Morin V Prince Edward Island Regional Administrative Unit No 3 School BoardDocument Transcript
Morin v. Prince Edward Island Regional
Administrative Unit No.
3 School Board
Richard W.O. Morin, appellant, and
Board of Trustees of Regional Administration Unit #3,
 P.E.I.J. No. 36
2002 PESCAD 9
Prince Edward Island Supreme Court - Appeal Division
McQuaid, Webber and Carruthers JJ.A.
Heard: June 11 and 12, and September 24-28, 2001.
Judgment: May 1, 2002.
Civil rights — Freedom of speech or expression — Expression, what constitutes —
Freedom of expression, scope of — Limitations on — Education — Education authorities
— School commissions or boards — Powers respecting school courses or programs —
Teachers — Employment — Dismissal.
Appeal by Morin from dismissal of his action for damages for breach of his right to
freedom of expression under the Canadian Charter of Rights and Freedoms, breach of his
right to life, liberty and security of the person, wrongful dismissal and
defamation. Morin, a schoolteacher, showed a film entitled Thy Kingdom Come, Thy
Will Be Done to his grade nine class as part of a related project. The next day he was
prohibited by the vice principal and later the principal from showing the film again or
doing the project. The reasons given for the prohibition included some parental
opposition to the film because it dealt with religious fundamentalists, inappropriateness
for the age group, not being part of the approved curriculum, and there not having been
sufficient preparation for the project. An internal appeal resulted in the teacher being told
that while the project was appropriate for the age group and within the curriculum, he
could only show the film and do the project if his preparation met the approval of the
principal and school superintendent. He went on a sick leave a few days after the
controversy began, and on his return to the school many students boycotted his classes.
He was then granted a temporary leave of absence with pay until the end of the school
year. He was not rehired for the following school year.
HELD: Appeal allowed in part solely with regard to the claim for breath of freedom
of expression. Morin was attempting to convey a meaning when he showed the film. It
was expressive of his beliefs in what was an appropriate topic for his teaching
activities. He was dealing with religion as an important element of society, and was
teaching in a manner consistent with the approved curriculum. This was expression as
defined by the Charter. The students also had a right to hear this expression and benefit
from it. The Board's later decision allowing the project subject to the approval of the
principal and the superintendent was also a limitation on Morin's expression. These
limits clearly breached section 2(b) of the Charter and were not saved under section
1. There was evidence to support the trial judge's finding that there was no collateral
contract requiring the school board to rehire Morin the following school year. There was
also evidence to support the trial judge's dismissal of Morin's defamation claim.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2, 2(b), 6, 7, 24(1).
Criminal Code, ss. 195.1(1), 195.1(1)(c), 319(2).
Public Accounting and Auditing Act, R.S.P.E.I. 1988, C.p-28, s-s.14(1).
School Act R.S.P.E.I. 1988 Cap. S-2, s.42, s.43.
Supreme Court Act, R.S.P.E.I. 1988, S-10, s-s.56(4).
School Act Regulation, No. EC665/81, s.1.79, s.1.79(2), s.1.79(13).
Prince Edward Island Rules of Civil Procedure, Rule 26.01.
Boring v. Buncombe County Board of Educational et al (1998), 136 F. 3d
Committee for the Commonwealth of Canada v. Canada,  1 S.C.R.
Crawford v. Cashin,  P.E.I.J. No. 91 (Quicklaw) (P.E.I.S.C.T.D.).
Danson v. Ontario (A.G.),  2 S.C.R. 1086 (S.C.C.).
Dormuth v. Unetreiner,  S.C.R. 122 (S.C.C.).
Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326
Ford v. Quebec (Attorney General),  2 S.C.R. 712 (SCC).
Godbout v. Longueuil (City), , 3 S.C.R. 844 (S.C.C.).
Hodgkinson v. Simms  3 S.C.R. 377 (S.C.C.).
Housen v. Nikolaison,  S.C.J. No. 31, 2002 SCC 33.
Hunter v. Southam Inc.,  2 S.C.R. 145 (S.C.C.).
Irwin Toy Ltd. v. Quebec (Attorney General),  1 S.C.R. 927
Johnston v. Murchison (1995) 127 Nfld. & P.E.I.R. 1 (P.E.I.S.C.A.D.).
Keefe v. Geanokos, 418 F. 2d 359 (1969) (U.S.C.A., 1st Circuit).
Keegstra v. The Board of Education of the County of Lacombe No. 14
(1983), 45 A.R. 348 (Bd. of Reference).
Morin v. Board of Education of Regional Administrative Unit No. 3
(1995), 125 Nfld. & P.E.I.R. 211 (P.E.I.S.C.A.D.), Leave to appeal denied,
(1995), 140 Nflld. & P.E.I.R. 90 (S.C.C.).
Munro-Glasgow v. Glasgow 1983 Carswell 83, para. 9 (N.S.C.A.).
Noye Enterprises Inc. v. Grady (1999), 172 Nfld. & P.E.I.R. 80
Palmer v. R.,  1 S.C.R. 759, at 775 (S.C.C.).
Parducci v. Ruthland, 316 F. Supp. 352 (1970) (U.S. District Court).
Pickering v. Board of Education, 391 U.S. 563 (1968), (U.S.S.C.).
R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295 (S.C.C.).
R. v. Guignard,  S.C.J. No. 16, 2002 SCC 14 (SCC).
R. v. Keegstra,  3 S.C.R. 697 (SCC).
R. v. Keegstra,  3 S.C.R. 295 (S.C.C.).
R. v. Oakes,  1 S.C.R. 103 (S.C.C.).
R. v. Stolar,  1 S.C.R. 480 at 486 (S.C.C.).
R. v. Zundel,  2 S.C.R. 731 (S.C.C.).
Re: Sullivan (2000), 193 Nfld. & P.E.I.R. 190
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.),  1
S.C.R. 1123 (SCC).
Ross v. New Brunswick School District No. 15,  1
S.C.R. 825 (S.C.C.),  S.C.J. No. 40.
Ross v. New Brunswick School District No. 15,  1 S.C.R. 40
RWDSU v. Dolphin Delivery Ltd.,  2 S.C.R. 573 (SCC).
Shumate v. Board of Education of County of Jackson 478 F. 2d 233 (1973)
(U.S.C.A. 4th Circuit).
Stein et al v. The Ship "Kathy K" et al 62 D.L.R. (3d) 1 (S.C.C.).
Toneguzzo - Norvell (Guardian ad litem of ) v. Burnaby Hospital,  1
S.C.R. 377 (S.C.C.).
Varette v. Sainsbury,  S.C.R. 72 (S.C.C.).
Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69 (P.E.I.S.C.-
A.D.), affirmed by the Supreme Court of Canada  2 S.C.R. 407.
Walker v. Prince Edward Island,  2 S.C.R. 407 (S.C.C.).
Weber v. Ontario Hydro (1992), 98 D.L.R. (4th) 32 (Ont.C.A.).
Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.).
Sopinka and Gelowitz: The Conduct of an Appeal 2nd ed. (Butterworths).
Emerson, Professor Thomas I.: Toward a General Theory of the First
Amendment (1963), 72 Yale L.J. 877.
Reyes, Allison: Freedom of Expression and Public School Teachers
(1995), 4 Dal. J. Leg. Stud. 35.
Richard W.O. Morin, the appellant, on his own behalf.
Roger B. Langille, Q.C., for the respondent.
Reasons for judgment were delivered by: Webber J.A., concurred in by Carruthers
J.A. Dissenting reasons were delivered by McQuaid J.A.
¶1 The appellant Richard W.O. Morin is a school teacher who showed a film entitled
"Thy Kingdom Come, Thy Will be Done", to a grade nine Language Arts class. He was
subsequently prevented from showing it to any other class or from carrying out the
project to which it related - What Religion Means to Different People. At the time the
appellant was in his second year as a probationary teacher at the school. He appealed the
order of his principal not to show the film and was partially successful in his appeal
through the school system but was placed by the respondent board on an involuntary
leave of absence for the rest of the school year and not rehired for the following year.
¶2 The first statement of claim in this matter was filed on April 21, 1989. Various
court proceedings and amendments to the statement of claim followed, resulting in a trial
in June of 1999. The decision from that trial ( P.E.I.J. No. 76,  2 P.E.I.R.
220), dismissing all claims, is what is now appealed. The issues raised at trial can be
summarized as follows:
(1) breach of the appellant's right of freedom of expression under s.2(b)
of the Canadian Charter of Rights and Freedoms;
(2) breach of s.7 of the Charter;
(3) wrongful dismissal; and
In addition to appealing the trial judge's findings on these issues, the appellant alleges
procedural errors and made a motion to this court for the introduction of new evidence.
¶3 The trial judge summarized the evidence with respect to this matter as follows:
 Sometime in 1986 the plaintiff, who had applied for a teaching
position in this province, was contacted by Linda Lowther who was
then Coordinator of French with Regional School Unit 3 ("Unit
3"). One of her tasks was to assist with the recruitment and selection
of French teachers. As a result of the contact, the plaintiff came to
Prince Edward Island to meet with Ms. Lowther. Subsequently, by
letter dated June 27, 1986, he was offered a full-time teaching
position in Unit 3 for the 1986-87 school year. He signed a Contract
for Teachers - Form A, which included the clause:
This contract may be extended by written mutual consent, by
both parties, but in any event shall not extend beyond June 30,
 By letter dated June 25, 1987 the plaintiff again was offered a full-
time teaching position in Unit 3 for the 1987-88 school
year. Another Contract for Teachers - Form A was duly signed by
both parties. This contract included the clause:
This contract may be extended by written mutual consent, by
both parties, but in any event shall not extend beyond June 30,
 During both school years in question the plaintiff was employed as
an untenured teacher at Birchwood Junior High School
("Birchwood") in this City. He was assigned to the French
Immersion program at the grade nine level. At this time the
Principal of Birchwood was George A. MacDonald.
 The plaintiff's first year at Birchwood seems to have passed with no
major difficulties. On June 25, 1987 the Principal provided the
following written evaluation of the plaintiff's first year performance:
Mr. Richard Morin is a first year untenured teacher at
Birchwood Junior High School. Mr. Morin is assigned to the
French Immersion program at the grade nine level.
Classroom observations indicate that Mr. Morin is a
conscientious hard working teacher who wants to do well. He
demonstrates that he is enthusiastic and sincere and reveals
empathy for his students. He shows respect for other people
and their ideas and is considerate of each student's self image.
There are however some concerns which I have discussed with
Mr. Morin in June 1, 1987 when I informed him that I would
be recommending him for a teaching position for the
1987-1988 school year.
These concerns are in the area of classroom management, poise
and neatness. If he is willing to work on the above concerns, I
believe classroom discipline will improve, the classroom
atmosphere will improve and Mr. Morin will gain greater
respect from his students and parents.
I trust Mr. Morin will find my evaluation fair and constructive.
 Unfortunately, the plaintiff's second year at Birchwood did not go as
smoothly as the first. There is evidence that a meeting was held on
March 7, 1988 with the Principal, Linda Lowther, Debbie Pineau,
the then Core French Coordinator for Unit 3, and John MacDonald,
who was then Superintendent for Administration for Unit 3, in
attendance. This meeting was called to consider the plaintiff's future
 The plaintiff has argued in his post-trial brief that the March 7
meeting did not occur despite the testimony of George MacDonald,
John MacDonald and Debbie Pineau that it did. There is also in
evidence as Exhibit P-1, Tab 10, short hand-written minutes of the
meeting prepared by John MacDonald. I am satisfied from the
evidence that this meeting did take place. Debbie Pineau testified
she recalled the meeting had been called to discuss the plaintiff's
future, but could not recall specifics of the discussions. She did
state, however, that she could not believe John MacDonald would
fabricate the minutes. Both John MacDonald and George
MacDonald were able to recall the meeting and confirmed that the
hand-written minutes accurately reflect the substance of the
discussion. Although Linda Lowther testified on behalf of the
plaintiff, she was not questioned about the March 7 meeting.
 According to the evidence, at the March 7 meeting George
MacDonald expressed concern about the plaintiff's future as a
teacher. He advised the group he felt the plaintiff could not remain
at Birchwood, but added the plaintiff had positive teacher attributes
that might be more suitable at the senior high school level.
 On Thursday, April 7, 1988 an event took place which led to a series
of confrontations and occurrences ultimately giving rise to this
litigation. It appears that during the evening of April 6 the plaintiff
viewed on the Public Broadcasting System a BBC documentary film
entitled "Thy Kingdom Come - Thy Will be Done" which described
the fundamentalist approach to religion in the United States. The
film made such a favourable impression on the plaintiff that he
determined to show it to his grade 9 Language Arts classes as the
basis for an assignment. The following morning the documentary,
which had been videotaped by the plaintiff's wife, was shown by the
plaintiff to another teacher's home room class during the Language
Arts period which the plaintiff taught.
 Apparently, some of the students to whom the documentary was
shown were not so favourably impressed. On Friday, April 8, the
Vice-Principal, Garnet Steele, learned that between 10 to 15 parents
had called the Principal's office to express concerns about their
children having been shown the documentary. The Principal was out
of the province for the day.
 The Vice-Principal, concerned the plaintiff might intend to show the
documentary to his own home room class that morning, proceed
[sic] to the plaintiff's class. The testimony of Garnet Steele and that
of the plaintiff differs somewhat as to what then
occurred. According to Steele, he asked the plaintiff if he could
speak to him whereupon the plaintiff stepped out of the classroom
into the corridor. The plaintiff says the conversation took place at
the classroom door. Both appear to agree that Steele informed the
plaintiff of the concerns expressed by the parents, and Steele
requested the plaintiff not to proceed further with the assignment
until he had discussed it with the Principal. Steele testified the
plaintiff questioned this decision, and asked what Steele would do if
he, the plaintiff, showed the documentary. Steele stated he replied
the plaintiff would be removed from the classroom. The plaintiff
says he was told he would be "dragged" from the classroom. In the
final analysis, there is no evidence anyone overheard this
conversation, whatever was said.
 The plaintiff did not show the documentary on Friday. At
approximately 1:30 in the afternoon the plaintiff attended at the
Vice-Principal's office to express concern about what he would do
with the students of the class who had viewed the documentary the
previous day, a class the plaintiff was due to teach during the last
period. The Vice-Principal arranged for a substitute for that period,
and also for Monday morning in order to provide the plaintiff the
time to meet with the Principal.
 George MacDonald first became aware of the events of April 7 and 8
on Sunday evening when he received a telephone call at his home
from the plaintiff who asked to meet with him. The Principal
telephoned the Vice-Principal who briefly described the events in
question. The Principal called the plaintiff and arranged to meet
with him the next morning. It appears the Vice-Principal did attend
at the Principal's home on Sunday evening to further brief him on the
concerns that had been expressed by the parents.
 By letter dated April 8, 1988 the Superintendent for Administration,
John MacDonald, advised the plaintiff as follows:
This letter is to advise you that your present teaching contract
will terminate effective June 30, 1988. This notice is being
given in accordance with Part III, Section 42 of the Prince
Edward Island School Act. We shall make every effort to place
you in a teaching position in Unit 3 for September, 1988.
You are invited to attend a meeting at Stonepark Junior High
School Lecture Theatre on Thursday, April 21, at 3:30 p.m. to
discuss possibilities for teaching assignments in Unit 3 for the
1988-1989 school year.
 This letter was in accordance with s. 42 of the School Act, R.S.P.E.I.
1988, c. S-2. There is no evidence as to whether or not the plaintiff
attended the meeting at Stonepark Junior High School.
 On Monday morning, April 11, the plaintiff and his wife met with
the Principal, George MacDonald in the latter's office. There is, of
course, a conflict between the testimony of the plaintiff and his wife
and that of George MacDonald as to exactly what was said at this
meeting. It is sufficient for the purposes of this overview to note the
plaintiff was provided with an opportunity to explain the project he
intended to pursue. He testified he "...went into as much detail as
possible". MacDonald testified the plaintiff spoke for 20 to 25
minutes uninterrupted. He stated the more the plaintiff spoke, the
more concerned he, MacDonald, became that the project as proposed
would cause great turmoil. According to MacDonald, his concerns
included how the project would affect those children of
fundamentalist parents in the school, whether the project was age
appropriate, and the apparent lack of detailed planning as to the
project itself. MacDonald informed the plaintiff the project would
not proceed, explaining to him his reasons. The plaintiff asked what
would happen if he went ahead anyway. He testified MacDonald
replied "I'll fire you". He also stated MacDonald said "If you appeal
my decision I'll consider it insubordination".
 MacDonald's evidence is quite different. His version is that when
the plaintiff asked what would happen if he did the project anyway,
he, MacDonald, responded he would consider it insubordination and
would recommend he be dismissed. MacDonald testified he told the
plaintiff that he, MacDonald, did not hire or fire. He also stated he
informed the plaintiff he could appeal the decision to the
Superintendent of Education of Unit 3, Rufus Reid.
 The next day, Tuesday April 12, 1988 the Principal provided to the
plaintiff a letter confirming his position. It states, in part:
Your assignment to the french immersion students in 9E on
April 7, 1988 is withdrawn and the British documentary used
will not form part of the language arts program at Birchwood
Junior High School.
 On that same day the plaintiff, accompanied by his wife and James
L. Blanchard, the General Secretary of the Prince Edward Island
Teacher's Federation, attended at the office of Rufus Reid. George
MacDonald was also in attendance. The plaintiff and Mr. Blanchard
explained to Mr. Reid what had occurred. The plaintiff described
the project, which he had entitled "What Religion Means to Different
People", and why he considered the grade 9 students capable of
doing it. On April 14, Mr. Reid informed the plaintiff in writing that
he had decided to uphold the decision reached by the Principal. His
letter contained the following paragraph:
In my opinion, Mr. MacDonald is well qualified to determine
what material and methodology is suitable for the students at
Birchwood Junior High School. I have confidence that his
experience with junior high students and his knowledge of the
community served by the school have enabled him to make the
right decision in this instance.
 The plaintiff was on sick leave supported by medical certificates
between April 11, 1988 and May 12, 1988. Two certificates were
issued to him by his physician; one on April 11, and a second on
April 29. During this period the plaintiff decided to hold a public
meeting where the documentary in question would be shown,
especially to concerned parents. Also during this period, the media
became interested in the on-going situation, and the plaintiff was
approached by the CBC to give his side of the events. On April 18,
recognizing the situation was now of interest to the media, the
Principal issued the following media release:
I made a decision that the assignment was not age
appropriate. I was not able to see the relevance of this
assignment to the grade nine language arts program and it
appeared to me that it was 'parachuted' into the program.
My clients are the students who attend this school and their
parents. This assignment caused much concern among students
and their parents. Students are a captive audience, I have a
responsibility to them and to their parents.
I feel that it may well be an appropriate assignment for a high
school or a university political science program. It is not one
that is appropriate for junior high school students, in my
He was requested to withdraw the assignment. In my opinion,
his professional freedom was not compromised.
 On April 29, 1988 the Prince Edward Island Teachers' Federation
informed the Chairperson of Unit 3 that, at the plaintiff's request, it
had agreed to intervene to attempt to resolve the dispute between the
plaintiff and the Unit 3 administration. It requested a review of the
decision regarding the appropriateness of the assignment in question.
 In the interim the plaintiff's sick leave was to expire on May 12. He
informed the Principal on May 12 that he intended to return to the
class room next day, Friday, May 13. The Principal advised the
plaintiff he needed more time to prepare all concerned for his return
to the school. There is an indication in the evidence that a number of
staff members at Birchwood had found upsetting certain comments
the plaintiff was reported to have made.
 On Monday, May 16, 1988 the plaintiff returned to the school. The
evidence clearly established that some parents sent letters to the
school excusing their children from attending the plaintiff's class.
Other students attended, but left class before the period
concluded. There is evidence that during the plaintiff's first home
room period of the day seven students out of twenty-nine did not
attend the class. During the first period, eleven of thirty-three were
absent, and during the second period fifteen of twenty-nine were
absent initially, and eight more left during the course of the period.
During the fifth period, another home room period, the original
seven students did not attend. Finally, during the seventh period of
the day, Language Arts, six students of twenty-nine were absent at
the beginning, and during the period more students left until, at the
end of the period, only four students remained in class. On May 19,
1988 the Unit 3 School Board granted the plaintiff a temporary leave
of absence with pay in order that the events of May 16 could be
investigated. By letter of May 21 addressed to the Superintendent of
Education of Unit 3, Rufus Reid, the plaintiff agreed to the
temporary leave of absence until May 25 "...in order to give the Unit
3 School Board the necessary time to come to a decision about the
appropriateness of my project".
