LT 1: Question 1- These Unprecedented Times

Julia Dewit, Mackenzie Hamilton, Julia Holden, Mija Macdonald, Tianna McGinn

Werklund School of Education, Calgary

EDUC 525

October 13, 2021

Introduction

In response to the government mandate of “The Mask Policy”, Bill was terminated from

his position with the John Deer School District for wearing anti-mask propaganda and publicly

tweeting his disapproval of the mask mandate. Bill is fighting the School Board for wrongful

termination under S.2(b) of the Charter that protects freedom of expression for truth seeking,

participation in social and democratic processes, and individual fulfillment that protects both

speakers and listeners. His actions and personal beliefs influenced a student to question the

legitimacy of the importance of masks. The School Board’s action to terminate Bill’s contract is

prescribed by law, as he negatively influenced the students, school, and community. The

argument being made for Bill is that there has been an infringement on Bill’s rights and freedoms

according to S.2(b) of the Charter regarding freedom of expression. Bill’s expressive activity of

tweeting and wearing anti-mask slogans clearly conveyed meaning, was non-violent in nature,

and both the purpose and effect of the limitation was to restrict expression. The argument being

made against Bill is that the School Board has a duty to maintain a positive school environment

for all students because of the position he occupies as he has significant influence over his

students, school, and community.

Argument for Bill’s Claim

The decision of the School Board to terminate Bill is not justified and can be classified as

“wrongful dismissal” (Morin v. Regional Administration Unit #3 (P.E.I.) 2002 PESCAD 9).

While at work, Bill complied with the Government of Alberta’s and the John Deer School

District’s mask mandate by wearing a non-medical mask. By doing so he protected himself and

his students against COVID-19. The statement on his mask ‘So You Think This Mask Works’, or

‘Pointless Placebo’, falls under section s. 2(b), which allows Bill to actively use his right to
freedom of expression. It is important to understand the fundamentals of section s. 2(b), freedom

of expression. The theory of freedom of expression as noted in Morin v. Regional Administration

Unit #3 (P.E.I.) 2002 PESCAD 9, is that if a “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”. Therefore, by sharing his opinions on the mask

mandate implemented by the government and the school district, clearly falls under section s.

2(b), thus does not give the right to a dismissal of Bill on the school district’s behalf.

The “wrongful dismissal” (Morin v. Regional Administration Unit #3 (P.E.I.) 2002

PESCAD 9) of Bill by the John Deer School District violates his fundamental freedoms

and is discriminatory against “all expression within the scope of s-s.2(b)” (Morin v.

Regional Administration Unit #3 (P.E.I.) 2002 PESCAD 9).

When being hired as a teacher, oftentimes a contract is signed that outlines obligations and

agreements between the teacher and the school board. Therefore, more information is needed to

inquire if the John Deer School District prohibits discussion on political views at school. If a

contract was not present, “the respondent, as a governmental authority, would have to justify

restrictions on such expression under s.1 of the Charter” (Morin v. Regional Administration Unit

#3 (P.E.I.) 2002 PESCAD 9).

Furthermore, the school board's decision to terminate Bill violates his right within section

s. 2(b) of the charter which inhibited his freedom of expression of his beliefs/opinions where he

was required to remove the tweet, he had left on his personal twitter account. This violation was
regarding the tweet made by Bill which states: “Just bought some non-medical masks as

teachers are being forced to wear them now. Can’t wait to wear them in front of my students. I

am really looking forward to teaching my students the novel 1984. Very timely”. As mentioned,

Bill accompanied this tweet with an image of the mask he planned to wear to school. This tweet

was found by the parents of one of Bill's students who sent a screenshot of the tweet to the

school which could have been avoided had the principal of the school complied with his duty of

care. The principal had a duty of care which he was obligated to fulfill. Said duties are outlined

under Section 197 of the Education Act as (e) direct the management of the school and (I)

evaluate the teachers employed in the school. Had the principal fulfilled his responsibility to do

so and noticed that Bill’s mask was inappropriate and asked Bill to change his mask, Aidan’s

parents would most likely have never felt the need to find his twitter and sent his recent tweet to

the school board. Bill complied with his duty of care to wear a mask, he did not vocalize his

opinions to students, nor did he try to persuade them into going against the mask policy;

however, Bill did exercise his right to his own expression of opinions and beliefs in a non-violent

manner to which he was dismissed from his position as a loyal and dedicated teacher.

