Caldwell et al. v. Stuart et al., [1984] 2 SCR 603

Supreme Court of Canada

Caldwell et al. v. Stuart et al., [1984] 2 S.C.R. 603

Date: 1984-12-20

Margaret Caldwell Appellant;

and

Director, Human Rights Code of British Columbia Appellant;

and

Ian Charles Stuart, Principal, St. Thomas Aquinas High School and The Catholic Public Schools of Vancouver Archdiocese Respondents;

and

The Attorney General of British Columbia Respondent;

and

The Attorney General of Canada Intervener.

File No.: 17108.

1984: February 15 and 16; 1984: December 20.

Present: Ritchie[1], Dickson, Beetz, Estey, McIntyre, Chouinard and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Civil rights—Discrimination—Religion and marital status—Roman Catholic teacher in Roman Catholic school breaching canon law—Teaching contract not renewed because of breaches—Whether or not schools action contrary to B.C. Human Rights Code—Whether or not Court confined to facts in stated case—Human Rights Code, R.S.B.C. 1979, c. 186, ss. 8, 18, 22—Constitution Act, 1867, s. 93(1) .

Courts—Stated case—Facts—Extent to which courts may look beyond facts in stated case.

Appellant, a Roman Catholic teacher in a Roman Catholic school, was not rehired for the following school year as she had married a divorced man in a civil ceremony contrary to church dogma. These proceedings were initiated through a formal complaint under British Columbia’s Human Rights Code, alleging dismissal without reasonable cause and discrimination against appellant on the basis of marital status and religion. At issue is whether or not it is contrary to the Code for a

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denominational school to refuse to hire a teacher who has personally disregarded church teachings. Also at issue is whether the Court in its consideration of the case was confined to the case stated on appeal.

Held: The appeal should be dismissed.

Bona fide qualification for employment is a concept separate and distinct from reasonable cause for dismissal and the two concepts should not be confused even though they may overlap. Since nothing justified appellant’s dismissal for reasonable cause any justification for the non-renewal of appellant’s teaching contract had to be found in the absence of a bona fide qualification. The protections of s. 8 of the Code would then not operate to protect her.

The test for a bona fide qualification has two branches, one subjective and the other objective. The subjective test was met here: the questioned requirement was imposed honestly, in good faith and in the sincere belief that it was imposed in the interest of the adequate performance of the work involved and not for ulterior or extraneous reasons aimed at objectives that would defeat the purpose of the Code. The objective test, too, was met. The requirement of religious conformity by Catholic teachers, objectively viewed, was reasonably necessary to assure the accomplishment of the objectives of the Church in operating a Catholic school with its distinct characteristics for the purposes of providing a Catholic education. The school’s special nature and the unique role played by the teachers through example in attaining its legitimate objects were essential to a finding that religious conformity was a bona fide qualification. Appellant, therefore, deprived herself of a bona fide qualification for employment through her breach of canon law and was not protected by the provisions of s. 8.

Section 22 of the Code is a protection for denominational schools and like institutions that would otherwise contravene the Code and should not be construed as merely a limiting section entailing a narrow construction. The section, in addition to limiting rights, granted and protected the right to associate and to promote religion. The members of the Catholic faith in the parishes served by the school formed the “identifiable group” referred to in s. 22 and the school authorities in failing to renew appellant’s contract were exercising a justifiable preference (given the nature of the school) for the benefit of the members of the identifiable group being served.

Constitutional questions with respect to freedom of religion and the right to denominational schools did not

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arise given the other than narrow interpretation accorded s. 22.

The court in a stated case, must find the facts in the case and may not substitute findings of its own. It may, however, consider reasons for decision and to a limited extent refer to the transcript of evidence to determine, where the matter is in issue, whether there is any evidence, as distinct from sufficiency of evidence, to support a finding of fact by the trial judge or for any other purpose permitted or directed in the statute authorizing the appeal.

Ontario Human Rights Commission v. Etobicoke (Borough of), [1982] 1 S.C.R. 202, applied; In the Matter of the Ontario Human Rights Code and In the Matter of the Complaint of Mrs. Bonnie Gore, (Board of Inquiry under The Ontario Human Rights Code, decision dated December 7, 1971), considered; Nelson and Atco Lumber Co. v. Borho (1976), 1 B.C.L.R. 207, distinguished; Regina ex rel. Scullion v. Canadian Breweries Transport (1956), 117 C.C.C. 37; R. v. Moroz, [1945] 2 D.L.R. 753; R. v. McBride and Kanata Investments Ltd., [1974] 1 W.W.R. 560; R. v. McDonnell, [1935] 1 W.W.R. 175; R. v. Nelson (1978), 8 Alta. L.R. (2d) 137; R. v. Malone (1975), 25 C.C.C. (2d) 373; R. v. Beattie, [1967] 2 O.R. 488; R. v. Kidd (1974), 21 C.C.C. (2d) 492; R. v. Parker Car Wash Systems Ltd. (1977), 35 C.C.C. (2d) 37; Provincial Assessors of Comox, Cowichan and Nanaimo v. Crown Zellerbach Canada Ltd. (1963), 42 W.W.R. 449, referred to.

APPEAL from a judgment of the British Columbia Court of Appeal (1982), 132 D.L.R. (3d) 79, dismissing a judgment of Toy J. allowing an appeal by way of stated case from a decision of a Board of Inquiry constituted under the British Columbia Human Rights Code dismissing appellant’s complaint. Appeal dismissed.

Louis Lindholm, Q.C., for the appellant Director, Human Rights Code of British Columbia.

A.J. Palmer, for the appellant Margaret Caldwell.

