A-221-73
Joseph A. Fardella (Applicant)
v.
The Queen as represented by the Treasury Board
(Respondent)
Court of Appeal, Jackett C.J., MacKay and
Sweet D.JJ.—Ottawa, June 26 and August 1,
1974.
Judicial review—Government taking over Indian schools
and residences from religious bodies—Appointing child care
worker at student residence—Child care worker refusing to
bring children to compulsory Sunday service—Discharge of
child care worker—Freedom of religion—Indian Act, R.S.C.
1970, c. I-6, ss. 73(3), 115—Indian . School Residence
Administrators and Child Care Workers Employment Regu-
lations—Public Service Employment Act, R.S.C. 1970, c.
P-32, ss. 28, 35, 39—Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, ss. 23, 90, 91—Canadian Bill of
Rights, R.S.C. 1970, Sch. III, ss. 1(c) and 2—Federal Court
Act, s. 28.
The applicant was appointed on probation as a child care
worker, at La Tuque Student Residence, by the Department
of Indian Affairs. The Residence had been taken over by the
Department, in the course of administering Indian schools
and student residences, from the religious denominations
previously in charge. A priest of the Anglican Church was
appointed administrator of the residence, which had been
operated by that church. The administrator directed the
appellant to bring to Sunday service the children under his
care. The applicant refused to comply with this order,
principally because of his objection to the compulsory
attendance of the children. The Department terminated the
applicant's employment. The applicant filed a grievance
under section 90 of the Public Service Staff Relations Act
and, an adjudicator, appointed under section 91 of the Act,
offered reinstatement upon the applicant's undertaking to
comply with the order of conducting the children to church,
with liberty to request exemption from his own attendance
at the service and without obligation to apply coercive
measures, problems of which should be left to the adminis
trator. On the applicant's failure to file such an undertaking,
the discharge stood. The Public Service Staff Relations
Board, under section 23 of the Public Service Staff Relations
Act, upheld the findings of the adjudicator. The applicant
moved to set this decision aside, on review under section 28
of the Federal Court Act.
Held, dismissing the application, the adjudicator was right
in assuming jurisdiction over the matter, as one "arising
from disciplinary action resulting in discharge", within sec
tion 91(1)(b) of the Public Service Staff Relations Act and
not the "rejection" of a person employed on probation,
under section 5 of the Indian School Residence Administra-
tors and Child Care Workers Employment Regulations. The
Board was right in affirming the adjudicator's finding, on the
evidence, that the applicant's own right to freedom of reli
gion had not been abridged, in breach of sections 1(c) and 2
of the Canadian Bill of Rights. The argument that the
holding of denominational services in a residence operated
by the Federal Government was, in itself, illegal, was with
out foundation in law. It was reasonable to continue such
activities when the Government took over a system of
residences for Indian students previously operated by sever
al religious denominations. There would be infringement on
a child's freedom of religion in requiring him to attend a
denominational service only if such a requirement was con
trary to the child's religious beliefs.
Robertson and Rosetanni v. The Queen [1963] S.C.R.
651; Saumur v. City of Quebec [1953] 2 S.C.R. 299;
Board of Education v. Barnette (1943) 319 U.S. 624,
and The Queen v. Drybones [1970] S.C.R. 282,
considered.
APPLICATION.
COUNSEL:
J. S. Midanik, Q.C., for applicant.
M. Bonner for respondent.
SOLICITORS:
Sherman, Midanik & Starkman, Toronto,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
JACKETT C.J.: This is an application under
section 28 of the Federal Court Act to set aside
à decision of the Public Service Staff Relations
Board on a reference under section 23 of the
Public Service Staff Relations Act.
On October 18, 1972, the applicant was
appointed, in accordance with and subject to the
Indian School Residence Administrators and
Child Care Workers Employment Regulations, a
child care worker at the La Tuque Student
Residence operated by the Department of
Indian Affairs and Northern Development.
Although his appointment did not become effec
tive until October 18, the applicant, in fact,
started work towards the end of September,
1972.
On November 10, 1972, a letter was written
to the applicant by the Department of Indian
Affairs and Northern Development, reading as
follows:
On October 17, 1972 you were advised by Mr. R. Michaud,
Regional Superintendent of Personnel, of your appointment
as a child care worker, WP-1, effective October 18, 1972 at
the La Toque Student Residence.
In the second paragraph, it was specified that your appoint
ment was subject to a probation period of one (1) year.
As your supervisor and the residence administrator have
reported that you have failed at many occasions, to carry
out duties, which were part of your job, we advise you that
your appointment in your present position, will terminate on
December 11, 1972.
The applicant presented a grievance in
respect of such action as contemplated by
section 90 of the Public Service Staff Relations
Act and, that grievance having been presented
up to and including the final level in the griev
ance procedure and not having been dealt with
to his satisfaction, on February 12, 1973, by a
document entitled "Notice of Reference to
Adjudication", the applicant referred the griev
ance to adjudication as contemplated by section
91 of that Act.
After a hearing on March 20, 1973, the
adjudicator, on April 10, 1973, delivered a deci
sion embodying his decision on the grievance
and his reasons therefor.
In the first place, the adjudicator dealt with
an objection to his jurisdiction based on the
contention that the applicant had been an
employee on probation who was rejected under
section 5 of the aforesaid Regulations and that
the applicant had not been discharged as a result
of "disciplinary action" so as to be entitled to
refer his grievance to adjudication under section
91. The adjudicator dismissed the objection to
jurisdiction by making a finding, "on the basis
of the exhibits filed and the testimony of the
witnesses who were heard at the hearing" that
the reference to adjudication concerned a griev
ance with respect to disciplinary action resulting
in discharge.
