Separate But Not Equal:
Casagrande v. Hinton Roman Catholic Separate School District No. 155
In this case, the applicant is looking for an order of certiorari from the Alberta Court of Queen’s Bench to review and overrule a previous ruling administered by the Board of Reference. The applicant, at the time unmarried, was hired by the Board of Reference in June of 1983 to teach French in Hinton. The applicant was aware of the Board’s hiring practices and philosophy as they related to the Catholic faith; specifically, that since sex outside of marriage was forbidden by the Roman Catholic Church, any potential or current employee who violated those religious standards would not be eligible for employment within the Board. At the time she accepted the position with the Board, the applicant was aware that she was pregnant as a result of sex outside of marriage. She chose not to inform the Board of Reference of this fact until well into the school year, past the beginning of her employment. The Board considered firing the applicant but instead offered her a period of maternity leave. Upon beginning the maternity leave the applicant was informed by the Board of Reference, both verbally and in writing, that any further sexual intercourse outside of marriage would result in her employment being terminated. The applicant gave birth in 1984 and returned to her previously held position within the Board.
In 1985, the applicant again became pregnant through extramarital sex. She again applied for a maternity leave but was denied; she subsequently applied for an extended leave of absence, but was again denied. The applicant then received her notice of termination from the Board of Reference. She was given a hearing before the Board to state her case, after which the termination was upheld. The Board ruled that the applicant should be fired due to the extramarital sex, not due to the resultant pregnancy. They argued that the denominational rule around no premarital sex applied equally to men and to women.
In turn, the applicant sought an order of certiorari on the basis that the Board of Reference violated her Section 15 rights under the Charter of Rights and Freedoms - that which grants each individual the right to equal treatment before and under the law, without discrimination based on a variety of issues including sex and gender. The applicant additionally put forward that Section 29 of the Charter - that which states that denominational rights, when appearing to go against the Charter, do not violate the charter - should not apply in her particular case. She also argued that she was terminated on the basis of her pregnancy, not the premarital sex; the grounds for termination were, therefore, discriminatory. Finally the applicant stated that she was not given fair treatment by the Board of Record as they denied both her maternity leave and extended leave of absence prior to giving her a hearing, indicating that they were showing prejudicial, not impartial, treatment before the hearing.
Justice McFayden examined each of the applicant’s claims and found a variety of responses. The court cited Essex County R.C. Sep. Sch. Bd. and Porter (1978) as precedent in finding that the right to establish a separate school board based on religious denominations includes the right to dismiss teachers for denominational causes as well. This case, which ruled in favour of Roman Catholic school boards being able to fire employees who enter into civil marriages, notes that separate school boards must have the same powers as common school boards, including hiring and firing standards and practices, and that “serious departures from denominational standards by a teacher cannot be isolated from his or her teaching duties since within the denominational school religious instruction, influence and example form an important part of the educational process”. (Zuber, J.A.) The court also cited the ruling of the Supreme Court of Canada in Caldwell v. Stuart (1984), concerning the refusal of a Roman Catholic school board to renew the contract of a Catholic teacher due to her marrying a divorced man in a civil ceremony. Here the court ruled on the spiritual foundation of a Catholic school board as separate and distinct from those of a public board. They found that, unlike in a public school, teachers in a Catholic school are required to, “in imitation of Christ, [...] 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 [...] by his or her conduct within and without the school”. (McIntyre, J.) This upholds the powers of Section 29, allowing the doctrinal standards of the Catholic faith to directly impact the hiring, employment, and firing of employees within a Catholic school board.
With regard to the legal tensions between Sections 15 and 29 of the Charter, the court also referred to Caldwell v. Stuart. Here it stated precedent to establish that Section 29 does override the rights provided not only by Section 15, but also render inapplicable any rights granted by the Individual’s Rights Protections Act - a provincial law in Alberta, where this case was heard - to the extent that they related to the rights of a separate school board to dismiss employees for denominational causes.
