The British Columbia Supreme Court courthouse in Vancouver in a file photo. Don MacKinnon/AFP via Getty Images
Lawyers representing a former high school teacher who was dismissed for his comments on residential schools have filed a petition for judicial review in the Supreme Court of British Columbia.
The petition asks the court to review a Labour Relations Board decision upholding the union’s refusal to challenge teacher Jim McMurtry’s dismissal, arguing that the board failed to consider his Charter right to freedom of expression.
McMurtry had taught at British Columbia public schools for nearly 30 years, and had never been the subject of any disciplinary action, until he worked as a substitute teacher for a Grade 12 calculus class in an Abbotsford school on May 31, 2021.
Following a school announcement that day about the reported discovery of unmarked graves at the former Kamloops Indian Residential School, McMurtry led a class discussion in which he questioned the historical record surrounding the schools and whether the term “mass murder” was appropriate, given that the investigation had not been completed, according to the Justice Centre for Constitutional Freedoms (JCCF), which is funding his legal challenge.
McMurtry also spoke about other historical causes of death among students in residential schools such as disease, fire, accidents, and neglect, according to the petition. He agreed with the students that forced cultural assimilation happened at such schools, and that it was a crime.
School administrators removed McMurtry from the classroom the same day. He was suspended the following day, and was terminated for cause in February 2023.
The petition says that employers also alleged that McMurtry committed other acts of misconduct such as failing to follow COVID-19 safety protocols, making a disrespectful comment to the school principal, and making other inappropriate comments. McMurtry disputes those allegations.
The British Columbia Teachers’ Federation decided not to bring McMurtry’s dismissal grievance to arbitration, and the Labour Relations Board upheld the decision, find that the union’s decision not to proceed to arbitration was “not arbitrary, discriminatory, or made in bad faith.”
Controversy around Canada’s residential schools surged in 2021 after the Tk̓emlúps te Secwépemc First Nation announced that ground-penetrating radar had identified potential unmarked burial sites of 215 children at the former Kamloops residential school site. Other First Nations later announced additional potential unmarked burial sites.
The Tk̓emlúps te Secwépemc has received more than $12.1 million from the Canadian government for field work and research related to the sites. No excavations have yet taken place to confirm the presence of human remains.
The petition filed by JCCF lawyers argues that because the Labour Relations Code grants unions exclusive control over the grievance process, a government employee may be unable to obtain a remedy for an alleged Charter rights violation if the union chooses not to pursue the case.
Lawyer Hatim Kheir said in the JCCF release that the case raises an “important constitutional question” that impacts thousands of unionized government employees across the country. He said under the current system, Canadians working for government institutions may be unable to seek relief for violations of their rights if their unions decide not to take the case.
McMurtry said in a statement that he was removed from his position for “speaking truthfully about residential schools,” and he was grateful to the JCCF for aiding him in his legal fight.
The British Columbia Teachers’ Federation did not respond to The Epoch Times’ request for comment by press time.