The adjudicator found as a fact on the evi
dence that the primary reason for the appli
cant's dismissal was his refusal to take all of the
boys in his charge to chapel services on Sunday
mornings notwithstanding direct orders to this
effect received from his superior, Fr. Bonnard.
The surrounding circumstances and relevant
facts are set out in the following portions of the
adjudicator's decision:
In order to understand the circumstances leading to Mr.
Fardella's dismissal it is necessary to have some awareness
of the background and history of the student residences
presently under the jurisdiction of the Department of Indian
Affairs and Northern Development. The education of Indian
children was at one time entirely organized by various
religious denominations and churches and was their entire
responsibility. In recent years the situation has changed and
those persons formerly employed by various churches and
denominations have become public servants. In the case of
the residence at La Tuque, this was formerly under the
control and jurisdiction of the Anglican church, and this
explains why its administrator, a public servant, classifica
tion WP-3, is an Anglican priest, and why there is still a
religious component. There has been a continuing and ongo
ing relationship between the Departm nt and the various
churches after the direct involvement of the government,
and the churches continue to playa important role in
matters of recruitment of personne , determination of
policy, administration , etc., at least indi ctly.
The Indian residence for students of La Tuque does not
itself engage in the formal education Of the children who
reside there, these being sent to various schools, French or
English, Catholic or Protestant, in the' La Tuque area. Fr.
Bonnard arrived at the La Tuque residence in 1968 after a
lengthy experience as a missionary and educator, and he
presently has a total staff under his jurisdiction of fifty-two,
including eighteen Child Care Workers. The residence was
taken over by the Department of Indian Affairs in 1969,
having been originally built, administered and financed by
the Anglican church. Thus, in 1969 the staff of the residence
became public servants, and the church continued to have a
say in the hiring of the administrator and thereby in the
hiring of the Child Care Workers who came under his
jurisdiction. Under section 39 of the Public Service Employ
ment Act, the Public Service Commission has exercised its
discretion to decide that it is not practicable nor in the best
interests of the public service to apply the Public Service
Employment Act to the positions of Residence Administra
tor and Child Care Worker in the Indian school residences
of the Department of Indian Affairs and Northern Develop
ment, and in consequence the Governor in Council, on the
recommendation of the Commission, has enacted regula
tions under section 35 of the Public Service Employment
Act describing how these positions and persons excluded
under section 39 shall be dealt with. These regulations are
cited as the Indian School Residence Administrators and
Child Care Workers Employment Regulations and they
permit the hiring of personnel without going through the
normal procedures involving competitions, etc. This then
results in continuing to give the churches a very strong role
in the recruitment and hiring of personnel.
When Fr. Bonnard arrived at La Tuque in 1968, there was
apparently a daily compulsory religious service and two
compulsory religious services on Sunday with substantial
pressure on staff and students not only to attend but to take
communion. The student population in the residence comes
primarily from two Indian Bands which are part of the Cree
nation, the Mistassini and Waswanipi Bands. There was
some evidence at the hearing which indicates substantial
parental desire for the children to attend religious services,
particularly in the case of the Waswanipi Band. Perhaps
forty-five per cent of the students come from each of these
Bands and ten per cent from other Bands. On his arrival Fr.
Bonnard cut out the daily services and began decreasing and
phasing out the degree of compulsion involved both for
students and staff. There is now only one service for each
group of children on Sunday, one for junior children and
one for senior children. These services on alternate Sundays
involve either a communion service or a morning prayer
service. From the evidence at the hearing it would seem that
there has not been any objection by any parents or any
request for exemption of children from religious services,
nor have such formal requests for exemption from services
been made at any time to the Administrator. The situation is
thus one in which services appear to be accepted by the
Administrator, by the parents, by all the other Child Care
Workers except the grievor, and by the children, as part of
the regular routine, which they attend as a matter of course.
The degree of compulsion involved seems to be that attend
ance on the part of the children at least is expected unless a
request for formal exemption from the attendance at ser
vices is made, and presumably such requests would be made
by the parents in the case of younger children, or by the
child himself in the case of older children such as teenagers.
All this appears from the evidence offered at the hearing by
Fr. Bonnard.
The grievor was on duty with senior boys, ranging in age
from 11 to 13, on Sunday, September 24, and he took them
all to the chapel services. On Sunday, October 1, he was off,
and on Sunday, October 8, he was again on duty with senior
boys and brought them to services. The grievor himself was
present at services although he is apparently not required to
be present. In fact the grievor appears to be quite religious
himself and has taken communion at these services on one
or two occasions, although he is a Roman Catholic and the
services are Anglican services. The grievor states that
subsequently he preferred to go to Anglican or Catholic
services in the town of La Tuque itself rather than at the
chapel at the residence, because of the fact that the children
were obliged to attend these services and he cannot accept
any coercion with regard to religious observance. On
Sunday, October 15, the first problem arose when Fr. Bon-
nard noticed that only about one-third of the boys under the
grievor's charge were present at the Chapel. This began a
series of discussions and arguments between the grievor and
Fr. Bonnard in the course of which Fr. Bonnard kept
reminding the grievor of his duties and expectations and the
grievor kept enunciating his own views as to rights of the
children to make their own decisions with regard to attend
ance at services, and the grievor's philosophy of religion and
theological views. Of course Fr. Bonnard also gave consid
erable expression in these discussions to his own theological
views about the role of religion in the education of the
children, and other matters. Fr. Bonnard continually
explained to the grievor that he considered that there was a
mandate from the parents to have the children attend ser
vices while the grievor felt that he could not accept that
these students be obliged to attend religious services. There
is no evidence whatsoever there has been any other objec
tion to the attendance at services, and the policy of having
the children attend services and not giving them a choice
seems to arise from a tacit assumption, which has not been
contradicted by any evidence, that the parents desire their
children to attend services. Fr. Bonnard stated that if any
one objected to the services the policy would immediately
be changed in order to conform with parental wishes. In the
case of the Mistassini Band there appears to be a school
committee which allows the parents to participate formally
in decision-making with regard to policy, and they have
never made any comment which would indicate a desire for
the policy to be changed. In the case of the Waswanipi
Band, as already mentioned, the Chief appears to have made
positive statements supporting the policy and stating that he
has the support of the parents in this connection.
