In R.C. v. District School Board of Niagara, 2013 HRTO 1382, the Ontario Human Rights Tribunal (the “HRTO”) was asked to determine if a policy of the District School Board of Niagara (the “Board”) discriminated against R.C. and S.C., the Applicants, on the basis of creed. The Canadian Civil Liberties Association and the Ontario Human Rights Commission were both granted intervenor status in this case. In the decision, which was released on August 13, 2013, the HRTO granted the Application, finding that the Board’s policy, as drafted at the time, allowing the distribution of religious materials in the school after school hours, was discriminatory.

FACTUAL BACKGROUND

There were two versions of one Board policy at issue in this case. The first version of the policy was adopted from the Board’s predecessor and permitted only the Gideons International In Canada to distribute their version of the New Testament to Grade 5 students in Board schools, if the principal - in consultation with the school council - agreed, and if parental consent forms were signed. The Gideons would also make a presentation to the students whose parents signed the consent forms.

When the Applicant S.C., a Board student, was in Grade 5, she brought home a consent form pursuant to the Board’s policy. Her family identifies as atheist.

After receiving the Board’s consent form, and following his attendance at the Gideons’ presentation, S.C.’s father, R.C., contacted the school’s principal and asked to distribute a book entitled “Just Pretend: A Freethought Book for Children”, which promotes atheism. R.C. explained to the HRTO that his intentions were not to promote atheism in the school, but to make the point that asking parents to consent to the distribution of his materials or the Gideons’ materials might be upsetting, and to encourage a change in the Board’s policy. As a result of R.C.’s actions, S.C.’s school decided it would not allow the distribution of any materials under the policy that year.

Following the school’s decision not to allow distribution of Just Pretend or the Gideons’ materials, R.C. continued to advocate for a change in the Board’s policy. The Application was filed in January 2010, and delivered to the Board in March 2010. Before it received the Application, the Board changed its policy in February, in an attempt to make it more inclusive. The new policy did not restrict the distribution of materials to any specific religion and simply stated that any requests for the distribution of religious publications must be approved by the school, in consultation with the school council and with pre- approved parental consent.

After the policy was amended, R.C. made a second request to distribute Just Pretend. The Board refused his request, taking the position that atheism was not a religion and that Just Pretend was a secondary publication and not a recognized sacred text or authoritative source of any religion. Thus, the Board contended, his materials could not be distributed under the policy.

THE DECISION

In its decision, the HRTO undertook an analysis of whether atheism falls under the protected ground of creed in the Ontario Human Rights Code (the “Code”). The HRTO noted that the rights provided for in the Code are to be interpreted broadly and exceptions to those rights interpreted narrowly. With respect to whether atheism is included within the definition of creed, the HRTO stated the following:

In my view, a purposive interpretation of the prohibition on discrimination because of “creed” in the Code includes a prohibition on discrimination because a person is atheist. To accept the respondent’s submissions would be to find that the Code only protects core beliefs about oneself, humankind and nature linked to one’s self-definition when they accept the existence of a deity or have particular practices. The purpose of prohibiting discrimination because of creed includes ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.

The HRTO also noted that it is well-established that “creed” encompasses discrimination because of religion. The HRTO found that the protection against discrimination because of religion must include protection of the belief that there is no deity. These beliefs relate to religion, and they engage the Code’s purpose of ensuring equal treatment regardless of one’s views on religious matters. The HRTO further stated that the exclusion of atheism from “creed” would “allow discrimination against persons because they do not accept a particular religion, so long as they are not adherents of another set of beliefs and practices.”

Relying, in part, on Supreme Court of Canada decisions addressing freedom of religion, statutory interpretation principles, and a dictionary definition of “creed”, the HRTO concluded that “a liberal and purposive interpretation of the prohibition on discrimination because of ‘creed’ includes atheism and that discrimination because a person is atheist is prohibited by the Code.”

In the end, the HRTO found that both versions of the Board’s policy were discriminatory. The first policy was discriminatory in permitting students to receive literature in public schools from the Gideons only, and not others. The second version of the policy was discriminatory because: it was inconsistently applied in a discriminatory manner; it did not provide clear guidance on decisions regarding which materials may be distributed; and it permitted judgment on a case-by-case basis of the validity of particular religions and religious texts.

REMEDY

The Board’s policy was declared invalid and the Board was ordered not to allow distribution of religious materials unless it developed a policy that was compliant with the Code. The HRTO further ordered that the Board provide any new policy to the intervenors and the Applicants, at which time they may write to the HRTO if they see any Code compliance issues with the draft policy.

TAKE-AWAY

Public school boards that presently have in place, or are considering drafting, a policy allowing the distribution of religious materials in their schools after school hours should be mindful of the following in reviewing, updating or drafting such policies:

The HRTO commented in this case that when a public school is not neutral with respect to creed, it discriminates against parents and children accessing the school’s services and marginalizes their creed.

Boards that have similar policies in place should make some effort to encourage a diversity of literature and awareness of the policy. There should be a clear statement in communication with parents confirming that all creeds are permitted to distribute materials with parental consent.

Make efforts to publicize the policy and make all students and parents aware of its contents.

The policy should be consistently applied and should not restrict the manner in which a creed must convey core beliefs. Creeds convey their messages in different ways.

While this decision does not prohibit optional religious activities in public schools outside the instructional day, all creeds must be treated equally in any optional religious activity. There must be no subtle or formal coercion to participate in such activities and schools must make clear that they are not favouring any creed. As noted by the HRTO in this decision, under a carefully developed policy that ensures equality between all creeds, public schools can permit distribution of religious literature outside the school day with parents’ consent.