Only “Open Access” students attending Catholic separate secondary schools in Ontario may opt-out of religion classes: confusion clarified

by Dentons



The recent media attention over the Ontario Human Rights Commission settlement involving a student who alleged discrimination when she sought an exemption from religion classes has caused confusion as to whether all publicly-funded separate school students in Canada may opt out of religious classes. This settlement affects only a sub-group of students who may be qualified to seek an exemption pursuant to section 42(13) of the Ontario Education Act. The intent behind that provision is to accommodate “Open Access” students who choose Catholic high schools for their education.1 The exemption does not change a Catholic District School Board’s right to require students to enroll in religious education courses.

The settlement before the Human Rights Commission involves an agreement by the Ontario Catholic School Trustees’ Association (OCSTA) to draft a new procedure for receiving and responding to a request for an exemption. It is agreed that the new procedure will be adopted by the respondent Board, the Simcoe-Muskoka Catholic District School Board. OCSTA has also agreed to encourage the other Ontario Catholic District School Boards to adopt the new process, but they will not be required to do so. The settlement does not expand the sub-set of students entitled to receive an exemption, nor does it create an automatic right to an exemption.

History of the case

Claudia Sorgini, a then 18-year-old-student at St. Theresa’s Catholic School in Ontario, commenced an application before the Human Rights Tribunal of Ontario. She alleged that she was discriminated against on the basis of her creed. Sorgini filed her application against the co-respondents, the Simcoe-Muskoka Catholic District School Board, OCSTA and St. Theresa Catholic High School.

Claudia had attended the public feeder schools. Her family was not Catholic and were not Catholic school supporters; however, she elected to attend St. Theresa’s because of certain programs offered at the school, including more extensive selection of physics courses. Throughout her first three years at St. Theresa’s, Claudia voluntarily participated in religious courses and activities. In Grade 12, Claudia and her family requested an exemption. It was confirmed that Claudia was an Open Access student and she was granted an exemption.

Despite being granted an exemption, Claudia alleged that she and her parents experienced discriminatory treatment by the school administration as a result of her creed. Among other things, Claudia alleged that she was not permitted to audit the physics class in Grade 12. She also alleged that the school would not nominate her for certain scholarships and awards. Furthermore, Claudia complained that when she graduated, she was presented with the prestigious Governor General’s Academic Medal by the Guidance Counselor rather than the Principal.

The parties negotiated terms of settlement in resolution of the application. Minutes of settlement were signed on May 31, 2017. The terms of settlement were agreed to by OCSTA, the Board and Claudia Sorgini. Among other things, the parties agreed to certain public interest remedies. The terms of settlement served to formalize the Board’s existing practices and procedures regarding religious exemptions. OCSTA agreed to share the document for information purposes with all Ontario Catholic District School Boards. By letter dated June 13, 2017, the Registrar of the Human Rights Tribunal of Ontario informed the parties that the application was deposed of as settled and the Tribunal’s file has been closed.

What the settlement means for students in publicly-funded Catholic schools across Canada

The Sorgini matter has caused clear confusion and misperceptions in the media around the use and/or eligibility of these exemptions in publicly-funded Catholic schools.

Central to the mandate of Catholic education in Ontario, Saskatchewan and Alberta, the three Provinces that provide fully publicly-funded separate schools in Canada, is to provide and foster a Catholic faith-based learning perspective.

Various media articles perpetuate a misperception that all students in publicly-funded Catholic secondary schools can opt out of the religious studies programs. However, the Ontario legislation merely provides a process for certain students to request an exemption. Under section 42(13) of the Education Act, there is an eligibility requirement:

42. (13) […] no person who is qualified to be a resident pupil in respect of a secondary school operated by a public board who attends a secondary school operated by a Roman Catholic board shall be required to take part in any program or course of study in religious education on written application to the board of,

(a) the parent or guardian of the person;

(b) in the case of a person who is 16 or 17 years old who has withdrawn from parental control, the person himself or herself;

(c) in the case of a person who is 18 years or older, the person himself or herself [emphasis added].