•
The students involved on October 15 were super senior
boys ranging in age from 13 to 18 years, with an average age
of 15. From the evidence it may be that the grievor had
more difficulty in getting the super-seniors to go to chapel,
or perhaps he simply felt that these boys could make per
sonal decisions with regard to church attendance. In any
event we have mentioned that on October 15, the majority
of the super senior boys did not attend services, having
apparently been told by the grievor simply that there was a
service which they could attend if they wished. Fr. Bonnard
had reminded the grievor of the history and traditions of the
student residence, the views of the parents, the role of the
church in the past, the duties and responsibilities of the
Child Care Workers, etc., but the grievor continued to insist
that he could not oblige students to attend services, as it was
contrary to his conscience, and he felt that there were strong
moral grounds for allowing children freedom of choice. It
may even be that the grievor felt that the students should
have the right of choice in other areas than religion, such as
attendance at classes, etc. Obviously Fr. Bonnard could not
accept this philosophy, and in his evidence at the hearing Fr.
Bonnard mentioned that in his view attendance at services
was very similar in many respects to other activities which
the boys were more or less obliged to participate in, such as
cleaning up, taking showers, etc., and that boys will often
not wish to do many things for reasons which have nothing
to do with religion. In Fr. Bonnard's view, any resentment
that students may have felt with regard to attending services
had nothing to do with religion but merely reflected the fact
that they would have preferred to remain in bed or engage in
other activities. Fr. Bonnard felt that the students got
spiritual nourishment and substantial value from attendance
at services, on the basis of his discussions with former
students, whereas the grievor disagreed completely. Finally
Fr. Bonnard told the grievor that the latter may have had a
position which was entitled to respect but that the grievor
was none the less expected to carry out the policies as he
had on the previous Sundays when he had brought his
children to the services.
On Sunday, October 22, the grievor was again in charge
of the senior boys and Fr. Bonnard noticed that a sizeable
number were missing at the chapel service. At the end of the
service Fr. Bonnard had a talk with the grievor who again
insisted that he could not do what was expected of him, that
he himself had no objection to attending services and even
participating in communion but that he should not be forced
to bring all of the children. At this point the grievor made
what appears to be a reasonable suggestion, namely, an
exchange of duties with another Child Care Worker for the
period of the Sunday service only, so that someone else
could perform these duties which he found objectionable
and violations of his conscience. Fr. Bonnard stated that this
was impracticable and unreasonable as it was part of the
grievor's duties to bring the children to services and that it
would mean calling in another Child Care Worker who was
off on Sunday morning. Again Fr. Bonnard attempted to
convince the grievor on theological and educational grounds,
putting forward for example the argument that children of
the ages involved needed substantial guidance and could not
just be told that it was their free choice, etc. At this point
the grievor stated that he might have to resign in the light of
the situation and the discussion terminated. There had as yet
been no discussion of any possible disciplinary action
against the grievor.
On Monday, October 23, 1972, the grievor approached
Fr. Bonnard and told him that he would not modify his
position in any way, but that he had changed his mind about
resigning and would continue in his job. Fr. Bonnard men
tioned that the grievor's stand left him little choice but to
recommend termination of the grievor's employment, in the
light of the grievor's attitude. On October 25, the grievor
again confirmed his stand to Fr. Bonnard and was advised
that steps would be taken to reject him on probation.
Subsequent to October 23, the machinery to terminate the
grievor's appointment had of course already been put in
motion. Further discussions occurred between the grievor
and Fr. Bonnard in which the grievor took at times a more
conciliatory attitude and at other times a harder line in
which he absolutely refused to budge from what he con
sidered to be a moral stance. On November 5, 1972, a
Sunday, the grievor was suspended without pay for the
balance of the day because he had refused to bring his group
of boys to the chapel services that morning, and this was
confirmed by letter of November 7, 1972, which has been
filed as Exhibit 3. On November 6, 1972 Fr. Bonnard filed a
further report with the Department in connection with
events which had occurred subsequent to his previous
report, this new addendum being filed as Exhibit 12. This
second report to the Department by Fr. Bonnard reports on
the grievor's attitude, his intention to fight any dismissal in
the courts if necessary, the fact that the grievor had
informed Fr. Bonnard on Sunday, November 5, that he
would not attend the chapel service or take his boys there,
although he would remind them that the service was taking
place, etc. The grievor was suspended a second time for
insubordination for refusal to take his boys to chapel on
Sunday, November 12, only five out of twenty-four super
senior boys under the grievor's jurisdiction being present at
that service. The grievor was again suspended for the day of
November 19, when he informed Fr. Bonnard before the
service that he would not bring his boys to the service. On
Sunday, November 26, the grievor was off duty and no
disciplinary suspension was imposed; on Sunday, December
3, the grievor again advised Fr. Bonnard before the service
that he would not be present in chapel with his group of
boys and he was again suspended for the balance of the day.
