Human Rights Tribunal of Ontario decision on the distribution of religious materials in school

[rug]

[1] This Application relates to events that occurred when S.C. was in grade five at a school in the respondent District School Board of Niagara (the “Board”). Under Board policy at the time, the Gideons International In Canada (the “Gideons”) were permitted to distribute their version of the New Testament to grade five students in a Board school, if the principal in consultation with the school council agreed. The Gideons were the only religious group permitted to do so. Parental consent forms were distributed to the class, and the distribution to students whose parents had agreed took place outside class time. When S. was in grade five, she brought home a consent form, although the distribution to her class never in fact happened. The School Council subsequently decided not to approve the distribution.

[2] The C. family identifies as atheist. S.C. and her father, R.C., each of whom has made an Application, allege that the Board policy discriminated against them with respect to services because of creed, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). After the events in question, the Board changed its policy to allow other religious organizations to also distribute religious texts in the schools in certain circumstances, although no materials other than the Gideon Bible have been distributed. The applicants assert that the policy change has not addressed the discrimination and that the new policy is also discriminatory. They seek no financial compensation, but ask that the Tribunal order that the policy be rescinded and that no religious literature of any kind be distributed in the schools.

[3] These facts and the parties’ thoughtful arguments on all sides raise various significant issues, including whether atheism falls within the meaning of “creed” in the Code and whether optional creed-related activities may take place in a public school outside school hours. For the reasons that follow, I find that discrimination because a person is atheist falls within the definition of creed, that the Board discriminated against the applicants through its policy permitting only the Gideons to distribute religious literature in schools, and that the new policy does not comply with the Code. The Code does not require, however, that the public schools be free of optional religious activities outside classroom hours, so long as all creeds are treated with substantive equality. I leave to the elected Board trustees in Niagara to decide whether to continue to permit distribution of literature from creeds in their schools and if so, to design a new policy that complies with the Code. I remain seized to deal with any disputes that may arise over the next year about whether any new policy complies with the Code.

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ORDER

[77] The Tribunal orders as follows:

1. Both Applications are allowed.

2. Board policy G-22 as it now reads cannot be relied upon by the Board.

3. Unless it develops a new policy consistent with the Code principles set out in this Decision, the Board shall not permit the distribution of religious publications in its schools.

4. If the Board intends to develop a new policy permitting distribution of creed and religious publications in its schools, it shall finalize the policy within six months, and provide a copy of the new policy to the applicants and intervenors.

5. If any party to this case believes that the new policy or practices under it are inconsistent with the Code, it may write to the Registrar no later than one year from the date of this Decision and request that I decide the issue.

6. I shall remain seized of these Applications for the purpose of dealing with disputes about any new Board policy raised with the Registrar within one year of today’s date.

Dated at Toronto, this 13th day of August, 2013.

http://canlii.ca/en/on/onhrt/doc/2013/2013hrto1382/2013hrto1382.html

It appears Canadian and American courts are taking the same approach.