the meaning of the Code and make a claim based on creed accordingly

• LGBTQ students and/or their parents/ guardians, or someone or some group on their behalf, would have to make out a claim against either the school/board and/or the governing body in “services” on the ground of sexual orientation and/ or sex (gender identity)

Scenario 3: County Newspaper Editorial

Recognizing rights

• The goods importer in this claim
• Other goods importers living and or doing business in the county
• Immigrants or visitors to the county

• The county newspaper publisher, its editorial board and staff
• The county newspaper’s corporate parent
• Other media publishers and journalists 

• Right to equal treatment with respect to services, goods and facilities without discrimination based on place of origin and possibly other related grounds under section 1 of the Code
• Code s.13(1) prohibits announced intention to discriminate by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I

• Section 13 (2) of the Code protects opinion and says section 13 (1) shall not interfere with freedom of expression of opinion
• Right to freedom of expression under section 2(b) of the Charter

• The goods importer would have to show how the content of the editorial amounts to a notice, sign, symbol, emblem, or other similar representation that indicates the intention of a person to discriminate in employment housing or services
• Editorial based on a prohibited ground of discrimination such as place of origin
• He might also have to show why the right to freedom of expression under section 2 (b) of the Charter should be limited under section 1 of the Charter in this circumstance

• Editorials are “opinion.” They are not a “service” within the meaning of the Code
• Even it were a service, the editorial cannot be considered a “similar representation” to a sign, notice or 
• symbol under s.13 (1)
• Nor does the editorial declare an intent to discriminate in employment, housing, services, etc
• Nor does the editorial violate the hate provisions of the Criminal Code

• The goods importer might argue, for example, how the editorial would result in the local community refusing to buy from those who import goods from outside the county putting them out of business without economic means to support themselves and their families. 
• He might also argue there is a negative impact on business people who are perceived to be “foreigners” because of race or related grounds

• Any limit on editorials, outside of Criminal Code provisions against hate, would put a chill on a newspaper’s ability to operate freely and independently on the basis of free expression in a democratic society

Reconciling rights

• The goods importer’s claim does not appear to fall within the scope of the right to be free from announced intent to discriminate under the Code
• The goods importer does not have a competing right that requires consideration for reconciliation
• Publication of opinion in the media is a matter at the core of freedom of expression and freedom of the press in a democratic society. Any ambiguity should be resolved in favour of the exclusion of such matters from the Code

• The newspaper in its discretion might consider printing letters to the editor written by non- country residents, giving opportunity for these individuals to oppose the editorial opinion

• Not required

Making decisions

• None applicable to the goods importer’s claim

• Whiteley v. Osprey Media Publishing, HRTO 2010
• In 2008, OHRC concluded it did not have jurisdiction under the Code to proceed with complaints about an article in Maclean’s magazine

• The goods importer’s claim could not be made out under s.13(1) of the Code

• Freedom of expression of opinion protected under s.13(2) of the Code