The Court dismissed the appeal by the Human Rights Commission (the “Commission”) from a decision of the Human Rights Tribunal finding that the complainant’s disciplinary suspension from school for profanity did not constitute discriminatory conduct. Although the complainant suffered from Williams Syndrome and was mentally retarded, there was no evidence to show that profanity was a characteristic common to persons with Williams Syndrome and suspensions were regularly used by the school as a form of discipline and 8 to 10 students would be suspended during any school year. As long as suspensions were used in a non-discriminatory manner, they were permissible and no prima facie case of discrimination had been made out.

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Schools – Suspension of students – Human Rights complaints – Discrimination – Disability – Judicial review – Standard of review – Correctness – Evidence

Saskatchewan (Human Rights Commission) v. Prince Albert Roman Catholic School Division No.6, [2008] S.J. No. 434, 2008 SKQB 227, Saskatchewan Court of Queen’s Bench, May 28, 2008, D.B. Konkin J.

The Human Rights Commission (the “Commission”) appealed a decision by the Human Rights Tribunal dismissing a complaint of discrimination and finding that the complainant’s disciplinary suspension from school for profanity did not constitute discriminatory conduct. The complainant suffered from Williams Syndrome, resulting in anxiety, acute hearing, limited speech and significant mental retardation. He had been suspended on two previous occasions for using profanity and hitting a teacher. The school had made several accommodations for him, including his own educational assistant, an exclusive time-out room, and a special education consultant available to advise and assist in meetings. On this third suspension, the parents complained that this suspension was discriminatory as it was for behaviour related to his disability.

The complaint was dismissed by the Human Rights Tribunal (the “Tribunal”) concluding that the imposition of a disciplinary suspension did not constitute discriminatory conduct. The Commission appealed this decision.

On appeal, the Court found that the standard of review of the Tribunal’s decision was correctness. The Court then considered whether or not the Tribunal erred in determining that the Commission failed to establish a prima facie case of discrimination. The Commission had the evidentiary obligation of proving on a balance of probabilities that: (1) the complainant had a disability; and (2) his disability was a factor in the imposition of the suspension. While the fact that the complainant had a disability was clear and not in dispute, there was no evidence that his disability was a factor in the imposition of the suspension and no evidence was presented to the tribunal to show that profanity was a characteristic common to persons with Williams Syndrome. The evidence as to where profanity was learned and circumstances in which profanity was used by the complainant were not peculiar to Williams Syndrome children but similar for all children. It was clear that suspension was an available disciplinary tool by the school and was regularly used in certain cases and 8 to 10 students would be suspended during any school year. No prima facie case for discrimination had been established and, in the circumstances, it was not necessary to determine whether the respondent school had accommodated to the point of undue hardship.

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