Daly et al. v. Attorney General of Ontario; Ontario English Catholic Teachers’ Association et al., Intervenors
[Indexed as: Daly v. Ontario (Attorney General)]
44 O.R. (3d) 349
[1999] O.J. No. 1383
Docket No. C28957
Court of Appeal for Ontario,
Weiler, Rosenberg and Goudge JJ.A.
April 27, 1999
*Application for leave to appeal to the Supreme Court of Canada dismissed with costs October 21, 1999 (Lamer C.J., McLachlin and Iacobucci JJ.).
Constitutional law — Education — Separate schools — Section 136 of Education Act prohibiting Roman Catholic school boards from taking teacher’s religion into consideration in making employment decisions if teacher agrees to respect philosophy of separate school — Section 136(1) of no force or effect as it violates s. 93(1) of Constitution Act — Constitution Act, 1867, s. 93(1) — Education Act, R.S.O. 1990, c. E.2, s. 136.
Section 136 of the Education Act prohibits a Roman Catholic school board from taking the religion of a teacher into consideration in making employment decisions if a teacher agrees to respect the philosophy of a separate school. Certain separate school supporters and trustees of separate school boards brought an application for a declaration that s. 136 was of no force or effect as it infringed the denominational guarantee in s. 93(1) of the Constitution Act, 1867, which states that no law may prejudicially affect any right or privilege that Roman Catholics had by law concerning separate schools at the time of Confederation. The application was allowed. The intervenor Ontario Secondary School Teachers’ Federation appealed.
Held, the appeal should be dismissed.
The motions judge was correct in concluding that, at the time of Confederation, Roman Catholic separate school trustees had the implicit legal right to prefer persons of the Roman Catholic faith when making employment decisions relating to teachers.
Section 136 prejudicially affects a right or privilege relating to the denominational aspect of public schools. The evidence supported the conclusion that the ability to hire preferentially on the basis of religion will be necessary to preserve the Catholic character of Roman Catholic public schools in many cases. Section 136 prejudicially affects the denominational guarantee because it prohibits any consideration of religion when exercising the power to employ, advance and promote teachers within a separate school system even when such consideration is necessary to achieve the denominational guarantee in s. 93(1). The evidence established that the aim of Catholic education is not merely the transmission of knowledge and development of skills, but rather the integral formation of the whole person according to a vision of life that is revealed in the Catholic tradition. Religious faith on the part of the teachers is a valid consideration if the aim of the school to create a community of believers with a dist inct sense of the Catholic culture is to be achieved.
Section 136 violates the denominational guarantee in s. 93(1) of the Constitution Act in other respects. Section 136(1) enables a school board to require the undertaking of a teacher to respect the philosophy and traditions of the separate school and no more. Such an undertaking falls well short of the active pursuit of the goal of indoctrinating students in the teachings of the Catholic religion, which is the constitutionally protected aim of the separate schools. Moreover, s. 136(1) potentially affects the right to dismiss for denominational cause.
APPEAL from a judgment of Sharpe J. (1997), 38 O.R. (3d) 37, 154 D.L.R. (4th) 464 (Gen. Div.) declaring s. 136 of Education Act, R.S.O. 1990, c. E.2 to be of no force or effect.
Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377, 57 D.L.R. (4th) 521, 92 N.R. 327; Hirsch v. Protestant Board of School Commissioners of Montreal, [1926] S.C.R. 246, consd Other cases referred to Brophy v. Manitoba (Attorney General), [1895] A.C. 202 (J.C.P.C.); Caldwell v. Stuart, [1984] 2 S.C.R. 603, 66 B.C.L.R. 398, 15 D.L.R. (4th) 1, 56 N.R. 83, [1985] 1 W.W.R. 620, 85 C.L.L.C. 17,002; Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341, 37 O.A.C. 93, 65 D.L.R. (4th) 1, 46 C.R.R. 316 (C.A.); Essex County Roman Catholic Separate School Board v. Porter (1978), 21 O.R. (2d) 255, 89 D.L.R. (3d) 445 (C.A.); Ontario Home Builders’ Assn. v. York Region Board of Education, [1996] 2 S.C.R. 929, 29 O.R. (3d) 320n, 137 D.L.R. (4th) 449, 201 N.R. 81, 35 M.P.L.R. (2d) 1, 4 R.P.R. (3d) 1; Quebec (Attorney General) v. Greater Hull School Board, [1984] 2 S.C.R. 575, 15 D.L.R. (4th) 651, 56 N.R. 99, 28 M.P.L.R. 146, 28 M.P.L.R. 146; Quebec Assn. of Protestant School Boards v. Quebec (Attorney General) (1985), 21 D.L.R. (4th) 36 (Que. S.C.); Reference re Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 22 O.A.C. 321, 40 D.L.R. (4th) 18, 77 N.R. 241, 36 C.R.R. 305, affg (1986), 53 O.R. (2d) 513, 13 O.A.C. 241, 25 D.L.R. (4th) 1, 23 C.R.R. 193 (C.A.) (sub nom. Bill 30, An Act to Amend the Education Act (Ontario) (Re), Roman Catholic Separate High Schools Funding (Re)); Reference re Education Act (Ontario) and Minority Language Education Rights (1984), 47 O.R. (2d) 1, 4 O.A.C. 321, 10 D.L.R. (4th) 491, 11 C.R.R. 17, 27 M.P.L.R. 1, 27 M.P.L.R. 1 (C.A.) (sub nom. Minority Language Educational Rights (Re)); Tiny Separate School Trustees v. R., [1927] S.C.R. 637 Statutes referred to Act Respecting the Rectories (Can) (“the Imperial Statute of 1852”), 14 & 15 Vict., c. 175 Act to Restore to Roman Catholics in Upper Canada Certain Rights in Respect to Separate Schools (“the Scott Act”) (U.K.), 26 Vict., c. 5, ss. 2, 7, 13, 26 Common Schools Act (U.K.), 22 Vict., c. 64, ss. 27, 79(8)(b), 80, 99, 114, 119 Constitution Act, 1867, s. 93(1) Education Act, R.S.O. 1990, c. E.2, ss. 135(6), 136 Human Rights Code, R.S.O. 1990, c. H.19, s. 24 Authorities referred to Côté, The Interpretation of Legislation in Canada, 2nd ed. (1991), p. 301 Driedger, Construction of Statutes, 2nd ed. (1983), p. 227
Aubrey E. Golden and Patricia L. D’Heureux, for appellant, Ontario Secondary School Teachers’ Federation.
Peter D. Lauwers, for respondents.
Paul J.J. Cavalluzzo, for intervenor, Ontario English Catholic Teachers’ Association.
Martin J. Doane and Laura C. Young, for intervenor, Canadian Civil Liberties Association.
Ronald Foerster, for Dufferin-Peel Roman Catholic Separate School Board.
The judgment of the court was delivered by WEILER J.A.: —
Overview
The issue on this appeal is whether Sharpe J. [See Note 1 at end of document] was correct in declaring s. 136 of the Education Act, R.S.O. 1990, c. E.2, to be of no force and effect because it violates the denominational guarantee contained in s. 93(1) of the Constitution Act, 1867. [See Note 2 at end of document] Section 93(1) states that no law may prejudicially affect any right or privilege that Roman Catholics had by law concerning Separate Schools at the time of Confederation.
For ease of reference, s. 136 is produced below:
136(1) For the purpose of maintaining the distinctiveness of separate schools, the Roman Catholic separate school board may require as a condition of employment that teachers hired by the board after the ten school year period mentioned in subsection 135(6) [See Note 3 at end of document] agree to respect the philosophy and traditions of Roman Catholic separate schools in the performance of their duties.
(2) Subject to subsection (1), and despite section 24 of the Human Rights Code, section 5 of the said code applies to ensure that such teachers employed by a Roman Catholic school board will enjoy equal opportunity in respect of their employment, advancement and promotion by the board.
(3) If it is finally determined by a court that subsection
(1) or (2) prejudicially affects a right or privilege with respect to denominational schools guaranteed by the constitution of Canada, subsections (1) and (2) are repealed, it being the intention of the Legislature that the remaining provisions of the Act are separate from and independent of the said subsections.
The reference to s. 24 of the Human Rights Code, R.S.O. 1990, c. H.19 in s. 136(2) is of central concern in this appeal. Section 24 of the Code would allow a Roman Catholic school board to give a preference in hiring and promotion to Roman Catholics if it could be shown that this was a bona fide occupational requirement. Subsection (2) of s. 136 of the Education Act prevents the application of s. 24 of the Code.
Read as a whole, s. 136 means that if a teacher agrees to respect the philosophy of a separate school, a Roman Catholic school board cannot take into consideration the religion of the teacher in making employment decisions. For the reasons that follow, I am of the opinion that Sharpe J. was correct in declaring s. 136 of the Education Act to be of no force and effect because it violates s. 93(1) of the Constitution Act.
Section 136 was enacted after this court’s decision upholding the constitutionality of the legislation which extended full funding to Roman Catholic separate secondary schools: see Reference re Act to Amend the Education Act (Ontario) (1986), 53 O.R. (2d) 513, 25 D.L.R. (4th) 1 (C.A.) (“Bill 30 Reference”). When the decision of the Court of Appeal on the Reference was appealed to the Supreme Court, that court was asked to also give its opinion as to the constitutionality of the then recently enacted s. 136. The Supreme Court declined to do so, however, in the absence of an opinion from this court on this issue: see [1987] 1 S.C.R. 1148, 40 D.L.R. (4th) 18. Certain individual separate school supporters and trustees of Roman Catholic separate school boards then brought an application for a declaration that s. 136 infringed the rights guaranteed by s. 93(1) of the Constitution Act, 1867. In the decision appealed from, Sharpe J. granted the declaration, and declared that s. 136 was of no force and effect.
