Court of Appeal File No.

Divisional Court File No. 526/18

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

BECKY MCFARLANE, in her personal capacity and as litigation guardian for L.M., and
THE CORPORATION OF THE CANADIAN CIVIL LIBERTIES ASSOCIATION

Applicants
(Moving Parties)

- and -

MINISTER OF EDUCATION (ONTARIO)

Respondent
(Responding Party)

APPLICATION UNDER Rule 14.05(2) of the Rules of Civil Procedure and

Sections 2(1) and 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1

NOTICE OF MOTION FOR LEAVE TO APPEAL

The applicants in Divisional Court File No. 526/18 – Becky McFarlane (“Ms. McFarlane”),

in her personal capacity and as litigation guardian for L.M., and the Corporation of the Canadian

Civil Liberties Association (the “Corporation”) (together, the “Applicants”) – will make a motion

to the Court of Appeal at Osgoode Hall, Toronto, Ontario on a date to be fixed by the Registrar.

PROPOSED METHOD OF HEARING: The motion is to be heard in writing, 36 days

after service of the Applicants’ motion record, factum and transcripts, if any, or on the filing of the

Applicants’ reply factum, if any, whichever is earlier.

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THE MOTION IS FOR:

(a) an order granting the Applicants leave to appeal to the Court of Appeal from the

decision of the Divisional Court dated February 28, 2019 (the “Decision”)

dismissing the application for judicial review in Divisional Court File No. 526/18

(the “Application”);

(b) an order, in any event of the cause, providing that no costs shall be awarded to or

against the Applicants in respect of the motion; and

(c) such further and other relief as counsel may request and this Court may deem just.

THE GROUNDS FOR THE MOTION ARE:

Overview

(a) This matter raises questions of significant public importance relating to the health

and physical education (“HPE”) curriculum that is currently used in public

elementary schools across Ontario, and there are strong grounds to believe that

the Divisional Court erred in law and in principle in the Decision addressing that

curriculum;

(b) in their submissions to the Divisional Court, the Applicants maintained that the

Directive (as defined below) of the Minister of Education (the “Minister”) should

be set aside because it has a disproportionate and unreasonable adverse impact on

rights and values protected under the Canadian Charter of Rights and Freedoms

(the “Charter”), discriminates against them in breach of section 1 of the Human

Rights Code, R.S.O. 1990, c. H.19 (the “Code”), and is inconsistent with, and an
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impermissible exercise of statutory power under, the Education Act, R.S.O. 1990,

c. E.2 (the “Education Act”);

The Parties

(c) Ms. McFarlane is a queer parent whose 10-year-old daughter (“L.M.”) started

Grade 6 at a public school within the Toronto District School Board in September

2018. To Ms. McFarlane’s knowledge, L.M. is the only student at her school

whose parents openly identify as queer. Ms. McFarlane brought the Application

both in her personal capacity (as L.M.’s parent) and as litigation guardian for

L.M.;

(d) the Corporation is a non-profit Canadian corporation. Its objectives are identical

to those of the Canadian Civil Liberties Association (the “CCLA”), and its

governance is closely linked to that of the CCLA;

(e) the Minister assumed office on June 29, 2018, following a general election on

June 7, 2018;

The 2015 HPE Curriculum

(f) in 2015, the Province adopted an updated HPE curriculum (the “2015 HPE

Curriculum”) for Grades 1-8 and 9-12. The 2015 HPE Curriculum was used by

Ontario school boards for the three school years starting in September 2015,

September 2016, and September 2017;

(g) the 2015 HPE Curriculum includes, among other things, three distinct but related

content strands: the “Active Living,” “Movement Competence,” and “Healthy

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Living” strands. The Healthy Living strand includes four components: (1) healthy

eating; (2) personal safety and injury prevention; (3) substance use, addictions,

and related behaviours; and (4) human development and sexual health;

(h) the 2015 HPE Curriculum – particularly the human development and sexual

health component of the Healthy Living strand – includes information about,

among other things, sexual orientation, same-sex relationships, different family

structures, and consent;

The Directive

(i) on or around August 22, 2018, the Province released an interim HPE curriculum

for Grades 1-8 (the “2018 HPE Curriculum”). The 2018 HPE Curriculum is

based on a document that was first issued by the Province in 2010;

