Present: Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
David Attis, appellant
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The Board of School Trustees, District No. 15, respondent, and The Human Rights Commission of New Brunswick, Malcolm Ross, the Department of Education of New Brunswick, the New Brunswick Teachers’ Federation, and the Canadian Jewish Congress, respondents, and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry, and the Minister of Labour of New Brunswick, respondents. And between The Human Rights Commission of New Brunswick, appellant
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The Board of School Trustees, District No. 15, respondent, and David Attis, respondent, and Malcolm Ross, the Department of Education of New Brunswick, the New Brunswick Teachers’ Federation, and the Canadian Jewish Congress, respondents, and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry, and the Minister of Labour of New Brunswick, respondents. And between The Canadian Jewish Congress, appellant
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The Board of School Trustees, District No. 15, respondent, and Malcolm Ross, respondent, and David Attis, respondent, and The Human Rights Commission of New Brunswick, the Department of Education of New Brunswick, and the New Brunswick Teachers’ Federation, respondents, and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry, and the Minister of Labour of New Brunswick, respondents, and The Attorney General of British Columbia, the League for Human Rights of B’Nai Brith Canada, the Canadian Civil Liberties Association, and the Canadian Association of Statutory Human Rights Agencies, interveners.
 1 S.C.R. 825  S.C.J. No. 40 File No.: 24002.
Civil rights — Discrimination — Services to the public — Teacher publicly making discriminatory statements in his off-duty time — Whether school board which employs teacher discriminating with respect to services it offers to public — Human Rights Act, R.S.N.B. 1973, c. H-11, s. 5(1).
Judicial review — Standard of review — Human rights tribunal — Issues raised involving constitutional and administrative law components — Different standards of review applicable — Relationship between administrative law standard of review and constitutional standard of review under Canadian Charter of Rights and Freedoms.
Administrative law — Human rights tribunal — Jurisdiction — Teacher publicly making discriminatory statements in his off-duty time — Human rights board of inquiry making finding of discrimination against school board which employs teacher — School board ordered to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti-Semitic materials or sold his previous publications — Whether Board’s finding of discrimination and order beyond its jurisdiction — Human Rights Act, R.S.N.B. 1973, c. H-11, ss. 20(1), (6.2), 21(1).
Constitutional law — Charter of Rights — Freedom of expression — Teacher publicly making discriminatory statements in his off-duty time — Human rights board of inquiry ordering school board to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti-Semitic materials or sold his previous publications — Whether order infringes on teacher’s freedom of expression — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitutional law — Charter of Rights — Freedom of religion — Teacher publicly making discriminatory statements in his off-duty time — Human rights board of inquiry ordering school board to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti-Semitic materials or sold his previous publications — Whether order infringes on teacher’s freedom of religion — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 2(a).
For several years, R, a teacher, publicly made racist and discriminatory comments against Jews during his off-duty time. R’s writings and statements communicating his anti-Semitic views include four books or pamphlets, letters to a local newspaper, and a local television interview. A Jewish parent filed a complaint with the New Brunswick Human Rights Commission, alleging that the School Board, which employed R as a teacher, violated s. 5(1) of the Human Rights Act by discriminating against him and his children in the provision of accommodation, services or facilities on the basis of religion and ancestry. The Board of Inquiry (the “Board”) found that R’s off-duty comments denigrated the faith and belief of Jews. The Board further found that the School Board was in breach of s. 5(1), concluding that it discriminated by failing to discipline R meaningfully in that, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings. The Board directed the School Board to comply with the following, in clause 2: (a) place R on a leave of absence without pay for a period of 18 months; (b) appoint him to a non-teaching position, if one became available during that period; (c) terminate his employment at the end of that period if, in the interim, he had not been offered and accepted a non-teaching position; and (d) terminate his employment with the School Board immediately if he published or wrote anti-Semitic materials or sold his previous publications any time during the leave of absence period or at any time during his employment in a non-teaching position. The Court of Queen’s Bench allowed R’s application for judicial review in part, ordering that clause 2(d) of the order be quashed on the ground that it was in excess of jurisdiction. The court also concluded that paragraph 2 of the order violated ss. 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms but that, with the exception of clause 2(d), it could be saved by s. 1 of the Charter. The Court of Appeal dismissed the cross-appeals with respect to clause 2(d) and allowed R’s appeal, holding that clauses 2(a), (b) and (c) of the order infringed R’s freedom of expression and freedom of religion and could not be justified under s. 1.
