| Counsel for the Petitioner, The Board of School Trustees Of School District No. 44 (North Vancouver)
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C. Woods & C. Potzold |
| Counsel for the Respondent, Azmi Jubran
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C.F. Parfitt
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| Counsel for the Respondent, British Columbia Human Rights Tribunal
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K. Hardie |
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Dates and Place of Hearing: |
December 3 & 4, 2002 |
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Vancouver, BC |
[1] What came before me in Chambers is a judicial review.
[2] The decision under attack is a decision of the British Columbia Human Rights Tribunal. The decision is dated April 8, 2002. The Respondent Jubran was the complainant below. The Petitioner, The Board of School Trustees of School District No. 44 (North Vancouver), was the subject of the complaint below.
[3] The decision below appears before me as Exhibit "A" to the affidavit of John D. Truscott, Q.C. (As he then was).
[4] The decision below is lengthy. I will take it as read. For the sake of convenience I will attach a copy of the decision below to these my Reasons for Judgment.
[5] Jubran attended Handsworth Secondary School from 1993 to 1998. His high school years were a living hell. Why? Because a group of students singled him out for attack. For reasons unknown - and probably capable of being understood only by the addled brains of certain teenagers - Jubran was a pariah.
[6] The students' attacks on Jubran took a specific form. The group of students under discussion despised homosexuals and all things associated by them with homosexuals. That is obvious. In the result, the attacks on Jubran took various forms, including calling him "homo", "queer", "gay" and preparing crude drawings saying "HOMO" or portraying him as a boy in love with another boy. Universally applicable labels such as "dork" and "geek" were also flung Jubran's way. But the heart of the attack on Jubran drew on terms that come quickly to the lips of homophobes. Jubran is not a homosexual. Of overarching importance, the Tribunal proceeded on the basis that even if it accepted as a fact that the students who attacked him did not believe Jubran to be a homosexual their conduct fell within s. 8 of the Human Rights Code, infra. For my purposes therefore the case must be approached as one in which Jubran is not a homosexual and the students did not believe him to be a homosexual. (See the decision below, paras. 90 to 101).
[7] The Human Rights Tribunal ultimately found as follows:
(1) The Petitioner before me - the School Board - was found to have contravened s. 8 of the Human Rights Code, R.S.B.C. 1996, as amended, "by failing to provide a learning environment free of discrimination". (See the decision below, para. 118).
(2) The School Board had not established a "bona fide and reasonable justification" within the meaning of s. 8 of the Human Rights Code.
[8] The question of the remedy then arose and was dealt with by the Human Rights Tribunal. But as nothing concerning the remedy is before me, I will not go into the detail.
[9] Back at step 1 of the ultimate conclusions of the Human Rights Tribunal - the finding by the Tribunal that the School Board had contravened s. 8 of the Human Rights Code - the material findings of fact made by the Tribunal throw up a question of law that arises under s. 8 of the Human Rights Code and is general in nature.
[10] The standard of review as to a question of law that is general in nature is "correctness". (U.B.C. v. Berg 102 D.L.R. (4th) 665 at 676-677 (S.C.C. 1998)).
[11] The question of law under discussion can be got at this way:
(1) Section 8 of the Human Rights Code reads as follows:
(1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service of facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.
(2) The Supreme Court of Canada has ruled that both the Human Rights Tribunal and I must approach legislation such as s. 8 as follows:
(a) Interpreting human rights legislation
In my reasons in Heerspink, supra, I commented on the unique nature of human rights legislation (at p. 229):
When the subject-matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.
Following Heerspink, this court has had many occasions to comment on the privileged status of human rights legislation. In Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p. 329) that "[l]egislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary - and it is for the courts to seek out its purpose and give it effect". This court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, supra, at p. 580, "must be so interpreted as to advance the broad policy considerations underlying it". These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which directs that "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
This interpretive approach does not give a board or court licence to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.
(U.B.C. v. Berg, supra, at 677-678.)
(3) The finding that lies behind the Human Rights Tribunal's conclusion at step 1 - the conclusion that the School Board contravened s. 8 of the Human Rights Code - was that the conduct of the students who so obviously discriminated against Jubran fell within s. 8 of the Human Rights Code. (See the decision below, para. 101).
(4) Stripped to its essentials, the language of s. 8 that the Human Rights Tribunal had to find captured the conduct of the students in the case at bar is this:
A person must not...discriminate against a person or class of persons...because of the...sex or sexual orientation of that person or class of persons.
(5) Jubran is not a homosexual and the students who attacked him did not believe he was a homosexual. (As noted above the Tribunal's reasons are structured in such a way that I must proceed on this basis. See the decision below, paras. 90 to 101).
(6) In light of the concluding words of s. 8 "...because of the...sex or sexual orientation of that person or class of persons" is not the cruel and disgusting conduct of the students in the case at bar wholly without s. 8 of the Human Rights Code?
[12] In my respectful view the answer to that question is simply Yes. No sensible use of the English language admits of any other conclusion. And if I am wrong in treating this question as one of general law then the application of law to a particular set of facts is afoot, the standard of review is reasonableness and the result is the same for the Tribunal's finding at step (1) (supra) was in turn based on an unreasonable conclusion, i.e. that s. 8 captured the conduct of the students in the case at bar. (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.)
[13] The Supreme Court of Canada has ordered the Tribunal and me not to let the application of legislation such as s. 8 of the Human Rights Code slip the anchor of the words chosen by the legislature. (U.B.C. v. Berg, supra, at 678). The Tribunal's decision, and the submission placed before me by Jubran's counsel, equate discrimination through harassment by the use of hurtful words of a sexual nature with discrimination "because of the sex or sexual orientation OF THAT PERSON OR CLASS OF PERSONS". (Emphasis added). That those two things may coincide in a given case does not mean that they do coincide in every case. And here, in the case at bar, the bottom facts as found by the Human Rights Tribunal take the case wholly outside the words of the Act.
[14] In the result the Human Rights Tribunal's conclusion at step 1 - that the School Board contravened s. 8 of the Human Rights Code - was based on an incorrect finding, i.e. that the students' conduct fell within s. 8 of the Code.
[15] That being so the decision of the Human Rights Tribunal is fatally flawed and must be, and is, quashed. I say nothing about any point taken by counsel for the Petitioner other than the simple, discrete point dealt with in these Reasons for Judgment. I agree with counsel for the Petitioner who said, in effect, that this is not a case for further reasons "in the alternative".
[16] Should the order I make be anything more than that the Human Rights Tribunal's decision is quashed? The answer is Yes. This is a case for the court to bring a halt to these proceedings subject to my decision being reversed on appeal. In the result, the order is that the decision below is quashed and the administrative proceedings are ended, i.e. I order that the matter not be remitted to the tribunal below.
[17] If counsel cannot agree as to the disposition with respect to costs, they will have to get back before me.
“A.M. Stewart, J."
The Honourable Mr. Justice A.M. Stewart
Case Name:
Jubran v. North Vancouver
School District No. 44
IN THE MATTER OF the Human Rights Code
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER OF a complaint before the
British Columbia Human Rights Tribunal
Between
Azmi Jubran, complainant, and
Board of Trustees, School District No. 44
(North Vancouver), respondent, and
Deputy Chief Commissioner, BC Human
Rights Commission
[2002] B.C.H.R.T.D. No. 10
2002 BCHRT 10
British Columbia Human Rights
Tribunal
Vancouver, British Columbia
C. Roberts
Heard: September 11 - 15, 19 - 22, 2000,
June 11 - 13 and July 12, 13 and 16, 2001.
Decision: April 8, 2002.
(232 paras.)
Appearances:
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Clea F. Parfitt, counsel for the complainant. |
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REASONS FOR DECISION |
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| INTRODUCTION |
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¶ 1 On June 19, 1996, Azmi Jubran filed a complaint (Exhibit 1) with the B.C. Human Rights Commission, in which he alleged that the Board of School Trustees, School District No. 44 (North Vancouver) [the "School Board"] discriminated against him regarding an accommodation, service or facility customarily available to the public because of his sexual orientation, contrary to Section 8 of the Human Rights Code, R.S.B.C. 1996, c. 210 (as amended) [the "Code"]. The Deputy Chief Commissioner added himself as a party to the hearing on October 15, 1999, pursuant to s. 36(1) of the Code.
BACKGROUND
¶ 2 Mr. Jubran was born in Vancouver in 1980. From September 1993 to June 1998, he attended Handsworth Secondary School ["Handsworth"] in North Vancouver. Handsworth is located within School District No. 44 (North Vancouver). Currently, there are approximately 70 teachers and 1335 students in Grades 8 through 12 at Handsworth.
¶ 3 Mr. Jubran, who does not identify himself as homosexual, alleges that, for the five years he attended Handsworth, he was taunted with homophobic epithets and physically assaulted, including being spit upon, kicked and punched by other students, because of his perceived sexual orientation. Mr. Jubran further claims that the School Board knew about other students' behaviour towards him, and that it is responsible for the harm caused to him because it failed to provide him with a safe learning environment.
¶ 4 The DCC argues that the School Board is in violation of the Code because it failed to adequately address homophobic harassment at Handsworth.
¶ 5 Although there was some dispute about the extent and duration of the harassment, the School Board does not dispute that Jubran was verbally and physically harassed. However, it argues that it cannot be responsible for failing to eradicate discrimination among the student population. Further, the School Board argues that, as a matter of public policy, the Tribunal should not judge the suitability of the school's efforts to minimize such behaviour.
EVIDENCE
¶ 6 I heard evidence from Mr. Jubran, his parents, Fouad and Jacqueline Jubran, and his uncle, Bill Jubran. I also heard from Maryann Macario, Mr. Jubran's Food and Nutrition teacher in Grade 10 and 11, and Patricia Gall, a teacher in the Learning Assistance Centre ("LAC") at Handsworth who worked with Mr. Jubran from grades 9 to 12.
¶ 7 The School Board's witnesses were Robin Brayne, the Superintendent of Schools for School District 44 since 1989; Terry Shaw, the principal at Handsworth since September 1994; Michael Rockwell, the vice-principal from 1985 to 1997; Don Carleson, one of the school counsellors, and Arlene Burlone, the principal of Westview Elementary School in North Vancouver. I also heard from Trevor Howard, Brian Higgins, Matthew White, Derek Kai, Scott Watson and Matt McKay, all former classmates of Mr. Jubran, and Christian Richardson, a student at Handsworth from 1992 to 1997.
Grade 8 (September 1993 - June 1994)
¶ 8 Mr. Jubran testified that, when he first arrived at Handsworth, he was called names such as "homo", "faggot" and "gay". He told the students that he was not gay or homosexual, and asked them to stop calling him names. According to Mr. Jubran, the name-calling, which was at times accompanied by pushing and shoving in gym class and hallways, got worse during the course of the year. At the end of grade eight, Mr. Jubran was hit in the eye by a paper projectile in science class, which caused a small abrasion. Mr. Jubran acknowledged that the fact that the projectile hit him could have been accidental.
¶ 9 Mr. Jubran also testified that students bothered him on his way home from school, so he changed his route home. Although there is no evidence that Mr. Jubran or his parents reported this behaviour to anyone at the school, Mr. Jubran's physical education teacher noted that Mr. Jubran was "picked on a little".
Grade 9 (September 1994 - June 1995)
¶ 10 Mr. Jubran testified that name-calling, hitting, punching and spitting incidents occurred both during school hours in classrooms and hallways, and before and after school. His evidence was that the name-calling occurred about 5 to 10 times per month. On one occasion, in woodworking class, other students threw nails, wood and screws at him, and someone shouted "Azmi is gay". Mr. Jubran testified that, in one band class, all the students started chanting "Azmi is gay" when the teacher was not in the classroom.
¶ 11 During the fall, a pizza was delivered to the Jubrans' home that they had not ordered. From the telephone number on the delivery slip, Fouad Jubran determined that a student at Handsworth was involved. Fouad and Jacqueline Jubran met with Mr. Shaw to discuss this incident. Fouad Jubran also spoke to Mr. Shaw about the name-calling, spitting and hitting directed at his son at school. Mr. Shaw told Fouad Jubran to instruct his son to report all incidents in the future so that they could be dealt with.
¶ 12 Mr. Jubran met with Mr. Shaw, and provided him with the names of students who were bothering him. This was the first time Mr. Jubran complained to Handsworth authorities that he was being harassed. Mr. Jubran testified that, after he gave Mr. Shaw the list of names, he was terrified because he had previously been threatened. He said that "things cooled down" for a period of time after the pizza incident.
¶ 13 Mr. Shaw delegated the responsibility of dealing with Mr. Jubran's complaints to Mr. Rockwell. Both Mr. Shaw and Mr. Rockwell asked Mr. Jubran's teachers if they had witnessed any harassing behaviour in their classrooms.
¶ 14 Mr. Jubran met with Mr. Rockwell shortly thereafter and recounted to him the pizza incident as well as the incidents of name-calling, hitting, kicking and spitting. Mr. Rockwell testified that he did not feel that Mr. Jubran's report was unusual because many students frequently complained that other students were picking on them. At this point, Mr. Rockwell did not document the incidents because he considered them on the lower end of the spectrum of disciplinary issues he dealt with. At the high end were physical violence, and drug and alcohol abuse.
¶ 15 Mr. Rockwell identified three students involved in name-calling and spitting incidents. He discussed with them the inappropriateness of their behaviour, and warned them of escalating consequences, such as detentions, discussions with their parents, suspensions and possibly expulsions, if they repeated their behaviour.
¶ 16 Mr. Rockwell determined the identity of the student responsible for the pizza incident. The student received a 31/2 hour detention for it, and was not involved in any further incidents with Mr. Jubran.
¶ 17 Mr. Rockwell testified that he informed Mr. Jubran of the steps he had taken to address the harassment Mr. Jubran had experienced, and asked Mr. Jubran to report any further incidents to him.