(j) in a press release dated August 22, 2018, Premier Ford and the Minister

announced that the Province would be undertaking a consultation process for the

purpose of, among other things, developing a new HPE curriculum. In the press

release, they announced the Province’s decision (the “Directive”) to require

teachers in Ontario public schools to teach the 2018 HPE Curriculum starting in

September 2018 – instead of teaching the 2015 HPE Curriculum for Grades 1-8 –

pending the development and implementation of the new HPE curriculum;

Differences Between the 2015 HPE Curriculum and the 2018 HPE Curriculum

(k) the 2018 HPE Curriculum does not include the human development and sexual

health component of the Healthy Living strand of the 2015 HPE Curriculum. In
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place of that component, the 2018 HPE Curriculum contains “growth and

development” content from an HPE curriculum that the Province issued in 1998;

(l) with regard to, among other things, sexual orientation, same-sex relationships,

family structures, and consent, there are significant differences between the 2015

HPE Curriculum and the 2018 HPE Curriculum, particularly at the Grade 3,

Grade 6, Grade 7, and Grade 8 levels. Content relating to those issues that was

contained in the 2015 HPE Curriculum is absent from the 2018 HPE Curriculum;

(m) for example, at the Grade 6 level – in which L.M. is currently a student – the 2015

HPE Curriculum introduces the concept of consent and provides information

about the pernicious impact of stereotypes and assumptions, including in relation

to sexual orientation and different family structures (such as families with two

mothers or two fathers). By contrast, the Grade 6 level of the 2018 HPE

Curriculum does not contain any information about consent, sexual orientation, or

different family structures;

The Applicants’ Submissions to the Divisional Court

(n) in the proceeding before the Divisional Court, the Applicants did not challenge

the Province’s authority to undertake a curriculum consultation process or to

develop a new HPE curriculum;

(o) rather, the Applicants challenged the Directive – i.e., the Minister’s decision to

require that the 2018 HPE Curriculum be used in place of the 2015 HPE

Curriculum while a new HPE curriculum is being developed. The Applicants

submitted that the Directive should be set aside because it constitutes a breach of
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their rights under the Charter and the Code and also because it is impossible to

reconcile with the Province’s obligation under the Education Act to promote an

inclusive and accepting school environment;

(p) the Applicants maintained that the Directive has the following negative effects on

their protected Charter rights:

(i) the Directive has the effect of removing material relating to sexual

orientation, family status, and same-sex relationships from the curriculum.

The removal of that material discriminates against Ms. McFarlane (as a

queer parent) based on sexual orientation and family status, and against

L.M. (as the child of a queer parent) based on family status. It constitutes

a violation of Ms. McFarlane’s and L.M.’s equality rights under section

15(1) of the Charter; and

(ii) the Directive has the effect of removing material relating to the issue of

consent from the curriculum. The removal of that material has a disparate

and negative impact on women, girls, and LGBTQ+ individuals because –

based on the uncontested social science evidence that the Applicants filed

on the Application – people in those categories are disproportionately

affected by sexual assault and sexual violence. The removal of that

material infringes L.M.’s equality rights under section 15(1) of the

Charter – as a girl – and her right to security of the person under section 7

of the Charter;
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(q) the Applicants also maintained that the removal of material relating to sexual

orientation, same-sex relationships, family status, and consent violated their rights

to equal treatment in the provision of services under section 1 of the Code;

(r) further, the Applicants maintained that the removal of material relating to sexual

orientation, same-sex relationships, family status, and consent is contrary to the

Province’s mandate under the Education Act. In particular, section 169.1(1)(a.1)

of the Education Act requires school boards to “promote a positive school climate

that is inclusive and accepting of all pupils, including pupils of any … sex, sexual

orientation, … [or] family status …” Likewise, section 300.0.1 of the Education

Act provides that one purpose of Part XIII of that statute is to “encourage a

positive school climate and prevent inappropriate behaviour, including bullying,

sexual assault, gender-based violence and incidents based on homophobia,

transphobia or biphobia.” The Directive requiring the removal of the material at

issue is impossible to reconcile with that statutory mandate;

The Public Importance of the Issues

(s) the questions raised by the Application – namely, whether the Directive violates

the Applicant’s rights under the Charter, the Code, and the Education Act – are of

significant public importance across the Province;

(t) that is especially true in light of the function of a curriculum document. As

acknowledged in the evidence that the Minister filed on the Application, a

curriculum document issued by the Minister sets out the officially authorized

policy of the government with respect to the subjects addressed therein and
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therefore reflects the values and the content that the Province has decided to

promulgate through the public-school system;

