Procedural Posture
The plaintiff sought an interlocutory injunction restraining the defendants from preventing him from attending a prom at a Catholic high school with his boyfriend.
Facts
The plaintiff was a student in a Catholic high school. Several months before the prom (an annual dance for high school students), he expressed his wish to bring his boyfriend as his date. The director of the school refused permission, arguing that interaction at a prom between romantic partners was a form of sexual activity and that, by allowing the plaintiff to bring his boyfriend to a prom, the school would be seen to endorse a conduct contrary to Catholic teachings. The School Board confirmed the denial.
Issue
Whether the plaintiff’s claim of discrimination on the basis of sexual orientation had sufficient merit to warrant an injunction.
Domestic Law
Constitution of Canada, Section 93.
Canadian Charter of Rights and Freedoms, Sections 1, 2 and 15 (non discrimination).
Ontario Human Rights Code, Chapter H.19.
Egan v. Canada, Supreme Court of Canada, 1995 (establishing that sexual orientation constituted a prohibited ground of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms).
Reference re Act to Amend the Education Act, Ontario Court of Appeal, Canada, 1986.
Trinity Western University v. British Columbia College of Teachers, Supreme Court of Canada, 2001 (affirming that neither freedom of religion nor the guarantee against discrimination based on sexual orientation are absolute).
Reasoning of the Court
The Court first noted that a three-stage test had to be applied when considering whether to grant an interlocutory injunction: (1) whether the issue was a serious one; (2) whether the applicant would suffer irreparable harm in the absence of an injunction; and (3) whether the relative harm suffered by the parties favoured granting the relief.
The reasoning of the Court focused on the first question, whether the case had enough legal merit to justify the Court’s extraordinary intervention. It concluded that a serious issue did exist.
The Court noted the fundamental role played by schools in the lives of young people and the fact that the establishment and implementation of policies by a publicly founded school board was subject to the Canadian Charter of Rights and Freedoms. In the present case, the policy was applicable to any student wishing to bring a same-sex date to the prom and implicated the non-discrimination provision of the Charter (Section 15).
The Court also cited Egan v. Canada and noted that gay men and lesbian women had historically suffered stigma and discrimination, contrary to Section 15. The plaintiff argued that his right to be protected against discrimination included the right to be different, to be accepted as different, and to be treated equally.
In the Court’s view, the prom was not solely about physical intimacy leading to sex. In any case, the school was not supposed to inquire into the sex life of its students or their prom dates, these being private matters. Furthermore, the prom could not be considered part of the religious education provided by the school, nor was it to be held on school property.
The defendants argued that Catholic schools were not the same as non-denominational public schools. The Bishop responsible for the region had intervened in the question and had stated that giving the plaintiff permission to take another boy as his date to the prom would imply a “clear and positive approval not just of the boy’s ‘orientation’ but of his adopting a homosexual lifestyle”. According to the Bishop, the school had adopted an “authentically Catholic position”. The Court disagreed, finding that religious beliefs could not justify discrimination against homosexuals without any judicial scrutiny. According to the Court, at trial on the merits a court could find that the school had unjustly discriminated against the plaintiff in violation to his Charter rights. Courts must “strike a balance, on a case-by-case basis, between conduct essential to the proper functioning of a Catholic school and conduct which contravenes such Charter rights as those of equality or s.15 or of conscience and religion in s. 2(a)”.
In the present case, the Court found that the defendants had not demonstrated that their decision to refuse the plaintiff permission to bring his boyfriend to the prom was justified under Section 93 of the Constitution Act, aimed at protecting denominational schools.
The Court then briefly analysed whether the restriction on the plaintiff’s rights caused by the school’s decision could be saved under Section 1 of the Canadian Charter, which established when it is justifiable to limit rights. The Court considered whether the restriction on the plaintiff’s rights had a rational connection to a pressing and substantial objective, whether it minimally impaired his rights, and whether it was proportionate. In the Court’s opinion, none of the three conditions had been met. The school’s decision was therefore not justified under section 1 of the Charter.
Returning to the injunction test, the Court found that the second and third stages of the inquiry had been satisfied as well. If the plaintiff were excluded from the prom, he would lose the opportunity it offered forever. According to the Court, the social significance of a high school prom was well-established and being excluded would constitute an irreparable injury to the plaintiff as well as a serious affront to his dignity. Furthermore, the Court found that granting or refusing the injunction engaged a public interest (with regard to the effects of stigma and discrimination against homosexuals).
Lastly, the Court considered the balance of convenience, by evaluating the relative hardship suffered by the parties if the Court decided to grant or deny the injunction. It found that “the effect of an injunction on the defendants and on other members of the Catholic faith community [would] be far less severe than the effect on [the plaintiff] and on lesbian and gay students generally if an injunction [was] not granted”. An injunction would have no impact on teaching within the school or on the Catholic Church’s beliefs and therefore would not impair the defendants’ freedom of religion. On the other hand, were the injunction not granted, it would become acceptable to restrict gay and lesbian students from certain school activities on the basis of their sexual orientation until a trial on the merits took place. According to the Court, the effects of this exclusion would have been pervasive and serious.
The Court issued an interlocutory injunction restraining the defendants from preventing or impeding the plaintiff from attending the high school prom with his boyfriend.
Hall v. Powers, Ontario Supreme Court, Canada (full text of judgment, PDF)
