Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 SCR 257

                                                 SUPREME COURT OF CANADA

Between:

Ikechukwu Okwuobi

Appellant

v.

Attorney General of Quebec and François Legault, in his capacity

as Minister of Education

Respondents

and between:

Edwidge Casimir

Appellant

v.

Attorney General of Quebec and François Legault, in his capacity

as Minister of Education

Respondents

and between:

Consuelo Zorrilla

Appellant

v.

Attorney General of Quebec

Respondent

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.

______________________________

Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), [2005] 1 S.C.R. 257, 2005 SCC 16

Ikechukwu Okwuobi                                                                                         Appellant

v.

Attorney General of Quebec and François Legault, in his capacity

as Minister of Education                                                                             Respondents

and between

Edwidge Casimir                                                                                               Appellant

v.

Attorney General of Quebec and François Legault, in his capacity

as Minister of Education                                                                             Respondents

and between

Consuelo Zorrilla                                                                                              Appellant

v.

Attorney General of Quebec                                                                        Respondent

Indexed as:  Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General)

Neutral citation:  2005 SCC 16.

File No.:  29299.

2004:  March 22; 2005:  March 31.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for quebec

Administrative law — Administrative Tribunal of Québec — Jurisdiction in respect of minority language education claims — Remedial powers — Eligibility for public instruction in English in Quebec — Claimants bypassing administrative appeal process and seeking injunctive and declaratory relief in Superior Court — Whether claimants must follow administrative process — Whether Tribunal has exclusive jurisdiction to hear appeals in respect of entitlement to minority language education — Whether Tribunal can decide constitutional questions incidental to its determination of entitlement to minority language education — Whether Tribunal’s decision concerning entitlement binding on school board — Scope of residual jurisdiction of Superior Court in respect of injunctive relief and direct constitutional challenges.

The appellant parents are seeking access, for their children, to public instruction in English in Quebec pursuant to s. 73 of the Charter of the French language. They attempted to bypass the administrative appeal process set out in that act by seeking injunctive and declaratory relief in the Superior Court.  In the cases of C and O, the Superior Court granted the Attorney General of Quebec’s motion to dismiss on jurisdictional grounds.  In Z’s case, the same motion was dismissed.  The Court of Appeal affirmed the Superior Court’s decisions in the cases of C and O, and set aside the decision in the case of Z.  The court concluded that the Administrative Tribunal of Québec (“ATQ”) had jurisdiction to hear the claims for minority language education and that the administrative appeal process could not be circumvented.

Held:  The appeal should be dismissed.

The appellants did not have the right to bypass the ATQ since it has exclusive jurisdiction to hear appeals in respect of entitlement to minority language education.  The administrative process requires that before turning to the Superior Court to gain access to minority language education in Quebec, a claimant must first apply to a designated person for a certificate of eligibility and, if necessary, appeal that decision to the ATQ pursuant to s. 83.4 of the Charter of the French language. According to s. 14 of the Act respecting administrative justice, the ATQ has exclusive jurisdiction to make determinations in respect of proceedings brought against an administrative authority. When s. 14 is read in conjunction with s. 83.4, it is clear that the Quebec legislature intended to confer on the ATQ exclusive jurisdiction over all disputes relating to s. 73 of the Charter of the French language.  Aside from certain specific exceptions, courts should respect the clear intent of the legislature. [19] [25] [38]

The ATQ has the capacity to consider and decide constitutional questions, including the conformity of s. 73 of the Charter of the French language with s. 23  of the Canadian Charter . The ATQ has explicit jurisdiction, under s. 15 of the Act respecting administrative justice, to decide questions of law, and there is no indication that the legislature intended to exclude Canadian Charter  issues from the ATQ’s authority over questions of law.  On the contrary, the overall structure of the ATQ, that of a highly sophisticated, quasi-judicial body, indicates that the legislature intended to have the ATQ deal with all legal issues. [32-35] [37]

The ATQ has, under ss. 74 and 107 of the Act respecting administrative justice, all the remedial powers necessary to exercise its jurisdiction, and the absence of a particular remedy is not a reason to circumvent the administrative process.  Although the ATQ cannot issue a formal declaration of invalidity, a claimant can nevertheless bring a case involving a challenge to the constitutionality of a provision before the ATQ. If the ATQ finds a violation of the Canadian Charter , it may disregard the provision on constitutional grounds and rule on the claim as if the impugned provision were not in force.  Such a ruling would, however, be subject to judicial review on a correctness standard, and the claimant could then seek a formal declaration of invalidity.  Similarly, although the ATQ cannot grant injunctive relief, the broad wording of s. 74 indicates an intention on the part of the Quebec legislature to grant the ATQ the remedial authority needed to safeguard the rights of the parties. [43-46]

A decision of the ATQ concerning a child’s eligibility for instruction in English is binding on a school board even if it is not a party to the appeal. [47]

In light of the exclusive jurisdiction and broad powers accorded to the ATQ, the Superior Court should exercise sparingly its discretion to award injunctive relief in minority language education claims and should only do so to complement, not to weaken, the administrative process.  Despite the conferral by the legislature on the ATQ of remedial power with respect to constitutional rights, the residual, inherent jurisdiction of the Superior Court to hear direct constitutional challenges to a legislative scheme remains in place to provide the appropriate and just remedy where required. [51-55]

Cases Cited

Applied:  Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55; Mills v. The Queen, [1986] 1 S.C.R. 863; referred to:  Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC 15; Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Québec (Procureure générale) v. Barreau de Montréal, [2001] R.J.Q. 2058; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854.