Of course the grievor had known since approximately
November 10, 1972, that his employment would terminate
on December 11, 1972, and all of these suspensions except
the first occurred after his official notification of the termi
nation of his employment; the first suspension occurred
after he knew that the machinery had already been set in
motion for termination of his employment. On Saturday,
December 9, the grievor saw Fr. Bonnard and it was appar
ently agreed that since the grievor was not going to perform
his duties on Sunday, December 10, with regard to chapel,
and since his employment would terminate on the 11th, in
any event, Fr. Bonnard had no objection to his leaving on
that day, and so the grievor departed from the student
residence on Saturday, December 9, and did not return to
work on December 10 or 11.
Having so found the facts, the Adjudicator
dealt with the applicant's grievance which was,
in effect, that the applicant was justified in
refusing to obey the order from his superior
because it was illegal by reason of that part of
the Canadian Bill of Rights that deals with
freedom of religion.
With reference to the applicant's contention
that his own right to religious freedom had been
violated, the Adjudicator found that it was not
supported by the facts because he was merely
required to bring the students under his control
to religious services with no obligation himself
to remain there. He had been disciplined "for
his refusal to bring the students to services" and
"not because he refused to participate in the
services himself". With reference to the appli
cant's contention that it violated his conscience
to carry out the order to bring the children to
services because "on moral grounds he could
not engage in an activity which he considered
... coercive in so far as the children were
concerned", the adjudicator reasoned as
follows:
What he is really saying is, I suppose, that his religious
beliefs prevent him from obliging someone to attend reli
gious services against their will. As a matter of policy and
principle, his position may be well founded, but I do not
think there can be any question of a violation of the Bill of
Rights or of his own right to freedom of religion. When the
Bill of Rights speaks of freedom of religion, I do not think it
is talking in terms of absolute freedom, which would clearly
be inconsistent with the realities of life if it were carried to
an extreme. If, for example, the grievor felt that his religious
beliefs compelled him to physically coerce other persons to
do certain things, this would not be protected by the federal
Bill of Rights. Freedom of religion implies the freedom for
the individual to worship as he pleases and to believe as he
pleases, without any external coercive power being applied
to oblige him to worship or believe in any way inconsistent
with his own wishes. It also implies a freedom not to believe
and not to worship if he so chooses. The evidence in the
present case does not disclose that the grievor's right to
worship or not to worship as he pleases, and to believe or
not to believe as he pleases, has in any way been abrogated,
abridged, or infringed upon. At most, he has been required
to perform duties which he finds to be morally objection
able, and if he were right in arguing that this was an
infringement of his religious rights under Canadian law, this
would imply that any person who at any time was called
upon to do something which he found morally objectionable,
could refuse to do so and claim the protection of the
Canadian Bill of Rights. I think this position is unfounded,
and in certain instances an individual who stands on moral
grounds may perhaps be required to assume the risks and
consequences of his actions, and we may in fact admire him
for so doing. On the other hand, he may well be in violation
of the law. The law that is is not always the law that ought
to be, and the law that ought to be is not the subject of a
uniform consensus, but is perceived differently by every
individual. Thus the moral law which the grievor may feel to
be binding on him is not necessarily that which another
individual would feel to be binding. In fact none of the other
Child Care Workers at any time objected to bringing their
charges to religious services on Sunday.
In connection with the position from the point
of view of the children, the adjudicator dealt
with the matter, in part, as follows:
Let us now look at the argument that the religious free
dom of the children under the grievor's care has in some
way been infringed upon, abrogated, or abridged. There is
no evidence to show any objections on religious grounds by
either the students concerned or their pants. It is in
evidence and uncontradicted that were any such objection
made the administrator would grant an exemption from
either religious instruction or attendance at religious ser
vices. In the absence of any such evidence, the reasons
which impelled certain children not to attend services on
certain days, when they were given this option by the
grievor, are strictly a matter of conjecture. One can assume
that a child who is given a choice of attending a class or not,
playing baseball or not, taking a bath or not, etc., may very
often decide not to do something rather than to do it,
because he may have a more pleasant or desirable alterna
tive in mind. I am inclined to the belief that this may well be
the case with regard to many of these children who may
prefer to engage in other activities at the time services are
held, perhaps not on a regular basis, but on occasion. Is
attendance at religious services then something which is left
entirely to the will of the individual child, so that he can
attend on one Sunday and not on another, depending on
what mood he is in? If one does not grant this kind of
freedom to the child in residence at the school, is the child
being subjected to an infringement, abrogation or abridge
ment of his fundamental freedom of religion under the
Canadian Bill of Rights? I think one must here distinguish
between younger and older children. ' In the case of the
seniors, for example, I would be inclined to think that
perhaps it is the desires of the parents which would be taken
into account as providing a better criterion than the desires
of the child. It seems to me that should any parent indicate
the desire that a child not receive religious instruction or not
attend religious services, then that desire should certainly be
respected. If such a desire were not respected, then I think a
violation of the Bill of Rights would have taken place.
However, there is no evidence of any such situation in the
present case.... There is no evidence of any request for
exemption from attendance by any parent, and there is
evidence that any such request would be honoured. I there
fore conclude that there has been no abrogation, abridge
ment or infringement of the rights to religious freedom of
these Indian children. With regard to the super seniors, the
eldest of whom is 18, it could be argued that in this case the
option should be given, not to the parents, but to the
children themselves, along lines similar to those I have
suggested above. But again we are confronted with the
reality that, according to the evidence made at the hearing,
no request for exemption has been made.