 On May 17 the Curriculum Committee agreed to meet to examine
the "appropriateness of the assignment in question as it pertains to
the grade nine Language Arts program in Birchwood Junior High
School". The Curriculum Committee requested that three members
of the provincial Junior High Language Arts Program be made
available to give advice on the question. The plaintiff was invited to
meet with the Curriculum Committee at 7:30 p.m. on May 17. This
meeting began at 5:30 p.m. and was adjourned at 12:15 a.m. During
the early part of the meeting the plaintiff, his wife and Mr. Blanchard
were present and the plaintiff fully described the project and
assignment he had intended for the grade 9 Language Arts
classes. He was questioned extensively by the members of the
Curriculum Committee and the three members of the provincial
Junior High Language Arts Committee who were present to provide
advice. When the plaintiff had completed his presentation, he, his
wife and Mr. Blanchard left the meeting, and George MacDonald,
who had not been present up to that point, joined the meeting.
 The Principal reported the events of April 11 as he had assessed
them, and responded to questions.
 At 12:15 a.m. the Committee, not having completed its evaluation,
adjourned and decided to reconvene the next day at 12:00 noon. The
meeting in fact was reconvened at 12:10 p.m. on Thursday, May 19,
1988 and after considerable further discussion adjourned having
agreed to meet again beginning at 7:00 p.m. that evening. The
formal committee meeting was reconvened at 8:30 p.m. after several
committee members had viewed the second part of the documentary
"Thy Kingdom Come - Thy Will be Done". The meeting finally
adjourned at 11:15 p.m. As a result of the recommendation of the
Curriculum Committee the Unit 3 School Board released the
following statement at the conclusion of a Special meeting held on
May 25, 1988:
'As provided in School Board Policy, the Curriculum
Committee examined the appeal by Mr. Morin of the
administration's decision to cancel a language arts assignment
entitled 'What religion means to different people'.
Three meetings were held during which the Curriculum
Committee examined the Statement of Appeal, examined the
grade nine curriculum, interviewed the participants, and
formulated a recommendation for the School Board. The
Curriculum Committee recognized the fact that different people
interpreted the assignment in different ways; therefore, all
evidence was accepted at face value.
The Curriculum Committee examined all aspects of the
assignment including the following: topic, objectives, skills,
content, materials, preparation, presentation, student activities,
and evaluation. The assistance of members of the provincial
Junior High School Language Arts Curriculum Committee was
valuable especially as it pertained to the relationship between
the assignment and the authorized provincial program.
In general, the committee reviewed the assignment keeping the
following in mind: (a) the provincial program entitled
'Contexts', (b) customary teaching practice, and (c) the
characteristics of the school and community. In summary, the
Curriculum Committee found the assignment:
- to be acceptable in terms of theme, topic, skills (viewing,
reading, writing), and learning materials;
- to be wanting in terms of preparation, review of
prerequisite skills, presentation, and evaluation; and
- to be questionable in terms of meeting the expectations of
students and parents with regard to the sensitivity of the
topic and the provision of an alternate assignment.
It is the School Board's opinion that correcting action in respect
to the assignment should take place as expressed in the
The Board determines that the assignment was
appropriate in principle as a part of the authorized
Language Arts program, although it was inappropriate in
terms of preparation and presentation. Policy BDE
provides that an appealed decision may be
modified. Therefore, the assignment in question remains
cancelled until such time as its mode of presentation is
altered to the satisfaction of both teacher and principal,
with the concurrence of the Superintendent of Programs.'
 The Unit 3 School Board met on Saturday, May 28, 1988 to consider
whether the plaintiff could return to Birchwood for the balance of
the school year in a teaching capacity. There had been a meeting on
May 26 between the plaintiff, Mr. Blanchard and George
MacDonald, but no agreement had been reached. It appears parents
of some of the plaintiff's grade nine students were opposed to his
return to the class so late in the school year since he had been away
from the class for a considerable period of time. The Board adopted
a resolution that the plaintiff be placed on leave with pay for the
remainder of the 1987-88 school year. One member of the Board
voted against the resolution. George MacDonald did not attend this
 By letter dated May 28, 1988 the plaintiff was informed of the
Board's decision. He was also provided with a copy of a public
statement released by the Board as it considered it desirable that the
school and the public in Unit 3 be informed of its decision. The
public statement read:
Following a Special Meeting of the Unit 3 School Board held
on Saturday, May 28, 1988, the Chairperson released the
following public statement:
'The Unit 3 School Board has determined that Rick
Morin, teacher at Birchwood Junior High School, be
placed on a leave with pay, effective immediately, as a
non-disciplinary measure, based on the paramount
concern for the best interests of students.
The decision was made in light of all the surrounding
circumstances, including the length of time Mr. Morin
was absent from school since the controversy first arose,
the anxiety of students, and the need for a settled climate
in the school just prior to exam time.
The Board emphasizes that this decision reflects the
Board's paramount concern for the interests of students
and the decision is not intended to be a reflection in any
way of Mr. Morin's suitability as a teacher.'
 On August 11, 1988 the plaintiff wrote to the Superintendent of
Personnel of Unit 3 seeking clarification of his situation. By letter
dated August 25 he was informed that teaching positions for the
1988-89 school year had been filled, and that his application would
remain on file for the remainder of the year for consideration if
additional positions became available.
¶4 The appellant takes issue with a number of aspects of this statement of facts. The
trial judge referred to this summary as a "broad outline only," dealing elsewhere in his
judgment with details relevant to specific issues. As a broad outline, it is a fair summary
of the sequence of events between the parties.
¶5 The trial judge dismissed the plaintiff's claim in its entirety.
¶6 The appellant argues errors of law on all issues and some errors of fact.
¶7 I would allow the appeal with respect to the breach of the appellant's right of free
expression as set out in s.2(b) of the Charter of Rights and Freedoms. I would dismiss all
other grounds of appeal. The costs award would be varied accordingly. The matter of
damages should be remitted to the trial judge.
CHARTER OF RIGHTS
¶8 The trial judge assumed, without finding, that the appellant's activity had
expressive content and fell within the scope of s.2(b). He found that the purpose of the
decision of the principal and administration was not to restrict the plaintiff's freedom of
expression but rather was to create an effective learning environment for the students. He
took the position that administrators must have broad discretion to regulate what is taught
as part of the curriculum and a principal should be able to make such a decision, on
reasoned ground, without fear of lawsuits.
¶9 With all due respect I cannot agree with the trial judge's interpretation or
application of the law regarding freedom of expression in this case. I find that the
purpose of the principal's action was clearly to restrict the appellant's freedom of
expression, and there were no "reasoned grounds" for the decisions made.
¶ 10 Section 2 of the Charter states:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
¶ 11 The appellant argues that the decision to forbid him from showing the film he
wished to use as part of his teaching program, and thus from carrying out the project he
had chosen, violated his fundamental right of freedom of expression under s.2(b) of the
¶ 12 The analytical framework for a s.2(b) analysis has been set out by the Supreme
Court of Canada through a number of key cases. In Ford v. Quebec (Attorney General),
 2 S.C.R. 712, at p.746, the Court referred to some of the principles underlying the
concept of freedom of expression. That case involved a challenge to a Quebec sign law
that restricted commercial signs to French only. The Court applied the freedom of
expression guarantee to commercial expression, given the underlying principles behind
such a freedom:
It is apparent to this Court that the guarantee of freedom of expression in
s.2(b) of the Canadian Charter and s.3 of the Quebec Charter cannot be
confined to political expression, important as that form of expression is in
a free and democratic society. The pre-Charter jurisprudence emphasized
the importance of political expression because it was a challenge to that
form of expression that most often arose under the division of powers and
the 'implied bill of rights,' where freedom of political expression could be
related to the maintenance and operation of the institutions of democratic
government. But political expression is only one form of the great range of
expression that is deserving of constitutional protection because it serves
individual and societal values in a free and democratic society.
¶ 13 The court in Ford went on to affirm the comments in RWDSU v. Dolphin
Delivery Ltd.,  2 S.C.R. 573 by McIntyre J. at p.583 where he said about freedom
of expression: "It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and education institutions of western
society." [Emphasis added]
¶ 14 The following year the Supreme Court in Irwin Toy Ltd. v. Quebec (Attorney
General),  1 S.C.R. 927 developed these themes further, reaffirming the existence
of a protected right of free speech in relation to commercial expression. This case dealt
with Quebec-legislated restrictions on advertising to children. The Court found a
limitation on a protected right but there was a dissent as to whether or not a s.1
justification for a limitation of that right had been proven.
¶ 15 In Irwin Toy Chief Justice Dickson for the majority set out the analytical
framework for reviewing s.2(b) Charter challenges. The first step is to determine
whether the activity at issue may properly be characterized as expression within the
meaning of s.2(b) of the Charter. The Court found expression to consist of both content
and form; an activity is expressive if it attempts to convey meaning.
¶ 16 The Court cited with approval in Irwin Toy (at p.970) an excerpt from an article
by Professor Thomas I. Emerson entitled Toward a General Theory of the First
Amendment (1963), 72 Yale L.J. 877, at p.886:
... the theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The
theory grew out of an age that was awakened and invigorated by the idea
of a new society in which man's mind was free, his fate determined by his
own powers of reason, and his prospects of creating a rational and
enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually
robust community. It contemplates a mode of life that, through
encouraging toleration, skepticism, reason and initiative, will allow man to
realize his full potentialities. It spurns the alternative of a society that is
tyrannical, conformist, irrational and stagnant.
¶ 17 The Court then reaffirmed that the rights and freedoms guaranteed in the Charter
should be given a large and liberal interpretation. On that basis there was no reason to
exclude commercial expression from the protection of the Charter.
¶ 18 The second step in the required analysis is to determine whether the purpose or
effect of the government action in question was to restrict freedom of expression. The
Court noted that the importance of this query was set out in R. v. Big M Drug Mart Ltd.,
 1 S.C.R. 295 at pp.331-32 where Dickson C.J. said:
... In my view, both purpose and effect are relevant in determining
constitutionality; either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation. All legislation is animated by an object
the legislature intends to achieve. This object is realized through the
impact produced by the operation and application of the
legislation. Purpose and effect respectively, in the sense of the legislation's
object and its ultimate impact, are clearly linked, if not
indivisible. Intended and actual effects have often been looked to for
guidance in assessing the legislation's object and thus, its validity.
¶ 19 With respect to "purpose," the Court in Irwin Toy noted that government can
almost always claim that its subjective purpose was to address some real or purported
social need, not to restrict expression. Elaborating upon how one must view the fact
situation to make this determination Dickson C.J. stated (at p.974):
If the government's purpose is to restrict the content of expression by
singling out particular meanings that are not to be conveyed, it necessarily
limits the guarantee of free expression. If the government's purpose is to
restrict a form of expression in order to control access by others to the
meaning being conveyed or to control the ability of the one conveying the
meaning to do so, it also limits the guarantee. On the other hand, where
the government aims to control only the physical consequences of certain
human activity, regardless of the meaning being conveyed, its purpose is
not to control expression.
¶ 20 He went on to caution (at p.975-976):
... Of course, rules can be framed to appear neutral as to content even if
their true purpose is to control attempts to convey a meaning. For
example, in Saumur v. City of Quebec,  2 S.C.R. 299, a municipal
by-law forbidding distribution of pamphlets without prior authorization
from the Chief of Police was a colourable attempt to restrict expression.
If the government is to assert successfully that its purpose was to control a
harmful consequence of the particular conduct in question, it must not have
aimed to avoid, in Thomas Scanlon's words ('A Theory of Freedom of
Expression', in Dworkin, ed., The Philosophy of Law (1977), at p.161):
a) harms to certain individuals which consist in their coming to
have false beliefs as a result of those acts of expression; b)
harmful consequences of acts performed as a result of those
acts of expression, where the connection between the acts of
expression and the subsequent harmful acts consists merely in
the fact that the act of expression led the agents to believe (or
increased their tendency to believe) these acts to be worth
In each of Scanlon's two categories, the government's purpose is to regulate
thoughts, opinions, beliefs or particular meanings. That is the mischief in
view. On the other hand, where the harm caused by the expression in issue
is direct, without the intervening element of thought, opinion, belief, or a
particular meaning, the regulation does aim at a harmful physical
consequence, not the content or form of expression.
In sum, the characterization of government purpose must proceed from the
standpoint of the guarantee in issue. With regard to freedom of expression,
if the government has aimed to control attempts to convey a meaning either
by directly restricting the content of expression or by restricting a form of
expression tied to content, its purpose trenches upon the guarantee. Where,
on the other hand, it aims only to control the physical consequences of
particular conduct, its purpose does not trench upon the guarantee. In
determining whether the government's purpose aims simply at harmful
physical consequences, the question becomes: does the mischief consist of
the meaning of the activity or the purported influence that meaning has on
the behaviour of others, or does it consist, rather, only in the direct physical
result of the activity.
¶ 21 If government's purpose is found not to be to control or restrict attempts to
convey a meaning, then one must determine whether or not, in any event, the
governmental action had that effect. For this part of the analysis, the burden of proof
falls upon the plaintiff.
¶ 22 Dickson C.J. stated in Irwin Toy that when considering the effect of government
action, the restrictive effect must be shown to have some connection with the principles
and values underlying the freedom in question. With respect to freedom of speech, the
court affirmed the values identified in Ford, summarizing them as follows (at p.976):
(1) seeking and attaining truth is an inherently good activity; (2)
participation in social and political decision-making is to be fostered
and encouraged; and (3) the diversity in forms of individual self-
fulfillment and human flourishing ought to be cultivated in an
essentially tolerant, indeed welcoming, environment not only for the
sake of those who convey a meaning, but also for the sake of those
to whom it is conveyed. In showing that the effect of the
government's action was to restrict her free expression, a plaintiff
must demonstrate that her activity promotes at least one of these
principles. It is not enough that shouting for example, has an
expressive element. If the plaintiff challenges the effect of
government action to control noise, presuming that action to have a
purpose neutral as to expression, she must show that her aim was to
convey a meaning reflective of the principles underlying freedom of
expression. The precise and complete articulation of what kinds of
activity promote these principles is, of course, a matter for judicial
appreciation to be developed on a case by case basis. But the
plaintiff must at least identify the meaning being conveyed and how
it relates to the pursuit of truth, participation in the community, or
individual self-fulfillment and human flourishing.
¶ 23 With respect to the specific problem before it in Irwin Toy the Court applied this
purposive test as follows (at p.977-979):
c. Sections 248 and 249
There is no question but that the purpose of ss.248 and 249 of the
Consumer Protection Act was to restrict both a particular range of
content and certain forms of expression in the name of protecting
children. Section 248 prohibits, subject to regulation, attempts to
communicate a commercial message to persons under thirteen years
of age. Section 249 identifies factors to be considered in deciding
whether the commercial message in fact has that prohibited
content. At first blush, the regulations exempting certain
advertisements transform the prohibition into a 'time, place or
manner' restriction aiming only at the form of
expression. According to ss. 88 to 90 of the Regulation respecting
the application of the Consumer Protection Act, an advertisement
can be aimed at children if: (1) it appears in certain magazines or
inserts directed at children; (2) it announces a programme or show
directed at children; or (3) it appears in or on a store window,
display, container, wrapping, or label. Yet, even if all advertising
aimed at children were permitted to appear in the manner specified,
the restriction would be tied to content because it aims to restrict
access to the particular message being conveyed. However, the
regulations in question do more than just restrict the manner in
which a particular content must be expressed. They also restrict
content directly. Section 91 provides that even where
advertisements directed at children are permitted, such
advertisements must not, for example 'use a superlative to describe
the characteristics of goods or services' or 'directly incite a child to
buy or to urge another person to buy goods or services or to seek
information about it.' Furthermore, it is clear from the substantial
body of material submitted by the Attorney General of Quebec as
well as by the intervener, Gilles Moreau, president of the Office de
la protection du consommateur, that the purported mischief at which
the Act and regulations were directed was the harm caused by the
message itself. In combination, therefore, the Act and the
regulations prohibit particular content of expression. Such a
prohibition can only be justified if it meets the test under s. 1 of the
Canadian Charter and s.9.1 of the Quebec Charter.
D. Summary and Conclusion
In the instant case, the plaintiff's activity is not excluded from the
sphere of conduct protected by freedom of expression. The
government's purpose in enacting ss. 248 and 249 of the Consumer
Protection Act and in promulgating ss. 87 to 91 of the Regulation
respect the application of the Consumer Protection Act was to
prohibit particular content of expression in the name of protecting
children. These provisions therefore constitute limitations to s. 2(b)
of the Canadian Charter and s. 3 of the Quebec Charter. They fall to
be justified under s. 1 of the Canadian Charter and s. 9.1 of the
¶ 24 All members of the Court in Irwin Toy agreed with this analysis and
outcome. There was a dissent with respect to whether or not these restrictions on
freedom of expression could be justified under s.1.
¶ 25 The reason for quoting at length from Irwin Toy is that it provides one of the
most expansive explanations by the Court of the analytical process to be used when
considering a s.2(b) challenge. And the framework set out in Irwin Toy has been used by
the Court in subsequent cases.
¶ 26 For example, Chief Justice Dickson in Reference re ss. 193 and 195.1(1)(c) of
the Criminal Code (Man.),  1 S.C.R. 1123, reiterated this principled approach to
interpreting the scope of the fundamental freedoms set out in Irwin Toy. All members of
the Court found that Criminal Code section 195.1(1)(c) (soliciting for the purposes of
prostitution) was inconsistent with the Charter right of freedom of expression. Writing
for the majority, Dickson C.J. found the restrictions of s.195.1(1) justified under s.1 of
¶ 27 In this Reference re ss. 193 and 195.1(1)(c) , Lamer J. expanded upon the
analytical framework developed by the Court to that point, saying that form and content
are in some cases inextricably linked, for example in the choice of language through
which one communicates, and in art, and that explains why art and language merit
protection under s.2(b) of the Charter.
¶ 28 Other forms of expression, however, can be kept distinct from the content they
seek to convey and thus excluded from the scope of s.2(b) of the Charter, e.g. threats or
acts of violence. This point was elaborated upon by Lamer J. in his concurring
decision. However, he went on to emphasize that activities are not excluded from the
protection of s.2(b) of the Charter simply because they have been made the subject of
criminal offences. On this point he concluded at p.1184:
Without settling the matter conclusively, I am of the view that at the very
least a law that makes it an offence to convey a meaning or message,
however distasteful or unpopular, through a traditional form of expression
like the written or spoken word or art must be viewed as a restriction on
freedom of expression, and must be justified, if possible, by s.1 of the
Charter. This method is consistent with the broad, inclusive approach to the
protected sphere of freedom of expression that this court has explicitly
¶ 29 This is not to say that all expressive activity is protected. Lamer J. elaborated
upon this point at p. 1185:
...The unprotected forms involve direct acts of violence and often involve
direct attacks on the physical integrity and liberty of another. ...
criminalization is not the acid test of whether an activity is protected by
s.2(b). Where what has been criminalized is the conveyance of a message,
however distasteful or unpopular, which is conveyed in a non-violent form
of expression then it is protected by s.2(b), and the onus then shifts to the
state to justify the restriction on freedom of expression.
¶ 30 As for the actual method of analysis to be used in freedom of expression cases,
Lamer J. affirmed the approach set out above in Irwin Toy. Regarding the determination
of whether or not the purpose of government action was to restrict freedom of expression,
he stated at p.1187:
... If the government's purpose is to restrict a form of expression in order to
control access by others to the meaning being conveyed or to control the
ability of the one conveying the meaning to do so, it also limits freedom of
¶ 31 As for the merits of the case before him, in Reference re ss.193 and 195.1(1)(c),
Lamer J. referred to the impugned Code sections as specifically aimed at restricting
commercial expression "in perhaps its purest form," i.e. information relating to the
exchange of services for money. Therefore, s.195.1(1)(c) was found to restrict freedom of
expression as guaranteed by s.2(b) of the Charter. However, it was saved by satisfying
the requirements of s.1.
¶ 32 R. v. Keegstra,  3 S.C.R. 697, contained the following factual background
Mr. James Keegstra was a high school teacher in Eckville, Alberta from
the early 1970's until his dismissal in 1982. In 1984 Mr. Keegstra was
charged under s.319(2) (then s.281.2(2)) of the Criminal Code with
unlawfully promoting hatred against an identifiable group by
communicating anti-Semitic statements to his students. He was convicted
by a jury in a trial before McKenzie J. of the Alberta Court of Queen's
Mr. Keegstra's teachings attributed various evil qualities to Jews. He thus
described Jews to his pupils as 'treacherous,' 'subversive,' 'sadistic,' 'money-
loving,' 'power-hungry' and 'child killers.' He taught his classes that Jewish
people seek to destroy Christianity and are responsible for depressions,
anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews
'created the Holocaust to gain sympathy' and, in contrast to the open and
honest Christians, were said to be deceptive, secretive and inherently
evil. Mr. Keegstra expected his students to reproduce his teachings in class
and on exams. If they failed to do so, their marks suffered.
¶ 33 Mr. Keegstra argued that s.319(2) of the Criminal Code unjustifiably infringed
his freedom of expression as guaranteed by s.2(b) of the Charter.