Jack Giles, Q.C., and Alfred T. Clarke for the respondents Ian Charles Stuart, Principal, St.

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Thomas Aquinas High School and The Catholic Public Schools of Vancouver Archdiocese.

Dermod Owen-Flood, Q.C., for the respondent the Attorney General of British Columbia.

Graham R. Garton, for the intervener the Attorney General of Canada.

The judgment of the Court was delivered by

MCINTYRE J.—

Facts

The narrow question raised in this appeal is whether it is contrary to the Human Rights Code, R.S.B.C. 1979, c. 186, (the Code) for a denominational school (in this case Roman Catholic) to refuse to continue employment to a Catholic teacher who has disregarded the rules of the Church by marrying a divorced person in a ceremony outside the Church. A broader issue may be said to arise concerning a conflict between two legally established rights, that of the individual to freedom from discrimination in employment, and that of a religious group to carry on its activities in the operation of its denominational school according to its religious beliefs and practices.

The facts are set out in detail in the case stated by the Board of Inquiry on an appeal taken by the appellants under s. 18 of the Code, and they are not in dispute. The appellant, Margaret Caldwell, was born and grew up in Scotland. She was baptized a Roman Catholic and has been one all her life. She taught in a Catholic school in Scotland for four years before coming to Canada in 1973 where she obtained employment teaching at St. Thomas Aquinas High School (one of the respondents) in October 1973. Her employment, like that of the other teachers, was governed by yearly contracts which in the ordinary course were renewed each year. She taught commercial subjects and mathematics and, while she did not give any formal religious instruction, she led prayers in her classroom each morning, as did the other teachers.

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In December of 1977 she married a divorced man, not a Catholic, in a civil ceremony. In so doing she knew that she contravened two rules of the Church which required that a Catholic marry in a Catholic Church and that a Catholic may not marry a divorced person because in the eyes of the Church that person is still married. She had told other staff members at the school of her forthcoming marriage but not that it was to be a civil ceremony or that her fiancé was divorced. During February of 1978 the school principal, the respondent Stuart, learned of the marriage. Acting on the advice of his superior, the superintendent of Catholic Schools for the Archdiocese, he interviewed the appellant on March 14, 1978. When the appellant confirmed the facts of her marriage he informed her that her teaching contract for the following school year would not be renewed. She was given notice in writing on April 28, 1978, to that effect. She continued in her teaching position until the end of the 1977-78 school term when her contract expired. The formal complaint under the Code which initiated these proceedings alleged discrimination against the appellant on the basis of marital status, religion, and dismissal without reasonable cause.

The respondents justified the dismissal by reference to the special nature of the Roman Catholic denominational school with its religious doctrinal basis. Like other Catholic schools in the lower mainland of British Columbia, St. Thomas Aquinas High School is owned and operated by the respondent society, The Catholic Public Schools of Vancouver Archdiocese. It is subject to control by its own local school board and it receives public funds for the carrying on of its programs. Under the provisions of the School Support (Independent) Act, R.S.B.C. 1979, c. 378, the school is entitled to receive financial support from public funds based upon a formula which is related to the number of students and the average operating cost of the school. It may also be observed that under the provisions of the Municipal Act, R.S.B.C. 1979, c. 290, s. 398(k), buildings and land owned by an incorporated institution regularly giving children instruction accepted as equivalent to that

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furnished in a public school are exempt from taxation. This provision may be a further source of support from public funds.

The special nature of a Catholic school was the subject of much evidence before the Board. It is dealt with in the stated case in some detail in paragraphs 20 to 31, which for the purposes of these reasons may be summarized. Catholic schools are significantly different from other schools mainly because of the doctrinal basis upon which they are established. It is a fundamental tenet of the Church that Christ founded the Church to continue His work of salvation. The Church employs various means to carry out His purpose, one of which is the establishment of its own schools which have as their object the formation of the whole person, including education in the Catholic faith. The relationship of the teacher to the student enables the teacher to form the mind and attitudes of the student and the Church depends not so much on the usual form of academic instruction as on the teachers who, in imitation of Christ, are required to reveal the Christian message in their work and as well in all aspects of their behaviour. The teacher is expected to be an example consistent with the teachings of the Church, and must proclaim the Catholic philosophy by his or her conduct within and without the school. The role of the school and its nature is described in paragraph 22(e) of the stated case in these words:

The Catholic school is a genuine community bent on imparting, over and above an academic education, all help it can to its members to adopt a Christian way of life.

The teaching of doctrine and the observance of standards by the teachers form part of the contract of employment of the teachers. They are required to exhibit the “highest model of Christian behaviour”. Religious and moral training occupies the principal place in the curriculum. The school held retreats for its teaching staff at which the special role of the Catholic school was a subject of instruction. The appraisal form for the evaluation

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of teacher performance, though based on the public school form, contains an additional part entitled “Teaching in the spirit of the Catholic school—its character and mission.” This part concerns itself with the teacher’s performance as a Christian witness to the students.

The hiring procedures adopted by the school were designed to give effect to the special goals of the school. While it would prefer to have a fully Catholic teaching faculty, it has not always been possible for the school to do so. In the academic year of 1977-78 the school employed twenty teachers of whom six were non-Catholics. Two were of the Islamic faith and four were Christians of non-Catholic denominations. Before employing a Catholic teacher, the school requires a certificate from the teacher’s parish priest to the effect that he or she is a practising Catholic. For non-Catholic teachers no such certificate is required but the nature and purpose of the Catholic school is stressed and explained and steps are taken to ensure that non‑Catholic teachers observe the principles and practices of their own particular faith. The continued practice of the individual’s faith is a requirement for continued employment. In short the school expected that non-Catholic teachers would support the religious approach of the school.