¶ 18 Ms. Gall testified that she worked with Mr. Jubran in the LAC from January 1995 in his grade 9 year until the end of grade 12. In grade 9, he spent 1 to 2 hours per week in LAC, and increased this to 3 hours per week in grades 10 through 12. Ms. Gall said that it was important for Mr. Jubran to have a quiet place to work because he was easily distracted. Mr. Jubran spoke to her about the teasing and name-calling he was experiencing. Ms. Gall did not observe these behaviours in the LAC because there were only 4-8 students there at a time, and it was well-supervised. When Mr. Jubran told Ms. Gall about the harassment, she discussed his concerns with other teachers, specifically Linda Barry and Mr. Rockwell. She also testified that she spoke with Daria Bagnall, Mr. Jubran's English teacher, to ask her to be vigilant about that kind of behaviour in her classroom. Ms. Gall found Mr. Jubran very friendly and courteous.
¶ 19 In September 1994, Handsworth formalized a Code of Conduct ("CC"), pursuant to a School Board policy. It was an official compilation of disciplinary rules that had been in existence for several years. The CC was developed with school, teacher and parent input, in accordance with the School Act (R.S.B.C. 1996, c. 412) requirements, and with School Board policy.
¶ 20 The CC set out general principles of conduct for students, and certain forms of prohibited behaviour, such as fighting and plagiarism. It referred to prohibited behaviours based on "perceived differences". Although sexual orientation was not specifically identified, Mr. Brayne testified that the CC was meant to be broad enough to cover sexual orientation.
¶ 21 Violations of the CC are determined by the administration after an investigation, or on the spot by a teacher or hallway monitor. Mr. Brayne testified that the School Board and the legislation entrust a principal to make those decisions, and provide the principal with the resources to assist him or her in making that determination. Punishment included warnings, detentions, notification of parents or the R.C.M.P. and suspension.
Grade 10 (September 1995 - June 1996)
¶ 22 Mr. Jubran testified that the name-calling and threats continued in grade 10, occurring mostly in hallways between classes, and that he continued to report incidents of harassment to Mr. Shaw or Mr. Rockwell because his parents encouraged him to do so. Both Mr. Shaw and Mr. Rockwell testified that, although they regularly asked Mr. Jubran how he was doing, and encouraged him to discuss any problems with the administration, he did not report any incidents of harassment until May 1996.
¶ 23 Maryann Macario testified that, during one class, she heard a student loudly shout out to Mr. Jubran something along the lines of "faggot" and "gay". She stopped the class and reminded the students that this kind of behaviour was unacceptable. She told the students that when she was a student, she had been harassed about her size. She told the students how devastating it was to her, and that if they cared about each other they wouldn't treat each other that way. She informed the class what steps she would take if the name-calling happened again, and that the behaviour could result in a suspension. Ms. Macario never heard similar comments directed towards Mr. Jubran or any other student in her class after that time.
¶ 24 At the time of this incident, Ms. Macario had not been advised by the administration that Mr. Jubran had previously been subjected to this type of behaviour. She later received a written memo addressed to all Mr. Jubran's teachers that his parents had complained and that the teachers were to be vigilant about that kind of behaviour in the classroom.
The Howard assault
¶ 25 On May 27, 1996, in a woodworking class, Mr. Jubran hit Trevor Howard in the face, seriously injuring him. Mr. Jubran testified that he hit Mr. Howard because he heard Mr. Howard call him gay. Mr. Jubran said that he was so angry and frustrated at being repeatedly called gay that he lost control.
¶ 26 Mr. Rockwell spoke individually with three witnesses in the class who acknowledged that, while there had been some name-calling, they were unable to say that Mr. Howard was responsible. They also said that the woodworking teacher left the room often.
¶ 27 Mr. Rockwell testified that the woodworking teacher told him that he had warned the students not to call each other names or to pick on Mr. Jubran.
¶ 28 Mr. Howard denied calling Mr. Jubran gay. He testified that Mr. Jubran walked to the back of the class and asked him whether he had called him "gay". Mr. Howard, who said that he had never called Mr. Jubran names in a classroom setting, replied to Mr. Jubran "what do you think"? Mr. Howard testified that Mr. Jubran then "sucker punched" him. In Mr. Howard's opinion, Mr. Jubran picked on him because he was the smallest male in the class. Mr. Howard testified that he did not think that the teacher had heard the name-calling, because he generally asked the students to stop when he heard name-calling, and that day he said nothing.
¶ 29 Mr. Carleson testified that Mr. Jubran told him that he had "sucker punched" Mr. Howard because of something Mr. Howard had said to him. Mr. Carleson was not aware whether the name-calling had been a problem for some time before the assault.
¶ 30 Mr. Jubran was suspended for assaulting Mr. Howard. Mr. Jubran reported to Mr. Rockwell that he had been picked on all year by a number of students. Because Mr. Rockwell suspected that provocation was involved, he reduced the usual four to five day suspension to two days. Mr. Rockwell also warned Mr. Howard about the consequences of his behaviour. Mr. Jubran was criminally charged with assault following the incident.
¶ 31 Mr. Rockwell and Mr. Shaw met with Fouad and Bill Jubran in June 1996 to discuss the Howard incident. Although Fouad and Jacqueline Jubran were concerned and upset that their son had become physical, they testified that they were not surprised that he had reacted the way he did. Fouad Jubran told the school that, in his opinion, the school was "not doing enough" about the harassment his son was experiencing.
¶ 32 Mr. Shaw and Mr. Rockwell decided to personally document and investigate all future incidents to determine whether the bullying behaviour was happening in places other than the woodworking class. They told Mr. Jubran to report all incidents immediately.
¶ 33 Mr. Jubran discussed the criminal charges with Ms. Gall. She was concerned that the effect of the charges would cause him to lose concentration. She said that he would often talk about the trial and how nervous he was about it and how preoccupied he was.
¶ 34 Mr. Howard, who had attended classes with Mr. Jubran since grade 8, testified that he observed Mr. Jubran being called names through grades 8, 9 and partway through grade 10, but that the name-calling was less frequent in grades 11 and 12.
¶ 35 Mr. White testified that Mr. Jubran was called names most often in woodworking class when the teacher was out of the room. His evidence was that Mr. Hummel was the perpetrator of the name-calling that day, and that he had also been called names by Mr. Hummel.
¶ 36 Mr. Howard, Mr. Higgins, Mr. Watson and Mr. White all testified that the terms "faggot" and "gay" were used very frequently at the school, and that they themselves were regularly called those names, as well as "dork" and "geek". Mr. Howard, Mr. Kai and Mr. White also acknowledged that they called Mr. Jubran those names, as well as "ga", which was the students' short form of "gay". Mr. Howard testified that, although he heard other students insulting Mr. Jubran in class, it was not a frequent occurrence. Mr. White's evidence was that the name-calling occurred mostly outside the classroom, in hallways and off school grounds. Mr. Watson testified that he saw groups of male students "ganging up" on Mr. Jubran, calling him names, and that similar incidents had also happened to him.
¶ 37 Mr. Howard, Mr. Higgins, Mr. Kai, and Mr. White all testified that, when the words were spoken by someone who was not a friend, the terms "dork", "geek", "gay", and "faggot" were used interchangeably as words of insult or as a put-down. Their evidence was that the words were not intended to imply that Mr. Jubran was homosexual, and that neither they nor others who called Mr. Jubran those names were of the view that Mr. Jubran was homosexual. Mr. Howard and Mr. Kai denied that any of the "sting" of the words resulted from the fact that they related to homosexuality; they testified that the words were simply used as another form of insult.
¶ 38 Mr. Howard testified that he never considered whether Mr. Jubran disliked the name- calling. He was of the view that he would just "let it go", as he himself did. Mr. Higgins testified that he did not really feel insulted when he was called those names.
¶ 39 Mr. Howard, Mr. Kai, Mr. Watson and Mr. Higgins all testified that it was widely known that there were certain words they were not permitted to use, and that, at the end of grade 10, Mr. Rockwell had prepared a list of names of people who had been bothering Mr. Jubran. Mr. White and Mr. Watson testified that they knew students would be disciplined and could be suspended for that behaviour. Mr. White testified that he recalled Mr. Shaw telling students that name-calling was serious, and that it could not continue. Mr. Watson testified that he had been told in school assemblies that the name-calling was unacceptable. Mr. Higgins and Mr. Kai testified that, although they were not aware of any policy about the use of words, they knew that it was unacceptable, and that they would be disciplined for it. They testified that if the school authorities had information that students had called Mr. Jubran names, Mr. Rockwell would pull the students from class and discipline them. Both Mr. White and Mr. Higgins were questioned by Mr. Rockwell about their participation in calling Mr. Jubran names, and were warned of the consequences of continuing their behaviour. Mr. Higgins and Mr. Kai testified that the discipline applied by Mr. Rockwell was effective in making them stop calling Mr. Jubran names because they did not want to face punishment for doing so. Mr. White, however, testified that he continued to call Mr. Jubran names, because Mr. Jubran "tattled" on him, until Mr. White's mother was called to meet with Mr. Shaw. Mr. White testified that he stopped name-calling at that point because he didn't want to get into trouble with both his mother and the principal. Mr. Watson was of the opinion that all name-calling of Mr. Jubran stopped in grade 12.
¶ 40 Mr. Kai and Mr. Higgins testified that they did not observe Mr. Jubran being hit, kicked, or spit on. Mr. Howard and Mr. White testified that they observed Mr. Jubran in physical altercations with other students. Mr. Higgins testified that he also saw Mr. Jubran threatening other students. Mr. White testified that he saw other students throw things at Mr. Jubran.
¶ 41 Mr. Howard testified that he was aware that the school wanted the name-calling to stop, and that he stopped after Mr. Jubran punched him.
¶ 42 Mr. Higgins testified that he frequently observed people calling Mr. Jubran "gay" and "faggot", and that some of these name-calling incidents occurred in classrooms.
¶ 43 Chris Richardson attended Handsworth for 5 years, graduating in 1997. Mr. Richardson was the student council vice president for publicity, and was involved with the school band and the production of the school newspaper. Mr. Richardson was also involved in peer counselling, and was aware there were bullying problems in the school. Although he was acquainted with Mr. Jubran through his involvement in these school activities, he did not socialize with him. Mr. Richardson said he became aware of who Mr. Jubran was when he was in grade 10, and Mr. Jubran was in grade 9. He testified he learnt that there was "an issue" with Mr. Jubran when he was in the office on one occasion and Mr. Jubran came in to make a complaint. Mr. Richardson testified that he observed Mr. Jubran being called names like "loser" and "dork", as well as other derogatory homosexual names such as "gay" and "homo", but never heard him being called the words "faggot" and "queer". Mr. Richardson testified that he also observed Mr. Jubran reacting by calling another student "gay". He also testified that Mr. Jubran physically reacted, not by physically contacting other students, but by demonstrating physically aggressive movements towards them.
¶ 44 Mr. Richardson testified that the words used by the students were "part of the high school vocabulary", and that words like "gay" were used to describe someone, something, or a situation that a student didn't like. Mr. Richardson testified that he himself used those words "all the time". He testified that it would be common for a student to say "that shirt is so gay" or "the long jump is so gay" if the student didn't like it. He also said that the words "queer", "faggot" and "homo" were commonly used as part of normal conversation, even amongst friends, as terms of endearment. He testified that he still has a friend who says to him "what's up homo?", and that those words are used without reference to sexual orientation. Mr. Richardson testified that he himself had an experience of being called "homo" and "gay" by a school bully. He said that he was angry about being called those names, because he didn't understand why he was being called that. However, Mr. Richardson said that he knew it wasn't because the student thought he was homosexual. Mr. Richardson testified that he believed that the student was kicked out of the school band and out of school after he complained about him. Mr. Richardson testified that it was not always the same group of students who participated in name-calling, but that the group changed every year. Those students were popular and liked to "ridicule" others who were not as popular. Mr. Richardson's evidence was that he never saw or heard anyone who thought Mr. Jubran was gay. His explanation of the reason that Mr. Jubran was called names more often than other students was that "he tried to insert himself" into crowds of students who didn't want him to join, and that he did things that irritated other people. Mr. Richardson also testified that he saw Mr. Jubran try to trip someone who called him names. Mr. Richardson had been told by the counselling or the administration staff, as well as in classrooms that the use of the terms "homo" and "faggot" were not appropriate. He testified that, initially, he did not know what the words meant, he was aware that the words were meant to be derogatory, but not necessarily with respect to sexual preference.
Grade 11 (September 1996 - June 1997)
¶ 45 Fouad and Jacqueline Jubran testified that they met with Mr. Rockwell and Mr. Shaw at the beginning of Mr. Jubran's grade 11 year. Neither Mr. Shaw nor Mr. Rockwell had any memory of that meeting. Based on the administration's practise of documenting incidents and meetings after the Howard assault, I accept that Mr. Jubran's parents did not meet with Mr. Shaw and Mr. Rockwell in September 1996. It may be that the Jubrans' have confused this meeting with the one that occurred in January 1997, as their recollection of what occurred is consistent with the events of that meeting.
¶ 46 The administration documented over 12 incidents of harassment reported by Mr. Jubran, the first of which was on September 3rd. I do not consider it necessary to set any of them out in detail. There is no dispute that the incidents, which occurred both inside and outside of school, consisted of Mr. Jubran being called names such as "faggot", "queer", "gay", "homo", Mr. Jubran being pushed, shoved and having things thrown at him, and one incident where Mr. Jubran intercepted a note being sent around class depicting him holding hands with another male student. Each incident was investigated by Mr. Rockwell, and the students involved were warned. With the exception of three students, the students did not re-offend after being warned.
¶ 47 In one incident, because Mr. Rockwell heard different accounts from Mr. Jubran and the other student, he asked them to write out their version of the incident, show it to their parents, and have their parents sign the statement. Mr. Rockwell testified that he did this so that the parents were aware of what had happened, that it had been reported, and the school was trying to deal with it.
¶ 48 Mr. Jubran filed his human rights complaint in November 1996.
¶ 49 Following reports of incidents in December, Mr. Rockwell and Mr. Shaw arranged to meet with two students and one of their parents in mid-January because these reports were the second and third incidents involving these students. They also set up a meeting with a third student and his parents for June 1997. In the meetings with the first two students and their parents, Mr. Rockwell outlined the details of the incidents. Mr. Shaw discussed the CC, and told them that, if the harassment continued, the students could face suspension from school. Mr. Rockwell stated that both students acknowledged calling Mr. Jubran names at those meetings, but said that they didn't mean anything by it, and that it was usually in response to something Mr. Jubran had done. The students were told that provocation was not a defence to their actions. Mr. Rockwell testified that generally, in the discussions with the other students, while they acknowledged that they did call Mr. Jubran names, they considered it a joke. The students told him that they were "just trying to bug" Mr. Jubran, and they didn't mean anything by it. Mr. Rockwell was of the belief that the students did not think Mr. Jubran was gay, but they used the words pejoratively, in order to elicit a response.