With regard to the Indian children concerned, there has been
no evidence of coercion or any violation of their rights, as
they certainly had the right to refuse to attend services, as
stated by Fr. Bonnard at the hearing. In any event, if the
rights of the children had been violated in some way, I
believe I would lack jurisdiction to correct any such viola
tion, and it would be necessary to go to some other forum;
what I am seized of is simply the grievor's complaint that his
dismissal was unjustified, that his refusal to obey orders was
justified. I am not at all sure that even if the children's rights
to freedom of religion had been violated, this would have
entitled the grievor to refuse to obey the orders received,
although I do believe that if the grievor's right to freedom of
religion had been violated he would have had the right to
disobey. In any event, as I have already stated, there is no
proof that the rights of either the grievor or of the children
to freedom of religion under the Canadian Bill of Rights
have been violated in any way. Within the context of this
institution, and in the light of its history, attendance at
services on Sunday would appear to be a normal activity,
somewhat like attendance at classes, etc., and I think the
grievor would be wrong if he pretended, as it appears he
may have done, that a child was free to refuse, not only to
attend religious services, but also to attend classes, as the
child must be given total freedom of choice in these matters.
The adjudicator found, therefore, that the
"orders ... were perfectly legal". He thereupon
pronounced the following decision:
1. On the basis of the facts proved at the hearing and the
exhibits filed, I find that the evidence discloses that in fact
this matter is a disciplinary one concerning a discharge for
insubordination and refusal to obey orders, and that there
fore I have jurisdiction under section 91 of the Public
Service Staff Relations Act.
2. The grievor is hereby required to file with the Registrar,
within ten (10) days from being informed of the present
decision, a written undertaking to comply with orders
received from Fr. Bonnard in the future with regard to
bringing the children under his care to religious services on
Sunday morning. It is understood that such an undertaking
does not require the grievor himself to attend such services
if he does not wish to do so on religious grounds, but if so
he should request exemption from the duty of attending
services. It is also understood that he is not obliged to apply
any coercive measures to those who do not wish to attend
services and that such problems should be dealt with by the
administrator.
3. Should the grievor provide the aforesaid undertaking
within the delay just mentioned, I hereby order his reinstate
ment in his former position at the La Tuque residence within
ten (10) days of the date such undertaking is received by the
Registrar. His discharge would in such case be reduced to a
suspension without pay to terminate on the date of such
reinstatement.
4. Should such undertaking not be given by the grievor
within the delay aforementioned, then the discharge shall
stand and the grievance is dismissed.
5. I shall remain seized of the present case in order to make
any modifications of this decision or issue any further
orders which may be required or desirable in order to give
effect to the intent and purposes of the present decision.
By a document dated May 30, 1973, entitled
"Statement of Questions of Law and Jurisdic
tion and Representations in Relation thereto"
the applicant purported to make a reference to
the Public Service Staff Relations Board under
section 23 of the Public Service Staff Relations
Act. Section 23 reads as follows:
23. Where any question of law or jurisdiction arises in
connection with a matter that has been referred to the
Arbitration Tribunal or to an adjudicator pursuant to this
Act, the Arbitration Tribunal or adjudicator, as the case may
be, or either of the parties may refer the question to the
Board for hearing or determination in accordance with any
regulations made by the Board in respect thereof, but the
referral of any such question to the Board shall not operate
to suspend any proceedings in connection with that matter
unless the Arbitration Tribunal or adjudicator, as the case
may be, determines that the nature of the question warrants
a suspension of the proceedings or unless the Board directs
the suspension thereof.
On November 7, 1973, the Public Service
Staff Relations Board delivered "Reasons for
Decision".
The following paragraphs from the Board's
reasons indicate the matters that were put
before it for decision:
9. Following the issuance of the decision of the adjudicator,
the aggrieved employee failed to comply with the conditions
of his reinstatement and subsequently made the instant
reference to the Board. In his reference, the aggrieved
employee alleges inter alia that the adjudicator erred in law
in finding that the requirement that the Indian children
concerned attend chapel services on Sunday morning was
not an infringement of their religious freedom contrary to
the Canadian Bill of Rights. He further alleges that the
adjudicator erred in law and acted in excess of his jurisdic
tion in holding that the aggrieved employee was under any
legal obligation to carry out the order of Fr. Bonnard to
bring the children to the services and in failing to reinstate
the aggrieved employee unconditionally in his employment
with full back pay for all the time lost by him as a result of
his discharge and preceding suspensions imposed on him by
Fr. Bonnard for refusing to bring the children to chapel.
10. The Employer submits that the reference must be dis
missed on the grounds that the adjudicator did not have
jurisdiction to entertain the grievance, or in the alternative,
if he is found to have had jurisdiction, he did not err in law
in the manner alleged by the aggrieved employee in this
reference.
The Board rejected the objection to the
Adjudicator's jurisdiction and then disposed of
the matter on the merits as follows:
38. Counsel for the aggrieved employee based his allegation
that the evidence in certain instances did not support the
adjudicator's findings of fact on certain correspondence that
was filed as exhibits at the hearing before the adjudicator.
Counsel, however, admitted that he had no knowledge or
record of any kind as to the viva voce evidence given by the
aggrieved employee or Fr. Bonnard, who according to the
adjudicator's decision were the only two persons who testi
fied in the proceeding before him with respect to the docu
ments. Let us assume, for purposes of argument only, that
in a reference under section 23 of the Public Service Staff
Relations Act, the Board has the authority to question or
review the findings of fact made by an adjudicator. Clearly
in circumstances such as the instant case where there is no
record upon which the Board can place reliance, indeed no
record at all other than hearsay, as to the viva voce testimo
ny which was given with respect to the correspondence by
both the aggrieved employee and Fr. Bonnard, the Board
cannot do other than accept the interpretation placed upon it
by the adjudicator. The Board accordingly accepts at face
value the findings of fact made by the adjudicator in, his
decision.