The existence in the school of teachers of different faiths results in different treatment for some. The school for example would hire or keep in employment a Protestant teacher who married a divorced person if the particular Protestant faith or Church of the teacher permitted such a marriage. It would not do so for a Catholic. If Mrs. Caldwell had been a Protestant in a denomination which accepted marriage to divorced persons she would have been re‑engaged, but being a Catholic she was held to a different, and in the view of the Church, a higher standard of behaviour than a Protestant.

The findings of the Board as to the nature of the Catholic school were more extensively set out in the stated case than in the brief summary above.

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There was ample evidence before the Board upon which those findings were made and they are of course incontrovertible in the appellate courts.

In addition to Mrs. Caldwell, the Director, Human Rights Code of British Columbia, joined the proceedings as an appellant. In addition to the respondent School, its Principal and the Catholic Public Schools of Vancouver Archdiocese, the Attorney General of British Columbia is a party respondent. The Director supported the position of the appellant while the Attorney General of British Columbia sought the restoration of the Board’s order dismissing Mrs. Caldwell’s complaint. The following constitutional question was stated by order of the Chief Justice of Canada on October 26, 1983:

Is section 8 of the Human Rights Code of British Columbia, R.S.B.C., 1979, c. 186, insofar as it purports to apply to the employment of teachers by denominational schools, outside the legislative competence of a province under the Constitution Act, 1867  because it is legislation in relation to freedom of religion?

The Attorney General of Canada was represented on this question contending for a negative answer.

Issues and Disposition in Courts Below

Four separate issues were argued in this appeal. The first raised the question of whether the Court in its consideration of the case was confined to the case stated on appeal. The second and third issues, which were the most significant, involved the questions of whether the decision not to renew the appellant’s teaching contract was in contravention of s. 8 of the Code, and whether the respondent’s actions were exempted from s. 8 by s. 22 of the Code. The fourth issue is the constitutional issue of whether, if the non-renewal decision was contrary to s. 8 and not exempted by s. 22, those provisions are ultra vires the Province’s legislature in relation to freedom of religion or legislation contrary to s. 93(1)  of the Constitution Act, 1867 .

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The Board of Inquiry was not faced with the first issue. It disposed of the second issue by holding that in some cases the factors in s. 8(2) including “religion” and “marital status” can amount to a bona fide occupational qualification in respect of employment. Considering the special nature of the Catholic school, a policy against employing Catholic teachers who violated Church rules regarding marriage could be reconciled with s. 8. On the s. 22 issue the majority of the Board expressed the opinion, though it was not necessary in view of their disposition of the s. 8 ground, that:

…the purpose of section 22 is served by permitting the respondent to make the preference among the members of the Catholic community which it has made in this case.

The Board also concluded that the Code was valid provincial legislation on the subject of civil rights within the Province which did not affect any right or privilege protected by s. 93(1)  of the Constitution Act, 1867 .

An appeal by way of stated case was taken pursuant to s. 18 of the Code to the Supreme Court of British Columbia. It was allowed by Toy J. He did not discuss the first issue regarding the court’s power to look behind the stated case, but it is to be observed that he confined himself to the stated case in his consideration of the matter. He found that the effect of s. 8(2) was that neither religion nor marital status could be a “bona fide qualification” within the meaning of s. 8(1). He considered on the s. 22 issue that the section did not exempt discrimination among members of “identifiable groups” referred to in the section. He could find no evidence that Mrs. Caldwell by her marriage ceased to be a member of the group and therefore the case did not come within the section. He agreed with the Board on the fourth issue that s. 8 does not violate any right protected by s. 93(1)  of the Constitution Act, 1867  and was not ultra vires as legislation in relation to freedom of religion.

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On appeal, Hutcheon J.A., who spoke for the Court on this issue, held that the Court could consider not only the stated case but the Board’s reasons as well, and, to a limited extent, the transcript of proceedings. He considered that the answer to the main questions rested in s. 22 which he said permitted the preference of one member of the identifiable group over another. The respondents were therefore exempted from the provisions of s. 8. Seaton J.A., with whom Carrothers and Macdonald JJ.A. agreed, thus forming a majority, held that the exclusion by s. 8(2)(a) of the various factors mentioned in the subsection as reasonable cause for discrimination under subs. 1 is absolute and unyielding. He drew a distinction however between discrimination based on religion itself and discrimination based on a cause based on religion. He ordered the remission of the matter to the Board for clarification because, while in his view the Board appeared to have found reasonable cause, it was unclear and a precise finding was necessary to enable the Appeal Court to deal with the legal issues. He also found that there was evidence before the Board upon which it could find that Mrs. Caldwell had by her marriage ceased to be a member of the identifiable group of practising Catholic supporters of the school so that the refusal to rehire her could be permitted under s. 22. This matter should be remitted to the Board as well so that it could clarify its findings. Finally, he declined to give effect to the constitutional argument.

Nemetz C.J.B.C. considered that “religion” in s. 8(2)(a) would extend to conduct arising out of religion and that the Board consequently had no jurisdiction to consider reasonable cause under s. 8(1). He went on, however, to say that s. 22 could protect the respondents if on a rehearing before the Board it concluded that Mrs. Caldwell had been hired preferentially and had acted in such a repugnant manner as to exclude herself from the group. He agreed that s. 8 was intra vires the Province.

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In the result, the appeal was allowed, the judgment of Toy J. in the Supreme Court vacated, and the case ordered to be remitted to the Board with the opinion of the Court.

