| Counsel for the Petitioner, The Board of School Trustees Of School District No. 44 (North Vancouver)
| C. Woods & C. Potzold |
| Counsel for the Respondent, Azmi Jubran
| C.F. Parfitt
|
| Counsel for the Respondent, British Columbia Human Rights Tribunal
| K. Hardie |
| Dates and Place of Hearing: | December 3 & 4, 2002 |
|
| Vancouver, BC |
[1] What came before me in Chambers is a judicial review.
[2] The decision under attack is a decision of the British Columbia Human Rights Tribunal. The decision is dated April 8, 2002. The Respondent Jubran was the complainant below. The Petitioner, The Board of School Trustees of School District No. 44 (North Vancouver), was the subject of the complaint below.
[3] The decision below appears before me as Exhibit "A" to the affidavit of John D. Truscott, Q.C. (As he then was).
[4] The decision below is lengthy. I will take it as read. For the sake of convenience I will attach a copy of the decision below to these my Reasons for Judgment.
[5] Jubran attended Handsworth Secondary School from 1993 to 1998. His high school years were a living hell. Why? Because a group of students singled him out for attack. For reasons unknown - and probably capable of being understood only by the addled brains of certain teenagers - Jubran was a pariah.
[6] The students' attacks on Jubran took a specific form. The group of students under discussion despised homosexuals and all things associated by them with homosexuals. That is obvious. In the result, the attacks on Jubran took various forms, including calling him "homo", "queer", "gay" and preparing crude drawings saying "HOMO" or portraying him as a boy in love with another boy. Universally applicable labels such as "dork" and "geek" were also flung Jubran's way. But the heart of the attack on Jubran drew on terms that come quickly to the lips of homophobes. Jubran is not a homosexual. Of overarching importance, the Tribunal proceeded on the basis that even if it accepted as a fact that the students who attacked him did not believe Jubran to be a homosexual their conduct fell within s. 8 of the Human Rights Code, infra. For my purposes therefore the case must be approached as one in which Jubran is not a homosexual and the students did not believe him to be a homosexual. (See the decision below, paras. 90 to 101).
[7] The Human Rights Tribunal ultimately found as follows:
(1) The Petitioner before me - the School Board - was found to have contravened s. 8 of the Human Rights Code, R.S.B.C. 1996, as amended, "by failing to provide a learning environment free of discrimination". (See the decision below, para. 118).
(2) The School Board had not established a "bona fide and reasonable justification" within the meaning of s. 8 of the Human Rights Code.
[8] The question of the remedy then arose and was dealt with by the Human Rights Tribunal. But as nothing concerning the remedy is before me, I will not go into the detail.
[9] Back at step 1 of the ultimate conclusions of the Human Rights Tribunal - the finding by the Tribunal that the School Board had contravened s. 8 of the Human Rights Code - the material findings of fact made by the Tribunal throw up a question of law that arises under s. 8 of the Human Rights Code and is general in nature.
[10] The standard of review as to a question of law that is general in nature is "correctness". (U.B.C. v. Berg 102 D.L.R. (4th) 665 at 676-677 (S.C.C. 1998)).
[11] The question of law under discussion can be got at this way:
(1) Section 8 of the Human Rights Code reads as follows:
(1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service of facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.
(2) The Supreme Court of Canada has ruled that both the Human Rights Tribunal and I must approach legislation such as s. 8 as follows:
(a) Interpreting human rights legislation
In my reasons in Heerspink, supra, I commented on the unique nature of human rights legislation (at p. 229):
When the subject-matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.
Following Heerspink, this court has had many occasions to comment on the privileged status of human rights legislation. In Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p. 329) that "[l]egislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary - and it is for the courts to seek out its purpose and give it effect". This court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, supra, at p. 580, "must be so interpreted as to advance the broad policy considerations underlying it". These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which directs that "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
This interpretive approach does not give a board or court licence to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.
(U.B.C. v. Berg, supra, at 677-678.)
(3) The finding that lies behind the Human Rights Tribunal's conclusion at step 1 - the conclusion that the School Board contravened s. 8 of the Human Rights Code - was that the conduct of the students who so obviously discriminated against Jubran fell within s. 8 of the Human Rights Code. (See the decision below, para. 101).
(4) Stripped to its essentials, the language of s. 8 that the Human Rights Tribunal had to find captured the conduct of the students in the case at bar is this:
A person must not...discriminate against a person or class of persons...because of the...sex or sexual orientation of that person or class of persons.
(5) Jubran is not a homosexual and the students who attacked him did not believe he was a homosexual. (As noted above the Tribunal's reasons are structured in such a way that I must proceed on this basis. See the decision below, paras. 90 to 101).
(6) In light of the concluding words of s. 8 "...because of the...sex or sexual orientation of that person or class of persons" is not the cruel and disgusting conduct of the students in the case at bar wholly without s. 8 of the Human Rights Code?
[12] In my respectful view the answer to that question is simply Yes. No sensible use of the English language admits of any other conclusion. And if I am wrong in treating this question as one of general law then the application of law to a particular set of facts is afoot, the standard of review is reasonableness and the result is the same for the Tribunal's finding at step (1) (supra) was in turn based on an unreasonable conclusion, i.e. that s. 8 captured the conduct of the students in the case at bar. (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.)