(u) the Divisional Court stated in the Decision (at paragraph 57) that “[d]etermining

the level of constitutional protection in a particular elementary school curriculum

is a matter of public importance that has province-wide implications” and (at

paragraph 58) that “this case therefore raises a serious justiciable issue”;

Errors in Law and in Principle by the Divisional Court

(v) the Divisional Court erred in law and in principle by concluding that the Directive

is not subject to review under section 15(1) of the Charter. That conclusion was

erroneously based on inapplicable case law and cannot be reconciled with binding

applicable authority, as set out below:

(i) as a preliminary point, it is important to accurately characterize the

position that the Applicants advanced before the Divisional Court. The

Applicants did not submit that the 2015 HPE Curriculum is

constitutionally required. To the contrary, the Applicants expressly

acknowledged that the Minister is entitled to undertake a curriculum

consultation process and to develop a new HPE curriculum. Nor did the

Applicants submit that the Province is constitutionally required to offer

any HPE curriculum. Instead, the Applicants’ position was that – if the

Minister is going to implement an HPE curriculum – the Minister must do

so in a manner that complies with the Charter and other applicable

requirements;
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(ii) as the basis for dismissing the Applicants’ challenge and effectively

immunizing the Directive from any scrutiny under section 15(1) of the

Charter, the Divisional Court (at paragraphs 153-156) relied on this

Court’s decision in Ferrel v. Ontario (1998), 42 O.R. (3d) 97 (C.A.)

(“Ferrel”). Ferrel involved a challenge to the repeal of the Employment

Equity Act, 1993. This Court dismissed that challenge on the basis that

section 15(1) of the Charter did not oblige the government to maintain

that statute. Ferrel, however, is not applicable to the Applicants’

challenge to the Directive, because (as noted above) the Minister did not

repeal the HPE curriculum (she changed it) and the Applicants did not

submit that the 2015 HPE Curriculum or any HPE curriculum must be

maintained. The Applicants did not claim a “generalized” right “to have

equality interests advanced or to require the continuation of measures to

advance equality” (Decision, para. 155). Ferrel would be applicable to a

very different factual scenario and Charter challenge – namely, if the

Minister had decided to repeal the 2015 HPE curriculum in its entirety

without adopting any new HPE curriculum in its place, and an applicant

took the position that the decision not to offer any HPE curriculum at all

was discriminatory in breach of section 15(1);

(iii) in addition to relying on Ferrel, the Divisional Court (at paragraph 153)

accepted a paragraph from the Minister’s factum in which four other

decisions were also cited as a basis for immunizing the Directive from

scrutiny under section 15(1) of the Charter. Those four decisions,

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however, are likewise not applicable to the Applicants’ challenge to the

Directive, because they involved the repeal of a governmental program (as

in Ferrel) and/or directly engaged the use of public funds. Any decision

involving the repeal of a governmental program raises issues that are

fundamentally different from those presented in the Applicants’ challenge,

as explained above. Further, any decision involving issues of public

funding has no bearing on the Applicants’ challenge, because there was no

evidence filed on the Application in respect of the funding of the HPE

curriculum in Ontario and, in particular, no evidence suggesting that the

Directive was or could be justified, in whole or in part, by any funding-

related issues or concerns;

(iv) the Divisional Court’s decision to immunize the Directive from scrutiny

under the Charter conflicts with binding authority from the Supreme

Court of Canada to the effect that – if the state decides to act in a

particular area – the state must do so in compliance with the Charter. For

example, in Eldridge v. British Columbia (Attorney General), [1997] 3

S.C.R. 624, the Supreme Court of Canada held (at paragraph 73):

It has been suggested that s. 15(1) of the Charter does not

oblige the state to take positive actions, such as provide
services to ameliorate the symptoms of systemic or
general inequality … Whether or not this is true in all
cases, and I do not purport to decide the matter here, the
question raised in the present case is of a wholly different
order. This Court has repeatedly held that once the state
does provide a benefit, it is obliged to do so in a non-
discriminatory manner … Moreover, it has been
suggested that, in taking this sort of positive action, the
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government should not be the source of further

inequality. [Emphasis added.]