¶ 50 Mr. Rockwell's evidence was that the students' parents were shocked that their sons would be involved in this behaviour, but accepted the consequences that Mr. Shaw set out if their behaviour continued.
¶ 51 In January, one of the students received a three-day suspension for his participation in the note incident, because he had previously been warned, and his parents spoken to about his behaviour. That student was later expelled from Handsworth, although not entirely because of his behaviour towards Mr. Jubran.
¶ 52 Mr. Shaw became personally involved in Mr. Jubran's complaints in January 1997, when he reported that he had been harassed by a group of grade 10 boys. Mr. Rockwell investigated the incident, obtained the names of the students involved, warned them about the seriousness of their behaviour, and the consequences of their actions if the behaviour continued.
¶ 53 Mr. Carleson spoke to Mr. Jubran again at Mr. Shaw's request some time after the Christmas vacation. Mr. Jubran told Mr. Carleson that he was being picked on in hallways, and that he had reported that to Mr. Rockwell. Mr. Carleson testified that he saw less of Mr. Jubran in grade 11 than he did in grade 10, and even less in grade 12.
¶ 54 On January 9, 1997, Mr. Rockwell contacted Fouad and Jacqueline Jubran to set up a meeting in February. Bill Jubran accompanied them to the meeting. Although both Mr. Shaw and Mr. Rockwell acknowledged that the meeting was organized, in part, because Mr. Jubran had filed his complaint with the Commission, they testified that the primary purpose was to discuss Mr. Jubran's situation at school, and to outline the school's approach in dealing with them.
¶ 55 Fouad and Jacqueline Jubran testified that they were frustrated because, although the school promised to do something about their son's harassment, there was no evidence that things had improved. Fouad Jubran testified that he told Mr. Shaw and Mr. Rockwell that he was not satisfied with the school's disciplinary measures, held up the school's CC and said that it hadn't protected his son from harassment and criticism. Part way through the meeting, Fouad Jubran became very upset, said that his son had been a victim for three years, and asked "Are you waiting for my son to be knifed?" He then said, "I'll sue your ass if anything happens to my son", and swore at Mr. Shaw and Mr. Rockwell.
¶ 56 Mr. Shaw said that he was surprised at Fouad Jubran's reaction, and asked him to leave the meeting. Fouad Jubran testified that he left of his own accord. Mr. Shaw denied telling Fouad and Jacqueline Jubran that he was unable to solve the problem, or that it was not his responsibility to solve it. The meeting continued between Mr. Shaw, Mr. Rockwell, Jacqueline Jubran and Bill Jubran. Mr. Shaw outlined what the school would continue to do, and sought input from Jacqueline and Bill Jubran. Bill Jubran expressed the view that, because nothing had changed, the discipline the school was handing out was insufficient, that the school should use hall monitors, and hold assemblies to discuss homophobic taunts. Bill Jubran also testified that he told Mr. Shaw and Mr. Rockwell that they were not doing enough.
¶ 57 In Mr. Shaw's opinion, the school had been responding very well. He testified that both he and Mr. Rockwell had made themselves available to Mr. Jubran, each incident was dealt with quickly, and on its own merits, and disciplinary measures were taken if necessary. In the January meeting, he and Mr. Rockwell outlined each incident for Jacqueline Jubran and Bill Jubran, and the school's process of dealing with the complaints. He told them that they needed to investigate the accuracy of Mr. Jubran's reporting, that they discussed each incident with the students involved and educated them on the damage name-calling could do. Mr. Shaw testified that he reviewed the CC and outlined what steps the school would take. They emphasized to Mrs. Jubran how important it was that Mr. Jubran report all incidents as soon after each incident as possible. Mr. Shaw testified that they also discussed other strategies with Bill and Jacqueline Jubran. Mr. Shaw also told them that the school thought things had settled down in grade 11 because Mr. Jubran had not reported any incidents for a number of weeks. Jacqueline Jubran responded that things had not settled down, that Mr. Jubran was having trouble sleeping, and that he was concerned about grade 12. Bill Jubran told them that the CC should have more substance, and that students should automatically be suspended for any kind of harassment. In Mr. Rockwell's view, "zero tolerance" did not mean automatic suspension from school the first time a student was proven to have harassed another student. Mr. Shaw replied that there were problems with defining harassment, that often students who used bad words were friends, and he was not certain whether the name-calling was taunting or a joke. He outlined the difficulties of applying a blanket policy, but agreed that they would consider it. He and Mr. Rockwell also pointed out that investigating each incident took a great deal of staff time. They told Mrs. Jubran that they were in the process of organizing a seminar for teachers that would assist them in defining and dealing with harassment.
¶ 58 Mr. Rockwell did not agree with Bill Jubran's assessment that the disciplinary measures the school was employing were insufficient. He testified that he was of the view that he was acting according to the firm and judicious parent standard set out in the School Act. Mr. Rockwell indicated that the school employed two hall supervisors, and a discussion of the school's rules and regulations during school assemblies was already occurring.
¶ 59 Mr. Shaw and Mr. Rockwell met with Mr. Jubran on March 4, 1997 because they hadn't seen him for some time, and wanted to find out if there was anything he hadn't reported. They asked him how the school could support him, and asked how he was doing. Mr. Jubran told them that there had been no serious incidents of harassment, and that he "ignored the comments now". Mr. Jubran told Mr. Shaw that he was trying to focus on his schoolwork. According to Mr. Shaw, Mr. Jubran told him that students appeared to be backing off him, and that he was "trying to get on with his life". When asked how he felt about grade 12, Mr. Jubran said that, although he had some concerns, he would carry on. Mr. Shaw felt positive about the meeting, and left with the impression Mr. Jubran would report any incident he felt necessary.
¶ 60 Mr. Jubran was of the view that the school tried to follow up with him a bit more after the February meeting with his parents. He conceded that either Mr. Shaw or Mr. Rockwell took his complaints, reported back to him the results of their investigations and actions, including whether they had spoken to the students and their parents, and suspended or otherwise disciplined the students.
¶ 61 Mr. Jubran testified that, later in the year, following further incidents of harassment, he started to lose faith in the school, and felt that the school "didn't care". He testified that Mr. Rockwell had told him a number of times that he would deal with the situation, and he felt that Mr. Rockwell was not doing that.
Grade 12 (September 1997 - June 1998)
¶ 62 When Mr. Jubran was in grade 12, Mr. Shaw was the primary person dealing with complaints, as there were two new vice principals in the school. Mr. Jubran reported 5 incidents of harassment this year, only two of which will be set out. The other 3 consisted of incidents similar to those that occurred in grade 11.
¶ 63 On September 5, 1997, while in a large grade 12 physical education class, Mr. Jubran felt something touch his shirt, and smelled something burning. He discovered that a coin-sized hole had been burned into his shirt. Mr. Jubran himself was not burned. The physical education teacher first reported this incident to Mr. Shaw, followed later by Mr. Jubran. None of the teachers present saw the incident, or knew which student was responsible, but were aware that a lighter had been used to burn the shirt.
¶ 64 Mr. Jubran gave Mr. Shaw the names of three students who had been sitting behind him in the class, as well as the names of two other students who might be witnesses to the incident. One of the teachers, Mr. Leveille, spoke to one of the students about the incident the following weekend, because he had information that that student was responsible.
¶ 65
Mr. Shaw interviewed four of the students. One of the
students acknowledged during his interview with Mr. Shaw that he had spoken
with Mr. Leveille, and that he had taken responsibility for setting the fire. The
student told Mr. Shaw that he only admitted responsibility for the incident
because his best friend had actually done it. The student concluded
that the only consequence of admitting responsibility would be that he would
not be going on the field trip and he would have to forfeit the $50 field
trip fee. The student told Mr. Shaw that the person who was actually
responsible was going to pay him the $50. Mr. Shaw testified that,
because he had a false confession, he had to continue his investigation to
determine who the responsible party was. All four of the witnesses
to the incident either denied seeing anyone actually burning the hole, denied
any personal responsibility, or refused to reveal who was responsible. Mr.
Shaw testified that he suspected one particular student, but when Mr. Shaw
confronted him with his suspicions, the student identified someone else as
the responsible party. Mr. Shaw attempted to contact this student's
parents, but neither of them were in
¶ 66 Fouad and Jacqueline Jubran became concerned about their son's physical safety after this incident. Fouad Jubran contacted the RCMP to assist him because he had lost faith in the school's ability or willingness to deal with the situation. His evidence was that the RCMP refused to lay charges without a name, and advised Fouad Jubran to deal with the school.
¶ 67 Mrs. Jubran testified that, after this incident, she called Mr. Rockwell and begged him to do something. She told him that she thought things had gone too far, and that she was concerned that something else was going to happen that would be worse for her son. She testified that she expressed her frustration about what she perceived as a lack of action on the school's part. Mrs. Jubran testified that Mr. Rockwell had little to say in response to her concerns. However, Mr. Rockwell was no longer at the school at this time, and Mr. Shaw had no recollection of receiving such a call.
¶ 68 Shortly after the shirt-burning incident, the grade 12 class went on a camping trip, which was a physical education class designed to develop leadership skills and a sense of community amongst the students. Mr. Jubran testified that he woke up at 1 a.m. because someone was urinating on his tent. Two boys outside the tent were talking about how "choked up" the student who had been suspended was about not being able to be on the trip. They then talked about how funny it would be to dip Mr. Jubran in acid. Mr. Jubran testified that, although the students never mentioned him by name, he knew they were referring to him because of references they made to a hole in his shirt.
¶ 69 Mr. Jubran testified that, when he reported this incident to Mr. Shaw, he said he could not investigate it because the students outside the tent did not identify Mr. Jubran by name. Mr. Shaw testified that he did not investigate this incident because he was occupied investigating the shirt-burning incident. He gave evidence that he was aware that the physical education teachers were very unhappy with the way the field trip had gone, and that at least one of the teachers spoke to the students about what they considered to be very poor judgment.
¶ 70 In October 1997, a physical education teacher reported to Mr. Shaw an incident in which students had thrown nails and grapes at Mr. Jubran and had sent him a nasty note, during a school Halloween project. After speaking to Mr. Jubran and investigating the incident, Mr. Shaw concluded that Mr. Jubran had been hit with grapes and rolled up balls of duct tape, and had had a toy machete waved in his face. Mr. Jubran did not provide Mr. Shaw with the note or tell him what the note said, although he indicated it contained the word "gay".
¶ 71 Mr. Shaw spoke to the students, and warned one that he would call his parents and that, if there were any further incidents reported, he would be suspended. Mr. Shaw informed the student's father the following week that his son was involved in a serious situation, and that, if there were any further incidents involving his son harassing Mr. Jubran, he would be suspended. Mr. Shaw warned all of the other students.
¶ 72 In May 1998, Mr. Jubran reported that someone shouted "Azmi is gay" from an open window into the courtyard of the school where he was sitting. Mr. Jubran identified the student responsible and gave Mr. Shaw the name of a witness. The witness confirmed the words, but could not identify the person responsible for uttering them. Mr. Shaw spoke with the student Mr. Jubran identified, who denied any responsibility for the name-calling, and suggested it was another student. Mr. Shaw said that it took him some time to investigate this incident because of his administrative responsibilities; he spoke with the second student in June 1998. The second student told him that he thought the other student said something, but he couldn't remember what it was. The second student also told Mr. Shaw that he had been told by the first student that he had implicated the second student because, if the first student had admitted calling Mr. Jubran "gay", he would be suspended. Because regular classes were over, Mr. Shaw called the students on June 25th to determine who was responsible. Mr. Shaw testified that he was met with "hostility" and "attitude" from the students, so he spoke to their parents. The first student's father said that he had discussed the incident with his son, and that he was certain that his son had not spoken those words because he knew what the consequences would be. The second student's mother told Mr. Shaw that she had a long talk with her son, and that he absolutely denied it. In June, Mr. Shaw called Mr. Jubran at home. He explained that he was still investigating the incident, and that, even though he was not getting any co-operation from the other students, he would let him know the results of the investigation. Mr. Shaw then received a phone call from the second student who gave him the name of a third student who witnessed the name-calling. Mr. Shaw telephoned the student's parents again and told them that there were two witnesses to their son's name-calling, and that, because school was over he could not suspend him, but asked his father to discuss the fact that his son lied to him. The student's father said he would do so. The student graduated that year.
¶ 73 Near the end of the school year, Mr. Shaw called Mr. Jubran and told him that he had determined who was responsible and that he had talked to the student's parents, but that he could not do anything about it because it was the last day of school, and the student had graduated.
¶ 74 Mr. Shaw testified that, in all of his experience as an administrator teacher, he had never seen a student harassed to the extent that Mr. Jubran was.
¶ 75 At the end of Mr. Jubran's grade 12 year, Mr. Carleson testified that Jacqueline Jubran called him and told him that Mr. Jubran was very upset with his English mark. She asked Mr. Carleson for some counselling assistance. Mr. Carleson testified that because he was very busy, and it appeared to him that the matter was pressing, he gave Jacqueline Jubran a list of agencies she could contact.
ARGUMENT
¶ 76 Mr. Jubran argues that the law of sexual harassment in the workplace is an appropriate analysis for this complaint. He contends that insulting or demeaning behaviour related to gender identity, which has been found to constitute sexual harassment, is similar to the type of behaviour he experienced, and that, using this analysis, a finding of discrimination based on sexual orientation will follow.
¶ 77 Mr. Jubran contends that the School Board is responsible for the acts of students in its schools, and that it is therefore, liable for the discriminatory acts of students. To find otherwise, Mr. Jubran argues, is to conclude that the Code has no meaning in a school environment. Furthermore, Mr. Jubran argues, the responsibility on the School Board to adhere to the Code should be strictly enforced because young people spend so much of their formative years in school.
¶ 78 Mr. Jubran contends that tort cases are analogous, and that the standard of care, set out in the School Act, is that of a prudent parent. He argues that liability flows from the School Board's failure to properly supervise the students. Mr. Jubran acknowledges that the principal and vice- principal of Handsworth took steps to address the harassment, but maintains that the steps were inappropriate because they were reactive, and locked into a disciplinary model.
