Content Warning: This article talks about racism in the school system.
The CBC reported on May 29, 2021 about a principal at Monseigneur-Bruyère, a French immersion school located in London, Ontario, who was removed from their position due to pair of a incidents.[mfn]Ontario principal removed after twice wearing hair of Black student like a wig, CBC, https://www.cbc.ca/news/canada/london/ontario-principal-removed-hair-black-student-1.6045755, retrieved June 1, 2021[/mfn]
The first incident happened sometime in 2019. Monseigneur-Bruyère held a school assembly to support a student who was battling cancer. Various students shaved their hair in a show of support and to raise money. The Principal grabbed one of student’s hair, put the hair on his head and proceeded to move around the gym.
Six months later around Halloween, the Principal was seen again wearing the same hair while being dressed up as a basketball player.
The student who had their hair used like a wig is black and had dreadlocks The Principal is white. Several students became appalled at the conduct of the Principal.
One student of Monseigneur-Bruyère, wrote a letter to the school board, Conseil scolaire catholique Providence, about their desire to a better climate for black students. Conseil scolaire catholique Providence never responded to that letter.
It is important to note, no court or tribunal has made a ruling on if there was discrimination. This doesn’t stop us from doing a thought experiment.
Questions
This doesn’t stop us from doing a thought experiment. Were this incidents considered discrimination? That one question lead me to ask three follow up questions.
- “Could black students file a human rights complaint?”
- “What would be the basis of the human rights complaint?”
- “Why should black students file a human rights complaint?”
Before can begin our journey, this isn’t an analysis if a human rights complaint would be successful. Everything in law 100% fact specific and we only have the facts reported in the media to go on. This is simply a thought experiment. If you find yourself in a similar situation, we highly recommend that you call us to have a proper discussion.
Now let us begin this journey with the first question asked.
Could black students file a human rights complaint?
In Ontario there are 16 different grounds of discrimination. In our situation, we have a couple of grounds that would be the most applicable and those would be: race and colour.
We have the grounds of discrimination, however do we have an area in life where the discrimination happened?
There are 5 areas in life of where discrimination is illegal. The areas are: services, accommodation, contracts, employment, and vocational associations. We can immediately scratch out: accommodation, contracts, employment, and vocational associations. That leaves us with services. Schools provide an education to the community, that is a service.
We have grounds of discrimination and area of life. Before we adequately answer the original question, we have to ask ourselves “Was their discrimination?”
The Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360 at para 33 laid out the test for discrimination.[mfn]Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360, <https://canlii.ca/t/ftp16>, retrieved June 1, 2021[/mfn] The test being:
- Does the person in question have a characteristic that is protected from discrimination? Both race and colour are characteristics that the students share.
- Was there an adverse impact with respect to service? Black students were made to feel uncomfortable when attending school.
- Was the protected characteristic a factor in the adverse impact? We have a white Principal wearing a traditional black hair style in the forms of dreadlocks and dressed up as a basketball uniform. We have black students feeling uncomfortable about seeing their Principal dressed up like this.
On the face of what happened, we can firmly say that there are grounds for discrimination.
What would be the basis of the human rights complaint?
We can establish that there is a prima facie case of discrimination. There’s any interesting aspect to this matter that separates it from other cases of discrimination. The discrimination is this case wasn’t directed to one student particular. The Principal’s conduct affected several black students. I would label this conduct as indirect discrimination.
However, that doesn’t mean that there can’t be a human rights complaint. If a student doesn’t feel welcome because what the Principal did, there was harm committed against that student. It doesn’t matter if it was unintentional, the harm is still there.
We can establish that there was discrimination.
Why should black students file a human rights complaint?
CBC has a personal story about discrimination and it’s impact in the school system.[mfn]The Impact Of My Child’s Teacher Showing Up To School In Blackface, E.M. Uzoamaka, retrieved February 4, 2022[/mfn]
This past October, my 14-year-old daughter’s teacher showed up to school in Blackface for Halloween. This wasn’t the first time she had experienced an incident like this. Something like it happened at her previous school… At the time, she told me it made her realize that, as a Black person, her voice didn’t matter.
When it’s appropriate, litigation can be a powerful means to make people voices matter. Litigation can also be a means for change. A fact about the Human Rights Tribunal, is that it has the power to award public interest remedies. The Human Rights Tribunal in Giguere v. Popeye Restaurant, 2008 HRTO 2 (CanLII) at para 91 had this to say about public interest remedies:[mfn]Giguere v. Popeye Restaurant, 2008 HRTO 2 (CanLII), <https://canlii.ca/t/1vgzm>, retrieved on 2021-06-07[/mfn]
Public interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances.
Change only happens when people fight for that change.