That statement – and other statements to the same effect by the Supreme

Court of Canada – are directly applicable to the Applicants’ challenge to

the Directive. Because the Province has decided to act in the area of

health and physical education by issuing a mandatory HPE curriculum, it

must do so in a non-discriminatory manner. The Decision runs counter to

the well-established principle quoted from Eldridge above and would

allow the government to make any kind of discriminatory change to any

curriculum – not just the HPE curriculum – without having to consider or

justify the adverse impact of that change on Charter-protected rights and

groups; and

(v) the Divisional Court’s conclusion that the Directive is immune from

Charter scrutiny is also contrary to the decision in Canadian Civil

Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d)

341 (C.A.), in which this Court enjoined the use of a curriculum that was

found to violate the guarantee of freedom of conscience and religion

provided for in section 2(a) of the Charter – thereby confirming that a

curriculum document is not immune from Charter scrutiny;

(w) the Divisional Court erred in law and in principle by failing to apply the legal

framework for the judicial review of administrative decisions that engage the

Charter that was established by the Supreme Court of Canada in Doré v. Barreau

du Québec, [2012] 1 S.C.R. 395, Loyola High School v. Quebec (Attorney

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General), [2015] 1 S.C.R. 613, and Law Society of British Columbia v. Trinity

Western University, 2018 SCC 32. That analysis should have been conducted,

especially in light of the Divisional Court’s acknowledgement (at paragraph 157

of the Decision) that “the omission of certain topics in the curriculum could be

said to negatively affect certain groups”;

(x) the Divisional Court erred in law and in principle by holding (at paragraph 157) –

as a further reason for dismissing the Applicants’ challenge under section 15(1) –

that the 2018 HPE Curriculum “is not substantively discriminatory” because “the

statutory context” – including the Code, the Education Act, and other provincial

policies – requires the Province to act in a non-discriminatory fashion and be

inclusive and tolerant of diversity. The Divisional Court’s reliance on the

statutory context for that purpose was in error, for the following reasons:

(i) state action that discriminates against members of groups protected under

section 15(1) of the Charter cannot be justified by virtue of other laws or

policies that mandate equal treatment. If such justification were

permissible, it would be impossible for anyone to succeed in a section

15(1) challenge – because the government could always refer to, for

example, the Code and assert that there is no discrimination. Neither the

Minister nor the Divisional Court cited any authority for the proposition

that a discriminatory act that breaches section 15(1) of the Charter can be

saved or justified by referring to other anti-discrimination laws or policies;

and
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(ii) the fact that other laws and policies mandate inclusion and equality

undermined the Minister’s position on the Application, rather than

supporting it. Those other laws and policies – including both the Code

and the Education Act – provided an additional basis for finding the

Directive to be an impermissible exercise of authority that runs counter to

the Minister’s legal obligations;

(y) the Divisional Court erred in law and principle by failing to recognize that the

HPE curriculum document issued by the Minister constitutes official government

policy with respect to the subjects it addresses. It is a statement of the values and

content authorized and sanctioned by the Province. Under the 2015 HPE

Curriculum, material relating to sexual orientation, same-sex relationships, family

status, and consent was mandatory subject matter to be covered in the public

school classroom, including the Grade 6 classroom in which L.M. is a student. As

a result of the Directive, that material is no longer part of the mandatory

curriculum under the 2018 Curriculum. The Divisional Court erred as a matter of

law and principle in failing to conclude that by converting mandatory material

that must be covered as a matter of official governmental policy into material that

may or may not be covered, depending on the discretion of individual teachers,

the Directive discriminated against the Applicants on the basis of sexual

orientation, family status, and sex, in violation of their rights under section 15(1)

of the Charter;

(z) the Divisional Court erred in law and in principle by concluding that the Directive

does not engage section 7 of the Charter. In reaching that conclusion (at
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paragraph 145), the Divisional Court relied, as it did in respect of section 15(1),

on the “statutory context” – including the Code, the Education Act, and other

provincial policies. For the reasons expressed above (at subparagraph (x)), the

Divisional Court’s reliance on the statutory context was in error;

(aa) the Divisional Court erred in law and in principle by failing to consider, as an

independent basis for setting aside the Directive, the Applicants’ claim that the

Directive contravenes section 1 of the Code. The Divisional Court stated (at

paragraph 150) that “the test for discrimination under the Charter and the Code is

the same” and then proceeded to conduct the remainder of its discrimination

analysis only in terms of section 15(1) of the Charter – without considering

section 1 of the Code. The Divisional Court erroneously decided the Applicants’

entire discrimination claim, including their claim under the Code, on the basis of

