Board Finding of School District Liability for Actions of Teacher Upheld

Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.)

In a unanimous ruling the Supreme Court of Canada upholds the decision of a Board of Inquiry which ruled that the Board of School Trustees, District No. 15 discriminated with respect to a public service because it failed to take appropriate action against a teacher, Malcolm Ross, who made repeated public attacks on Jewish people.

David Attis, a Jewish parent, complained in 1988 that Malcolm Ross, a teacher in School District No. 15, publicly made racist and discriminatory comments about Jewish people during his off-duty time, and that this created a "poisoned environment" in the school district, negatively affecting the Jewish children and other minority students. Mr. Ross’s writings and statements communicating his anti-Semitic views included books, letters and interviews with local media. The Board of Inquiry found that, despite mounting complaints about Mr. Ross’s activities between 1978 and 1987, the School Board reprimanded Mr. Ross ineffectively, and, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings. This resulted in an atmosphere in the school district where anti-Jewish sentiments flourished, where students engaged in anti-Semitic acts, and where Jewish students were subject to a "poisoned environment."

The Board of Inquiry issued a two part order. Clause 1 of the order required the Department of Education to take a number of steps to prevent discriminatory treatment in the schools. In clause 2 the Board of Inquiry ordered the School Board to (a) immediately place Malcolm Ross on a leave of absence without pay for a period of eighteen months; (b) appoint Mr. Ross to a non-teaching position if one came available for which he was qualified during this period; (c) terminate his employment at the end of eighteen months if he had not been offered and accepted a non-teaching position; and (d) terminate his employment with the School Board immediately if at any time he published or wrote about a Jewish conspiracy or attacked followers of the Jewish religion, or published, sold or distributed Web of Deceit, The Real Holocaust, Spectre of Power, or Christianity vs. Judeo-Christianity (The Battle for Truth).

The New Brunswick Court of Queen's Bench quashed clause 1 of the Board of Inquiry's order on the grounds that it was beyond the jurisdiction of the Board of Inquiry. The complaint was against the School Board, and no investigation was made with respect to the practices of the Department of Education. It also ruled that the Board of Inquiry had no jurisdiction to make the order contained in clause 2(d) which placed restrictions on Malcolm Ross’s activities outside the classroom when he was no longer a classroom teacher. The remaining parts of the order were upheld.

Malcolm Ross appealed this decision to the New Brunswick Court of Appeal. There the majority found that the Board of Inquiry's order could not stand because it was the respondent's activities outside the school that attracted the complaint. In these circumstances, it ruled that the remedy did not meet a specific purpose so pressing and substantial as to override the Mr. Ross’s constitutional right of freedom of expression.

This is an appeal by David Attis from that decision. The issues in this appeal are (1) whether a school board, which employs a teacher who publicly makes invidiously discriminatory statements, discriminates with respect to services it offers to the public pursuant to s. 5(1) of the New Brunswick Human Rights Act, and (2) whether an order to rectify the discrimination which seeks to remove the teacher from his teaching position, infringes upon the teacher's freedom of expression and freedom of religion guaranteed under ss. 2(a) and 2(b) of the Charter.

The Court finds that two standards of review are in play in this case -- an administrative law standard and a Charter standard. The administrative law standard applies to the Board's finding of discrimination and to its order. The Charter standard applies to the Board's order only.

In the administrative law context, and in light of the wording of the privative clause in the New Brunswick Human Rights Act, the Court rules that it is appropriate to exercise a degree of deference to the findings of fact of a human rights Board of Inquiry. Also, the Court finds that the Board of Inquiry clearly had the discretionary power to issue the order that it did. However, the Court finds that an administrative tribunal exceeds its jurisdiction if it makes an order that infringes the Charter.

The Court upholds the Board of Inquiry's finding that although there was no evidence that students engaging in anti-Jewish behaviour were directly influenced by Malcolm Ross’s teachings, it was reasonable to anticipate that, given the high degree of publicity surrounding his publications and media interviews, his off-duty conduct was a factor influencing discriminatory conduct by the students.

The Court finds that teachers are inextricably linked to the integrity of the school system. They occupy positions of trust and confidence and exert considerable influence over their students as a result of their positions. Where a "poisoned environment" within the school system is traceable to the off-duty conduct of a teacher, that is likely to produce a loss of confidence in the teacher and in the system as a whole. A reasonable inference concerning the effect of Mr. Ross’s conduct is sufficient in this case to support a finding that his continued employment impaired the educational environment generally, by creating an environment characterized by a lack of equality and tolerance.

The Court also upholds the Board of Inquiry's conclusion that the School Board had a duty to maintain a positive school environment for all persons served by it, and that it failed to maintain that positive environment.

Regarding the order of the Board of Inquiry, the Court finds that the order infringed Malcolm Ross’s rights to freedom of expression and freedom of religion. The purpose of the order is to restrict the respondent's expression, including the expression of his religious beliefs.

The Court considers whether the order can be saved by s. 1 of the Charter as a reasonable limit on these rights by considering the educational context, the employment context, and the context of anti-Semitism. The Court finds that the educational context here is the education of young children who are less likely to make an intellectual distinction between comments a teacher makes in the school and those the teacher makes outside the school. Children are also more likely to feel threatened and isolated by a teacher who makes comments that denigrate personal characteristics of a group to which they belong. The children have the right to be educated in a school system that is free from bias, prejudice and intolerance. It is this right that must be balanced against the respondent's right to make discriminatory statements.

Regarding the employment context, the Court finds that the state, as employer, has a duty to ensure that the fulfilment of public functions is undertaken in a manner that does not undermine public trust and confidence.

It also finds, considering the context of anti-Semitism, that Malcolm Ross must not be permitted to use the Charter to roll back advances made by Jewish persons to combat discrimination against them.

The Court concludes that the Board's order asserts a commitment to the eradication of discrimination in the provision of educational services to the public, and that this is a pressing and substantial objective which justifies overriding Mr. Ross’s rights to freedom of expression and religion.

The Court also finds that there is a rational connection between Mr. Ross’s conduct and the harm -- the poisoned educational environment -- when he was in a teaching position. Clauses 2(a),(b) and (c) which remove Mr. Ross from his teaching position are rationally connected to the objective of the order. However, the Court rules that clause 2(d), which restricts Mr. Ross off-duty conduct when he is not in a teaching position, does not meet the minimal impairment test; it impairs the right to freedom of expression more than is necessary. The evidence does not support the conclusion that the residual poisoned effect would last indefinitely once Ross was placed in a non-teaching role. Clause 2(d) of the order is not justified under s. 1.

The appeal is allowed, and clauses 2(a), (b) and (c) of the Board of Inquiry's order are restored. Costs are awarded to the appellant Attis.

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