In Quebec (Attorney General) v. Greater Hull School Board, [1984] 2 S.C.R. 575 at p. 582, 15
D.L.R. (4th) 651, Chouinard J. noted that in order to claim protection under s. 93(1) of the Constitution Act, 1867, the following conditions must be met:
(a) there must be a right or privilege affecting a denominational school;
(b) enjoyed by a particular class of persons;
(c) by law;
(d) in effect at the time of Union [Confederation];
(e) and which is prejudicially affected.
In my opinion, this appeal requires the resolution of two issues:
(1) Did Sharpe J. correctly determine that at the time of confederation Roman Catholic separate schools had the right or privilege by law to prefer Roman Catholics in hiring or promoting a teacher?
(2) Even if there was a right to prefer Roman Catholics at the time of Confederation did Sharpe
J. correctly determine that s. 136 prejudicially affects a right or privilege guaranteed under s. 93(1)?
For the reasons that follow, the answer to both questions is in the affirmative and the appeal is dismissed.
Analysis
1. Did Sharpe J. Correctly Determine that at the Time of Confederation Roman Catholic Separate Schools Had the Right or Privilege by Law to Prefer Roman Catholics in Hiring or Promoting a Teacher?
The Act to Restore to Roman Catholics in Upper Canada Certain Rights in Respect to Separate Schools, 26 Vict., c. 5 (“the Scott Act”) [See Note 4 at end of document] was the last statute respecting separate schools passed prior to Confederation. Section 2 of the Scott Act gave Roman Catholics the right to establish a separate school for Roman Catholics, provided there were a minimum of five persons within a school section or three square mile radius, and the right to elect “trustees for the management” of the schools. Section 7 of the Scott Act gave trustees of Roman Catholic separate schools in Upper Canada all the powers possessed by trustees of Common Schools. Under the Common Schools Act, 22 Vict., c. 64, s. 27 trustees had the right to “contract with and employ teachers” and, under s. 79(8)(b), the right, “to determine . . . the terms of employing them; the amount of their remuneration and the duties which they are to perform”.
Sharpe J. considered the evidence before him in the light of this legislation at p. 52:
The evidence shows that at the time, the Catholic teacher was seen as the only possible means of imparting a Catholic curriculum. There appears to be no doubt that at the time of Confederation, separate school boards did take matters of faith into account in the hiring of teachers and that this was accepted not only by Roman Catholics but by the rest of the community including those in the common schools.
While a practice that existed without statutory sanction at the time of Confederation does not qualify as a “right or privilege” within the meaning of s. 93(1) (see Reference re An Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148 at pp. 1177-78, 40 D.L.R. (4th) 18) [hereinafter referred to as the Bill 30 Reference]; a right capable of attracting the protection of s. 93(1) may be “implicit” in broadly defined statutory powers (at p. 1183).
He concluded at p. 54:
In the light of this statutory framework and the climate of religious animosity that prevailed in pre-Confederation Canada, it is my view that by conferring the power on separate school trustees to select and employ teachers, the colonial legislature contemplated that such power could be exercised preferentially in favour of Roman Catholics. As already noted, an implicit power does qualify for protection under s. 93(1).
. . . .
On a fair reading of the Scott Act, together with the Common Schools Act, at the time of Confederation separate school trustees did enjoy, by law, the right to prefer Roman Catholics when hiring teachers. While the right is not explicit, the power to hire teachers is conferred in broad and general terms. Given the purpose and philosophy of separate schools and the prevailing attitudes of the day with respect to religion, I conclude that separate school trustees did have the implicit legal right to prefer those of the Roman Catholic faith when making employment decisions relating to teachers.
The appellant — the Ontario Secondary School Teachers’ Federation (“OSSTF”) — and the intervenor — the Canadian Civil Liberties Association (“CCLA”) — submit that Sharpe J. erred in concluding that trustees of Roman Catholic Separate Schools had the implicit right or privilege “by law” to prefer Roman Catholic teachers when exercising their powers to employ a teacher.
They submit that a “right or privilege” that is protected from legislative interference under s. 93(1) must be one that is expressly found in a statutory provision in existence at the time of Confederation. OSSTF and CCLA acknowledge that in the Bill 30 Reference, supra, at p. 1183, Wilson J. held that, despite the fact that the Common Schools Act did not confer an express power on school trustees to prescribe the courses to be taught in schools, such a right was implicit in the legislation. Wilson J. therefore recognized that a right or privilege protected by law may be one that is implicit in the l egislation. OSSTF and CCLA submit that the approach of Wilson J. in the Bill 30 Reference has, however, noapplication to this case as the issue does not engage equality of funding for education and that Sharpe J. erred in applying this approach.
