Court of Appeal rules on religious accomodation in Ontario schools

[T]he right of parents to care for their children and make decisions for their well-being, including decisions about education, is primary, and the state’s authority is secondary to that parental right.
— Justice Lauwers, Ontario Court of Appeal

Today, the Ontario Court of Appeal released its decision in E.T. v Hamilton-Wentworth District School Board, concerning a family’s request for religious accommodation and the School Board’s refusal to accommodate.

The appeal was dismissed for evidentiary reasons, but a majority of the Court left open the possibility for a future legal challenge and emphasized the importance of parental rights in education.

Christian Legal Fellowship (CLF) intervened in the case and made both written and oral submissions to the Court of Appeal.

The decision provides a strong reaffirmation that parents, not the state, have the primary authority to make decisions for their children’s well-being and education. The majority has signalled to public schools that they must be careful not to undermine a student’s beliefs or pressure them to embrace moral viewpoints or choices they disagree with. Acceptance of others is an important virtue to be encouraged, but as the Supreme Court has recognized, cannot be interpreted as a demand to approve of all practices or beliefs.
— Derek Ross, CLF Executive Director & General Counsel

Factual background

The case was brought by a father of elementary-school aged children (Mr. E.T.), who asked for advance notification from the School Board when certain subjects were to be taught so he could remove his children from classes should the content conflict with their sincerely held religious beliefs. The School Board refused the request. It claimed the logistical challenges were too burdensome, but even if accommodation were practically feasible, non-attendance would create a risk of discrimination for those students who remained; according to the School Board, participation by all students is necessary to encourage a “positive school climate”.

The Court of Appeal’s split reasons

All three judges of the Court of Appeal concluded that there was insufficient evidence that E.T.’s children were actually exposed to teachings or activities that violated their family’s religious beliefs. However, the court was split 2-1 on underlying reasoning.

Justice Sharpe concluded that even if there had been an interference with E.T.’s religious freedom, the School Board’s decision to deny his accommodation request was reasonable in light of “its statutory mandate to promote equity and inclusive education” (para 35). Justice Sharpe relied on s. 169.1 of the Education Act, and several ministerial directives and policies issued pursuant to it, which were “all designed to combat racism, religious intolerance and homophobia, and to ensure that all students feel welcome and accepted in public schools” (para 59).

Justice Lauwers, joined by Justice Miller (“the majority”), agreed that these directives (referred to as “the s. 169.1 program”) expected schools and teachers to “inculcate” certain attitudes in pupils. They cautioned, however, that “there are limits imposed by the Charter on a province’s power to use publicly funded education to inculcate children in beliefs that educational authorities have determined are necessary”. One such limit is that education must not “unreasonably infringe on the right of the parents to teach their children in accordance with their religious convictions” (para 99).

In this case, the majority acknowledged that E.T. was concerned that his children would be “persuaded to abandon the insights of their religion if the moral positions taken in the policy materials receive the active endorsement of their teachers” (para 91). The majority recognized that this was a “legitimate fear”: “the mores contained in the s. 169.1 program can conflict with parental religious views, particularly if it is premised on the proposition that true acceptance of another person can only be achieved by embracing all of their self-understandings” (para 92).

The majority noted that there was no evidence that E.T.’s children had experienced any such “negative teacher ‘value judgments’”, or that E.T.'s ability to transmit his faith to his children had been undermined, and dismissed the appeal on that basis (para 97). However, they left the door open to a future legal challenge:

Dismissing this appeal does not, however, give the s. 169.1 program a clean constitutional bill of health. Were there evidence that the s.169.1 program undermined a parent’s ability to transmit religious faith, together with a refusal to provide accommodation, the result might well be different…

 …It would not be hard to imagine that a tweak to the program would pose a problem, or to imagine a teacher actively using both the force of personality and approved curriculum materials to undermine the faith commitments of students, which could make the provision of accommodation necessary. But that is not the case here.  (paras 98, 100).

CLF’s submissions

CLF focused its written submissions on the issue of Charter values, which were relied upon by both the School Board and the lower court. CLF argued that the role of Charter values in judicial reasoning should be carefully circumscribed. CLF’s factum explained why “it is inappropriate to subordinate constitutionally entrenched and carefully defined Charter rights to subjective and uncertain Charter values.” In particular, CLF explained that a “values analysis” inappropriately requires courts to engage in moral prioritizing rather than rights adjudication, and undermines a robust legal analysis that rests on evidentiary requirements.

A number of these themes were reflected in paras 102-106 of the decision, in which the majority criticized “the subjective nature of decisions invoking Charter values and the lack of transparency in the reasoning process leading to their identification.”

CLF also argued that an important component of freedom of religion is the ability of parents to pass on their beliefs to their children, a principle which has been recognized by the Supreme Court of Canada and in international human rights instruments.

The majority stressed the primacy of parental rights in Canadian and international law throughout their reasons, affirming that:

“[T]he right of parents to care for their children and make decisions for their well-being, including decisions about education, is primary, and the state’s authority is secondary to that right” (para 65).
“The law is clear that the authority of the state to educate children is a delegated authority” (para 67).
“The law recognizes the central role of parents in education, and their concomitant rights” (para 68).
— Justice Lauwers

Further reading

CLF was represented at the appeal by Executive Director & General Counsel Derek Ross and Legal Counsel Deina Warren. CLF member Albertos Polizogopoulos represented the Appellant, E.T.  

Further information about CLF’s intervention is available here.

CLF's Factum is available here.

The Court of Appeal’s decision is available here