An Alberta law barring teachers from serving as school trustees is not discriminatory, the Supreme Court of Canada has ruled.
In Alberta, the
Local Authorities Election Act
sets out the qualifications someone must have in order to run for election as a school trustee. Before 2004, it stipulated school employees could not run for election as a school trustee in the jurisdiction in which they were employed. If someone did run in their own jurisdiction, she was required to take a leave of absence or resign. School employees were free to run in other jurisdictions without restrictions.
In 2004, after a bitter teachers’ strike, the provincial government amended the act by adding a provision stating that any employee of a school district or division, charter school or private school in Alberta was prohibited from running for a school trustee of any school board in the province, unless she went on leave or resigned. The amendment went on to say if any school employee is elected, she will be considered to have resigned her employment. If not elected, the employee is allowed to return to work.
Three teachers who were also school trustees on school boards that didn’t employ them, along with another who intended to run, challenged the new law on the grounds it violated their rights to freedom of expression and equality under the law as guaranteed under the
Canadian Charter of Human Rights and Freedoms
as it takes away their opportunity to participate in the political process and discriminates against school employees, particularly teachers.
The Alberta Court of Queen’s Bench found the law to be a violation, as the disparity between the salaries of school trustees and teachers was large enough that requiring teachers to resign from their employment “rendered illusory any opportunity for teachers to run for office as school trustee.”
However, the Alberta Court of Appeal found running in a school board election was “a statutory form of expression” and not a fundamental right under the charter. It also found the amendments did draw a distinction based on employment status, but this distinction was not a prohibited ground under the charter nor did it “bring into play prejudice, stereotyping or historical disadvantage” or harm the dignity of teachers. The Court of Appeal reversed the trial court’s decision and found the new amendments did not violate any charter rights.
The teachers appealed to the Supreme Court of Canada, saying running for and serving as a school trustee are “expressive activities,” which provide the chance for “political debate, persuasion and voting on the governance, funding and management of the public and separate education systems.” Preventing teachers from running not only denied them of the right to express, but also denied others of the right to decide whether they were the best candidate or not.
The teachers used municipal employees as an analogous group in their discrimination claim, as in Alberta they were allowed to run for municipal councils in other jurisdictions, much as school employees were before the amendments.
The court agreed the amendments for the most part exclude school employees from seeking positions as school trustees. However, it found this exclusion doesn’t interfere with their ability to express themselves on the education system.
“The amendments may deprive (teachers) of one particular means of expression, but it has not been demonstrated that, absent inclusion, they are unable to express themselves on education issues,” said Justice Marshall Rothstein. “School employees may express themselves in many ways other than through running for election as, and serving as, a school trustee.”
The court found though the amendments limited “a particular channel of expression” and created “exclusion from the statutory regime,” they didn’t infringe their freedom of expression nor violate a protected freedom.
The court also found though the amendments did give differential treatment to school employees from other groups such as municipal employees, the treatment was not based on “an enumerated or analogous ground.”
School employees can’t be considered a minority exposed to discrimination, the court ruled, and occupational status was not a “constant marker of suspect decision making or potential discrimination.”
“The ban on school employees running for office and serving as school trustees does not prevent them from expressing views on any subject, let alone education,” Rothstein said. “What they are being deprived of is not freedom of expression but a claimed right to take part in the management of Alberta’s local education systems. In my view, that is not what is contemplated by freedom of expression.”
One of the nine judges disagreed with the decision, finding the teachers’ freedom to expression on educational matters was independent of the statutory regime and the amendments did interfere with their ability to exercise this freedom.
“Seeking and holding office as a school trustee is a uniquely effective means of expressing one’s views on education policy,” Justice Morris Fish said. “(The amendments have) denied them access to the unique platform upon which debate on local education policy is meant mainly and effectively to proceed.”
For more information see:
Baier v. Alberta
, 2007 CarswellAlta 853 (S.C.C.).
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