[13] The Supreme Court of Canada has ordered the Tribunal and me not to let the application of legislation such as s. 8 of the Human Rights Code slip the anchor of the words chosen by the legislature. (U.B.C. v. Berg, supra, at 678). The Tribunal's decision, and the submission placed before me by Jubran's counsel, equate discrimination through harassment by the use of hurtful words of a sexual nature with discrimination "because of the sex or sexual orientation OF THAT PERSON OR CLASS OF PERSONS". (Emphasis added). That those two things may coincide in a given case does not mean that they do coincide in every case. And here, in the case at bar, the bottom facts as found by the Human Rights Tribunal take the case wholly outside the words of the Act.
[14] In the result the Human Rights Tribunal's conclusion at step 1 - that the School Board contravened s. 8 of the Human Rights Code - was based on an incorrect finding, i.e. that the students' conduct fell within s. 8 of the Code.
[15] That being so the decision of the Human Rights Tribunal is fatally flawed and must be, and is, quashed. I say nothing about any point taken by counsel for the Petitioner other than the simple, discrete point dealt with in these Reasons for Judgment. I agree with counsel for the Petitioner who said, in effect, that this is not a case for further reasons "in the alternative".
[16] Should the order I make be anything more than that the Human Rights Tribunal's decision is quashed? The answer is Yes. This is a case for the court to bring a halt to these proceedings subject to my decision being reversed on appeal. In the result, the order is that the decision below is quashed and the administrative proceedings are ended, i.e. I order that the matter not be remitted to the tribunal below.
[17] If counsel cannot agree as to the disposition with respect to costs, they will have to get back before me.
“A.M. Stewart, J."
The Honourable
Mr. Justice A.M. Stewart
Case Name:
Jubran
v. North Vancouver School District No. 44
IN THE MATTER
OF the Human Rights Code
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE
MATTER OF a complaint before the
British Columbia Human Rights Tribunal
Between
Azmi Jubran, complainant, and
Board of Trustees, School District No. 44
(North Vancouver), respondent, and
Deputy Chief Commissioner, BC Human
Rights Commission
[2002] B.C.H.R.T.D. No. 10
2002 BCHRT 10
British
Columbia Human Rights Tribunal
Vancouver,
British Columbia
C.
Roberts
Heard: September
11 - 15, 19 - 22, 2000,
June 11 - 13 and July 12, 13 and 16, 2001.
Decision: April
8, 2002.
(232 paras.)
Appearances:
|
| Clea F. Parfitt,
counsel for the complainant. |
|
|
| REASONS FOR DECISION |
|
| INTRODUCTION |
|
|
¶ 1 On June 19, 1996, Azmi Jubran filed a complaint (Exhibit 1) with the B.C. Human Rights Commission, in which he alleged that the Board of School Trustees, School District No. 44 (North Vancouver) [the "School Board"] discriminated against him regarding an accommodation, service or facility customarily available to the public because of his sexual orientation, contrary to Section 8 of the Human Rights Code, R.S.B.C. 1996, c. 210 (as amended) [the "Code"]. The Deputy Chief Commissioner added himself as a party to the hearing on October 15, 1999, pursuant to s. 36(1) of the Code.
BACKGROUND
¶ 2 Mr. Jubran was born in Vancouver in 1980. From September 1993 to June 1998, he attended Handsworth Secondary School ["Handsworth"] in North Vancouver. Handsworth is located within School District No. 44 (North Vancouver). Currently, there are approximately 70 teachers and 1335 students in Grades 8 through 12 at Handsworth.
¶ 3 Mr. Jubran, who does not identify himself as homosexual, alleges that, for the five years he attended Handsworth, he was taunted with homophobic epithets and physically assaulted, including being spit upon, kicked and punched by other students, because of his perceived sexual orientation. Mr. Jubran further claims that the School Board knew about other students' behaviour towards him, and that it is responsible for the harm caused to him because it failed to provide him with a safe learning environment.
¶ 4 The DCC argues that the School Board is in violation of the Code because it failed to adequately address homophobic harassment at Handsworth.
¶ 5 Although there was some dispute about the extent and duration of the harassment, the School Board does not dispute that Jubran was verbally and physically harassed. However, it argues that it cannot be responsible for failing to eradicate discrimination among the student population. Further, the School Board argues that, as a matter of public policy, the Tribunal should not judge the suitability of the school's efforts to minimize such behaviour.
EVIDENCE
¶ 6 I heard evidence from Mr. Jubran, his parents, Fouad and Jacqueline Jubran, and his uncle, Bill Jubran. I also heard from Maryann Macario, Mr. Jubran's Food and Nutrition teacher in Grade 10 and 11, and Patricia Gall, a teacher in the Learning Assistance Centre ("LAC") at Handsworth who worked with Mr. Jubran from grades 9 to 12.
¶ 7 The School Board's witnesses were Robin Brayne, the Superintendent of Schools for School District 44 since 1989; Terry Shaw, the principal at Handsworth since September 1994; Michael Rockwell, the vice-principal from 1985 to 1997; Don Carleson, one of the school counsellors, and Arlene Burlone, the principal of Westview Elementary School in North Vancouver. I also heard from Trevor Howard, Brian Higgins, Matthew White, Derek Kai, Scott Watson and Matt McKay, all former classmates of Mr. Jubran, and Christian Richardson, a student at Handsworth from 1992 to 1997.
