COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

School District No. 44 (North Vancouver) v. Jubran,

 

2005 BCCA 201

Date: 20050406


Docket: CA030531

Between:

Board of School Trustees of School District No. 44
(North Vancouver)

Respondent

(Petitioner)

And

Azmi Jubran

Appellant

(Respondent)

And

British Columbia Human Rights Tribunal

Respondent

(Respondent)

 


Before:

The Honourable Madam Justice Ryan

The Honourable Madam Justice Levine

The Honourable Mr. Justice Oppal

 

F. Kelly and J. Doulis

Counsel for the Appellant

C.L. Woods and C. Potzold

Counsel for the Respondent
Board of School Trustees of School District No. 44

D. Paluck

Counsel for the Respondent
B.C. Human Rights Tribunal

Place and Date of Hearing:

Vancouver, British Columbia

October 18, 2004

Place and Date of Judgment:

Vancouver, British Columbia

April 6, 2005

 

Written Reasons by:

The Honourable Madam Justice Levine

Concurred in by:

The Honourable Mr. Justice Oppal

Concurring Reasons in the Result by:

The Honourable Madam Justice Ryan (Page 37, Paragraph  103)


Reasons for Judgment of the Honourable Madam Justice Levine:

Introduction

[1]                This appeal raises difficult and important questions of interpretation of British Columbia's human rights legislation, the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code"). Must a person who complains of discriminatory harassment on the basis of sexual orientation actually be homosexual or perceived by his harassers to be a homosexual? Is a School Board responsible where the conduct of students violates the Code? The issues arise in the context of homophobic bullying in a public school.

[2]                Azmi Jubran, who does not identify himself as homosexual, was repeatedly subject to insults and harassment of a homophobic nature during the five years he spent in high school. Before he graduated, he complained to the B.C. Human Rights Commission. The Human Rights Tribunal, in concluding that Mr. Jubran was discriminated against on the basis of sexual orientation, found that it was irrelevant whether or not he was homosexual or his harassers believed that he was homosexual. The Tribunal found Mr. Jubran was subjected to a course of conduct that constituted harassment on a prohibited ground of discrimination, sexual orientation; and the Board of School Trustees, School District No. 44 (North Vancouver) (the "School Board") was responsible for the discrimination as it had failed to provide an educational environment free from discriminatory harassment. (The Tribunal's reasons for decision may be found at [2002] B.C.H.R.T.D. No. 10, 2002 BCHRT 10.)

[3]                On judicial review of the Tribunal's decision, the chambers judge focused on the wording of s. 8 of the Code, the relevant portions of which are:

8(1)      A person must not, without a bona fide and reasonable justification,

            . . .

(b)        discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the...sexual orientation of that person or class of persons.

[4]                He concluded that Mr. Jubran could not bring himself within s. 8 because he "is not a homosexual and the students who attacked him did not believe he was a homosexual". It was therefore unnecessary for him to consider the issue of the School Board's liability. (The reasons for judgment of the chambers judge are reported at (2003), 9 B.C.L.R. (4th) 338 (S.C.); the neutral citation is 2003 BCSC 6.)

[5]                For the reasons that follow, I am of the opinion that the chambers judge erred in his interpretation of s. 8 of the Code. I would allow the appeal, set aside the order appealed from and restore the order of the Tribunal.

Standards of Review

[6]                On October 15, 2004, three days before the hearing of this appeal, s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45, was brought into force. Section 59 sets out the standards of review to be applied in a judicial review proceeding to the decision of a tribunal, including the Human Rights Tribunal, where the tribunal's enabling Act has no privative clause. It requires the court to apply the correctness standard to all questions except findings of fact and the application of common law rules of natural justice and procedural fairness. Section 59(2) provides:

A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all of the evidence, the finding is otherwise unreasonable.

[7]                All counsel on this appeal agreed, without arguing the point, that the Administrative Tribunals Act does not apply to this proceeding. The question of the application of the Act to decisions of tribunals or of courts on judicial review made before the Act came into force is for another court in another case. In this case, I will apply the common law standards of review to the decisions of the chambers judge on the question of the interpretation of s. 8 of the Code and of the Tribunal that Mr. Jubran had proved prima facie discrimination and the School Board was liable (noting that it appears that there is little difference in the standards to be applied at common law and under the Act in any event).

Background

[8]                To appreciate the interpretation issue raised in this case and the basis for the School Board's liability, it is necessary to outline the background in some detail.

[9]                Mr. Jubran filed his complaint with the Human Rights Commission on June 19, 1996 when he was in grade 10. He alleged that the School Board discriminated against him on the basis of sexual orientation regarding an accommodation, service or facility customarily available to the public, contrary to s. 8 of the Code. The Deputy Chief Commissioner of the Human Rights Commission added himself as a party to the hearing on October 15, 1999, pursuant to s. 36(1) of the Code. The hearing took place over more than three weeks in the fall of 2000 and the summer of 2001. The Tribunal issued its decision in April 2002.

The Harassment

[10]            Over the course of the five years (1993-1998) that Mr. Jubran attended Handsworth Secondary School in North Vancouver ("Handsworth") he was repeatedly taunted with homophobic epithets and was physically assaulted, including being spit upon, kicked and punched by other students. The School Board did not dispute that Mr. Jubran was verbally and physically abused.

[11]            The harassment of Mr. Jubran started in 1993, when he was 13 years old and in grade eight. He was called names such as "homo", "faggot" and "gay" by some of his classmates. He told the students that he was not a homosexual and asked them to stop calling him names. The name calling was sometimes accompanied by pushing and shoving in gym class and in the hallways. Mr. Jubran was on one occasion hit in the eye by a paper projectile while in science class, causing a small abrasion, although he admitted that this could have been accidental.