¶ 34 The first step in the s.2(b) analysis set out by the court was the determination of
whether the activity of the litigant who alleged an infringement of the freedom of
expression fell within the protected s.2(b) sphere. At. p.729 Dickson C.J. for the majority
affirmed the following comments set out in Irwin Toy:
...'"Expression" has both a content and a form, and the two can be
inextricably connected. Activity is expressive if it attempts to convey
meaning. That meaning is its content. Freedom of expression was
entrenched in our Constitution and is guaranteed in the Quebec Charter so
as to ensure that everyone can manifest their thoughts, opinions, beliefs,
indeed all expressions of the heart and mind, however unpopular,
distasteful or contrary to the mainstream. Such protection is, in the words
of both the Canadian and Quebec Charters, 'fundamental' because in a free,
pluralistic and democratic society we prize a diversity of ideas and
opinions for their inherent value both to the community and to the
¶ 35 Dickson C.J. then concluded at p.730:
.... It is enough that those who publicly and wilfully promote hatred convey
or attempt to convey a meaning, and it must therefore be concluded that the
first step of the Irwin Toy test is satisfied.
Moving to the second stage of the s.2(b) inquiry, one notes that the
prohibition in s.319(2) aims directly at words - in this appeal, Mr.
Keegstra's teachings - that have as their content and objective the
promotion of racial or religious hatred. The purpose of s.319(2) can
consequently be formulated as follows: to restrict the content of expression
by singling out particular meanings that are not to be conveyed. Section
319(2) therefore overtly seeks to prevent the communication of expression,
and hence meets the second requirement of the Irwin Toy test.
In my view, through s.319(2) Parliament seeks to prohibit communications
which convey meaning, namely, those communications which are intended
to promote hatred against identifiable groups. I thus find s.319(2) to
constitute an infringement of the freedom of expression guaranteed by
s.2(b) of the Charter. ...
¶ 36 At this point the Court entered into a s.1 analysis to determine whether or not the
restrictions imposed on freedom of expression by s.319(2) were justifiable in a free and
democratic society. By a majority of four to three, the Court upheld s.319(2) as
constitutional, justified under s.1 of the Charter. The three dissenting judges - La Forest,
Sopinka and McLachlin, JJ - were of the view that while the infringement of s.2(b) was
established, s.319(2) of the Code did not constitute a reasonable limit upon freedom of
expression, failing to meet the proportionality test.
¶ 37 Then in Committee for the Commonwealth of Canada v. Canada,  1 S.C.R.
139, the Court dealt with airport regulations which prohibited advertising or soliciting at
an airport and the actions of the airport manager who ordered the members of the
Committee for the Commonwealth of Canada to stop their activities. Those members had
gone to Montreal International Airport at Dorval with portable placards, leaflets, and
magazines to promote their political goals and recruit members. While some members of
the Court found the regulations in question did not violate freedom of expression, others
found that they did. All members of the Court found the actions of the airport manager to
violate the Committee members' freedom of expression and not to be justifiable under s.1
of the Charter.
¶ 38 That case involved a discussion about limitations of expression on public v.
private property, overall stating that historically one does not possess the right to use
another's private property as a forum for expression. Per McLachlin J. (as she then was)
at p. 228:
The matter is less clear where public property is involved. Since the
Charter applies to government action, the government must make its
property available as a forum for public expression in so far as the
guarantee of freedom of expression in s.2(b) of the Charter so
requires. This poses squarely the question of whether s.2(b) should be read
as guaranteeing access to some or all government property for use as a
forum for public expression. That is the issue at the heart of this case.
¶ 39 In determining the answer to this question each member of the Court reviewed
what McLachlin J. termed "the shared values which have historically been associated
with the concept of freedom of expression" (p. 229). At the same time, however, she
applied the test set out in Irwin Toy, as discussed above, as did most members of the
Court, to determine the issue of constitutional protection of expression on a particular
state-owned property. In this case she reaffirms that if the purpose of the restriction on
expression is content-neutral then a further enquiry is needed to determine whether or not
the expression at issue, including its place, time, and manner, promotes one of the
purposes underlying the guarantee of freedom of speech. McLachlin J. determined that
where the restriction involves state-owned property, that examination will focus on
whether the forum's relationship with the particular expressive activity invokes any of the
values and principles underlying the guarantee.
¶ 40 The Supreme Court of Canada used the Commonwealth of Canada case to
articulate in a broader-than-usual fashion the values behind expression, focussing mostly,
but not entirely upon political expression. Some of those comments are relevant to the
issues in the instant case.
¶ 41 Lamer C.J. for himself and Sopinka J. stated at pp.157-158:
In my view, if the expression takes a form that contravenes or is
inconsistent with the function of the place where the attempt to
communicate is made, such a form of expression must be considered to fall
outside the sphere of s.2(b). For example, if a person tried to picket in the
middle of a busy highway or to set up barricades on a bridge, it might well
be concluded that such a form of expression in such a place is incompatible
with the principal function of the place, which is to provide for the smooth
flow of automobile traffic. In such a case, it could not be concluded that
freedom of expression had been restricted if a government representative
obliged the picketer to express himself elsewhere.
Accordingly, it is only after the complainant has proved that his form of
expression is compatible with the function of the place that the
justifications which may be put forward under s.1 of the Charter can be
analysed. While the state's main interest is to ensure the effective operation
of its property, that is not its only concern; there is, for example, the
maintenance of law and order, which is another government objective that
might justify certain limitations on s.2(b). For example, the person
presiding over a municipal assembly will generally be justified in limiting
the time each member has to speak in order to allow everyone a chance to
speak in an orderly manner. In my opinion, such a concern comes under
s.1 of the Charter, as do many others.
¶ 42 While concluding that there was a limitation in that case upon the respondents'
freedom of expression, Lamer C.J. determined that the difficulty lay not with the rules of
the airport but rather with the actions of the airport manager and thus no s.1 justification
was possible. At p.164 he stated:
In my opinion, the limitation imposed on the respondents' freedom of
expression arose from the action taken by the airport manager, a
government official, when he ordered the respondents to cease their
activities. Although this action was based on an established policy or
internal directive, I do not think it can be concluded from this that there
was in fact a 'law' which could be justified under s.1 of the Charter. The
government's internal directives or policies differ essentially from statutes
and regulations in that they are generally not published and so are not
known to the public. Moreover, they are binding only on government
officials and may be amended or cancelled at will. For these reasons, the
established policy of the government cannot be the subject of the test under
s.1 of the Charter.
In short, I conclude that the respondents' activities at the Dorval airport
benefit from the protection of s.2(b) of the Charter. The freedom of
expression enjoyed by the respondents was limited by the order of the
airport manager to cease the said activities. In the absence of a 'limit
prescribed by law,' this limitation cannot be justified under s.1 of the
¶ 43 L'Heureux-Dubé J. viewed the issue in Commonwealth of Canada as a "'classic'
confrontation between the acknowledged value of political expression and legitimate
government interests in imposing certain restrictions on expression generally" (p.166). In
her review of scholastic and jurisprudential comment on free speech she stated at
Freedom of expression, like freedom of religion, serves to anchor the very
essence of our democratic political and societal structure. As expressed by
Jackson J. in West Virginia State Board of Education v. Barnette, 319 U.S.
624 (1943), at p.642, '[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein.' Robert J.
Sharpe explains the futility of basing this axiom merely upon some
yearning for ultimate truth, in 'Commercial Expression and the Charter'
(1987), 37 U.T.L.J. 229, at p.236:
The essence of the market-place of ideas argument is that control
and regulation of expression is intolerable because we can trust no
government to know the truth. Those who purport to legislate the
truth invariably turn out to be tyrants. The market-place of ideas
argument prescribes an open process precisely because we cannot
agree on what is the truth. [Emphasis added.]
¶ 44 And at p. 191:
If we examine the traditional standards implemented to evaluate the
reasonableness of time, place, and manner restrictions in other jurisdictions
(notably the United States), we find that generally the burden of proof lies
on the government and the criteria are remarkably similar to the s.1
language. In Canada, no other approach would be consistent with the
broad construction of s.2(b). If the government wants to impose time,
place, and manner limitations on the ambit of nonviolent expression, it
must bear the burden of justifying these encumbrances. Such interdiction
may be rational, but the government must substantiate its legitimacy.
¶ 45 She found the rules to be inconsistent with s.2(b) of the Charter and the
provisions not to be a reasonable limit under s.1. Gonthier and Cory JJ. agreed with this
outcome for slightly different reasons.
¶ 46 In her reasons, McLachlin J. stated at p. 230:
The jurisprudence supports the view that the state's property interest in a
forum does not give it the absolute right to control expression on that
¶ 47 In the Supreme Court's recent decision of R. v. Guignard,  S.C.J. No. 16,
2002 SCC 14, the court unanimously found that a municipal by-law restricting signs
violated an individual's right of free expression in the circumstances of that case and was
not justified under s.1. Although acknowledging that the by-law was meant to control
sign clutter, the court again articulated the need to look behind the purported purpose to
determine whether or not the real purpose was to place a limit upon expression. Such a
limitation was found.
¶ 48 It is in the context of these comments about freedom of expression that the facts
in the instant case must be reviewed.
Application of law to facts
1. Protected Speech
¶ 49 The first aspect of the test set out in Irwin Toy is a determination of whether or
not the activity at issue may properly be characterized as expression within the meaning
of s.2(b) of the Charter. As noted above, expression consists of both content and form;
an activity is expressive if it attempts to convey meaning. The trial judge "assumed" that
the appellant's actions had expressive content without deciding the issue. The
respondent's position on appeal was that the appellant as a teacher had no right of free
expression protected by s.2(b) of the Charter.
¶ 50 The impugned acts in the instant case involve (1) the prohibition, by both the
vice-principal and the principal of the school where the appellant was teaching, of the
showing of the film, and, consequently, the carrying out of the proposed assignment, and
(2) the School Board's ultimate decision that the film could be shown and the project
carried out only if the appellant prepared it in a manner that was suitable to the principal
and the Superintendent of Programs.
¶ 51 No one attempted to argue that the actions of the principal, vice principal and
board were not governmental actions to which the Charter applies. Certainly, the
Commonwealth of Canada case indicates that persons acting for government - authorized
institutions, even if their actions go beyond carrying out government policy, can be found
to breach rights under s.2(b) of the Charter.
¶ 52 In Keegstra, the comments at issue were made by a teacher in a classroom to
students with the intention that they "learn" his views and repeat them back to him as the
correct answers on exams. This context for his hate propaganda - the classroom where he
is in control of students and responsible for their well-being - is never mentioned once in
the 155 pages of text of the decision, neither by the majority nor the dissenting judges,
except as factual background. Even though context is mentioned as relevant to the
analysis being done in the initial stages of the inquiry - whether this is protected speech
falling within s.(2)(b) of the Charter - the fact that Mr. Keegstra expressed these views in
carrying out his role as a teacher was never raised as a possible reason for denying him a
¶ 53 There appears to have been no attempt to argue in that case that teachers do not
have a right of expression protected by s.2(b). The question dealt with was whether
s.319(2) of the Criminal Code unjustifiably infringed his freedom of expression as
guaranteed by s.2(b).
¶ 54 Keegstra, in my view, should be considered decisive on this issue. As stated by
Dickson C.J. in that case:
 ... It is enough that those who publicly and wilfully promote hatred
convey or attempt to convey a meaning, and it must therefore be
concluded that the first step of the Irwin Toy test is satisfied.
¶ 55 Surely this means, in the context of the case before me, that the appellant was
attempting to convey a meaning when he chose the film "Thy Kingdom Come, Thy will
be Done" as the catalyst and discussion point for his class project.
¶ 56 The appellant's desire to show the film and to use that film as a catalyst for a
project entitled "What Religion means to Different People" is clearly an attempt to
convey a meaning. It is activity that is expressive of the appellant's beliefs in what is an
appropriate topic and an appropriate vehicle for his teaching activity. The appellant was
attempting, through the film and assignment, to communicate certain information and
opinions that would stimulate discussion and challenge his students. To a certain extent,
the response to the film - why we are here today - affirms that the film had expressive
content. The content - both subject matter and presentation - were what concerned the
principal and vice-principal and caused them to prohibit the showing or discussion of the
¶ 57 The broad and liberal interpretation of the Charter's freedoms is shown by the
great variety of forms of expression that have been held to be encompassed by s.2(b).
They include the solicitations of a prostitute (Reference re ss.193 and 195.1(1)(c) supra),
advertising to children (Irwin Toy), the language of signs in Quebec (Ford), the hate
propaganda of a teacher (Keegstra), airport regulations prohibiting soliciting on airport
premises (Commonwealth of Canada), and a municipal sign law (Guignard).
¶ 58 Surely teachers engaged in their profession of teaching can't be found to have no
right of free expression, while advertisers do have such a right, and even prostitutes
carrying out their profession have such a right.
¶ 59 The decision of this court in Walker v. Prince Edward Island (1993), 107 D.L.R.
(4th) 69, affirmed by the Supreme Court of Canada ( 2 S.C.R. 407) does not limit
the overall breadth of these s.2(b) cases. In that case, certified general accountants
(CGAs) challenged a provision in the Public Accounting and Auditing Act, R.S.P.E.I.
1988, c.P-28, which limited the right to practice public accounting for compensation to
members of the Institute of Chartered Accountants. One basis for the challenge was an
argument that the provision violated the freedom of expression (s.2(b) of the Charter)
rights of the CGA's. This Court found that while the reporting functions of public
accounting and auditing may fall within the scope of s.2(b) as "expression," the purpose
was not to prohibit an expression of these views but rather to restrict the manner of that
expression, i.e. representing themselves as public accountants. The Court then went on to
show that in any event such a restriction was justified under s. 1 of the Charter.
¶ 60 The Supreme Court, without explanation, found no restriction to the ss. 2(b), 6
and 7 Charter rights in that case. Without an explanation from that court, it is difficult to
articulate the basis for this finding. It may be connected with the fact that a licensing
function was involved or that a specific type of profession sought protection. In any
event, this finding does not limit the breadth of the Supreme Court's s.2(b) findings
generally. Neither does it alter the decision in Keegstra which found a s.2(b) restriction
connected with a teacher's views expressed in the classroom.
¶ 61 The respondent on appeal attempted to argue that teachers have no free
expression rights and cited a recent U.S. authority. Clearly, U.S. and Canadian
constitutional principles are not identical and have developed different methods of
dealing with protected freedoms. The statements of the 7-6 majority in Boring v.
Buncombe County Board of Educational et al (1998), 136 F. 3d 364 (USA), cannot
detract from the large and liberal interpretation fostered by our Supreme Court in dealing
with these freedoms.
¶ 62 One obvious reason for the difference between the United States and Canadian
jurisprudence is the existence of s.1 of the Charter which enables a justification of a
limitation on our Charter freedoms:
1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
The lack of any such ability to place a limit on a freedom in the U.S. has required a
completely different development of the law. In the U.S. the right must contain within it
any limitations that are considered socially justifiable, because there is no s.1 equivalent
to allow for a reasonable limitation on the right, once the right is found to exist.
¶ 63 With this in mind, it is interesting to note the cases brought forward by the
appellant from the U.S. regarding free speech and teachers: Shumate v. Board of
Education of County of Jackson 478 F. 2d 233 (1973) (U.S.C.A. 4th Circuit); Parducci v.
Ruthland, 316 F. Supp. 352 (1970) (U.S. District Court); Keefe v. Geanokos, 418 F. 2d
359 (1969) (U.S.C.A., 1st Circuit); and Pickering v. Board of Education, 391 U.S. 563
(1968), (U.S.S.C.). The latter case involved a teacher who was dismissed because of
publication of a letter criticizing the board of education and superintendent of
schools. Shumate involved an untenured teacher whose contract was not renewed,
apparently because of his controversial activities with an education association. Parducci
involved a teacher who was dismissed because of an assignment she gave to her class that
school officials disagreed with. Keefe relates to a tenured teacher whose employment
was threatened for use of what was termed an "offending word" in class. In Keefe and
Parducci the school officials took the position they knew best what was appropriate and
inappropriate in the classroom. Courts in all cases affirmed that teachers have both an
inherent right of free speech, a First Amendment right in the United States, as individuals
and a right of academic freedom derived from that right of free speech. In Keefe, Adrich
C.J. stated at pp.361-362:
Hence the question in this case is whether a teacher may, for demonstrated
educational purposes, quote a 'dirty' word currently used in order to give
special offense, or whether the shock is too great for high school seniors to
stand. If the answer were that the students must be protected from such
exposure, we would fear for their future. We do not question the good
faith of the defendants in believing that some parents have been
offended. With the greatest of respect to such parents, their sensibilities
are not the full measure of what is proper education.
¶ 64 He then went on to deplore the general chilling effect of rigorous censorship,
referring at p.362 to the following quotation:
9. Such unwarranted inhibition upon the free spirit of teachers affects
not only those who, like the appellants, are immediately before the
court. It has an unmistakable tendency to chill that free play of the
spirit which all teachers ought especially to cultivate and practice ...
Frankfurter J. concurring, in Wieman v. Updegraff, 1952, 344 U.S.
183, 194, 195, 73 S.Ct. 215, 221, 97 L.Ed. 216.
¶ 65 In Parducci Johnson C.J. in the decision of the court states at pp.354-355:
 That teachers are entitled to First Amendment freedoms is an issue
no longer in dispute. 'It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.' Tinker v. Des Moines
Independent Community School District, 393 U.S. 503, 506, 89
S.Ct. 733, 736, 21 L.Ed. 2d 731 (1969); see Pickering v. Board of
Education, etc., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed. 2d 811
(1968); Pred v. Board of Public Instruction, etc., 415 F. 2d 851, 855
(5th Cir. 1969). These constitutional protections are unaffected by
the presence or absence of tenure under state law. McLaughlin v.
Tilendis, 398 F. 2d 287 (7th Cir. 1968); Johnson v. Branch, 369 F.
2d 177 (4th Cir. 1966), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17
L.Ed. 2d 542 (1967).
 Although academic freedom is not one of the enumerated rights of
the First Amendment, the Supreme Court has on numerous occasions
emphasized that the right to teach, to inquire, to evaluate and to
study is fundamental to a democratic society. In holding a New
York loyalty oath statute unconstitutionally vague, the Court stressed
the need to expose students to a robust exchange of ideas in the
Our nation is deeply committed to safeguarding academic
freedom, which is of transcendent value to all of us and not
merely to the teachers concerned. That freedom is therefore a
special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the classroom.
* * * The classroom is peculiarly the 'marketplace of ideas.'
Furthermore, the safeguards of the First Amendment will quickly be
brought into play to protect the right of academic freedom because
any unwarranted invasion of this right will tend to have a chilling
effect on the exercise of the right by other teachers. Cf. Wieman v.
Updegraff, 344 U.S. at 194, 195, 73 S.Ct. 215 (Frankfurter J.
concurring); Pickering v. Board of Education, etc. supra 391 U.S. at
574, 88 S.Ct. 1731.
 The right to academic freedom, however, like all other constitutional
rights, is not absolute and must be balanced against the competing
interests of society. This Court is keenly aware of the state's vital
interest in protecting the impressionable minds of its young people
from any form of extreme propagandism in the classroom. ...
¶ 66 This last paragraph relates to that part of the analytical process analogous to the
Canadian s.1 Charter justification for a limitation of a guaranteed freedom. With little
change, most of these comments could be found applicable to the Canadian Charter right
of freedom of expression as it relates to teachers.
¶ 67 If part of the value behind freedom of expression as set out in s.2(b) includes a
consideration of the importance of that expression to those who are the recipients of the
content (see: Irwin Toy), then the school context raises special issues. This becomes
partially a right of students in a democratic society to have access to free expression by
their teachers - encouraging diversity, critical thinking and vigorous debate. While
Boring, supra does not take that same view, there are some factors to consider. First, the
majority decision refers to the case as the first one to deal with the issue of a teacher's
free speech right to participate in curriculum development. Second, the majority of 7
judges was opposed by a minority of 6 judges who felt there was such a free speech right
¶ 68 The fact that the appellant was not a tenured teacher has no relevance to this
analysis. The right of expression exists within each person who is attempting to convey
some meaning by his or her activity. The official status of such a person can have no
relevance at this stage of the analysis. The appellant attempts to argue that the failure to
renew his contract is evidence of breach of his right of freedom of expression. He bases
his view in part on comments in Shumate. There the court referred to a then-recent
Supreme Court decision and stated at p.234:
...As it was with Sindermann, the critical question here is whether the
board's decision not to renew Shumate's contract was made in retaliation
for his exercise of his free speech rights. The absence of any contractual or
tenure right does not affect Shumate's constitutional claims. ...
¶ 69 In Shumate there does appear to be a connection between the non-renewal of his
contract and the breach of his right of free expression; there was no other action taken by
the school officials that would constitute a limitation on Shumate's free speech
right. School officials did nothing immediately but then failed to renew his contract. The
Court found a cause of action in these circumstances: a violation of Shumate's
constitutional right of free expression.
¶ 70 In the instant case, however, the prohibition against showing the film and
carrying out the project was the limitation. The issue of whether or not the appellant's
failure to obtain employment with the Board the following year was in retaliation for his
defence of his free expression rights then becomes an issue relating to damages.
