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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 22 July 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1.1 The communication, initially dated 17 November 2005, is submitted by
Grant Tadman and Jeff Prentice. They claim to be victims of violations by
Canada of article 2, paragraphs 1, 2 and 3; article 26 and article 50 of the
Covenant. They are represented by counsel, Mr. Renton Patterson and Mr.
Brian Forbes.
1.2 On 29 September 2006, the Special Rapporteur on New Communications
decided to separate consideration of the admissibility and merits of the
case.
THE FACTS AS PRESENTED
2.1 The alleged victims are teachers in Ontario, Canada. In 1986, Bill 30
was passed by the province of Ontario, granting full public funding to the
separate Roman Catholic elementary and high school system in Ontario. In
June 1987, in Reference Re Bill 30, An Act to Amend the Education Act
(Ontario), the Supreme Court of Canada held that in light of Canada's
constitutional structure, the amendment was permissible. The Ontario
Education Act, as amended, also provided that for a ten-year period public
school teachers who became surplus to public school requirements as a result
of a movement of students to the newly-funded Catholic schools could be
transferred, as "designated teachers", to a substantially similar position
in the new system. [FN1] Thereafter, by provisions which were not before the
Supreme Court on the occasion of the reference, the Act provided that in
order to maintain the distinctiveness of the separate system, school boards
could require as a condition of employment that teachers "agree to respect
the philosophy and conditions of Roman Catholic Separate Schools in the
performance of their duties", [FN2] although teachers employed by separate
schools "will enjoy equal opportunity in respect of their employment,
advancement and promotion".[FN3]
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[FN1] Section 135 of the Act.
[FN2] Section 136(1).
[FN3] Section 136(2).
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2.2 In December 1997, in Daly v Attorney-General, the General Division of
the Ontario Court struck down the equal opportunity provision of section 136
of the Act on the ground that it infringed the right to self-determination
guaranteed to denominational schools at the founding of the Union of Canada
by section 93(1) of the Constitution Act 1867. [FN4] As a result, separate
school boards were permitted to prefer co-religionists in employment,
advancement and promotion. On 27 April 1999, the Ontario Court of Appeal
dismissed an appeal from the General Division's decision, and in October
1999, the Supreme Court of Canada denied leave to appeal.
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[FN4] Section 93(1) provides: "Education : 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".
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MR. TADMAN'S CASE
2.3 From 1975, Mr. Tadman as a teacher provided guidance and physical
education in the public school system. In 1986, Mr. Tadman was transferred
from the North York Board of the public school system to the Metropolitan
Separate School Board. In June 1987, September 1987, December 1989, June
1991 and September 1991 he was re-assigned to different posts. He states
that over this period he was never given a permanent position to teach in
the two areas in which he was certified, as he had earlier had in the public
system. He also details four occasions where he states to have made
reasonable requests in order to obtain a permanent teaching post, but was
turned down for unjustified reasons. He further states that he was subjected
to discriminatory treatment on account of his non-Catholic background. He
states in this respect that he was subjected to verbal harassment of staff
and students, not given appropriate credit for teaching experience and
qualifications, prevented from discussing certain health issues with
students, and denied the opportunity to be placed in the guidance department
as he might make inappropriate comments due to his non-Catholic background.
2.4 As to remedies exhausted by him, in September 1987, Mr. Tadman asked the
North York Board, as his former employer, to take him back as for reasons of
conscience he could not continue to work in the separate school system.
Following the Board's refusal to do so, he filed a grievance before a Board
of Arbitration. On 17 August 1988, after hearing evidence, the Board of
Arbitration rejected the grievance, finding that (i) the time span after
which he had objected to his transfer was too great to be reasonable; (ii)
he had had a "change of heart" concerning his ability to work in the
separate system; (iii) the evidence "falls far short of demonstrating that
[he] was inhibited from exercising his personal religious beliefs" by the
separate school board; and (iv) according to his own evidence he was
exempted from religious activities in the school, and "there is nothing in
the evidence to suggest that this caused him any difficulties". An appeal to
the Divisional Court was dismissed, with the Court finding that "the Board
found as a fact that the Separate School Board had not interfered with his
personal freedom of conscience, thought, belief or religion."
2.5 In 1992, Mr. Tadman applied to file a complaint with the Ontario Human
Rights Commission. In April 1992, the Commission responded that it lacked
jurisdiction to deal with the matter. In October 1992, the Ontario Ombudsman
advised that it would not investigate the complaint, concurring with the
Commission's position. In February 1994, he filed a complaint with the
Ontario Human Rights Commission alleging discrimination on the basis of
creed against the Metropolitan Separate School Board, denial of a position
in the Board, and harrassment. No information is available on the outcome of
this complaint. Also in February 1994, he filed a note of grievance to the
teachers' union against the Board, alleging denial of equal employment
opportunities and subjection to discriminatory statements by Board
employees, including teachers at his school. In May 1994, the union decided
it would pursue one aspect in relation to whether he should be assigned to a
different school within the Board. No information is available on the
outcome of this complaint.
