Professional Documents
Culture Documents
B E T W E E N:
BECKY MCFARLANE, in her personal capacity and as litigation guardian for L.M., and
THE CORPORATION OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION
Applicants
(Moving Parties)
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Respondent
(Responding Party)
The applicants in Divisional Court File No. 526/18 – Becky McFarlane (“Ms. McFarlane”),
in her personal capacity and as litigation guardian for L.M., and the Corporation of the Canadian
Civil Liberties Association (the “Corporation”) (together, the “Applicants”) – will make a motion
to the Court of Appeal at Osgoode Hall, Toronto, Ontario on a date to be fixed by the Registrar.
after service of the Applicants’ motion record, factum and transcripts, if any, or on the filing of the
(a) an order granting the Applicants leave to appeal to the Court of Appeal from the
decision of the Divisional Court dated February 28, 2019 (the “Decision”)
dismissing the application for judicial review in Divisional Court File No. 526/18
(the “Application”);
(b) an order, in any event of the cause, providing that no costs shall be awarded to or
(c) such further and other relief as counsel may request and this Court may deem just.
Overview
(a) This matter raises questions of significant public importance relating to the health
elementary schools across Ontario, and there are strong grounds to believe that
the Divisional Court erred in law and in principle in the Decision addressing that
curriculum;
(b) in their submissions to the Divisional Court, the Applicants maintained that the
Directive (as defined below) of the Minister of Education (the “Minister”) should
rights and values protected under the Canadian Charter of Rights and Freedoms
Rights Code, R.S.O. 1990, c. H.19 (the “Code”), and is inconsistent with, and an
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impermissible exercise of statutory power under, the Education Act, R.S.O. 1990,
The Parties
(c) Ms. McFarlane is a queer parent whose 10-year-old daughter (“L.M.”) started
Grade 6 at a public school within the Toronto District School Board in September
2018. To Ms. McFarlane’s knowledge, L.M. is the only student at her school
whose parents openly identify as queer. Ms. McFarlane brought the Application
both in her personal capacity (as L.M.’s parent) and as litigation guardian for
L.M.;
(d) the Corporation is a non-profit Canadian corporation. Its objectives are identical
to those of the Canadian Civil Liberties Association (the “CCLA”), and its
(e) the Minister assumed office on June 29, 2018, following a general election on
June 7, 2018;
(f) in 2015, the Province adopted an updated HPE curriculum (the “2015 HPE
Curriculum”) for Grades 1-8 and 9-12. The 2015 HPE Curriculum was used by
Ontario school boards for the three school years starting in September 2015,
(g) the 2015 HPE Curriculum includes, among other things, three distinct but related
Living” strands. The Healthy Living strand includes four components: (1) healthy
eating; (2) personal safety and injury prevention; (3) substance use, addictions,
and related behaviours; and (4) human development and sexual health;
(h) the 2015 HPE Curriculum – particularly the human development and sexual
The Directive
(i) on or around August 22, 2018, the Province released an interim HPE curriculum
for Grades 1-8 (the “2018 HPE Curriculum”). The 2018 HPE Curriculum is
(j) in a press release dated August 22, 2018, Premier Ford and the Minister
announced that the Province would be undertaking a consultation process for the
purpose of, among other things, developing a new HPE curriculum. In the press
teachers in Ontario public schools to teach the 2018 HPE Curriculum starting in
September 2018 – instead of teaching the 2015 HPE Curriculum for Grades 1-8 –
Differences Between the 2015 HPE Curriculum and the 2018 HPE Curriculum
(k) the 2018 HPE Curriculum does not include the human development and sexual
health component of the Healthy Living strand of the 2015 HPE Curriculum. In
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place of that component, the 2018 HPE Curriculum contains “growth and
development” content from an HPE curriculum that the Province issued in 1998;
(l) with regard to, among other things, sexual orientation, same-sex relationships,
family structures, and consent, there are significant differences between the 2015
HPE Curriculum and the 2018 HPE Curriculum, particularly at the Grade 3,
Grade 6, Grade 7, and Grade 8 levels. Content relating to those issues that was
contained in the 2015 HPE Curriculum is absent from the 2018 HPE Curriculum;
(m) for example, at the Grade 6 level – in which L.M. is currently a student – the 2015
to sexual orientation and different family structures (such as families with two
mothers or two fathers). By contrast, the Grade 6 level of the 2018 HPE
Curriculum does not contain any information about consent, sexual orientation, or