A preliminary point was raised in the Court of Appeal and in this Court regarding the extent of review by stated case. The right of appeal under the Code is given in s. 18 which provides:

18. (1) An appeal lies from a decision of a board of inquiry to the Supreme Court on any

(a) point or question of law or jurisdiction; or

(b) finding of fact necessary to establish its jurisdiction that is manifestly incorrect,

and the rules under the Offence Act governing appeals by way of stated case to that court apply to appeals under this section, and a reference to the word “justice” shall be deemed to be a reference to the board of inquiry.

(2) An appeal from a decision of the Supreme Court lies to the Court of Appeal with leave of a justice of the Court of Appeal.

The appellant Caldwell argued that the Court of Appeal was in error in looking beyond the stated case. It should, it was asserted, have limited its consideration to the case itself and not have had reference to the reasons for decision or to the transcript of evidence.

The provisions of the Offence Act, R.S.B.C. 1979, c. 305, are not of assistance in resolving this question. However, a similar procedure for appeals by way of stated case is set out in s. 762 of the Criminal Code and most of the cases dealing with this question are concerned with appeals under that section or its predecessors. From the many cases decided upon this issue, it seems clear that the appellate court may not look beyond the stated case in order to make inferences of fact, nor to find new facts not in the case, or to weigh and consider the sufficiency of evidence: see Regina ex rel. Scullion v. Canadian Breweries Transport (1956), 117 C.C.C. 37 (Ont. C.A.), at pp. 40-41; R. v. Moroz, [1945] 2 D.L.R. 753 (Man. C.A.), at pp. 772-76; R. v. McBride and Kanata Investments Ltd., [1974] 1 W.W.R. 560 (B.C.C.A.), at pp.

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566-70; R. v. McDonnell, [1935] 1 W.W.R. 175 (Alta. C.A.); and R. v. Nelson (1978), 8 Alta. L.R. (2d) 137 (Alta. C.A.) It is proper, however, to have reference to the transcript where the argument is raised that there is no (as opposed to insufficient) evidence to support a conclusion reached by the trial judge or where there is an issue about a finding of fact necessary to establish jurisdiction. Neither of these exceptions need be considered here.

As for the reasons for decision, it seems clear that the law of Canada as well as that of England has always permitted reference to the reasons for decision: see Halsbury’s Laws of England (4th ed. 1980), vol. 11, p. 423, and see as well R. v. Malone (1975), 25 C.C.C. (2d) 373 (Man. C.A.), at pp. 376-77, particularly Matas J.A. speaking for the Court at p. 377, though it should be noted that a specific rule deals with the point in Manitoba; R. v. Beattie, [1967] 2 O.R. 488 (Ont. H.C.), at p. 491; R. v. Kidd (1974), 21 C.C.C. (2d) 492 (Ont. H.C.), at pp. 495-96; R. v. Parker Car Wash Systems Ltd. (1977), 35 C.C.C. (2d) 37 (Ont. H.C.),at pp. 41-42.

I am therefore in agreement with Hutcheon J.A. who, speaking for the Court upon this point, said:

In summary, I have concluded that both the reasons for judgment and to a limited extent the transcript of evidence may be considered by the Appeal Court.

To summarize, I would say that all facts must be found in the stated case and the appellate court may not substitute findings of its own. Reasons for decision are always open for the consideration of the appellate court. To a limited extent the appellate court may refer to the transcript of evidence to determine, where the matter is in issue, whether there is any evidence, as distinct from a sufficiency of evidence, to support a finding of fact by the trial judge or for any other purpose permitted or directed in the statute authorizing the appeal. Reference to the transcript of evidence may be necessary under the Human Rights Code of British

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Columbia for example where s. 18(1)(b) of the Code requires consideration of the correctness of a finding of a jurisdictional fact. For a further example see the Assessment Equalization Act, R.S.B.C. 1960, c. 18, s. 51(5), and the words of Davey J.A. in Provincial Assessors of Comox, Cowichan and Nanaimo v. Crown Zellerbach Canada Ltd. (1963), 42 W.W.R. 449 (B.C.C.A.), at pp. 451-52. On a careful reading of the judgments below it is evident that there was no improper use of the evidence to make new findings of fact or to weigh the sufficiency of evidence for findings made by the Board, and it is my opinion that the courts below were entitled to consider the reasons for the decision of the Board in accordance with accepted rules governing stated cases.

Hutcheon J.A. commented on the approach to a stated case by an appellate court where a constitutional question is raised. He said:

Further, in the present case one of the questions of law concerns the constitutional validity of the Human Rights Code. I question whether on that issue the Appellate Court is confined to the findings of fact in the stated case. Those findings may be wrong.

There is, of course, a presumption that the legislature has acted constitutionally. In his dissenting judgment in Canadian Industrial Gas & Oil Ltd. v. The Government of Saskatchewan [1978] 2 S.C.R. 545, Dickson, J., made this comment at p. 573:

Before the Court concludes that the Province has transcended its constitutional powers the evidence must be clear and unmistakable.

That comment stems from cases such as Fort Frances Pulp and Power v. Manitoba Free Press Co. (1923) A.C. 695 at p. 706 (“very clear evidence”), Co‑Operative Committee on Japanese Canadians v. Attorney General for Canada (1947) A.C. 87 at p. 101 (“very clear evidence”) and Kruger v. The Queen [1978] 1 S.C.R. 104 at p. 112 (“in the absence of clear evidence”). Where constitutional matters are concerned the Court is entitled to have regard to all relevant matters.

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I consider, therefore, that the Appellate Court must be satisfied that the findings of fact were fully justified. When the constitutional validity of a statute or its application is involved the restrictive approach that may be appropriate in other types of cases is singularly inappropriate.