Grade 8 (September 1993 - June 1994)
¶ 8 Mr. Jubran testified that, when he first arrived at Handsworth, he was called names such as "homo", "faggot" and "gay". He told the students that he was not gay or homosexual, and asked them to stop calling him names. According to Mr. Jubran, the name-calling, which was at times accompanied by pushing and shoving in gym class and hallways, got worse during the course of the year. At the end of grade eight, Mr. Jubran was hit in the eye by a paper projectile in science class, which caused a small abrasion. Mr. Jubran acknowledged that the fact that the projectile hit him could have been accidental.
¶ 9 Mr. Jubran also testified that students bothered him on his way home from school, so he changed his route home. Although there is no evidence that Mr. Jubran or his parents reported this behaviour to anyone at the school, Mr. Jubran's physical education teacher noted that Mr. Jubran was "picked on a little".
Grade 9 (September 1994 - June 1995)
¶ 10 Mr. Jubran testified that name-calling, hitting, punching and spitting incidents occurred both during school hours in classrooms and hallways, and before and after school. His evidence was that the name-calling occurred about 5 to 10 times per month. On one occasion, in woodworking class, other students threw nails, wood and screws at him, and someone shouted "Azmi is gay". Mr. Jubran testified that, in one band class, all the students started chanting "Azmi is gay" when the teacher was not in the classroom.
¶ 11 During the fall, a pizza was delivered to the Jubrans' home that they had not ordered. From the telephone number on the delivery slip, Fouad Jubran determined that a student at Handsworth was involved. Fouad and Jacqueline Jubran met with Mr. Shaw to discuss this incident. Fouad Jubran also spoke to Mr. Shaw about the name-calling, spitting and hitting directed at his son at school. Mr. Shaw told Fouad Jubran to instruct his son to report all incidents in the future so that they could be dealt with.
¶ 12 Mr. Jubran met with Mr. Shaw, and provided him with the names of students who were bothering him. This was the first time Mr. Jubran complained to Handsworth authorities that he was being harassed. Mr. Jubran testified that, after he gave Mr. Shaw the list of names, he was terrified because he had previously been threatened. He said that "things cooled down" for a period of time after the pizza incident.
¶ 13 Mr. Shaw delegated the responsibility of dealing with Mr. Jubran's complaints to Mr. Rockwell. Both Mr. Shaw and Mr. Rockwell asked Mr. Jubran's teachers if they had witnessed any harassing behaviour in their classrooms.
¶ 14 Mr. Jubran met with Mr. Rockwell shortly thereafter and recounted to him the pizza incident as well as the incidents of name-calling, hitting, kicking and spitting. Mr. Rockwell testified that he did not feel that Mr. Jubran's report was unusual because many students frequently complained that other students were picking on them. At this point, Mr. Rockwell did not document the incidents because he considered them on the lower end of the spectrum of disciplinary issues he dealt with. At the high end were physical violence, and drug and alcohol abuse.
¶ 15 Mr. Rockwell identified three students involved in name-calling and spitting incidents. He discussed with them the inappropriateness of their behaviour, and warned them of escalating consequences, such as detentions, discussions with their parents, suspensions and possibly expulsions, if they repeated their behaviour.
¶ 16 Mr. Rockwell determined the identity of the student responsible for the pizza incident. The student received a 31/2 hour detention for it, and was not involved in any further incidents with Mr. Jubran.
¶ 17 Mr. Rockwell testified that he informed Mr. Jubran of the steps he had taken to address the harassment Mr. Jubran had experienced, and asked Mr. Jubran to report any further incidents to him.
¶ 18 Ms. Gall testified that she worked with Mr. Jubran in the LAC from January 1995 in his grade 9 year until the end of grade 12. In grade 9, he spent 1 to 2 hours per week in LAC, and increased this to 3 hours per week in grades 10 through 12. Ms. Gall said that it was important for Mr. Jubran to have a quiet place to work because he was easily distracted. Mr. Jubran spoke to her about the teasing and name-calling he was experiencing. Ms. Gall did not observe these behaviours in the LAC because there were only 4-8 students there at a time, and it was well-supervised. When Mr. Jubran told Ms. Gall about the harassment, she discussed his concerns with other teachers, specifically Linda Barry and Mr. Rockwell. She also testified that she spoke with Daria Bagnall, Mr. Jubran's English teacher, to ask her to be vigilant about that kind of behaviour in her classroom. Ms. Gall found Mr. Jubran very friendly and courteous.
¶ 19 In September 1994, Handsworth formalized a Code of Conduct ("CC"), pursuant to a School Board policy. It was an official compilation of disciplinary rules that had been in existence for several years. The CC was developed with school, teacher and parent input, in accordance with the School Act (R.S.B.C. 1996, c. 412) requirements, and with School Board policy.
¶ 20 The CC set out general principles of conduct for students, and certain forms of prohibited behaviour, such as fighting and plagiarism. It referred to prohibited behaviours based on "perceived differences". Although sexual orientation was not specifically identified, Mr. Brayne testified that the CC was meant to be broad enough to cover sexual orientation.