The court then turned its attention to the applicant’s statement that her pregnancy, not the timeline of her sexual activity, was the result of her dismissal and thus rendering the Board of Reference’s decision in violation of Section 15. The court called Judy Sentes as a witness in the area of “scandalous behaviour” in school boards based in Roman Catholic teachings. Of note is the fact that the CANLII article does not state who Mrs. Sentes is, or what particular expertise she offers in this area so as to be called as a witness. Sentes offered to the court that the state of pregnancy, ipso facto, is acceptable in denominational schools as long as it is portrayed in a positive light for students - implying, thus, that the pregnancy must be presented as meeting the standards of acceptability delineated by the Catholic Church. Sentes continues to state that it is not the fact of pregnancy that is the cause for dismissal, but the lifestyle choices that led to the pregnancy that violate the denominational clauses of employment held by the Board of Record. Several other superintendents of education associated with the Board also spoke in the affirmative to support this statement, and the court was inclined to agree.
Next, the court examined the applicant’s claim of adverse effect discrimination. In this case, adverse effect discrimination occurred as an indirect result of the phrasing of the policy around premarital sexual activity. The policy, ostensibly, applies to both men and women. However men do not show any blatant physiological signs of having had any type of sexual interactions, whether within or outside a marriage. Women, on the other hand, clearly demonstrate through the physical signs of pregnancy the fact that they have had sex. Thus, argued the applicant, the policy showed adverse effect discrimination against women because a man could not, without considerable investigative effort, ever be found to have been in violation of the policy. Although the court does admit that evidence of violating the policy is more evident in women than in men, they ultimately ruled that the policy was not intentionally designed to discriminate against women on the basis of the sex or gender.
Finally, the court addressed the applicant’s claim that her original hearing before the Board of Reference was unfair due to their denying her a leave of absence before her review hearing. The court reviewed the relevant section of the School Act, S. 89 (1), which states that school boards must follow three tenets when terminating employees: that notice be given not less than 30 days prior to the date of effective termination; that the reason for termination is clearly communicated to the employee; and that they act reasonably in their capacity as employers. The court found that school board disciplinary hearings are not subject to the same standards as those of independent tribunals, due to the fact that they are not independent - they are the employer. Although the school board must act fairly when terminating a teacher, it is not and cannot be considered as an impartial tribunal created to judge a dispute between two unrelated parties. Further, the court noted that the Board of Reference’s decision to turn down the request for a leave of absence was not permanently binding; they had the option to review and repeal their decision at any time. Thus the court ruled that the Board of Reference met all its requirements in processing the termination of the applicant. As the Board of Reference was found to have made no errors in its judgement, the court ruled that the application for an order of certiorari be denied.
As an employee of North America’s largest separate school board - the Toronto Catholic District School Board (TCDSB) - I was curious as to how the ramifications of the Casagrande v. Hinton case would apply to the denominational policies of my own board. An examination of the TCDSB’s policies made publicly available on its website make multiple references to inclusivity, progressive hiring practices, consideration of women, persons with disabilities, people of colour, and the FNMI population. However, throughout all of the equity policies, the term “denominational rights” appears multiple times at the onset of the policy, ostensibly as a blanket statement reserving the Board’s rights to terminate any employee who does not meet their denominational standards, as exemplified in the result of Casagrande v. Hinton. This philosophy is rooted in Policy H.M. 08, “Catholicity and School Support”, which states that “all teaching personnel and others who work directly with children shall be Catholics unless otherwise approved by the TCDSB or specifically exempted by legislation.” Of note is the fact that the legislation that would provide the aforementioned exemption is not referenced; also, it is only those who work “with children” that must adhere to this policy. This seems to mirror the arguments provided in Essex County; that teachers within a denominational school board have an intrinsically different set of spiritual responsibilities towards children than those teachers in public schools. However, this raises the question of those TCDSB employees who are not directly involved with children - the payroll department, logistics, materials management, and so on. The policy website is unclear as to the denominational requirements of these employees. Again, this nebulousness with regards to employees who work directly with children as opposed to those who do not is left open in Policy H. T.01, titled “Qualifications - Catholicity”. Prior to an offer of employment being made by the TCDSB, the applicant must be recommended by a priest with pastoral responsibility - meaning a priest actively involved in leading a Catholic church congregation - “through a favourable report in the prescribed form on the applicant’s commitment to the Catholic faith”. However, this pastoral reference letter applies only to those “positions which relate directly to students”. The language around “relating directly” is unclear. A teacher, who spends their entire day in the classroom, obviously meets this standard; a principal, secretary, guidance counsellor, or other administrative staff do as well. So too would custodians, cafeteria workers, and repair workers who are regularly present on school property and interact with students. Yet the further one advances in the employment hierarchical structure, the further one becomes removed, arguably, from day-to-day interactions with students. Is the Director of Education someone who “relates directly” to students? Are financial consultants at the TCDSB headquarters required to get pastoral reference letters to meet a condition of employment? The information provided from the board’s website does little to shed any light on these discrepancies.