Statutes and Regulations Cited

Act respecting administrative justice, R.S.Q., c. J-3, ss. 14, 15, 24, 25, 38, 74, 82, 107, 112, Sch. I, s. 3.

Canadian Charter of Rights and Freedoms , ss. 23 , 24(1) .

Charter of the French language, R.S.Q., c. C-11, ss. 72, 73, 75, 76, 81, 82-83, 83.4, 85, 86.1.

Code of Civil Procedure, R.S.Q., c. C-25, arts. 31, 751.

Rules of procedure of the Administrative Tribunal of Québec, (1999) 131 G.O. II, 4122, s. 17.

Authors Cited

Brun, Henri, et Guy Tremblay.  Droit constitutionnel, 4^e éd.  Cowansville, Qué.:  Yvon Blais, 2002.

Ferland, Denis, et Benoît Emery.  Précis de procédure civile du Québec, vol. 2, 4^e éd.  Cowansville, Qué.:  Yvon Blais, 2003.

Gendreau, Paul-Arthur, et autres.  L’injonction.  Cowansville, Qué.:  Yvon Blais, 1998.

APPEAL from a judgment of the Quebec Court of Appeal (Gendreau, Mailhot and Forget JJ.A.), [2002] R.J.Q. 1278, [2002] Q.J. No. 1130 (QL), affirming a decision of Crôteau J., [2001] Q.J. No. 4191 (QL).  Appeal dismissed.

APPEAL from a judgment of the Quebec Court of Appeal (Gendreau, Mailhot and Forget JJ.A.), [2002] Q.J. No. 1124 (QL), affirming a decision of Viau J.  Appeal dismissed.

APPEAL from a judgment of the Quebec Court of Appeal (Gendreau, Mailhot and Forget JJ.A.), [2002] Q.J. No. 1129 (QL), setting aside a decision of Bishop J., [2001] Q.J. No. 867 (QL).  Appeal dismissed.

Brent D. Tyler and Walter C. Elmore, for the appellants.

Benoît Belleau, for the respondents.

The following is the judgment delivered by

The Court —

I.       Introduction

1                                   This is one of three companion appeals about entitlement to minority language education, the other two being Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC 15, and Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14.  This appeal concerns the scope of the jurisdiction of the Administrative Tribunal of Québec (“ATQ”), its ability to consider and determine claims to constitutional entitlements, and the obligation of claimants to follow the administrative appeal process.  We are in agreement with the Quebec Court of Appeal that the ATQ has this jurisdiction and that the administrative appeal process may not be bypassed.  We acknowledge, however, that superior courts retain the residual jurisdiction to grant injunctive relief in certain urgent situations and to consider, in appropriate circumstances, a direct constitutional challenge to the law.  For the reasons that follow, we would dismiss the appeal.

II.      Background and Judicial History

2                                   This appeal emerged out of several disputes about entitlement to minority language education.  In each case, the claimants attempted to bypass the administrative process and move the dispute to the Superior Court of Quebec.  What follows is a brief review of the facts of each case and the outcomes at the Superior Court, followed by a review of the outcome of the joint appeal to the Quebec Court of Appeal.

A.     The Casimir Case, Viau J. (Superior Court of Quebec)

3                                   The appellant Edwidge Casimir, a Canadian citizen and mother of two, registered her children with the English Montreal School Board.  She also applied to the Minister pursuant to s. 73(2) of the Charter of the French language, R.S.Q., c. C‑11, for a certificate of eligibility for her children.  The application was denied by the Minister’s designated person on the ground that the eldest child had not received the major part of her instruction in English in Canada as required by s. 73(2).  Instead of following the regular administrative appeal process, Ms. Casimir filed an “application for interlocutory and permanent declaratory and injunctive relief” in the Superior Court, asking for, inter alia, an order that the school board provide public instruction to her children in English and a declaration that she was a “right-holder” under s. 23(2)  of the Canadian Charter of Rights and Freedoms  and had the right to send her children to an English public school in Quebec.

4                                   On November 13, 2000, the Superior Court granted the Attorney General’s motion to dismiss on jurisdictional grounds.  In brief reasons, Viau J. ruled that the ATQ had jurisdiction to hear Ms. Casimir’s case.

B.      The Zorrilla Case, Bishop J. (Superior Court of Quebec)

5                                   The appellant Consuelo Zorrilla is a Canadian citizen.  Her son, who was born in 1990, attended an unsubsidized English private school in Quebec from December 2000 to June 2001.  Ms. Zorrilla filed an application for declaratory relief in the Superior Court, seeking a declaration that ss. 72 and 73 of the Charter of the French language are inconsistent with s. 23(2)  of the Canadian Charter  and are invalid to the extent that s. 73(2), in granting the right to receive instruction in English in Quebec, requires that the major part of the child’s instruction in Canada be in English. 