[12]            In grade nine the name-calling, hitting, punching and spitting incidents continued. On one occasion a student in a woodworking class threw nails, wood and screws at Mr. Jubran and another student shouted "Azmi is gay". In one band class all the students began chanting "Azmi is gay" when the teacher was not in the classroom. On another occasion during grade nine a pizza was delivered to the Jubrans' home that they had not ordered. It was later determined that students from Handsworth were involved.

[13]            In grade 10 Maryann Macario, one of Mr. Jubran's teachers, heard a student loudly shout out to Mr. Jubran something along the lines of "faggot" or "gay". Later that school year in a woodworking class, Mr. Jubran hit another student in the face, seriously injuring him. Mr. Jubran testified at the Tribunal that he hit the student because he heard him call him gay. Mr. Jubran testified that he was so angry and frustrated at being repeatedly called gay that he lost control. Mr. Jubran was suspended for assaulting the student and was also criminally charged.

[14]            The administration at Handsworth documented over 12 incidents of harassment reported by Mr. Jubran during his grade-11 year. These incidents, which occurred both inside and outside the school, consisted of Mr. Jubran being called names such as "faggot", "queer", "gay" and "homo", Mr. Jubran being pushed, shoved and having things thrown at him. In one incident Mr. Jubran intercepted a note being sent around class depicting him holding hands with another male student.

[15]            In his grade-12 year Mr. Jubran reported five incidents of harassment. In one incident in gym class, a coin sized hole was burned into Mr. Jubran's shirt by a lighter, without actually burning his body. In another incident someone urinated on Mr. Jubran's tent at 1 a.m. during a school camping trip. Mr. Jubran testified that he heard two boys outside the tent talking about how "choked up" another student (who had been suspended in the shirt burning incident) was that he was not able to go on the camping trip. The two boys then talked about how funny it would be to dip Mr. Jubran in acid.

[16]            In October 1997, during Mr. Jubran's grade-12 year, a physical education teacher reported to the school principal an incident in which students had thrown nails and grapes at Mr. Jubran and had sent him a note that used the word "gay" during a school Halloween project. In May 1998 Mr. Jubran reported that someone had shouted "Azmi is gay" from an open window into the courtyard of the school were he was sitting.

The Response of the Administration

[17]            The School Administration first became aware of the harassment of Mr. Jubran after the pizza incident in the fall of 1994, when Mr. Jubran was in grade nine. From that time until he graduated, the principal, vice-principal and other school staff were actively involved in investigating incidents of harassment reported to them by Mr. Jubran and disciplining the students involved.

[18]            After the pizza incident, the principal and vice-principal met with Mr. Jubran, his parents and uncle on more than one occasion to discuss the harassment of Mr. Jubran. The administrators encouraged Mr. Jubran to report all incidents of harassment to them and asked Mr. Jubran's teachers if they had witnessed any harassing behaviour in their classrooms. They investigated reported incidents and when offending students were identified, took disciplinary measures. These included discussing with the offending students the inappropriateness of their behaviour and warning them of escalating consequences including detentions, notification of parents or police, suspensions and possibly expulsions if they repeated their behaviour. There was evidence before the Tribunal that one detention and two suspensions were imposed. One of the students who received a suspension was later expelled from the school, but not only because of his conduct towards Mr. Jubran.

[19]            The evidence was that most of the students who were disciplined did not re-offend, but that other students became involved and called Mr. Jubran homophobic (and other) names that had not been used before. The school principal agreed during his testimony before the Tribunal that although the strategy of progressive discipline had not been effective in stopping the harassment, the school did not change that strategy.

Homosexuality and Perceived Homosexuality

[20]            Mr. Jubran told the students at Handsworth, beginning in grade eight, that he was not homosexual. The evidence of several of Mr. Jubran's classmates was 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. Several of the students testified 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 believed Mr. Jubran was or perceived him to be homosexual. The students denied that any of the "sting" of the words resulted from the fact that they related to homosexuality and they testified that the words were simply used as another form of insult.

[21]            One of the students testified that the words used were "part of the high school vocabulary", and that words like "gay" were used to describe someone, something, or a situation that a student did not like. One student testified that he himself used those words "all the time" and that it was common for a student to say "that shirt is so gay" or "the long jump is so gay" if the student did not like it. This student also said that the words "queer", "faggot" and "homo" were commonly used as part of normal conversation, even among 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.

The Decision of the Human Rights Tribunal

[22]            The Tribunal found that Mr. Jubran was discriminated against on the basis of sexual orientation. It concluded that it was irrelevant whether Mr. Jubran identified himself as a homosexual and (without making any finding of fact about what his harassers knew or believed about his sexual orientation) that it was irrelevant whether his harassers knew or believed him to be homosexual. The Tribunal stated (at paras. 96-97):

            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".

            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] 2 S.C.R. 536).

[23]            The Tribunal held that the School Board failed to fulfill its duty to provide Mr. Jubran with an educational environment free from discriminatory harassment. Although the School Board took a number of steps to deal with specific incidents involving Mr. Jubran, the Tribunal found that it did not address homophobia or homophobic harassment among students on a more general basis. The Tribunal awarded Mr. Jubran damages of $4,500 for injury to his dignity, feelings and self-respect and also issued an order that the School Board cease its contravention of the Code and refrain from committing the same or similar contravention.

The Decision of the B.C. Supreme Court

[24]            The decision of the chambers judge focused on the language of s. 8 of the Code and what he took to be the facts that Mr. Jubran is not homosexual and the students who attacked him did not believe he was homosexual. The chambers judge stated (at para. 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 [[1993] 2 S.C.R. 353 at 371]). 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.

[25]            Having found that there was no discrimination within the words of the Code, the chambers judge did not consider the liability of the School Board for failing to curb the actions of the students.

Section 8 of the Code – Can Mr. Jubran Complain?