39. Having considered the representations of counsel, we
agree with the position of the Employer that in the instant
reference to the adjudicator, he was not called upon to make
any determination as to whether there had been an infringe
ment on the religious freedom of the Indian children in the
charge of the aggrieved employee or their parents or any
other employee of the residence as none of them were
parties to the proceedings. This Board, therefore, is not
called upon in the instant reference to make any determina
tion as to whether there has been an infringement on the
religious freedom of the children concerned, their parents,
or any other employee of the residence.
40. With regard to the aggrieved employee, we are satisfied
that the adjudicator did not err in law, based on his findings
of fact, in determining that the order given to him by his
superior, Fr. Bonnard, was legal and that the order in no
way abridged, abrogated or infringed on the aggrieved
employee's personal religious freedom.
This section 28 application is an application
to set aside the aforesaid decision of the Public
Service Staff Relations Board.
With reference to the question as to whether
the Board erred in law in deciding that the
adjudicator did not err on the merits, the rele
vant provisions of the Canadian Bill of Rights
are:
1. It is hereby recognized and declared that in Canada
there have existed and shall continue to exist ... the f ollow-
ing human rights and fundamental freedoms, namely,
(c) freedom of religion;
2. Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it shall
operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe
or to authorize the abrogation, abridgment or infringement
of any of the rights or freedoms herein recognized and
declared, ... .
The basis of the applicant's contention, which I
am prepared to accept at least for the purpose
of this section 28 application, is that the La
Tuque Student Residence is operated under
statutory authority which must be so construed
and applied, by virtue of the Canadian Bill of
Rights, "as not to abrogate, abridge or infringe
or to authorize the abrogation, abridgment or
infringement" of "freedom of religion". What
this means, as I understand it, as far as this
application is concerned, is that nothing in the
statute and nothing done under authority of the
statute can affect "the liberty of religious
thought and practice of any citizen" or in any
way curtail "untrammelled affirmations of reli
gious belief and its propagation". See Robertson
and Rosetanni v. The Queen.' On that view of
the law, the conclusion of the Board as to the
correctness. of the Adjudicator's view is, in my
opinion, not open to attack and nothing is to be
gained by attempting to improve on the
Adjudicator's treatment of the matter.
The only propositions seriously put forward
in this Court, as I understood counsel for the
applicant, were, in effect,
' [1963] S.C.R. 651.
(a) . that the holding of denominational ser
vices in a residence operated by the federal
government was, in itself, illegal, and
(b) in any event, it was an infringement on
the freedom of religion of a child to require
him to attend such a service.
The first proposition was not supported other
wise than by reference to the authorities
referred to in the Robertson and Rosetanni case
(supra). I have not been able to find any basis in
law for it. Ordinarily, one would not expect to
find the state financing or operating religious
services in a country such as Canada. However,
there are obvious exceptions such as services in
the armed forces and penal institutions and I do
not find it difficult to conceive of a rational
reason for continuing such activities when the
government takes over a system of residences
for Indian students operated by several differ
ent religious denominations as apparently
occurred here. If such residences have been
operated on the basis that they will supply their
inhabitants with religious and spiritual guidance
and teaching one would not expect too radical a
change made suddenly on the occasion of a
government take-over.
With reference to the submission made by the
applicant that it was an infringement on the
freedom of religion of a child to require him to
attend a denominational service, I am of opinion
that this would only be so if such a requirement
would be contrary to his religious beliefs or
views as put forward by the child himself, if he
were old enough, or by his parents or guardian
on his behalf. There was no claim that there was
in fact any such situation here and the onus of
making out his case before the Adjudicator was
on the applicant.
With reference to the objection to the
Adjudicator's jurisdiction in this case, in my
view, it could only have succeeded if, as a
matter of law, on the material before us, it
appeared that the applicant was not dismissed
but was rejected under section 5 of the Indian
School Residence Administrators and Child
Care Workers Employment Regulations, which
reads as follows:
5. (1) A person who has been appointed to the position of
residence administrator or child care worker is on probation
for a period of twelve months from the date of his
appointment.
(4) The deputy head may, at any time during the proba
tion period, give notice to a person described in subsection
(1) that he intends to reject that person for cause on the day
stated in the notice, which day shall not be less than thirty
days from the date of the giving of the notice and, that
person ceases to be an employee on that day.
While the question is not free from doubt on the
material in this case, I am not prepared to
disagree with the conclusion of the Adjudicator
and of the Board that there was a dismissal. In
coming to that conclusion, I do not wish to be
taken as expressing an opinion that, where there
has been, in fact, a rejection under section 5 or
under section 28 of the Public Service Employ
ment Act, it can be classified as a dismissal in
order to create jurisdiction under section 91 of
the Public Service Employment Act*. Insubordi
nation during a probationary period might well
be "cause" for rejection, either of itself or taken
with other matters, just as it might be ground
for disciplinary action even during a probation
ary period. There should, however, be no room
for doubt, if the matter is handled as it should
be handled, as to which action has been taken.
In this case, while there are references to rejec
tion, I cannot find fault with the Adjudicator's
finding that, on balance, the applicant was really
dismissed for insubordination.
* * *
MACKAY D.J.: I agree with the reasons and
conclusions of My Lord the Chief Justice.