6                                   On March 7, 2001, the Superior Court dismissed the Attorney General’s motion to dismiss the application on jurisdictional grounds ([2001] Q.J. No. 867 (QL)).  Bishop J. held that proceeding directly to the Superior Court was the appropriate recourse.  One reason for his reaching this decision related to practical issues of timing and cost.  Bishop J. also found that the ATQ would have had jurisdiction to hear the constitutional question only if the question had already been heard by the review committee.  Since no decision was sought from the review committee, the ATQ did not have jurisdiction to hear the constitutional challenge, whereas the Superior Court did.  Finally, the trial judge noted that the relief sought by Ms. Zorrilla was grounded in s. 24(1)  of the Canadian Charter .  She was seeking a formal declaration of invalidity, not only for her son, but also for other children in similar situations.  The ATQ could not grant this remedy.

C.     The Okwuobi Case, Crôteau J. (Superior Court of Quebec)

7                                   The appellant Ikechukwu Okwuobi is a Canadian citizen and a father of two.  He applied pursuant to s. 73(2) of the Charter of the French language for a certificate of eligibility to permit his children to attend schools in the Lester B. Pearson School Board.  His application was denied by the designated person on the ground that his eldest son had not received the major part of his instruction in English in Canada.  Mr. Okwuobi appealed the decision to the review committee and filed an “application for interlocutory and permanent declaratory and injunctive relief” in the Superior Court.  He asked the court to declare ss. 72 and 73 of the Charter of the French language invalid on the ground that they are inconsistent with s. 23(2)  of the Canadian Charter .  On September 10, 2001, the Superior Court granted the respondents’ motion to dismiss on jurisdictional grounds ([2001] Q.J. No. 4191 (QL)).  On the same day, the review committee dismissed Mr. Okwuobi’s appeal of the administrative decision.  He then appealed to the ATQ which, on December 19, 2001, reversed the review committee’s decision and declared the children eligible for public instruction in English in Quebec.

8                                   As mentioned above, the Superior Court granted the respondents’ motion to dismiss on jurisdictional grounds on September 10, 2001.  Crôteau J. held that the ATQ had exclusive jurisdiction with respect to all the questions raised in Mr. Okwuobi’s application.  He ruled that the administrative process had not yet been exhausted and that he should therefore decline to hear Mr. Okwuobi’s application.  That decision was appealed to the Court of Appeal.

D.     Joined Appeal to the Quebec Court of Appeal

9                                   The Quebec Court of Appeal heard the Casimir, Zorrilla and Okwuobi cases together, affirming the decisions in Casimir ([2002] Q.J. No. 1124 (QL)) and Okwuobi ([2002] R.J.Q. 1278) and reversing the decision in Zorrilla ([2002] Q.J. No. 1129 (QL)).  The Court of Appeal’s reasons for decision are found in Okwuobi.

10                               The Court of Appeal considered the case law of this Court, and took the decisions in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, and R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81, as authorities for the proposition that where an administrative tribunal is given the power to hear questions of law, this includes the power to interpret and apply the Canadian Charter .  Citing Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the Court of Appeal concluded that a model of exclusive jurisdiction was to be preferred to one of concurrent or overlapping jurisdiction.  On the basis of Weber and 974649 Ontario, the Court of Appeal concluded that a “court of competent jurisdiction” is one that has jurisdiction over the parties, the subject matter of the litigation and the remedy being sought. 

11                               The Court of Appeal was convinced that the ATQ had jurisdiction both over the parties and over the subject matter of the litigation, in that the litigation related to the application of the Charter of the French language.  The court thus turned to whether the ATQ could grant the remedy being sought by Mr. Okwuobi.  It adopted the approach of McLachlin C.J. in 974649 Ontario, where she developed a functional and structural approach to deciding whether a tribunal may grant the remedy being sought.  In particular, McLachlin C.J. stated the following, at para. 45:

The question, in essence, is whether the legislature or Parliament has furnished the court or tribunal with the tools necessary to fashion the remedy sought under s. 24 in a just, fair and consistent manner without impeding its ability to perform its intended function.

The Court of Appeal also referred to the statement in 974649 Ontario, that the “history and accepted practice of the institution” must be considered in determining whether the tribunal may grant the remedy being sought (para. 46).

12                               As a result, the Court of Appeal concluded, based in particular on s. 83.4 of the Charter of the French language and s. 14 of the Act respecting administrative justice, R.S.Q., c. J-3, that the legislature intended to confer on the ATQ the power to deal with all litigation relating to the application of s. 73 of the Charter of the French language.  The Court of Appeal found that the ATQ has exclusive jurisdiction to interpret any law necessary for the exercise of its jurisdiction.  Moreover, s. 74 of the Act respecting administrative justice provides that the ATQ may make decisions of an interlocutory nature in order to safeguard the rights of the parties.  Finally, the Court of Appeal, referring to one of its earlier decisions, Québec (Procureure générale) v. Barreau de Montréal, [2001] R.J.Q. 2058, at p. 2090, pointed out that the structure of the ATQ was similar in many ways to that of a court of law.