[26]            The principal question on the appeal from the order of the chambers judge is whether in order to establish prima facie discrimination on the basis of sexual orientation under s. 8 of the Code, a person must either be a homosexual or be perceived by his harassers to be a homosexual.

[27]            This is a question of law: the proper interpretation of a statute. The standard for review of the decision of the Tribunal on this question was, as applied by the chambers judge, correctness: see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at 584-85; University of British Columbia v. Berg, [1993] 2 S.C.R. 353 at 369; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 34. On appeal, the standard of appellate review of the chambers judge's decision is also correctness: see Dr. Q, at para. 43.

[28]            The question is answered by reference to the principles of interpretation of human rights legislation, its purposes and objectives, and an analysis of discrimination that takes into account the effect of the impugned conduct rather than the intent of the perpetrators.

Interpretation of Human Rights Legislation

[29]            The Supreme Court of Canada has on many occasions addressed how human rights legislation is to be interpreted. Twenty years ago, McIntyre J., in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”), held that it is in the purposes of a human rights code that we find the broad approach which should be followed. He stated (at 546-47):

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment (see Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at pp. 157-58), and give to it an interpretation which will advance its broad purposes. Legislation 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.

[30]            In Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, La Forest J. made reference (at 89-90) to McIntyre J.'s decision in O’Malley and added in reference to the Canadian Human Rights Act, S.C. 1976-77, c. 33, that "the Act must be so interpreted as to advance the broad policy considerations underlying it"; be interpreted "in a manner befitting the special nature of the legislation"; and that such statutes "must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects."

[31]            More recently, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, L'Heureux-Dubé J., for the Court, affirmed this approach to the interpretation of human rights legislation, when she said (at paras. 30-31):

This Court has repeatedly stressed that it is inappropriate to rely solely on a strictly grammatical analysis, particularly with respect to the interpretation of legislation which is constitutional or quasi-constitutional in nature: Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., supra.

The courts are increasingly recognizing that all statutes, whether or not they are constitutional in nature, must be interpreted contextually....

[32]            As the chambers judge noted, however, the Supreme Court of Canada has also said that the scope of human rights legislation is not unlimited and the words of the statute cannot be ignored. He relied on the admonition of the Supreme Court of Canada in Berg, in which Lamer C.J.C., after referring to the broad approach developed in O’Malley and Robichaud, stated (at 371):

This interpretive approach does not give a board or court license 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 [the equivalent of s. 8 in the case at bar], 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.

[33]            Applying these interpretive principles, is it the case, as the chambers judge held, that s. 8 "admits of no other conclusion" than Mr. Jubran's complaint of discrimination is excluded?

[34]            The question cannot be answered without a closer analysis of the purposes and objectives of the Code and of the meaning of discrimination.

The Purposes of Human Rights Legislation

[35]            Section 3 of the Code sets out its purposes:

3          The purposes of this Code are as follows:

(a)        to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b)        to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(c)        to prevent discrimination prohibited by this Code;

(d)        to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e)        to provide a means of redress for those persons who are discriminated against contrary to this Code.

[36]            Thus, the purposes of the Code, consistent with human rights legislation generally, are to promote and foster human dignity and equality, to prevent discrimination prohibited by the Code, and to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by the Code. One of its purposes is also to provide a means of redress for those persons who are discriminated against contrary to the Code.

[37]            In O’Malley, McIntyre J. described the purposes of human rights legislation (at 547):

The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

[38]            The Tribunal found that the harassment of Mr. Jubran was persistent, homophobic in nature, and negatively affected his full participation in his high school educational experience (at paras. 93 and 99). It found further (at para. 219) that homophobic harassment was not unique to Handsworth. The School Board does not challenge these factual findings, which bring Mr. Jubran's complaint within the objectives of the Code that address human dignity and equality and the elimination of persistent patterns of inequality.

[39]            Is it correct then, taking into account the broad interpretive approach and all of the objectives of the Code, to interpret s. 8 so that it does not apply to Mr. Jubran, who has suffered the effects of homophobic taunting, because he does not identify himself as homosexual and his harassers deny that they perceive him to be homosexual?

[40]            The next step in the analysis is to examine more closely how to determine whether a person has been discriminated against because of his sexual orientation.

Perception and Intent

[41]            It is common ground that a person who is perceived to have the characteristics of a person who falls within one of the enumerated grounds in s. 8 may be the object of discrimination although he does not actually have those characteristics.

[42]            In Quebec v. Montréal (City), L'Heureux-Dubé J. described this approach to determining whether discrimination has occurred as the "subjective component" of discrimination. The issue in that case was whether persons had been discriminated against, contrary to the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12, on the basis of a "handicap". The persons were denied employment on the grounds that they had certain physical anomalies although they had no functional limitations for the purposes of the employment.

[43]            Justice L'Heureux-Dubé began her discussion by pointing out (at para. 38) that in the seminal case on equality rights and discrimination, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 144, McIntyre J. defined discrimination in terms of distinctions based on personal characteristics attributed to an individual and in Miron v. Trudel, [1995] 2 S.C.R. 418 at para. 132, McLachlin J. (as she then was) spoke of discrimination in terms of "presumed" characteristics.  Justice L'Heureux-Dubé stated (at para. 39):

The objectives of the Charter, namely the right to equality and protection against discrimination, cannot be achieved unless we recognize that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations. Since the very nature of discrimination is often subjective, assigning the burden of proving the objective existence of functional limitations to a victim of discrimination would be to give that person a virtually impossible task. Functional limitations often exist only in the minds of other people, in this case that of the employer.

[Underlining added.]