I disagree. The purposive approach adopted by Sharpe J. is dictated by s. 93(1) of the Constitution Act, 1867 and it is therefore applicable to this case. As noted by Wilson J. in the Bill 30 Reference, supra, at p. 1196:
. . . s. 93(1) of the Constitution Act, 1867 was intended to give constitutional value to the rights and privileges conferred in the Scott Act and the Common Schools Act of 1859.
Section 93(1) should, in my view, be interpreted in a way which implements its clear purpose which was to provide a firm protection for Roman Catholic education in the Province of Ontario . . .
The purposive approach is of general application and is not limited to questions of funding. It has been subsequently applied by Iacobucci J. on behalf of the majority of the Supreme Court in Ontario Home Builders’ Assn. v. York Region Board of Education, [1996] 2 S.C.R. 929 at pp. 991-92, 137 D.L.R. (4th) 449 at p. 489.
A related submission of the OSSTF and the CCLA is that there is no language in any applicable statute in existence at the time of Confederation that supports an implicit right to discriminate on the basis of religion in the employment of teachers in separate schools. This submission would have the court adopt a formalistic approach to interpretation. Again, such a submission must be rejected. As stated in Ontario Home Builders’ Assn., supra, at p. 992 S.C.R., p. 489 D.L.R., by Iacobucci J.:
. . . recent jurisprudence, including Greater Montreal Protestant School Board v. Quebec (Attorney-General), [1989] 1 S.C.R. 377 at p. 402, 57 D.L.R. (4th) 521 (S.C.C.), has continued to emphasize that a formalistic interpretation of s. 93(1) may not in fact protect the substance of the guarantee contained therein:
It is true that the rights or privileges under ordinary law to which s. 93(1) refers have been frozen at Confederation. But just like the basic provincial power which, as Viscount Cave explained, was not “stereotyped” at the Union, the exception to that power has also matured over time through judicial interpretation. The approach courts have taken to the interpretation of the expression “with respect to Denominational Schools” in cases such as Hull, supra, . . . demonstrates that the law in force “at the Union” cannot on its own set the content of the constitutional rights in s. 93(1).
Attempting to get around this holding, OSSTF and CCLA point out that the right of Catholic trustees to employ or promote teachers was limited by a number of other provisions in both the Scott Act and the Common Schools Act. Teachers teaching in separate schools were required to possess “certificates of qualifications” in the same manner as common school teachers:
s. 13, Scott Act. At the time of applying for their teaching certificates, teachers had to furnish proof of good moral character and be a subject of her Majesty: ss. 80 and 99, Common Schools Act. In addition, the governor had the power to appoint a Council of Public Instruction and to pass regulations for the “organization, government, discipline of Common Schools and for the classification of Schools and Teachers”: ss. 114 and 119, Common Schools Act. Finally, separate schools were subject to inspection by the Chief Superintendent of Education: s. 26, Scott Act.
OSSTF and CCLA submit that, because the authority held by separate school trustees was subject to the authority of the Council of Public Instruction and the Chief Superintendent, the trustees did not have the right or privilege to consider religious affiliation when deciding whether to employ or promote a teacher. Religious affiliation, they say, is a qualification over which the separate school trustees had no authority. They submit that Sharpe J. erred because his reasons do not consider these provisions or the preamble in the Scott Act which gave Roman Catholics “certain rights” with a view to bringing “the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools”.
These submissions, however, are not in accord with the purposive approach required by Ontario Home Builders’ and the Bill 30 Reference, supra. The purpose of the public schools, or “Common Schools”, was to enable the teaching of a common curriculum wholly independent from religious doctrine because children of many denominations attended those schools: see Quebec Assn. of Protestant School Boards v. Quebec (Attorney General) (1985), 21 D.L.R. (4th) 36 at pp. 44-45 (Que. S.C.) The purpose of granting to Roman Catholics the right to funding for separate schools and the right to elect trustees to manage their own schools was to enable the teachings of the Roman Catholic faith to be transmitted to the children of Roman Catholics while educating them in secular subjects: see Brophy v. Manitoba (Attorney General), [1895] A.C. 202 (J.C.P.C.), per the Lord Chancellor at p. 214; the dissenting reasons of Anglin J. in Tiny Separate School Trustees v. R. , [1927] S.C.R. 637 at p. 656, adopted by this court in Reference re Education Act (Ontario) and Minority Language Education Rights (1984), 47 O.R. (2d) 1 at pp. 55-56, 10 D.L.R. (4th) 491; Caldwell v. Stuart, [1984] 2 S.C.R. 603 at pp. 608, 618-19, 624, 15 D.L.R. (4th) 1; and Canadian Civil Liberties Assn. v. Ontario (Ministry of Education) (1990), 71 O.R. (2d) 341 at pp. 363, 367, 65 D.L.R. (4th) 1 (C.A.). At the time of Confederation, when the one-room schoolhouse with only one teacher was not uncommon, it would have been unthinkable that anyone but a Roman Catholic could impart the Roman Catholic faith to students. Although custom is not protected by s. 93(1), the history and purpose of s. 93(1) cannot be ignored. To disallow consideration of religion when hiring a teacher would have defeated the purpose of the Scott Act. Thus, the control possessed by the Council of Education could not be used to defeat this constitutional guarantee of Roman Catholic educatio nal rights: see Bill 30 Reference, supra, at pp. 1194-95. The right to hire was guaranteed by law, as was the right to management of the schools. No regulation passed by the Council of Education could supercede these powers.
