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School Act Provisions Upheld
March 6, 2003

On February 19, 2003, the BC Court of Appeal upheld sections of the School Act which authorize a school board, on the advice of the school medical officer, to require an employee to undergo a medical examination, including a psychiatric evaluation, or face dismissal.

In BC Teachers Federation v. School District No. 39 (Vancouver), a majority of the British Columbia Court of Appeal found that Sections 92(2(b) and (3) of the School Act do not infringe the Canadian Charter of Rights and Freedoms. These provisions authorize a school board, on the advice of the school medical officer, to require an employee to undergo a medical examination regarding the employee’s physical, mental or emotional health and to provide the results of the examination to the school medical officer. If the employee fails to take the examination within 14 days without reasonable excuse, the board may summarily dismiss the employee.

The case arose as a result of concerns about a teacher’s behaviour. The school board consulted with the school medical officer, then informed the teacher that she was required to undergo a psychiatric examination. When the teacher failed to attend the examination without providing any reasonable excuse, the school board terminated her employment. The BCTF grieved the dismissal and, during the arbitration proceedings, took the position that Sections 92(2)(b) and (3) of the School Act infringed the teacher’s right to “life, liberty and security of the person” under Section 7 of the Charter. In a preliminary decision, the arbitrator found that there was no breach of Section 7.

The BCTF appealed the arbitrator’s decision, arguing before the Court of Appeal that the School Act provisions violated both Sections 7 and 8 of the Charter, which protects individuals from unreasonable search and seizure.

Mr. Justice Hall, for the majority, held that Section 8 of the Charter was not applicable in the circumstances of the case, as it was not evident how a consultation with a psychiatrist could be said to be a “search” or that any “seizure” would occur.

The majority also found that the interests at stake did not come within the scope of rights protected by Section 7. Mr. Justice Hall noted that the teacher was not at risk of any penal sanction or administrative penalty. She could choose not to undertake the psychiatric examination, subject to the possibility that she would be dismissed from her employment as a consequence. He concluded that Section 7 of the Charter was not designed to encompass the right to specific employment, and therefore, was not applicable.

The dissenting judge found that Sections 92(2)(b) and (3) of the School Act violate both Sections 7 and 8 of the Charter, and would have remitted the matter to the arbitrator to consider justification under Section 1 of the Charter.

 

(click here for full text of the judgment)