Homophobic Harassment by Student Breaches Code

North Vancouver School Dist. No. 44 v. Jubran (2005), 52 C.H.R.R. D/1, 2005 BCCA 201

Not being homosexual in fact, or perceived to be homosexual, is not a bar to complaining about harassment based on sexual orientation, the B.C. Court of Appeal ruled in the case of Azmi Jubran and North Vancouver School District No. 44. The Court of Appeal overturned a decision of the B.C. Supreme Court, which found that Azmi Jubran could not complain that he was discriminated against because of sexual orientation, because he was not homosexual and his harassers did not claim to believe that he was.

Although Azmi Jubran does not identify himself as being gay, throughout his high school years at Handsworth Secondary School in North Vancouver, he was called "homo", "queer", and "faggot" by other students. These terms were understood by the students to be pejorative and used as "put-downs", whether Azmi Jubran was homosexual or not. Jubran was also punched, kicked and spat upon, and his shirt was burned.

The B.C. Human Rights Tribunal accepted that Mr. Jubran was not homosexual, and that the students who engaged in homophobic taunting did not necessarily believe that he was. Nonetheless, the Tribunal found that the conduct was harassment on the basis of sexual orientation. Whether his fellow students believed Mr. Jubran was homosexual or not, they used homophobic epithets to ridicule and belittle him.

The Tribunal also determined that the Code's prohibition against discrimination in services customarily available to the public requires that students be provided with a non-discriminatory learning environment. The School District, it found, is responsible for discrimination in the learning environment, even when that discrimination is caused by student conduct. A learning environment is not discrimination-free when a student experiences persistent homophobic taunting and bullying.

The Tribunal found that school officials at Handsworth Secondary School responded to Azmi Jubran's complaints about specific incidents of harassment, particularly after he had filed a human rights complaint. But this was not, by itself, an adequate strategy for dealing with the problem in a school of 1,300 students. For Azmi Jubran the school's approach was not effective as there was always someone new to pick up the homophobic taunting.

The Tribunal ruled that the School District failed to meet the standard of the Code because it did nothing to address the issue of homophobia and homophobic harassment of students through more pro-active anti-harassment programs directed to both students and teachers.

The B.C. Supreme Court overturned this decision, finding that the Tribunal erred by ruling that discrimination had occurred despite its finding that Mr. Jubran was not homosexual and his harassers did not necessarily believe that he was. The plain words of the legislation require a finding that Mr. Jubran was discriminated against "because of his sexual orientation". In this case, although the behaviour of Mr. Jubran's fellow students was repugnant, the Court found that it was not caught by the legislation. The decision of the Tribunal was quashed.

The Court of Appeal restored the decision of the Tribunal. It considered two questions: whether Mr. Jubran was barred from complaining because he was not homosexual or perceived to be homosexual; and whether the School District is responsible where the conduct of students violates the Code.

The Court of Appeal agreed with the Tribunal, finding that Mr. Jubran's complaint fell within the ambit of the Code. The harassment was persistent, homophobic in nature, and negatively affected his high school educational experience.

It is common ground that a person who is perceived to have characteristics that are protected by human rights legislation, such as being disabled, is protected from discrimination on that account, whether he is in fact disabled or not. But in this case, requiring Mr. Jubran to show that his harassers believed him to be homosexual is akin to requiring him to prove that they intended to discriminate against him. The effect of the actions of Mr. Jubran's harassers was that he was discriminated against because of sexual orientation, whether they believed him to be homosexual or not.

It imposes an unwarranted burden on a person such as Mr. Jubran, the Court of Appeal wrote, to require him to either declare himself as a homosexual or to prove that his harassers believed him to be homosexual. The emphasis should be placed on the effects of the homophobic taunts, not on the intentions and beliefs of the harassers.

The Court of Appeal also found that the Tribunal's decision regarding the liability of the School District was sound. The Tribunal's conclusion that the School District has a responsibility to foster a discrimination-free school environment was comparable to the Supreme Court of Canada's decision inCanada (Treasury Board) v. Robichaudthat an employer has a responsibility to provide a healthy work environment

The Court of Appeal allowed the appeal, and restored the order of the Tribunal. It also awarded costs to Mr. Jubran.

One judge, Ryan J.A., wrote a dissent. In her opinion, Mr. Jubran had to show that if he were not homosexual, the harassing conduct would lead a reasonable person to conclude that he was perceived to be homosexual. She would have returned the matter to the Tribunal for reconsideration.

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