CCLA also submitted that the power to consider the religious affiliation of the teacher in employment was contrary to the pre-Confederation Act Respecting the Rectories (Can.), 14 & 15 Vict., c. 175 (1852) (the “Imperial Statute of 1852”). This statute disestablished the Church of England in the Province of Canada and, it was submitted, enshrined the principle of equality of religions. As a result, CCLA submits that the hiring of Roman Catholic teachers for separate schools was but a practice not protected by law. Sharp J. rejected this submission on the basis that the denomination of teachers was the explicit subject of legislation relating to separate schools prior to confederation. He stated at pp. 53-54:
Until the passage of An Act to Amend the Law Relating to Separate Schools in Upper Canada, 18 Vict., c. 131 (“Taché Act”), the right to establish a Roman Catholic separate school was dependent upon the faith of the teacher in the common school. If one of the teachers in the common schools was a Catholic, then no separate school could exist. If a Catholic teacher was hired by the common school, any separate school that had been established was required to be closed. An effect of the Taché Act was to permit the establishment and maintenance of Roman Catholic separate schools regardless of the religion of the teacher in the common school.
In so holding Sharpe J. reviewed the historical context in which the Imperial Statute of 1852 was enacted, correctly rejecting the submission of CCLA that the statute affected any right that Catholic trustees might have to employ or promote teachers in Roman Catholic schools. One of the concerns at the time of the Rebellion of 1837 was the fact that land was reserved and given to the clergy of the Anglican Church and no other religion. After the Rebellion, the division of clergy reserves took place among other denominations in 1840; Anglican rectories that had been endowed were disestablished in 1852; and clergy reserves were abolished in 1854. This history reveals that the legislation upon which CCLA relies has everything to do with churches and nothing to do with schools. Even accepting the argument that the legislation conferred the right to practice one’s religion within reason, that right was not, at the time, transformed into a right to be employed in any Roman Catholic separate school.
Even if the Imperial Statute of 1852 was intended to affect employment in Roman Catholic Separate Schools, it is to be interpreted as subject to the Scott Act for two reasons. First, the more recent enactment of the Scott Act just prior to Confederation gives it precedence over the Imperial Statute of 1852. The rules of statutory interpretation state that “the more recent expression of the will of the legislature should be retained”: Pierre-André Côté, The Interpretation of Legislation in Canada, 2nd ed. (1991), at p. 301. Second, the Scott Act, being specific legislation in relation to education, is considered to be an exception to other more general legislation, such as the Imperial Statute of 1852: see Elmer Dreidger, Construction of Statutes, 2nd ed. (1983), at p. 227.
The appellants’ submission concerning the Imperial Statute also does not take into consideration the decision in Hirsch v. Protestant Board of School Commissioners of Montreal, [1926] S.C.R. 246, wherein Anglin, C.J.C. at pp. 269-70 stated that neither Protestant nor Catholic school boards could be compelled to hire non-adherents as teachers. On appeal to the Privy Council, [1928] A.C. 200, Viscount Cave L.C., in discussing the right or privilege which “any class of persons had by law at the time of union” stated at p. 212:
The Roman Catholics in Montreal or Quebec formed a class of persons who had the right and privilege of having their schools controlled and managed by Commissioners of that religious persuasion and the teachers examined by Examiners of the same persuasion; and like privileges belonged to the Protestants of each city with regard to the schools controlled by the Protestant Board of Commissioners. This view is confirmed not only by expressions contained in the judgments of this Board in the Manitoba cases (City of Winnipeg v. Barrett, [1892] A.C. 445, 453 to 456; Brophy v. Attorney-General of Manitoba, [1895] A.C. 202, 226, 227) and in the Ottawa case (Ottawa Separate School Trustees v. Mackell, [1917] A.C. 62, 69), but also by the emphatic statement of the experienced judges who dealt with this matter in the Canadian Courts.
As established by Viscount Cave, at the time of Confederation, Catholics had the privilege of having Catholic examiners examine teachers who taught in their schools. The necessary implication is that the right or privilege to exclude teachers on the basis of religion also existed by law at that time.
