Ayangma v French School Board, 2010 PECA 16 (9 September 2010)
The decision reviews the Supreme Court of Canada’s jurisprudence in regards to the violation of the human right to equality under s 15(1) of the Canadian Charter of Rights and Freedoms in an employment context. The Prince Edward Island Court of Appeal considers whether the trial judge below erred in finding that the hiring of school teachers and principals by a school board was not in violation of the appellant’s right to equality.
The decision confirms that a comparative analysis must be undertaken which considers the surrounding context of the claim and claimant to determine if s 15(1) of the Charter has been violated.
The role of an appellate court when reviewing a trial judge’s findings of fact and law is also discussed.
The appellant is a teacher who holds a teaching certificate in Prince Edward Island. He is a Canadian citizen, a native of Cameroon and is black in colour. The respondent, French School Board (the ‘Board’), was established pursuant to the provisions of the School Act and is charged with delivering French language education on the Island. The other respondent, Gabriel Arsenault (‘Arsenault’), was the Superintendent of the Board throughout the relevant period.
Collective agreements were in effect between the Province of Prince Edward Island and the Prince Edward Island Teachers Federation which provided that one of the minimum requirements to be hired by the Board as a school principal was a course in school administration. The appellant was an applicant in four competitions to be school principal. In two of the competitions, the applicant was the only one with a course in school administration. In three of the competitions, those who were hired to be school principals were hired before they had completed their course in school administration.
The appellant claims that the Board and Arsenault had violated his right to equality under s 15 of the Charter by hiring individuals who did not meet one of the minimum requirements of the collective agreements. He claims that he was more qualified than any of the other competitors and so this was evidence he was being discriminated against on the basis of his colour or age.
The appellant also claims that he was discriminated against on the basis of his colour or age because between 1991 and 1998 the appellant applied for and was hired twice for probationary teaching contracts and therefore he was entitled to a permanent contract and yet was never hired on a permanent contract.
The trial judge, Chevrie J, found that the laws in effect and their application by the Board and Arsenault were not in breach of s 15 of the Charter.
The appeal was dismissed. The Court of Appeal reviewed the authorities where s 15(1) of the Charter had been considered. Written reasons were given by McQuaid J with Jenkins CJ and Murphy J in agreement.
Section 15(1) of the Charter provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Court considered the purpose of s 15 to be the prevention of the infringement of one’s human dignity by ensuring people are not subject to disadvantage and stereotyping. Citing the decision of lacobucci J in Law v Canada (Minister of Employment and Immigration)  1 SCR 497, the Court reaffirmed that laws or actions taken pursuant to laws which distinguish or differentiate between individuals will be found to be in violation of this purpose where the individual subject to differential treatment is a member of one of the enumerated groups in s 15(1). To determine whether this purpose has been violated a comparative analysis considering the context of the claim and claimant is to be undertaken. The purpose and effect of the legislation is to be considered as well as contextual factors such as biological, historical and sociological similarities and dissimilarities and whether the discrimination occurs in a substantive sense. The starting point of the inquiry is whether there has been a violation of s 15(1) from the claimant’s view but then this is to be tempered by the point of view of the reasonable person. This analysis therefore has both a subjective and objective element.
The Court then turned to the appellate court’s role in reviewing the trial judge’s findings of fact and law. It is not the role of the appellate court to make its own factual findings in substitution for those of the trial judge unless it can be found that the trial judge made a palpable and overriding error. If there is some evidence upon which the trial judge can base their factual finding then the appellate court should not intervene. On this basis the Court chose not to intervene with the trial judge’s decision. There was no evidence that during the hiring process the appellant was discriminated against on the basis of his color or age. Furthermore, the Court found it to be important that the trial judge had accepted evidence that completion of a course in school administration was only a technical requirement in order to be hired by the Board and successful candidates would be allowed to undertake such a course upon their selection.
A court of appeal is able to reach its own conclusions on pure questions of law and substitute them for those reached by the trial judge. The trial judge was found by the Court not to have made any errors in law. The Court held that the provision of the relevant laws and their application in the hiring process by the Board did not violate s 15 of the Charter. It also held that the appellant, upon completion of two probationary contracts within a 5 year period, was merely ‘eligible for’ but was not entitled to a permanent contract.
Relevance to the Victorian Charter
This decision is useful in terms of its review of the Canadian jurisprudence in relation to the equivalent of s 8 of our Charter of Human Rights and Responsibilities Act 2006 (Vic). The more developed Canadian approach to claims for violations of the right to equality provides an indication of the direction in which Australian jurisprudence may progress with respect to s 8.
The decision is at www.canlii.org/en/pe/pescad/doc/2010/2010peca16/2010peca16.html.
Daniel Dominic Nguyen is the Junior Associate to the Honourable Justice Pagone of the Supreme Court of Victoria.