Court upholds Catholic school board's right to reconsider resolution to sanction board trustee
The Toronto Catholic District School Board can sanction a board trustee for suggesting that proposed discrimination rules protecting LGBTQ+ individuals should extend to those engaged in pedophilia, cannibalism, bestiality, and vampirism, the Ontario Court of Appeal ruled Thursday.
The OCA dismissed trustee Michael Del Grande’s arguments that he was entitled to make his remarks under the Canadian Charter of Rights and Freedoms. The court also tossed Del Grande’s claim that the school board was not allowed to reconsider its initial decision on the matter, which absolved Del Grande of breaching the school’s code of conduct.
According to the OCA’s unanimous decision, a lower court “found that Mr. Del Grande was not sanctioned based on his religious beliefs or for debating the merits of adding prohibited grounds of discrimination under the code [of conduct].”
Instead, the OCA said, “he was sanctioned for using ‘extreme and derogatory rhetoric that fell below the standard of conduct required of a trustee,’ and for making remarks that ‘did not reflect any sincerely held religious beliefs’ but rather used a ‘slippery slope’ argument to mock individuals who seek protection from discrimination based on their gender identity and gender expression.”
The OCA said it saw no error in the lower court’s reasoning, adding that the lower court’s decisions “do not meaningfully impair Mr. Del Grande from expressing his views or from participating in matters before the board.”
Justice Sally Gomery wrote the decision for the court. Justices C. William Hourigan and Gary Trotter concurred.
The dispute started in 2019 when the board was considering a motion to ban discrimination based on gender identity, gender expression, family status, and marital status. The Catholic Archdiocese of Toronto supported the motion.
In response to the motion, Del Grande asked how the school board would deal with teachers involved in polyamorous marriages. He also argued that if the board banned discrimination on the new grounds named in the motion, it should also ban discrimination based on individuals’ engagement in “a long list of sexual fetishes and paraphilias, including pedophilia, cannibalism, bestiality, and vampirism,” the OCA said.
When another trustee noted many of these practices were criminal, Del Grande replied that “God made them all.” His proposed amendment was ruled out, and the board passed the original motion under discussion.
After the meeting, the school board received more than a dozen complaints about Del Grande’s conduct, which complainants said was disrespectful to members of the LGBTQ+ community. In early 2020, an investigator concluded that Del Grande had violated the board’s code of conduct, noting his remarks were especially insensitive because they were made at the same meeting during which a delegate of the LGBTQ+ community spoke of having suicidal thoughts. The delegate also shared that they had lost a friend to suicide due to discrimination.
Despite the investigator’s conclusions, however, the board did not pass a resolution finding that Del Grande had violated its code of conduct, falling short of one vote.
The failure to pass the resolution elicited negative local feedback, prompting the board to reconsider the resolution in November 2020. Following a debate, the board voted to sanction Del Grande, request that he issue a public apology, require him to do equity training, and barred him from acting in a representative role for the board for three months.
Del Grande appealed the resolution with the board and, later, a lower Ontario court, but each upheld the terms of the resolution.
In its decision, the OCA tossed out Del Grande’s argument that the Ontario Education Act did not authorize school boards to reconsider matters that had already been resolved through voting, ruling that the law did allow the board to revisit its first decision on Del Grande’s conduct.
The OCA further dismissed Del Grande’s claims that his remarks at the board meeting were protected under the Charter, which guarantees freedom of religion, freedom of expression, and democratic rights.
“The offensive aspect of Mr. Del Grande’s conduct at the 2019 Board meeting was not his opposition to adding further prohibited grounds of discrimination in the code of conduct, but his degrading and (as he acknowledged) flippant equation of gender identity and gender expression to cannibalism, rape, and bestiality,” the OCA said. The court noted the lower court’s conclusions on the matter aligned with “with decisions from other Canadian courts on the balance that should be struck between freedom of speech and young LGBTQ+ persons from demeaning and hateful rhetoric in schools, school boards, and post-secondary institutions.”
Charles Lugosi, a sole practitioner and one of three lawyers who represented Del Grande, told Law Times on Wednesday that the OCA’s decision on the reconsideration issue could have “national implications.”
“Right now, if we're… in a common law jurisdiction, in theory, a court could look to this decision and say, ‘You know what? A school board can do whatever they want. They can revisit a prior decision. There's no finality to a prior code of conduct ruling, and we can keep getting fresh votes until we get the results we want,’” Lugosi said.
“Can you imagine a judge telling the jury, ‘Well, I'm not going to accept your verdict. I want you to go back until you change your minds and have a fresh vote until you come up with the decision I expect you to give’?”
Lugosi added, “I think that it's really critical that freedom of speech is always allowed, and dissident voices ought to be encouraged because that protects all of us in the long run, no matter what our personal points of views are.”
Nancy Crawford, chair of the Toronto Catholic District School Board, said in a statement, “The court of appeal found that the divisional court’s decision was reasonable and upheld it. The divisional court’s decision upheld the board’s 2020 decision regarding trustee conduct.”
Counsel for the school board declined to comment on the matter.
