Mr. Azmi Jubran vs

Azmi Jubran, appellant (respondent), and
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Appeal by Jubran from a decision that set aside an order of the British Columbia Human Rights Commission.Jubran was not a homosexual.He was repeatedly subjected to insults and harassment of a homophobic nature during the five years he was in high school.Before he graduated he complained to the Commission.The Human Rights Tribunal concluded that Jubran was discriminated against on the basis of sexual orientation.It found it was irrelevant what his sexual orientation was or that his harassers believed he was homosexual.He was subjected to a course of conduct that constituted harassment on a prohibited ground of discrimination, which was sexual orientation.The respondent Board of School Trustees was responsible for the discrimination as it failed to provide an educational environment that was free from discriminatory harassment.The School Board did not respond effectively to the discriminatory conduct.The school staff pursued a disciplinary approach that was not effective and lacked resources to deal with the issues of harassment and discrimination.The judge decided that Jubran was not a victim of discrimination pursuant to section 8 of the Human Rights Code because of his sexual orientation because he was not homosexual and the students who attacked him did not believe he was a homosexual.
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Jubran established that he was discriminated against.
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, 2 Azmi Jubran, who does not identify himself as homosexual, was repeatedly subject to insults and harassment of a homophobic nature during the five years he spent in high school.Before he graduated, he complained to the B.C. Human Rights Commission.The Human Rights Tribunal, in concluding that Mr. Jubran was discriminated against on the basis of sexual orientation, found that it was irrelevant whether or not he was homosexual or his harassers believed that he was homosexual.The Tribunal found Mr. Jubran was subjected to a course of conduct that constituted harassment on a prohibited ground of discrimination, sexual orientation; and the Board of School Trustees, School District No. 44 (North Vancouver) (the "School Board") was responsible for the discrimination as it had failed to provide an educational environment free from discriminatory harassment. (The Tribunal's reasons for decision may be found at [2002] B.C.H.R.T.D.No. 10, 2002 BCHRT 10.)
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In this case, I will apply the common law standards of review to the decisions of the chambers judge on the question of the interpretation of s. 8 of the Code and of the Tribunal that Mr. Jubran had proved prima facie discrimination and the School Board was liable (noting that it appears that there is little difference in the standards to be applied at common law and under the Act in any event).

Background

, 8 To appreciate the interpretation issue raised in this case and the basis for the School Board's liability, it is necessary to outline the background in some detail.

, 9 Mr. Jubran filed his complaint with the Human Rights Commission on June 19, 1996 when he was in grade 10.He alleged that the School Board discriminated against him on the basis of sexual orientation regarding an accommodation, service or facility customarily available to the public, contrary to s. 8 of the Code.
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, 10 Over the course of the five years (1993-1998) that Mr. Jubran attended Handsworth Secondary School in North Vancouver ("Handsworth") he was repeatedly taunted with homophobic epithets and was physically assaulted, including being spit upon, kicked and punched by other students.The School Board did not dispute that Mr. Jubran was verbally and physically abused.

, 11 The harassment of Mr. Jubran started in 1993, when he was 13 years old and in grade eight.He was called names such as "homo", "faggot" and "gay" by some of his classmates.He told the students that he was not a homosexual and asked them to stop calling him names.The name calling was sometimes accompanied by pushing and shoving in gym class and in the hallways.Mr. Jubran was on one occasion hit in the eye by a paper projectile while in science class, causing a small abrasion, although he admitted that this could have been accidental.

, 12 In grade nine the name-calling, hitting, punching and spitting incidents continued.On one occasion a student in a woodworking class threw nails, wood and screws at Mr. Jubran and another student shouted "Azmi is gay".In one band class all the students began chanting "Azmi is gay" when the teacher was not in the classroom.On another occasion during grade nine a pizza was delivered to the Jubrans' home that they had not ordered.It was later determined that students from Handsworth were involved.

, 13 In grade 10 Maryann Macario, one of Mr. Jubran's teachers, heard a student loudly shout out to Mr. Jubran something along the lines of "faggot" or "gay".
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Later that school year in a woodworking class, Mr. Jubran hit another student in the face, seriously injuring him.Mr. Jubran testified at the Tribunal that he hit the student because he heard him call him gay.Mr. Jubran testified that he was so angry and frustrated at being repeatedly called gay that he lost control.Mr. Jubran was suspended for assaulting the student and was also criminally charged.