2.6 In June 1994, he filed a complaint with the Ontario Labour Relations
Board against his union, alleging breach of the latter's duty of fair
representation. In August 1994, that Board dismissed his complaint for want
of jurisdiction over disputes between a teacher and the union. In November
1994, he sued the School Board in the Ontario Court (General Division)
alleging discrimination in employment, but specifically excluding the
general statutory position of the separate schools. On 10 August 1995, the
Court struck out the claim on the basis that Mr. Tadman had failed to
exhaust the mandatory arbitration process. No appeal was taken from that
decision.
2.7 On 29 October 1999, the Human Rights Committee declared inadmissible, on
the basis that the authors could not claim to be victims of the alleged
discrimination, a communication by Mr. Tadman and others, alleging
violations of the same provisions of the Covenant as invoked here.[FN5] The
Committee noted that "the authors while claiming to be victims of
discrimination, do not seek publicly funded religious schools for their
children, but on the contrary seek the removal of the public funding to
Roman Catholic separate schools. Thus, if this were to happen, the authors'
personal situation in respect of funding for religious education would not
be improved. The authors have not sufficiently substantiated how the public
funding given to the Roman Catholic separate schools at present causes them
any disadvantage or affects them adversely." [FN6]
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[FN5] Communication No. 816/1998, Decision adopted on 29 October 1999.
[FN6] Ibid., at 6.2.
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MR. PRENTICE'S CASE
2.8 Mr. Prentice taught mathematics and science part-time in a Catholic high
school in Ottawa in the 1997-1998 school year. In 1998, he applied but was
refused a permanent position. He states that this was on the basis that he
was not a practicing Catholic in view of a note received from the School
Board that he was not able to so attest.
THE COMPLAINT
3.1 The authors allege that the facts disclose discrimination on the ground
of religious belief, contrary to article 26 of the Covenant on three bases.
Firstly, they claim to have suffered religious discrimination because of the
hiring and promotion practices applicable in Ontario's separate school
system. Secondly, they contend that public funding of Roman Catholic schools
is in breach of the provision in article 26. Thirdly, Mr. Tadman alleges
that while he was a teacher in a Catholic secondary school, he was
discriminated against for not being a Roman Catholic. The authors invoke the
Committee's Views in Waldman v Canada [FN7] in support of these arguments.
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[FN7] Communication No. 694/1996, Views adopted on 3 November 1999.
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3.2 The authors also contend that in light of the jurisprudence of the State
party's courts, they are without any effective remedy contrary to article 2
of the Covenant. Finally, the authors argue that the existence in Ontario of
the alleged discriminatory provisions amounts to a breach of article 50 of
the Covenant, extending equal protection in federal States.
STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY
4.1 By submission dated 18 September 2006, the State party contested the
admissibility of the communication, arguing that it is inadmissible (i)
ratione materiae; (ii) as an abuse of the right of submission on account of
delay; (iii) for absence of a victim; (iv) for failure to exhaust domestic
remedies in respect of Mr. Tadman's harassment claims; and (v) for
insufficient substantiation of Mr. Tadman's harassment claims.
4.2 The State party submits that the communication is incompatible ratione
materiae with article 18, paragraph 4, of the Covenant, protecting the
rights of persons to have their children educated in conformity with their
religious convictions. Preserving the denominational character of a
religious school requires, as has been recognized by the courts, the ability
to hire teachers preferentially on the basis of religion. All religious
schools in Ontario, regardless of denomination, have this right,
consistently with article 18, paragraph 4.
4.3 The State party submits that the authors have offered no convincing
explanation for the delay in submission of the communication, rendering it
an abuse of the right of submission. Even taking the date in October 1999 as
the latest possible relevant date since the refusal of the Supreme Court to
grant leave to appeal the Daly decision, over six years have passed until
submission of the communication. No justification has been provided for this
delay, which is excessive and hinders the State's ability to determine the
certain facts and circumstances of the case which lie outside the records of
either federal or Provincial archives.
4.4 The State party also argues, comparing the text of the communication
with that already submitted by the author in 1999, that the authors' true
complaint remains that Catholic separate schools should not be publicly
funded, rather than the ostensible allegation of preferential hiring of
Roman Catholics in separate school boards. The Committee rejected the
author's standing on this issue in its decision on the original
communication. This conclusion remains applicable, as neither author has
indicated how public funding violates any of their Covenant rights. The
State party also argues that re-submission of the same essential complaint
amounts to an abuse of the right of submission.
4.5 The State party also argues that Mr. Tadman has not shown that he has
exhausted domestic remedies with respect to the alleged harassment. The Daly
decision did not foreclose the issues raised in the communication, as that
judgment held only that Catholic school boards are permitted to
preferentially hire and promote Catholics, but only to the extent necessary
to preserve the Catholic nature of the Catholic schools. This rule does not
cover the harassment alleged; on the contrary, section 5 of the Ontario
Human Rights Code specifically guarantees freedom from harassment in the
workplace on account of creed. Mr. Tadman has not shown that he fully
pursued his rights under the Code. Moreover, in Mr. Tadman's action in the
civil courts, he specifically disclaims the issue that would later be
resolved in the Daly case.