¶ 79 The DCC argues that the School Board, by failing to take steps to maintain an environment that was free of homophobic harassment, and by its minimal reaction to specific instances of harassment that were brought to its attention, failed in its obligation to provide Mr. Jubran with an educational service free from discrimination; that is, free from bias, prejudice and intolerance.
¶ 80 The DCC contends that the School Board has failed to facilitate or promote awareness of the Code, and, specifically, the consequences of the 1992 addition of "sexual orientation" as a prohibited ground of discrimination to the Code, to the schools for which it is responsible, including Handsworth.
¶ 81 The DCC contends that the School Board has not implemented a comprehensive strategy for dealing directly with homophobic harassment or discrimination on the basis of sexual orientation. The DCC argues that the School Board has not defined what is, or is not, acceptable conduct in this regard, nor has it undertaken educational initiatives designed to eliminate the use of homophobic insults and the targeting of students for harassment on the basis of sexual orientation.
¶ 82 The School Board argues that the school is a guardian, not a guarantor of school safety. It contends that it cannot be held vicariously liable for the conduct of its students, only for the conduct of the teachers and the staff. The School Board contends that, even if it has a duty to control what students say to one another, there is no clear or obvious answer to what can or should be done to minimize the use of offensive language among high school students, nor is there any clear or obvious course that can be taken to prevent that behaviour from recurring. It argues that the School Board cannot eradicate discrimination among the student population, and that it should not be held legally responsible for its failure to do so.
¶ 83 The School Board further contends that this Tribunal, as a matter of public policy, should not judge whether the methods employed by schools are suitable to educate students on this or any other subject.
¶ 84 The School Board submits that the only circumstance where it could be guilty of discrimination for acts committed by students is where specific incidents of harassment are reported, and the School Board is deliberately indifferent to the problem and takes no steps to deal with the matter. Further, the School Board submits that it is not for the Tribunal or the courts to second-guess whether the steps taken were appropriate or whether other action might have been better. The School Board argues that the administration's actions were generally successful in that most of the offenders did not commit another offence after being disciplined.
¶ 85 The School Board further argues that the claim is really one of educational malpractice, and, in reliance on American jurisprudence, contends that the Tribunal has no ability to interfere with what a school teaches, or how.
¶ 86 Further, the School Board contends Mr. Jubran has failed to establish causation. The School Board argues that Mr. Jubran provided no evidence that programs similar to those used in other school districts will have any effect on stopping behaviour. The School Board argues that, in fact, the evidence is to the contrary. He submits that the schools that have implemented such programs have not eliminated harassing behaviour.
ISSUES
¶ 87 The parties agreed that education is a service or facility under the Code. The issues I must decide, therefore, are as follows:
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Does the conduct complained of constitute discrimination based on sexual orientation, and thus fall within the ambit of the Code? |
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Is the School Board responsible for student conduct that contravenes the Code? |
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Has the School Board established a bona fide reasonable justification for its conduct? |
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What is the remedy? |
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ANALYSIS AND DECISION
¶ 88 Section 8(1) of the Code reads, in part, as follows:
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A person must not, without a bona fide and reasonable justification, |
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(b) discriminate against a person
or class of
persons regarding any accommodation, service or
facility customarily available to the public
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because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons. |
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¶ 89 The burden of proving a prima facie case of discrimination rests on a complainant. In this case, Mr. Jubran must show, on a balance of probabilities, that there was harassment, that the harassment constituted differential treatment based on sexual orientation, and that the School Board is responsible for that conduct. The burden then shifts to the School Board to establish that it has acted in a bona fide and reasonably justified manner.
| 1. |
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Does the conduct complained of constitute differential treatment based on sexual orientation? |
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¶ 90 Although harassment is not defined in the Code, human rights legislation in other jurisdictions does contain definitions of harassment and sexual harassment. The Manitoba Human Rights Code, S.M. 1987-88, c. 45, s. 19 defines harassment as "a course of abusive and unwelcome conduct or comment undertaken or made on the basis of any characteristic referred to in subsection 9(2) [the prohibited grounds]". The human rights statues of Ontario, Newfoundland and the Yukon define harassment as meaning "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome".
¶ 91 Harassment, with respect to a prohibited ground of discrimination, is discrimination even though it is not specifically prohibited by the Code (see Robichaud et. al. v. Queen (1987), 40 D.L.R. (4th) 577, Johnstone v. Zarankin (1984), 5 C.H.R.R. D/2274 (B.C. Bd. of Inq.), aff'd 6 C.H.R.R. D/2651 (B.C.S.C.)).
¶ 92 In Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205, the Supreme Court of Canada confirmed Canadian, English and American jurisprudence concluding that sexual harassment constitutes sex discrimination (at para. 44461). The Court defined sexual harassment as "unwanted conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victim of the harassment" (at para. 44451). The Court found that sexual harassment was "a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it." (at para. 44451). In my view, harassment can occur on the basis of any prohibited ground of discrimination and is not restricted to the employment context.
¶ 93 There is no dispute that Mr. Jubran was repeatedly called names at school. The physical attacks on him were accompanied in most cases with homosexual epithets. Mr. Shaw, who has significant educational experience, testified that he had never seen another student harassed to the extent Mr. Jubran was.
¶ 94 The students testified that, although they called Mr. Jubran pejorative names usually directed at homosexuals, they did not in fact perceive him to be homosexual. Mr. Richardson's evidence was that words like "gay" and "faggot" were used indiscriminately in the school, and that the word "gay" was used to describe persons, objects and even situations the students disliked.
¶ 95 In my view, whether the students knew or believed that Mr. Jubran was homosexual or not is irrelevant. The School Board has an obligation to provide Mr. Jubran with an educational environment free from discrimination. The teachers knew, or ought to have known, that the epithets directed towards Mr. Jubran were of a homophobic nature, and were designed to shame and hurt him. The adults in control of the learning environment were fully appreciative of the nature and consequences of the students' actions.
¶ 96 While the students may have used the terms "homo" and "queer" interchangeably with "dork" or "geek", without reference to sexual orientation, the terms "queer", "homo" and "faggot", clearly carry homosexual overtones. The students acknowledged that the words often related to sexual orientation, were pejorative, and were intended to carry a sting. While not every action directed toward Mr. Jubran was accompanied by a homosexual statement or epithet, I agree with Mr. Jubran's counsel who argued that, for the most part, the name-calling had "at its basis a sense of his difference which was described frequently in homophobic terms".
¶ 97 In any event, whether or not the name-calling was intended to hurt is irrelevant, since it is the effect of the conduct, or action, not the intent of the harassers, that is relevant in determining whether discrimination has occurred (Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] S.C.R. 5369).
¶ 98 Whether alone or with other actions, the words used were hurtful and insulting, and demeaning to Mr. Jubran. The harassment was an unwanted intrusion upon his dignity. Although the evidence is that Mr. Jubran at times retaliated against the other students, he had no choice whether to accept or reject their behaviour - he merely endured it.
¶ 99 The harassing words were used in a context that was designed to, and did, cause hurt and anguish. Mr. Jubran was aware of the hatred and contempt for him that were contained in, and intended by, those words, and he reported the name-calling and other activities to the school authorities. He told them that the conduct was hurtful and unwelcome. His parents and uncle also communicated their own, and Mr. Jubran's, anguish to the authorities on several occasions over the years. The evidence is clear that the harassment negatively affected Mr. Jubran's school experience, and caused him to contemplate suicide.
¶ 100 Whether or not Mr. Jubran self-identifies as a homosexual, he is nevertheless entitled to the protection of the Code.
¶ 101 I find that Mr. Jubran was subjected to a course of conduct that constitutes harassment on the basis of a prohibited ground of discrimination, that being sexual orientation or perceived sexual orientation, contrary to s. 8 of the Code.
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Is the School Board responsible for student conduct that contravenes the Code? |
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¶ 102 I find that the School Board is responsible for the discriminatory behaviour of the harassing students (see an analogous case: Ferguson v. Muench Works Ltd. (1997), 33 C.H.R.R. D/87 (B.C.C.H.R.) at para. 42).
¶ 103 In my view, the tort law principles, as set out in the American and Canadian cases relied upon by counsel for the School Board, are not applicable to the issue of the scope of the School Board's responsibilities under the Code. In Robichaud, supra, the Supreme Court of Canada found the Department of National Defence liable for the sexual harassment of the complainant by her supervisor, an employee of the department. The Court reviewed the intent and purpose of the Canadian Human Rights Act, and concluded that employer liability cases, which were rooted in fault-based jurisprudence developed in the context of criminal or quasi-criminal conduct, were inappropriate in the human rights context. The Court held that the central purpose of human rights legislation is remedial, and the intent or motives of individuals who cause anti-social conditions are irrelevant. The Court then said as follows:
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The last observation also goes some way towards disposing of the theory that the liability of an employer ought to be based on vicarious liability developed under the law of tort....It is clear that [the act complained of must have been done in the course of employment], as developed under the doctrine of vicarious liability in tort cannot meaningfully be applied to the present statutory scheme... |
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Any doubt that might exist on the point is completely removed by the nature of the remedies provided to effect the principles and policies set forth in the Act. This is all the more significant because the Act, we saw, is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. If this is to be done, then the remedies must be effective, consistent with the "almost constitutional" nature of the rights protected. (at 582) |
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¶ 104 Further, the Court said:
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The legislative emphasis on prevention and elimination of undesirable conditions, rather than on fault, moral responsibility and punishment, argues for making the Act's carefully crafted remedies effective. |
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Hence, I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees "in the course of their employment", interpreted in a purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions. (at 584) |
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¶ 105 I am also not persuaded that the similar-to-vicarious liability analysis as set out in Robichaud is an appropriate analysis for the issue before me. While there are some analogies between employment discrimination and service discrimination, there are also some notable distinctions where that service is the provision of education. Employers can discipline and dismiss harassing employees. Schools can also discipline and, subject to the School Act, and School Board policies, expel harassing students. However, students are not adults, and what may be considered appropriate discipline is not analogous. Furthermore, employers have choices in who they hire, and school boards are under a statutory duty to make an educational program available to all persons of school age in its district (s. 75 of the School Act).
¶ 106 Nevertheless, I conclude that I need not make a determination on this issue, since I am of the view that the Supreme Court's analysis in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 provides a more complete and satisfactory answer.
¶ 107 In Ross, the Supreme Court of Canada held that services provided in an educational facility which are there for the general purpose of educating students are services protected by human rights legislation, a point on which all parties to this complaint were in agreement.
¶ 108 The Supreme Court examined the conduct of Mr. Ross, a teacher who published and distributed documents, letters and pamphlets that contained discriminatory comments against persons of the Jewish faith and ancestry, and found that his conduct adversely impacted the school community. The Court agreed with the New Brunswick Board of Inquiry's decision that the school board's reluctance to take disciplinary action against him constituted silent condonation and support for his views.
¶ 109 The Court held that schools are:
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...an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. As the board of inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it. (at para. 42) |
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¶ 110 In Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, the Court said as follows:
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Our
Court accepted in Ross... that teachers are a medium for the transmission
of values. It is obvious that the pluralistic nature of society and
the extent of diversity in |
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¶ 111 And in R. v. Jones, [1986] 2 S.C.R. 284, the Supreme Court stated:
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No proof is required to show the importance of education in our society or its significance to government. The legitimate, indeed compelling, interest of the state in the education of the young is known and understood by all informed citizens. (at 299) |
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¶ 112 In Kafe et Commission des droits de la personne du Quebec c. Commission scolaire Deux-Montagnes (1993), 19 C.H.R.R. D/1 (Que. Trib.), the Tribunal found that schools had a duty to educate students regarding human rights and implement principles to prevent harassment and discrimination (at para. 84).
¶ 113 The School Act requires school-age children resident in British Columbia to enrol in an educational program provided by the board of a school district, and confirms that access to such a program will be provided by the board of the school district (ss. 2 and 3).
¶ 114 The School Board's statutory responsibilities include issues of discrimination and harassment. Pursuant to section 85(2) of the School Act, the School Board has the authority to, among other things,
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(a) |
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determine local policy for effective and efficient operation of schools in the school district |
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...
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(c) |
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make rules |
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(i) |
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establishing a code of conduct for students attending educational programs operated by or on behalf of the board, |
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respecting suspension of students and the provision of educational programs for suspended students, |
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... |
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(vii) |
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respecting any other matter under the jurisdiction of the board; |
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suspend students, in accordance with the rules under paragraph (c)(ii), so long as the board continues to make available to those students an educational program; |
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develop and offer local programs for use in schools in the school district; |
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Despite any other provision of this Act, a board may refuse to offer an educational program to a student 16 years of age or older if that student |
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has refused to comply with the code of conduct, other rules and policies referred to in section 6 |
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¶ 115 Handsworth's current CC was developed in 1994 pursuant to s. 85(2)(c)(i), and School Board policy requiring schools to establish a CC. According to Mr. Brayne, although the CC does not expressly say so, it is designed to prohibit certain behaviour, including bullying, based on sexual orientation. I would also interpret the power of the School Board to establish a code of conduct to include human rights principles. It is the statutory responsibilities of school boards as well as the compelling state interest in the education of young people (Jones), and the school board's obligation to maintain a non-discriminatory school environment for students (Ross) which gives rise to the School Board's duty respecting student conduct under the Code.
¶ 116 As a matter of legislation and case authority, there is a legitimate state interest in the education of the young, that students are especially vulnerable, that the School Board may make rules establishing a code of conduct for students attending those schools as part of its responsibility to manage those schools. Given this, and the quasi-constitutional nature of the Code, I find that the School Board has the duty to provide students with an educational environment that does not expose them to discriminatory harassment.
¶ 117 Having found that Mr. Jubran was subjected to discrimination by students on the basis of sexual orientation or perceived sexual orientation, and that the School Board is liable for that conduct, I move now to the School Board's defence.