In addition, in Reference re Education Act (Quebec), supra, Gonthier J. stated at p. 580 that outside of the cities of Quebec and Montreal, the right to have a denominational school did not include the right or privilege of admitting children of other faiths. (In Quebec and Montreal, the denominational schools had common school status). The implication again is that if the denominational school did not have common school status there was a corollary right or privilege to exclude non-adherents to the faith.
The appellants make the further submission that, because the qualifications of teachers are regulated, the trustees are not empowered to take into consideration the religion of the teacher because this would impose an additional qualification over and above those already provided for. This submission also fails. The right to modify an implicit power was recognized by Beetz J. in Greater Montreal Protestant School Board, supra, at p. 415 S.C.R. p. 546 D.L.R. where he adopted the submission of the Attorney General of Quebec that (translation):
The trustees of dissentient schools, whether Catholic or Protestant, are therefore subject to the regulation of curricula. However, in view of the constitutional protection they are given, they may adapt these curricula by offering them in a manner consistent with their religious values . . .
In a similar vein, the trustees of Roman Catholic secondary separate schools are subject to the requirement that all teachers hired must be qualified. However, in view of the constitutional protection given under s. 93 they may adapt the power to employ by offering employment in a manner consistent with their religious values.
If the Imperial Statute had brought freedom of religion into Roman Catholic separate schools it would not be possible to dismiss a teacher for denominational cause. The right of Roman
Catholic separate schools to dismiss a teacher based on serious departures from the teachings of the Catholic faith (denominational cause) is not disputed by the appellants:
see Caldwell v. Stewart, supra; Essex County Roman Catholic Separate School Board v. Porter (1978), 21 O.R. (2d) 255, 89 D.L.R. (3d) 445 (C.A.), per Zuber J.A. at pp. 257-58. Implicit in the recognition of the constitutional right to dismiss a teacher for denominational cause is an acknowledgment of the importance of the faith of the teacher to Catholic education. In my opinion, this right to dismiss necessarily has as its corollary a right to consider the faith of a prospective teacher.
Given the above, it is my opinion that Sharpe J. correctly concluded that, at the time of Confederation, Roman Catholic separate school trustees did have the implicit legal right to prefer persons of the Roman Catholic faith when making employment decisions relating to teachers.
2. Did Sharpe J. Correctly Determine that s. 136 Prejudicially Affects a Right or Privilege Relating to the Denominational Aspect of Separate Schools?
OSSTF and CCLA submit that, even if the ability to prefer Roman Catholic teachers in employment decisions was guaranteed “by law” at the time of Confederation, s. 136 does not infringe s. 93(1). They submit that the evidence in this case does not support the conclusion of Sharpe J. that the ability to hire on the basis of religion is necessary to preserve the Catholic character of the schools.
One response to this submission is that the right to hire and to promote is in and of itself a denominational guarantee and is protected from scrutiny. On this view it is not necessary to justify the right to preferentially hire or promote a teacher for a Catholic high school. I disagree with this position for the reasons expressed in Branch Affiliates v. Dufferin-Peel Roman Catholic Separate School Board released concurrently with these reasons.
Another response, and the one which I adopt, is that the evidence does support the conclusion of Sharpe J. that the ability to hire preferentially on the basis of religion will be necessary to preserve the Catholic character of Roman Catholic Separate Schools in many cases. Section 136 prejudicially affects the denominational guarantee because it prohibits any consideration of religion when exercising the power to employ, advance and promote teachers within a separate school system even when such consideration is necessary to achieve the denominational guarantee in s. 93 of the Constitution Act.
There are two approaches one can use to arrive at this conclusion. One is that the guarantee under s. 93(1) is a nondenominational, or administrative, “aspect” of the right to a Catholic education. On this view the right to preferentially hire and promote is protected in so far as it is necessary to give effect to the denominational guarantee of the Catholicity of the school: Greater Montreal Protestant School Board, supra, per Beetz J., at p. 415 D.L.R. The other approach is that s. 136(2) violates s. 93(1) of the Constitution Act because it prohibits the preference of Roman Catholic teachers even where it can be established by objective and cogent evidence that such preference is a bona fide occupational requirement under the Human Rights Code. The two approaches are not mutually exclusive and the adoption of the one or the other may depend on the manner in which the issue arose.
Under either approach, the evidence before Sharpe J. justified his conclusion that s. 136 infringes the constitutional guarantee under s. 93(1) because it takes away the right to even consider whether a teacher is Catholic or not in making employment decisions in Roman Catholic Separate Schools.
