A school board’s request for judicial review in a human rights dispute with gay education activists is premature, the BC Supreme Court ruled on April 28.
The ruling is the latest development in a matter that arose in the fall of 2008 when the school district pulled the gay-friendly Social Justice 12 elective from its curriculum offerings. The district later reinstated the course following a number of student-led protests but required parental consent for students to take it.
Murray and the late Peter Corren filed a complaint on behalf of the students and parents of Abbotsford School District “and in particular gay, lesbian, bisexual and transgendered students and parents,” arguing that the district’s actions constituted discrimination on the basis of sexual orientation, which is contrary to the Human Rights Code.
But the school board argued that no discrimination took place and asked the tribunal to dismiss the complaint. It also contended, among other things, that the class of persons the Correns claimed to represent in their complaint was too broad.
The tribunal rejected the request for dismissal, ruling that a hearing was required to consider the competing evidence on whether there was discrimination. But it agreed with the board that the group the complaint sought to represent was overbroad and gave the Correns a March 19, 2010, deadline to file an amended complaint.
Before the Correns could file that revised complaint, the board sought a judicial review of the tribunal’s decision, alleging that the tribunal committed “jurisdictional error” in permitting the case to proceed without a clear definition of whom the complaint is supposed to represent.
Tribunal lawyer DE Paluck said her client has not yet completed its consideration of the scope of the class the complainant intends to represent – a matter that is “within the Tribunal’s special expertise.”
Granting judicial review “at this stage would preempt that process,” Paluck told the court.
The school board’s counsel, EJ Harris, maintained the review is not premature.
Establishing discrimination requires “establishing a nexus between the conduct complained of and the persons complaining of that conduct,” Harris told the court. Without knowing “who has allegedly been discriminated against… it is impossible to know whether there has been discrimination.”
But BC Supreme Court Justice Lynn Smith ruled that the tribunal’s decision has not led to “a complaint without complainants,” pointing out that Murray Corren is a complainant.
The court upheld the tribunal’s initial finding that both Correns were “appropriate representatives” even though they were neither parents nor students in the school district.
Moreover, as the tribunal ruled, the Correns had been involved in the development of Social Justice 12 and had an interest in its implementation, the court found.
Smith noted that both the tribunal and the Correns based their submissions on the expectation that the school board could bring another application to dismiss the complaint once the redefined group to be represented has been filed.
That is an option the board “must be afforded,” Smith ruled.