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Has the School Board established a bona fide reasonable justification for its conduct? |
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¶ 118 Having found that the School Board contravened s. 8 by failing to provide a learning environment free of discrimination, the burden then shifts to the Board to establish that the measures it took constitute a bona fide and reasonable justification. Once the harassment is made known to the school, the administration had an obligation to act on the specific complaints. Although the School Board argued that there was no evidence that indicated which steps it had taken were insufficient, it has the burden of showing that the steps it took were appropriate. It is necessary to assess the School Board's response in light of the Supreme Court of Canada decisions in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, 181 D.L.R. (4th) 385 ("Grismer") and British Columbia (Public Service Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 ("Meiorin").
¶ 119 In Meiorin, the Court set out a unified approach to assessing the defence of bona fide occupational requirement. In Grismer, the Court applied the unified approach in the context of the provision of services, and said that the analysis applied to all claims of discrimination under the Code. Under the unified approach, once a standard or policy is found to be prima facie discriminatory, the service provider must follow a three-step test to justify its claim for a bona fide and reasonable justification. Therefore, the School Board must prove, on a balance of probabilities, that its conduct had a bona fide justification by showing:
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it adopted the standard for a purpose or goal that is rationally connected to the function being performed; |
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it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and |
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the standard is reasonably necessary to accomplish its purpose or goal in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship. |
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The Court concluded that a service provider would incur some hardship when attempting to accommodate a particular complainant. The mere fact that some cost, financial or otherwise, will be incurred is insufficient to establish undue hardship.
¶ 120 The facts of this case do not adapt themselves well to the Meiorin test. Nevertheless, the underlying principle, which is to address service providers' duty to take into account individual differences within established standards, must be addressed.
(a) Did the administration adopt the standard for a purpose or goal that is rationally connected to the function being performed?
(i) What was the standard?
¶ 121 Section 76(3) of the School Act provides that the discipline of a child while attending school must be "similar to that of a kind, firm and judicious parent, but must not include corporal punishment". By law, Handsworth authorities had a duty to act in a manner proportionate to the misconduct.
(ii) Is the standard rationally connected?
¶ 122 The legislatively prescribed disciplinary standard of "kind, firm and judicious parent" the Handsworth administrators were bound to apply is rationally connected to the School Board's function of delivering educational services. Pursuant to s. 85(2)(c) of the School Act, the School Board also had the power to make rules establishing a student code of conduct, which it did, and rules respecting the suspension of students. The CC enacted by the School Board set out forms of conduct by students, including prohibited behaviour. Although harassment based on sexual orientation was not explicitly mentioned as a prohibited behaviour, the administrators agreed the CC was sufficiently comprehensive to include it. These criteria are rationally connected to the provision of education services.
(b) Was the standard adopted in good faith in the belief that it is necessary for the fulfilment of the purpose or goal?
¶ 123 I find that the standards set out by legislation and by policy were adopted in the good faith belief that they were necessary for the fulfilment of the School Board's statutory obligation to deliver an educational program to all students in its district, and its responsibility to manage those schools. Further, as I concluded above, because the School Board has a duty to deliver that educational program in an environment free of harassment, codes of conduct and the ability to discipline judiciously are necessary incidents to the fulfilment of that obligation.
¶ 124 I accept that the officials at Handsworth only became aware of the harassment when Mr. Jubran was in Grade 9, in the fall of 1994, when Mr. Jubran was persuaded by his parents to report an incident of harassment. While there is evidence that Mr. Jubran was called names in the grade 8 basketball class, the teacher addressed the matter by speaking to the team members. Because the name-calling stopped, the teacher had no reason to believe that the behaviour was more pervasive.
¶ 125 Mr. Jubran argues that school officials had a duty to investigate the incident that caused injury to Mr. Jubran's eye, and the pizza delivery incident in grade 9, to determine whether there was a pattern of behaviour or not, and that their failure to do so led to the escalating incidents of harassment in the subsequent years. The evidence does not support Mr. Jubran's argument. The school officials did investigate pizza incident, and gave the student responsible a 31/2 hour detention. There is no record of this student being involved in other incidents. Handsworth also knew who was responsible for shooting the paper projectile, which Mr. Jubran acknowledged could have been an accident. There is no evidence that that student had previously harassed Mr. Jubran. Although the evidence was that the student may also have been responsible for an incident in grade 11, there was no evidence of a pattern of behaviour in grade 8. Furthermore, Mr. Rockwell did speak to, and warn, the three other students Mr. Jubran identified.
¶ 126 While Mr. Jubran may have complained to his parents about other instances of harassment in grade 9 before he assaulted Mr. Howard, the evidence is that he did not tell his teachers, counsellors, or his peer counsellor about this activity.
¶ 127 I conclude, on a balance of probabilities, that Handsworth was not aware of other incidents of harassment in grade 9. Mr. Rockwell sought out Mr. Jubran at the beginning of grade 9 to inquire into his welfare after the pizza delivery incident. Despite Mr. Rockwell's expression of support and concern, and Mr. Jubran's agreement that he had easy access to the administration, he reported no other incidents to him. In fact, Mr. Jubran told the administrators that things were "OK", and that "things had settled down". Mr. Jubran could not recall any incidents of harassment that he reported in grade 9, and, in any event, his evidence on dates and times was inconsistent and conflicting. Furthermore, Mr. Jubran's evidence was that, when he was persuaded to report the incidents of harassment in grade 8, he was not doing so voluntarily, and he didn't intend on giving them any more information. Mr. Rockwell's notes made following the assault indicate that Mr. Jubran told him that he had been picked on by some of the boys that year. In my view, it is more likely than not that Mr. Rockwell would not have recorded this information in his notes at that time if Mr. Jubran had previously informed Mr. Rockwell that he had been picked on by some the boys that year.
¶ 128 Therefore, I find that in grade 8 and 9, Handsworth had not been given sufficient information from Mr. Jubran to enable it to conclude that there was a "pattern of behaviour", or that it had a duty to investigate further.
¶ 129 Mr. Jubran argues that the Howard incident should be looked at as a reaction to continued harassment, and contends that it is this incident that spurred the school into action. Mr. Jubran also maintains that the School Board is responsible for his anxiety leading up to the criminal trial, since the assault would never have happened but for Handsworth's failure to address the harassment earlier. I do not accept that Handsworth bears any responsibility for either the assault or Mr. Jubran's anxiety over the criminal charges. Handsworth could not have known, without information, what Mr. Jubran was experiencing. Furthermore, there is simply no basis to conclude that Handsworth is responsible for Mr. Jubran's assault on Mr. Howard. Even if Mr. Jubran honestly felt he was provoked, I find that he was aware that the administration was concerned about him, that it would take his complaints seriously, and that he was informed of other avenues for assistance.
¶ 130 Handsworth authorities responded to Mr. Jubran's complaints from May 1996 forward. Mr. Jubran's evidence was that virtually every incident of harassment in grades 10, 11 and 12 were reported to the administrators. Those reports, and Handsworth's responses to them, were documented. Each student identified was sought out as soon as possible, taken out of class if necessary, and spoken to. The student was asked about Mr. Jubran's allegations, and, whether or not the student admitted the behaviour, Mr. Rockwell or Mr. Shaw spent 15-30 minutes discussing the impact name-calling would have on a student, told the student it was unacceptable, and outlined the escalating consequences to the student if they were found responsible for the behaviour. If the incident was found to be substantiated, or the student admitted the harassing behaviour, he was warned, and advised what would happen if he re-offended. If the incident occurred in a classroom, Mr. Rockwell also spoke to the teacher. Each incident was dealt with on its own merits. Mr. Rockwell indicated that, as far as possible, he reported back the results of the investigation and conclusions to Mr. Jubran, offered him support, and told him what disciplinary steps had been taken. Mr. Rockwell felt he was delivering a clear and consistent message to the students involved. Both Mr. Shaw and Mr. Rockwell testified that they applied the standard of a "judicious parent" when disciplining the students Mr. Jubran complained of.
¶ 131 The administration team discussed automatically suspending a student for name-calling, and decided that approach would be ineffective because harassment was not easily defined, and "it was not always intended to hurt". Further, it was decided that because it was inappropriate for the school to automatically expel, this approach was not possible. Mr. Shaw said that students used harassing words pervasively both off and on the school grounds to describe situations as well as people, and in many different contexts. Mr. Shaw testified that a policy of automatic suspension of a student would pose problems for many parents and students. He was of the view that such a policy could only be made in consultation with the parent advisory council, and even then, would take too much time to implement, and would unnecessarily punish students who used the words without fully understanding them, or without malicious intent. In his opinion, it would take a great deal of education and work with students, staff, parents and the community to discuss why certain words and phrases were hurtful and damaging to individuals.
¶ 132 Mr. Carleson also testified that, in his experience, students often call each other "homo" as a collegial form of expression, and that he would not necessarily consider it to be name-calling of a harassing nature. In his view, the impact of the name-calling would depend on the context in which it was delivered. I find that the words used with Mr. Jubran were not used as a collegial form of expression.
¶ 133 The administration was proactive in seeking Mr. Jubran out, encouraging him to report, and asking him how he was doing. After the Howard assault, Mr. Shaw and Mr. Rockwell gave Mr. Jubran their personal attention, and discussed his situation with the school-based team in an effort to provide him with the resources he needed. Mr. Shaw also asked the school counsellor, Mr. Carleson, to speak with Mr. Jubran and to provide him with support and some assistance in dealing with the incident, and to bring any problems to the administrative team. Mr. Shaw agreed the name-calling was a serious and on-going problem, and that he had to be concerned about it. He also agreed that the effect of these actions could cause low self-esteem, depression, feelings of helplessness, worthlessness, isolation and thoughts of suicide.
¶ 134 Mr. Carleson met with Mr. Jubran and talked about how to resolve conflicts, and how to avoid situations he didn't like. Approximately one week later, Mr. Jubran had another conversation with Mr. Carleson on motivation, and how to improve his grades, but did not raise the issue of harassment with him. Mr. Jubran was offered multiple opportunities for assistance.
¶ 135 In Kafe (supra), the Quebec Human Rights Tribunal was faced with a complaint similar to the one before me. A teacher complained to the tribunal that the School Board had not taken appropriate steps to protect him from racial harassment. The tribunal concluded that, once the School Board was aware that racist practises were occurring, the simple existence of a harassment policy was insufficient. The tribunal found that the School Board had an obligation to take active measures to enforce the policy and make it known to students, and to act with diligence and to take prompt, effective measures proportional to the situation. Although the students had been disciplined, the tribunal found that the School Board had failed to meet its obligation to address the racism inherent in the students' behaviour:
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Les autorites de l'ecole avaient donc le devoir d'affirmer clairement aux enseignant et aux eleves que les manifestations de discrimination, de harcelement racial etaient a tous egards inacceptables (at para. 86). [The school administration must clearly outline to the students and to the teachers that discrimination and racial harassment is totally unacceptable.] (my translation) |
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¶ 136 Unlike Kafe, there is no evidence that the school condoned harassing conduct, or turned a blind eye to it. Mr. Shaw and Mr. Rockwell, for the most part, acted with diligence in responding to Mr. Jubran's complaints. The evidence demonstrates that, with respect to each individual harasser but for one or two, the disciplinary steps taken by the administration were effective. Most of the students, when spoken to by Mr. Rockwell or Mr. Shaw, stopped the name-calling. The students who gave evidence, all of whom had been investigated as a result of Mr. Jubran's complaints, testified that the disciplinary actions taken by the school were effective in respect of their own behaviour. I accept that the student population knew, for the most part, that the administration considered that harassing behaviour was unacceptable, and that action would be taken if such conduct was reported.
(c) Could the School Board have accommodated Mr. Jubran without incurring undue hardship?
¶ 137 At issue is whether the School Board accommodated Mr. Jubran to the point of undue hardship. In assessing the steps the School Board took, consideration will be given to such things as the financial cost of accommodation, the size and financial resources of the School Board, how the steps would cause substantial interference with the rights of employees, other students or members of the public, whether the School Board investigated alternative approaches to address the situation.
¶ 138 Although the administration's strategy of disciplining individual offenders was effective vis-a-vis those individual students, it was not effective in reducing the harassment Mr. Jubran was experiencing on a regular basis. While the harassing behaviour abated in grades 11 and 12, it did not stop. Although Mr. Shaw was of the view that the school's strategy of using progressive discipline was effective because a majority of the students never "re-offended", he agreed that new offenders were being identified, and students were calling Mr. Jubran names that had not been used before. However, it was his view that, because it was a different boy each time, a suspension for any one of them was inappropriate, since each incident was regarded as unique and specific. Mr. Shaw also agreed that, even though the strategy appeared not to be effective in stopping the harassment, the school did not change that strategy.
¶ 139 One of the difficulties with the disciplinary model followed by the administration is that, if it was impossible for Mr. Shaw or Mr. Rockwell to identify an offender because of the students' "code of silence", or if a student denied his behaviour, the discipline was limited to a warning because the school has to be accountable for its disciplinary response.
¶ 140 Mr. Jubran's complaints were a matter of discussion at a school based resource team meeting on November 28, 1996, at which a nurse, district councillor, school counsellor, the school psychologist and the administrative team were present. They discussed the difficulty Mr. Jubran was having academically, how other students were treating him, and different approaches to try to stop it. They noted that Mr. Jubran was "falling behind" and "failing", that he was being harassed, that he had an assault charge pending against him, and that he was unable to focus. The team concluded that they should connect Mr. Jubran to a peer counsellor who was trained in conflict resolution, hold a teacher/parent meeting, and "reconnect parents with North Shore Health". The school administrators sent out a note to all of Mr. Jubran's teachers asking them to be vigilant about harassing behaviour in their classrooms. Ms. Gall, the teacher with whom it appeared Mr. Jubran had the best relationship, and who considered herself to have some expertise or experience in harassment, was asked to give support to Mr. Jubran, and to discuss his situation with him.
¶ 141 The team felt that the topic of harassment in school was an appropriate topic for a professional day, as it was of the view that the most appropriate method to deal with the situation was to educate the teachers and to discipline the "offenders". The team considered going into each of Mr. Jubran's classes to discuss harassment generally, and Mr. Jubran's situation specifically. Mr. Shaw testified that the team was of the view that the general approach would not work in the english and math classes because the students in those classes were very aware of the situation, and that any attempt to keep the discussion anonymous would fail. In Mr. Shaw and Mr. Rockwell's view, the students would relate the discussion to Mr. Jubran. Mr. Shaw testified that he and Mr. Rockwell also believed that, for the discussion to be effective, the two classes would have to be ready to learn that information; Mr. Shaw and Mr. Rockwell thought that they were not ready to do so. The team was concerned that students might retaliate against Mr. Jubran, in the belief that he had "ratted" on them, and they didn't want to see the situation become worse for him, particularly after school.