¶ 71 The respondent's position that a teacher can have no right of free expression
because control of schools must rest in principals, whether they act reasonably or not, is
tenable neither in logic nor in law. The argument that if teachers are found to have such a
right there will be chaos in the school system, because all principals' decisions will end
up being decided by the courts, is also not tenable. Even the appellant acknowledged that
within the structure of the school system there must be rules and regulations, curriculum
and programming guidelines. What he was arguing for was a reasonable approach. If
these rules or regulations limited free expression, they would be justifiable under s.1 of
the Charter. Thus, only actions by school authorities that were alleged to go beyond any
s.1 justifiable limitations would be challengeable. This is a rational approach to the
balance between rights and limitations thereon.
¶ 72 The respondent's position, that there would be no resort to s.1 because to allow
for a right of free expression in teachers would totally disrupt the school system, is
extreme and an attempt to deny a Charter right out of fear that to acknowledge the right
would be to acknowledge the requirement that limitations on it must be reasonable and
cannot be arbitrary. This is not a basis for denying a clear Charter right of freedom of
expression. There is simply no foundation for an argument that because a teacher is under
the supervision and direction of a principal, he has no free expression rights - everything
he does is subject to control by the principal, whether reasonable or not. The Supreme
Court has found that even where laws are meant to "supervise" or "direct" or "limit"
actions of Canadians, those laws which limit rights of expression must be justified under
s.1. (See: Irwin Toy, Reference re ss. 193 and 195.1(1)(c) , Keegstra.) Surely principals
don't have authority greater than the law.
¶ 73 As well, nothing in Ross v. New Brunswick School District No. 15,  1
S.C.R. 825,  S.C.J. No. 40, suggests that a teacher has no expressive rights in his or
her capacity as a teacher, or that restrictions on those rights don't need to be justified
pursuant to s.1 of the Charter. The facts of Ross, and the "poisoned" school environment
found in that case, are inapplicable to the case before me. As for the concerns in Ross
about the social values teachers are expected to impart, the facts of the instant case
suggest that the appellant was attempting to teach the critical thinking and analytical
skills essential to citizens in any democracy. His choice of religion as a subject for this
process was not in and of itself a discriminatory or negative act. He was not attempting
to teach any particular religious view. He was dealing with religion as an important
element in society, one representative of our society's diversity, and in doing so was
teaching in a manner consistent with the approved curriculum. As he noted, the story of
Anne Frank had been the subject of an earlier project and the subject of religion was in
fact found in the textbooks he was using. The textbook Les Maritimes: Trois Province á
Découvrir includes in Chapter Three a discussion about the role and influence of
religious institutions in the Maritimes. The text Maritimes: Tradition, Challenges &
Change includes as part of Chapter Three, "Our Changing Social Institutions: The Church
in Prince Edward Island."
¶ 74 The film the appellant sought to use as a catalyst for his project did focus upon
fundamentalist religious groups. It was illustrative of a number of social issues. The
three members of the provincial Junior High Language Arts Committee all agreed that
the assignment was appropriate for the appellant's class. They suggested there were some
concerns about the way it was presented but noted that different teachers handle matters
differently. As reported in the Minutes of the May 19, 1988 Curriculum Committee
Mary Thomas provided comments as a member of the Junior High
Curriculum Committee, with regards to the assignment only, not the
video. She indicated her involvement based on presentations made by
Richard Morin and her understanding of the language arts curriculum for
junior high, and stated her feeling that the assignment was appropriate
based on the skills it asked the students to exercise - interview, research,
and critical thinking - as used in the Context and Bridges components of
the junior high program. It was Ms. Thomas's understanding that the
students didn't receive any explanatory comments at the time and that the
assignment was given verbally, and as she didn't hear from anyone who
actually heard the assignment, she would not make a judgement on
that. Ms. Thomas indicated that the methodology of the question itself
are[sic] things required of Grade 9 students in language arts. On the
question of whether it fit into the language arts curriculum, Ms. Thomas
stated that it was not offensive and neither made a judgement against any
one religion or promoted any one religion. She indicated that she could not
say whether the teacher went against or promoted any religion as she had
no evidence to base it on. The question did not ask the individual student
to express what they themselves felt about religion, it was a survey. Ms.
Thomas stated that the assignment did fit in with the language arts
curriculum, as it asked the students to use questioning skills and critical
thinking about issues, and to take comments and information to use as a
base for a written report. Ms. Thomas indicated that she did not address
her comments towards the video, people involved or how the situation
arose or was handled.
Ms. Steeves [another member of the provincial Junior High Language Arts
Curriculum Committee] felt the assignment was appropriate given the
topics discussed previously in the classroom. She also felt the assignment
was appropriate given the type of student in the Grade 9 class as the
average was 87.5%. She felt the assignment would be very suitable for
that type of student. She stated that the actual question of the assignment
was in no way a judgement statement, simply a question. Ms. Steeves
indicated that she did not know what the teacher said as introduction to the
video, but she regarded the video as complex. She felt there were no right
or wrong impressions of the video, it would depend on everyone's different
viewpoints. She indicated a need for the students to discuss the video from
their own point of view, and hear their peer questions, as well as their
teacher's questions on the video. She felt they were central to the video
and should have happened - it never should have been cut off. Ms. Steeves
understood the video was used as a catalyst, and having no discussion
would raise many questions. The fact that students were not allowed to ask
questions would only increase their questions.
With regards to planning, Ms. Steeves indicated that it is not a static thing.
You cannot judge someone on how quickly or slowly they plan.
¶ 75 The appellant produced case law and made extensive arguments about the need,
in a democratic society, to protect teachers' freedom to teach in a manner that stimulates
and encourages the exchange of opinions and ideas. Such values are inherently within the
rationale behind the Supreme Court's liberal approach to the interpretation of the
Charter's scope of protected speech, and are shown to a certain extent in the Supreme
Court's comments in the Commonwealth of Canada. However, those comments and
authorities are most relevant to a s.1 analysis and there is none in the case before me.
¶ 76 In conclusion, as in Irwin Toy, the plaintiff/appellant's activity is not excluded
from the sphere of conduct protected by freedom of expression.
2. Purpose or Effect
¶ 77 Where the activity at issue is classified as protected speech under the first part of
the test in Irwin Toy, the second part of the test requires a determination of whether or
not the purpose or effect of the impugned act was to restrict the appellant's freedom of
¶ 78 As to whether or not the intent of the impugned actions was to restrict the
expression of the appellant, the respondent argues that the intent was rather to ensure that
the authorized teaching program was followed, and that planning, preparation, and
relevance objectives were met. An argument was also made that the principal has a
responsibility to "protect" the students, so control over content is essential.
¶ 79 If the latter argument is to prevail, then there is an implicit admission that the
direct purpose of the prohibition was to control the content the appellant wished to
express - simply justified by the need to protect students.
¶ 80 Again, I point out that the respondent's counsel on appeal made it unequivocally
clear to the court that the respondent's position did not in any way rely upon s.1. The
respondent stated that there was no need for a s.1 justification so none was being put
before the court. As a result, the analysis before the court is whether limitations were
placed upon the free expression rights of the appellant, not whether the limitations on his
freedom of expression were justified.
¶ 81 With respect, it appears that the respondent and to some extent the trial judge,
have misunderstood the Supreme Court's views on how one determines whether the
purpose of an impugned act was a restriction on expression. The Court has warned
against attempts to clothe the intent to control content in the garb of some higher
purpose. The Court has more than once noted that all governmental action will be said to
have a purpose other than restriction of expression. But if the primary purpose is in
reality a restriction on expressive activity, then the other "higher purpose" must be
viewed as part of a justification under s.1.
¶ 82 Once again I note the numerous and varied cases in which the Supreme Court has
found a purpose of restricting expression requiring a justification under s.1. While
restricting the rights of prostitutes to express themselves by offers of their services may
have many socially valuable purposes, the primary intent of legislation against
solicitation is to prevent prostitutes from making those offers, i.e. prevent them from
expressing their offers (Reference re ss. 193 and 195.1(1)(c)). The government could
justify the restriction under s.1 but could not establish those social values as the primary
purpose of the law. With respect to commercial free speech - also protected under s.2(b)
- in Irwin Toy the argument that the protection of children was the purpose of the laws
did not prevail. From an analytical perspective, the Court found the purpose was to
restrict what the advertisers wished to express. The reasons behind that restriction were
appropriate for a s.1 analysis, not a determination of the purpose. The same analysis
explains Keegstra. The purpose of the law was to prevent a person from expressing the
views he expressed, i.e. limiting his right of free expression. The values behind - reasons
for - the law were part of the s.1 analysis.
¶ 83 There is a suggestion throughout the Board's presentation that an employee has
no freedom of expression rights, or that as long as an employer/supervisor takes the
position that he has some other reasons for limiting expression then the "purpose" of the
limitation is not a restriction on expression.
¶ 84 The case law in this area shows a very broad and liberal interpretation of the free
expression right. While the "secondary" purpose of a rule/act may often be of a more
general nature, an act or rule that tries to limit what can be expressed has as its primary
purpose a restriction on what can be expressed and so is in breach of s.2(b).
¶ 85 The rationale for this view of the law is clear. Because of the existence of a
mechanism for justification in s.1 of the Charter, there is no good policy reason to refer to
the justification for a limitation on expression in the first part of the analysis. If what you
want to do or say has expressive content and the rule/act in opposition is intended to
prevent or limit your ability to do or say what you want, then this is a free expression
restriction no matter what the "higher justification." The "higher justification" may save
the rule/act from being a breach of your s.2(b) right if it meets the requirements of s.1.
¶ 86 That the purpose and intent of the principal and vice-principal in the instant case
was to limit the content of what was expressed by the appellant in the classroom is clear
from this analysis. Various comments in the evidence produced at trial reaffirm that
purpose. For example, the notes of the Curriculum Committee meeting of May 17, 1988,
report in detail the principal's (George MacDonald's) view of the incident approximately
five weeks after it had occurred:
Mr. MacDonald questioned the purpose of the assignment and whether Mr.
Morin could justify the assignment ...
Mr. MacDonald informed Mr. Morin that he was not satisfied and did not
feel the assignment was age appropriate and that the topic was personal,
concerning the parents, the students and their God, not Mr. Morin.
...The assignment caused anxiety in students and parents, and two students
went home in tears. Mr. MacDonald felt the assignment was sensitive in
nature and a number of parents registered their concerns. Parents did not
wish alien influences outside the authorized course of studies imposed on
Mr. MacDonald stated that he had seen the video and had nothing personal
against it but the students didn't appear to understand it. People across the
community and children of fundamentalists were offended by the film. ...
In response to a question, Mr. MacDonald indicated that Mr. Morin teaches
language arts to 61 students, and letters were received from 8 parents [two
in support]. Mrs. Duffy asked whether the curriculum and assignments in a
school should reflect the values in the community and Mr. MacDonald
agreed that parents have a role and a right in terms of what is being
taught. He considers the school community to include the students and the
parents. His initial reaction was that the parents wanted the assignment
Mrs. Scott stated that in the program, teachers are recommended to use
other outside services. Mr. MacDonald indicated he understood this, but
he thought the series authorization given [sic] teachers ample opportunity.
Mr. MacDonald felt that Mr. Morin went beyond the parameter of the
program in terms of research skills.
¶ 87 The principal's personal notes about his meeting with the appellant and the
appellant's wife on April 11, 1988 include the following:
I informed him that after listening to his explanation, I felt the assignment
was not age appropriate. I further stated, that in my opinion, religion for
the students in junior high school is a personal matter concerning the child,
his/her parents/guardians and God. I informed him that I have a
responsibility to the parents and to the students and I was taking their
I requested that he withdraw the assignment and report for work in the
morning. I indicated that if he was not willing to withdraw the assignment
that he should not report to work on Tuesday, April 12, 1988. [Ex. P-1,
¶ 88 The principal's media release of April 18, 1988 stated:
I made a decision that the assignment was not age appropriate. I was not
able to see the relevance of this assignment to the grade nine language arts
program and it appeared to me it was 'parachuted' into the program.
My clients are the students who attend this school and their parents. This
assignment caused much concern among students and their
parents. Students are a captive audience, I have a responsibility to them
and to their parents.
I feel that it may well be an appropriate assignment for a high school or a
university political science program. It is not one that is appropriate for
junior high school students, in my opinion.
He was requested to withdraw the assignment. In my opinion, his
professional freedom was not compromised. [Ex. P-1, Tab 23]
¶ 89 At trial the principal stated:
My position is the same as what I've said all along. In my role description,
I have to provide leadership in the delivery of school programs and I
expect there are times when I can tell teachers what they should do. [June
17, 1999 p.54 transcript]
¶ 90 There is little in this material that could be interpreted as anything other than an
attempt to stop the appellant from presenting what he chose to use in his classroom
because the content was objected to by the principal.
¶ 91 In the instant case, the whole context of the evidence suggests that the purpose
and intent of the impugned actions was to avoid controversy by prohibiting any possibly
controversial content from being expressed in the classroom.
¶ 92 These actions set the stage for the appellant's claim. The fact that the School
Board set up a review of the principal's decision does not eliminate the initial limitation
on the appellant's right of expression. All involved clearly understood that the appellant
was prevented from showing the film he wanted to show and from carrying out the
project he had planned. The review was in the nature of an inquiry as to the
reasonableness of those prohibitions, i.e. a consideration of the kinds of factors that may
be appropriate for a s.1 inquiry in defence of a limitation on free expression. The Board's
ultimate decision -that the film and project could only be presented in a manner that met
with the principal's and superintendent's approval - was itself another limitation on the
appellant's ability to express himself freely in his capacity as a teacher. Its purpose was
clearly to restrict the appellant's expression, requiring it to be within limits set by
others. As such, those limits on expression ordered by the Board contravene the
appellant's right of free expression unless justified under s.1.
¶ 93 This is not a case of deciding that the school system may not place reasonable
restrictions upon materials teachers use for teaching within the system. Based upon
"reasoned grounds," as phrased by the trial court judge, limitations may well be
acceptable. With all due respect to the trial judge, I find he erred: (1) in failing to
recognize that those "reasoned grounds" are almost inevitably an aspect of a s.1
justification, not an aspect of the determination of the right of free expression; and (2) in
any event, there was no evidence of reasoned grounds to support the actions of the
principal and vice principal. The evidence overwhelmingly indicates that their actions
were direct attempts to prohibit what they concluded was a controversial film primarily
because they were told a few parents were unhappy and a couple of students may have
walked out during its showing.
¶ 94 The principal in the instant case was adamant at all times that the subject of
religion would not be discussed in his school and so long as some parents were upset, the
project would not be allowed to go ahead. His intent was to prohibit the appellant from
showing this film or continuing with the project on this subject - a straightforward
restriction of the appellant's expressive rights.
¶ 95 While a philosophical debate about freedom of expression in a democracy and
the relevance of education in supporting this aspect of democracy may not be necessary,
it is hard to avoid an expression of concern about the implications of endorsing such an
arbitrary use of administrative powers to suppress the expression of what might be
controversial opinions in an educational environment. Neither the principal nor the vice
principal talked to any so-called objecting parents prior to banning the film. The
evidence is a secretary told the vice principal a few parents had called about the film. He
then banned the film. The secretary never gave evidence at trial. The vice principal
reported what he had heard from the secretary to the principal who, after one discussion
with the appellant and no further inquiry, banned the film and stopped the project.
¶ 96 Clearly the Supreme Court's liberal interpretation of s.2(b) and the tests to be
applied are intended to protect just such situations from occurring without good
justification under s.1. The attitude of the respondent school board that there is no need
for justification of such arbitrary action simply reinforces the importance of the Charter
right. The principal's position was that showing the film after he said not to would be
insubordination. Insubordination in such an employment context would have serious
implications. What is being dealt with in this case is the freedom of teachers to carry out
their mandate in a free and democratic society without fear that a whiff of controversy
could spell the end of their careers - or result in suspension or other punishment. Is
education not well served by a stimulating debate, discussion of different points of view,
exposure to different perspectives? Should not teachers be encouraged to challenge their
students, to raise topical issues, rather than be intimidated from raising anything that
might be controversial?
¶ 97 There may well be some content limits that are justifiable under s.1 - for
protection, regarding the age of students, etc. - but the very need to justify those limits is
what ensures that freedom of expression will exist as a general right rather than an
¶ 98 The Supreme Court took the position in Keegstra and Reference re ss. 193 and
195.1(1)(c) that the fact that something is criminalized does not preclude it from being
protected speech under s.2(b). This strongly suggests that even if the film were
questionable in terms of meeting the school program's objectives, the freedom to show
the film will be protected by s.2(b) and a prohibition must be justified under s.1.
¶ 99 The situation in the instant case is somewhat analogous to that in the
Commonwealth of Canada case. There were some differences of opinion among
members of the Court as to whether the actions of the airport manager were actually
authorized by the airport regulations. This would be similar to the question of whether or
not the principal's action in making a blanket prohibition on the showing of the film was
authorized by the Board, and it clearly was not authorized by the Board since it came to a
different decision. In the Commonwealth of Canada case, the Court found that in the end
it did not matter whether or not the airport rules authorized the manager's actions. The
manager's actions themselves were in breach of the Charter. In the same way, in the
instant case, it does not matter whether or not the principal's actions were authorized by
the Board. The principal's actions themselves were in breach of the Charter.
¶ 100 Finally, the ultimate decision of the School Board after the appeal simply
reinforces the point that limitations on expression were at issue here. By ordering the
teacher to find a way to present the film and project that would be agreeable to the
principal and superintendent, the Board was reaffirming that the teacher's expression
could not take place freely. While this was done in the guise of "preparation" and
"presentation," in the context of this case the message was clear: school officials shall
control the content. Especially given the principal's clear opposition to the content and to
any discussion of religion, the order given almost ensured that the film would never be
shown, even without considering the fact that the appellant was not tenured and the
appeal process had taken up almost two of the last three months of the school year.
¶ 101 Once again, it must be noted that these limitations - finding a way to present the
film and project that would meet the school officials' approval - were argued by the
respondent to be limits inherent in the teacher's expressive rights, not limitations on his
expressive rights justifiable in a free and democratic society under s.1. That is, the
principal's views are argued to take precedence over the Charter right, the principal's
view being inherently related to some more important administrative requirement for
order in the schools. To accept this position would be to find that the need for order in
schools is greater than the need for order in society: the Supreme Court has made it clear
that just because a law has been passed by Parliament, this does not mean that a person's
Charter right has not been breached by that law. In the same way, just because a
principal has a supervisory role with respect to a teacher does not mean that he does not
breach that teacher's Charter right of free expression if he tries to control the content the
teacher chooses to use in his class.
¶ 102 For all these reasons, I conclude that the purpose and intent of the impugned
acts was to prevent the appellant from expressing content he chose to express as a teacher
in one of the respondent's schools.
¶ 103 Even where the purpose and intent of a law or government action is not to
restrict freedom of expression, that may be the unintended effect.
¶ 104 Irwin Toy and the subsequent s.2(b) cases make it clear that when looking at the
effect of a governmental law or action, where a content restriction is not found to be the
purpose of that law or action the onus is on the plaintiff to prove that the effect of the
impugned action is a limitation on free expression. To prove such an effect, the plaintiff
must show that one of the suggested values underlying the guarantee is infringed. These
values are: seeking and attaining the truth is an inherently good activity; participation in
social and political decision-making is to be fostered and encouraged; and the diversity in
forms of individual self-fulfillment and human flourishing ought to be cultivated in an
essentially tolerant, indeed welcoming, environment not only for the sake of those who
convey a meaning, but also for the sake of those to whom it is conveyed. A government
action not aimed at suppressing free expression but that has suppression as its unintended
effect, will therefore constitute a violation of s.2(b) if the complainant can show that one
of these values is implicated in the prohibition on his or her expression.
¶ 105 In the instant case it is arguable that all three values are implicated in the actions
to suppress a teacher's expression as was done here. In their broadest sense, these values
are essential underpinnings to the educational system in a free and democratic society.
¶ 106 The seeking and attainment of truth as a component of free speech was
elaborated upon by Thomas Emerson in his article Toward a General Theory of the First
Amendment, at p.881:
In the traditional theory, freedom of expression is not only an individual
but a social good. It is, to begin with, the best process for advancing
knowledge and discovering truth.
Considered in this aspect, the theory starts with the premise that the
soundest and most rational judgment is arrived at by considering all facts
and arguments which can be put forth on behalf of or against any
proposition. Human judgment is a frail thing. It may err in being subject to
emotion, prejudice or personal interest. It suffers from lack of information,
insight, or inadequate thinking. It can seldom rest at the point any single
person carries it, but must always remain incomplete and subject to further
extension, refinement, rejection or modification. Hence an individual who
seeks knowledge and truth must hear all sides of the question, especially as
presented by those who feel strongly and argue militantly for a different
view. He must consider all alternatives, test his judgment by exposing it to
opposition, make full use of different minds to sift the true from the
false. Conversely, suppression of information, discussion, or the clash of
opinion prevents one from reaching the most rational judgment, blocks the
generation of new ideas, and tends to perpetuate error. This is the method
of the Socratic dialogue, employed on a universal scale.
