26-year-old case set precedent
Rules that facilitated dismissal of lesbian teacher based on 1984 court decision
Vancouver Sun – April 30, 10
By Jeff Lee

The rules that allowed a Vancouver Catholic high school to sideline a lesbian teacher after her lifestyle became an issue have been in place for decades across the country and have been upheld by Canada's highest court.

But labour and employment lawyers said Thursday it may be time for the Supreme Court of Canada to revisit the issue of how religious rights and freedoms can in some cases trump individual human rights.

The case that allowed Little Flower Academy to tell temporary music teacher Lisa Reimer to stay at home and have no contact with her students after she told the school she and her partner were having a baby has become the legal standard by which all religious and educational institutions in Canada can dictate morality to the groups they serve.

The case, called Caldwell vs. St. Thomas Aquinas high school, was decided in 1984 and involved a Vancouver Catholic school that fired a teacher who had married a divorced man in a civil ceremony. The court upheld the B.C. Human Rights Code view that allows non-profit religious institutions, among others, to give preference to members of the group their organizations serve.

The case was so significant that it led to the modern-day emergence of so-called "Catholicity" clauses in Catholic school teaching contracts that insist that even non-Catholic educators must respect and live up to the church's values. Those clauses allow schools to dismiss teachers if they learn they are violating religious expectations, such as living common-law.

But the Caldwell case may not be in keeping with some of society's emerging values around individual human rights, say Tom Beasley and Geoffrey Howard, two Vancouver-based employment and labour lawyers.

"The question in this case is a conflict between the fundamental right of freedom of religion and sexual orientation. Those two clash and go clang-clang," said Beasley.

"Society has evolved a fair bit since 1984 and the Caldwell decision. The approach taken by society to human rights matters and the interplay between religion and sexual orientation, as one example, has changed. So I am sure the courts will look at this differently than they did 30 years ago."

Reimer went public on Wednesday, claiming she was "fired" by Little Flower Academy, one of three private Vancouver Catholic schools, after she applied for parental leave to be with her partner and new baby. The school said it did not fire her and that she remains on contract until June 30. It said she signed a "Catholicity" clause in which she promised, as a non-Catholic, to "demonstrate a respectful and sympathetic sensitivity to the aims and nature of the school and to the Catholic beliefs and practices of the school."

When she made her social relationship known to the school, it decided she had breached her contract and did not want her teaching.

Howard, the head of the labour and employment group for Gowlings Vancouver, said Reimer's case has the potential to challenge the Caldwell decision on several points, especially since Catholic independent schools are given substantial taxpayer support from the provincial government. He believes that under the Employment Standards Act, Reimer would have the same rights as an adopting parent, and would therefore be entitled to take parental leave, something she was denied by the school.

"I think that it is time to revisit Caldwell. I think this case is very significant. Just see how many societal issues are raised here. Sexual orientation is just a small part of this. Look at the issue of family rights, of parental rights, of other rights," said Howard.

But Doug Lauson, superintendent of the Catholic Independent Schools of Vancouver Archdiocese, which operates 39 elementary and six high schools within the Lower Mainland, said he doesn't believe the Caldwell case needs to be tinkered with.

"I think it is a little bit more complicated than just revisiting something. In this type of issue you are basically fighting the rights and freedoms of religion versus the rights and freedom of an individual. Which one is going to trump the other is the ultimate question."

Lauson's group doesn't represent Little Flower Academy, but uses a similar "Catholicity" clause, which he said is designed to protect the rights of the school to employ teachers who, if Catholics, observe the Catholic faith, or if non-Catholics, respect the church's practices and teachings.

Lauson said such clauses do not bar people from employment on the basis of their sexual orientation and he personally doesn't know if he employs teachers who are homosexual.

But he said the rules are equal for all; if a school learned that a Catholic teacher was living common-law after promising to live according to the rules, the person would be in breach of contract and could be fired, he said.

But he said the Church's fundamental view about human dignity overrides a person's sexual orientation.

"When it comes to gay and lesbian people the Church actually teaches that human dignity extends to all people, whether they be homosexual, heterosexual, short, fat, thin, white, black, it doesn't make any difference," he said.

"It is the practise of sexuality that distinguishes what the Church will accept and not accept. So a heterosexual practising sexual relations out of wedlock is no different than a homosexual practising sexual relations outside of marriage."

Paul Schratz, a Vancouver archdiocese spokesman, said the catechism of the Catholic Church protects the dignity of everybody, including people who have same-sex attraction. "If the school was to fire somebody just because they came out as lesbian or gay, the school would in fact be going against the teachings of our church."