¶ 142 Mr. Shaw testified that he did consider other steps to assist students in addressing the issues, including grade level assemblies and dramatic presentations, both of which were utilized in later years. Mr. Rockwell did not agree that holding more assemblies or student conferences in a year on the issue of harassment was particularly helpful, because he believed that the students to whom the message had to be delivered would not attend, or would not listen to the message in that forum. He was of the view that the message was better delivered through counselling, or teacher referral; that dealing with individuals on an incident-by-incident basis was more effective than "preaching at the masses at an assembly". However, as Mr. Shaw acknowledged, in a school of over 1300 students, disciplining and educating each offender individually is very time-consuming.
¶ 143 Handsworth made the students aware of the CC by sending it to their homes, and communicating it to them in assemblies. Mr. Shaw's evidence was that, although the CC did not refer to issues of respect, he made references to, and gave examples of respect in the assemblies. Mr. Shaw did not recall whether he directed the teachers to discuss the CC with the students with respect to harassment, homophobic or otherwise. Although the CC is silent on reporting requirements, as well as consequences for retaliatory acts, Mr. Shaw testified that he made it clear to the students that retaliation, either by the student or his or her friends, was unacceptable.
¶ 144 I find that the information communicated about the CC during assemblies was relatively cursory, and that there was no dialogue about it. Consequently, when communicated along with a myriad of other information at the beginning of a school year, students would not be inclined to place any particular emphasis on it. Nevertheless, whether or not the students were aware of the CC or of its contents, I accept, based on the evidence of the students, that many knew that name-calling, whether they perceived it to be of a homophobic character or not, was unacceptable in the school, as were any retaliatory acts.
¶ 145 Because of the educational program schedule adopted at Handsworth, many students often had gaps in their timetable. During those non-structured times, students were allowed to roam hallways, and spend time in the cafeteria, provided they did not disrupt other classes. Mr. Shaw acknowledged that this system is best suited to disciplined students. Mr. Rockwell was of the opinion that most of the students involved with bullying Mr. Jubran were students who didn't handle unstructured time well.
¶ 146 Mr. Shaw testified that the hallway monitors at the school are members of CUPE, which is a different union from the teachers' union. Each school is allocated a number of hours for support staff based on a formula developed by the School Board. The hours each support staff worked was dependent on the needs of a particular school. Each support worker had different training, and the school offered professional development days in which the support staff could receive additional training. In 1999, the School Board made harassment courses compulsory for the support staff.
¶ 147 Approximately 70% of hallway monitors' time was spent in the cafeteria, and Mr. Shaw acknowledged that their effectiveness was limited by their lack of training. In his view, the effectiveness of the monitors was based on their own personal common sense, and their natural ability to deal with students. Schools are not allowed, for a number of reasons including the CUPE collective agreement, to use volunteers to monitor the halls, and hallway monitors were not required to take courses in harassment or any other issues.
¶ 148 Mr. Rockwell testified that the school lacked sufficient resources to be able to deal with bullying incidents outside of the classroom, because the teachers were too busy with their teaching obligations to supervise the halls and cafeterias. He also testified that CUPE hall monitors and police liaison officers could provide some assistance. Mr. Rockwell's evidence was that those resource problems were identified to the School Board "all the time".
¶ 149 In 1996, the Staff Development Committee, a committee responsible for in-service professional development for teachers, discussed the issue of harassment training for teachers. In late 1996 or early 1997, Mr. Shaw contacted Eric Wong, a consultant in harassment and human rights issues. Mr. Wong was asked to set up a workshop on harassment and the Code.
¶ 150 Mr. Shaw became aware of Mr. Jubran's human rights complaint in December 1996. He said that it reinforced the fact that Handsworth needed to undertake work in the area of staff training on harassment, which it had engaged Mr. Wong to do.
¶ 151 In Mr. Shaw's view, he felt competent to assess whether conduct constituted harassment under the School Board policy in the 1997 school year after he participated in harassment workshops.
¶ 152 Mr. Wong delivered a workshop to all Handsworth teachers and staff on April 25, 1997. The main focus of the workshop was how to identify and deal with harassment and homophobia in both the school environment and the workplace. Mr. Wong discussed a number of strategies for dealing with harassment, including educative approaches, and the importance of communicating to students how harmful the harassment was to the victim.
¶ 153 In 1997, at the direction of Mr. Brayne, the School Board produced a harassment awareness resource package on the definition of sexual and personal harassment and strategies for dealing with it, for North Vancouver staff and teachers. In November 1997, Mr. Shaw, along with other administrators in the District, attended a workshop organized by the School Board on how to deliver the material to staff. He delivered that material to teaching staff at a professional development day seminar on November 27, 1998.
¶ 154 Following the workshop conducted by Mr. Wong, Handsworth instituted a "Button-Up" campaign during the 1997-98 school year, in which peer counsellors visited classrooms to discuss the use of hurtful words. If the students agreed that the words were hurtful, they would wear a "Button-Up" button, signifying that they would be careful about what they said. This campaign carried through the 1996/97 and 1997/98 years. Mr. Jubran was in a classroom that was visited by the peer counsellors during this campaign.
¶ 155 Mr. Rockwell agreed that more in-service training and resource material should be made available to teachers in discussing sensitive topics, such as substance abuse, sexual orientation, suicide and depression, particularly if the teacher was going to have to discuss that in a classroom setting as part of their regular curriculum. Although the Career and Personal Planning ("CAPP") teachers would already be dealing with those topics, other teachers, such as those of math and physics, would find it difficult to integrate these issues into their particular classes.
¶ 156 The evidence is that staff at Handsworth required more in-service training to address sensitive topics such as sexual orientation, and that resources to address these issues only became available in 1999.
¶ 157 Ms. Gall testified that she had no training either from the School Board or Handsworth to address issues of homophobia in the classroom. However, she participated in an "extra-curricular club" that met to discuss issues of discrimination generally. As a result, she felt that she was capable of dealing with those issues in her class, if they arose.
¶ 158 The DCC argues that, although the staff took positive and appropriate steps to discipline those students who were guilty of offensive acts, and warned them and others not to engage in any further activity, the School Board did nothing to address the issue of homophobia and homophobic harassment with the students and in the school; nor did it implement a program designed to address that specific issue. Further, the DCC contends that the disciplinary measures imposed did nothing to end the discrimination, because the environment remained one in which students comfortably continued to use homophobic epithets which they continued to direct at Mr. Jubran. The evidence of some of the principal harassers does not bear this out. They knew what they were doing was unacceptable, and that, if caught, they would be disciplined. I am unable to find that the environment was one in which students "comfortably" used homophobic epithets. The students did their best not to get caught because they were aware of the consequences.
¶ 159 The evidence of the DCC (set out, following, at paras. 202-216) is that resources were available to the School Board to assist it in dealing with homophobia and heterosexism in educational settings since at least 1992. That year, the Toronto Board of Education issued a resource guide for teachers and administrators. Gay and Lesbian Educators of British Columbia's ["GALE"] guide to resource material was available in September 1995. There is no evidence the School Board sought the assistance of any individuals or outside organizations with expertise in the area of discrimination until about the time Mr. Jubran filed his human rights complaint. Mr. Shaw acknowledged that he had no expertise or training to deal with the incidents of harassment until some time after 1996. The teachers had no exposure to training programs until April 1997. At that time, Mr. Jubran was in grade 11, and continued to be harassed.
¶ 160 Although Handsworth's administration did turn their minds to Mr. Jubran's situation, and discussed different approaches to dealing with it, the School Board did nothing to address the issue of homophobia or homophobic harassment with the students generally, nor did it implement a program designed to address that issue. Neither Mr. Rockwell nor Mr. Shaw were given any guidance or direction by the School Board on how to deal with the situation. I find that the administration had inadequate tools to work with, and insufficient training and education to deal with the harassment. The School Board did not seek assistance from those with particular expertise in the field of harassment, homophobic or otherwise, until Mr. Jubran filed his human rights complaint. By that time, Mr. Jubran was in his fourth year of high school at Handsworth, and the harassment he was experiencing was continuing.
¶ 161 Despite the efforts of Handsworth's administration in dealing with the harassment, when viewed as a totality, I conclude that the School Board has failed to discharge its burden of demonstrating that it accommodated Mr. Jubran to the point of undue hardship.
4. REMEDY
¶ 162 Mr. Jubran seeks an order that the Respondent take ameliorative steps to ensure that a similar contravention does not occur in the future. He submits that those steps should include the establishment of a policy for the School Board as defined by the DCC, a plan for reporting and responding to complaints, and training in harassment and violence prevention for teachers and students. I will address these issues with the DCC's remedial requests, set out below.
¶ 163 Mr. Jubran also seeks compensation in the amount of $50,000 for injury to his dignity and self-respect; $6,500 for one year of counselling as a result of the damage caused by the harassment; $20,900 for the cost of upgrading his high school marks to enable him to enter college; $5,700 for loss of wages while he is completing his upgrading; $650 for career counselling; $21,800 for lost wages for 13 months after he left school and was unable to work as a result of the harassment; costs of preparing for the hearing; and interest.
¶ 164 Each of the claims will be addressed in order.
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Damages for injury to dignity, feelings and self respect |
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¶ 165 Mr. Jubran testified that he experienced humiliation, anger and depression as a result of the harassment, and frustration because he could not do anything to stop it. He said that he lacked motivation to go to school because he knew he was going to be harassed. He did not attend school or after-school sports and functions because he "felt like he never belonged", and didn't think he would enjoy them. He rarely used the cafeteria because his harassers did. Although he testified that he had no friends, I accept that he did, particularly in the later years. Jacqueline Jubran's evidence is that, when her son was in around grade 10, she suggested to him that he consider changing schools. He refused because he said that he had lots of friends at Handsworth. Mr. Jubran also testified that he generally had a better outlook on life in grade 11 because he had friends he could talk to, but that he was still angry. Mr. Jubran went to his graduation ceremonies and banquet, but wished he had not. He stated he did not feel part of the grade, so he left after the banquet and did not participate in the formal dance.
¶ 166 Mr. Jubran said that, in grade 9 or 10, he began to think about suicide. He was unable to talk about this with his parents or anyone at school. However, he did tell his father that things were not going well.
¶ 167 According to Fouad and Jacqueline Jubran, their son was a normal, happy and talkative child who participated in school activities in his early school years. They both testified that their son became a different person in high school. They said he became more lonely, distant and sad, and appeared to lose his self-confidence and self-esteem. Fouad Jubran said that his son had difficulty sleeping, disliked going to school, and refused to discuss any problems he might be having. Mrs. Jubran said that her son had no appetite and suffered from sleep loss. Fouad Jubran testified that his son was very shook up and distressed when he told him about the incident outside his tent in grade 12.
¶ 168 Fouad Jubran testified that his son has bad memories of his years at Handsworth, and was of the opinion that he would be scarred for a long time from his experience there. He testified that every time his son sees one of the students who harassed him, he tells his parents and looks frightened. He believed that, although his son is a little more relaxed, he still suffers from low self-esteem.
¶ 169 I accept that Mr. Jubran's dignity and self-respect were negatively impacted by the harassment over a four year period.
¶ 170 Counsel for Mr. Jubran argued that the maximum cap on general damages under this heading was inappropriate. She contended that there is an unjustifiable gap between Ontario and British Columbia in this regard, and relied on Moffat v. Kinark Child and Family Services No. 5 (1999), 36 C.H.R.R. D/346 (Ont. Bd. of Inq.). She also argued that, having regard to damage awards in civil cases, the cap is unreasonable. Ms. Parfitt contended that, where the Respondent's behaviour is wilful, reckless and malicious, an award of $20,000 is appropriate, and in line with awards in civil cases, particularly defamation. She contended that there should be a separate awards for the fact of the breach of the Code and for compensation for the hurt feelings that flow from the breach.
¶ 171 Counsel further argued that a large award for general damages was appropriate in light of the factors set out in Torres v. Royalty Kitchenware Ltd. (1982), 3. C.H.R.R. D/858 (Ont. Bd. of Inq.) and adopted in Guzman v. T. (1997), 27 C.H.R.R. D/349 (B.C.C.H.R.). She argued that, given the protracted time period over which the harassment occurred, the degree of aggressiveness and physical contact involved in the incidents and the frequency of the incidents, Mr. Jubran's tender years, and the psychological impact of the harassment on him warranted a significant award. She argued that particularly because Mr. Jubran lost his childhood, special considerations should govern the award under this heading: Y. (A.D.) v. Y. (M.Y.), 90 B.C.L.R. (2d) 145 (B.C.S.C.).
¶ 172 In Moffatt, the Ontario Board of Inquiry held that, where there was a finding that a complainant had been subjected to discriminatory working conditions that were not addressed appropriately by management, the infringement of the right to be free from discrimination constitutes one basis for compensation under the general damages section of its legislation. The Board also concluded that, if the liability of the respondent arose through the conduct of another person who may or may not have been named as a respondent, a separate award cannot be made against the main respondent.
¶ 173 I have concluded that Handsworth was diligent in investigating Mr. Jubran's complaints, and, for the most part, their efforts were successful in curtailing the harassing behaviour for most individual offenders. Although the steps they took were unsuccessful in curtailing the harassment entirely, there is no evidence, in my view, that the actions of the School Board, or its employees, were malicious, reckless or wilful. Therefore, whether or not s. 37(2)(d)(iii) of the Code provides for a separate award, on which I make no determination, I find it would not be substantiated in this case.
¶ 174 I accept that Mr. Jubran suffered anguish, loss of self respect, hurt feelings and humiliation as a result of the harassment, for which he be compensated pursuant to s. 37(2)(d)(iii) of the Code.
¶ 175 The Complainant's counsel argued that, based on Rafuse, I should consider the school years separately, and make an award of $10,000 for each of them.