(n) in the proceeding before the Divisional Court, the Applicants did not challenge
(o) rather, the Applicants challenged the Directive – i.e., the Minister’s decision to
require that the 2018 HPE Curriculum be used in place of the 2015 HPE
submitted that the Directive should be set aside because it constitutes a breach of
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their rights under the Charter and the Code and also because it is impossible to
reconcile with the Province’s obligation under the Education Act to promote an
(p) the Applicants maintained that the Directive has the following negative effects on
(i) the Directive has the effect of removing material relating to sexual
queer parent) based on sexual orientation and family status, and against
L.M. (as the child of a queer parent) based on family status. It constitutes
(ii) the Directive has the effect of removing material relating to the issue of
consent from the curriculum. The removal of that material has a disparate
based on the uncontested social science evidence that the Applicants filed
Charter – as a girl – and her right to security of the person under section 7
of the Charter;
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(q) the Applicants also maintained that the removal of material relating to sexual
orientation, same-sex relationships, family status, and consent violated their rights
(r) further, the Applicants maintained that the removal of material relating to sexual
of the Education Act requires school boards to “promote a positive school climate
that is inclusive and accepting of all pupils, including pupils of any … sex, sexual
Act provides that one purpose of Part XIII of that statute is to “encourage a
(s) the questions raised by the Application – namely, whether the Directive violates
the Applicant’s rights under the Charter, the Code, and the Education Act – are of
curriculum document issued by the Minister sets out the officially authorized
policy of the government with respect to the subjects addressed therein and
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therefore reflects the values and the content that the Province has decided to
(u) the Divisional Court stated in the Decision (at paragraph 57) that “[d]etermining
paragraph 58) that “this case therefore raises a serious justiciable issue”;
(v) the Divisional Court erred in law and in principle by concluding that the Directive
is not subject to review under section 15(1) of the Charter. That conclusion was
erroneously based on inapplicable case law and cannot be reconciled with binding
position that the Applicants advanced before the Divisional Court. The
consultation process and to develop a new HPE curriculum. Nor did the
any HPE curriculum. Instead, the Applicants’ position was that – if the
requirements;
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(ii) as the basis for dismissing the Applicants’ challenge and effectively
immunizing the Directive from any scrutiny under section 15(1) of the
Equity Act, 1993. This Court dismissed that challenge on the basis that
section 15(1) of the Charter did not oblige the government to maintain
challenge to the Directive, because (as noted above) the Minister did not
repeal the HPE curriculum (she changed it) and the Applicants did not
submit that the 2015 HPE Curriculum or any HPE curriculum must be
maintained. The Applicants did not claim a “generalized” right “to have
Minister had decided to repeal the 2015 HPE curriculum in its entirety
without adopting any new HPE curriculum in its place, and an applicant
took the position that the decision not to offer any HPE curriculum at all
(iii) in addition to relying on Ferrel, the Divisional Court (at paragraph 153)
decisions were also cited as a basis for immunizing the Directive from
in Ferrel) and/or directly engaged the use of public funds. Any decision
(iv) the Divisional Court’s decision to immunize the Directive from scrutiny
under the Charter conflicts with binding authority from the Supreme
particular area – the state must do so in compliance with the Charter. For
S.C.R. 624, the Supreme Court of Canada held (at paragraph 73):
That statement – and other statements to the same effect by the Supreme
the Directive. Because the Province has decided to act in the area of
groups; and
(v) the Divisional Court’s conclusion that the Directive is immune from
341 (C.A.), in which this Court enjoined the use of a curriculum that was
(w) the Divisional Court erred in law and in principle by failing to apply the legal
framework for the judicial review of administrative decisions that engage the
Charter that was established by the Supreme Court of Canada in Doré v. Barreau
General), [2015] 1 S.C.R. 613, and Law Society of British Columbia v. Trinity
Western University, 2018 SCC 32. That analysis should have been conducted,
of the Decision) that “the omission of certain topics in the curriculum could be