Held: The appeal should be allowed and clauses 2(a), (b) and (c) of the order restored.
(1) Standards of Review
This appeal raises two general issues in relation to the standard of judicial review. The first relates to the administrative law issue of the standard of deference to be applied to the Board’s finding of discrimination and its remedial order. The second relates to the standard of constitutional review to be applied to the Board’s order. With respect to the administrative law issue, the superior expertise of a human rights tribunal is confined to fact-finding and adjudication in a human rights context, and the standard of review on the basis of reasonableness is applicable to these matters. For general questions of law, a standard of correctness is appropriate. In the process of performing its adjudicative function, a human rights tribunal applies general legal reasoning and statutory interpretation, matters which are ultimately within the province of the judiciary. Human rights tribunals, however, have relative fact-finding expertise and should be accorded deference by the courts in this function. This may be reinforced in this case by s. 21(1) of the Act which may import some privative effect. This fact-finding expertise of human rights tribunals should not be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. Here, the Court must decide whether the Board’s finding of discrimination was beyond its jurisdiction. The Board’s authority to determine the issue of discrimination is found in s. 20(1) of the Act. Since a finding of discrimination is impregnated with facts, and given the complexity of the evidentiary inferences made on the basis of these facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board’s superior expertise in fact-finding — a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. As for the order, the Board’s discretionary power set forth in s. 20(6.2) of the Act is in such broad terms that the order cannot be said to fall outside its jurisdiction. Here too the tribunal is entitled to the same deference in fact finding.
This case also involves a constitutional challenge to the Board’s order. An administrative tribunal acting pursuant to its delegated powers exceeds its jurisdiction if it makes an order that infringes the Charter. The Charter standard and the administrative law standard, however, must not be conflated into one. Where the issues involved are untouched by the Charter, the appropriate administrative law standard is properly applied as the standard of review; but when, as in this case, the values invoked are Charter values, it is necessary to subject the decision to a s. 1 analysis. In such a case, there is no need for an administrative law review of the values that have been dealt with pursuant to Charter examination under s. 1. If the decision is found to be constitutional, it is difficult to see how it could be patently unreasonable. A review of these same values on an administrative law standard should not impose a more onerous standard upon government than under the Charter review. Conversely, if the decision is unconstitutional, then its acceptability according to an administrative law standard is no longer relevant, as the decision is invalid and in excess of the Board’s jurisdiction.
The Board was correct in finding that R’s continued employment as a teacher constituted discrimination under s. 5(1) of the Act, with respect to educational services available to the public. On the basis of the factual evidence disclosing the substance of R’s writings and statements, and the notoriety of his anti-Semitic comments in the community and beyond, the Board properly concluded that R’s off-duty comments undermined his ability to fulfil his teaching position. The evidence establishes a “poisoned” educational environment characterized by a lack of equality and tolerance. Although there is no direct evidence establishing an impact upon the school district caused by R’s off-duty conduct, a reasonable inference is sufficient in this case to support a finding that R’s continued employment impaired the educational environment generally in creating the “poisoned” environment. R’s off-duty conduct impacted upon the educational environment in which he taught. Public school teachers assume a position of influence and trust over their students and must be seen to be impartial and tolerant. By their conduct, teachers, as “medium” of the educational message (the values, beliefs and knowledge sought to be transmitted by the school system), must be perceived as upholding that message. A teacher’s conduct is evaluated on the basis of his or her position, rather than whether the conduct occurs within or outside the classroom. A school board has a duty to maintain a positive school environment for all persons served by it and it must be ever vigilant of anything that might interfere with this duty. It is not sufficient for a school board to take a passive role. Here, the Board found that the School Board failed to maintain a positive environment and concluded that the School Board had discriminated in its failure to take a proactive approach to the controversy surrounding R, thus suggesting the acceptance of R’s views and of a discriminatory learning environment. There is no error in the Board’s finding of discrimination against the School Board.