13                               The Court of Appeal accordingly held that the function and structure of the ATQ conferred exclusive jurisdiction over this matter on the ATQ and gave it the authority to grant a remedy pursuant to s. 24  of the Canadian Charter .  The Superior Court’s judgments in Okwuobi and Casimir were affirmed, while its judgment in Zorrilla was set aside.

III.    Relevant Legislative Provisions

14                               Canadian Charter of Rights and Freedoms 

23.  (1)Citizens of Canada

(a)  whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b)  who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

(2)  Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Charter of the French language, R.S.Q., c. C‑11

72.  Instruction in the kindergarten classes and in the elementary and secondary schools shall be in French, except where this chapter allows otherwise.

. . .

73.  The following children, at the request of one of their parents, may receive instruction in English:

(1)  a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;

(2)  a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada;

(3)  a child whose father and mother are not Canadian citizens, but whose father or mother received elementary instruction in English in Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received in Québec;

(4)  a child who, in his last year in school in Québec before 26 August 1977, was receiving instruction in English in a public kindergarten class or in an elementary or secondary school, and the brothers and sisters of that child;

(5)  a child whose father or mother was residing in Québec on 26 August 1977 and had received elementary instruction in English outside Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received outside Québec.

However, instruction in English received in Québec in a private educational institution not accredited for the purposes of subsidies by the child for whom the request is made, or by a brother or sister of the child, shall be disregarded. The same applies to instruction in English received in Québec in such an institution after 1 October 2002 by the father or mother of the child.

Instruction in English received pursuant to a special authorization under section 81, 85 or 85.1 shall also be disregarded.

75.  The Minister of Education may empower such persons as he may designate to verify and decide on children’s eligibility for instruction in English under any of sections 73, 81, 85 and 86.1.

83.4.      Any decision concerning a child’s eligibility for instruction in English made pursuant to section 73, 76, 81, 85 or 86.1 by a designated person may, within 60 days of notification of the decision, be contested before the Administrative Tribunal of Québec.

Act respecting administrative justice, R.S.Q., c. J‑3

14.  The Administrative Tribunal of Québec is hereby instituted.

The function of the Tribunal, in the cases provided for by law, is to make determinations in respect of proceedings brought against an administrative authority or a decentralized authority.

Except where otherwise provided by law, the Tribunal shall exercise its jurisdiction to the exclusion of any other tribunal or adjucative body.

15.  The Tribunal has the power to decide any question of law or fact necessary for the exercise of its jurisdiction.

In the case of the contestation of a decision, the Tribunal may confirm, vary or quash the contested decision and, if appropriate, make the decision which, in its opinion, should have been made initially.

24.  In matters of health services and social services, education and road safety, the social affairs division is charged with making determinations in respect of the proceedings referred to in section 3 of Schedule I pertaining in particular, as regards health services and social services matters, to decisions relating to access to documents or information concerning a beneficiary, a person’s eligibility for a health insurance program, the identification of a handicapped person, the evacuation and relocation of certain persons, a permit issued to a health services or social services institution, to an organ and tissue bank, to a laboratory or to other services or an adapted work centre certificate, or decisions concerning a health professional or the members of the board of directors of an institution.

25.  . . .

Proceedings referred to in paragraphs 2.1 and 5.1 of section 3 of Schedule I shall be heard and determined by a panel of two members, one of whom shall be an advocate or notary and the other, a person well-acquainted with the field of education.

. . .

38.  The Tribunal shall be composed of members who are independent and impartial, appointed by the Government in the number determined by the Government.

74.  The Tribunal and its members are vested with the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C‑37), except the power to order imprisonment.

They are also vested with all the powers necessary for the performance of their duties; they may, in particular, make any order they consider appropriate to safeguard the rights of the parties.

. . .

82.  The president, the vice-president responsible for the division or any member designated by either shall determine which members are to take part in each sitting.

The president may, where he considers it expedient in view of the complexity of a case or importance of a matter, form a panel comprising a greater number of members than that provided for in Chapter II, but not exceeding five.

. . .

107.       A proceeding before the Tribunal does not suspend the execution of the contested decision, unless a provision of law provides otherwise or, upon a motion heard and judged by preference, a member of the Tribunal orders otherwise by reason of urgency or of the risk of serious and irreparable harm.

If the law provides that the proceeding suspends the execution of the decision, or if the Tribunal issues such an order, the proceeding shall be heard and judged by preference.

SCHEDULE I

3.    In matters of health services and social services, education and road safety, the social affairs division hears and determines

. . .

(2.1)    proceedings under section 83.4 of the Charter of the French language (chapter C-11);

Rules of procedure of the Administrative Tribunal of Québec, (1999) 131 G.O. II, 4122

17.  Any party to a recourse may, with the authorization of the Tribunal and on the conditions it determines, implead a third party whose presence is necessary to resolve the dispute completely.

The Tribunal may, ex officio, order the impleading of any person whose interests could be affected by its decision.

Code of Civil Procedure, R.S.Q., c. C-25

31.  The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not assigned exclusively to another court by a specific provision of law.

751.       An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his senior officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under pain of all legal penalties.