¶ 21 Violations of the CC are determined by the administration after an investigation, or on the spot by a teacher or hallway monitor. Mr. Brayne testified that the School Board and the legislation entrust a principal to make those decisions, and provide the principal with the resources to assist him or her in making that determination. Punishment included warnings, detentions, notification of parents or the R.C.M.P. and suspension.
Grade 10 (September 1995 - June 1996)
¶ 22 Mr. Jubran testified that the name-calling and threats continued in grade 10, occurring mostly in hallways between classes, and that he continued to report incidents of harassment to Mr. Shaw or Mr. Rockwell because his parents encouraged him to do so. Both Mr. Shaw and Mr. Rockwell testified that, although they regularly asked Mr. Jubran how he was doing, and encouraged him to discuss any problems with the administration, he did not report any incidents of harassment until May 1996.
¶ 23 Maryann Macario testified that, during one class, she heard a student loudly shout out to Mr. Jubran something along the lines of "faggot" and "gay". She stopped the class and reminded the students that this kind of behaviour was unacceptable. She told the students that when she was a student, she had been harassed about her size. She told the students how devastating it was to her, and that if they cared about each other they wouldn't treat each other that way. She informed the class what steps she would take if the name-calling happened again, and that the behaviour could result in a suspension. Ms. Macario never heard similar comments directed towards Mr. Jubran or any other student in her class after that time.
¶ 24 At the time of this incident, Ms. Macario had not been advised by the administration that Mr. Jubran had previously been subjected to this type of behaviour. She later received a written memo addressed to all Mr. Jubran's teachers that his parents had complained and that the teachers were to be vigilant about that kind of behaviour in the classroom.
The Howard assault
¶ 25 On May 27, 1996, in a woodworking class, Mr. Jubran hit Trevor Howard in the face, seriously injuring him. Mr. Jubran testified that he hit Mr. Howard because he heard Mr. Howard call him gay. Mr. Jubran said that he was so angry and frustrated at being repeatedly called gay that he lost control.
¶ 26 Mr. Rockwell spoke individually with three witnesses in the class who acknowledged that, while there had been some name-calling, they were unable to say that Mr. Howard was responsible. They also said that the woodworking teacher left the room often.
¶ 27 Mr. Rockwell testified that the woodworking teacher told him that he had warned the students not to call each other names or to pick on Mr. Jubran.
¶ 28 Mr. Howard denied calling Mr. Jubran gay. He testified that Mr. Jubran walked to the back of the class and asked him whether he had called him "gay". Mr. Howard, who said that he had never called Mr. Jubran names in a classroom setting, replied to Mr. Jubran "what do you think"? Mr. Howard testified that Mr. Jubran then "sucker punched" him. In Mr. Howard's opinion, Mr. Jubran picked on him because he was the smallest male in the class. Mr. Howard testified that he did not think that the teacher had heard the name-calling, because he generally asked the students to stop when he heard name-calling, and that day he said nothing.
¶ 29 Mr. Carleson testified that Mr. Jubran told him that he had "sucker punched" Mr. Howard because of something Mr. Howard had said to him. Mr. Carleson was not aware whether the name-calling had been a problem for some time before the assault.
¶ 30 Mr. Jubran was suspended for assaulting Mr. Howard. Mr. Jubran reported to Mr. Rockwell that he had been picked on all year by a number of students. Because Mr. Rockwell suspected that provocation was involved, he reduced the usual four to five day suspension to two days. Mr. Rockwell also warned Mr. Howard about the consequences of his behaviour. Mr. Jubran was criminally charged with assault following the incident.
¶ 31 Mr. Rockwell and Mr. Shaw met with Fouad and Bill Jubran in June 1996 to discuss the Howard incident. Although Fouad and Jacqueline Jubran were concerned and upset that their son had become physical, they testified that they were not surprised that he had reacted the way he did. Fouad Jubran told the school that, in his opinion, the school was "not doing enough" about the harassment his son was experiencing.
¶ 32 Mr. Shaw and Mr. Rockwell decided to personally document and investigate all future incidents to determine whether the bullying behaviour was happening in places other than the woodworking class. They told Mr. Jubran to report all incidents immediately.
¶ 33 Mr. Jubran discussed the criminal charges with Ms. Gall. She was concerned that the effect of the charges would cause him to lose concentration. She said that he would often talk about the trial and how nervous he was about it and how preoccupied he was.
¶ 34 Mr. Howard, who had attended classes with Mr. Jubran since grade 8, testified that he observed Mr. Jubran being called names through grades 8, 9 and partway through grade 10, but that the name-calling was less frequent in grades 11 and 12.
¶ 35 Mr. White testified that Mr. Jubran was called names most often in woodworking class when the teacher was out of the room. His evidence was that Mr. Hummel was the perpetrator of the name-calling that day, and that he had also been called names by Mr. Hummel.