[44]            Justice L'Heureux-Dubé’s justification for accepting the “subjective component” or perceived characteristics as the basis for a finding of discrimination was that the effect of the conduct on the victim is the same as if the person actually had those characteristics. The following passage from Commission des droits de la personne du Québec v. Ville de Laval, [1983] C.S. 961 at 966 (Q.S.C.) (quoted in Quebec v. Montréal (City) at para. 56) is illustrative of this:

 [TRANSLATION] When an employer refuses to hire someone because it considers the candidate's skin to be too brown, regardless of whether the candidate actually has brown skin or whether the employer subjectively perceives it as such, the employer has engaged in discriminatory practices on the basis of colour and it must then justify the exclusion as a requirement of the employment. Thus, whether the exclusion is based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin or social condition, discrimination exists whether the employer's identification of that race, colour, sex, or sexual orientation is objective or purely subjective. [Emphasis added by L'Heureux-Dubé J.]

[45]            The "subjective component" of discrimination focuses not on the actual characteristics of the person but on the attitudes, prejudices and stereotypes of others that impose limitations on that person's human dignity, respect and right to equality (see Quebec v. Montréal (City) at para. 77). The emphasis of the analysis is on "the effects of the distinction, exclusion or preference rather than the precise nature" of the person's condition (at para. 81).

[46]            The interpretive obstacle in this case is that Mr. Jubran’s harassers denied that they subjectively perceived Mr. Jubran as homophobic, despite the persistent and consistent homophobic taunts. They maintained that their language was neutral, not discriminatory; they used homophobic epithets equally with friends and with those students they did not like as a form of insult.

[47]            The effect of their conduct, however, was the same whether or not they perceived Mr. Jubran to be homosexual. The homophobic taunts directed against Mr. Jubran attributed to him the negative perceptions, myths and stereotypes attributed to homosexuals. His harassers created an environment in which his dignity and full participation in school life was denied because the negative characteristics his harassers associated with homosexuality were attributed to him.

[48]            Including the “subjective component” in determining discrimination extends the analysis beyond a requirement that a person complaining of discrimination actually have the characteristics of a person within a prohibited ground. In this case, however, denying Mr. Jubran the protection of the Code on the ground that his harassers claimed they did not subjectively perceive him to be homosexual raises all of the concerns that McIntyre J. expressed in O’Malley in rejecting the proposition that intent or motive played any part in the determination of discrimination under human rights legislation. He said (at 549):

To take the narrower view and hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create...injustice and discrimination. Furthermore, as I have endeavoured to show, we are dealing here with consequences of conduct rather than with punishment for misbehaviour. In other words, we are considering what are essentially civil remedies. The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination.

[49]            In British Columbia (Public Service Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin"), McLachlin C.J.C. again pointed out (at para. 49):

...this Court long ago held that the fact that a discriminatory effect was unintended is not determinative of its general Charter analysis and certainly does not determine the available remedy [cites omitted]. In cases such as O’Malley, supra, and Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, this Court endeavoured to entrench the same principle in its analysis of human rights legislation.

[50]            To require Mr. Jubran to prove the subjective perceptions or beliefs of his harassers is akin to having to prove that they intended to discriminate against him. As McIntyre J. said in O’Malley, we are dealing with consequences, not intent or perception. The consequences of the actions of Mr. Jubran’s harassers was that he was discriminated against because of his sexual orientation, whether or not he was or his harassers believed or perceived him to be homosexual.

[51]            The following additional matters should be noted. First, the relevant words in s. 8 are "sexual orientation of that person", not "homosexuality of that person". There can be no doubt that the reference to "sexual orientation" is intended to protect homosexual men and women from discrimination. But nothing about those words requires that a person have a particular sexual orientation or identify himself as homosexual. It was Mr. Jubran's sexual orientation that his harassers persistently focused on. The words they chose to harass him were neither benign nor irrelevant; rather, the homophobic taunts imported the affront to the equality and human dignity of those that the Code seeks to protect.

[52]            Second, the Tribunal made no finding that, in the words of the chambers judge, "the students who attacked [Mr. Jubran] did not believe he was a homosexual". The evidence of the attackers was that they that they did not perceive him to be a homosexual. The Tribunal did not assess the credibility of that evidence and made no finding of fact about the belief of the attackers because it determined as a matter of law that their knowledge or belief concerning his sexual orientation was irrelevant. I agree with that conclusion, as the law is clear that it is the effect of the actions, not the intent or belief of the actors, that is the basis for determining whether discrimination has occurred.

[53]            Third, the “insuperable barrier in the way of a complainant seeking a remedy” referred to in O’Malley is particularly applicable where the sexual orientation of young people is concerned. In Kempling v. British Columbia College of Teachers (2004), 27 B.C.L.R. (4th) 139, 2004 BCSC 133, Holmes J. made the following comments, which I adopt, about the vulnerability of students in relation to homosexuality and homophobia (at para. 65):

There is a public protection issue here. The appellant does not appreciate that harm has been done to the general student body, homosexual students, the school system, and the teaching profession by publishing his discriminatory writing qua public school teacher and counsellor. The fact that there was no evidence of specific complainants is not determinative. Indeed, one reason that no one came forward with a complaint could be because the group that his public statements were targeted against is vulnerable, generally kept invisible and less likely to come forward with complaints than members of the general population. Realistically, most homosexual students would be most reticent to challenge a teacher and counsellor who is otherwise held in high regard, while placing themselves at risk in disclosing their sexual orientation to the public.

[Underlining added.]

 

[54]            The chambers judge's interpretation of s. 8 would impose an unwarranted burden on a person such as Mr. Jubran to either declare himself as a homosexual or prove that his harassers believed him to be homosexual. The emphasis was placed not on the effects of the distinctions made by the homophobic taunts but on the intentions and beliefs of the harassers, which may be the result of myths, prejudices and stereotypes which the Code was enacted to address. 