* *
The following are the reasons for judgment
delivered in English by
SWEET D.J.: I wish to add some comments of
my own on submissions of counsel for the appli
cant in connection with the right to freedom of
religion.
Facts applicable to the matters in respect of
which I comment follow.
The applicant was a child care worker
employed by or through the Department of
* [This is evidently a reference to the Public Service
Staff Relations Act—Ed.]
Indian Affairs for a residence for Indian stu
dents at La Tuque, Quebec. The residence was
at the relevant time a Canadian Government
institution. The applicant's immediate superior
was the Administrator of the residence, the
Reverend Jean-Maurice Bonnard, an Anglican
priest.
Religious services were conducted at the resi
dence on Sundays. It would appear that the
order and nature of the services were the Angli-
can. They were the only religious services avail
able at the residence.
In connection with those services there are
the following in the decision of the Adjudicator:
The situation is thus one in which services appear to be
accepted by the Administrator, by the parents, by all the
other Child Care Workers except the grievor, and by the
children, as part of the regular routine, which they attend as
a matter of course. The degree of compulsion involved
seems to be that attendance on the part of the children at
least is expected unless a request for formal exemption from
the attendance at service is made, and presumably such
requests would be made by the parents in the case of
younger children, or by the child himself in the case of older
children such as teenagers.
and
Fr. Bonnard stated that if any one objected to the services
the policy would immediately be changed in order to con
form with parental wishes.
The applicant informed Fr. Bonnard that he
could not oblige students to attend services as it
was contrary to his conscience. Fr. Bonnard
insisted that it was the applicant's duty to bring
students under his care to the services. Ulti
mately, the applicant informed Fr. Bonnard that
he would not modify his position in any way.
A letter dated November 10, 1972 from A.
Blouin, District Superintendent, Indian and
Eskimo Affairs, Pointe -Bleue District, to the
applicant contains:
As your supervisor and the resident administrator have
reported that you have failed at many occasions, to carry
out duties, which were part of your job, we advise you that
your appointment in your present position, will terminate on
Dqcember 11, 1972.
The following are extracts from the "Memo-
randum of the points to be argued by the
applicant":
By reason of the residences for Indian students (and La
Tuque in particular) becoming federal governmental resi
dences, then federal governmental funds cannot be used to
push religion or religious practices upon Indian children and,
in particular, such funds cannot be used to require conformi
ty by Indian children to the practices of one particular
denomination, namely, the Anglican Church. The La Tuque
residence is a federal government residence and no longer
an Anglican institution. Consequently, the requirement of
Chapel attendance at an Anglican service is unlawful; the
requirement that Fardella bring all his children there, is
unlawful; and the refusal to obey an unlawful order cannot
therefore be grounds for dismissal.
and
The applicant stated that he would attempt to persuade
the boys to attend but would not oblige or require them to
attend on a compulsory basis. He was ordered so to do and
was dismissed for refusal to obey this order. This was both
an infringement on the freedom of religion of the boys in the
care of the Applicant and also contrary to the conscience
and belief of the Applicant which was a belief justly and
properly held and communicated to the Administrator. The
Applicant should not be compelled to carry out an order
which he conscientiously believed to infringe on his own
beliefs as to everyone's freedom of religion in Canada and
which he conscientiously believed to infringe on the free
dom of religion of the Indian resident boys and which in fact
so infringed.
The applicant's counsel referred to section 1
of the Canadian Bill of Rights.
1. It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without dis
crimination by reason of race, national origin, colour, reli
gion or sex, the following human rights and fundamental
freedoms, namely,
(c) freedom of religion;
It is a commonplace that the right of everyone
in this nation to freedom of religion is part of
this nation's law.
In Saumur v. City of Quebec ([1953] 2 S.C.R.,
299 at p. 327), Rand J. put it this way:
From 1760, therefore, to the present moment religious free
dom has, in our legal system, been recognized as a principle
of fundamental character: and although we have nothing in
the nature of an established church, that the untrammelled
affirmations of religious belief and its propagation, personal
or institutional, remain as of the greatest constitutional
significance throughout the Dominion is unquestionable.
In Robertson and Rosetanni v. The Queen
([1963] S.C.R. 651) Ritchie J. delivering the
judgment of Taschereau, Fauteux, Abbott and
Ritchie JJ. referred to "the following observa
tions of Taschereau J., as he then was, speaking
for himself and Kerwin C.J. and Estey J., in
Chaput v. Romain":
All religions are on an equal footing, and Catholics as well
as Protestants, Jews, and other adherents to various reli
gious denominations, enjoy the most complete liberty of
thought. The conscience of each is a personal matter and the
concern of nobody else.
However the caution of Ritchie J. in Robert-
son and Rosetanni is to be borne in mind
namely:
It is to be remembered that the human rights and funda
mental freedoms recognized by the Courts of Canada before
the enactment of the Canadian Bill of Rights and guaranteed
by that statute were the rights and freedoms of men living
together in an organized society subject to a rational, devel
oped and civilized system of law which imposed limitations
on the absolute liberty of the individual.
In the same case Ritchie J. also said:
Although there are many differences between the consti
tution of this country and that of the United States of
America, I would adopt the following sentences from the
dissenting judgment of Frankfurter J. in Board of Education
v. Barnette 2 , as directly applicable to the "freedom of reli
gion" existing in this country both before and after the
enactment of the Canadian Bill of Rights.
The constitutional protection of religious freedom ter
minated disabilities, it did not create new privileges. It
gave religious equality, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma.
Freedom of religion is a part of the mores of
this nation. It is a vital and cherished ingredient
of our culture. However its concept and its
actuality would be ill-served without an under
standing of its meaning and its range.