¶ 36 Mr. Howard, Mr. Higgins, Mr. Watson and Mr. White all testified that the terms "faggot" and "gay" were used very frequently at the school, and that they themselves were regularly called those names, as well as "dork" and "geek". Mr. Howard, Mr. Kai and Mr. White also acknowledged that they called Mr. Jubran those names, as well as "ga", which was the students' short form of "gay". Mr. Howard testified that, although he heard other students insulting Mr. Jubran in class, it was not a frequent occurrence. Mr. White's evidence was that the name-calling occurred mostly outside the classroom, in hallways and off school grounds. Mr. Watson testified that he saw groups of male students "ganging up" on Mr. Jubran, calling him names, and that similar incidents had also happened to him.
¶ 37 Mr. Howard, Mr. Higgins, Mr. Kai, and Mr. White all testified that, when the words were spoken by someone who was not a friend, the terms "dork", "geek", "gay", and "faggot" were used interchangeably as words of insult or as a put-down. Their evidence was that the words were not intended to imply that Mr. Jubran was homosexual, and that neither they nor others who called Mr. Jubran those names were of the view that Mr. Jubran was homosexual. Mr. Howard and Mr. Kai denied that any of the "sting" of the words resulted from the fact that they related to homosexuality; they testified that the words were simply used as another form of insult.
¶ 38 Mr. Howard testified that he never considered whether Mr. Jubran disliked the name- calling. He was of the view that he would just "let it go", as he himself did. Mr. Higgins testified that he did not really feel insulted when he was called those names.
¶ 39 Mr. Howard, Mr. Kai, Mr. Watson and Mr. Higgins all testified that it was widely known that there were certain words they were not permitted to use, and that, at the end of grade 10, Mr. Rockwell had prepared a list of names of people who had been bothering Mr. Jubran. Mr. White and Mr. Watson testified that they knew students would be disciplined and could be suspended for that behaviour. Mr. White testified that he recalled Mr. Shaw telling students that name-calling was serious, and that it could not continue. Mr. Watson testified that he had been told in school assemblies that the name-calling was unacceptable. Mr. Higgins and Mr. Kai testified that, although they were not aware of any policy about the use of words, they knew that it was unacceptable, and that they would be disciplined for it. They testified that if the school authorities had information that students had called Mr. Jubran names, Mr. Rockwell would pull the students from class and discipline them. Both Mr. White and Mr. Higgins were questioned by Mr. Rockwell about their participation in calling Mr. Jubran names, and were warned of the consequences of continuing their behaviour. Mr. Higgins and Mr. Kai testified that the discipline applied by Mr. Rockwell was effective in making them stop calling Mr. Jubran names because they did not want to face punishment for doing so. Mr. White, however, testified that he continued to call Mr. Jubran names, because Mr. Jubran "tattled" on him, until Mr. White's mother was called to meet with Mr. Shaw. Mr. White testified that he stopped name-calling at that point because he didn't want to get into trouble with both his mother and the principal. Mr. Watson was of the opinion that all name-calling of Mr. Jubran stopped in grade 12.
¶ 40 Mr. Kai and Mr. Higgins testified that they did not observe Mr. Jubran being hit, kicked, or spit on. Mr. Howard and Mr. White testified that they observed Mr. Jubran in physical altercations with other students. Mr. Higgins testified that he also saw Mr. Jubran threatening other students. Mr. White testified that he saw other students throw things at Mr. Jubran.
¶ 41 Mr. Howard testified that he was aware that the school wanted the name-calling to stop, and that he stopped after Mr. Jubran punched him.
¶ 42 Mr. Higgins testified that he frequently observed people calling Mr. Jubran "gay" and "faggot", and that some of these name-calling incidents occurred in classrooms.
¶ 43 Chris Richardson attended Handsworth for 5 years, graduating in 1997. Mr. Richardson was the student council vice president for publicity, and was involved with the school band and the production of the school newspaper. Mr. Richardson was also involved in peer counselling, and was aware there were bullying problems in the school. Although he was acquainted with Mr. Jubran through his involvement in these school activities, he did not socialize with him. Mr. Richardson said he became aware of who Mr. Jubran was when he was in grade 10, and Mr. Jubran was in grade 9. He testified he learnt that there was "an issue" with Mr. Jubran when he was in the office on one occasion and Mr. Jubran came in to make a complaint. Mr. Richardson testified that he observed Mr. Jubran being called names like "loser" and "dork", as well as other derogatory homosexual names such as "gay" and "homo", but never heard him being called the words "faggot" and "queer". Mr. Richardson testified that he also observed Mr. Jubran reacting by calling another student "gay". He also testified that Mr. Jubran physically reacted, not by physically contacting other students, but by demonstrating physically aggressive movements towards them.
¶ 44 Mr. Richardson testified that the words used by the students were "part of the high school vocabulary", and that words like "gay" were used to describe someone, something, or a situation that a student didn't like. Mr. Richardson testified that he himself used those words "all the time". He testified that it would be common for a student to say "that shirt is so gay" or "the long jump is so gay" if the student didn't like it. He also said that the words "queer", "faggot" and "homo" were commonly used as part of normal conversation, even amongst friends, as terms of endearment. He testified that he still has a friend who says to him "what's up homo?", and that those words are used without reference to sexual orientation. Mr. Richardson testified that he himself had an experience of being called "homo" and "gay" by a school bully. He said that he was angry about being called those names, because he didn't understand why he was being called that. However, Mr. Richardson said that he knew it wasn't because the student thought he was homosexual. Mr. Richardson testified that he believed that the student was kicked out of the school band and out of school after he complained about him. Mr. Richardson testified that it was not always the same group of students who participated in name-calling, but that the group changed every year. Those students were popular and liked to "ridicule" others who were not as popular. Mr. Richardson's evidence was that he never saw or heard anyone who thought Mr. Jubran was gay. His explanation of the reason that Mr. Jubran was called names more often than other students was that "he tried to insert himself" into crowds of students who didn't want him to join, and that he did things that irritated other people. Mr. Richardson also testified that he saw Mr. Jubran try to trip someone who called him names. Mr. Richardson had been told by the counselling or the administration staff, as well as in classrooms that the use of the terms "homo" and "faggot" were not appropriate. He testified that, initially, he did not know what the words meant, he was aware that the words were meant to be derogatory, but not necessarily with respect to sexual preference.
