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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Civil and Administrative
Litigation Opinions
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Constitution - Separate Schools

. Volpe v. Wong-Tam

In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal considered a plaintiff's appeal from a successful SLAPP defendant's dismissal motion [under CJA 137.1], brought in response to the defendants being sued for defamation and related torts for bringing an municipal motion to stop advertising with the appellant's newspaper.

In these quotes the court considers a challenge to the CJA SLAPP regime under s.93 of the Constitution (non-Charter) ['Legislation respecting Education']:
Section 93 of the Constitution Act, 1867

[40] The appellants also advanced a cluster of arguments related to the proposition that their speech could not be accurately characterized as discriminatory because it was an articulation of Roman Catholic doctrine, which is protected by s. 93 of the Constitution Act, 1867. This argument was also rejected at the conclusion of the appellants’ oral submissions.

[41] There is no merit to this argument. Section 93 entrenches the rights of Roman Catholic separate school supporters to Roman Catholic separate schools that hold and teach Roman Catholic doctrine, and to have their children receive a Roman Catholic education based on that doctrine: Reference re Bill 30, An Act to Amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, para. 58-60, per Wilson J. The rights protected by s. 93 are not engaged by the matters in dispute between the parties.

[42] Furthermore, the appellants mischaracterize the motion judge’s findings. The motion judge found that the appellants are free to “raise concerns about policies concerning issues affecting the LGBTQ2S+ community in the TCDSB. [They] can criticize the conduct of trustees (and councillors) who support such policies.” The problem with the appellants’ articles was not that they took a position adverse to that of LGBTQ2S+ advocates with respect to Roman Catholic doctrine and education about sexuality. The problem was that they “used derogatory and prejudicial language” to do so, using stereotypes of “predation, pedophilia, and socially destructive behaviour.” This was the aspect of the appellants’ speech that exposed them to the complaint that they expressed discriminatory statements.

[43] The appellants’ constitutional arguments thus failed, and accordingly so do those non-defamation causes of action (misfeasance in public office and inducing breach of contract) which, on appeal, are entirely dependent on the success of the constitutional arguments.
. Kandaharian (Litigation Guardian of) v. York Catholic District School Board

In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court considered an interesting non-Charter constitutional issue where a separate school board objected to a non-Catholic student holding a school trustee position [para 38-50].

. Kandaharian (Litigation Guardian of) v. York Catholic District School Board

In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court canvassed the history of the constitutional status of separate (catholic) schools [Constitution Act, 1867, s.93], and some relevant cases [paras 11-37].


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Last modified: 20-10-23
By: admin