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• Index • The Dhillen Case • The Pannu Case • The Nijjar Case • The O'Malley Case • The Roosma Case • The Moore Case • The Kurvits Case • The Schroen Case • The Caldwell Case • The Fancy Case • The Brockie Case • The Ross Case • The Trinity Case • Resources • Printer Friendly Version •
acts
This case involved a school teacher
(Malcolm Ross) who, in the name of Christianity, held, published and
pronounced anti-Semitic values; a school board (Board of
School Trustees, District No. 15), who continued to employ him, and
a complainant (David Attis), who claimed that both the teacher and
the board discriminated in the provision of educational services. A
Board of Inquiry ruled in favour of the complainant, and ordered
that the school board a) remove Ross from the classroom for a period
of 18 months; b) place Ross in a non-teaching position, should one
become available within that 18 month period; c) terminate his
employment if, by the end of the 18 month period, he had not been
placed in a non-teaching position and d) terminate his non-teaching
employment at any time in the future should he pronounce, write,
sell or publish anti-Semitic statements. A New Brunswick Court
upheld the first three parts of the order, but quashed the fourth on the
grounds that the Board of Inquiry did not have the jurisdiction to
make such an order. A New Brunswick Court of Appeal quashed
the remaining parts of the order on the grounds that the remedy
(removing Ross from the classroom) did not meet a "pressing and
substantial" purpose, given that the complaint arose from his
off-duty activities. The Supreme Court of Canada upheld the decision
of the original Board of Inquiry while quashing the fourth part of
its proposed remedy. (Ross v. New Brunswick School Dist. No.
15 (1996), 25 C.H.R.R. D/175 (S.C.C.))
Questions
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Did Ross and the Board of
School Trustees, District No. 15, discriminate under s. 5(1) of
the New Brunswick Human Rights Act ?
-
Did
the order made by the Board of Inquiry infringe ss, 2(a) and
2(b) of the Charter of Rights and Freedoms
?
Rulings
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Yes
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Only in part.
Reasoning
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School children are unable to
distinguish between professional and personal value statements
made bry their teachers, who are a medium for the transmission of
values. Even in the absence of direct evidence, it is reasonable
to assume that Ross, whose off-duty anti-Semitic activity had
gained a certain notoriety, contributed to the poisoning
of the district's educational environment. The School board had a responsibility
to provide a discrimination free educational environment for its
students. By continuing to employ Ross, the Board
of Trustees silently condoned his discriminatory behaviour and
contributed to the district's discriminatory environment. Therefore
both the teacher and the school board violated s. 5(1) of the Act.
-
The remedy proposed by the Board of
Inquiry partially met the Oakes test (as outlined in previous
case). The
objective of the order was to eradicate discrimination against
Jews in School District 15. This objective was both substantive
and pressing, especially in the context of the persecution
suffered by Jews throughout history. However, only the first
three parts of the proposed remedy, which aimed to remove Ross
from the classroom, were rationally connected to this objective.
As long as Ross was interacting with students in the classroom,
it was reasonable to censor his freedom of expression and of
religion because it was impairing his capacity to provide
educational services without discrimination. However, once
Ross was removed from the classroom, he was free to express
himself freely and to practice his religion freely, according to
his interpretation.
Because he would no longer be part of the educational
environment, he could not poison it with his anti-Semitic
propaganda. Therefore, the first three parts of the order
interfered minimally with the constitutional rights of the
respondent, whereas the last part interfered grievously.
Further information:
the Oakes test
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