, 14 The administration at Handsworth documented over 12 incidents of harassment reported by Mr. Jubran during his grade-11 year.These incidents, which occurred both inside and outside the school, consisted of Mr. Jubran being called names such as "faggot", "queer", "gay" and "homo", Mr. Jubran being pushed, shoved and having things thrown at him.In one incident Mr. Jubran intercepted a note being sent around class depicting him holding hands with another male student.

, 15 In his grade-12 year Mr. Jubran reported five incidents of harassment.In one incident in gym class, a coin sized hole was burned into Mr. Jubran's shirt by a lighter, without actually burning his body.In another incident someone urinated on Mr. Jubran's tent at 1 a.m. during a school camping trip.Mr. Jubran testified that he heard two boys outside the tent talking about how "choked up" another student (who had been suspended in the shirt burning incident) was that he was not able to go on the camping trip.The two boys then talked about how funny it would be to dip Mr. Jubran in acid.

, 16 In October 1997, during Mr. Jubran's grade-12 year, a physical education teacher reported to the school principal an incident in which students had thrown nails and grapes at Mr. Jubran and had sent him a note that used the word "gay" during a school Halloween project.In May 1998 Mr. Jubran reported that someone had shouted "Azmi is gay" from an open window into the courtyard of the school were he was sitting.

The Response of the Administration

, 17 The School Administration first became aware of the harassment of Mr. Jubran after the pizza incident in the fall of 1994, when Mr. Jubran was in grade nine.From that time until he graduated, the principal, vice-principal and other school staff were actively involved in investigating incidents of harassment reported to them by Mr. Jubran and disciplining the students involved.

, 18 After the pizza incident, the principal and vice-principal met with Mr. Jubran, his parents and uncle on more than one occasion to discuss the harassment of Mr. Jubran.The administrators encouraged Mr. Jubran to report all incidents of harassment to them and asked Mr. Jubran's teachers if they had witnessed any harassing behaviour in their classrooms.They investigated reported incidents and when offending students were identified, took disciplinary measures.These included discussing with the offending students the inappropriateness of their behaviour and warning them of escalating consequences including detentions, notification of parents or police, suspensions and possibly expulsions if they repeated their behaviour.There was evidence before the Tribunal that one detention and two suspensions were imposed.One of the students who received a suspension was later expelled from the school, but not only because of his conduct towards Mr. Jubran.

, 19 The evidence was that most of the students who were disciplined did not re-offend, but that other students became involved and called Mr. Jubran homophobic (and other) names that had not been used before.The school principal agreed during his testimony before the Tribunal that although the strategy of progressive discipline had not been effective in stopping the harassment, the school did not change that strategy.

Homosexuality and Perceived Homosexuality

, 20 Mr. Jubran told the students at Handsworth, beginning in grade eight, that he was not homosexual.The evidence of several of Mr. Jubran's classmates

Azmi Jubran, appellant (respondent), and
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Appeal by Jubran from a decision that set aside an order of the British Columbia Human Rights Commission.Jubran was not a homosexual.He was repeatedly subjected to insults and harassment of a homophobic nature during the five years he was in high school.Before he graduated he complained to the Commission.The Human Rights Tribunal concluded that Jubran was discriminated against on the basis of sexual orientation.It found it was irrelevant what his sexual orientation was or that his harassers believed he was homosexual.He was subjected to a course of conduct that constituted harassment on a prohibited ground of discrimination, which was sexual orientation.The respondent Board of School Trustees was responsible for the discrimination as it failed to provide an educational environment that was free from discriminatory harassment.The School Board did not respond effectively to the discriminatory conduct.The school staff pursued a disciplinary approach that was not effective and lacked resources to deal with the issues of harassment and discrimination.The judge decided that Jubran was not a victim of discrimination pursuant to section 8 of the Human Rights Code because of his sexual orientation because he was not homosexual and the students who attacked him did not believe he was a homosexual.
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Jubran established that he was discriminated against.
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, 2 Azmi Jubran, who does not identify himself as homosexual, was repeatedly subject to insults and harassment of a homophobic nature during the five years he spent in high school.Before he graduated, he complained to the B.C. Human Rights Commission.The Human Rights Tribunal, in concluding that Mr. Jubran was discriminated against on the basis of sexual orientation, found that it was irrelevant whether or not he was homosexual or his harassers believed that he was homosexual.The Tribunal found Mr. Jubran was subjected to a course of conduct that constituted harassment on a prohibited ground of discrimination, sexual orientation; and the Board of School Trustees, School District No. 44 (North Vancouver) (the "School Board") was responsible for the discrimination as it had failed to provide an educational environment free from discriminatory harassment. (The Tribunal's reasons for decision may be found at [2002] B.C.H.R.T.D.No. 10, 2002 BCHRT 10.)
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In this case, I will apply the common law standards of review to the decisions of the chambers judge on the question of the interpretation of s. 8 of the Code and of the Tribunal that Mr. Jubran had proved prima facie discrimination and the School Board was liable (noting that it appears that there is little difference in the standards to be applied at common law and under the Act in any event).