[55]            For all of the above reasons, I am of the opinion that the interpretation placed by the chambers judge on s. 8 of the Code was too narrow. It was inconsistent with the directions of the Supreme Court of Canada that human rights legislation be given a broad interpretation that will advance its purposes and objects and that the "strict grammatical approach" is inappropriate. The words of s. 8, as they apply to discrimination on the ground of sexual orientation, do not require that a person complaining of discrimination identify himself as a homosexual or that his harassers believe that he is homosexual. By focusing on the purposes of the Code and the effects of the harassment on Mr. Jubran's dignity and equality, in addition to the words of s. 8, it is apparent that he had standing to bring a complaint of discrimination under the Code.

[56]            I would allow the appeal.

The Tribunal's Decision

[57]            Having found that Mr. Jubran was entitled to bring a complaint under s. 8 of the Code, it falls to this Court to review the decision of the Tribunal that Mr. Jubran had established prima facie discrimination and the School Board was liable.

[58]            The common law standards of review applicable to the Tribunal's decision are reasonableness simpliciter with respect to findings of fact and the application of the law to the facts, and correctness with respect to general questions of law: see Mossop at 585; Berg at 369; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at 847; Oak Bay Marina Ltd. (c.o.b. Painter's Lodge) v. British Columbia (Human Rights Commission) (2002), 5 B.C.L.R. (4th) 115, 2002 BCCA 495 at para. 20; Dr. Q at para. 29.

Prima Facie Discrimination

[59]            As mentioned above (in para. 38), the School Board did not challenge the Tribunal's findings that the harassment of Mr. Jubran was persistent, homophobic in nature and negatively affected his high school experience. It argues, however, that homophobic schoolyard taunts by student bullies cannot result in a finding of discrimination. It says that Mr. Jubran was not denied a "service or facility customarily available to a member of the public", the educational services of Handsworth, because of his sexual orientation.

[60]            As I understand it, this part of the School Board's argument focuses on the Tribunal's interpretation of s. 8, not on its findings of fact or on the application of the law of discrimination to the facts.

[61]            There is no basis to find that the Tribunal's findings of fact are unreasonable. They are supported by the evidence and there is no assertion on the part of the School Board that the Tribunal misapprehended any evidence.

[62]            The Tribunal reasoned that harassment, with respect to a prohibited ground of discrimination, is discrimination. She applied the law relating to sexual harassment in the employment setting to harassment on the prohibited ground of sexual orientation in the school environment, citing (at para. 91) Robichaud at 88-89; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252.

[63]            In my opinion, the Tribunal's application of the law to its findings that the harassment of Mr. Jubran was demeaning and negatively affected his participation in high school life was reasonable. I would not interfere with the Tribunal's conclusion that Mr. Jubran had proved prima facie discrimination. 

Liability of the School Board

[64]            The primary objection of the School Board to the Tribunal's decision relates to its finding that the School Board was liable for the discriminatory conduct of the students who harassed Mr. Jubran.

[65]            The Tribunal held, applying the principles of Ross, that "the School Board has the duty to provide students with an educational environment that does not expose them to discriminatory harassment" (at para. 116).  Adapting the principles of Meiorin, the Tribunal held that the School Board had not established a bona fide reasonable justification for its conduct. It found that despite the efforts of Handsworth's administration, "the School Board has failed to discharge its burden of demonstrating that it accommodated Mr. Jubran to the point of undue hardship" (para. 161).

[66]            The School Board argues that Ross does not support the imposition of "strict liability" on the School Board for the conduct of the students. It points out that in Ross, the offender was a teacher, an employee of the School District, who was found to have a position of influence and trust over students. The liability of the School District for the discriminatory acts of the teacher was found in the School District's failure to respond appropriately and to discipline the teacher. In this case, the School Board argues, the offenders are students, who exercise no position of influence or trust over other students, and the School Board took a proactive approach to the harassment of Mr. Jubran.

Facts

[67]            Before discussing these issues, it is necessary to review the School Board's response to the offending students' conduct.

[68]            As described above, the school administrators took a disciplinary approach, investigating each reported incident; discussing their behaviour and possible consequences with each offending student; and applying measures which included detentions, meetings with parents and suspensions. The Tribunal found that the disciplinary approach was effective vis-à-vis individual students who were identified and dealt with, but that it was not effective in reducing the harassment of Mr. Jubran.

[69]            The Tribunal reviewed the measures that were taken and identified those that should have been taken by the School Board to accommodate Mr. Jubran's needs. These included communication of the school's Code of Conduct and provision of resources to school staff to deal with harassment issues and homophobia.

Code of Conduct

[70]            Handsworth formalized a Code of Conduct pursuant to a School Board policy in September 1994. This was an official compilation of disciplinary rules that had been in existence for several years. The Code of Conduct was developed with school, teacher and parent input, in accordance with the requirements of the School Act, R.S.B.C. 1996, c. 412, s. 85, and School Board policy.

[71]            The Code of Conduct 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, the Superintendent of Schools for the School Board testified that the Code of Conduct was meant to be broad enough to cover sexual orientation.

[72]            Violations of the Code of Conduct were determined by the administration after an investigation or on the spot by a teacher or hallway monitor. The superintendent 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 police, and suspension.

[73]            The administration made students aware of the Code of Conduct by sending it to their homes and by communicating it to them in assemblies. The Tribunal found (at para. 144) that the information communicated about the Code of Conduct during assemblies was relatively cursory, and that there was no dialogue about it. The Tribunal also found that, 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. Nonetheless, the Tribunal concluded that many students knew that name-calling, whether of a homophobic character or not, was unacceptable in the school.