(3) Sections 2(a) and 2(b) of the Charter
The Board’s order infringes R’s freedom of expression. R’s writings and statements clearly convey meaning and are protected by s. 2(b) of the Charter. The truth or popularity of their contents is not relevant to this determination. The order is intended to remedy the discrimination with respect to services available to the public, by preventing R from publicly espousing his views while he is employed as a public school teacher. On its face, its purpose and effect are to restrict R’s expression. The order therefore violates s. 2(b) of the Charter. The order also infringes R’s freedom of religion. This freedom ensures that every individual must be free to hold and to manifest without state interference those beliefs and opinions dictated by one’s conscience. Assuming the sincerity of the beliefs and opinions, it is not open to the courts to question their validity. Both ss. 2(a) and 2(b) must be given a broad interpretation, generally leaving competing rights to be reconciled under the s. 1 analysis. In certain cases this can be done in a relatively peremptory manner, but in this case, where R’s claim is to a serious infringement of his rights in circumstances requiring a detailed contextual analysis, the detailed s. 1 analytical approach provides a more practical and comprehensive mechanism to assess competing interests.
(4) Section 1 of the Charter
The Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. This involves a close attention to context. Here, the educational context must be considered when balancing R’s freedom to make discriminatory statements against the right of the children in the School Board to be educated in a school system that is free from bias, prejudice and intolerance; relevant to this particular context is the vulnerability of young children to messages conveyed by their teachers. The employment context is also relevant to the extent 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. Teachers are also employees of a school board and a teacher’s freedoms must be balanced against the school board’s right to operate according to its own mandate. The anti-Semitism context is relevant as well because the Board’s order was made to remedy the discrimination within the public school system that targeted Jews. In its order, the Board balanced R’s freedoms against the ability of the School Board to provide a discrimination-free environment and against the interests of Jewish students; it may therefore be entitled to greater deference. An attenuated level of s. 1 justification is appropriate in this case in light of the nature of the rights allegedly infringed by the order. The expression sought to be protected is at best tenuously connected to the core values of freedom of expression. R’s religious belief, which denigrates and defames the religious beliefs of others, erodes the very basis of the guarantee in s. 2(a) of the Charter. R’s religious views serve to deny Jews respect for dignity and equality.
The Board’s order aims at remedying the discrimination found to have poisoned the educational environment in the School Board. This objective is clearly of sufficient importance to warrant overriding a constitutional freedom. There is also a rational connection between the order and its objective. While the evidence did not establish a direct link between the poisoned educational environment and R’s anti-Semitic views, it is sufficient that the Board found it “reasonable to anticipate” that there was a causal relationship between R’s conduct and the harm. It is possible to “reasonably anticipate” the causal relationship in this case because of the significant influence teachers exert on their students and the stature associated with the role of a teacher. R’s removal from his teaching position was thus necessary to ensure that no influence of this kind is exerted by him upon his students and to ensure that the educational services are discrimination-free. Accordingly, clauses 2(a), (b) and (c) of the order, which deal with R’s removal from his teaching position, are rationally connected to the order’s objective. They were also carefully tailored to accomplish this objective and minimally impair R’s constitutional freedoms. The deleterious effects of these clauses upon R’s freedoms are limited to the extent necessary to the attainment of their purpose. R is free to exercise his fundamental freedoms in a manner unrestricted by this order, upon leaving his teaching position, and he is not prevented from holding a position within the School Board if a non-teaching position becomes available. The objectives of preventing and remedying the discrimination in the provision of educational services to the public outweigh any negative effects on R produced by these clauses. Clauses 2(a), (b) and (c) of the order are justified under s. 1 and were properly made within the Board’s jurisdiction.
Clause 2(d), however, fails the minimal impairment branch of the s. 1 analysis. It may be that R’s continued presence in the School Board would produce a residual effect even after he was removed from a teaching position, which may be what the clause sought to address. However, the evidence does not support the conclusion that the residual poisoned effect would remain indefinitely. For that reason, clause 2(d), which imposes a permanent ban, does not meet the minimal impairment test. Clause 2(d) should be severed from the remainder of the order on the basis that it does not constitute a justifiable infringement of the Charter and is therefore in excess of the Board’s jurisdiction.