Administrative Law

Chamberlain v. Surrey School District No. 36

On December 20, 2002, the Supreme Court of Canada relied on administratve law principles to hold that a school board cannot rely on the religious objections of some parents to justify banning books which depict families with same-sex parents.

The case started when an elementary school teacher asked the Surrey School Board to approve three books for use in teaching the family life education curriculum. The books depicted families with same-sex parents. The school board passed a resolution declining to approve the books apparently because it was concerned that some parents would have religious objections to the morality of same-sex relationships.

The British Columbia Supreme Court quashed the board's resolution, finding that the members of the board who had voted in favour of the resolution were significantly influenced by religious considerations and this offended the province's School Act. The B.C. Court of Appeal granted the school board's appeal on the basis that the resolution was within its jurisdiction.

A majority of the Supreme Court of Canada allowed the appeal, holding that the school board had failed to consider the objects and purposes of the Act and therefore had unreasonably exercised its powers. The Court noted that the School Act insisted on secularism and non-discrimination. While this did not mean that religious considerations could never play a part in the board's determinations, it was required to act in a way that promoted respect and tolerance for all the diverse groups it represents and serves.

Among other things, the Supreme Court held that the board had violated the principles of the School Act because it did not proceed on the basis of respect for all types of families. Rather, it proceeded on an exclusionary philosophy, acting only on the concern of certain parents about the morality of same-sex relationships and not considering the interest of same-sex parented families and the children who belong to them in receiving equal recognition and respect in the school system. The school board also failed to consider the curriculum's goal that children at the kindergarten and grade 1 levels be able to discuss their family models, and that all children be made aware of the diversity of family models in Canadian society.

The Court remanded the question of whether the books should be approved as supplementary learning resources to the school board, to reconsider the question in accordance with the criteria laid out in the curriculum guidelines and the broad principles of tolerance and non-sectarianism underlying the School Act.

Cynthia Petersen represented Egale Canada Inc, which intervened in support of the appellants.

Howard Goldblatt represented the Elementary Teachers' Federation of Ontario, which intervened in support of the appellants.

Click here to read the Court's decision.