¶ 176 The Supreme Court of Canada has consistently emphasized that human rights legislation is not to be used punitively. In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Dickson, C.J.C., citing Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at 1134, held:
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It is the [discriminatory] practise itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination. |
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The last point is an important one and deserves to be underscored. There is no indication that the purpose of the Canadian Human Rights Act is to assign or to punish moral blameworthiness. |
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¶ 177 The Tribunal has adopted the following factors from Torres (supra) when awarding damages for injury to dignity, feelings and self respect in cases of sexual harassment:
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The nature of the harassment; i.e. is it physical as well as verbal; |
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The degree of aggressiveness and physical contact in the harassment; |
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The ongoing nature, or time period of the harassment; |
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The frequency of the harassment; |
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The age of the victim; |
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The vulnerability of the victim; and |
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The psychological impact of harassment upon the victim. (at para. 7758, see also Tannis v. Calvary Publishing Corp. 2000 BCHRT 47). |
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¶ 178 Mr. Jubran experienced harassment that was both physical and verbal in nature. On occasion, the name-calling was accompanied by thrown objects. Mr. Jubran was punched, kicked and spit upon. His shirt was burned. His tent was urinated on. This behaviour continued, with the knowledge of the administration, and despite their efforts, over a three year time period. While there is no evidence Mr. Jubran suffered any physical injury but for the minor abrasion on his eye, which may well have been an accident, there is no doubt that Mr. Jubran suffered emotional scars from his experience. Given that Mr. Jubran was young, there were little or no options available to him to avoid or curtail the behaviour. Mr. Jubran's age made him particularly vulnerable.
¶ 179 On the other hand, Mr. Jubran was consistently offered the services of school counsellors, peer counsellors, and other teachers at the school to assist him in dealing with the harassment. He did not seek out the assistance of school counsellors to deal with harassment problems, nor did he seek any therapy during or after his school years. There is no evidence he requires medical or psychological treatment. When he was in grade 11, he told the administrators that the situation was improving and that he was "dealing with" the situation. He acknowledged that the incidents of harassment became less frequent in the later years. Although the incidents of harassment varied in quantity and severity during grades 9, 10, 11 and 12, I am not prepared to accept Mr. Jubran's assertion that it was 800 of the approximately 1000 days over the five years. Mr. Jubran testified that he reported all incidents in grade 11 and 12. Those incidents, which were documented by either Mr. Shaw or Mr. Rockwell, amounted to approximately 14 over a two year period. Furthermore, all four reported incidents brought to the school's attention at the beginning of grade 9 were dealt with immediately and, in my view, appropriately.
¶ 180 However, while monetary awards for employment discrimination under this heading provide guidance, there are other factors to be considered. I am mindful of the fact that the school environment is not a workplace, and that the students are not adults. I am also mindful of the school's statutory duty to provide all students with an education, and the limits on its ability to control the actions of those students.
¶ 181 The largest award for injury to dignity, feelings and self respect in British Columbia is $7,500: Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1. As noted in that case, there is no ceiling on awards for injury to dignity under the Code.
¶ 182 In consideration of all of the circumstances, I find it appropriate to award Mr. Jubran $1,000 for grade 10, and $1,500 for each of grades 11 and 12, for a total of $4,000. Because I have concluded that Handsworth was aware only of isolated incidents of harassment in grades 8 and 9, and that, to its knowledge, those incidents had been addressed satisfactorily, I am unable to conclude that an award for those years has been substantiated.
(b) Upgrading costs and wage loss while upgrading
¶ 183 Mr. Jubran received poor or failing grades in grade 8, which he attributed to his inability to concentrate because of his worries about the harassment. His academic difficulties continued through to grade 12. His graduation marks were borderline passes. His evidence is that he spent more time thinking about what was happening to him, and worrying about how the criminal charge would affect his reputation, than paying attention. Mr. Jubran contends that, because of the harassment he was subjected to at Handsworth, his marks suffered to the point that he will have to upgrade his math, English and writing skills before he can pursue post-secondary studies.
¶ 184 Caroline Pinfield, the Director of the Sylvan Learning Centre in North Vancouver, testified that she performed diagnostic testing on Mr. Jubran. According to her evidence, the test results demonstrated that Mr. Jubran is below the post-secondary entry level in English and math. He completed some English upgrading courses during the summer of 2000. He seeks compensation for the cost of upgrading courses at Sylvan, compensation for lost wages while completing his upgrading, and career counselling.
¶ 185 The evidence is that Mr. Jubran failed many subjects in elementary school. In grade 1, his school record states that he was "easily distracted", had "poor listening skills". In Grade 3, his teacher noted that, although he tried hard and wanted to do well, he had difficulty with comprehension and "staying on task", that he was "impulsive", had poor written language and low math skills, and was distractible. Mr. Jubran demonstrated below average language arts skills as early as grade 2, and showed difficulty in math in grade 3. Although Mr. Jubran spoke English at home, he received special assistance in English as a Second Language in grade 1. Mr. Jubran conceded he struggled academically through elementary school, especially in English and math.
¶ 186 Mr. Jubran was referred to the LAC for a psycho-educational report in February 1994 because he received failing grades in all of his academic subjects during his first term at Handsworth. The objective of the LAC's assessment was to clarify the nature of his learning disabilities and identify appropriate programs for him. The Centre's assessment was that Mr. Jubran's performance did not reflect his ability, which was rated as average. The Centre's assessment concluded that Mr. Jubran had good skills and capabilities, but had difficulties applying those skills to an academic situation. The assessment suggested that "low comprehension, vocabulary and written language skills contribute to his struggle," but that his problem seemed "to stem from his distractible and impulsive nature." The assessment concluded with the following recommendation:
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This assessment of Azmi's performance would seem to place him in a borderline situation in terms of designating him as a student with severe learning difficulties. It would be preferable to try to increase our support of Azmi with extra help, class notes, and study aides prior to considering the necessity of including him in the SLD program at Handsworth. It will be important to carefully consider Azmi's progress prior to planning his program for grade 9. (Exhibit 4, Tab 2) |
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¶ 187 Since this assessment was prepared, Mr. Jubran has been diagnosed with Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD).
¶ 188 Fouad and Jacqueline Jubran testified that they retained Dr. Unger to assess their son in grade 9 because of concerns they had about his progress in school, Dr. Unger did not give evidence, nor was a copy of her assessment entered into evidence.
¶ 189 Mr. Jubran presented the report of Kulwant S. Riar, a general and forensic psychiatric practitioner who provides consultation to the Burnaby Youth Secure and Open Custody Centres and the Burnaby Youth Specialized Unit. Dr. Riar also has an affiliation with the University of British Columbia as a Clinical Assistant Professor in the Department of Psychiatry. Based on his resume, Dr. Riar appears to specialize in juvenile violent and sexual offenders. Dr. Riar interviewed Mr. Jubran for two hours and prepared a report based on that interview, a review of Mr. Jubran's school records including his LAC file, clinical notes of Dr. Anderson, and other collateral information, including the complaint form and Ms. Parfitt's covering letter. In Dr. Riar's opinion, Mr. Jubran's poor academic performance in high school was:
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...mainly due to his persisting difficulties (attention and concentration and learning problems) but it was further complicated and deteriorated due to his disturbed state of mind. It is very difficult to determine how much his disturbed state of mind is responsible for his poor performance. In other words, if he had not been harassed his performance could have been better. (Exhibit 6, Tab 2) |
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¶ 190 The School Board called Dr. D.H. Smith, the Head of the Department of the Division of Child Psychiatry at the University of British Columbia and Head of the Department of Psychiatry at Children's and Women's Health Centre of B.C. Dr. Smith met with and interviewed Mr. Jubran and his father, and Mr. Jubran alone. He also reviewed Mr. Jubran's school and LAC records, Dr. Anderson's clinical notes, and Dr. Riar's report. Dr. Smith agreed with Dr. Riar's findings and opinions that Mr. Jubran's academic performance was mainly due to his persisting difficulties (ADD and ADHD). However, it was Dr. Smith's view that, given Mr. Jubran's academic difficulties before the harassment began and his learning disabilities, he would have expected Mr. Jubran to have performed much worse academically than he did given the harassment.
¶ 191 I am unable to conclude, on a balance of probabilities, that Mr. Jubran's learning difficulties were caused, or exacerbated, by the events at Handsworth. I place more weight on the evidence of Dr. Smith than that of Dr. Riar, as Dr. Smith was available for cross-examination on his evidence, and Dr. Riar was not. There is, in my view, little to no connection between the harassment and Mr. Jubran's need for upgrading. While there is no doubt that Mr. Jubran will require upgrading in order to enter college, that requirement is as consistent with the fact that he suffers from ADHD and ADD as it is with the harassment he was subjected to.
¶ 192 Having arrived at this conclusion, it is not necessary for me to review Ms. Pinfield's evidence about what upgrading Mr. Jubran will require to enable him to enter college.
(c) Counselling and career counselling
¶ 193 In Mr. Jubran's opinion, if he had not been harassed, he would have done better at school, had more friends, and had better memories of his school years. Mr. Jubran has not, to this point sought either medical treatment, counselling or therapy for the harassment, because he is of the view that he does not require it. He testified that his parents felt that his experiences would come back to haunt him, so that, if he had the opportunity to take counselling, he would do so.
¶ 194 The evidence is that Mr. Jubran had full access to counselling services and career counselling in school. Mr. Jubran completed the required CAPP course. Mr. Carleson sought Mr. Jubran out on many occasions and Mr. Jubran consistently told him that he was doing fine. Mr. Jubran had full access to peer counsellors and to Mr. Carleson. Further, Mr. Jubran's testified before the Tribunal that he was of the view that he did not need counselling. The sole basis put forward to support this claim is Fouad Jubran's opinion that his son will need counselling in the future. In the absence of any other evidence, I do not find that evidence compelling. Furthermore, there was no evidence led as to the cost of the claim, either estimates or actual. I deny this aspect of the claim.
(d) Wage loss and interest
¶ 195 Mr. Jubran testified that, after he graduated, he had no motivation to do anything. He sat around doing nothing until his parents told him he that he had to get a job. He started work in July 2000, thirteen months after graduating, as a busser in the hospitality industry, and a room service server. He then got a second job as a banquet server. He continues to hold those jobs today. He works approximately 30 hours per week.
¶ 196 There is no evidence connecting Mr. Jubran's loss of motivation after leaving school to the harassment. No evidence was led as to what employment opportunities were available to persons with Mr. Jubran's experience. While I am prepared to accept that the harassment may have been one of the causes of his lack of motivation, I am not prepared, without some evidence, to accept it is the entire cause or even a large part of the reason he did not get a job immediately. Further, I am not prepared, without any evidence, to accept that that it is the sole reason that he did not seek work for 13 months as opposed to 1 or 2. I deny Mr. Jubran's claim in this respect.
(e) Costs of preparing for the hearing
¶ 197 Mr. Jubran seeks an order that the School Board reimburse him for the cost of preparation of Dr. Riar's report and Carolyn Pinfield's testing, report and attendance. Costs may be awarded against a party to a complaint pursuant to s. 37(4) where a party has engaged in improper conduct during the course of the investigation or the hearing of a complaint. There is no allegation, or evidence, that the Respondent engaged in improper conduct. Although the Tribunal does award hearing-related expenses, the costs sought are those incurred in preparation for the hearing, akin to costs awarded in a court action. Those costs do not fall within s. 37(4).
(f) Deputy Chief Commissioner's submissions on remedy
¶ 198 The DCC argues that, in light of the seriousness of the problem underlying the manifestation of homophobia, it is essential that the Tribunal impose a remedy that requires the School Board to implement a comprehensive strategy to deal with harassment and discrimination.
¶ 199 The DCC seeks an Order requiring that the strategy include a policy that:
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...sets forth the school's commitment to protect students from harassment and violence and to maintain a non-discriminatory environment, identifies the type of discrimination and harassment prohibited by the policy and gives examples, requires staff to report harassment that they learn about, explains how to report harassment and to whom, the steps the school will take to respond to reported incidents, includes formal complaint procedures, prohibits retaliation against persons who report harassment or participate in related proceedings, and ensures that all members of the School community are aware of their rights and responsibilities. |
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¶ 200 The DCC seeks an Order that this strategy be created, implemented and monitored in consultation with parents, students and community groups, that the strategy include an on-going program of education and dissemination of information about the policy and that it be integrated into the regular curriculum. Finally, the DCC seeks an order that the School Board be required to provide him with information respecting the implementation of the order on an annual basis for a period of four years.
¶ 201 While the School Board contends that there is "no clear or obvious answer to what can or should be done to minimize the use of offensive language among high school students", nor is there any "clear or obvious course that can be taken to prevent that behaviour from reoccurring", the DCC argues that doing something to address homophobic harassment is not sufficient to remove liability, particularly where those steps do nothing to reduce the harm. It is incumbent on the School Board to take effective steps to comply with the Code (Ferguson, supra, at para. 39, Ross, supra, at paras. 42, 50 and 54, Robichaud, supra, 584).
¶ 202 The DCC called five witnesses. Although I was not of the view that any of these witnesses were expert witnesses, they had significant experience in the area of homophobic harassment in the education system. It was also the only evidence presented in the area of homophobic harassment, and homosexuality and youth. I find the evidence relevant to the issue of appropriate methods of addressing homophobic harassment.
¶ 203 Murray Warren is an openly gay teacher at Mount View School in Port Coquitlam, and a founding member of GALE. Mr. Warren also teaches an undergraduate course in the Faculty of Education at Simon Fraser University entitled "Addressing Homophobia and Heterosexism in the B.C. Public School System". Patrick Clarke is a teacher in Burnaby School District and the Assistant Director, Professional Development Division of the BC Teachers Federation "BCTF" which represents approximately 44,000 teachers in B.C., and is responsible for the BCTF's social justice program. Steven Solomon is a social worker responsible for the Human Sexuality Program and the Triangle Program at the Greater Toronto District School Board. Rhamona Voss-Browning is a youth advocate worker with experience in issues faced by lesbian, gay, bisexual and transgendered youth. He is the founder and former director of Youthquest! Lesbian and Gay Youth Society of British Columbia, a society incorporated in 1993 under the B.C. Society Act, which is a social/peer group for lesbian, gay, bisexual, transgendered ("lgbt") and questioning youth. Karen Morton is a self-employed human rights educator and consultant. She designs and delivers human rights training programs, self-study modules and well as classroom training and process facilitation to schools, school districts, teachers associations and other organizations. She has designed and facilitated human rights training programs and initiatives and acted as a consultant and educator in B.C.'s school system.