Grade 11 (September 1996 - June 1997)
¶ 45 Fouad and Jacqueline Jubran testified that they met with Mr. Rockwell and Mr. Shaw at the beginning of Mr. Jubran's grade 11 year. Neither Mr. Shaw nor Mr. Rockwell had any memory of that meeting. Based on the administration's practise of documenting incidents and meetings after the Howard assault, I accept that Mr. Jubran's parents did not meet with Mr. Shaw and Mr. Rockwell in September 1996. It may be that the Jubrans' have confused this meeting with the one that occurred in January 1997, as their recollection of what occurred is consistent with the events of that meeting.
¶ 46 The administration documented over 12 incidents of harassment reported by Mr. Jubran, the first of which was on September 3rd. I do not consider it necessary to set any of them out in detail. There is no dispute that the incidents, which occurred both inside and outside of school, consisted of Mr. Jubran being called names such as "faggot", "queer", "gay", "homo", Mr. Jubran being pushed, shoved and having things thrown at him, and one incident where Mr. Jubran intercepted a note being sent around class depicting him holding hands with another male student. Each incident was investigated by Mr. Rockwell, and the students involved were warned. With the exception of three students, the students did not re-offend after being warned.
¶ 47 In one incident, because Mr. Rockwell heard different accounts from Mr. Jubran and the other student, he asked them to write out their version of the incident, show it to their parents, and have their parents sign the statement. Mr. Rockwell testified that he did this so that the parents were aware of what had happened, that it had been reported, and the school was trying to deal with it.
¶ 48 Mr. Jubran filed his human rights complaint in November 1996.
¶ 49 Following reports of incidents in December, Mr. Rockwell and Mr. Shaw arranged to meet with two students and one of their parents in mid-January because these reports were the second and third incidents involving these students. They also set up a meeting with a third student and his parents for June 1997. In the meetings with the first two students and their parents, Mr. Rockwell outlined the details of the incidents. Mr. Shaw discussed the CC, and told them that, if the harassment continued, the students could face suspension from school. Mr. Rockwell stated that both students acknowledged calling Mr. Jubran names at those meetings, but said that they didn't mean anything by it, and that it was usually in response to something Mr. Jubran had done. The students were told that provocation was not a defence to their actions. Mr. Rockwell testified that generally, in the discussions with the other students, while they acknowledged that they did call Mr. Jubran names, they considered it a joke. The students told him that they were "just trying to bug" Mr. Jubran, and they didn't mean anything by it. Mr. Rockwell was of the belief that the students did not think Mr. Jubran was gay, but they used the words pejoratively, in order to elicit a response.
¶ 50 Mr. Rockwell's evidence was that the students' parents were shocked that their sons would be involved in this behaviour, but accepted the consequences that Mr. Shaw set out if their behaviour continued.
¶ 51 In January, one of the students received a three-day suspension for his participation in the note incident, because he had previously been warned, and his parents spoken to about his behaviour. That student was later expelled from Handsworth, although not entirely because of his behaviour towards Mr. Jubran.
¶ 52 Mr. Shaw became personally involved in Mr. Jubran's complaints in January 1997, when he reported that he had been harassed by a group of grade 10 boys. Mr. Rockwell investigated the incident, obtained the names of the students involved, warned them about the seriousness of their behaviour, and the consequences of their actions if the behaviour continued.
¶ 53 Mr. Carleson spoke to Mr. Jubran again at Mr. Shaw's request some time after the Christmas vacation. Mr. Jubran told Mr. Carleson that he was being picked on in hallways, and that he had reported that to Mr. Rockwell. Mr. Carleson testified that he saw less of Mr. Jubran in grade 11 than he did in grade 10, and even less in grade 12.
¶ 54 On January 9, 1997, Mr. Rockwell contacted Fouad and Jacqueline Jubran to set up a meeting in February. Bill Jubran accompanied them to the meeting. Although both Mr. Shaw and Mr. Rockwell acknowledged that the meeting was organized, in part, because Mr. Jubran had filed his complaint with the Commission, they testified that the primary purpose was to discuss Mr. Jubran's situation at school, and to outline the school's approach in dealing with them.
