Ontario Divisional Court Rules On Whether Liturgies And Religious Retreats Fall Within The Scope Of The Exemption Under The Education Act

On April 4, 2014, the Ontario Divisional Court ruled in Erazo et al. v. Dufferin-Peel Catholic District School Board¹ that, pursuant to the Education Act, certain students of Catholic public schools are entitled to an exemption, upon request, from some religious activities, such as mass and religious retreats.

Given that the operative provision had not previously been judicially considered, this decision will be of interest to all Catholic school boards in the province.

THE FACTS OF THE CASE

Section 42(13) of the Ontario Education Act (the "Act") provides as follows:

The provision applies to "Open Access" students only (i.e., "persons who are qualified to be resident pupils in respect of a secondary school operated by a public board who attend a secondary school operated by a Roman Catholic Board").

In 2012, Oliver Erazo (on behalf of his son, Jonathan Erazo Reyes), and Amilcar Erazo (on his own behalf), both applied for an exemption from religious studies. At the time, both Jonathan and Amilcar were "Open Access" students at Notre Dame Catholic Secondary School in Brampton.²

After some discussion with the school and the Dufferin-Peel Catholic District School Board (the "Board"), the Board wrote to the Erazo family advising that Jonathan would be exempt from taking a mandatory religious education course for one year, but would be expected to attend and be respectful of all other religious observances.

After some further discussion, the Erazo family requested a further exemption from mandatory attendance at mass and religious retreats. It was the position of the Board that such activities did not fall within the scope of the exemption provision at section 42(13) of the Act, as they did not in the Board's view constitute "....programs or courses of study in religious education".

The Erazo family commenced an application for judicial review of the Board's decision before the Ontario Divisional Court. The family was seeking a declaration that Roman Catholic liturgies and religious retreats are programs in religious education from which they are entitled to an exemption under section 42(13) of the Act. They also sought an order directing the Board to provide alternative arrangements for Jonathan and Amilcar during the time period of any liturgy or religious retreat.

The issue before the Court was therefore whether liturgies and religious retreats fall within the scope of section 42(13) of the Act – that is, whether they are "programs or courses of study in religious education". The Court's analysis may be summarized as follows:

• "Program" is not defined in the Act. The Court referred itself to a dictionary definition of "program": a planned series of future events, items or performances. In the Court's view, liturgies and religious retreats fall within the scope of "programs".³
• The uncontested evidence before the Divisional Court was that liturgies and retreats "contain a substantial component of ritual and prayer led by Catholic priests," and "have as their central purpose the provision of religious experiences and education to the students who attend them", and therefore are "religious".
• The Court held that this interpretation is consistent with the "evident purpose" of section 42(13): to "...give relief to students who may respect may Catholic principles and observances but do not wish to participate in Catholic, or perhaps any, form of worship, even at a minimal level."

The Court therefore held that the Applicants were entitled to an exemption under section 42(13) of the Act from attendance at liturgies and religious retreats.

It is important to note that the constitutionality of section 42(13) of the Act was not squarely at issue in this particular application (although the Board did make submissions with respect to the protections granted to Catholic schools pursuant to section 93 of the Constitution Act, 1867). The constitutionality of section 42(13) may well be made an issue in future litigation.

IMPLICATIONS OF THE CASE

Section 42(13) leaves it to each Ontario Catholic school board to interpret when it is and is not appropriate to provide an exemption, upon request, to an "Open Access" student.⁴ The Erazo decision provides boards with some additional guidance on how that determination is to be made.

The decision clarifies that Catholic Mass and religious retreats fall within the scope of section 42(13) of the Act. Therefore, an application to a Catholic board by or on behalf of an Open Access student for an exemption from mass and/or religious retreats which is otherwise compliant with section 42(13) must now be granted.

The decision also provides some guidance with respect to other types of activities:

• A school event which falls within the scope of "...a planned series of future events, items or performances" is likely to be interpreted to fall within the scope of a "program" under section 42(13).
• Any such "program" which has a "... substantial component of prayer and ritual" and/or has "...as its central purpose the provision of religious experiences and education to the students who attend" it is likely subject to the exemption at section 42(13) of the Act.

The decision does not provide any definitive guidance with respect to what may or may not fall within the scope of "courses of study in religious education", as opposed to "programs in religious education", under section 42(13) of the Act. The decision is also silent with respect to the degree to which the Board is required to provide supervision or "alternative arrangements" for students during the time that "religious programs" from which they are exempt are taking place.

Ontario Catholic school boards may wish to consider developing a consistent approach or process with respect to section 42(13) exemption requests from "Open Access" students for events which will occur frequently during the school year (e.g. school masses, religion classes, religious retreats, non-religious retreats, non-religious assemblies, etc.), recognizing that there will be events which will have to be considered on a case-by-case basis.

CATHOLIC IDENTITY

The Ontario Catholic School Graduate Expectations provides the distinctive expectations for graduates of Catholic schools are determined and shaped by the vision and destiny of the "human person" emerging from the Catholic faith and tradition. These expectations – and the issue of Catholic identity – were not at issue in the application.

The Ontario Catholic School Graduate Expectations, which was released in 2011, provides that Catholic education views human life as an integration of body, mind and spirit.

It provides:

The expectations of Catholic graduates, therefore, are described not only in terms of knowledge and skills, but in terms of values, attitudes and actions."

All students who apply to a Catholic school should therefore be asked to recognize the importance of Catholic identity, which is rooted in the teachings and faith of the Church. The school should confirm to each student that its objective, in partnership with family and church, is to provide a Catholic education which develops spiritual, intellectual, aesthetic, emotional, social and physical capabilities of each individual to live fully today and enriching the community.

It should be recognized that the decision does not change the mission of the Catholic school community – which, we are advised, is, among other things, to grow in an understanding of Catholic teachings and traditions and incorporate them into a student's daily life. In this regard, all prospective students should be made aware that a Catholic school is one in which God and His Life are integrated into the entire curriculum and life at the school.

In communicating with a student who qualifies for an exemption under section 42(13) of the Act, school administrators may therefore confirm that although the relevant exemption will be granted to this student for a particular school year, there will not be any alteration in the religious or moral education that infuses the remainder of the student's timetable and school observances.

In communications with the student and his or her family, school administration may confirm that notwithstanding the exemption in the case of a

particular student, the historical mandate of the Catholic school system in Ontario is to model the entire syllabus of the school on the life and teachings of Jesus Christ. School administrators may also confirm that throughout the province, Catholic school boards have been using the Ontario Catholic School Graduate Expectations as a foundation reflective of the vision of all learners and the strong sense of distinctiveness and purpose that is publicly-funded Catholic education.

The school may also indicate that it is the school board's view that all students admitted to the Catholic system will benefit from these values and teachings. School administration may also confirm that it is the school board's position that such values and teachings are important in forming students into responsible, reflective and well-rounded citizens.

Footnotes

1 2014 ONSC 2072 (CanLII).

2 However, Amilcar was in his fifth year, and was therefore not required to take any mandatory religion course.

3 The Court observed at paragraph 29 of the decision that liturgies and religious retreats may also fall within the scope of "courses of study" under section 42(13) of the Act, and may therefore be subject to an exemption request on that basis as well, although it was not asked to rule on this issue.

4 The exemption is not automatic; a written application must be made to the Board, by the student's parent or guardian, or the student him or herself (if he or she falls within the scope of subsections (b) or (c)).

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