In this approach he was supported in argument by the respondent Attorney General of British Columbia. While I would reserve comment upon the suggestion that a broader view of a stated case may be appropriate where constitutional issues arise, it is my opinion that in the circumstances of this case a sufficient investigation of the one constitutional issue raised under s. 93(1)  of the Constitution Act, 1867  may be made without reference to factual matters beyond those found in the stated case. In my opinion this ground of appeal must be resolved against the appellant.

Section 8 Issue

The principal attack made by the Director and Mrs. Caldwell was upon the Board’s conclusion that this was a case where religion and marital status could be considered as bona fide qualifications under s. 8(1) of the Code, despite their specific inclusion in s. 8(2)(a) as factors which could not be reasonable cause for a dismissal from employment. This conclusion is conveniently set out in the stated case, in paragraphs 30, 31, and 32, which are reproduced hereunder:

30. The Board concluded that there are some cases in which the factors contained in section 8(2) of the Human Rights Code can be considered as bona fide qualifications in section 8(1).

31. The Board concluded that religion and marital status can be considered as bona fide qualifications in respect of employment.

32. The Board concluded that the general policy of Catholic schools that Catholics who have violated the Church’s marriage rules should not be permitted to teach in Catholic schools can be reconciled with Section 8(1) of the Human Rights Code because of the special nature of the Catholic school, and because we concluded that as a legitimate means of fostering that special nature, a Catholic school can demand that Catholic teachers practise what the Church preaches, namely, that one should not marry a person who, in the Church’s eyes, is married to someone else.

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Section 8 of the Human Rights Code is reproduced in part hereunder:

8. (1) Every person has the right of equality of opportunity based on bona fide qualifications in respect of his occupation or employment, or in respect of an intended occupation, employment, advancement or promotion; and, without limiting the generality of the foregoing,

(a) no employer shall refuse to employ, or to continue to employ, or to advance or promote that person, or discriminate against that person in respect of employment or a condition of employment; and

(b) no employment agency shall refuse to refer him for employment,

unless reasonable cause exists for the refusal or discrimination.

(2) For the purposes of subsection (1),

(a) the race, religion, colour, age, marital status, ancestry, place of origin or political belief of any person or class of persons shall not constitute reasonable cause.

On reading subs. (1) and (2)(a) it becomes apparent that they create a strongly protected right to equality of opportunity in respect of employment and freedom from discrimination in that regard unless reasonable cause is shown. Subsection (2)(a) specifically provides that various matters may not constitute reasonable cause. Included in this list are marital status and religion, said to be the basis for the non-renewal of Mrs. Caldwell’s teaching contract. I have no difficulty in reaching the conclusion that religion or marital status cannot therefore be relied upon as reasonable cause. This, however, does not assist the appellant, because as I understand the reasoning of the Board, it does not involve the finding of a reasonable cause for the non-renewal of Mrs. Caldwell’s contract. The Board relied upon the words of s. 8 which provide that the right of equality of opportunity given in the section is “based on bona fide qualifications in respect of his occupation or employment…”

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The respondent says that in a Roman Catholic school, because of its special nature, the bona fide qualification of a Catholic teacher includes the willingness of the teacher to observe the requirements and practices of the Church, and that the failure to meet this qualification of a candidate for employment in such a school, or the refusal of a teacher already employed to maintain it, denies the individual concerned the protection of s. 8.

The right of equality of opportunity, free from discrimination, which is protected by s. 8 is characterized as a right based on a bona fide qualification in respect of that employment. A right so based is protected by the further provisions of the section. Ordinarily, a person who is academically qualified and duly licensed by the proper authority, would certainly possess the bona fide qualifications for employment as a teacher in a public school. I am in complete agreement with the proposition that if Mrs. Caldwell had been employed in a secular or public school and had been dismissed because of her marriage, she would have the full protection of s. 8 and be entitled to reinstatement. This result may not always follow and particularly in cases relating to denominational schools. As has been pointed out, the Catholic school is different from the public school. In addition to the ordinary academic program, a religious element which determines the true nature and character of the institution is present in the Catholic school. To carry out the purposes of the school, full effect must be given to this aspect of its nature and teachers are required to observe and comply with the religious standards and to be examples in the manner of their behaviour in the school so that students see in practice the application of the principles of the Church on a daily basis and thereby receive what is called a Catholic education. Fulfillment of these purposes requires that Catholics observe the Church’s rules regarding marriage. It must be celebrated in the Church and the marriage of divorced persons is not recognized. The Board found that Mrs. Caldwell knew this when she was employed, that inquiries were made respecting these matters before she was hired to insure her eligibility for employment in this respect. It was therefore open to the Board to find that when Mrs. Caldwell in contravention of

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the Church’s requirements married a divorced man in a civil ceremony, she deprived herself of a bona fide qualification for the employment. In my view the Board made no error in law in so finding and in concluding that the provisions of s. 8 were not operative to protect her.