IV.    Issues

15                            Three related issues are raised in this appeal.  The first concerns the scope of the ATQ’s jurisdiction and whether the ATQ may deal with constitutional questions incidental to its determination of entitlement to minority language education.  The second issue relates to the ATQ’s remedial powers and whether its decisions concerning entitlement are binding on school boards.  The third issue concerns the scope of the residual jurisdiction of superior courts in respect of injunctive relief and direct constitutional challenges.

V.     Analysis

16                            These three related issues will be dealt with as follows.  First, we will review the decision-making process in respect of claims for minority language education, including the administrative appeal process.  We will also review the nature and organization of the ATQ, and this review will be followed by an outline of the jurisdiction of the ATQ in respect of language matters.  This review will show that the legislature has granted the ATQ the power to consider and decide legal issues, including constitutional questions, and that the ATQ cannot therefore be bypassed in favour of the Superior Court. Second, we will consider the extent to which the ATQ has the necessary remedial authority to deal with incidental constitutional questions, and will discuss whether its decisions are binding on school boards.  We will end our analysis by briefly discussing the residual authority of superior courts to issue injunctive relief in urgent situations and to rule on direct constitutional challenges to a legislative scheme.

A.     The Decision-Making Process for Minority Language Education Claims

17                            Section 72 of the Charter of the French language requires that instruction in kindergarten classes and in elementary and secondary schools, in public and subsidized private institutions, be in French.  Exceptions to this rule exist, most notably for our purposes in s. 73 of the same statute.  The parents of a child who seek to avail themselves of these exceptions must apply to persons designated by the Minister of Education under s. 75 of the Charter of the French language.  These designated persons decide on eligibility for instruction in English.

18                            The initial decision of the designated person is subject to review.  At the time relevant to these cases, the initial appeal from a decision of a designated person was to a review committee under ss. 82 and 83 of the Charter of the French language, and then to the ATQ under s. 83.4.  However, ss. 82 and 83 were repealed effective October 1, 2002, meaning that now any decision concerning a child’s eligibility for instruction in English made by a designated person pursuant to ss. 73, 76, 81, 85 or 86.1 may, within 60 days of notification of the decision, be appealed directly to the ATQ (see s. 83.4 of the Charter of the French language).

19                            The administrative process thus requires that before turning to the Superior Court to gain access to minority language education in Quebec, a claimant must first apply to a designated person for a certificate of eligibility and, if necessary, appeal that decision to the ATQ.  Following a determination by the ATQ, it is possible for the claimant to seek relief from the Superior Court.

B.      The Nature and Organization of the ATQ

20                            The ATQ was instituted by the Act respecting administrative justice which states that the function of the ATQ is, where provided by law, to make determinations in respect of proceedings brought against an administrative or decentralized authority.

21                            The Tribunal consists of four divisions: (1) the social affairs division, (2) the immovable property division, (3) the territory and environment division, and (4) the economic affairs division.  As will be shown below, the ATQ’s jurisdiction in respect of minority language education is the responsibility of the social affairs division.

22                            Proceedings are heard by a panel whose members are selected based on the nature of the appeal.  Proceedings in respect of minority language education claims are heard by a two-member panel, one of whose members is to be an advocate or notary and the other a person well acquainted with the field of education (s. 25).  The Act also allows for the formation of a panel of up to five members where a case is particularly complex or important (s. 82).  Section 38 requires that the ATQ be composed of members who are independent and impartial.  The ATQ also has its own rules of evidence and procedure (Chapter VI).

23                            All told, the ATQ is a highly sophisticated tribunal, similar in many ways to Canadian courts of law.  The following comment by Dussault J.A. of the Quebec Court of Appeal in Québec (Procureure générale) v. Barreau de Montréal, at p. 2090, speaks to this high degree of sophistication:

[translation] . . . the ATQ fulfils an exclusively jurisdictional function that, despite the stated objectives of promptness and accessibility, requires the implementation of procedures similar to the procedures of courts of law.  Next, the ATQ has powers ordinarily conferred on courts of law, such as the powers to decide constitutional questions and to assess the grounds for an application for administrative secrecy.  Finally, and most importantly, the ATQ is required to decide a very large number of cases involving the financial or political interests of the state as a party to the case.  Taken as a whole, these factors seem to me to justify placing the ATQ on the spectrum of administrative tribunals, at a higher level as regards the requirement of judicial independence of its members.

C.     Jurisdiction of the ATQ in Respect of Minority Language Education

24                            We  turn now to the jurisdiction of the ATQ in respect of minority language education claims.  Jurisdiction over claims of this type is essentially derived from the interplay between s. 14 of the Act respecting administrative justice and s. 83.4 of the Charter of the French language.

25                            Section 14 of the Act respecting administrative justice sets out the scope and the exclusive nature of the jurisdiction of the ATQ:

14. The Administrative Tribunal of Québec is hereby instituted. 

The function of the Tribunal, in the cases provided for by law, is to make determinations in respect of proceedings brought against an administrative authority or a decentralized authority. 

Except where otherwise provided by law, the Tribunal shall exercise its jurisdiction to the exclusion of any other tribunal or adjudicative body.