Background

, 8 To appreciate the interpretation issue raised in this case and the basis for the School Board's liability, it is necessary to outline the background in some detail.

, 9 Mr. Jubran filed his complaint with the Human Rights Commission on June 19, 1996 when he was in grade 10.He alleged that the School Board discriminated against him on the basis of sexual orientation regarding an accommodation, service or facility customarily available to the public, contrary to s. 8 of the Code.
...
, 10 Over the course of the five years (1993-1998) that Mr. Jubran attended Handsworth Secondary School in North Vancouver ("Handsworth") he was repeatedly taunted with homophobic epithets and was physically assaulted, including being spit upon, kicked and punched by other students.The School Board did not dispute that Mr. Jubran was verbally and physically abused.

, 11 The harassment of Mr. Jubran started in 1993, when he was 13 years old and in grade eight.He was called names such as "homo", "faggot" and "gay" by some of his classmates.He told the students that he was not a homosexual and asked them to stop calling him names.The name calling was sometimes accompanied by pushing and shoving in gym class and in the hallways.Mr. Jubran was on one occasion hit in the eye by a paper projectile while in science class, causing a small abrasion, although he admitted that this could have been accidental.

, 12 In grade nine the name-calling, hitting, punching and spitting incidents continued.On one occasion a student in a woodworking class threw nails, wood and screws at Mr. Jubran and another student shouted "Azmi is gay".In one band class all the students began chanting "Azmi is gay" when the teacher was not in the classroom.On another occasion during grade nine a pizza was delivered to the Jubrans' home that they had not ordered.It was later determined that students from Handsworth were involved.

, 13 In grade 10 Maryann Macario, one of Mr. Jubran's teachers, heard a student loudly shout out to Mr. Jubran something along the lines of "faggot" or "gay".
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Later that school year in a woodworking class, Mr. Jubran hit another student in the face, seriously injuring him.Mr. Jubran testified at the Tribunal that he hit the student because he heard him call him gay.Mr. Jubran testified that he was so angry and frustrated at being repeatedly called gay that he lost control.Mr. Jubran was suspended for assaulting the student and was also criminally charged.

, 14 The administration at Handsworth documented over 12 incidents of harassment reported by Mr. Jubran during his grade-11 year.These incidents, which occurred both inside and outside the school, consisted of Mr. Jubran being called names such as "faggot", "queer", "gay" and "homo", Mr. Jubran being pushed, shoved and having things thrown at him.In one incident Mr. Jubran intercepted a note being sent around class depicting him holding hands with another male student.

, 15 In his grade-12 year Mr. Jubran reported five incidents of harassment.In one incident in gym class, a coin sized hole was burned into Mr. Jubran's shirt by a lighter, without actually burning his body.In another incident someone urinated on Mr. Jubran's tent at 1 a.m. during a school camping trip.Mr. Jubran testified that he heard two boys outside the tent talking about how "choked up" another student (who had been suspended in the shirt burning incident) was that he was not able to go on the camping trip.The two boys then talked about how funny it would be to dip Mr. Jubran in acid.

, 16 In October 1997, during Mr. Jubran's grade-12 year, a physical education teacher reported to the school principal an incident in which students had thrown nails and grapes at Mr. Jubran and had sent him a note that used the word "gay" during a school Halloween project.In May 1998 Mr. Jubran reported that someone had shouted "Azmi is gay" from an open window into the courtyard of the school were he was sitting.

The Response of the Administration

, 17 The School Administration first became aware of the harassment of Mr. Jubran after the pizza incident in the fall of 1994, when Mr. Jubran was in grade nine.From that time until he graduated, the principal, vice-principal and other school staff were actively involved in investigating incidents of harassment reported to them by Mr. Jubran and disciplining the students involved.

, 18 After the pizza incident, the principal and vice-principal met with Mr. Jubran, his parents and uncle on more than one occasion to discuss the harassment of Mr. Jubran.The administrators encouraged Mr. Jubran to report all incidents of harassment to them and asked Mr. Jubran's teachers if they had witnessed any harassing behaviour in their classrooms.They investigated reported incidents and when offending students were identified, took disciplinary measures.These included discussing with the offending students the inappropriateness of their behaviour and warning them of escalating consequences including detentions, notification of parents or police, suspensions and possibly expulsions if they repeated their behaviour.There was evidence before the Tribunal that one detention and two suspensions were imposed.One of the students who received a suspension was later expelled from the school, but not only because of his conduct towards Mr. Jubran.