This approach was taken by Toy J. in Nelson and Atco Lumber Co. v. Borho (1976), 1 B.C.L.R. 207 (B.C.S.C.), where he expressed a view at p. 213 that the rights given in s. 8 for the protection of employees were not available unless a qualification for the employment existed. This case is of little significance here however because the lack of qualification did not depend on one of the proscribed factors in s. 8(2)(a). Of more relevance are the words of then Professor W.S. Tarnopolsky, sitting as a board of inquiry under The Ontario Human Rights Code, on the hearing of a complaint by one Bonnie Gore (In The Matter of the Ontario Human Rights Code and In the Matter of the Complaint of Mrs. Bonnie Gore, decision handed down December 7, 1971 (as yet unpublished)). The complaint arose from the refusal of the Catholic School Board of Ottawa to engage a non-Catholic as a secretary for clerical duties in the school administration. Professor Tarnopolsky sustained the complaint, but in so doing. drew a clear distinction between the position of a teacher and that of a clerical worker. He said, at pp. 8-9:

I think it would be reasonable for the Separate School Board to refuse to hire a secretary who is hostile to the Catholic faith or to the aims of the Separate School system, regardless of her religious upbringing, but I cannot see how a secretary can be expected to provide an example for the children. This is surely the responsibility of the teachers, and the religious aspect is the responsibility of the ecclesiastics as well as most of the teachers. The secretary performs secretarial and clerical functions (and only for half a day), under directions from, and subject to supervision by, the Principal. Requiring that she be a Roman Catholic is not, in my opinion, a “reasonable occupational qualification” within the meaning of section 4(4)(b) of the Ontario Human Rights Code. [Emphasis added.]

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It is evident from the above that Professor Tarnopolsky recognized the special nature of the Catholic school but concluded that the clerical worker would not have that degree of contact with the pupils that would make it essential in the interest of the Church to have a Catholic in such position. The responsibilities for carrying out the Church’s basic purposes he accorded to the teacher.

As has been said, Seaton J.A. expressed the view that s. 8(2)(a) of the Code created an unyielding prohibition against considering religion or marital status as a reasonable cause for the termination of employment. He said of s. 8(2)(a):

None of the factors contained in it can constitute reasonable cause in s. 8(1) under any circumstances.

Later he said:

An employer who would refuse to hire an otherwise acceptable job applicant solely because of his race, colour or age, etc., would offend the blunt language of s. 8(2); such factors cannot constitute reasonable cause. This is not to say that more subtle forms of discrimination are not prohibited. The inquiry then shifts to the reasonableness of the employer’s refusal as determined by s. 8(1). Thus on this reading of the section, religion and marital status cannot take on the expansive meanings urged by counsel for Mrs. Caldwell.

He then proceeded to make the distinction mentioned above:

In my view, religion in s. 8(2) means religion of itself and does not extend to a cause based on religion. Thus the question for the Board within s. 8(2)(a) was whether Mrs. Caldwell was not re-employed simply because she was Catholic. Similarly, marital status means marital status of itself and the question for the Board was whether Mrs. Caldwell was not re-employed simply because she had married. If the Board concluded that she was not released for being Catholic or for being married, it follows that she was not released for one of the causes listed in s. 8(2)(a). That may be why the Board went so quickly to s. 8(1).

[Page 621]

He went on to state that the Board was justified in considering the conduct of the complainant as a matter falling within s. 8(1). For that reason he remitted the matter to the Board to clarify its findings on the question of reasonable cause for dismissal. I gather from his reasons that he was of the opinion that it would have been open to the Board to so find depending on its view of the evidence. I have difficulty in accepting this analysis. In addition to distinguishing between religion and a cause based on religion it depends as well on the treatment of subss. (1) and (2) of s. 8 as declaring two separate propositions independent of each other. I will not go into the question of whether there is a difference between religion and a cause based on religion. I do not reject it as a test which may very well be applicable in some cases, but I do not think that adoption of this concept is necessary in the case at bar, nor do I think subss. (1) and (2) of s. 8 should be treated separately. Subsection (1) creates rights which may not be infringed save for reasonable cause. Subsection (2) “for the purposes of subsection (1)” provides that neither religion nor marital status may be reasonable cause. What we are concerned with here then is not two independent statutory provisions but two different concepts arising in subs. (1), that is, a bona fide qualification for employment and a reasonable cause for dismissal. The question before the Board then was not whether the appellant was dismissed for reasonable cause, for neither religion nor marital status may be a reasonable cause, but whether by reason of the loss of a bona fide qualification in respect of her occupation she had lost the rights conferred by subs. (1).

The concept of bona fide qualification for employment in my view is separate and distinct from a reasonable cause for dismissal. It is difficult and probably unwise to attempt at this stage a general definition of the term “reasonable cause” for application in cases involving s. 8 of the Code. There are obvious examples, such as dishonesty, unexplained absenteeism, drunkenness, and incompetence, but these are only examples and their recognition does not assist in framing the

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general definition. It could be that in many cases, the same conduct or characteristic of an employee will both constitute reasonable cause for dismissal and have the effect of depriving the employee of a bona fide qualification. To that extent the two concepts may overlap but they should not for that reason be confused. The most highly qualified person may yet give his employer reasonable cause to dismiss him. Excluding consideration of the religious requirement, there is absolutely nothing in the case that would justify the dismissal of the appellant as a reasonable cause. In fact, her conduct and competence as a teacher of mathematics and commercial subjects is acknowledged by all. Therefore, any justification for the non-renewal of her teaching contract must be found if at all in the absence of a bona fide qualification.

In Ontario Human Rights Commission v. Etobicoke (Borough of), [1982] 1 S.C.R. 202, I had occasion to consider under different statutory provisions the nature of a bona fide qualification for employment. I said at p. 208:

To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

It was argued for the appellant that the acceptance of this test would not permit of a finding that the Church’s requirement in the case at bar could constitute a bona fide occupational qualification.