¶ 204 Mr. Warren, who has taught at all education levels, founded GALE in 1991. It is an unincorporated organization of teachers, administrators, assistants, and other persons involved in advocacy and educational initiatives. Although a majority of the members are gay or lesbian, it also includes heterosexual people concerned with eliminating homophobia in schools. GALE works closely with a number of organizations, including BCTF, educating teachers and parents on making schools safe for sexual minority youth, and with administrators, government, and others to increase awareness about issues these youth face.
¶ 205 As part of its work, GALE communicates with organizations in other jurisdictions to keep current on projects and resources developed to address homophobia and heterosexism in the education setting, and has developed its own resources for use by teachers and schools. It also offers workshops to educators throughout the province to deal with issues that sexual minority youth face. Resource material developed by GALE, along with a GALE recommended resource list, has been available to secondary schools in B.C. since September 1995. A GALE produced handbook dealing with sexual orientation issues in education for teachers at the elementary and high schools was distributed to every school in British Columbia in August 2000.
¶ 206 Mr. Warren deposed that "he has seen and heard first hand innumerable incidents of name-calling and harassment of elementary students because they are perceived to be gay or lesbian." He also deposed that homophobia is "rampant in the school system" and that his colleagues were unsure how to deal with homophobic harassment in sensitive ways. In Mr. Warren's experience, the more information students have about sexual orientation, the less homophobic they become.
¶ 207 Mr. Clarke's evidence was that BCTF has been developing an initiative to contend with discrimination against sexual minority students since the spring of 1995, and has set up an ad hoc committee to develop recommendations on strategies for eliminating homophobia and heterosexism from the public school system. Mr. Clark's evidence was that, BCTF's actions have been motivated by a growing concern on the part of classroom teachers that discriminatory and sometimes violent behaviour directed towards students of sexual minorities, or perceived to be of such, was far too frequent, and is unacceptable in a public school system. BCTF offered workshops on homophobia and heterosexism available to members beginning in the fall of 1998.
¶ 208 Mr. Solomon's evidence was that the Toronto Board of Education enacted a policy prohibiting discrimination based on sexual orientation in 1993, and, since that date, has sought to prevent discrimination in the context of curriculum initiatives that promoted tolerance and understanding. After the murder of a Toronto school librarian by students in 1985 which was characterized by the Court as a "queer bashing" attack, an investigation of homophobia in the school system was undertaken, revealing widespread harassment of students suspected of being gay or lesbian. The Board issued a resource guide, which included a resource list, for teachers and administrators in 1992. In 1997, a predecessor Board sponsored the Canadian premiere of an award-winning feature length documentary on anti-homophobia education in U.S. elementary schools. In 1995, the Board established a special program for young people who have become alienated from regular schools because of issues of their sexual orientation (the Triangle Program). This program provides a flexible transition for young people between 16 - 21 years of age who wish to re-enter the system or who are in the process of dropping out and whose needs are better met in a predominantly lesbian, gay and bisexual environment. Mr. Solomon gave evidence on the nature of programs undertaken by the Board in the area of policy statements and resource and curriculum initiatives in the area of homophobia and discrimination based on sexual orientation. A 1997 publication of the previous Board is used as a primary resource for teachers and administrators in Toronto schools on homophobia and heterosexism.
¶ 209 Mr. Voss-Browning was the recipient of homophobic harassment while attending school in the Lower Mainland, which ultimately caused him to drop out of school in 1975. Mr. Voss-Browning became involved in the sex-trade industry from 1976 to 1979, at which time he went back to school to obtained his GED. In developing Youthquest, Mr. Voss-Browning researched programs available to lgbt youth, and developed a program which operates in five locations in the Lower Mainland (Abbotsford, New Westminster, Port Moody and Surrey) with the knowledge and assistance of other service providers in that area. Youthquest, which is in part funded by the provincial government, is offered in community centers and drop-in sites by adult role models.
¶ 210 By virtue of his own experience and his work with lgbt youth and other similar service providers, I determined that the evidence Mr. Voss-Browning could provide the Tribunal, while anecdotal, was valuable and relevant to the issues before me. His evidence relied, in part, on the 1993 McCreary Centre Society (a non-profit society concerned with the health of young people in British Columbia) report entitled "being out: Lesbian, Gay, Bisexual & Transgendered Youth in BC: An adolescent health survey", which was referred to by the Supreme Court of Canada in Trinity Western University (supra). The society conducted a province-wide health survey of British Columbia junior and senior high schools students. The survey concluded that 7% of male students and 8% of female students did not think of themselves as heterosexual. Mr. Voss-Browning's experiences with the problems faced by lgbt students, such as homophobia in schools, higher rates of school drop-outs and suicides, and fear of disclosure of sexual identities, is consistent with the results of the McCreary Study. The study's conclusion that nearly one-fifth of lesbian and gay youth had been physically assaulted at school in the past year was also reflected in Mr. Voss-Browing's experiences. He testified that he observed violence and intimidation directed towards lgbt youth on a regular basis, and that such violence is rarely reported to authorities. Further, it was Mr. Voss-Browning's evidence that lgbt youth report a lack of support services in the school system, and often enrol in alternative schools to escape the harassment and violence. Mr. Voss-Browning's experience was that lgbt teens become isolated, highly vulnerable to violent attacks, abuse and self-destructive behaviour.
¶ 211 Mr. Voss-Browning's evidence was that, based on his experience, the worst epithet that could be shouted at a student was "queer" or "faggot", as it provoked the strongest reactions and was intended to be shaming or disparaging. In spite of the negative connotations of these words, Mr. Voss-Browning testified that the words are still used in the schools in which he has done work in the Lower Mainland. He added that they are used frequently enough that it remains an issue for schools. Mr. Voss-Browning agreed that, although there was a change in attitudes in school boards, the degree of change depended on the particular school, the particular principals, and the specific teachers.
¶ 212 Karen Morton identified a number of tools and resources available to assist school districts and schools to implement effective strategies for dealing with discrimination and harassment.
¶ 213 In June 2000, the Office of the Auditor General of British Columbia issued his report: "Fostering a Safe Learning Environment: How the Public School System is Doing" (the "Auditor General's Report"). The purpose of the report was to:
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...assess the extent to which the public school system in British Columbia is fostering a safe learning environment - one in which students behave in a socially responsible manner, are treated with respect and feel secure to engage in learning, safe from physical threats, bullying, harassment, intimidation and intolerance. (at 6) |
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¶ 214 In preparing the report, the Auditor General visited five school districts, and talked to people in six others, surveyed teachers and administrators in every school district, and supplemented the information gathered from parents and students with student/parent surveys conducted by a number of agencies, including the McCreary Centre Society.
¶ 215 The Auditor General concluded that, in every school in British Columbia, "there are incidents of aggressive behaviour (including verbal, physical and psychological aggression) that negatively impact the learning environment and cause some students to feel unsafe". (at 7)
¶ 216 The Auditor General also concluded that, while the Ministry of Education and school districts have developed safe learning strategies that look promising, further enhancements are needed. (at. 8)
¶ 217 Mr. Shaw agreed that Handsworth was one of the schools identified in the report. Another of the Auditor General's recommendations included more in-service training for teachers to assist them in discussing topics such as substance abuse, suicide and depression and sexual orientation. Mr. Shaw was of the view that, when Mr. Jubran was in school, there were not sufficient resources available to the teachers in the School District. It was his evidence that sufficient resources have only been available since December 1999.
¶ 218 In Trinity Western University, (supra), Justice L'Heureux-Dube reviewed documentation presented to the Court, which included some of the material also referenced by witnesses before the Tribunal and the Auditor General, and concluded that the evidence demonstrated "an acute need for improvement in the experiences of homosexual and bisexual students in Canadian classrooms." (at para. 82) Justice L'Heureux-Dube also referred to the McCreary Centre Society which demonstrated that "almost 40 percent of gay and lesbian youth have dramatically low self-esteem", and that "two-thirds often hear homophobic remarks made by other students at school." The evidence led by the DCC, which was largely supported by the Auditor General's report, demonstrates that homophobic harassment is a nation-wide, and indeed a continent-wide, problem. While acknowledging that none of the evidence led by the DCC, save the Auditor General's report, is specific either to Handsworth or the School Board, the evidence is clear that homophobic harassment existed at Handsworth during Mr. Jubran's school years.
¶ 219 Based on this evidence, I take notice that Handsworth is not unique in experiencing homophobic harassment. Nevertheless, acknowledging its existence is easy; determining the appropriate steps that can or should be taken to alleviate it is not.
¶ 220 Mr. Warren agreed that it was appropriate to intervene with students who hurled epithets, explain to him or her why it was wrong and hurtful, provide support for the student at whom the epithet was directed, seek the intervention of the school counsellor, and perhaps involve the parents of the student harasser. However, he agreed there was no obvious right or wrong answer.
¶ 221 Mr. Warren and Mr. Voss-Browning agreed that, even after all the work that GALE has done, and despite all the efforts schools have made, homophobic name-calling and homophobic harassment is still pervasive in schools. Mr. Voss-Browning also testified that there is no consistency across schools or school boards regarding the increase in awareness of this problem and the steps that have to be taken to address it; it depended on the school, the individual counsellors, teachers and student support workers.
¶ 222 Ms. Burlone, the principal of Westview, a special needs inner-city school, testified that, in 1997, her school implemented Effective Behavioural Support ("EBS"), a framework or process that allows schools to address behavioural concerns in a systematic way. According to Ms. Burlone, EBS is a proactive approach to dealing with certain behaviours, involving clearly stated rules of behaviour and a consistent application of consequences for misbehaviour. She testified that EBS is a relatively new process, and that her school was one of the first to implement it in the province. EBS involves a great deal of training for parents as well as teachers. Ms. Burlone's evidence was that, after four years of EBS in her school, she was beginning to see a positive change in the school climate. To Ms. Burlone's knowledge, the Respondent had sponsored EBS workshops annually for four years, and approximately three quarters of the schools in North Vancouver had implemented EBS. Mr. Brayne testified that the EBS program is strongly supported by the School Board.
¶ 223 The Auditor General's Report indicates that there are no confirmed effective strategies for aggressive behaviour in schools. EBS has only existed in schools since 1996, and is still ineffective with 20% of the school population.
¶ 224 In the 1997-98 year, Handsworth underwent an accreditation process. That process, which involves surveying issues and setting goals, results in the development of a five-year Growth Plan. Four main goals emerged from the process, including reinforcement of safety and discipline in school, and bullying emerged as one of the top three discipline issues to be addressed. One of the major goals established as part of the accreditation was to establish a safe and accessible learning environment, and in 1998-99, a committee was established to work on this goal. One of the major methods of delivering this goal was to explain the CC to the students.
¶ 225 Mr. Brayne testified that the first time the School Board became aware of Mr. Jubran's concerns when it was asked by the Human Rights Commission to respond to his complaint. After investigating, the School Board was satisfied that Mr. Jubran's concerns had been addressed in a timely and appropriate way by the school administrators. Mr. Brayne testified that the School Board also intensified the number of programs that it provided to all schools in the safe schools initiative, and supported schools in implementing new programs that were being developed related to harassment.
¶ 226 Mr. Brayne's evidence was that, in 1994, 1995 and 1996, there was an increased effort to establish programs to combat violence, harassment and bullying in schools, and that there are now five or six different programs in elementary and secondary schools specifically directed at addressing violence. The School Board has participated in the Ministry of Education's Safe School network since 1991. That network sets out the "second step" program, also known as "Walk, Talk and Squawk", in which students are taught to walk away from bullying behaviour, to tell people about it, and to talk to authorities about it. It is a program activity designed to teach both teachers and students appropriate ways of dealing with aggression or aggressive behaviour through a set of activities with a training component.
¶ 227 Mr. Brayne's evidence was that the School Board has created a comprehensive strategy for responding to harassment, and personal and sexual abuse through employee training and the development of materials.
¶ 228 In May 1997, following consultation with groups though School Board meetings and a review by the Trustees, the School Board adopted a policy of "zero tolerance" toward sexual and personal harassment for employees and students. Mr. Brayne's evidence was that the policy was developed in response to a number of circumstances, including collective agreement issues, Worker's Compensation Board initiatives in the area of harassment free workplaces, and legislation. The policy contains an expansive definition of harassment, sets out reporting obligations, and indicates that students are covered under the policy. The policy sets out the School Board's commitment to support the right of "all persons to work and learn in an environment free from sexual and personal harassment", to "raise awareness and to develop comprehensive educational programs for employees and students about sexual or personal harassment", for all persons to "have a responsibility to take seriously all incidents or allegations of personal harassment", and provided that "any person who observes a student to be the victim of harassment, regardless of whether or not that student reports an incident, is obligated to intervene or act as an advocate to ensure that the student's rights are protected."
¶ 229 Mr. Shaw agreed that harassment prohibited by the Code was also prohibited by the policy.
¶ 230 The evidence is that, since 1994 or 1995, the School Board has established a strategy for addressing harassment and discrimination, and that this strategy incorporates all of the specific remedies sought by the DCC. The School Board has a policy that sets forth its commitment to protect students from harassment and violence and to maintain a non-discriminatory environment, and identifies the types of discrimination and harassment prohibited by the policy and gives examples. Further, it requires all persons to report harassment that they learn about, explains how to report harassment and to whom to report it. It sets out the steps the school will take to respond to reported incidents, and includes formal complaint procedures. Furthermore, the policy prohibits retaliation against persons who report harassment or participate in related proceedings. The CC for students is now posted in all classrooms at Handsworth, which goes some way to ensuring that all members of the school community are aware of their rights and responsibilities. Consequently, I am of the view that no Order need be issued in this respect.
¶ 231 The DCC also seeks to have this strategy integrated into the regular curriculum. The curriculum is established by the Ministry of Education, which is not a party in this matter. Therefore, I have no jurisdiction to issue such an order.
CONCLUSION
¶ 232 For the reasons stated, I order that:
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pursuant to s. 37(2)(a) of the Code, the School Board cease its contravention of the Code, and refrain from committing the same or a similar contravention, |
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pursuant to s. 37(2)(d)(iii) of the Code, the School Board pay to Mr. Jubran the sum of $4,000 as compensation for the injury to his dignity, feelings and self respect. |
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Update: 20020411
cp/e/ln/qlsng