, 19 The evidence was that most of the students who were disciplined did not re-offend, but that other students became involved and called Mr. Jubran homophobic (and other) names that had not been used before.The school principal agreed during his testimony before the Tribunal that although the strategy of progressive discipline had not been effective in stopping the harassment, the school did not change that strategy.

Homosexuality and Perceived Homosexuality

, 20 Mr. Jubran told the students at Handsworth, beginning in grade eight, that he was not homosexual.The evidence of several of Mr. Jubran's classmates was that, when

What do Rosa Parks and Azmi Jubran have in common?
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Azmi Jubran was a student at Handsworth Secondary School in North Vancouver from 1993 until 1998.During that time he endured constant taunting, slurs and even physical assaults.While Jubran isn't gay, some students made his life miserable by taunting him with comments such as "homo" and "faggot".

On June 19, 1996, Jubran began his legal fight by filing a complaint with the B.C. Human Rights Commission against the North Vancouver School Board, saying they discriminated against him by allowing the harassment to take place.That process alone took years, with a ruling in his favour in April, 2002.The school board was acknowledged for trying to take appropriate action, but the human rights adjudicator said it wasn't enough and the school board allowed a discriminatory educational environment to take place.They were ordered to put an end to the any further harassing actions and to pay Mr. Jubran $4,000.

But that was just the first step.The school board appealed and won at the B.C. Supreme Court.On January 2, 2003, Justice Stewart overturned the decision saying that since Mr. Jubran wasn't homosexual and the students taunting him really didn't think he was homosexual, he should not be given protection based on sexual orientation as per the Code.Hence, there was no real (that is, legal) discrimination.

But Mr. Jubran and the Human Rights Tribunal appealed to the B.C. Court of Appeal and the decision turned again, this time ruling in favour of Mr. Jubran and against the School Board.Instead of reading human rights legislation narrowly, the judges on the court of appeal said it should always be interpreted broadly.It didn't matter that Jubran was not gay.His rights were denied and the school board is liable for allowing this harassment to have taken place without proper action.

The School Board appealed to Canada's top court.However, when the Supreme Court of Canada announced last week that they had refused to hear the appeal, Mr. Jubran's victory prevailed.It was a long and drawn out process, which ended 12 years after the first taunts began.

Azmi Jubran is now 25 years old, with a better understanding of the legal process than most people.For employers, his case told us that liability continues to expand and therefore every supervisor and employer must do everything possible to ensure they have a harassment-free and discrimination-free workplace.For Canadians generally, this case lets us know that human rights legislation is not going to be won or lost on technicalities.Regardless of a person's sexual orientation, taunts and slurs will not be tolerated.This rationale should apply to all categories in which we find human rights protection.

I'm sure that Azmi Jubran did not want to stand out and reveal all the horrible things that happened to him.I'm guessing he just wanted to go to school without knots in his stomach.Instead, due to improper attention by his school, he became a reluctant hero for all those who want to stand up to bullies and those who allow the bullying to take place.

Both Rosa Parks and Azmi Jubran stood up to injustices for which they paid a price.

It’s astounding, says gay educator Steve LeBel, talking about the BC Supreme Court’s recent ruling in Azmi Jubran vs the North Vancouver school board.
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Last year, BC’s human rights tribunal held the board responsible for failing to stop years of homophobic attacks against Jubran while he was a student at Handsworth high school.
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But, Stewart says, Jubran is not entitled to protection under BC’s human rights act because he is not gay and his attackers claim they didn’t see him as gay.
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This was more than just general bullying, concurs Jubran, exhausted after his long nightmare. “I was specifically called gay, faggot, queer, homo.†And on at least one occasion, the kids specifically referred to their attacks as gay-bashing, Jubran adds.

The fact that Jubran’s attackers later told the tribunal they never really believed that Jubran was gay, is no excuse, Fisher says.
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That’s just one of the reasons Fisher is hoping Jubran will challenge the ruling. This is bad law, he says, pledging Egale’s support if Jubran appeals.

Jubran isn’t sure what he wants to do next.
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For Jubran, the answer comes back to holding school boards responsible for eliminating homophobia and making their schools discrimination-free.

“If schools were responsible for these acts, I almost guarantee you will not see anything like what happened to me,†he says. But until they are pressured to respond, many won’t do anything about it.

And that’s sad, he concludes. “No one deserves to have to go through [what I went through].