The majority of the Supreme Court of Canada allowed the appeal of a B.C. Court of Appeal decision setting aside the decision of the B.C. Supreme Court which quashed a school board resolution declining to approve three books depicting same-sex parented families as supplementary learning resources for use in kindergarten/grade one classrooms. The majority concluded that the School Board’s decision was unreasonable in the context of the educational scheme laid down by the legislature. The question whether the books should be approved as supplementary learning resources was remanded to the Board’s consideration according to the criteria laid out in the curriculum guidelines and the broad principles of tolerance and non-sectarianism underlying the School Act, R.S.B.C. 1996, c. 412.

28. January 2003 0

Administrative law – School boards – Powers and duties – Selection of books – Statutory provisions – Judicial review – Standard of review – Reasonableness

Chamberlain v. Surrey School District No. 36, [2002] S.C.J. No. 87, Supreme Court of Canada, December 20, 2002, McLachlin C.J. and L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

The appeal concerned the judicial review of a discretionary educational policy decision of an elected school board not to approve three books as complementary “educational resource material” for the kindergarten and grade one curriculum in the Surrey School District. The three books in question depicted parents in same-sex relationships. The refusal to approve the books was a discretionary educational policy decision and did not concern whether or not the books could be approved as “library resources”; it concerned only the potential classroom use of the particular books. The British Columbia Supreme Court quashed the Board’s resolution, finding the decision offended s. 76 of the School Act because members of the Board who had voted in favour of the resolution were significantly influenced by religious considerations. The B.C. Court of Appeal set aside the decision on the basis that the resolution was within the Board’s jurisdiction.

McLachlin C.J. and L’Heureux-Dubé, Iacobucci, Major, Binnie and Arbour JJ. concurring concluded that the pragmatic and functional approach points to reasonableness as the appropriate standard of review. The School Board is an elected body and a proxy for parents and local community members, which suggests that some deference is owed. However, the absence of a privative clause; the clear commitment of the School Act and the Minister to promote tolerance and respect for diversity; and the fact that the problem before the Board had a human rights dimension, all militated in favour of a stricter standard of review.

The School Act’s insistence on secularism and non-discrimination lay at the heart of the case. The Act’s requirement of secularism in s. 76 did not preclude decisions motivated in whole or in part by religious considerations, provided that they were otherwise within the Board’s powers. The Board, however, had to act in a way that promoted respect and tolerance for all of the diverse groups that it represented and served. The majority held that the Board’s decision was unreasonable because the process through which it made its decision took the Board outside its mandate under the School Act. First, the Board had violated the principles of secularism and tolerance in s. 76 when, instead of proceeding on the basis of respect for all types of families, the Board proceeded on an exclusionary philosophy, acting on the concern of certain parents about the morality of same-sex relationships, without considering the interests of same-sex parented families and the children who belong to them in receiving equal recognition and respect in the school system. Second, the Board had departed from its own regulation with respect to how decisions on supplementary resources should have been made, which required it to consider the relevance of the proposed material to curriculum objectives and the need of children of same-sex parented families. Third, the majority held that the Board had applied the wrong criteria. The Board had failed to consider the curriculum’s goal that the children at the grade one level be able to discuss their family models and that all children be made aware of the diversity of family models in society. Instead, the Board had applied a criterion of necessity, which was inconsistent with the function of supplementary resources in enriching children’s experience through the use of extra materials of local relevance. The Board had erred in relying on concerns about cognitive dissonance and age-appropriateness which were foreclosed by the curriculum in the case. The majority remanded the decision of whether to approve the books to the Board.

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