¶ 107 The appellant wanted to show the film "Thy Kingdom Come, Thy Will Be
Done" and have the students use it as a catalyst to interview other people and consider
and write about the topic "What Religion Means to Different People". Learning the skills
of critical thinking and interviewing are essential in enabling students to seek the truth in
any area of life. These skills were part of the goals of the established curriculum. The
subject matter required consideration of political, social and religious values and how
they can be intertwined and impact upon one another. Such an exercise can only enhance
the students' ability to participate effectively in social and political decision-making and
their ability to seek and find the truth. Focussing in this way on the benefits to students of
the expression sought by the teacher is recognizing that like the consumer in Irwin Toy,
the students have a right to hear this expression and benefit from it. Far more than the
right expressed in the commercial expression cases, this right of students is fundamental
to their being citizens in a truly democratic state and students of that state's educational
system. The proposed project would assist students in learning how to seek and attain the
truth about any particular activity.
¶ 108 On his part the appellant clearly had a personal interest, in terms of his own
individual self-fulfillment, in being able to teach the approved curriculum in a manner he
felt was relevant and topical. His fulfilment as a teacher, carrying out his role in the
manner he believed was best, was and is clearly at stake here. The evidence submitted at
trial included interviews with and statements of the appellant making this point.
¶ 109 That the effect of the impugned actions were to stifle the free expression of
teachers generally and affect these values is most clearly shown by the comments of
James Blanchard, General Secretary of the P.E.I. Teachers' Federation in a letter dated
April 22, 1988, to Rufus Reid, Superintendent of Regional Administrative Unit #3. Mr.
Blanchard requested changes to minutes prepared of a meeting of April 12, 1988,
including addition of the following to the minutes:
Mr. Blanchard expressed grave concern that the direction in the letter of
George MacDonald would place undue restrictions on other teachers if all
teachers were to use only authorized materials. He requested Mr. Reid to
clarify the matter so that other teachers at Birchwood and within the Unit
will know what limitations would be placed upon them. Was the directive
in Mr. MacDonald's letter suggesting all teachers are to adhere strictly to
the materials designated in the authorized curriculum?
¶ 110 This is a clear expression of concern by the teachers as a group that their
freedom of expression - their choices as to appropriate teaching materials - was
¶ 111 Any argument that individual self-fulfillment as an aspect of free speech does
not apply to an individual's actions in the work environment is put to rest by the Supreme
Court's decision in Irwin Toy, Reference re ss. 193 and 195.1(1)(c) , and even
Keegstra. The capacity within which you express yourself does not limit the right you
have pursuant to s.2(b), whether you are carrying out that expression as an aspect of your
employment, livelihood, or just for fun. Such capacity may provide the framework for a
justification on your free expression right under s.1, but that is a different matter. There
is nothing in any of the cases put before me that suggests that the capacity in which you
express yourself determines whether or not your expression is protected pursuant to
s.2(b) of the Charter.
¶ 112 I therefore conclude that the values underlying the guarantee of freedom of
expression are implicated in the circumstances here, so the actions of the principal and
vice principal and ultimately the School Board, had the effect of suppressing the
appellant's constitutional right to free expression under s.2(b) of the Charter and are
violations of that right.
¶ 113 A considerable amount of the evidence produced by both sides appears to be for
the purpose of justifying each side's view that the other side exacerbated the problems
related to this incident by going to students/parents/media and making statements or
taking actions that were unreasonable/inflammatory. The aftermath of the censorship
was certainly public, emotional, and confrontational. While that evidence might relate to
a claim for damages, it is not relevant to the breach itself. The breach either did or did
not occur at the time the appellant was prohibited from showing the film and, thus,
carrying out the proposed project.
¶ 114 Normally, the Court would at this point review the evidence produced by the
respondent pursuant to s.1 of the Charter to determine whether or not the impugned
actions were justified in the instant case. There is some suggestion in the Commonwealth
of Canada case that a functionary's actions are not justifiable under s.1 as they are not
"laws," but this was not a finding of the Supreme Court. In any event, the issue does not
arise because the respondent took the position that no s.1 argument was necessary.
¶ 115 I would therefore allow the appeal of the trial judge's finding with respect to
s.2(b) of the Charter. I find the appellant's right to freedom of expression pursuant to
s.2(b) of the Charter was breached by the actions of the principal, vice principal and
¶ 116 The appellant argues that the trial judge erred in finding that the appellant's
liberty interests as protected by s.7 of the Charter were not breached. That section states:
7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
¶ 117 During the appeal the appellant took the position that the breach of his s.7
liberty interest related to the loss of his freedom to work in his chosen profession but was
only raised if a breach of s.2(b) was found. The appellant makes a connection between
s.2(b) and s.7 by stating:
The state, through its agent, restricted privileges and liberties that I had
because I had not yielded to their threats of punishment. And what the
state wanted me to yield was my right to freedom of expression.
¶ 118 The respondent took the position that there was no purpose in dealing with the
merits of this argument because the appellant claims no s.7 relief independent of the
relief available to him upon a finding of a s.2(b) breach.
¶ 119 In response the appellant expressed some indecision about the necessity of his
s.7 claim stating that so long as s.24 remedies were available to him as a result of a
finding of a s.2(b) breach, he agreed there was no need to pursue this aspect of the claim.
¶ 120 The claim with respect to breach of his freedom of expression right appears to
deal most directly with the complaints of the appellant. Section 7 of the Charter appears
to be added as an alternate claim which even the appellant had difficulty articulating at
the hearing. While he disagrees with the findings of the trial judge, he has failed to
establish any legal foundation for that disagreement.
¶ 121 This aspect of the appeal is therefore dismissed.
1. Mandatory leave of absence
¶ 122 The appellant was placed on a leave of absence against his will. He argues that
this was wrongful dismissal: the respondent had no authority to take this action against
him and in doing so breached the terms of the applicable collective agreement.
¶ 123 The respondent's position is that even if that were true, this court at an earlier
hearing determined that this claim was one covered by the collective agreement and as a
result should have been grieved in accordance with the process set up in that
agreement. On this basis the trial judge found he had no jurisdiction to hear the
appellant's argument on this point.
¶ 124 There was no error by the trial judge. He correctly cited the earlier findings of
this court in (1995), 125 Nfld. & P.E.I.R. 211. In that judgment Carruthers C.J. found
that it was open to the appellant to file a grievance pursuant to regulation 1.79(2) alleging
violation of the collective agreement on the grounds that the respondent had no authority
to place him on leave with pay for the balance of the school year and on the grounds of
failure to properly manage the student boycott of his classes. The appellant's failure to
take the actions required to file a grievance with respect to these matters did not create a
jurisdiction in the Court to deal with them; jurisdiction of the court was ousted by the
existence of the collective agreement and the grievance process. Leave to appeal to the
Supreme Court or Canada was denied  SCCA No. 121].
¶ 125 The appellant attempted to raise a number of points he said were "new" or
"different" so as to put the matter before the court again. The matter has been decided
and is not subject to appeal again.
¶ 126 This ground of appeal is, therefore, dismissed.
2. Collateral agreement
¶ 127 The appellant also argued wrongful dismissal in connection with breach of the
terms of an agreement collateral to the collective agreement and signed written
contract. The trial judge found no collateral agreement on the facts before him. The
appellant argues that the trial judge erred in finding no collateral agreement.
¶ 128 Specifically, the appellant argues that he had made it clear that he would never
have come to Prince Edward Island to teach if there had been no guarantees beyond the
standard one-year term contract for non-tenured employees. He states that to entice him
to move, Board employee Linda Lowther guaranteed him at least two years of
employment and further permanent employment so long as student enrolment stayed high
and his work was satisfactory to his employer.
¶ 129 The trial judge found that Ms. Lowther had no intention to enter into a contract
with the plaintiff and that her representations about continued employment were simply
broad, general inducements to enter into the main contract.
¶ 130 The appellant here is asking this court to review the evidence and substitute its
opinion for that of the trial judge. This is not the role of a Court of Appeal. Our role is to
determine whether or not any errors of law were made by the trial judge. The parameters
of appellate review over the factual findings of a trial judge are summarized at para. 35 of
Noye Enterprises Inc. v. Grady (1999), 172 Nfld. & P.E.I.R. 80:
 In summary, it is not the function of this court to substitute its
assessment of the evidence and to reweigh it on a balance of
probabilities and then consider whether the findings of fact made by
the trial judge should be reversed. To the contrary, it is the function
of this court to examine the evidence before the trial judge and
decide whether there was evidence to support his finding and also to
decide whether he may have overlooked relevant and material
evidence or considered irrelevant and immaterial evidence. If there
was evidence to support his findings and if it is determined on a
review of the evidence he did not overlook relevant evidence or rely
upon irrelevant evidence, it cannot be said his findings were
unreasonable and they should not then be reversed.
¶ 131 I have examined the evidence adduced before the trial judge and am satisfied
there was evidence to support his finding of no collateral contract, and he did not
overlook relevant evidence or rely upon irrelevant evidence. While the appellant may
believe that the statements made to him by Linda Lowther were contractual in nature, she
made it clear, as pointed out by the trial judge, that they were not intended to be
contractual and were in fact the same general observations she made to all potential
employees she spoke with to entice them to come to Prince Edward Island.
¶ 132 This ground of appeal is, therefore, dismissed.
¶ 133 The trial judge found that with respect to the defamatory actions alleged in the
pleadings there was no proof of what was said, no proof of damages, and a valid defence
of qualified privilege. Once again, the appellant seeks to have this Court substitute its
opinion for that of the trial judge on these matters which principally require findings of
fact. As there was evidence upon which a judge could make the findings required in this
case, there was no error with respect to these findings.
¶ 134 The trial judge also disallowed the appellant's attempt to amend his pleadings
after trial by including new allegations of defamation - separate fact situations from those
identified in the pleadings - in his post-trial brief. While it is questionable that this effort
to add new fact situations post-trial could even be considered a motion to amend
pleadings, the trial judge made no error of law in his analysis of the inappropriateness of
such an attempt to amend pleadings at that stage and the prejudice that would be suffered
by the defendant.
¶ 135 This ground of appeal is dismissed.
MOTION FOR NEW EVIDENCE
¶ 136 The appellant sought leave of this court to introduce new evidence. The
application to introduce new evidence was heard prior to the appeal but taken under
advisement until the appeal itself was heard.
¶ 137 The new evidence proffered is to prove that the letterhead upon which notes of
John MacDonald, a witness at trial, are written was not in use -- did not exist - on the date
the notes were alleged to have been written. These were Mr. MacDonald's notes
reflecting a meeting among himself, Linda Lowther, Debbie Pineau and George
MacDonald, principal. These notes confirm that George MacDonald advised the others at
that time - approximately one month before the incidents giving rise to the appellant's
claim - that he did not view the appellant as an appropriate teacher in his school and
would not be renewing his contract.
¶ 138 The appellant argues that these notes are the only independent evidence of this
meeting and of George MacDonald's not finding the appellant's work satisfactory, one of
the preconditions of the alleged collateral agreement. John MacDonald and George
MacDonald testified that the meeting occurred and that the notes reflect what was
said. Debbie Pineau remembered a meeting but not those comments. Linda Lowther, the
appellant's witness, was not asked about the meeting.
¶ 139 The allegation is that since the letterhead did not exist at the time of the
meeting, the notes are false and thus undermine the credibility of both George
MacDonald and John MacDonald such that they cannot be believed. This would mean
there is no evidence of a decision not to rehire the appellant before the incident giving
rise to this litigation.
¶ 140 New evidence is admissible if it meets the four criteria set out by the Supreme
Court in Palmer and Palmer v. R.,  1 S.C.R. 759 (at p.775):
(1) The evidence should generally not be admitted if, by due diligence,
it could have been adduced at trial provided that this general
principle will not be applied as strictly in a criminal case as in civil
cases: see McMartin v. The Queen,  S.C.R. 484.
(2) the evidence must be relevant in the sense that it bears upon a
decisive or potentially decisive issue in the trial.
(3) the evidence must be credible in the sense that it is reasonably
capable of belief, and
(4) it must be such that if believed it could reasonably, when taken with
the other evidence adduced at trial, be expected to have affected the
¶ 141 The evidence here would not affect the result of the trial and so, even if it met
all other aspects of the test, would not be admissible. There is simply no issue before me
that turns on what was said at this meeting, or whether or not this meeting occurred. The
free expression and liberty interests are not engaged. It is not decisive of whether or not
defamatory remarks were uttered, or whether or not there was a collateral agreement.
¶ 142 This meeting may be relevant to the issue of damages, i.e. whether or not the
decision not to rehire the appellant was in fact retaliation for his actions, but that issue is
not before me.
¶ 143 As for the other elements of the test, the evidence appears credible but it is
arguable that it could have been obtained (noticed) before trial by due diligence and, for
the reasons noted above, it does not bear upon a decisive issue at trial.
¶ 144 For these reasons, the motion to admit new evidence is dismissed.
¶ 145 On appeal the appellant asked for the damages sought in his statement of claim:
(a) damages pursuant to s. 24(1) of the Canadian Charter of Rights and
(b) general damages; and
(c) aggravated damages.
¶ 146 While the trial judge heard the evidence with respect to the claims for damages,
he did not decide upon this issue. Since he has heard the testimony of the witnesses in
relation to this matter, including the expert actuarial witness, Brian L. Burnell, the trial
judge is in the best position to render a decision on this issue. I would therefore remit to
the trial judge the issue of what, if any, damages the appellant is entitled to as a result of
the breach of his s.2(b) Charter right of freedom of expression.
¶ 147 The appellant appealed the trial judge's apportionment of costs with respect to a
variety of proceedings in this matter. My finding of a breach of s.2(b) of the Charter
requires a variation of the costs award at trial. The appellant shall be awarded his costs as
a lay litigant at trial and on appeal on a party and party basis.
¶ 148 With respect to the remainder of the trial judge's award of costs, I find no
manifest errors in connection with this exercise of discretion. Because of the outcome of
this appeal, the matter of set-off as referred to by the trial judge does not arise.
Concurred in by:
EVIDENCE AND BACKGROUND
¶ 149 On June 28, 1986 Mr. Morin signed a one-year contract of employment with
Regional Administrative School Unit #3 to teach French immersion and Language Arts at
the Grade nine level at Birchwood Junior High School in Charlottetown. Junior High
School in P.E.I. includes Grades 1 to 9.
¶ 150 When he was recruited for this position, he was a tenured teacher in the
province of Quebec. In the course of his recruitment, he had discussions with Linda
Lowther who was the coordinator of French programs with Unit 3. Also, just prior to
signing the contract in 1986, he had discussions with Ms. Lowther regarding the term of
the contract. Mr. Morin was concerned about the security of employment as he was
leaving a tenured position in Quebec for the job at Birchwood where he would not be
tenured for at least two years. He made inquiries of Ms. Lowther regarding his concern
and she explained that if the enrollment in the late immersion program remained at the
1986-'87 school year level and if the Unit's experience with him as a teacher was
satisfactory, he would have his contract renewed for the second year and he would be
offered a tenured position the following year. In this respect she explained to him the
evaluation process that is conducted by the principal of the school each year.
¶ 151 On June 25, 1987 near the conclusion of Mr. Morin's contract the principal of
Birchwood, Mr. George MacDonald, completed an evaluation of his performance as a
teacher which, while pointing out some concerns, was in most respects positive. They
met to discuss the evaluation and Mr. MacDonald indicated that if Mr. Morin was willing
to work to address these concerns, he had a future as a teacher at Birchwood.
¶ 152 A second contract of employment for an additional one-year term was entered
into between the parties. In accordance with this contract, Mr. Morin continued teaching
at Birchwood for the 1987-88 school year.
¶ 153 On March 7, 1988 George MacDonald met with Ms. Lowther, Debbie Pineau,
the Core French coordinator for Unit 3, and Mr. John MacDonald, the Superintendent of
Administration. The meeting was held to allow George MacDonald an opportunity to
express his concerns over the performance of Mr. Morin. There are notes or minutes of
the meeting and these indicate the principal was of the opinion Mr. Morin might be better
suited to teach in a senior high school. He asked the Unit to consider finding Mr. Morin
such a position for the next school year. Mr. Morin questions whether this meeting ever
took place and he made an application to adduce further evidence on this appeal to prove
that it did not take place. I will address the application later in these reasons.
¶ 154 On April 7, 1988 an event took place which has given rise to this litigation. The
previous evening Mr. Morin viewed a documentary prepared by the British Broadcasting
System entitled "Thy Kingdom Come - Thy Will Be Done". This documentary
chronicled the impact the fundamentalist approach to religion was having on politics and
life in the United States. Mr. Morin showed the documentary to a grade nine language
arts class which he taught in back-to-back periods of 40 minutes each on April 7th. The
subject matter of the film was to serve as the basis for an assignment or project on the
subject of "What Religion Means to Different People." Prior to showing the
documentary there was no discussion with the class about the project or the reasons for
showing the film. Mr. Morin testified that between the two periods the students were
advised they would be asked to do a project but it does not appear from the evidence
there was any detailed discussion about the aims and purposes of the project. The class
was dismissed after the second period and just as the documentary, which was
approximately 85 minutes in length, was concluding. According to the evidence of Mr.
Morin the details of the project were to be discussed with the students during the next
class the following day.
¶ 155 Language arts was the junior high school English instruction. According to the
curriculum guide Exhibit P-2 - Tab 102 - at page 22, junior high school English was to be
taught as part of an integrated language arts course. The classroom work was to include
speaking, listening, reading, writing or viewing. The aim of the course was to develop
the capabilities of students in all the language arts. This included the development of an
appreciation for literature, the enhancement of communication skills with special
emphasis on writing and a "... rich array of experiences in critical thinking." See: page 6
of the Curriculum Guide.
¶ 156 The student was to be exposed to English literature because it developed the
ability to read with meaning. The emphasis in the English program was to move toward
the concept of "reading with comprehension or understanding." The second major
objective was to develop the communication capabilities of the students which included
writing, spelling, listening, speaking, studying words and to some degree viewing. It was
recognized that a by-product of the language arts program was the development of the
students critical thinking capabilities. Students were encouraged to analyse their reaction
to literature, draw inferences, make judgments about characters, about plots, about
themes and about the interaction in literature of all of these. See: page 13 of the
Curriculum Guide. Various forms of literature were to be used e.g. the novel, the poem
¶ 157 The course guide for the grade nine language arts program was entitled
"Contexts - teacher's resource book three" and it is part of Exhibit P-2 at tab 107. This
course guide provides the teachers with lesson plans divided into 8 "Themes" which are
as follows: (i) Decisions; (ii) Laughing Matter; (iii) Realizations: Short Stories; (iv) All
in a Moment: Poetry; (v) Myths and Mysteries; (vi) News and Views: Non-Fiction; (vii)
Reflections of Canada; and (viii) On Stage: Drama. Within each of these themes there
were a number of units with the full program comprising 73 units. Each theme has an
anthology. For example Theme 1, entitled "Decisions" comprises 9 units with the
anthology consisting of poems and short stories. Theme 6 is entitled "News and Views:
Non-Fiction"; it comprises Units 47 to 54 and the anthology includes magazine articles,
radio broadcasts, a newspaper editorial, a letter to the editor and even a blooper. Finally,
as another example, Theme 8 is entitled "On Stage: Drama" and it comprises Units 70 to
73. The anthology includes three one-act plays and material from various works of
¶ 158 At the time the film was shown the class had just completed theme 8. It was not
clear where the subject matter of the project fit in the "Contexts" teachers' guide and Mr.
Morin acknowledged the film documentary was the first work presented to the students
which was not contained in the suggested anthology for the language arts program. He
did testify, however, that it was his intention to have the students complete a project
where they would interview adults about what religion meant to them. The documentary
was to serve as a back grounder for this project.
¶ 159 Some students apparently reported home as to what they had viewed in their
language arts class on April 7th. That night Mr. Morin had a phone call from a parent
concerned about the objective of showing the film. He explained the project to the parent
and extended an invitation to come to the school to view the film. He also indicated the
student could complete another project if both parent and student remained
uncomfortable with the one based on the documentary.
¶ 160 The next day the vice-principal of Birchwood, Garnet Steele, learned that
between 10-15 parents had called the office of the principal expressing concerns about
their students having been shown the documentary. The principal was away from the
school that day. As a result, the vice-principal approached Mr. Morin at the classroom
door of one of his classes on the morning of April 8th, advised him that these complaints
had been received and further advised him that he was not to show the film to any grade
nine language arts classes that day.