Resources to Deal with Harassment

[74]            The vice-principal testified that the school lacked sufficient resources to be able to deal with bullying incidents outside of the classroom. He was of the opinion that most of the students involved in harassing Mr. Jubran were students who did not handle "unstructured time" well.  During gaps in their timetable, students were allowed to spend time in the hallways and cafeteria, where supervision was handled by support staff. The vice-principal said that these resource problems were identified to the School Board "all the time". The School Board made harassment training compulsory for support staff in 1999.

[75]            In late 1996 or early 1997, the principal contacted a consultant in harassment and human rights issues. The consultant was asked to set up a workshop on harassment and the Code of Conduct. He delivered a workshop to all Handsworth teachers and staff in April 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. The consultant 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.

[76]            In 1997, at the direction of the superintendent, the School Board produced for North Vancouver School District staff and teachers a harassment awareness resource package on the definition of sexual and personal harassment and strategies for dealing with it. In November 1997, the principal of Handsworth, 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.

[77]            Following the workshop conducted by the consultant, 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.

[78]            There was evidence 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.

[79]            The Tribunal found that there was 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. The principal of Handsworth 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.

[80]            The Tribunal found (at para. 156) 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.

The Tribunal's Decision

[81]            The Tribunal found (at para. 109) the basis for the School Board's duty to provide a discrimination-free environment in the following passage from Ross, where the Supreme Court of Canada held that schools are (at para. 42):

...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.

[Underlining added.]

[82]            Mr. Ross was a teacher who, during his off-duty time, published and distributed documents, letters and pamphlets that contained racist and discriminatory comments against Jews. A parent of Jewish children in the School District filed a complaint with the New Brunswick Human Rights Commission alleging the School District had discriminated against him and his children in the provision of accommodation, services or facilities on the basis of religion and ancestry.

[83]            The Board of Inquiry found that Mr. Ross' off-duty comments denigrated the faith and belief of Jews and that the School District was in breach of the Human Rights Act, R.S.N.B. 1973, c. H-11, in that it failed to discipline Mr. Ross in a meaningful way. By an almost indifferent response to the complaints and by continuing his employment, the School Board effectively silently condoned Mr. Ross's out of school activities and writings.

[84]            The Supreme Court of Canada held that the Board was correct in finding that Mr. Ross's continued employment as a teacher constituted discrimination under the Human Rights Act with respect to educational services available to the public.

[85]            The Tribunal also cited (at para. 112) the decision of the Quebec Human Rights Tribunal in Kafé et Commission des droits de la personne du Québec c. Commission scolaire Deux-Montagnes (1993), 19 C.H.R.R. D/1 (at para. 84) (Que. Trib.), for the proposition that schools have a duty to educate students regarding human rights and implement principles to prevent harassment and discrimination.

[86]            The Tribunal referred (at para. 114) to the School Board's statutory responsibilities regarding discrimination and harassment found in s. 85(2) of the School Act. The School Board has the authority to establish a code of conduct and to, among other things, refuse to offer an education program to a student if that student has refused to comply with the code of conduct.

[87]            The Tribunal concluded that the School Board was liable for the discriminatory conduct of the students because of its duty to maintain a non-discriminatory environment. It found (at para. 115-116):

...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.

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.

[Underlining added.]

[88]            The Tribunal then turned to the question of whether the School Board had established a bona fide reasonable justification for its discriminatory conduct. It applied the principles set out in "Meiorin" and applied in "Grismer" (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868), commenting (at para. 120) that:

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.

[89]            The Tribunal concluded its analysis of the justification issue as follows (at paras. 160-161):

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.

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.

[Underlining added.]

[90]            In determining the remedy, the Tribunal noted (at para. 230) that since 1994 or 1995, the School Board has established a strategy for addressing harassment and discrimination.

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 [Code of Conduct] 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.

Analysis

[91]            The question of the liability of the School Board for the discriminatory conduct of the students is a question of law, reviewable on the standard of correctness.

[92]            In my opinion, the legal reasoning of the Tribunal on this question is sound. Contrary to the position taken by the School Board, she did not impose a standard of "strict liability". The Tribunal relied on Ross for the Supreme Court of Canada's articulation of the importance of a discrimination-free school environment and the duty of the School Board to provide it. That environment is mandated by the special position educational institutions occupy in fostering the values of our society and by the Code, which requires those who provide services to the public to do so in a non-discriminatory way, so as to foster the full participation of individuals in the life of British Columbia, in a climate of understanding, mutual respect and equality of dignity and rights (see s. 3 of the Code).

[93]            The Tribunal's conclusion concerning the responsibility of the School Board to foster a discrimination-free environment may be compared to that of the Supreme Court of Canada in Robichaud. That case concerned a complaint of sexual harassment against an employee of the Federal Government. The Supreme Court found the Government liable for the acts of its employee, not on the basis of vicarious liability, but on the ground that the employer was responsible to remedy the undesirable effects of discrimination and provide "the most important remedy – a healthy work environment" (at 94).

[94]            The goal of a discrimination-free school environment is the ideal against which the School Board's response to the harassment of Mr. Jubran may be measured.

[95]            The Tribunal's findings of fact must be accorded deference; this Court will not interfere with her findings, or the inferences she drew from them, unless they are unreasonable.

[96]            In concluding that the School Board had not responded in an effective way to the students' discriminatory conduct, the Tribunal found that the school staff was pursuing a disciplinary approach that was not effective, and lacked resources to adopt a broader, educative approach to deal with the difficult issues of harassment, homophobia and discrimination. The School Board failed to provide those resources to the school staff during Mr. Jubran's years at Handsworth, though some were available. Some steps were taken by school staff to educate themselves about these issues after Mr. Jubran complained to the Human Rights Commission. Only after he graduated, however, did the School Board establish a strategy to address harassment and discrimination.