The test employed in the Etobicoke case has two branches. The first is subjective: is the questioned requirement imposed honestly, in good faith and in the sincerely held belief that it is imposed in the

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interest of the adequate performance of the work involved and not for ulterior or extraneous reasons, aimed at objectives which could defeat the purpose of the Code? It is at once clear that it is met, for at no time in these proceedings has it been suggested that the motives of the school authorities were not honest and in good faith or that the requirement of religious conformance was not imposed solely to promote the objects of the school. No ulterior motive has been shown or even suggested. In addressing the second branch of the test however, it was argued that the requirement of religious conformance was not reasonably necessary to assure the efficient performance of the teaching function in any objective sense. Considerations of economy and safety are not involved. However, the essence of the test remains applicable and may be phrased in this way: “Is the requirement of religious conformance by Catholic teachers, objectively viewed, reasonably necessary to assure the accomplishment of the objectives of the Church in operating a Catholic school with its distinct characteristics for the purposes of providing a Catholic education to its students?”

The answer to this question may be found in the stated case. As has been mentioned earlier, the Board made extensive reference to this question in the stated case particularly in paragraphs 20 to 31 which have been summarized above. Particular reference may be made to paragraphs 22, 23 and 24, which are reproduced hereunder:

22. The goals of the Catholic schools are furthered by a number of principles which have been developed by the Church with respect to them, namely:

a. The teacher is in an excellent position to form the minds and hearts of his pupils;

b. To achieve its specific aims, the Catholic school depends not so much on subject matter or methodology as on the people who work there and teachers are required, in imitation of Christ, to reveal the Christian message, not only by work but also by every gesture of their behaviour;

c. A Catholic teacher must exhibit to the students an example that is consistent with what is being taught. For a Catholic teacher to be cred-

[Page 624]

ible, he must proclaim the Catholic philosophy by his actions, both within the school and outside it;

d. The approach of completing the Christian formation of the pupils is especially significant today because of the inadequacy of the family and society; and

e. The Catholic school is a genuine community bent on imparting, over and above an accademic education, all help it can to its numbers to adopt a Christian way of life.

23. The different emphasis of the Catholic school was developed very thoroughly in the evidence at the hearing, both through presentation of Church documents and in the evidence of the Church’s witnesses and is epitomized in the statement of the Principal of the School that “We’re not just teaching them how to read and write… we’re teaching a way of life”.

24. This differing emphasis has a number of manifestations in the administration of the school and its day-to-day activities as manifested by the following features:

a. The teaching of doctrine and the proper behaviour of the teachers are specifically included in the contract of employment, which contract provides that the teacher shall exhibit the highest model of Christian behaviour and that religious and moral training shall occupy the principal place in the curriculum;

b. The School held retreats for its teaching staff at which the special role of the Catholic school and development of the whole person was a subject; and

c. The appraisal form on which teachers are evaluated, though borrowed from a public school form, was amended after one year so that it better reflected the Catholic school, a new first segment being introduced titled “Teaching in the Spirit of the Catholic School—Its Character and Mission”, which segment addresses itself to the issue of how well the teacher performs as a Christian witness to the students.

The Board found that the Catholic school differed from the public school. This difference does not consist in the mere addition of religious training to the academic curriculum. The religious or doctrinal aspect of the school lies at its very heart and colours all its activities and programs. The role of the teacher in this respect is fundamental to the whole effort of the school, as much in its spiritual nature as in the academic. It is my opinion that objectively viewed, having in mind the special

[Page 625]

nature and objectives of the school, the requirement of religious conformance including the acceptance and observance of the Church’s rules regarding marriage is reasonably necessary to assure the achievement of the objects of the school. It is my view that the Etobicoke test is thus met and that the requirement of conformance constitutes a bona fide qualification in respect of the occupation of a Catholic teacher employed in a Catholic school, the absence of which will deprive her of the protection of s. 8 of the Human Rights Code. It will be only in rare circumstances that such a factor as religious conformance can pass the test of bona fide qualification. In the case at bar, the special nature of the school and the unique role played by the teachers in the attaining of the school’s legitimate objects are essential to the finding that religious conformance is a bona fide qualification.

Section 22 Issue

A further basis for the dismissal of the appeal was advanced by the respondents. They have argued that whatever view the Court may take regarding the application and effect of s. 8 the dismissal of Mrs. Caldwell is a permitted preference under s. 22 of the Code. The appellants on the other hand contend that s. 22 creates an exception to the general prohibition against discrimination in employment and it should therefore be narrowly construed so as not to permit any greater limitation than is necessary on the rights which the Code was enacted to create and protect. Argument on this issue was mainly concerned with the extent and identification of the identifiable group to be benefited, and whether or not any preference had been granted to members of that group. Before these arguments can be resolved and a decision made concerning the application of s. 22, one must examine the background against which the section was enacted, and its proper application in relation to the other provisions of the Code.

To begin with it must be recognized that we are here facing a situation where there is a clear conflict between two sound legal positions. There is an assertion by each party of a clear legal right

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and the two rights, if each is to be accepted with no modification or limitation, are incompatible. The respondent is lawfully entitled to create and to operate a denominational school according to Roman Catholic concepts of education. There may be no specific enactment of the Legislature of the Province of British Columbia which confers this right. It is, however, an unquestioned fact that Roman Catholic schools have existed in British Columbia since the Province was formed, beside, but separate from, the public school system. For many years they have been entitled to public financial support, and attendance of pupils at such schools has been recognized as a substitute for compulsory attendance at public schools. There can be no serious question that Roman Catholic schools, having their special nature, have functioned and continue to function lawfully in the Province. On the other hand, the law of the land has conferred rights regarding employment which have come into conflict with the rights of the respondent in the operation of its denominational school.