¶ 161 Mr. Morin disputes the evidence of the vice-principal as to the number of
parents who called the principal's office to complain. Mr. Morin also has a different
version as to what was said when the vice-principal confronted him at the classroom
door. Mr. Morin testified Mr. Steele threatened "to haul" him out of the classroom if he
showed the film that day. Later the same day Mr. Morin went to Mr. Steele's office to
inquire what he should do with the language arts class he had shown the film to the
previous day. The vice-principal arranged a substitute teacher for the class that afternoon
and also for the class on Monday morning to allow Mr. Morin an opportunity to meet
with the principal when he returned to the school.
¶ 162 Over the weekend the vice-principal apprised the principal of what had taken
place on the 7th and 8th. Mr. Morin, accompanied by his wife, met with the principal on
Monday April 11, 1988. Again, there is contradiction in the evidence as to what
transpired at the meeting. Suffice it to say that as a result of the meeting where they
discussed the documentary and the assignment, George MacDonald came to the
conclusion and he so advised Mr. Morin, that the assignment was to be withdrawn
and the documentary "... will not form part of the language arts program at Birchwood
Junior High School." According to the evidence of Mr. MacDonald his decision was
prompted by three concerns, namely, (i) the lack of detailed planning for the project on
the part of Mr. Morin; (ii) the effect the project might have on children whose parents
were religious fundamentalists; and (iii) whether the project was appropriate for students
in grade nine. Mr. MacDonald also testified that he had some difficulty in discerning
how and where the film and the project came within the language arts program. He
stated that he was of the view it came more within the social studies program. Mr. Morin
refutes all of this and he submits Mr. MacDonald had other reasons for cancelling the
project which were unfounded and in the circumstances unreasonable.
¶ 163 Mr. Morin did not accept George MacDonald's decision and he inquired as to
what would happen if he proceeded with the project. He was advised that he would be
released from his employment for insubordination. Mr. Morin with the assistance of the
P.E.I.Teachers Federation commenced an appeal process the first step of which was to
request the respondent's Superintendent of Education to review the decision of the
principal. After hearing both Mr. Morin and Mr. MacDonald on April 12th, the
Superintendent advised Mr. Morin on April 14th that he supported the decision of the
principal citing his experience, qualifications and his understanding of the community
served by the school.
¶ 164 Mr. Morin took sick leave, retroactive to April 11th. This continued until May
16th. In the meantime, and on April 29th, the Teachers Federation gave formal notice it
was intervening on Mr. Morin's behalf and it requested a review by the Board of Trustees
of Unit 3 of the decisions of Mr. MacDonald and the Superintendent of Education.
¶ 165 When Mr. Morin returned on May 16th there were problems at the school in
that some of the students refused to attend his classes and others left the class before it
concluded. Mr. Morin alleges Mr. MacDonald incited these boycotts or at the very least
did nothing to curtail them. On May 19, 1988 the Board of Trustees of the respondent
granted Mr. Morin a temporary leave of absence until the entire situation could be
investigated by the Board.
¶ 166 On May 17, 1988 the curriculum committee of the Board agreed to meet to
discuss and decide upon the age appropriateness of the project. For assistance, the
committee requested three members of the junior high school language arts program
committee to attend the meeting. The committee heard from both Mr. Morin and Mr.
MacDonald but not in the presence of each other. A total of three meetings were held to
discuss and decide the issue. In the result the committee made the following findings
which it released following its meeting of May 25, 1988: (i) the assignment was
acceptable in terms of theme, topic, skills ,viewing, reading, writing, and learning
materials; (ii) the assignment was wanting in terms of preparation, review of prerequisite
skills, presentation, and evaluation; and (iii) the assignment was found to be questionable
in terms of meeting the expectations of students and parents with regard to the sensitivity
of the topic and the provision of an alternate assignment. In summary, the Board
determined based on the findings of the curriculum committee, that the assignment was
appropriate as part of the language arts program but inappropriate in terms of preparation
and presentation. It approved the showing of the documentary and the completion of the
project on the condition that its mode of presentation was changed to the satisfaction of
the school principal, the Superintendent of Education and Mr. Morin.
¶ 167 Mr. Morin and George MacDonald met on May 26th to discuss the issues
surrounding the presentation of the project but they could not resolve their
differences. Some parents were opposed to Mr. Morin returning to the school so late in
the year because he had missed substantial time as a result of being on leave since the
11th of April. The Board held an in camera meeting on May 28, 1988 and decided to
place Mr. Morin on a leave of absence, with pay, for the balance of the school year. In
doing so, the Board stated this was a "non disciplinary measure."
¶ 168 It should also be noted that on April 8, 1988 Mr. Morin had been advised his
contract for the year was terminating in accordance with its terms and that the respondent
would make every effort to place him a position for the next year. He was advised to
attend a meeting on April 27, 1988 to discuss possibilities. This notice was given under
the hand of John MacDonald pursuant to s. 42 of the School Act R.S.P.E.I. 1988, Cap.
¶ 169 It is not clear whether Mr. Morin attended the meeting on April 27th; however,
he did inquire on August 11th as to the availability of teaching positions for the coming
year and he was advised they were all filled. He was also advised that his application
would remain on file.
¶ 170 On April 21, 1989 Mr. Morin commenced an action against the Province of
Prince Edward Island. On the application of the province his statement of claim was
struck out. See: (1990), 78 Nfld. & P.E.I.R. 88. He then issued another statement of
claim against the respondent on May 17, 1990, and it moved on February 22, 1994 to
dismiss the claims contained therein on the ground that the jurisdiction to adjudicate the
claims was solely with the grievance review board provided for in the collective
agreement between the Teachers Federation and the province. In an oral decision
Campbell J. granted the motion in part. He agreed that the employment issues raised by
the statement of claim were within the sole jurisdiction of the grievance review board and
the jurisdiction of the court was ousted. He ordered, however, that those parts of the
claim relating to the alleged violations of Mr. Morin's rights under the Charter of Rights
and Freedoms were within the jurisdiction of the court. Mr. Morin appealed this decision
and the Appeal Division confirmed the order of Campbell J. save and except for those
parts of the statement of claim relating to prejudgment interest and costs which the
Appeal Division ordered to remain in the statement of claim as both were within the
jurisdiction of the court. See: Morin v. Board of Education of Regional Administrative
Unit No. 3 (1995), 125 Nfld. & P.E.I.R. 211 (P.E.I.S.C.A.D.). Leave to appeal to the
Supreme Court of Canada was denied. See: (1995), 140 Nfld. & P.E.I.R. 90 (S.C.C.).
¶ 171 Mr. Morin then made another application to amend his statement of claim after
oral discovery was completed. He applied to make a number of amendments. Two of
them are substantive and of relevance to this appeal. First, he applied to amend the
statement of claim to include the allegation that an oral contract had been concluded
between he and the respondent on the basis of representations made to him by Ms. Linda
Lowther when she recruited him for employment with the respondent as well as when
both of them discussed his first contract of employment in 1986. He had alleged a
collateral agreement in the statement of claim which had been struck by Campbell J. as I
noted above. However, Mr. Morin argued this collateral agreement, based on the
conversations with Ms. Lowther and which he now required the amendment to plead was
different, and he should be permitted to plead it. The second substantive amendment he
sought was to include a cause of action in defamation.
¶ 172 The motion seeking permission to make these amendments was heard by
DesRoches J. He denied the two substantive amendments. See: (1997), 148 Nfld. 7
P.E.I.R. 16. Mr. Morin appealed part of the order arising from this decision to the Appeal
Division. He did not appeal that part of the order denying permission to amend the
statement of claim to contain the cause of action in defamation. The Appeal Division
allowed the appeal and ordered that the statement of claim be amended to include the
action based on the collateral contract. It was noted in the reasons of the Appeal
Division, delivered by Carruthers C.J. on behalf of the court, that Mr. Morin had not
appealed from the order of DesRoches J. denying his motion to amend the statement of
claim to include the cause of action in defamation. See: (1997), 150 Nfld. & P.E.I.R.
¶ 173 The matter proceeded to trial in June 1999 and the statement of claim upon
which it proceeded is fully set forth at paragraph 5 in the reasons of the trial judge. See:
(1999), 183 Nfld. & P.E.I.R. 183. At the commencement of the trial Mr. Morin made a
motion to amend the statement of claim to include the defamation action and to include
two additional paragraphs containing the material facts related to the cause of action in
defamation. The respondent did not object to the amendments but it did move to have the
paragraphs struck out. The trial judge allowed the amendment and denied the motion to
¶ 174 The trial took 10 days to complete and the essence of the claims of Mr. Morin
can be broken down into three areas. First, there was a collateral agreement of
employment between he and the respondent which the latter breached when it gave him a
paid leave of absence for the remainder of the 1988 school year and when they refused to
rehire him for the 1988-'89 school year. Second, the respondent violated his
constitutional rights to freedom of expression and freedom to liberty and security of the
person by preventing him from showing the film documentary and delivering the
assignment, except upon the conditions approved by the board of trustees. Thirdly, the
servants and agents of the respondent defamed Mr. Morin in the course of conversations
they had with representatives of a school board in Quebec where he was seeking
employment. The trial judge subsequently delivered reasons explaining why he was
dismissing the entire statement of claim. See: (1999), 183 Nfld. & P.E.I.R. 183.
GROUNDS OF APPEAL AND MOTION TO ADMIT EVIDENCE
¶ 175 Mr. Morin now appeals from the order of the trial judge. The grounds of appeal
may be summarized as follows:
(1) The trial judge erred in finding that the appellant's right to freedom
of expression enshrined in s-s. 2(b) of the Charter of Rights and
Freedoms was not violated by the actions of the respondent, its
servants or agents.
(2) The trial judge erred in finding that s. 7 does not protect economic
interests and that the appellant's rights under s. 7 of the Charter had
not been violated.
(3) The trial judge erred in finding there was no collateral contract of
employment between the appellant and the respondent.
(4) The trial judge erred in finding that the contract of employment is to
be found only in the School Act and Regulations.
(5) The trial judge erred in finding the respondent was entitled to impose
a leave of absence with pay for the remainder of the school year '87 -
(6) The trial judge made a number of errors in his assessment of the
evidence and finding of the facts.
¶ 176 The appellant also made a motion for an order admitting fresh evidence on the
appeal. The evidence is relevant to the appellant's position that the meeting of March 7th
never took place. The court heard argument on this motion from both parties at the
commencement of the appeal hearing and took it under advisement.
¶ 177 I would dismiss the motion to adduce fresh evidence and I would also dismiss
(A) Motion to Adduce Fresh Evidence
¶ 178 The appellant made a motion to introduce evidence that the letterhead upon
which was recorded notes of a meeting allegedly held on March 7, 1988, did not exist at
that date. Specifically, the appellant wishes to introduce evidence the letterhead did not
come into existence until April 1989 and was not used until April 12, 1989. To establish
this, he wishes to adduce evidence from an employee of the Eastern School District,
successor to the respondent, as well as evidence from a private investigator retained by
¶ 179 According to the evidence at trial the notes were made on March 7, 1988 by Mr.
John MacDonald, Superintendent of Administration for the respondent. The appellant
has always taken the position the meeting never occurred and that its occurrence was
fabricated by John MacDonald and George MacDonald. The purpose of the meeting
according to the notes taken by John MacDonald as well as the evidence of George
MacDonald and Debbie Pineau, was to consider a concern which George MacDonald had
about the appellant's future as a teacher at Birchwood.
¶ 180 The trial judge referred to the meeting in his reasons and at paras. 13 & 14 he
[para13] Unfortunately, the plaintiff's second year at Birchwood did not
go as smoothly as the first. There is evidence that a meeting
was held on March 7, 1988 with the Principal, Linda Lowther,
Debbie Pineau, the then Core French Coordinator for Unit 3,
and John MacDonald, who was then Superintendent for
Administration for Unit 3, in attendance. This meeting was
called to consider the plaintiff's future at Birchwood.
[para14] The plaintiff has argued in his post-trial brief that the March 7
meeting did not occur despite the testimony of George
MacDonald, John MacDonald and Debbie Pineau that it
did. There is also in evidence as Exhibit P-1, Tab 10, short
hand-written minutes of the meeting prepared by John
MacDonald. I am satisfied from the evidence that this meeting
did take place. Debbie Pineau testified she recalled the
meeting had been called to discuss the plaintiff's future, but
could not recall specifics of the discussions. She did state,
however, that she could not believe John MacDonald would
fabricate the minutes. Both John MacDonald and George
MacDonald were able to recall the meeting and confirmed that
the hand-written minutes accurately reflect the substance of the
discussion. Although Linda Lowther testified on behalf of the
plaintiff, she was not questioned about the March 7 meeting.
¶ 181 The appellant indicated to the court at the hearing of the appeal he was in
possession of the written record of the March 7th meeting since at least 1992 because it
was included in the respondent's affidavit of documents which he received sometime
before oral discoveries in that year. However, he now asserts it was not until preparation
for this appeal that he noticed the letterhead was different from the letterhead used by the
respondent in the many pieces of correspondence it delivered to the appellant between
1986 and 1988. He says he now has evidence the letterhead did not exist and was not
used by the respondent until April 1989. This evidence, the appellant asserts, will support
his position the meeting did not take place.
¶ 182 If the evidence is admitted the appellant will be asking the court to draw the
inference that the meeting and the notes were a fabrication of George MacDonald and
John MacDonald for purposes of lending credence to George MacDonald's position that
even before the issue which eventually led to the respondent's decision not to renew the
appellant's contract, there were concerns about the appellant's performance as a teacher at
Birchwood. According to the appellant, this new evidence could impact on the
credibility of Messrs. MacDonald and in this way it might reasonably have affected the
result of the trial.
¶ 183 The Appeal Division has jurisdiction to hear further evidence by affidavit or by
transcript of an oral examination conducted outside the court or by oral examination
before the court or in such other manner as the court directs. See: s-s. 56(4) of the
Supreme Court Act. There is a well-settled test to be applied by a court of appeal in a
civil case in deciding whether to admit new evidence discovered after the trial. In
summary, the party seeking to adduce the new evidence must establish it could not have
been obtained by reasonable diligence before the conclusion of the trial and if it had been
available, the party seeking its introduction must show the evidence would have been
practically conclusive of a different result from that of the trial. See: Varette v.
Sainsbury,  S.C.R. 72 (S.C.C.), and Dormuth v. Unetreiner,  S.C.R. 122
¶ 184 The test employed by a court of appeal when deciding to admit new evidence
discovered after the conclusion of a criminal trial is somewhat different. It was set forth
in Palmer v. R.,  1 S.C.R. 759, at 775 (S.C.C.) and later confirmed in R. v. Stolar,
 1 S.C.R. 480 at 486 (S.C.C.). It may be summarized as follows:
(1) The evidence should generally not be admitted if, by due diligence,
it could have been adduced at trial provided that this general
principle will not be applied as strictly in a criminal case as in civil
(2) The evidence must be relevant in the sense that it bears upon a
decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably
capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with
the other evidence adduced at trial, be expected to have affected the
¶ 185 The test in Palmer and adopted in Stolar has been inferentially applied in the
civil context by the Supreme Court of Canada in Danson v. Ontario (A.G.),  2
S.C.R. 1086. Sopinka J. stated in paragraph 21 of the last mentioned decision that the
Court's requirements for adducing fresh evidence were as set forth in R. v.
Stolar, supra. As he was making this point in the context of a civil case, it might be
concluded the test in Stolar is applicable to adducing new evidence in a civil case. Also,
in Munro-Glasgow v. Glasgow 1983 Carswell 83, para. 9, the Nova Scotia Court of
Appeal applied the test in R. v. Palmer supra to a civil case. There is, however, one
important difference in the tests and that arises in the fourth component which addresses
the impact of the new evidence may have had on the outcome of the trial. In the criminal
cases the test is whether the new evidence "... could reasonably, when taken with the
other evidence adduced at the trial, be expected to have affected the result." In the civil
cases (Varette v. Sainsbury and Dormuth v. Unetreiner) the test places the onus on the
party presenting the new evidence to show that the evidence "... would have been
practically conclusive of a different result."
¶ 186 There is a difference here which points to a lesser onus on the applicant in a
criminal appeal when it comes to having the court of appeal admit fresh evidence. While
these differences may not be significant, there may be an explanation for them on policy
grounds. In criminal trials the policy of finality in litigation is not as important as the
policy that innocent persons should not be convicted. In civil cases the policy of finality
will play a larger role. The parties in a civil proceeding have broad discovery and other
pre-trial procedures available to them to uncover all relevant evidence and when the trial
is concluded the matter should be at an end at least as to the admission of evidence.
See: Sopinka and Gelowitz: The Conduct of an Appeal 2nd ed. (Butterworths) pp. 69-73.
¶ 187 The test of due diligence in relation to obtaining new evidence is to be more
strictly applied in a civil case than in a criminal case. In the interests of bringing finality
to the proceedings which in itself is an element of doing justice, a court in a civil matter
should set a high standard for the admission of new evidence which could reasonably
have been obtained for introduction at the trial. Applying these factors to this case, the
appellant has not been able to satisfy either element of the test.
¶ 188 The notes of the March 7th meeting were available to the appellant for 9 years
and the previous letterhead of the respondent, which the appellant says is different, has
been available to the him for almost 15 years. Careful observation would lead the
appellant to note the difference and if he questioned the authenticity of the meeting, he
had an opportunity to bring the discrepancy forward as evidence at the trial. As the
appellant has failed to meet this part of the test, the application to adduce further evidence
on the appeal is dismissed.
¶ 189 Furthermore, the appellant has not satisfied the fourth part of the test in that he
has been unable to show that the new evidence, if admitted, would be practically
conclusive of a different result than the one at trial. Because the nature of the issues in
this case are primarily legal in nature, very little will turn on the credibility of the
witnesses. This new evidence, according to the appellant, goes to the credibility of two
of the respondent's witnesses and it has no other purpose. Accordingly, its introduction
and acceptance would not be practically conclusive of a different result from the one
arrived at by the trial judge. Furthermore, whether the meeting took place is not crucial,
directly, to the issues in the appeal.
(B) The Appeal
(i) Summary of Issues
¶ 190 From the many grounds of appeal the following issues emerge:
a. Was there an agreement entered into between the appellant and the
respondent which was collateral to the employment contract entered
into between the parties on June 28, 1986 and June 25, 1987?
b. Is the jurisdiction of the court to decide the Charter issues, as well as
its jurisdiction to decide whether the appellant was wrongfully
dismissed from his employment, ousted by the collective agreement
which contains a grievance procedure for the disposition of disputes
arising between the appellant and the respondent?
c. Did the various decisions of the servants and agents of the
respondent with respect to showing the documentary film and
delivering the assignment to the students cause the respondent to
violate the appellant's right to freedom of expression conferred upon
him by s-s. 2(b) of the Charter of Rights and Freedoms?
d. Did these decisions of the respondent violate the appellant's right to
life, liberty and security of the person conferred upon him by virtue
of s. 7 of Charter of Rights and Freedoms?
e. Did any of the other actions or decisions taken by the respondent, its
servants or agents violate the appellant's rights under either s-s. 2(b)
or s.7 of the Charter?
f. Did the servants or agents of the respondent defame the appellant?
(ii) Collateral Contract
¶ 191 In his original pleading the appellant had alleged the collateral contract arose
from a statement in a letter he received from John MacDonald dated April 8, 1988 to the
effect that every effort would be made to place him in a teaching position with the
respondent for the 1988 -'89 school year. This was struck from the statement of claim on
the order of Campbell J. referred to above.
¶ 192 In the amended statement of claim upon which the matter proceeded to trial, the
appellant's claim for a collateral contract arose from statements and representations which
were made to him by Ms. Linda Lowther at the time he was recruited for the position and
just before he signed the contract of employment in 1986 agreeing to a contract for a term
of one year. This written contract dated the 28th day of June 1986 provided for the
appellant's employment with the respondent from September 2, 1986 and June 30,
1987. It incorporated by reference the terms of the collective agreement signed between
the Minister of Education and the Prince Edward Island Teachers Federation and it
provided for termination in accordance with ss. 42 & 43 of the School Act.
¶ 193 The evidence as to what was said between Ms. Lowther and Mr. Morin is not
seriously in question; however it is the effect of the statements made by Ms. Lowther
which gives rise to the issue of whether there was a collateral contract. The appellant's
position is that based on the statements made by Ms. Lowther, he and the respondent had
a collateral contract of employment in June 1986 which extended beyond one year,
provided that his teaching performance was satisfactory and the enrolment remained at
least at the 1986 levels. On the other hand, the respondent's position is that each contract
of employment was for a one-year term and the last contract was not renewed. It argues
that the statements made by Ms. Lowther could not constitute a collateral contract in the
terms urged by the appellant.
¶ 194 The trial judge agreed with the position taken by the respondent. He found
there was no collateral contract of employment. I am unable to find the trial judge erred
in reaching this conclusion.
¶ 195 Although viewed with suspicion by the law, there may be a contract the
consideration for which is the making of some other contract. While both contracts would
exist independently, the first mentioned contract is said to be collateral to the main
contract as it has the effect of varying or adding to the terms of the main contract.