[97]            The Tribunal's findings of fact, and the inference she drew from them that the School Board had not established a "bona fide reasonable justification" for the discriminatory conduct of the students, is, in my opinion, entirely reasonable. The Tribunal was careful and thorough in her analysis of the evidence and in her discussion of the burden to be imposed on the School Board. In the end, the School Board had implemented the policies and procedures that could reasonably be required to create a discrimination-free school environment; its failure was in not doing so during the time Mr. Jubran could have had some relief.

[98]            I would uphold the order of the Tribunal.

Conclusion

[99]            Mr. Jubran was entitled to complain of discrimination under s. 8 of the Code and established prima facie discrimination on the ground of sexual orientation.

[100]        The Tribunal’s decision that the School Board was liable for the discriminatory conduct of the students was correct and its finding that the School Board had failed to provide an educational environment free from discriminatory harassment was reasonable.

[101]        I would allow the appeal, set aside the order of the chambers judge, and restore the order of the Tribunal.


[102]        I would order that the appellant, Mr. Jubran, is entitled to the costs of the appeal and the judicial review proceeding in Supreme Court as against the School Board. I would not order any costs against or payable by the Human Rights Tribunal.

“The Honourable Madam Justice Levine”

I AGREE:

“The Honourable Mr. Justice Oppal”


Reasons for Judgment of the Honourable Madam Justice Ryan:

Introduction

[103]        I have had the privilege of reading in draft form the reasons for judgment of my colleague Madam Justice Levine.  I agree that the appeal should be allowed, but for different reasons, I would return the application to the Human Rights Tribunal for a new hearing.

[104]        The words of the Human Rights Code, R.S.B.C. 1996, c. 210, as amended, that give rise to this appeal are these:

8          (1)        A person must not . . .

(b)        discriminate against a person or class of persons . . .

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.

[Emphasis added.]

[105]        It was common ground in the case at bar that the appellant, Mr. Jubran, did not identify himself as homosexual.  There was therefore no proof before the Tribunal that he fell within the enumerated class of persons protected by s. 8.  However, counsel for the appellant submitted, and counsel for the respondent School Board accepted, that it is well established in human rights jurisprudence that discrimination can arise from a perceived characteristic that falls under the enumerated grounds of s. 8: e.g., Quebec (C.D.P.D.J.) v. Montréal (City), [2000] 1 S.C.R. 665.  In the case at bar the Tribunal made no finding as to whether the students harassing Mr. Jubran believed him to be homosexual.  As I understand her argument, Ms. Woods, counsel for the School Board, says that the failure of the Tribunal to find a subjective belief in the students that the complainant was homosexual is fatal to the complaint.  This is because the words of s. 8 require that the discrimination be "because of the . . . sexual orientation [or perceived sexual orientation] of that person or class of persons".  The School Board's argument is that if the perpetrators of the discrimination did not believe that the person discriminated against had the characteristics, in this case, that Jubran was gay, then it could not be said the person possessed the perceived characteristic.  The students could not be said to have discriminated against Mr. Jubran on the basis of his perceived sexual orientation.

[106]        Ms. Kelly, counsel for the appellant, took the position that it was not necessary that the Tribunal examine the actual beliefs of the students.  She argued that the evidence disclosed that the students branded Mr. Jubran a homosexual and discriminated against him as if he were a homosexual.  Ms. Kelly submitted that, whether the students actually believed Mr. Jubran to be homosexual or not, it was enough that they attributed or imputed to him characteristics that were homosexual.    Ms. Kelly submitted that the words of the section can be interpreted as "perceived or imputed sexual orientation of that person. . . ."

[107]        For the reasons that follow I would not extend the meaning of the section to include the words "imputed".  In my view to do so would be to override the intention of the Legislature.

[108]        In my view the resolution of this appeal turns on the concession that s. 8 of the Code may be interpreted as including "perceived sexual orientation of that person".  It does not follow from this that the complainant must prove a subjective belief about his sexual orientation in his harassers.  I have concluded that it is enough to demonstrate that belief objectively.  The test should be whether a reasonable person, apprised of all the facts, would understand that the perpetrator believed that the complainant possessed or might possess the characteristics in question.

Discussion

[109]        Both counsel in the case at bar accepted that the Human Rights Code is a quasi-constitutional document, which calls for a large and liberal interpretation that allows its objectives to be achieved as far as possible.  Thus not only the provisions in issue, but the entire statute must be examined:  Quebec (C.D.P.D.J.) v. Montréal (City), supra, at para. 28.  Counsel for the School Board cautioned that, however liberal an interpretation must be given to the statute, the words of the provision cannot be ignored:  Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571.  Ms. Woods submitted that interpreting the words of s. 8 of the Code to include the words "imputed" loses the original meaning of the provision entirely. I agree. 

[110]        What follows is an analysis of the provisions of the Human Rights Code as it stood in 1997.  As I understand it, those provisions governed the proceedings when this matter came before the Tribunal in September 2000.  The Code has since undergone some changes, but for purposes of these reasons, those changes are of no consequence.

[111]        The purpose of the Code is set out in s. 3:

3          The purposes of this Code are as follows:

(a)        to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b)        to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(c)        to prevent discrimination prohibited by this Code;

(d)        to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e)        to provide a means of redress for those persons who are discriminated against contrary to this Code;

(f)         to monitor progress in achieving equality in British Columbia;

(g)        to create mechanisms for providing the information, education and advice necessary to achieve the purposes set out in paragraphs (a) to (f).

[112]        Part 1 of the Code, as it read in 1997, sets out prohibited discriminatory practices which include discriminatory publications; discrimination in accommodation, service and facility; discrimination in purchase of property; discrimination in tenancy premises; discrimination in employment advertisements; discrimination in wages; discrimination in employment; and discrimination by unions and associations.  Each section prohibits discrimination against a person "because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation of that person or class of persons" or some other formulation thereof.  Some sections also include a reference to age or criminal record.