According to s. 14, the ATQ has exclusive jurisdiction to make determinations in respect of proceedings brought against an administrative authority.  The term “administrative authority” includes the designated person in matters relating to entitlement to minority language education.  When s. 14 of the Act respecting administrative justice is read in conjunction with s. 83.4 of the Charter of the French language, it is clear that the Quebec legislature intended to confer on the ATQ exclusive jurisdiction over all disputes relating to s. 73 of the Charter of the French language.  Section 83.4 reads as follows:

83.4. Any decision concerning a child’s eligibility for instruction in English made pursuant to section 73 . . . by a designated person may, within 60 days of notification of the decision, be contested before the Administrative Tribunal of Québec.

26                            The respondents correctly note that s. 14 of the Act respecting administrative justice and s. 83.4 of the Charter of the French language effectively round out, or complete, the jurisdiction the ATQ possesses under s. 24 of the Act respecting administrative justice in combination with s. 3, para. 2.1 of Schedule I to that Act.  Section 24 states that in matters relating to education, inter alia, the social affairs division of the ATQ is charged with making determinations in respect of the proceedings referred to in s. 3 of Schedule I.  Section 3, para. 2.1 of Schedule I states that in matters relating to education, the social affairs division hears and determines “proceedings under section 83.4 of the Charter of the French language”.  

27                            The Act respecting administrative justice also speaks directly to the powers the ATQ is meant to possess, in these cases, when adjudicating on minority language education claims.  Most importantly, for our purposes, the ATQ has the power, under s. 15, to decide any question of law or fact necessary for the exercise of its jurisdiction.  It “may confirm, vary or quash the contested decision and, if appropriate, make the decision which, in its opinion, should have been made initially” (s. 15).  It is also significant that under s. 74, the ATQ and its members “are . . . vested with all the powers necessary for the performance of their duties”, including the power to “make any order they consider appropriate to safeguard the rights of the parties”.  The Quebec legislature has granted a broad range of remedial powers to the ATQ.  Moreover, based on the explicit wording of s. 14, the Quebec legislature intended the Tribunal’s jurisdiction to be exclusive (“the Tribunal shall exercise its jurisdiction to the exclusion of any other tribunal or adjudicative body”).

D.  The Power to Consider and Decide Constitutional Questions — The Principles Laid Down in Martin and in Paul

28                            As will become clear, the fact that the ATQ is vested with the ability to decide questions of law is crucial, and is determinative of its jurisdiction to apply the Canadian Charter  in this appeal.  The quasi-judicial structure of the ATQ, discussed briefly above, may be indicative of a legislative intention that constitutional questions be considered and decided by the ATQ, but the structure of the ATQ is not determinative.  This is evidenced by the recent decisions of this Court in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, and Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55.  These cases provide a more direct route to the result reached in the instant cases by the Court of Appeal and two of the three trial judges.

29                            In Martin, the question was whether the Nova Scotia Workers’ Compensation Appeals Tribunal (“Appeals Tribunal”), an administrative tribunal set up to hear appeals from decisions of the Workers’ Compensation Board of Nova Scotia, had jurisdiction to decline to apply certain legislative provisions to the appellants on the ground that the provisions violated the Canadian   Charter .  This Court held that the Appeals Tribunal did have jurisdiction to consider the constitutionality of the impugned provisions.  In so holding, Gonthier J. “reappraised and restated” (at para. 3) the rules concerning the jurisdiction of administrative tribunals to apply the Canadian   Charter  that had previously been established by this Court in Douglas/Kwantlen Faculty Assn., Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.

30                            Gonthier J. stated, at para. 3, that where an administrative tribunal has either explicit or implied jurisdiction to decide questions of law arising under a legislative provision, it is presumed that the tribunal also has concomitant jurisdiction to decide on the constitutional validity of that provision.  The only way to rebut this presumption is to show that the legislature clearly intended to exclude Charter  issues from the tribunal’s authority over questions of law.  Gonthier J. discussed at length the policy reasons for allowing administrative tribunals to deal with constitutional matters (see paras. 27-32 of Martin).  We will not reiterate them here. 

31                            In Martin, the Court created a general standard for determining whether a particular administrative tribunal can decline to apply a provision of its enabling statute on the ground that the provision violates the Canadian Charter .  First of all, it must be determined whether the administrative tribunal has jurisdiction, express or implied, to decide questions of law arising under an impugned provision (para. 35).  Furthermore, as this Court noted in Martin, at para. 35, “[t]he question is not whether Parliament or the legislature intended the tribunal to apply the Charter .”  The only question is whether the tribunal can decide any question of law (para. 36).

32                            In the cases at bar, the ATQ has explicit jurisdiction, under s. 15 of the Act respecting administrative justice, to decide questions of law.  This is a clear, unequivocal and express grant of jurisdiction to decide questions of law.  If, as here, there is explicit jurisdiction to determine questions of law, a court need not go on to consider whether such jurisdiction is to be implied from the legislative scheme as a whole (Martin, at para. 51).  As a result, the presumption from this point on is that the ATQ can consider and decide constitutional questions. 

