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Supreme Court of Canada Declines to Review BC Court of Appeal Decision Upholding Section 92 of The School Act
November 25, 2003

The Supreme Court of Canada has dismissed an application by the BC Teachers’ Federation for leave to appeal a BC Court of Appeal decision which upheld section 92 of the School Act. Section 92 permits a school board, on the advice of a medical officer, to require an employee to undergo a medical examination and provide the results to the medical officer. If the employee fails to take the examination without a reasonable excuse, the school board has the discretion to dismiss the employee.

In this case, the school board requested that an employee, who showed symptoms of unusual behaviour, undergo a psychiatric examination. When she failed to do so, she was ultimately dismissed. The BCTF grieved the dismissal.

At the arbitration of the dismissal grievance, the BCTF argued, in part, that section 92 of the School Act was not valid because it violated the Canadian Charter of Rights and Freedoms. The arbitrator dismissed this argument. The BCTF then appealed the arbitrator’s decision to the Court of Appeal. The Court dismissed the Charter challenge, reasoning, in part, that the Charter does not protect the right to practice a profession.

On November 20, 2003, the Supreme Court of Canada dismissed an application by the BCTF for leave to appeal the Court of Appeal’s decision. In accordance with the Supreme Court’s practice, no reasons were given for the decision to dismiss the leave application.

The Supreme Court of Canada ruling confirms that section 92 of the School Act continues in force and may be relied upon by school boards in appropriate circumstances.

British Columbia Teachers’ Federation v. Vancouver School District No. 39, [2003] S.C.C.A. No. 156 (QL)
British Columbia Teachers’ Federation v. Vancouver School District No. 39, 2003 BCCA 100
British Columbia Teachers’ Federation v. Vancouver School District No. 39 (June 26, 2001), A-132/01 (Dorsey)

(click here for full text of Court of Appeal decision)