[113]        Part 3 provides for the filing of a complaint with the commissioner of investigation and mediation by any person or group of persons against a person who has allegedly contravened the Code.  Section 21(4) permits a person to file a complaint on behalf of another person or group of persons "whether or not the person filing the complaint is a member of that group or class."

[114]        Part 4 includes a section on remedies.  They are the following:

37        (1)        If the member or panel designated to hear a complaint determines that the complaint is not justified, the member or panel must dismiss the complaint.

(2)        If the member or panel determines that the complaint is justified, the member or panel

(a)        must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention,

(b)        may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code,

(c)        may order the person that contravened this Code to do one or both of the following:

(i)         take steps, specified in the order, to ameliorate the effects of the discriminatory practice;

(ii)        adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups if the evidence at the hearing indicates the person has engaged in a pattern or practice that contravenes this Code, and

(d)        if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:

(i)         make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code;

(ii)        compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention;

(iii)       pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.

(3)        An order made under subsection (2) may require the person against whom the order is made to provide the deputy chief commissioner or any other person designated in the order with information respecting the implementation of the order.

(4)        The member or panel may award costs against a party to a complaint that, in the opinion of the panel or member, has engaged in improper conduct during the course of the investigation or the hearing of the complaint.

(5)        A decision or order of a member or panel is a decision or order of the tribunal for the purposes of this Code.

(6)        The member or panel must inform the following persons in writing of the decision made under this section and give reasons for the decision:

            (a)        the parties;

(b)        any intervenor allowed to participate in the hearing under section 36;

(c)        if not already a party, the deputy chief commissioner.

[115]        As Ms. Kelly noted, this human rights legislation is not punitive, it is remedial.  The stated purpose of the Human Rights Code, as set out in s. 3, may be summarized as an attempt, as much as any legislation can control the behaviour of its citizens, to prevent behaviour which harms those who possess certain characteristics.  As such, the goal of the Code is to promote a climate of understanding and mutual respect for all people free from discrimination.  This broader goal is addressed by creating remedies for those who possess any of the enumerated characteristics and who have suffered discrimination on that basis.  The Code does not prohibit discriminatory attitudes per se; rather, it seeks to eradicate them by providing redress to specific individuals who have suffered harm in specific situations.

[116]        While counsel have conceded that the jurisprudence establishes that s. 8 must be interpreted to cover cases of discrimination on the basis of perceived characteristics, I am of the view that the words of the section cannot be stretched to prohibit harassment where the enumerated characteristics are imputed, but not perceived to be possessed by the complainant.  If the appellant's interpretation of s. 8 is correct, it would prohibit name-calling where the complaint does not possess, nor is seen to possess, any of the enumerated characteristics.  I am of the view that the Code was not intended to go that far.  However distasteful this conduct might be, for the reasons I have given I do not believe that the prohibitions of the Code extend to that type of behaviour.  To read into s. 8 the word "imputed" would be to read out of s. 8 the words "of that person."

[117]        So the question arises in this case is whether the harassment of the appellant was school-yard name-calling or was it s. 8 discrimination?  The Tribunal did not come to grips with that question.  It avoided it by saying that the beliefs of the students harassing Jubran were irrelevant.  In my view that is not entirely correct.

[118]        As counsel for the appellant submitted, the Human Rights Code is directed at the effect of certain behaviour on persons or classes of persons, it is not a defence for those who practise the behaviour to claim that they did not intend the effects of their actions:  s. 2.

[119]        Nor in my view can it be a defence for a person who acts toward another in a discriminatory manner to say that he did not really know if the person affected was a member of that group or not.  No one but one's close friends would be expected to know for sure a person's sexual orientation.  It is not enough for the perpetrator to say that he or she did not believe the person to possess the characteristic in question.  If a reasonable person observing the behaviour in question, knowledgeable of all the circumstances, would come to the conclusion that the perpetrator perceived that the person suffering the discrimination possessed or might possess the characteristics, then the test is met.  For example, if a person is told by his employer that he will not receive a promotion because he is of Asian descent, it is no defence for the employer to then argue that he did not actually know whether the person was Asian or not.  The behaviour of the employer must be judged by the external objective manifestation of conduct.  If a reasonable observer, informed of the facts, would conclude that the employer perceived his employee might possess the characteristics in question, then the employer's discriminatory conduct would be prohibited by the Code

[120]        At the beginning of its reasons the Tribunal said that Mr. Jubran "did not identify himself as homosexual".  Later, in dealing with the perceptions of the students who harassed him, the Tribunal said, at paras. 94-95:

            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 [one of the students] 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.

            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 toward 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.

[Emphasis added.]

[121]        The School Board concedes that if the harassers did believe Jubran was gay, then this would fit within the language of s. 8 of the Code.  I am of the view that it would also fit within s. 8 of the Code if a reasonable person observing the incidents, which went on for years, would have concluded that the perpetrators perceived that Jubran might be gay and were harassing him on that basis.    On the other hand it is possible that a reasonable person, on the evidence called before the Tribunal, could find this to be a case where, as the student harassers all claimed, that their epithets did not go beyond nasty name-calling and other abusive behaviour unrelated to their perception of Jubran's sexual orientation.  In my view the Tribunal ought to have decided this issue.

[122]        In the result I would set aside the order of the Supreme Court justice and order a new hearing.

 

“The Honourable Madam Justice Ryan”

 

 

 

Corrigendum to the reasons of

The Honourable Madam Justice Ryan – 13 April 2005

 

At p. 45, para. 121, the first two sentences should read:

 

     The School Board concedes that if the harassers did believe Jubran was gay, then this would fit within the language of s. 8 of the Code.  I am of the view that it would also fit within s. 8 of the Code if a reasonable person observing the incidents, which went on for years, would have concluded that the perpetrators perceived that Jubran might be gay and were harassing him on that basis.