Thus, the intent of section 42(13) is to accommodate Open Access students who choose Catholic high schools for their education. In order to qualify for resident pupil status, a student must satisfy both the residency and supporter criteria. He or she then qualifies to apply for an exemption. However, the exemption does not change a Catholic District School Board’s right to require students to take religious education courses in each of their four years of secondary school.

The application for an exemption commences a process whereby school administrators review whether the student qualifies for the exemption and what religious programs, courses or activities may be opted out of. The decision to grant an exemption in a particular case does not change the denominational mandate of Separate schools; namely, to provide a fully-permeated Catholic education through faith-based teachings and traditions.

No effect on permeation of religion in Catholic schools

Three cases continue to provide guiding principles for the interpretation of freedom of religion in a neutral or secular society and the right of Catholic Schools to deliver a fully-permeated faith-based educational program: S.L. v. Commission scolaire des Chênes (Drummondville);2Erazo v. Dufferin-Peel Catholic District School Board;3 and Loyola High School v. Quebec (Attorney General).4

In the Drummondville case, the Supreme Court of Canada (SCC) spent significant time commenting on the doctrine of “neutrality” or “secularism”, the gradual separation of Church and State and the need to accommodate a diversity of religious beliefs in Canada. Emphasis in this decision was on the “constitutional freedom to believe or not believe and to express ones beliefs,” and the principle that the “state has neither an obligation to promote religious faith nor a right to discourage religious faith in its public education system”.5

In Erazo v. Dufferin-Peel Catholic District School Board, the Ontario Divisional Court respected the ability for Open Access students to “opt-out” of formalized religious activities in a Catholic school. It did not, however, grant a blanket exemption from the religious permeation expected in Catholic schools in all aspects school life with respect to the remainder of the students.

A more fulsome discussion of the role of a Catholic school, the concept of religious freedom in a secular state, the collective right to the practice of religion, and the right of a Catholic school not to be coerced by a “plan of progressive secularization” as part of a philosophy of “normative pluralism, was considered by the Supreme Court in the Loyola case. It recognized that religious rights and freedoms are both individual and collective, and can be claimed on behalf of parents, students and schools. The concurring decision also found that the protection of freedom of religion could be claimed by religious organizations, including religious educational bodies, providing that they are “constituted primarily for religious purposes” and their operation accords with these religious purposes.6 The SCC found that secularism is required to respect religious differences, and does not seek to extinguish the right to religious practice. It emphasized “principles of interfaith, cooperation and collaboration”, the “collective practice of Catholicism and the transmission of the Catholic faith”.7

Accordingly, these cases show an evolution with respect to freedom of religion as it affects Catholic education. They recognize that non-Catholic students attending Catholic schools may be entitled to exempt themselves from formal religious instruction, but they do not circumscribe the right to deliver a fully-permeated faith-based educational program. While we live in a secular and diverse society, the concept of secularism and neutrality may not infringe upon the personal and collective rights to live, teach and collectively express religious belief. The decision in Loyola may expand those religious rights not only to the collective of individuals expressing those rights, but also to religious institutions, organizations and corporations.

Thus, Catholic District School Boards in Ontario mandate religion for all four years of high school and the Human Rights settlement has not changed this. Further, there are key differences between the systems in Alberta, Saskatchewan and Ontario and the settlement should not be interpreted as being enforceable beyond the parties involved in the dispute.

1. An “Open Access” student refers to a student who under provincial legislation has a right to attend a public or Catholic district school board Secondary school irrespective of religious affiliation.
2. 2012 SCC 7 [Drummondville].
3. 2014 CarswellOnt 4296 (Div. Ct.) [Erazo].
4. 2015 SCC 12 [Loyola].
5. Drummondville, supra note 2 at para. 54.
6. Loyola, supra note 4 at para. 100.
7. Loyola, supra note 4 at para. 161.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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