Policy H.M. 11, “Employment Equity”. This policy references Subsection 19(1) of the Ontario Human Rights Code, the Constitution Act of 1867, and the Education Act in stating that Code “shall not be construed to adversely affect any right or privilege respecting separate schools, enjoyed by separate schools or their supporters [...] the Board affirms and maintains these rights”. In terms of its hiring practices, the TCDSB policy H.M. 40, “Fair Practice in Hiring and Promotion” states that along with hiring the best, most qualified individuals who align with its Multi-Year Strategic Plan, any and all hires are “subject to its denominational rights”. This suggests that a teacher, who works directly with children and meets all the professional requirements of a teacher in the public board, could be terminated by the TCDSB if they were found to be in violation of a specifically Catholic precept within a schooling context. If that teacher were to cite discrimination policies in their favour, they would look up Policy H.M. 24, “Catholic Equity and Inclusive Education Policy”. Again the policy states that the TCDSB is “committed to the elimination of discrimination as outlined in Ontario’s Equity and Inclusive Education Strategy”. However, it continues by stating that it applies this provision “in a manner which is consistent with the exercise of the Board’s denominational rights [...] as recognized in Section 19 of the Ontario Human Rights Code”. The next sentence in this policy states in full: “Where there is an apparent conflict between denominational rights and other rights the board will favour the protection of the denominational rights”. This section could be considered as being naturally discriminatory towards TCDSB employees who fall into two categories - devout, practicing Catholics who exemplify the faith as positive role models, but who are also in violation of doctrinal requirements such as marital status or sexual orientation. Divorce, which in the Catholic Church results in immediate excommunication and inability to participate in Mass, is evidently not as significant a talking point amongst which persons are “Catholic enough” to be board employees, but sexual orientation is. This creates a divide between what are in theory denominationally equal offences, but which are in practice enforced with considerably different levels of tolerance. The issue of adverse effect discrimination seems to be at play here as well. A couple married as man and woman would, under TCDSB policy, be allowed to have employment as teachers without any issue. However, someone in a same-sex marriage could potentially feel pressure to not disclose either their sexual orientation or marital status for fear of recrimination. This self-censure could be construed as discrimination - yet could be supported in some Catholic boards, as suggested by the ruling in Casagrande v. Hinton.
The debates around the continued usefulness of a separate Catholic school board have long consumed Canadians. In Ontario the debate has powerful proponents on both sides, both of which could conceivably cite Casagrande v. Hinton as evidence to support their respective causes. Irregardless of which direction the debate will move in future, it is certain that Casagrande v. Hinton, and other similar rulings, will play crucial roles in determining the future of publicly-funded Catholic education in Ontario.
WORKS CITED
Casagrande v. Hinton Roman Catholic Separate School District No. 155 (1987), CanLII 3358 (AQ QB)
Caldwell v. Stuart, 1984 CanLII 128 (SCC), [1984] 2 S.C.R. 603, [1985] 1 W.W.R. 620, 15 D.L.R. (4th) 1, 85 C.L.L.C. 17,002, 6 C.H.R.R. D/2643, 56 N.R. 83 [B.C.]
Essex County R.C. Sep. Sch. Bd. and Porter (1978), 1978 CanLII 1323 (ON CA), 21 O.R. (2d) 255, 89 D.L.R. (3d) 445
TCDSB Policies and Procedures. Toronto Catholic District School Board. https://www.tcdsb.org/Board/Policies/Pages/Default.aspx
