The B.C. Court of Appeal has held a school board liable for the homophobic bullying of a former North Vancouver high school student, Azmi Jubran.
The ruling restores the decision of the Human Rights Tribunal and overturns a decision of the B.C. Supreme Court, which held that a person who claims discriminatory harassment on the basis of sexual orientation must actually be homosexual or perceived by his harassers to be homosexual.
The students alleged to have harassed Mr. Jubran denied they perceived the student to be a homosexual despite their persistent and consistent homophobic taunts. Mr. Jubran also denied being a homosexual. In contrast to the B.C. Supreme Court, the Court of Appeal held that the consequences of the discriminatory behaviour, and not the subjective perceptions or beliefs of a harasser, is the determining issue to be resolved. In this case, the consequence of the harassment was discrimination on the basis of sexual orientation.
In reviewing the liability of the School Board, the Court of Appeal upheld the findings of the Tribunal that the School Board had not established a “bona fide reasonable justification” for the discriminatory conduct of its students.
It is interesting to note that although the School Board had engaged in disciplinary action in relation to the students who harassed Mr. Jubran, and had also taken extensive measures to educate staff in how to deal with the bullying, the Tribunal held (and the Court of Appeal agreed) that these efforts were an insufficient response to the discriminatory behaviour. The Court of Appeal also concluded that, although the School Board had implemented policies and procedures reasonably required to create a discrimination-free school environment after learning about the bullying behaviour, these measures were not put in place in time to provide Mr. Jubran with a harassment-free environment.