(x) the Divisional Court erred in law and in principle by holding (at paragraph 157) –
as a further reason for dismissing the Applicants’ challenge under section 15(1) –
that the 2018 HPE Curriculum “is not substantively discriminatory” because “the
statutory context” – including the Code, the Education Act, and other provincial
statutory context for that purpose was in error, for the following reasons:
(i) state action that discriminates against members of groups protected under
15(1) challenge – because the government could always refer to, for
example, the Code and assert that there is no discrimination. Neither the
Minister nor the Divisional Court cited any authority for the proposition
that a discriminatory act that breaches section 15(1) of the Charter can be
and
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(ii) the fact that other laws and policies mandate inclusion and equality
supporting it. Those other laws and policies – including both the Code
and the Education Act – provided an additional basis for finding the
(y) the Divisional Court erred in law and principle by failing to recognize that the
policy with respect to the subjects it addresses. It is a statement of the values and
content authorized and sanctioned by the Province. Under the 2015 HPE
status, and consent was mandatory subject matter to be covered in the public
curriculum under the 2018 Curriculum. The Divisional Court erred as a matter of
that must be covered as a matter of official governmental policy into material that
orientation, family status, and sex, in violation of their rights under section 15(1)
of the Charter;
(z) the Divisional Court erred in law and in principle by concluding that the Directive
does not engage section 7 of the Charter. In reaching that conclusion (at
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paragraph 145), the Divisional Court relied, as it did in respect of section 15(1),
on the “statutory context” – including the Code, the Education Act, and other
provincial policies. For the reasons expressed above (at subparagraph (x)), the
(aa) the Divisional Court erred in law and in principle by failing to consider, as an
independent basis for setting aside the Directive, the Applicants’ claim that the
Directive contravenes section 1 of the Code. The Divisional Court stated (at
paragraph 150) that “the test for discrimination under the Charter and the Code is
the same” and then proceeded to conduct the remainder of its discrimination
section 1 of the Code. The Divisional Court erroneously decided the Applicants’
entire discrimination claim, including their claim under the Code, on the basis of
Ferrel and other decisions under section 15(1) of Charter – without considering,
among other things, whether those decisions have any application to the
(bb) the Divisional Court erred in law and in principle by failing to consider and
address in the Decision the part of the Applicants’ discrimination claim, under
both section 15(1) of the Charter and section 1 of the Code, that was based on
family status, which was one of the grounds expressly pleaded and argued by the
Applicants;
(cc) the Divisional Court erred in law and in principle by failing to consider and
address in the Decision, as an independent basis for setting aside the Directive,
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statutory power under the Education Act, which was one of the legal grounds
expressly pleaded and argued by the Applicants. Instead of addressing that claim,
the Divisional Court (as stated above) erroneously relied on the Education Act and
other laws and policies as a basis for concluding that the Directive is not subject
requirement under sections 169.1(1)(a.1) and 300.0.1 of the Education Act that
the Province promote equality and inclusion and refrain from discrimination;
(dd) the Divisional Court erred in law and in principle by failing to provide adequate
reasons for dismissing the Application with respect to the specific issues raised
above;
No Costs
(ee) the Applicants request, in any event of the cause, that no costs be awarded to or
(ff) previously, the Applicants requested, in any event of the cause, that no costs be
(gg) Ms. McFarlane is a parent who brought the Application, and now this motion, in
the public interest, in order to protect her rights, the rights of her minor daughter,
(ii) the Applicants brought the Application, and now this motion, for the purpose of
(jj) the Applicants have nothing to gain financially from bringing the Application or
this motion;
(oo) section 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43;
(pp) Rules 37, 57, and 61.03.1 of the Rules of Civil Procedure; and
motion:
(a) the Applicants’ motion record (consisting of the materials required under Rule
61.03(2)); and
(b) such further and other material as counsel may advise and this Court may permit.
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