Collateral contracts must be proven strictly as must the intention of each party to enter
into them. Were it otherwise, written contracts would lose their authority because they
could be varied by the simple suggestion that there existed an oral collateral agreement
binding the parties to a contract over the same subject matter contracted to in the main
contract. Matheson J. discusses the various authorities for these principles in Crawford v.
Cashin,  P.E.I.J. No. 91 (Quicklaw) (P.E.I.S.C.T.D.) at paras. 15 and 16. The trial
judge also cited authority for these principles at paras. 44 and 45 of his reasons. He
correctly applied these principles to the alleged collateral contract here.
¶ 196 The appellant did not discharge the strict burden upon him to prove there was a
collateral contract of employment between him and the respondent for a term beyond one
year. If the term of the contract between the parties was to be greater than the one year
provided for in the written contract, it would have been a very simple exercise to reduce
this to writing. It would completely undermine the authority of the written contract and
its terms, to conclude, on the basis of the statements made by Ms. Lowther, that an oral
collateral contract had been concluded which would have been in direct contradiction
with the terms of the written contract.
¶ 197 Furthermore, there is no evidence of a second collateral contract having been
entered into in 1987 when the appellant signed his second one-year contact of
employment with the respondent. If the appellant was the beneficiary of a collateral
contract of employment for more than a one-year term and if this were concluded in
1986, it would not have been necessary for the parties to enter into a second one-year
contract in writing for the 1987-'88 school year.
¶ 198 Therefore, the appeal cannot succeed on this issue.
¶ 199 As a result of there being no collateral agreement, the terms of employment at
all times material to the appellant's causes of action are contained in the written contract
of employment dated June 25, 1987. By reference, this contract includes the terms of the
collective agreement between the Minister of Education and the PEITF for the period
September 1, 1987 - June 30, 1989. The contract also incorporates by reference the
provisions of ss.42 and 43 of the School Act with respect to termination.
¶ 200 Section 6 of the collective agreement is entitled "SCHOOL BOARD AND
GOVERNMENT RESPONSIBILITIES AND RIGHTS." Articles 6.01 and 6.02 provide
6.01 The teachers and the authorized representative recognize that the
Department of Education and the Regional School Boards have the
responsibility, right, and authority to manage on behalf of the public
the operations and activities of the school system.
6.02 It is agreed that the exercising of the responsibilities provided in
Section 6.01 shall be subject to the provisions of the School Act,
Regulations, and the current collective agreement; and the
Department of Education and Regional School Boards shall not
exercise their responsibility in a manner contrary to the School Act,
Regulations and current collective agreement. In this respect, the
authorized representative of the instructional personnel as defined in
Regulations under Sections 1(a) and 9(d) of the School Act may
present a grievance in the manner provided by the Regulations for
any violation of the current collective agreement.
¶ 201 These articles provide that the responsibility for running the school system is
with the Department of Education and the regional school boards of which the respondent
was one. They also provide that in exercising these responsibilities both are subject to
the collective agreement as well as the School Act and the regulations enacted pursuant
thereto. These two articles, in particular article 6.02, further provide that in the event
there is an allegation that either the Minister or one of the School Boards have
contravened the collective agreement, the PEITF may file a grievance in the manner
provided by the regulations to the School Act.
¶ 202 The effective regulation at all material times was regulation No. EC665/81
which was included in an amendment to the regulations approved by Executive Council
on July 23, 1981. "SUBDIVISION 4 - GRIEVANCES". Section 1.79 (2) provided as
(2) Where any dispute arises as to the application, administration,
operation or alleged violation of a teacher agreement, a grievance
may be filed with the Government Authority.
¶ 203 Section 1.79 goes on to direct as to who may file a grievance, the procedure for
filing a grievance and the manner for disposition of the grievance. Section 1.79(13)
provides that the decision of the grievance review board is final and binding on the
parties to the grievance.
¶ 204 The existence of the grievance procedure gives rise to the issue as to whether
the jurisdiction of the court is ousted with respect to addressing the pure employment
issues and/or the Charter issues. The employment issue here specifically relates to the
decision of the respondent to place the appellant on a leave of absence with pay in May
1988 for the balance of the 1987- 1988 school year and for the remainder of the term of
the contract of employment entered into in June 1987. The Charter issues relate to the
decision of the respondent, its servants or agents, to initially prohibit the appellant from
showing the documentary and assigning the project as well as the subsequent decision of
the respondent permitting the appellant to show the documentary to the students and
assign the project on the condition the preparation and presentation was satisfactory to
the principal, the Superintendent of Education and the appellant.
¶ 205 The trial judge concluded that with respect to the employment issues the
jurisdiction of the court was ousted and consequently the court was without jurisdiction
to address them because the provisions of the collective agreement and the regulations
left the grievance review board with the sole jurisdiction. In reaching this conclusion the
trial judge was following the previous decision of the Appeal Division in Morin v. Board
of Education of Regional Administrative Unit No. 3 supra, where Carruthers C.J. with
Mitchell and MacDonald JJ.A. concurring, held that the collective agreement with its
grievance procedure ousts the jurisdiction of the court with respect to the employment
issue. The trial judge was bound to follow this decision and thus it cannot be said he
erred in law in concluding as he did. Accordingly, the appeal cannot succeed on this
¶ 206 The issue of this court's jurisdiction to address the Charter issues was not
addressed by the trial judge in his reasons as it was not raised by the parties. Similarly, it
was not raised in this appeal. Indeed Carruthers C.J. in the above decision specifically
directed that the court could retain jurisdiction over the Charter issues. In doing so one of
the decisions he relied upon was that of the Ontario Court of Appeal in Weber v. Ontario
Hydro (1992), 98 D.L.R. (4th) 32. However, subsequent to the decision of the Appeal
Division, the Supreme Court of Canada decided Weber v. Ontario Hydro (1995), 125
D.L.R. (4th) 583 which significantly expanded the jurisdiction allocated to arbitration and
grievance review boards established pursuant to the terms of a collective agreement. The
Court stated that tribunals, including labour arbitrators, may be courts of competent
jurisdiction for purposes of s. 24(2) of the Charter. In other words, these tribunals have
the power to grant Charter remedies provided they have jurisdiction over the parties, the
subject matter of the dispute and are empowered to order the remedies sought.
¶ 207 If the reasoning in Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583
(S.C.C.) applied here all the appellant's claims would be dismissed because they were
outside the jurisdiction of the court and within the sole jurisdiction of the grievance
review board. The decision of the Supreme Court of Canada and its impact on this case
gives me concern primarily because the essential character of dispute, including those
relating to the Charter issues, arises from the interpretation, application, administration or
violation of the collective agreement. However, I am satisfied the court can retain
jurisdiction over the Charter issues in this case because it is not clear the grievance
review board as established in the manner I have noted above, was empowered to grant
the remedy being sought here by the appellant i.e. a remedy under s. 24(2) of the Charter.
Section 1.79 of regulation No. EC665/81 is not sufficiently broad to give the grievance
review board the power to grant this remedy and as McLachlin J. stated at para.57 of
Weber, in such an instance the courts of inherent jurisdiction in each province (this court
in this province) may assume jurisdiction. Accordingly, I am of the view the court has
jurisdiction to address the Charter issues.
(iv) Charter Issues
¶ 208 The appellant argues that the various decisions made on behalf of the
respondent, its servants or agents, violated his rights under both s-s.2(b) and s.7 of the
Charter. He also argues that the decision of the respondent to place him on a permanent
leave of absence with pay had a similar result.
¶ 209 The respondent argues the appellant's rights accorded to him under the
foregoing sections of the Charter were not violated by any of the actions or decisions
taken by their servants or agents. More specifically the respondent argues it has not
infringed the appellant's right to freedom of expression as protected by s-s. 2(b) and that
the right to liberty protected by s.7 does not include the right to employment. Given this
position, the respondent did not rely on section 1 to justify any of the decisions taken.
¶ 210 The trial judge found that neither s-s. 2(b) nor s.7 of the Charter were violated
by the actions or decisions of the respondent's servants or agents. Specifically, he found
that the protection afforded the appellant by the operation of s.7 did not include the
economic right to carry on a business, earn a livelihood or engage in a professional
activity. With respect to s-s.2(b) he found the decision of the principal and supported by
the Superintendent of Education, was taken as part of the principal's responsibility to
carry out his duties and this decision did not violate the appellant's right to freedom of
expression. He also made a similar finding as to the other actions of the principal which
the appellant had alleged violated his s-s. 2(b)rights. A concise summary of the trial
judge's findings or conclusion on this issue is found at para. 91 of his reasons:
[para91] In my opinion, the purpose of the Principal's decision in the
circumstances of this case, was to create an effective learning
environment for students, a task specifically included in the
role description of principal, not to restrict protected
expression. The effect of the decision was to promote such a
learning environment and not to restrict expressive activities
which promote the interests or values underlying the freedom
of expression. In reality no expression was restricted. There
was nothing to preclude the plaintiff from expressing his views
or beliefs outside of the school curriculum or the school setting.
¶ 211 Subsection 2(b) and s.7 of the Charter provide as follows:
2. Everyone has the following fundamental freedoms: ...
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communications; ...
LIFE, LIBERTY AND SECURITY OF PERSON
7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
(a) Right to Freedom of Expression
¶ 212 Initially, the decision of the respondent, its servants or agents, was to prohibit
the appellant from showing the film documentary and from assigning the project;
however, this decision was followed by the respondent's subsequent decision to allow the
showing of the documentary and the assignment of the project on the condition its
preparation and presentation was satisfactory to the principal, the Superintendent of
Education and the appellant. Therefore, the respondent's final decision was not to
prohibit the appellant from showing the film documentary and assigning the project but
to permit both under the supervision and approval of the school principal and the
Superintendent of Education with input from the appellant. Nevertheless, I will accept,
for the purposes of this issue, that the foregoing actions of the respondent restricted the
appellant from delivering the language arts program in a manner he felt was appropriate.
¶ 213 This ground of appeal raises the issue of the parameters of the teacher's right to
freedom of expression within the classroom of a public school system. A citizen's right
to expression is probably the most fundamental freedom enshrined in the Charter
because, unless a citizen has the liberty to express oneself openly and freely all other
freedoms conferred upon individuals by the Charter may be rendered meaningless. The
right to freedom of expression is the cornerstone of a free and open democracy. This
principle was succinctly stated by Cory J. in Edmonton Journal v. Alberta (Attorney
General),  2 S.C.R. 1326 at 1336 when he said: "it is difficult to imagine a right
more important to a democratic society." Nevertheless, the constitutional right to free
speech does not give a citizen the right to say anything, anywhere and at any time.
¶ 214 Expression is not protected on the basis of whether it is true or false. A citizen
should be able to speak or express what another may consider to be false. All expression
should be placed on display in the marketplace of ideas where others can, first of all
choose whether to listen or see and then assess whether to accept or reject the particular
meaning being conveyed by the particular form of expression. Similarly, expression is
not protected on the basis of whether it is considered by another to be reasonable or
unreasonable. Reasonableness is like veracity in its absolute form. What one citizen may
consider reasonable another may consider unreasonable. All opinions are entitled to
expression regardless of whether one considers them reasonable or unreasonable.
¶ 215 Any law or action of a governmental authority which prohibits or restricts free
expression violates s-s. 2(b) of the Charter. When this is determined the onus would shift
to the governmental authority to justify the law or action under s. 1 which provides as
RIGHTS AND FREEDOMS IN CANADA
1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
¶ 216 In Ford v. Quebec (Attorney - General),  2 S.C.R. 712 (S.C.C.), the Court
reaffirmed that protected expression was not confined to political expression when it
made clear that commercial expression was also deserving of protection. The Court
discussed the values which might justify the constitutional protection of freedom of
expression and these values are to be considered in the context of two distinct
questions: (1) whether the form or act of expression is within the scope of the interests
protected by these values; and (2) whether the form or act of expression deserves
protection against any law or governmental action restricting the expression. The first
question is to be determined by the purposive interpretation s-s. 2(b) as prescribed in
Hunter v. Southam Inc.,  2 S.C.R. 145 (S.C.C.) and R. v. Big M Drug Mart Ltd.,
 1 S.C.R. 295 (S.C.C.); and the second question as to the limitation on the
protected speech and thus the protected values, is to be determined under s.1 of the
Charter in accordance with the test in R. v. Oakes,  1 S.C.R. 103 (S.C.C.).
¶ 217 In Irwin Toy Ltd. v. Quebec (Attorney - General),  1 S.C.R. 927 (S.C.C.),
the court clarified the relationship between s-s. 2(b) and s. 1 when it directed that a two
step analysis was to be employed in determining whether a certain form of expression
was entitled to constitutional protection. This analysis includes a consideration of
whether the particular expression furthers or promotes the values underlying the inclusion
of the right in the Charter.
¶ 218 The first step in the analysis is to determine if what has been restricted is
expression. To this determination the court prescribed a broad interpretation and
concluded that any form of expression which attempted to convey meaning or did convey
meaning save and except that which is manifested in violence, was included within the
protection. The second step in the analysis is to determine whether either the purpose or
effect of the legislation or governmental action was to restrict that expression or form of
expression. If both these steps result in a positive response, the values underlying the
guarantee of freedom of expression have been violated and the onus shifts to the
governmental authority to establish under s. 1 of the Charter that the expression or form
of expression is not deserving of the protection enshrined in s-s. 2(b).
¶ 219 Despite the fundamental values underlying the guarantee to freedom of
expression, this right frequently conflicts with other rights and thus a determination of
whether the protection should be afforded will involve a balancing of these competing
rights. For example, the right to free commercial expression in Irwin Toy conflicted
with the need to protect young and innocent children from certain forms of
advertising. Furthermore, the right of the individual to privacy and the right of the public
to know frequently collide.
¶ 220 In R. v. Keegstra,  3 S.C.R. 697 at pp.726-729 Dickson C.J. stated that it
was analytically practical to rule out placing internal limits on s-s. 2(b) because the
preferable course of action was to leave the balancing of the competing values to a s. 1
determination where a contextual analysis was more appropriate. In Ross v. New
Brunswick School District No. 15,  1 S.C.R. 825 (S.C.C.) at para. 75 La Forest J.
pointed out that while it may be analytically practical to refrain from imposing limits on
the scope and breadth of s-s. 2(b), it is not always logically necessary to do so. The law
remains, however, that a large and liberal interpretation is to be given to freedom of
expression. The preferable course of action is to weigh the "contextual values and
analysis" under s.1 where the onus is on the state to prove the limitation on the right is
justified in a free and democratic society. This does not, however, displace the initial
onus on the individual to prove there is expression that is within the scope of the
guarantee and, if so, to prove there has been an infringement of the guarantee. In other
words, the application of the two-step analysis prescribed by Irwin Toy could result in
finding that the expression or form of expression is either not a form of expression
protected by the guarantee (e.g. expression manifested in violence) or if it is, there has
been no infringement of the protection because the purpose and effect of the restriction
upon the individual is not to infringe the guarantee.
¶ 221 The respondent has always taken the position that the expression in issue is
within the scope of the right protected by s-s.2(b) but there has been no infringement of
the appellant's right because the purpose and effect of the restriction imposed by the
respondent was not to infringe the right. Therefore, because it takes this position there
has been no attempt made to justify an infringement of the right or to subject the actions
of the respondent to a balancing in a contextual analysis under s. 1 of the Charter. The
issue will, therefore, turn on the analysis set forth in Irwin Toy.
¶ 222 The impugned expression is that of the appellant as a teacher to use certain
material in teaching a junior high school English course. He wanted to show a film
documentary about the impact of fundamentalist religious groups on American political
life and use it as the basis for a project the students were to undertake. It is important to
note the appellant was not attempting to impose fundamentalist religious values or
doctrine on his students. As well, it was not his intention to impose other religious views
on the students. The appellant wanted the students to consider a subject which the board
of trustees of the respondent concluded was within the parameters of the curriculum for
the language arts program and was age appropriate even though the film documentary
was not among the anthology prescribed for the course. In doing so the appellant states
his goal was to prompt their critical thinking skills.
¶ 223 The content and subject matter of the film documentary is irrelevant. It plays no
role in my determination of this issue. The restriction and the conditions imposed by the
respondent could have been in relation to any topic, in any program being taught at the
school. My analysis of the issue would be no different. If a teacher in the classroom of a
public school has the Charter right to free expression it extends to all expression within
the scope of s-s.2(b) and the respondent, as a governmental authority, would have to
justify restrictions on such expression under s.1 of the Charter. The question remains:
Did the actions taken by the respondent infringe the appellant's constitutionally protected
right to freedom of expression?
¶ 224 Based on the scope of "expression" as defined in Irwin Toy, there is no question
the activity in which the appellant wished to engage fell within the sphere of activity
protected by s-s. 2(b). The material he wished to deliver either attempted to convey, or
did convey meaning; it possessed expressive content; and it was, therefore,
expression. The court must then consider the next step of the general analytical test set
out in Irwin Toy.
¶ 225 Was it the purpose of the actions taken on behalf of the respondent to violate the
appellant's guarantee to freedom of expression? The appellant argues the purpose was to
violate this guarantee, while the respondent argues the actions taken by its servants and
agents, were for the purpose of regulating or supervising the teacher in the delivery of the
curriculum as it is authorized to do under the School Act and Regulations. In furtherance
of the respondent's argument, it asserts the principal and the officials of the respondent,
including the board of trustees have a general supervisory role to play in monitoring the
work of its teachers and that the purpose of its actions, albeit taken against the wishes of
the appellant, was to fulfill that role and not to prevent the appellant from engaging in
any form of expression, as citizen, outside the classroom.
¶ 226 The court must consider the purpose of the various decisions taken by
representatives of the respondent as a governmental authority, culminating in the decision
of the board of trustees to allow the film to be shown and the project to be assigned, after
the principal and the Superintendent of Education were satisfied with the level of
preparation. In R. v. Zundel,  2 S.C.R. 731 at p.759 (S.C.C.) McLachlin J. held that
in assessing the purpose of the legislation in issue the court does not look to the
consequences of the legislation or the actions of the governmental authority, but rather
the court must examine the "facial purpose" of the legislative technique adopted by the
legislature or, in this case, the actions taken by the respondent as a governmental
authority. Having considered the various decisions taken for and on behalf of the
respondent, it is my view that the purpose of these actions or decisions, on their face, was
to exercise the supervisory control the respondent had over the appellant as one of the
teachers in its employ.
¶ 227 As the trial judge noted at para.77 of his reasons, the principal's role was to
provide leadership in the delivery of the curriculum, supervise all staff and to evaluate the
programs and the staff. I would add to this that it was the role of the board of trustees to
insure the attainment of the objectives of the curriculum as established by the community
and in the course of doing so, they had the authority to supervise a teacher and direct that
certain projects could be delivered on the condition that they met with the approval of the
school principal and the superintendent without violating the teacher's right to freedom of
expression. The purpose of the actions taken for and on behalf of the respondent was to
fulfill this mandate and not to restrict the appellant's constitutional protected right to free
¶ 228 Furthermore, the appellant was not restricted by the actions of the agents of the
respondent from expressing himself outside the classroom as a citizen; however, he was
restricted, subject to the approval of the principal and the Superintendent, from
expressing himself in a manner he felt necessary to deliver that particular part of the
curriculum of the language arts program. In another forum, that is one other than in the
classroom, he was free to show the film documentary for the purposes of stimulating
debate and discussion on the subject of what religion meant to different people or on any
¶ 229 Even if the purpose of the decisions taken for and on behalf of the respondent
was not to restrict or control the appellant's attempts to convey meaning, the next part of
the second step in the analytical test prescribed by Irwin Toy requires the court to decide
whether the effect of the decisions taken for and on behalf of the respondent was to
restrict the appellant's right to freedom of expression. To establish the restriction did
have this effect, the appellant had the burden of identifying the meaning he sought to
convey by the form of expression and, in addition, by showing that the action of the
respondent restricted his ability to convey that meaning. He had to show his expressive
activity furthered at least one of the values underlying the protection afforded free
¶ 230 The values underlying the right to freedom of expression were first stated by the
Supreme Court of Canada in Ford. They were subsequently summarized in Irwin Toy as
follows: (1) seeking and attaining truth is an inherently good activity; (2) participation in
social and political decision making is to be fostered and encouraged; and (3) the
diversity in forms of individual self-fulfillment and human flourishing ought to be
cultivated in an essentially tolerant, welcoming environment not only for the sake of
those who convey the meaning but also for the sake of those to whom the meaning is
¶ 231 To the extent possible in the analysis permitted by Irwin Toy, these values
should be considered contextually. In this respect it may be acknowledged that education
is critically important to society. The most meaningful legacy one generation can leave
to another is that of well-informed and critically-thinking young people who will shape
the direction of society for the next generation. By enhancing the education system our
young people are given the opportunity to become well-informed and free-thinking
adults. A school serves as a communication center for a whole range of values and
aspirations for our society. It is a place where our youth have the opportunity not only to
obtain empirical knowledge but most importantly a school is a forum where they should
be encouraged, as might be fitting with their age and level of maturity, to develop the
skills to search out the truth in relative terms and to think critically. Teachers are the
medium by which much empirical knowledge is transmitted to the students, and they are
the facilitators who by the use of diverse teaching methods and aids, cause students to
develop the skills so crucial to their complete development as productive citizens in our
society. See: Ross per La Forest J at paras. 42-44.