¶ 55 Fouad and Jacqueline Jubran testified that they were frustrated because, although the school promised to do something about their son's harassment, there was no evidence that things had improved. Fouad Jubran testified that he told Mr. Shaw and Mr. Rockwell that he was not satisfied with the school's disciplinary measures, held up the school's CC and said that it hadn't protected his son from harassment and criticism. Part way through the meeting, Fouad Jubran became very upset, said that his son had been a victim for three years, and asked "Are you waiting for my son to be knifed?" He then said, "I'll sue your ass if anything happens to my son", and swore at Mr. Shaw and Mr. Rockwell.
¶ 56 Mr. Shaw said that he was surprised at Fouad Jubran's reaction, and asked him to leave the meeting. Fouad Jubran testified that he left of his own accord. Mr. Shaw denied telling Fouad and Jacqueline Jubran that he was unable to solve the problem, or that it was not his responsibility to solve it. The meeting continued between Mr. Shaw, Mr. Rockwell, Jacqueline Jubran and Bill Jubran. Mr. Shaw outlined what the school would continue to do, and sought input from Jacqueline and Bill Jubran. Bill Jubran expressed the view that, because nothing had changed, the discipline the school was handing out was insufficient, that the school should use hall monitors, and hold assemblies to discuss homophobic taunts. Bill Jubran also testified that he told Mr. Shaw and Mr. Rockwell that they were not doing enough.
¶ 57 In Mr. Shaw's opinion, the school had been responding very well. He testified that both he and Mr. Rockwell had made themselves available to Mr. Jubran, each incident was dealt with quickly, and on its own merits, and disciplinary measures were taken if necessary. In the January meeting, he and Mr. Rockwell outlined each incident for Jacqueline Jubran and Bill Jubran, and the school's process of dealing with the complaints. He told them that they needed to investigate the accuracy of Mr. Jubran's reporting, that they discussed each incident with the students involved and educated them on the damage name-calling could do. Mr. Shaw testified that he reviewed the CC and outlined what steps the school would take. They emphasized to Mrs. Jubran how important it was that Mr. Jubran report all incidents as soon after each incident as possible. Mr. Shaw testified that they also discussed other strategies with Bill and Jacqueline Jubran. Mr. Shaw also told them that the school thought things had settled down in grade 11 because Mr. Jubran had not reported any incidents for a number of weeks. Jacqueline Jubran responded that things had not settled down, that Mr. Jubran was having trouble sleeping, and that he was concerned about grade 12. Bill Jubran told them that the CC should have more substance, and that students should automatically be suspended for any kind of harassment. In Mr. Rockwell's view, "zero tolerance" did not mean automatic suspension from school the first time a student was proven to have harassed another student. Mr. Shaw replied that there were problems with defining harassment, that often students who used bad words were friends, and he was not certain whether the name-calling was taunting or a joke. He outlined the difficulties of applying a blanket policy, but agreed that they would consider it. He and Mr. Rockwell also pointed out that investigating each incident took a great deal of staff time. They told Mrs. Jubran that they were in the process of organizing a seminar for teachers that would assist them in defining and dealing with harassment.
¶ 58 Mr. Rockwell did not agree with Bill Jubran's assessment that the disciplinary measures the school was employing were insufficient. He testified that he was of the view that he was acting according to the firm and judicious parent standard set out in the School Act. Mr. Rockwell indicated that the school employed two hall supervisors, and a discussion of the school's rules and regulations during school assemblies was already occurring.
¶ 59 Mr. Shaw and Mr. Rockwell met with Mr. Jubran on March 4, 1997 because they hadn't seen him for some time, and wanted to find out if there was anything he hadn't reported. They asked him how the school could support him, and asked how he was doing. Mr. Jubran told them that there had been no serious incidents of harassment, and that he "ignored the comments now". Mr. Jubran told Mr. Shaw that he was trying to focus on his schoolwork. According to Mr. Shaw, Mr. Jubran told him that students appeared to be backing off him, and that he was "trying to get on with his life". When asked how he felt about grade 12, Mr. Jubran said that, although he had some concerns, he would carry on. Mr. Shaw felt positive about the meeting, and left with the impression Mr. Jubran would report any incident he felt necessary.
¶ 60 Mr. Jubran was of the view that the school tried to follow up with him a bit more after the February meeting with his parents. He conceded that either Mr. Shaw or Mr. Rockwell took his complaints, reported back to him the results of their investigations and actions, including whether they had spoken to the students and their parents, and suspended or otherwise disciplined the students.
¶ 61 Mr. Jubran testified that, later in the year, following further incidents of harassment, he started to lose faith in the school, and felt that the school "didn't care". He testified that Mr. Rockwell had told him a number of times that he would deal with the situation, and he felt that Mr. Rockwell was not doing that.
Grade 12 (September 1997 - June 1998)
¶ 62 When Mr. Jubran was in grade 12, Mr. Shaw was the primary person dealing with complaints, as there were two new vice principals in the school. Mr. Jubran reported 5 incidents of harassment this year, only two of which will be set out. The other 3 consisted of incidents similar to those that occurred in grade 11.
¶ 63 On September 5, 1997, while in a large grade 12 physical education class, Mr. Jubran felt something touch his shirt, and smelled something burning. He discovered that a coin-sized hole had been burned into his shirt. Mr. Jubran himself was not burned. The physical education teacher first reported this incident to Mr. Shaw, followed later by Mr. Jubran. None of the teachers present saw the incident, or knew which student was responsible, but were aware that a lighter had been used to burn the shirt.
