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CIVIL PROCEDURE - Injunctions - Considerations affecting grant

Friday, June 07, 2019 @ 8:39 AM  


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Appeals by parents, private schools and school board from a decision of a chambers judge refusing to grant the appellants an interim injunction staying the operation of s. 16.1 of the School Act and an interim injunction prohibiting the Minister of Education from defunding or de-accrediting their schools for non-compliance with s. 45.1. Those provisions required a principal not to delay the establishment of gay-straight alliances and not to prohibit or discourage the use of the names “gay-straight alliance” or “queer-straight alliance” in describing a voluntary student organization and required school boards to attest to compliance with these obligations or risk termination of funding or accreditation. The legislation put the choice of disclosure of a child’s attendance at a voluntary gay-straight alliance in the child’s hands, not in the control of their parents, their school or its school board. The appellants argued that the legislation infringed their rights under ss. 2 and 7 of the Charter because it interfered with their ability to educate children in accordance with their moral and religious values and interfered with their right to be informed about what sexual or ideological content their children might be exposed to, by whom, and under what circumstances. The chambers judge determined that the appellants failed to prove a degree of irreparable harm which outweighed the public good in maintaining the legislation. He held the appellants failed to demonstrate that the public benefit resulting from a suspension of the legislation outweighed the legal presumption that validly enacted legislation served the public good. The chambers judge found that there was a risk of harm to LGBTQ students in the absence of legislation and concluded that the balance of convenience militated in favour of maintaining its operation.

HELD: Appeals dismissed. The chambers judge’s findings that there was no evidence that the respondent promoted explicit materials through gay-straight alliances, that gay-straight alliances encouraged gender transitioning, or provided any medical treatment advice were supported by the evidence accepted. The Court owed deference to those findings and appellate intervention was not warranted. The weighing of the balance of convenience demonstrated no error of law, and the decision was not unreasonable, or manifestly unjust. The chambers judge did not err in declining to grant injunctive relief to prevent the respondent from taking any action to terminate funding for, or accreditation of, appellant schools for failure to attest their compliance with the School Act. While there was a public interest in the continued operation of the appellant schools, the public interest in the continued operation of the appellant schools must be balanced against the purpose of the legislation from which the appellants sought to be exempt, and the assumed benefit to the public interest arising from the legislation’s continued application. The public good presumed in protecting the safety and privacy interests of these individual children, as well as promoting an inclusive school environment generally, was extremely high. Even a temporary exemption for non-compliant appellant schools did not constitute a public interest benefit that outweighed the presumed good from the continued enforcement of s. 45. The balance of convenience militated in favour of maintaining the legislation. This was not a clear case and granting injunctive relief was susceptible temporarily to frustrate the pursuit of the common good. The evidence of the good achieved by gay-straight alliances in protecting the safety and privacy interests of individual children was more compelling than the evidence of schools’ termination of funding for non-compliance with the legislation.

P.T. v. Alberta, [2019] A.J. No. 512, Alberta Court of Appeal, J.D.B. McDonald, F.L. Schutz and D. Pentelechuk JJ.A., April 29, 2019. Digest No. TLD-June32019013