Ferrel and other decisions under section 15(1) of Charter – without considering,

among other things, whether those decisions have any application to the

Applicant’s claim under the Code;

(bb) the Divisional Court erred in law and in principle by failing to consider and

address in the Decision the part of the Applicants’ discrimination claim, under

both section 15(1) of the Charter and section 1 of the Code, that was based on

family status, which was one of the grounds expressly pleaded and argued by the

Applicants;

(cc) the Divisional Court erred in law and in principle by failing to consider and

address in the Decision, as an independent basis for setting aside the Directive,
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the Applicants’ claim that the Directive constitutes an impermissible exercise of

statutory power under the Education Act, which was one of the legal grounds

expressly pleaded and argued by the Applicants. Instead of addressing that claim,

the Divisional Court (as stated above) erroneously relied on the Education Act and

other laws and policies as a basis for concluding that the Directive is not subject

to Charter scrutiny. The Divisional Court failed to consider whether the

Directive is reasonable or permissible in light of, among other things, the

requirement under sections 169.1(1)(a.1) and 300.0.1 of the Education Act that

the Province promote equality and inclusion and refrain from discrimination;

(dd) the Divisional Court erred in law and in principle by failing to provide adequate

reasons for dismissing the Application with respect to the specific issues raised

above;

No Costs

(ee) the Applicants request, in any event of the cause, that no costs be awarded to or

against them in respect of this motion;

(ff) previously, the Applicants requested, in any event of the cause, that no costs be

awarded to or against them in respect of the Application;

(gg) Ms. McFarlane is a parent who brought the Application, and now this motion, in

the public interest, in order to protect her rights, the rights of her minor daughter,

and the rights of other Ontario residents;

(hh) the Corporation is a non-profit corporation dedicated to the protection of

constitutional and human rights in the public interest;

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(ii) the Applicants brought the Application, and now this motion, for the purpose of

addressing a legal question that is of profound importance to the public;

(jj) the Applicants have nothing to gain financially from bringing the Application or

this motion;

(kk) it is therefore appropriate not to award costs in respect of this motion;

Statutes, Rules, and Other Grounds

(ll) sections 1, 7, and 15(1) of the Charter;

(mm) section 1 of the Code;

(nn) sections 0.1, 8, 169.1, and 300.0.1 of the Education Act;

(oo) section 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43;

(pp) Rules 37, 57, and 61.03.1 of the Rules of Civil Procedure; and

(qq) such further and other grounds as counsel may advise.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

motion:

(a) the Applicants’ motion record (consisting of the materials required under Rule

61.03(2)); and

(b) such further and other material as counsel may advise and this Court may permit.
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Dated: March 14, 2019 Chernos Flaherty Svonkin LLP

220 Bay Street, Suite 700
Toronto, ON M5J 2W4

Stuart Svonkin (LSO#: 48796O)

Tel: 416.855.0404
Fax: 647.725.5440

Brendan Brammall (LSO#: 54544M)

Tel: 416.855.0415
Fax: 647.725.5440

Lawyers for the Applicants (Moving Parties)

To: Ministry of the Attorney General

Constitutional Law Branch
720 Bay Street
4th Floor
Toronto, ON M5G 1J5

Tel: 416-326-8517
Fax: 416-326-4015

S. Zachary Green (LSO#: 48066K)

Andrea Bolieiro (LSO#: 60034I)
Sara Weinrib (LSO#: 61327G)
Emily Bala (LSO#: 62458I)

Lawyers for the Respondent (Responding Party)

BECKY MCFARLANE et al. v. MINISTER OF EDUCATION (ONTARIO) Court of Appeal File No.
Divisional Court File No. 526/18
Applicants (Moving Parties) Respondent (Responding Party)

COURT OF APPEAL FOR ONTARIO

NOTICE OF MOTION FOR

LEAVE TO APPEAL

Chernos Flaherty Svonkin LLP

220 Bay Street, Suite 700
Toronto, ON M5J 2W4

Stuart Svonkin (LSO#: 48796O)

Tel: 416.855.0404
Fax: 647.725.5440

Brendan Brammall (LSO#: 54544M)

Tel: 416.855.0415
Fax: 647.725.5440

Lawyers for the Applicants (Moving Parties)