The appellants also submit that Sharpe J. erred in his assessment of the evidence by assessing the evidence on the basis of the subjective belief of the affiants. However, Sharpe J. did not, as the appellants suggest, assess the evidence solely on this basis. Rather, he agreed that the evidence had to be assessed in an objective fashion and proceeded on this basis. At the same time he bore in mind that the subjective perspective of the affiants as to the adverse effect of an influx of non- Catholic teachers on the Catholicity of their schools was also a relevant factor to be taken into account. There are two reasons he was entitled to do so. Firstly the very reason for the constitutional guarantee is based on the conclusion that there is a link between the transmission of religious values and education. Such a link canot be established other than by reference to evidence that is, at least in part, necessarily subjective. Secondly, the right of Catholics to manage Catholic separate schools is protected under s. 93(1) and the perspective of the rights holders is a legitimate consideration. Accordingly, the approach used by Sharpe J. to assess the evidence was not flawed.
The main evidence before Sharpe J. consisted of the affidavit of Msgr. Murphy, a Roman Catholic priest who has a Ph.D. in education and who is Catholic Education Director of the Ontario Separate School Trustees Association. Msgr. Murphy’s evidence was that the curriculum could not be delivered from a truly Catholic perspective by non-Catholics. The evidence of Professor Isajiw, a sociology professor, supported Msgr. Murphy. His evidence was to the effect that the Catholicity of a school is dependent upon the commitment of the teacher to the basic beliefs, values, attitudes and knowledge of Catholicism. Professor Isajiw cited sociological evidence that the transmission of beliefs, values, attitudes and knowledge is accomplished both directly and indirectly from teacher to student, whether the subject being taught is religion or another subject. While knowledge can be transmitted by a non-Catholic teacher, the transmission of beliefs, values and attitudes are different. Sharpe J. recognized the distinction. He was entitled to do so. The fact that not all Catholic teachers are practicing Catholics or that their views on various questions may differ does not detract from his conclusion. As stated by him at p. 67:
A constitutional guarantee is an ideal but must function in a human context. This means that it will almost certainly never be fully realized. The failure of a human institution to achieve perfection surely cannot defeat the ideal of the guarantee.
The evidence establishes that the aim of Catholic education is not merely the transmission of knowledge and development of skills, but rather the integral formation of the whole person according to a vision of life that is revealed in the Catholic tradition. Religious faith on the part of the teachers is a valid consideration if the aim of the school to create a community of believers with a distinct sense of the Catholic culture is to be achieved.
Religious faith will have a greater role to play in the teaching of some subjects such as religion and family studies. I agree with Sharpe J. that it would be inappropriate to attempt to identify which, if any, courses would not require preference to be given to religious faith. To do so would be to rewrite the legislation. That is not the function of this court. To do so, would also, in my opinion unduly compartmentalize the role of the teacher within the school. The teacher who teaches algebra may not have any opportunity to infuse the Catholic faith into this course. This same teacher may, however, exert an important influence in so far as the Catholicity of the school is concerned in relation to extra-curricular activities such as attendance at Mass, choir practice, or the establishment of Catholic social clubs.
Section 136 violates the denominational guarantee in s. 93 of the Constitution in other respects. Section 136(1) enables a school board to require the undertaking of a teacher to respect the philosophy and traditions of the separate school and no more. Such an undertaking falls well short of the active pursuit of the goal of indoctrinating students in the teachings of the Catholic religion, which is the constitutionally protected aim of the separate schools. Trustees making a decision as to whether or not to hire a teacher have a right to consider how active the teacher will be in promoting the goals of Catholicism in order to preserve the Catholicity of the school and not merely that the teacher passively acquiesce in these goals. The subsection also potentially affects the right to dismiss for denominational cause. A Catholic teacher who married a divorced person in a civil ceremony as in Caldwell v. Stewart, supra, could argue that he or she nevertheless respected the philosophy or traditions of the separate school as much as any non- Catholic teacher and was entitled not to be dismissed. The opening words of s. 136(2) make the subsection subject to subs. (1). These are two additional reasons why s. 136, as a whole, infringes the rights guaranteed in s. 93 of the Constitution Act, 1867 relating to the denominational aspect of separate schools.
Disposition
I would dismiss the appeal.
Appeal dismissed.
APPENDIX
An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, 26 Vict., c. 5 (1863) (“The Scott Act”)
WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools:
Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:
. . . . .
2. Any number of persons, not less than five, being heads of families, and freeholders or householders, resident within any school section of any Township, Incorporated Village or Town, or within any ward of any City or Town, and being Roman Catholics, may convene a public meeting of persons desiring to establish a Separate School for Roman Catholics, in such school section or ward, for the election of Trustees for the management of the same.
. . . . .
7. The Trustees of Separate Schools forming a body corporate under this Act, shall have the power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools, and shall have all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools.
. . . . .
13. The Teachers of Separate Schools under this Act shall be subject to the same examinations, and receive their certificates of qualifications, in the same manner as Common School Teachers generally; provided that persons qualified by law as Teachers, either in Upper or Lower Canada, shall be considered qualified Teachers for the purposes of this Act.
