Appeal from dismissal of claim against public school board for breach of freedom of religious expression in relation to proselytizing on school grounds

Appeal from dismissal of claim against public school board for breach of freedom of religious expression in relation to proselytizing on school grounds.

Administrative law – Charter of Rights and Freedoms – Compliance with legislation – Decisions of administrative tribunals – Discrimination – Freedom of Religion – Human Rights – Judicial Review – Parental Rights – Policies – School Boards – Schools

Bonitto v. Halifax Regional School Board, [2015] N.S.J. No. 357, 2015 NSCA 80, August 26, 2015, Nova Scotia Court of Appeal

The appellant’s children attended Park West School. Park West School was a public school operated by the respondent Halifax Regional School Board.

The appellant, a fundamentalist Christian, distributed gospel tracts to students and others on Park West School’s premises during school hours. The Board’s formal policy, enacted pursuant to the Education Act, S.N.S. 1995-96, c. 1, stated that distribution of materials at a school required the principal’s approval and that religious instruction on school premises could only occur outside the regular school day. The Park West School principal declined to approve the appellant’s distribution of materials and requested he desist.

The appellant sued the Board for breach of his Charter right of freedom of religion. The appellant’s action was dismissed.

On appeal, the appellant alleged the trial judge erred in dismissing the action on the basis the Board breached his Charter right of freedom of religion, which includes “teaching and dissemination.”

The Court of Appeal dismissed the appeal. It concluded the Board’s decision was determined based on the Charter analysis applicable to the exercise of administrative discretion set out in Doré v. Barreau du Québec, 2012 SCC 12, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12. That analysis required the court to determine whether the decision maker proportionately balanced the governing statutory objectives and the applicable Charter values. If the balance is proportionate, the decision is upheld as reasonable. If not, the decision is set aside as unreasonable. In these circumstances, the court noted that the Board had a responsibility of neutrality in religious matters, meaning it must express no preference in religious matters in order to preserve a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally. The Board’s duty of neutrality tempered the appellant’s Charter right of freedom of religion. On that basis, the decision to prohibit the appellant from distributing religious materials on public school premises during school hours was proportionate and within the range of reasonably acceptable outcomes.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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