4.6 Lastly, the State party argues that the two incidents of harassment
alleged to have occurred would, even if proven, not amount to discrimination
in breach of article 26. In particular, there is nothing inappropriate about
children in a religious school asking teachers about religious practices. In
addition, Mr. Tadman filed an Education Act grievance and human rights
complaint on these issues. The Board of Arbitration found the claims
unsubstantiated, and his review of this decision was dismissed. In these
circumstances, the Committee should defer to domestic factfinding.
AUTHORS' COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 By letter of 17 November 2006, the authors responded, disputing the
State party's submissions. As to domestic remedies, the authors argue that
in light of Daly it would be futile to pursue further proceedings. The
authors also dispute that article 18, paragraph 4, of the Covenant covers a
right to employ members of a religious denomination in schools of that
denomination and argue that it does not permit discrimination against
specific teachers. The authors, again invoking Waldman, argue that the
establishment of the separate system made it inevitable that teachers in the
State system would need to be transferred to the separate system, in view of
the numbers of transferred students.
5.2 As to the question of delay, the authors argue that the delay in
question is imputable to Canada and the absence of appropriate response to
the Views in Waldman. The authors also dispute that the passage of time has
prejudiced the State's capacity to resolve the issues in question. In regard
to their status as victims, the authors allege that they are not agitating
the same question as was decided in the original Tadman communication, but
that instead they are claiming personal injury in the form of discrimination
suffered as teachers.
SUPPLEMENTARY SUBMISSIONS OF THE STATE PARTY
6.1 On 11 April 2007, the State party responded to the authors' comments.
The State party stresses that Waldman, repeatedly invoked by the authors, is
irrelevant in the present case. Waldman addressed the funding of
denominational schools, and did not in any way address preferential hiring
of co-religionists as teachers in denominational schools. By focusing almost
exclusively on Waldman and the issue of funding, the authors seek to reargue
the different question of public funding for Catholic schools in Ontario, on
which the authors have no standing.
6.2 The State party stresses that all denominational schools in Ontario,
regardless of denomination, have the right to preferentially hire on the
basis of religion in order to preserve the denominational character of their
schools, consistent with article 18, paragraph 4, and the values of the
Covenant. Nor has Mr. Tadman shown any link between preferential Catholic
hiring and the alleged harassment suffered by him. In addition, the passage
of time has been prejudicial: the two examples Mr. Tadman has cited occurred
almost twenty years ago with anonymous students, making it impossible now to
conduct proper investigations.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
7.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
7.2 The Committee notes its decision on the earlier communication presented
by the author (Tadman No. 1) to the effect that the author did not have
standing as a victim to challenge issues of public funding of denominational
schools in Ontario. To the extent that the present communication addresses
the same issues which the Committee decided in Waldman, the communication is
inadmissible under article 1 of the Optional Protocol.
7.3 As to Mr. Tadman's own circumstances, the Committee notes that in the
civil proceedings instituted by him in the Ontario courts, he specifically
disclaimed any challenge to the general issue of preferential treatment for
co-religionists in denominational schools (sections 135 and 136 of the Act).
Instead, he confined himself to raising his particular personal difficulties
in his own workplace. The Court decided that these difficulties had not been
raised in the earlier arbitration, and Mr. Tadman was therefore not entitled
to raise them presently. Mr. Tadman did not appeal against this decision. It
must therefore be concluded that Mr. Tadman's communication is inadmissible
under article 5, paragraph 2(b), of the Optional Protocol for failure to
exhaust domestic remedies. The Committee also notes the earlier findings of
fact reached by the Board of Arbitration and the Divisional Court (see para
2.4, supra) that Mr. Tadman did not in fact suffer any limitation of his
freedom of conscience, thought, belief or religion. The Committee refers to
its previous jurisprudence in Keshavjee v Canada, [FN8] pursuant to which it
defers to such findings of fact reached by the domestic authorities, unless
manifestly arbitrary or amounting to a denial of justice. This part of Mr.
Tadman's communication is therefore inadmissible also under article 2 of the
Optional Protocol, for insufficient substantiation.
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[FN8] Communication No. 949/2000, Decision adopted on 2 November 2000.
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7.4 As to Mr. Prentice, the Committee notes that the communication discloses
no effort by the author to contest or challenge before the State party's
authorities or the courts the alleged basis for the refusal of his
promotion. The author having failed to make a reasonable effort to
substantiate the alleged violation of his rights before the national
authorities, Mr. Prentice's communication must be held to be inadmissible,
under article 5, paragraph 2(b), of the Optional Protocol for failure to
exhaust remedies.
7. The Committee therefore decides:
(a) that the communication is inadmissible under articles 1, 2 and 5,
paragraph 2(b), of the Optional Protocol;
(b) that this decision shall be communicated to the authors and, for
information, to the State party.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
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