¶ 64 Mr. Jubran gave Mr. Shaw the names of three students who had been sitting behind him in the class, as well as the names of two other students who might be witnesses to the incident. One of the teachers, Mr. Leveille, spoke to one of the students about the incident the following weekend, because he had information that that student was responsible.
¶ 65
Mr.
Shaw interviewed four of the students. One of the students acknowledged
during his interview with Mr. Shaw that he had spoken with Mr. Leveille, and that
he had taken responsibility for setting the fire. The student told
Mr. Shaw that he only admitted responsibility for the incident because his best
friend had actually done it. The student concluded that the only consequence
of admitting responsibility would be that he would not be going on the field trip
and he would have to forfeit the $50 field trip fee. The student told
Mr. Shaw that the person who was actually responsible was going to pay him the
$50. Mr. Shaw testified that, because he had a false confession, he
had to continue his investigation to determine who the responsible party was. All
four of the witnesses to the incident either denied seeing anyone actually burning
the hole, denied any personal responsibility, or refused to reveal who was responsible. Mr.
Shaw testified that he suspected one particular student, but when Mr. Shaw confronted
him with his suspicions, the student identified someone else as the responsible
party. Mr. Shaw attempted to contact this student's parents, but neither
of them were in
¶ 66 Fouad and Jacqueline Jubran became concerned about their son's physical safety after this incident. Fouad Jubran contacted the RCMP to assist him because he had lost faith in the school's ability or willingness to deal with the situation. His evidence was that the RCMP refused to lay charges without a name, and advised Fouad Jubran to deal with the school.
¶ 67 Mrs. Jubran testified that, after this incident, she called Mr. Rockwell and begged him to do something. She told him that she thought things had gone too far, and that she was concerned that something else was going to happen that would be worse for her son. She testified that she expressed her frustration about what she perceived as a lack of action on the school's part. Mrs. Jubran testified that Mr. Rockwell had little to say in response to her concerns. However, Mr. Rockwell was no longer at the school at this time, and Mr. Shaw had no recollection of receiving such a call.
¶ 68 Shortly after the shirt-burning incident, the grade 12 class went on a camping trip, which was a physical education class designed to develop leadership skills and a sense of community amongst the students. Mr. Jubran testified that he woke up at 1 a.m. because someone was urinating on his tent. Two boys outside the tent were talking about how "choked up" the student who had been suspended was about not being able to be on the trip. They then talked about how funny it would be to dip Mr. Jubran in acid. Mr. Jubran testified that, although the students never mentioned him by name, he knew they were referring to him because of references they made to a hole in his shirt.
¶ 69 Mr. Jubran testified that, when he reported this incident to Mr. Shaw, he said he could not investigate it because the students outside the tent did not identify Mr. Jubran by name. Mr. Shaw testified that he did not investigate this incident because he was occupied investigating the shirt-burning incident. He gave evidence that he was aware that the physical education teachers were very unhappy with the way the field trip had gone, and that at least one of the teachers spoke to the students about what they considered to be very poor judgment.
¶ 70 In October 1997, a physical education teacher reported to Mr. Shaw an incident in which students had thrown nails and grapes at Mr. Jubran and had sent him a nasty note, during a school Halloween project. After speaking to Mr. Jubran and investigating the incident, Mr. Shaw concluded that Mr. Jubran had been hit with grapes and rolled up balls of duct tape, and had had a toy machete waved in his face. Mr. Jubran did not provide Mr. Shaw with the note or tell him what the note said, although he indicated it contained the word "gay".
¶ 71 Mr. Shaw spoke to the students, and warned one that he would call his parents and that, if there were any further incidents reported, he would be suspended. Mr. Shaw informed the student's father the following week that his son was involved in a serious situation, and that, if there were any further incidents involving his son harassing Mr. Jubran, he would be suspended. Mr. Shaw warned all of the other students.
¶ 72 In May 1998, Mr. Jubran reported that someone shouted "Azmi is gay" from an open window into the courtyard of the school where he was sitting. Mr. Jubran identified the student responsible and gave Mr. Shaw the name of a witness. The witness confirmed the words, but could not identify the person responsible for uttering them. Mr. Shaw spoke with the student Mr. Jubran identified, who denied any responsibility for the name-calling, and suggested it was another student. Mr. Shaw said that it took him some time to investigate this incident because of his administrative responsibilities; he spoke with the second student in June 1998. The second student told him that he thought the other student said something, but he couldn't remember what it was. The second student also told Mr. Shaw that he had been told by the first student that he had implicated the second student because, if the first student had admitted calling Mr. Jubran "gay", he would be suspended. Because regular classes were over, Mr. Shaw called the students on June 25th to determine who was responsible. Mr. Shaw testified that he was met with "hostility" and "attitude" from the students, so he spoke to their parents. The first student's father said that he had discussed the incident with his son, and that he was certain that his son had not spoken those words because he knew what the consequences would be. The second student's mother told Mr. Shaw that she had a long talk with her son, and that he absolutely denied it. In June, Mr. Shaw called Mr. Jubran at home. He explained that he was still investigating the incident, and that, even though he was not getting any co-operation from the other students, he would let him know the results of the investigation. Mr. Shaw then received a phone call from the second student who g