In a case similar to Bills, Kempling v. British Columbia College of Teachers, 2005

BCCA 327, a teacher who had published articles expressing his views on homosexuality,

exercising his freedom of speech, was suspended of his teaching certificate for one month. Such

punishment was imposed upon Kempling for expressing his opinions and views on a sensitive

topic, whereas Bill made a single tweet expressing his views on the mask policy and was

promptly dismissed from his teaching position. Furthermore, it can be argued that Bill’s tweet

was “improperly characterized” in a similar manner as Kemplings political discourse and

discussion regarding homosexuality was mischaracterized, therefore infringing on their s. 2(b)

rights (Kempling v. British Columbia College of Teachers, 2005 BCCA 327).

Argument against Bill’s Claim

The main argument that supports the School Board's decision to terminate Bill under s.

2(b). is that they have the right to limit his freedom of expression as the “school board has a duty

to maintain a positive school environment for all persons served by it and it must be ever vigilant

of anything that might interfere with this duty” (Ross v. New Brunswick School District, 1996).

Bill created an environment within his classroom that allowed students to question the legitimacy

of masks and their effectiveness against COVID-19, which is against the guidelines that Alberta

requires Alberta schools to follow.

The decision of the School Board to terminate Bill is justified regardless of the

government’s decision to limit his freedom of speech under s. 2(b) because the School Board

drew directly from the Education Act prescribed by law. The limit is justifiable because there is a

pressing and substantial objective behind the limitation: the school has a duty to foster a safe

learning environment and that teacher’s must be impartial and tolerant (Ross v. New Brunswick

School District, 1996). It is also justifiable because the School Board must protect the reputation

of the school and public confidence in schools to uphold health standards set out by the

Government. Under the claimant’s Chart rights, the objective is rationally connected to the

limitation as he was resistant to changing his mask and taking down his opinionated tweet.

Additionally, if the School Board did not take disciplinary action against Bill, it would be seen as

endorsing his views on the legitimacy of masks, which could affect the School Board’s

reputation.
 Bill occupies a position of trust and confidence and has considerable influence over his

students because of being their teacher.

“Teachers are a significant part of the unofficial curriculum because of their status as

"medium." In a very significant way the transmission of prescribed "messages" (values,

beliefs, knowledge) depends on the fitness of the "medium" (the teacher).” (Ross v. New

Brunswick School District, 1996).

As Bill refused to comply with the School Board’s request to take down the tweet and

wear a mask that does not bear an anti-mask slogan, he is proving that he is not fit to be in the

position as medium. Through supporting anti-mask propaganda, Bill is not upholding the values,

beliefs and knowledge encompassed by the School Board and the Alberta Government which is

problematic for staff, students, and parents alike. Furthermore, the tweet that Bill posted on his

public forum is problematic because of the community position he occupies: “teachers do not

necessarily check their teaching hats at the school yard gate and may be perceived to be wearing

their teaching hats even off duty” (Ross v. New Brunswick School District, 1996). Teachers are

held at a higher standard in their profession when off duty, therefore, personal opinions and

actions can lead to a “poisoned” environment within the school system which provides a loss of

confidence in the teacher from parents and the community (Ross v. New Brunswick School

District, 1996).

Conclusion

In conclusion, this case presents strong arguments for both for and against Bill’s claim

pursuant to ss. 2(b). The arguments made for Bill’s claim include wrongful dismissal based on

his freedom of expression, and his fulfillment of duty of care to his students. Bill complied with
the government of Alberta’s mask mandate by wearing a non-medical mask, and the statement

on the mask falls under ss. 2(b) which allows Bill to actively use his right to freedom of

expression. Therefore, this does not give the school board the grounds for dismissal.

Additionally, Bill complied with the school board’s duty of care by wearing a mask and

following Alberta health guidelines. Thus, he should not have been penalized for expressing his

personal beliefs as he was doing so in a safe way. The arguments made against Bill’s claim

include school boards' right to terminate based on their duty to maintain and create a positive

environment for all students, and Bill’s inability to uphold the values and beliefs encompassed

by the school board. The school board was justified in dismissing Bill as he was unable to foster

a safe learning environment within the classroom through supporting anti-mask propaganda.

Additionally, Bill occupies a position of trust and confidence within the community and is not fit

to be in the position as a medium as his actions have shown he does not support the school

boards’ policies and Alberta Government Health recommendations.

References

Kempling v. British Columbia College of Teachers, 2005 BCCA 327 (CanLII),

<https://canlii.ca/t/1l029>, retrieved on 2021-10-13

Morin v. Prince Edward Island School Board, Regional Administrative Unit No 3, 2002

PESCAD 9 (CanLII), <http://canlii.ca/t/4tkj> at paras 1-115, retrieved on 2021-10-13

Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 SCR 825,

<https://canlii.ca/t/1frbr>, retrieved on 2021-10-07