It seems evident to me that the Legislature of British Columbia, recognizing the historically acquired position of the denominational school and the desirability of preserving it, in enacting a Human Rights Code which goes far to eliminate differences and distinctions in society, included s. 22 as a protection for the denominational school or other institution in like case. It is therefore my opinion that the courts should not in construing s. 22 consider it merely as a limiting section deserving of a narrow construction. This section, while indeed imposing a limitation on rights in cases where it applies, also confers and protects rights. I agree with Seaton J.A. in the Court of Appeal where he expressed this thought in these words:

This is the only section in the Act that specifically preserves the right to associate. Without it the denominational schools that have always been accepted as a right of each denomination in a free society, would be eliminated. In a negative sense s. 22 is a limitation on the rights referred to in other parts of the Code. But in another sense it is a protection of the right to associate. Other sections ban religious discrimination; this section permits the promotion of the religion.

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Later he said:

Section 22 is the only part of the Act that preserves the rights of those who would have separate schools. No valid reason has been suggested why it should be construed narrowly. On the contrary, good reason has been offered why it should not.

Those considerations in mind, I turn to the construction of s. 22, which is reproduced hereunder:

22. Where a charitable, philanthropic, educational, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin, that organization or group shall not be considered as contravening this Act because it is granting a preference to members of the identifiable group or class of persons.

It was not suggested that the respondent school was not an educational and religious organization not operated for profit, having as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by a common religion. As to the identity of the group, the majority of the Board found, and I would not question their finding, that the identifiable group is comprised of the Catholic residents in the parishes served by the school or, alternatively, those members of the Catholic faith supporting the society operating the school. Their findings in this respect are stated in paragraph 35 of the stated case:

35. The majority of the Board of Inquiry, namely the others thereof, concluded in respect to the said section 22 of the said Act that the “identifiable group” referred to in said section 22 is those members of the Catholic faith residing in the five North Shore parishes which the School serves. Alternatively, the majority concluded that the proper community may be those members of the Catholic faith who support the respondent Society which owns and operates the Catholic schools in the Vancouver area. Whichever of these two geographic limitations is appropriate, the majority of this Board believed that the persons interested are not just the pupils in the School, but are the members of the Catholic

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faith who have created the School and who support it.

I find no real difference in the alternative referred to and I would accept as a finding of fact the first definition of the group.

The group having been defined, what then is meant by the “granting of a preference to members of the group”? The Board dealt with this question in paragraphs 37 and 38 of the stated case in these terms:

37. The majority of the Board concluded that the aforementioned pattern of conduct, and even the non-renewal of Mrs. Caldwell seen in isolation, qualify as a “preference” within the meaning of that word as it is found in section 22 of the Human Rights Code.

38. The majority of the Board of Inquiry concluded that the purpose of section 22 is served by permitting the respondent to make the preference among the members of the Catholic community which it has made in this case.

In my opinion the Board made no error in law in these dispositions of the question. The purpose of the section is to preserve for the Catholic members of this and other groups the right to the continuance of denominational schools. This, because of the nature of the schools, means the right to preserve the religious basis of the schools and in so doing to engage teachers who by religion and by the acceptance of the Church’s rules are competent to teach within the requirements of the school. This involves and justifies a policy of preferring Roman Catholic teachers who accept and practice the teachings of the Church. In failing to renew the contract of Mrs. Caldwell, the school authorities were exercising a preference for the benefit of the members of the community served by the school and forming the identifiable group by preserving a teaching staff whose Catholic members all accepted and practised the doctrines of the Church. In my opinion then, the dismissal of Mrs. Caldwell may not be considered as a contravention of the Code and the appeal must fail. It follows then, that the conflict between the two legal positions asserted by the parties is resolved in favour of the respondent School.

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The respondent has argued in this Court as in the courts below and before the Board that s. 8 of the Human Rights Code in so far as it may interfere with the right of a denominational school to prefer members of its own denomination in hiring teachers is ultra vires of the Legislature of the Province. Reference is made to s. 93(1)  of the Constitution Act, 1867 , which provides:

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

It was also argued that s. 8 in so far as it affects the hiring practices of the denominational school was ultra vires as affecting freedom of religion, a subject left to the Federal Parliament.

These arguments were rejected before the Board and also in the Courts below and I need not go into these questions in any detail. The rights of denominational schools in British Columbia were very limited at the time of Confederation. It has been said that they were limited to the right to exist (see Audrey S. Brent, The Right to Religious Education and the Constitutional Status of Denominational Schools (1974-75), 40 Sask. Law Rev. 239) and it was contended that nothing in s. 8 of the Code affected any such rights. It may be added that s. 22 protects such rights in any event. I would agree with Seaton J.A. in the Court of Appeal when he said:

The final argument made by the appellants was that the Act was unconstitutional as legislation in relation to freedom of religion and as legislation contrary to s. 93(1) of the British North America Act. When s. 22 is interpreted in other than a narrow fashion, the constitutional arguments cannot be made—freedom of religion remains and the right to separate schools continues.

The appellant fails on this ground and I would answer the constitutional question in the negative.

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In conclusion I would say that the appeal must be dismissed with costs. I would not remit the matter to the Board; in my view, all essential facts were found and stated by it. The Board’s order will be restored. The respondent school is entitled to its costs throughout. There will be no costs payable to or by the interveners.

Appeal dismissed with costs.

Solicitors for the appellant, Director, Human Rights Code of British Columbia: Pearlman & Lindholm, Victoria.

Solicitors for the appellant Margaret Caldwell: Vickers & Palmer, Victoria.

Solicitors for the respondents Ian Charles Stuart, Principal, St. Thomas Aquinas High School, and The Catholic Public Schools of Vancouver Archdiocese: Farris, Vaughan, Wills & Murphy, Vancouver.

Solicitors for the respondent, the Attorney General of British Columbia: Owen-Flood & Considine, Victoria.