¶ 232 Theoretically at least, the free exchange of ideas in public schools would seem
central to learning. Practically, on the other hand, while new and innovative ways of
teaching are to be encouraged within a public school system, there must be limits if the
prescribed messages are to be communicated to the students. In a public school system
the message is the curriculum, as it reflects the values and attitudes of the society in
which the public school system functions. The curriculum is set by the Minister of
Education and the responsibility for delivering it is delegated to the school boards who
employ the teachers who, in turn are responsible to the school board's supervisory
personnel. A public school, at the junior high level, is not a marketplace for ideas where
everyone has the right to freely and openly debate all issues in the same manner that each
citizen has the right to do so in the public square. The exchange of ideas in a school takes
place within the curriculum. This necessarily dictates that certain restrictions may be
placed on the parameters and scope of the ideas that are to be exchanged. See: Reyes,
Allison: Freedom of Expression and Public School Teachers (1995), 4 Dal. J. Leg. Stud.
¶ 233 A school curriculum must be subject to the Charter. It could not, for example,
contain material which promoted discrimination or restricted one's right to practice a
religion. Similarly, teachers and school officials could not, in delivering the curriculum,
promote discrimination or infringe one's freedom to practice a religion. However, the
question here is whether the restrictions placed by the respondent school board for the
purpose of fulfilling its mandate had the effect of violating the appellant's right to
freedom of expression.
¶ 234 Expression by a teacher in the classroom of a school in the public school system
is not in the furtherance of, nor does it promote the values underlying the constitutional
protection afforded expression by s-s. 2 (b) of the Charter. The expression here had
nothing to do with the search for truth, the maintenance of the democracy, and the
promotion of self autonomy as values which underlie the protection of free expression.
¶ 235 The search for truth as an underlying value means the search for truth in relative
terms in that every individual has the right to expound such view he or she may hold so
that other citizens, the listeners, have the right to consider all views and make their own
determination as to where the truth actually lies. While the school acts as a training
ground for the development of the skills of students in recognizing how important it is to
search for the truth in this fashion, the teacher's expression does not promote the search
for truth in the sense that he or she can put all views out there for the students so they
may assess the relative truth. This would vest the teacher with the unrestrained right to
articulate views to an audience who, first of all, had not necessarily chosen to listen but
were doing so because they were compelled to be in school and secondly, the views
would be articulated to an the audience of students who may not have the choice or the
capacity, depending on their age and level of maturity, to properly assess and evaluate the
views of the teacher.
¶ 236 Similarly, the expression of views in the classroom does not further the
maintenance of democracy in the sense understood by the value underlying the
protection. This value underlying the protection of free expression is intended to promote
the free speech of all citizens on social and political issues with a view to holding the
democratic government accountable.
¶ 237 The values of individual self-fulfillment and human flourishing in the context of
free expression relate to the intellectual aspect of human autonomy. As Dickson C.J.
noted in Keegstra at p. 763 free expression insures the self-fulfillment of individuals by
allowing them the liberty of expressing the thoughts and ideas they wish to express.
There was no restriction placed on the appellant by the respondent to engage in
expression for this purpose. He just couldn't do it in the classroom without the
supervision of the respondent.
¶ 238 The decision of the Supreme Court of Canada in Ross affirms that restrictions
placed on the teacher's right to express his or her views outside the classroom will violate
the teacher's right as a citizen to freedom of expression although such limits may be
found to be justifiable under s. 1 when balanced against other rights and values of
society. The case at bar is distinguishable from Ross because the restriction on the
expressive activity of the appellant was confined only to expression within the classroom
in his capacity as a teacher and not as a citizen.
¶ 239 This court has previously addressed the scope of the protection afforded citizens
by s. 2(b) in Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69
(P.E.I.S.C.A.D.). In this case the appellant, who was a certified general accountant,
wanted to pass opinions on financial statements as an auditor and charge accordingly for
this service. Section 14(1) of the Public Accounting and Auditing Act R.S.P.E.I. 1988
Cap P- 28 restricted this activity to only those designated under the legislation as
chartered accountants. In deciding whether the relevant provision of the Public
Accounting and Auditing Act violated the appellant's right to freedom of expression
Mitchell J.A., for the court, concluded at paragraph 7 that s-s. 14(1) of the Public
Accounting and Auditing Act did not prohibit anyone from expressing an opinion on a
financial statement but it did prohibit the capacity in which a person could engage in such
expressive activity for a fee. The appellant could express an opinion on a financial
statement as long as he didn't hold himself out as doing so in the capacity of a public
accountant. Central to the reasoning of Mitchell J.A. was that the effect of the legislative
provision in issue did not violate the appellant's right to freedom of expression because it
did not violate one of the underlying values of the guarantee. At para.8 Mitchell J.A.
In Hunter v. Southam Inc. (1984), 11 D.L.R. (4th) 641, 14 C.C.C. (3d) 97,
 2 S.C.R. 145, the Supreme Court of Canada said that the proper
approach to interpreting the Charter is a purposive one. Then, in R. v. Big
M Drug Mart Ltd. (1985), 18 D.L.R. (4th) 321 at pp. 359-60, 18 C.C.C.
(3d) 385,  1 S.C.R. 295, the Supreme Court said the Charter should
be given a [page74] generous interpretation, but at the same time warned
against overshooting the actual purpose of the right or freedom in question.
According to Dickson C.J.C. in Irwin Toy, supra, at p. 606, the purpose of
the right to freedom of expression in s. 2(b) is to ensure that everyone can
manifest their thoughts, opinions, and beliefs. However, as David
Lepofsky said in his article in the National Journal of Constitutional Law,
vol. 3, No. 1, p. 37, at p. 97:
Section 2(b) does not constitutionally immunize from government
regulation all human activity which might contribute to one's human
autonomy and self-fulfillment.
A construction which would have s. 2(b) include a guaranteed right to
carry on a business, to practise a profession, to be regarded as authoritative
in a field, or to charge a fee for services as a public accountant overshoots
its purpose and goes beyond what is necessary to give effect to it.
Accordingly, the trial judge went too far in this case and erred in law by
interpreting s. 2(b) so that it would not only guarantee a right to
communicate opinions and ideas but also include the right to have them
recognized as authoritative and to charge the public for them. (My
¶ 240 In the alternative and because s. 1 of the Charter had been addressed by the trial
judge, Mitchell J.A. went on to conclude that even if the rights of Mr. Walker under s.
2(b) were violated by the provision of the Public Accounting and Auditing Act, the
enactment was justified under s. 1. The Supreme Court of Canada upheld the decision of
the Appeal Division. See: Walker v. Prince Edward Island,  2 S.C.R. 407. Lamer
C.J. found, at p. 409, that s. 14(1) of the Public Accounting and Auditing Act supra did
not limit Mr. Walker's rights guaranteed by s. 2(b). He did not comment on s.1 because
he found there was no infringement. This decision was binding on the trial judge, and he
correctly applied it to the facts of this case.
¶ 241 Walker is also binding on this division of the court and it is not distinguishable,
except to the extent that it was concerned with a restriction imposed by legislative
enactment whereas the case at bar is concerned with a restriction imposed by the action
of a governmental authority. In all other respects Walker is analogous to the case at
bar. Both cases involve a restriction on an individual's right to expression in certain
professional capacities, in Walker as a public accountant and in this case as a teacher in
the classroom of the public school system. In both cases the appellants were restricted as
to their expression on content, in Walker on the content of a financial statement and in
the case at bar on the content of teaching materials to be used in the classroom. Like
Walker the protection of the appellant's form of expression in his capacity as teacher in
the public school system overshoots the purpose of the guarantee in s. 2(b). It is not
inconsistent with the values underlying s. 2(b) to restrict the expression of the teacher in
¶ 242 Academic freedom (free expression in the classroom of the public school
system) does not equate with freedom of expression protected under s. 2(b). Debate and
differences will, no doubt, frequently arise between teachers and their supervisory
personnel as to whether particular material or teaching method is within the
curriculum. Debate and differences will no doubt frequently arise as to whether the
exchange of ideas which is taking place in a public school at the junior high level is
within the curriculum. Supervisory personnel may find it necessary from time to time to
restrict teachers in the material they use and the teaching methods they employ even
though the teacher possesses a bona fide intention to work within the curriculum. This
does not mean that each time such a restriction is imposed, the teacher's constitutionally
protected right to freedom of expression has been violated and the school board is placed
in the position of having to justify its action under s. 1 of the Charter. If this were so, the
court would become, in effect, the school board of the province; a role it should eschew.
¶ 243 As the trial judge correctly pointed out, the issue in the event of a disagreement
between the teacher and the supervisory personnel over the imposition of restrictions
becomes one of employment between the teacher and his or her employer, the relevant
school board. The teacher is not without a remedy against the unreasonable intrusions of
supervisory personnel. The remedy is founded in collective agreements and the
grievance procedures provided for in such agreements. The remedy is also found in all
the principles of employment law. However, redress is not found in the violation of his or
her constitutionally protected right to free expression. A teacher may establish there was
an improperly imposed sanction thereby providing the right to a grievance under the
collective agreement without establishing a violation of a Charter right. Conversely, the
fact the teacher may have been improperly sanctioned for expression in the classroom
does not automatically establish a violation of the teacher's right to freedom of
¶ 244 Keegstra v. The Board of Education of the County of Lacombe No. 14 (1983),
45 A.R. 348 (Bd. of Reference) was a case where a difference arose between the teacher
and the school board as to the material and the teaching methods were within the scope of
the curriculum. It was decided by MacFadyen J. sitting as a Board of Reference pursuant
to the Alberta School Act. The teacher had appealed from the termination of his contract
of employment by the school board. It was the position of the board that Mr. Keegstra
had not followed the prescribed social studies curriculum, that he had not modified
sufficiently the content of his teaching material to reflect the desires of the local
community, and he had not followed the directives of the board with respect to both of
these issues. The specific problem, according to the board, was that the teacher was
teaching his own view of history which was highly prejudicial to certain ethnic groups.
Despite the directives from the board to include contrary views and contrary source
material, the teacher refused to alter the teaching practices and content. The board
terminated the employment of the teacher on December 7, 1982.
¶ 245 MacFadyen J. held that the board's decision to terminate was reasonable and
that the grounds for dismissal existed in fact. Although in its infancy at the time, the
Charter was not raised in this case and there was no attempt by the teacher to assert that
the board in making the decision had infringed his right to freedom of expression. This
was no doubt because to show the dismissal was wrongful the teacher did not have to
establish this right was violated. Furthermore, the board was not in the position of having
to establish they did not violate the right in order to justify the termination of his
contract. It merely had to show that the reasons it had for dismissing the teacher existed
in fact and thus were reasonable.
¶ 246 I want to point out, lest there be confusion, that the above case involving Mr.
Keegstra is not the same case dealt with by the Supreme Court of Canada as R. v.
Keegstra,  3 S.C.R. 697 where he had been charged pursuant to s. 319(1) of the
Criminal Code for communicating statements which promoted hatred against the Jewish
people. In this case, Mr. Keegstra was alleged to have made statements to students in his
classroom which violated the provisions of s. 319(1) which made it an offence to
communicate statements "... in any public place..." that would incite hate against an
identifiable group. Prior to his trial, he challenged the constitutional validity of s.319(1)
in the Alberta Court of Queen's Bench on the ground that it violated his right to freedom
¶ 247 The issue in R. v. Keegstra was not where the expression occurred as it clearly
occurred in a public place. The issue had nothing to do with the capacity in which the
statements were made because the law made it an offence for "Every one" to
communicate such statements. The issue was whether s. 319(1) of the Criminal Code
violated Mr. Keegtra's constitutionally protected right as a citizen to freedom of
expression. Clearly, if the provision was valid and if he communicated statements in a
public place which incited hatred against an identifiable group, as a citizen or in his
capacity as a teacher he would be committing an offence.
¶ 248 The facts of the case at bar are quite different in that the restriction imposed was
much narrower in its purpose and effect thereby giving rise to a completely distinct
issue. As I have discussed above, the context of the case at bar limits the issue to a
consideration of whether or not the action of a school board in restricting a teacher from
engaging in certain expression in the classroom of a public school, infringes the teacher's
constitutionally protected right to freedom of expression.
¶ 249 The appellant was following the prescribed curriculum, and this was
acknowledged by the respondent when it gave him permission to show the film and
deliver the project to the students provided that the level of preparation was satisfactory
to the principal and the Superintendent of Education. If the appellant was of the opinion
this decision and the ones that preceded it were unreasonable or beyond the authority of
supervisory personnel, he had recourse through the grievance procedure in his collective
agreement to seek redress. To be successful he did not have to establish the respondent
violated his right to freedom of expression. Similarly, the board was not, by making the
decision it did or by placing him on a paid leave of absence for the balance of his contract
of employment, violating his constitutionally protected right to freedom of
expression. However, it may have violated the provisions of the collective agreement
thereby providing the appellant with a remedy for constructive or unjust dismissal. This
issue is not before the court.
¶ 250 In the result, the appeal cannot succeed on the ground of appeal that the
appellant's right to freedom of expression was infringed by the actions of the respondent.
This ground of appeal is dismissed.
(b) Right to Life, Liberty and Security of the Person
¶ 251 With respect to this issue and this ground of appeal, the appellant asserts the
trial judge erred in two ways. First, when he found that the interpretation given to s. 7
given to the Supreme Court of Canada in Reference Re ss. 193 and 195.1 (1)(c) of the
Criminal Code,  1 S.C.R. 1123 is restricted only to the criminal law. Secondly, the
appellant states the trial judge misunderstood his position as asserting the right under s. 7
to pursue a particular occupation or practice a chosen profession.
¶ 252 With respect to the first error, the appellant argues the decision of the Supreme
Court of Canada in Godbout v. Longueuil (City),  3 S.C.R. 844 expanded the
interpretation of s.7 to mean that if an individual asserts a constitutionally protected right
and is prevented from doing so then in his words "... the right or privilege denied can be
addressed via the Section 7 right to liberty." Applied to this case, his argument goes that
because the respondent, as an agent of the state, prevented him from exercising his
constitutionally protected right to freedom of expression, such a violation may be
addressed under s. 7 as having violated the appellant's right to liberty.
¶ 253 I am unable to accept that Godbout changed the law as set forth in Reference Re
ss. 193 and 195.1 (1)(c) of the Criminal Code, and I am unable to accept that the violation
of an individual's right under the Charter constitutes the violation of the s. 7 right to life,
liberty and security of the person. In reaching his conclusions on this issue, the trial
judge applied and followed the comments of Mitchell J.A. in Walker at pp.77-78
respecting the scope of the rights. In doing so the trial judge was correct.
¶ 254 With respect to the alleged second error on the part of the trial judge and even if
I were to accept the right of liberty is to be applied in the manner suggested by the
appellant, I could not apply it here having found that the appellant's right to freedom of
expression was not violated. Accordingly, the appeal must fail on this issue and ground.
(v) Defamation & Errors of Fact
¶ 255 The last issue and ground of appeal raised by the appellant is whether he was
defamed by the respondent. The claim is based on alleged statements made by servants
and agents of the respondent to a future employer of the appellant in the Province of
Quebec. It will be recalled that the original claim based on defamation was struck from
the appellant's statement of claim by DesRoches J., and it was not restored when that
decision was reversed by the Appeal Division. However, at trial the appellant was
granted permission, on the consent of the respondent, to include this claim in the
statement of claim. After dismissing a motion by the respondent to have these
paragraphs struck out as disclosing no cause of action and being out of time, the trial
judge allowed the trial to proceed with the claim being based on these alleged statements.
¶ 256 At the conclusion of trial and in his post trial brief, the appellant asked the trial
judge to further amend the statement of claim to allege there were three additional and
separate incidents where the servants or agents of the respondent made defamatory
statements. The trial judge applied Rule 26.01 of the Rules of Court and refused to
amend the statement of claim because of the prejudice this would cause the
respondent. He noted the trial had proceeded on the basis of the statements alleged to
have been to the employer in Quebec, and it would cause prejudice to the respondent to
now include the new statements without having had an opportunity to examine and cross-
examine at trial on them. The trial judge therefore restricted the claim to the alleged
statements made to the employer in Quebec.
¶ 257 With respect to the claim based on these statements, the trial judge found the
appellant had not established what was said nor had he established that the alleged
statements were defamatory or that they were indeed spoken by someone who was
servant or agent of the respondent thereby engaging its liability. The trial judge went on
to hold that if he had made these findings the statements allegedly made would have been
protected by qualified privilege. Finally, he also held that even if the statements were
made and even if they were defamatory, they did not cause any damage to the appellant
because, in the trial judge's assessment of the evidence, the statements were not the
reason the school board in Quebec did not renew the appellant's contract.
¶ 258 I agree with all the findings of the trial judge on this issue for the reasons he has
set forth at paras. 98-130 of his reasons for judgment. The appellant asks this court, as
stated in his factum, to intervene and find the trial judge made errors on this issue and
indeed with respect to other issues on the ground that
... he misdirected himself and misread the overwhelming evidence before
him on the reliability and truthfulness of the witnesses of the defendant and
particularly on the burden of proof based on the balance of probability in
¶ 259 Each of the previous issues I have been able to address on the basis that they
raise a pure question of law. To resolve these issues it has not been necessary to consider
the many arguments of the appellant as to the alleged errors made by the trial judge in his
assessment of the evidence adduced at trial. Put another way, even if the evidence of the
appellant had been accepted by the trial judge and even if this court had the power to
intervene and reverse the findings of fact made by the trial judge which the appellant is of
the view were unfavourable to him, it would not impact upon my opinion with respect to
the Charter issues, the issues respecting collateral contract and the issues arising in
relation to the cause of action in defamation. Nevertheless, I will refer to the arguments
the appellant has made with respect to the alleged errors of the trial judge in making
factual findings as these arguments raise an issue as to the proper standard of review to be
employed by this court in reviewing findings of fact at trial.
¶ 260 The jurisdiction of the Appeal Division to review the pure questions of law that
arise in this appeal is broad and unfettered. Put simply, if in the opinion of the Appeal
Division the trial judge has not correctly determined the legal issues, intervention is
permitted to correct the error.
¶ 261 On the other hand, the Appeal Division's power to review the trial judge's
findings of fact is limited and narrow in its scope. A factual finding is the who, what,
where and when of the case. It might also entail drawing inferences from the
facts. Unless the trial judge made a palpable and overriding error (one plainly seen) in
his assessment of the evidence and in determining the facts, the Appeal Division cannot
intervene. The Supreme Court of Canada has stated this principle many times with
confirmation of it in a strongly worded decision delivered recently. See: Housen v.
Nikolaison 2002 SCC 33. Also see: Stein et al v. The Ship "Kathy K" et al 62 D.L.R.
(3d) 1; Toneguzzo - Norvell (Guardian ad litem of) v. Burnaby Hospital,  1 S.C.R.
114; Hodgkinson v. Simms,  3 S.C.R. 377.
¶ 262 This division of the court has consistently applied and followed the principles
established by the decisions of the Supreme Court of Canada. See: Johnston v.
Murchison (1995), 127 Nfld. & P.E.I.R. 1; Noye Enterprises Inc. v. Grady (1999), 172
Nfld. & P.E.I.R. 80; and Re: Sullivan (2000), 193 Nfld. & P.E.I.R. 190.
¶ 263 The appellant dedicated much of his written and oral argument to urging this
court to review and overturn many of the findings of fact made by the trial judge. Even if
an appellate court might have reached a different conclusion than the trial judge and even
if the court might be of the opinion he was not correct in some of the factual findings he
made, it is unable to interfere unless the trial judge made an error which can be plainly
seen. For example, if the trial judge made a material finding of fact (a fact which may
affect the determination of a legal issue) for which there was absolutely no evidence to
support, the error would be one which is plainly seen and this division of the court could
intervene to correct the error.
¶ 264 In this case there was a substantial body of conflicting evidence some of which
related to material facts and some of which related to immaterial facts. The trial judge
assessed and weighed this conflicting evidence on the balance of probabilities. In many
instances he accepted the evidence of the respondent, its servants or agents, over the
evidence of the appellant. This function is his sole province. If there is some evidence to
support his findings of fact, the Supreme Court of Canada has given clear direction that
an intermediate appellate court is without jurisdiction to interfere. We do not have the
power to reassess the evidence and re-weigh it on the balance of probabilities. At trial
there was some evidence to support all the factual findings of the trial judge, including
those made in relation to the issue of defamation. Accordingly, this court is unable to
¶ 265 In conclusion, I dismiss the appeal and award the respondent its costs on the
appeal. The trial judge's order with respect to costs is confirmed with the adjustments he
has noted in his reasons.
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