Second Victim, discrimination in hiring

Jeff  Prentice

   Mr. Prentice associates himself with the United Church of Canada and is a graduate in Mechanical Engineering who had been teaching mathematics and science on a part-time basis at St. Pius X Catholic High School in the City of Ottawa in the 1997-1998 school year.

   Mr. Prentice applied for a full-time job at St. Pius X in the spring of 1998 when he became aware that there were approximately 200 new teaching jobs at the Ottawa-Carleton Separate School Board.

   Despite glowing references and a petition from his colleagues at St. Pius X High School, Mr. Prentice learned that he would not be able to apply for any of these new teaching opportunities within the Ottawa-Carleton Catholic School Board. 

   It became abundantly clear to Mr. Prentice that he was being rejected on the basis that he was not a practising Roman Catholic.

   It had been Mr. Prentice's understanding that when Ontario's Roman Catholic schools were granted full funding in 1986, the Province had provided certain statutory guarantees vis-a-vis the hiring and promotion of teachers who would be required to transfer from the Public school system to the Catholic separate school system.

   For a period of time there was a further understanding that publicly funded Catholic schools could no longer reject non-Catholic job applicants. Indeed, the Education Minister in the Provincial Government warned the Ottawa-Carleton Separate School Board to "back off" on a request that teaching applicants provide a letter from their parish priest. However, as a consequence of an Ontario Superior Court ruling (the Daly case), it was held that the Canadian Constitution Act of 1867 protected Roman Catholic School Boards’ ability to discriminate on religious grounds and the preferential hiring of Catholics was reinstated.

   Mr. Prentice takes the position that the social values instilled in him by the United Church are not that different from those taught by the Roman Catholic Church.

   Notwithstanding Mr. Prentice's skills and training, and the substantial recommendations he had received, his application to the Ottawa-Carleton Catholic School Board was  rejected.

   The teachers at St. Pius X High School delivered a petition signed by approximately 35 colleagues to the Ottawa-Carleton Catholic School Board. Further, Mr. Prentice requested an explanation as to the reasons why his application would not be considered.

   Mr. Prentice received a terse note from the Roman Catholic School Board stating as follows: "….your application is returned because you are not able to provide a pastoral letter from a parish priest attesting to the fact that you are a practising Catholic," signed by the Board's Superintendent of Human Resources.

   Mr. Prentice was advised that the Separate School system takes the position that Catholic teachers are required so that the system can remain distinct. He was further advised that non-Catholics are only hired if a suitable Catholic candidate cannot be found.

   The School Board emphasized  that its first concern has to be the Catholicity of the teacher so as to ensure that Catholic values are expressed.

   Mr. Prentice's performance and expertise as a teacher were never in question, and he was rejected on the sole basis that he was not a practising Catholic.

  It is our position that these particular requirements of the Roman Catholic separate school system reflect a further violation of Article 26 of the International Covenant.

    In Waldman, the Human Rights Committee directed Canada to “make (public) funding available without discrimination.” The experiences of Grant Tadman and Jeff Prentice indicate that the existence of a publicly-funded Roman Catholic school system in Ontario reveals further significant consequences with regard to the discrimination.

   Bill 30, the Bill that allowed the province to provide public funds for the Roman Catholic separate school system from K to 13, was upheld as being within the constitution in a decision of the Supreme Court of Canada in 1987.

   Sections 135 and 136 of the Education Act were part of some amendments to Bill 30, the former containing complex procedures for the transfer of public-school staff, who were not Roman Catholic, to Roman Catholic high schools to follow a transfer of Roman Catholic students from Public schools to the new high schools allowed by Bill 30.  Section 135 was to apply for a period of 10 years. 

   After the ten-year period, section 136 (1) was to apply, which was a provision to allow other than Roman Catholic teachers to be employed by a Roman Catholic board as long as the teachers agreed to “...respect the philosophy and traditions of Roman Catholic separate schools in the performance of their duties.”

   Section 136 (2) was included to ensure such teachers hired by the board under section (1) “...will enjoy equal opportunity in respect of their employment, advancement and promotion by the board.”

   Section 136 was added after Bill 30 was heard by the Ontario Court of Appeal, so it was not considered by the Supreme Court in its 1987 decision on Bill 30.

    Since section 136 did not suit the Roman Catholic authorities, they brought an application to determine the constitutionality of section 136.  Referred to as the Daly case, the Attorney General of Ontario was named as the respondent. 

   In his ruling of December 1997, Justice Sharpe determined that section 136 “...prejudicially affects the rights of denominational schools in existence at the time of Confederation by denying Roman Catholic separate schools the right to prefer Roman Catholic teachers when making decisions with respect to hiring, placing, promoting and firing.”

   The decision of Justice Sharpe was appealed to the Ontario Court of Appeal and on April 27, 1999 the Appeal Court confirmed Justice Sharpe’s decision.

   Leave to appeal to the Supreme Court of Canada was dismissed on October 21, 1999.  Thus, all domestic remedies to rid the Education Act of religious discrimination were exhausted. 

As stated in our submission to the United Nations Human Rights Committee

   It is our position that: “Part IV School Authorities — Roman Catholic” and “Part IV-1 Extension of Roman Catholic Elementary Schools” of the Ontario Education Act are in violation of Article 26 of the International Covenant on Civil and Political Rights.  These sections allow for the establishment of, and public funding for, Roman Catholic separate schools under circumstances that are not available for any other faith group. 

   We would reiterate that from all practical legislative perspectives, no other religious denomination, save and except Roman Catholicism, has a parallel right to Government funding in the Province of Ontario for the purposes of education. As determined in the United Nations Human Rights Committee Decision of Waldman (Communication No. 694/1 996:Canada.05/11/99.CCPR/C/67/D/694/1996) this distinction represents a form of discrimination pursuant to the International Covenant with reference to all other religious denominations in Ontario which are precluded from similar government funding.

   It is worth noting, that in 1976, the Canadian Government formally acceded to the substantive terms and provisions of the International Covenant without any form of reservation as to Canada’s entry with reference to the Covenant and its Optional Protocol. In effect, Canada did not attempt to exempt specific federal and provincial laws from the application of the International Covenant, and more particularly did not qualify its entry into the International Covenant Human Rights process in relation to Provincial education laws which contained flagrantly discriminatory provisions.

   The Canadian Government, and indeed the Supreme Court of Canada, have acknowledged this form of discrimination, but attempt to rationalize this state of affairs on the basis of the "constitutional bargain" struck in 1867, essentially between the Provinces of Ontario and Quebec.

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