. . . . .
26. The Roman Catholic Separate Schools, (with their Registers), shall be subject to such inspection, as may be Education, and shall be subject also, to such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada.
Common Schools Act, 22 Vict., c. 64 (1859)
27. It shall be the duty of the Trustees of each school section, and they are hereby empowered:
. . . . .
8. To contract with and employ Teachers for such School section, and determine the amount of their salaries;
. . . . .
79. It shall be the duty of the Board of School Trustees of every City, Town and Village respectively, and they are hereby authorized:
. . . . .
8. To determine (a) the number, sites, kind and description of schools to be established and maintained in the City, Town or Village; also (b) the Teacher or Teachers to be employed; the terms of employing them; the amount of their remuneration, and the duties which they are to perform; also (c) the salary of the local Superintendent of Schools appointed by them, and his duties;
. . . . .
80. No Teacher shall be deemed a qualified Teacher who does not at the time of his engaging with the Trustees, and applying for payment from the School Fund, hold a certificate of qualification, as in this Act provided.
. . . . .
99. Every such certificate of qualification shall have the signature of at least one Local Superintendent of Schools, but no such certificate shall be given to any person as a teacher, who does not furnish satisfactory proof of good moral character, or who at the time of applying for such certificate is not a natural-born or naturalized subject of Her Majesty, or who does not produce a certificate of having taken the oath of allegiance to Her Majesty, before a Justice of the Peace for the County in which such person resides.
. . . . .
114. The Governor may appoint a Council of Public Instruction for Upper Canada, to consist of not more than nine persons (of whom the Chief Superintendent of Education shall be one) to hold office respectively during pleasure, and such Council shall in the exercise of its duties, be subject to all lawful orders and directions from time to time issued by the Governor.
. . . . .
119. It shall be the duty of such Council and they are hereby empowered:
4. To make such regulations from time to time, as it deems expedient, for the organization, government and discipline of Common Schools, for the classification of Schools and Teachers, and for School Libraries throughout Upper Canada;
An Act to repeal so much of the Act of the Parliament of Great Britain passed in the Thirty-first year of the Reign of King George the Third, and Chaptered Thirty-one, as relates to Rectories, and the presentation of Incumbents to the same, and for other purposes connected with such Rectories, 14-15 Vict., c. 175 (“the Imperial Statues of 1852”)
WHEREAS the recognition of legal equality among all Religious Denominations is an admitted principle of Colonial Legislation; And whereas in the state and condition of this Province, to which such a principle is peculiarly applicable, it is desirable that the same should receive the sanction of direct Legislative Authority, recognizing and declaring the same as a fundamental principle of our civil polity: Be it therefore declared and enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, and intituled, An Act to re-unite the Provinces of Upper and Lower Canada, and, for the Government of Canada, and it is hereby declared and enacted by the authority of the same, That the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference, so as the same be not made an excuse for acts of licentiousness, or a justification of practices inconsistent with the peace and safety of the Province, is by the constitution and laws of this Province allowed to all Her Majesty’s subjects within the same. . . . that from henceforth, no Letters Patent shall be issued in this Province by the Crown for the erection of any such Parsonages or Rectories, or for the endowment thereof, out of the Clergy Reserves or the Public Domain, or for the presentation of any Incumbent or Minister to any such Parsonage or Rectory: Provided always, that neither such repeal, nor any thing herein contained, shall in any wise affect any proceedings heretofore had, whereby certain Parsonages or Rectories were erected and endowed, or supposed to be erected and endowed by the Authority aforesaid, or whereby certain Incumbents or Ministers were presented, or supposed to be presented, under the same Authority, to such Parsonages or Rectories, or any of them, but the legality or illegality of all such proceedings shall be left open to be adjudicated upon and determined as if this Act had not been passed.
Notes
Note 1. The reasons of Sharpe J. are reported at (1997), 38 O.R. (3d) 37, 154 D.L.R. (4th) 464 (Gen.Div.).
Note 2. The first issue decided by Sharpe J. was that s. 136 only applied to secondary schools, not elementary schools. Secondly he held that s. 136 applied at the point of hiring as well as after a teacher had been hired. No appeal has been taken from these two portions of the judgment.
Note 3. The reference in s. 136(1) to, “the ten school year period mentioned in subsection 135(6)” is a reference to the fact that when public funding was extended to Roman Catholic separate high schools a number of teachers, including non-Catholic teachers, who were then employed by the public school boards were designated and transferred to the Roman Catholic school boards in order to teach the large number of students who would be transferring from the public school system to the separate school system.
Note 4. For ease of reference the text of certain provisions of the Scott Act, the Common Schools Act and other relevant legislation is attached as an appendix to these reasons [p. 363 post].