33                            Once a presumption has been raised that the tribunal can decide questions of law, the burden falls on the party who alleges that the administrative body lacks jurisdiction to apply the Canadian Charter  to rebut the presumption (Martin, at para. 42).  Gonthier J. laid out certain ways in which this presumption can be rebutted.  He suggested that nothing less than an explicit withdrawal of authority to decide constitutional questions, or a clear implication of such intent, would suffice (at para. 42):

In general terms, the presumption may only be rebutted by an explicit withdrawal of authority to decide constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from external considerations.  The question to be asked is whether an examination of the statutory provisions clearly leads to the conclusion that the legislature intended to exclude the Charter , or more broadly, a category of questions of law encompassing the Charter , from the scope of the questions of law to be addressed by the tribunal.  For instance, an express conferral of jurisdiction to another administrative body to consider Charter  issues or certain complex questions of law deemed too difficult or time-consuming for the initial decision maker, along with a procedure allowing such issues to be efficiently redirected to such body, could give rise to a clear implication that the initial decision maker was not intended to decide constitutional questions.

34                                  No such express conferral of jurisdiction on another administrative body, or on a court for that matter, can be found in the relevant legislation in this appeal.  In fact, the explicit wording of s. 14 of the Act respecting administrative justice, the ATQ’s constituting statute, confers exclusive jurisdiction on the ATQ to decide on minority language education claims brought before it on appeal.  This was made clear above and need not be addressed again.  Nor does the legislative scheme give rise to an implication to the effect that more complex issues, such as Charter  issues, should be decided by a different adjudicative body, such as the Superior Court.  The implication is to the contrary.  Section 82 authorizes the ATQ to create panels of up to five members in order to deal with more complex issues.  This implies that even complex questions of law were meant to be dealt with by the ATQ.  Even more revealing in this respect, the overall structure of the ATQ, that of a highly sophisticated, quasi-judicial body, indicates that the legislature intended to have the ATQ deal with all legal issues, big and small.  Finally, s. 112 explicitly provides for the proper procedure to follow when raising a constitutional ground before the ATQ.  Based on the revised approach from Martin, the only conclusion that can be drawn is that the ATQ has the capacity to consider and decide constitutional questions, including the conformity of s. 73 of the Charter of the French language with s. 23  of the Canadian Charter .

35                                  The appellants put forth a further argument. They argue that, owing to the special nature of the rights conferred by s. 23  of the Canadian Charter , an ordinary provincial statute like the Charter of the French language cannot confer jurisdiction over the determination of the status of s. 23 rights-holders on an administrative tribunal to the exclusion of the Superior Court.  Again, the recent case law of this Court, this time in Paul, puts to rest this portion of the appellants’ submissions.

36                                  In Paul, the B.C. Ministry of Forests seized four logs in the possession of Mr. Paul, a registered Indian.  Paul intended to use the wood to build a deck for his home, and he asserted that he had an aboriginal right to cut timber for house modification.  He thus argued that s. 96 of the Forest Practices Code, a general prohibition against cutting Crown timber, did not apply to him.  The Forest Appeals Commission decided that it had jurisdiction to hear and determine aboriginal rights issues.  The British Columbia Supreme Court agreed, but its decision was reversed by a majority of the Court of Appeal.  In this Court, Bastarache J. applied the same reasoning as in Martin and ruled that since the Forest Appeals Commission was empowered to hear questions of law, it could hear and decide constitutional questions (paras. 39 and 41).  He further reasoned that questions relating to s. 35  of the Constitution Act, 1982  are not distinct from other constitutional matters in this respect.  Quoting McLachlin J. (as she then was) in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, Bastarache J. stated the following, at para. 36: “Section 35 is not, any more than the Charter , ‘some holy grail which only judicial initiates of the superior courts may touch’.”

37                                  The same legal reasoning can be applied to the cases at bar.  Section 23 is not within the exclusive province of the courts. The ATQ is empowered to decide questions of law.  It is therefore empowered to consider and decide constitutional questions.  This includes the power to consider s. 23, and to decide whether s. 73 of the Charter of the French language restricts the scope of s. 23 rights.  The Forest Appeals Commission could rule on s. 35 matters in Paul.  Here, the ATQ may rule on s. 23 matters that come before it.

E.      The Appellants Could Not Bypass the ATQ in Favour of the Superior Court

38                                  We are therefore of the view that the appellants did not have the right to bypass the ATQ by seeking injunctive and declaratory relief in the Superior Court.  The ATQ clearly has jurisdiction to hear appeals from decisions of the designated person and, in the instant cases, from the review committee in respect of entitlement to minority language education.  Moreover, the Quebec legislature intended this jurisdiction to be exclusive.  Aside from certain specific exceptions to be discussed below, this Court, and all courts, should respect the clear intent of the legislature.

39                                  The exclusive jurisdiction of the ATQ in this respect is further confirmed by art. 31 of the Code of Civil Procedure, R.S.Q., c. C-25, which states that the Superior Court is the court of original jurisdiction, except in matters in which original jurisdiction is assigned exclusively to another court by a specific provision of law.  That is in fact the situation in the cases at bar, as the Quebec legislature has specifically assigned the jurisdiction in issue to the ATQ.  Article 31 reads as follows:

31.  The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not assigned exclusively to another court by a specific provision of law.

40                                  The ATQ has been granted exclusive jurisdiction to hear appeals in respect of entitlement to minority language education.  The administrative appeal process should be respected.

