Morin V Prince Edward Island Regional Administrative Unit No 3 School Board

Case Name:

  Morin v. Prince Edward Island Regional Administrative Unit No.

3 School Board

Between Richard W.O. Morin, appellant, and

Board of Trustees of Regional Administration Unit #3, respondent

[2002] P.E.I.J. No. 36 2002 PESCAD 9 Docket: AD-0856

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.

(265 paras.)

       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.

Cases cited:

Boring v. Buncombe County Board of Educational et al (1998), 136 F. 3d 364 (USA).

Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 (S.C.C.).

Crawford v. Cashin, [1999] P.E.I.J. No. 91 (Quicklaw) (P.E.I.S.C.T.D.).

Danson v. Ontario (A.G.), [1990] 2 S.C.R. 1086 (S.C.C.).

Dormuth v. Unetreiner, [1964] S.C.R. 122 (S.C.C.).

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.).

Fordv. Quebec (Attorney General), [1988] 2 S.C.R. 712 (SCC).

Godbout v. Longueuil (City), [1997], 3 S.C.R. 844 (S.C.C.).

Hodgkinson v. Simms [1994] 3 S.C.R. 377 (S.C.C.).

Housen v. Nikolaison, [2002] S.C.J. No. 31, 2002 SCC 33.

Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.).

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (S.C.C.).

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.).

NoyeEnterprises Inc. v. Grady (1999), 172 Nfld. & P.E.I.R. 80 (P.E.I.S.C.-A.D.).

Palmer v. R., [1980] 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., [1985] 1 S.C.R. 295 (S.C.C.).

R. v. Guignard, [2002] S.C.J. No. 16, 2002 SCC 14 (SCC).

R. v. Keegstra, [1990] 3 S.C.R. 697 (SCC).

R. v. Keegstra, [1990] 3 S.C.R. 295 (S.C.C.).

R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.).

R. v. Stolar, [1988] 1 S.C.R. 480 at 486 (S.C.C.).

R. v. Zundel, [1992] 2 S.C.R. 731 (S.C.C.).

Re: Sullivan (2000), 193 Nfld. & P.E.I.R. 190  (P.E.I.S.C.-A.D.)

Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (SCC).

Ross v. New Brunswick School District No. 15, [1996] 1S.C.R. 825 (S.C.C.), [1996] S.C.J. No. 40.

Rossv. New Brunswick School District No. 15, [1996] 1 S.C.R. 40 (S.C.C.).

RWDSU v. Dolphin Delivery Ltd., [1986] 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, [1994] 1 S.C.R. 377 (S.C.C.).

Varette v. Sainsbury, [1928] 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 [1995] 2 S.C.R. 407.

Walker v. Prince Edward Island, [1995] 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.).

Text cited:

Sopinka and Gelowitz: The Conduct of an Appeal 2nd ed. (Butterworths).

Articles cited:

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.

Counsel:

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.

       WEBBER J.A.:—

BACKGROUND

¶ 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 ([1999] P.E.I.J. No. 76, [1999] 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

(4)defamation.

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:

[9]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, 1987.

[10]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, 1988.

[11]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.

[12]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.

[13]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.

[14]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.

[15]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.

[16]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.

[17]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.

[18]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.

[19]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.

[20]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.

[21]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.

[22]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.

[23]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".

[24]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.

[25]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.

[26]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.

[27]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

opinion.

He was requested to withdraw the assignment. In my opinion, his professional freedom was not compromised.

[28]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.

[29]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.

[30]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".

[31]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.

[32]The Principal reported the events of April 11 as he had assessed them, and responded to questions.

[33]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 following decision:

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.'

[34]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 meeting.

[35]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.'

[36]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.

DISPOSITION

¶ 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 Charter.

¶ 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), [1988] 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., [1986] 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), [1989] 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., [1985] 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, [1953] 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 performing.

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 Quebec Charter.

¶ 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.), [1990] 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 the Charter.

¶ 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 adopted. ...

¶ 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 expression.

¶ 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, [1990] 3 S.C.R. 697, contained the following factual background at p.713:

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 Bench.

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 individual.'

¶ 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, [1991] 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.

3.Conclusion

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 Charter.

...

¶ 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 pp.174-175:

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 forum. ...

¶ 47      In the Supreme Court's recent decision of R. v. Guignard, [2002] 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 s.2(b) right.

¶ 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:

[32]... 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 film.

¶ 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 ([1995] 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 democratic society.

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:

[1]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).

[2]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 classroom:

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.

[3]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 in teachers.

¶ 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, [1996] 1 S.C.R. 825, [1996] 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 meeting:

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 expression.

Purpose

¶ 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 the students.

...

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 withdrawn.

...

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 concerns seriously.

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, Tab 22]

¶ 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 exceptional privilege.

¶ 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.

Effect

¶ 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 threatened.

¶ 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 School Board.

SECTION 7

¶ 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.

WRONGFUL DISMISSAL

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 [1995] 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:

[35]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.

DEFAMATION

¶ 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., [1980] 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, [1964] 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 result.

¶ 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.

DAMAGES

¶ 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 Freedoms;

(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.

COSTS

¶ 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.

Webber J.A.Concurred in by:CARRUTHERS J.A.

       McQUAID J.A.:--

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 and drama.

¶ 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 Shakespeare.

¶ 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. S-2.

¶ 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. 200.

¶ 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 strike.

¶ 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 - '88.

(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.

DISPOSITION

¶ 177      I would dismiss the motion to adduce fresh evidence and I would also dismiss the appeal.

ANALYSIS

(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 the appellant.

¶ 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 stated:

[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, [1928] S.C.R. 72 (S.C.C.), and Dormuth v. Unetreiner, [1964] S.C.R. 122 (S.C.C.).

¶ 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., [1980] 1 S.C.R. 759, at 775 (S.C.C.) and later confirmed in  R. v. Stolar, [1988] 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 cases.

(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 result.

¶ 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.), [1990] 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, [1999] 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.

(iii) Jurisdiction

¶ 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 as follows:

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 follows:

(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 issue.

¶ 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:

       FUNDAMENTAL FREEDOMS.

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), [1989] 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 follows:

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 democratic society.

¶ 216      In Ford v. Quebec (Attorney - General), [1988] 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., [1984] 2 S.C.R. 145 (S.C.C.) and R. v. Big M Drug Mart Ltd., [1985] 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, [1986] 1 S.C.R. 103 (S.C.C.).

¶ 217      In Irwin Toy Ltd. v. Quebec (Attorney - General), [1989] 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, [1990] 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, [1996] 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, [1992] 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 speech.

¶ 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 other subject.

¶ 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 speech.

¶ 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 conveyed.

¶ 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. 35.

¶ 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. said:

In Hunter v. Southam Inc. (1984), 11 D.L.R. (4th) 641, 14 C.C.C. (3d) 97, [1984] 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, [1985] 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 emphasis).

¶ 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, [1995] 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 the classroom.

¶ 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 expression.

¶ 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, [1990] 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 of expression.

¶ 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, [1990] 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), [1997] 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 finding...

¶ 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, [1994] 1 S.C.R. 114; Hodgkinson v. Simms, [1994] 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 intervene.

¶ 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.

McQUAID J.A.

QL Update:  20020506cp/e/qltlm/qlrcr