It is against that background, so briefly
sketched, that this case falls for decision.
2 (1943) 319 U.S. 624 at 653.
As I understand the main submissions of
counsel for the applicant related to the Canadi-
an Bill of Rights, as developed in oral argument,
they may be summarized as follows:
1. If an employee conscientiously believes
that an order of his employer abrogates,
abridges or infringes upon the freedom of reli
gion of himself or of another he may, with
impunity, refuse to carry out that order and
without being subject to discharge from his
employment because of such refusal.
2. It is unlawful to conduct or cause to be
conducted or permit to be conducted in any
Canadian Government institution a religious ser
vice conforming exclusively with the beliefs and
practices of one religious denomination without,
at least, also providing religious services in con
formity with the beliefs and practices of the
religion or religions of all in that institution who
are of a different religious persuasion.
3. It is unlawful to issue an order to an
employee working in a Canadian Government
institution directing that employee to require
others to attend a religious service and if such
an order is given it may be refused with
impunity.
Those submissions will be referred to by their
respective numbers above.
1. In my opinion if an employer's order to an
employee does abrogate, abridge or infringe
upon the religious freedom of the employee or
of another within the meaning of "freedom of
religion" in the Canadian Bill of Rights the
order would be unlawful and the employee
could, with impunity, refuse to obey it. Such a
refusal would not be a valid ground for dis
charging the employee from his employment.
That, of course, is something quite different
from counsel's submission.
The determining factor is not what the
employee believes, however conscientiously,
freedom of religion to be. The determining
factor is what freedom of religion indeed is
within the meaning of the Canadian Bill of
Rights. Otherwise an employee could, and based
solely on his own belief, make unilateral deci-
sions which would be binding on his employer.
If it were left to each individual to decide for
himself what freedom of religion is there could
be so many points of view that the result could
be chaos. In such resulting chaos the existence
of freedom of religion could be threatened. It
might even be destroyed.
It must have been the intention of Parliament
that the "freedom of religion" guaranteed by the
Canadian Bill of Rights is to be untramelled and
unfettered, that it is not to be confined by rigid
rules, that in concept it is to be sufficiently
flexible so that all will benefit from it and that
to achieve those ends it is to be construed
broadly. However it must also have been
intended that its interpretation be orderly. Its
interpretation could not be orderly if each
individual were to be his own interpreter.
If an employee refuses to follow his employ
er's order because he believes it contravenes the
Fight to freedom of religion and if the employee
is correct in that belief the order, being then
unlawful, is not enforceable. If the employee
refuses to comply with it he may then do so
with impunity. If the employee is not correct in
that belief and refuses to obey it he runs the risk
of the result of disobedience of an employer's
order properly given.
2. If it were unlawful to conduct the religious
service at the residence under the circumstances
here then, in my opinion, the order that the
applicant bring children to the service would
have been unlawful and the applicant would
have been entitled to refuse to comply with it.
To support his argument that it was unlawful
to hold the service the applicant's counsel
referred to Robertson and Rosetanni v. The
Queen (supra) and The Queen v. Drybones
[1970] S.C.R. 282.
Certainly Robertson and Rosetanni makes it
clear beyond per, adventure that everyone is free
to practice his own religion and to worship if he
wishes and as he wishes. It is made clear, too,
that no person is required or obliged in any way
to follow or practice or to worship in accord
ance with another's religion. To this all are
entitled by right and not only by grace.
On the other hand as I read Robertson and
Rosetanni there is no finding in it that it is
unlawful for a religious service exclusive to one
religious denomination to be held in a Canadian
Government institution or for it to be financed
with public funds.
If Parliament wishes to extend "freedom of
religion" to areas beyond those which it now
occupies it is for Parliament to do it.
Although Robertson and Rosetanni is referred
to in Drybones the issue in Drybones was the
right of the individual to equality before the law
within the meaning of the Canadian Bill of
Rights.
3. Every case must, of course, be decided in
accordance with the applicable law. Each case
of the same nature as this is to be decided on its
own facts.
From the available material it appears that
there was something in the nature of evidence
that it was the wish of the parents of most
children in residence that there be the religious
service which was conducted and that the chil
dren attend that service.
There is also the factor that the residence had
previously been a project of the Anglican
Church and that Anglican religious services
were conducted there. It would seem probable
that parents of children in residence would
know that and would know that an Anglican
Church service was still being conducted there.
The applicant did not object to attending the
service. He had attended willingly and
participated.
There is the evidence of Fr. Bonnard to the
effect that if any one objected to the services
the policy would immediately be changed in
order to conform with parental wishes.
Quoting from the adjudicator's decision:
There is no evidence to show any objections on religious
grounds by either the students concerned or their parents.
and
In the case of the seniors, for example, I would be inclined
to think that perhaps it is the desires of the parents which
would be taken into account as providing a better criterion
than the desires of the child. It seems to me that should any
parent indicate the desire that a child not receive religious
instruction or not attend religious services, then that desire
should certainly be respected. If such a desire were not
respected, then I think a violation of the Bill of Rights would
have taken place. However, there is no evidence of any such
situation in the present case.
and
There is no evidence of any request for exemption from
attendance by any parent, and there is evidence that any
such request would be honoured.
On the situation as disclosed in the material
made available on this application it is my opin
ion that the adjudicator was not in error in the
result when he concluded that the applicant was
" ... in error in trying to characterise the orders
received as a violation of his rights to religious
liberty or the rights of the children under his
control, under the Canadian Bill of Rights".
I would dismiss the application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.