F.      Remedial Authority of the ATQ, and the Binding Effect of Its Decisions on School Boards

41                                  The appellants argue that even if the ATQ has jurisdiction over the subject matter at hand, namely the rights of claimants under s. 23, it still does not have the ability to provide the remedies being sought by the appellants, nor does it have jurisdiction over the English school boards in question.  The ATQ lacks the power, say the appellants, to grant the remedies being sought.  First, it cannot issue a formal declaration of invalidity.  Second, it lacks jurisdiction to grant injunctive relief, although the appellants acknowledge that the ATQ may issue a safeguard order under s. 74 of the Act respecting administrative justice.  

42                                  As for the English school boards, the appellants argue that it is evident from the provisions of the Charter of the French language that they are not parties before the ATQ.  Only the parents and the Minister of Education are parties.  The appellants thus argue that in circumstances where rights-holders seek to enforce their right to have their children receive public instruction in English by way of an order against an English school board, the ATQ is powerless to issue such an order.

43                                  The respondents counter that the ATQ has all the remedial powers necessary to exercise its jurisdiction.  Section 74 vests the Tribunal and its members with “all the powers necessary for the performance of their duties; they may, in particular, make any order they consider appropriate to safeguard the rights of the parties”.  The respondents cite, as one particular manifestation of this broad remedial power, the power granted under s. 107 of the Act respecting administrative justice to make a motion before a member of the Tribunal to suspend the execution of a contested decision by reason of urgency or serious and irreparable harm:

107.  A proceeding before the Tribunal does not suspend the execution of the contested decision, unless a provision of law provides otherwise or, upon a motion heard and judged by preference, a member of the Tribunal orders otherwise by reason of urgency or of the risk of serious and irreparable harm.

If the law provides that the proceeding suspends the execution of the decision, or if the Tribunal issues such an order, the proceeding shall be heard and judged by preference.

44                            We are in substantial agreement with the respondents.  On the question of remedies, the appellants correctly point out that the ATQ cannot issue a formal declaration of invalidity. This is not, in our opinion, a reason to bypass the exclusive jurisdiction of the Tribunal.  As this Court stated in Martin, the constitutional remedies available to administrative tribunals are indeed limited and do not include general declarations of invalidity (para. 31).  Nor is a determination by a tribunal that a particular provision is invalid pursuant to the Canadian Charter  binding on future decision makers.  As Gonthier J. noted, at para. 31:  “Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases.”

45                            That said, a claimant can nevertheless bring a case involving a challenge to the constitutionality of a provision before the ATQ.  If the ATQ finds a breach of the Canadian Charter  and concludes that the provision in question is not saved under s. 1, it may disregard the provision on constitutional grounds and rule on the claim as if the impugned provision were not in force (Martin, at para. 33).  Such a ruling would, however, be subject to judicial review on a correctness standard, meaning that the Superior Court could fully review any error in interpretation and application of the Canadian Charter .  In addition, the remedy of a formal declaration of invalidity could be sought by the claimant at this stage of the proceedings.

46                            It should also be noted on the topic of remedies that, while it is true that only the Superior Court or a judge thereof may issue an injunction (this will be discussed further below), the ATQ has nevertheless been granted a broad remedial power under ss. 74 and 107 of the Act respecting administrative justice.  The broad wording of s. 74 indicates an intention on the part of the Quebec legislature to grant the ATQ the remedial authority needed to safeguard the rights of the parties.  The appellants, or any other claimants before the ATQ, should attempt to exhaust the remedies available from the ATQ rather than arguing that the absence of a particular remedy requires them to circumvent the administrative process entirely.

47                            As for the question of the binding effect of a ruling by the ATQ on the English school boards, we would reiterate that the Quebec legislature has chosen to grant the ATQ exclusive jurisdiction to hear appeals concerning access to minority language education.  On appeal, the ATQ will decide whether the claimant’s child should be admitted to an English school board.  That decision is binding on the school board even if it is not a party to the appeal.  The appellants raise the hypothetical possibility that a school board not directly involved as a party to an appeal before the ATQ might refuse to obey an order of the ATQ.  This is a hypothetical situation, and this Court must operate on the assumption that citizens, including those on school boards, are law-abiding and will comply with the order of a properly constituted administrative tribunal that has jurisdiction over entitlement to minority language education.

48                            If, however, the hypothetical situation raised by the appellants should occur, we have already shown that the ATQ has broad remedial powers under its enabling statute.  Moreover, under s. 17 of the Rules of procedure of the Administrative Tribunal of Québec, (1999) 131 G.O. II, 4122, the ATQ may implead a third party whose presence is necessary to resolve the dispute completely:

17.    Any party to a recourse may, with the authorization of the Tribunal and on the conditions it determines, implead a third party whose presence is necessary to resolve the dispute completely.

The Tribunal may, ex officio, order the impleading of any person whose interests could be affected by its decision.

Conceivably, the ATQ could apply this provision at the request of a claimant to acquire jurisdiction over a school board that the claimant has grounds to believe will be uncooperative.  The ATQ could then make creative use of its broad remedial powers under s. 74 of the Act respecting administrative justice to ensure that justice is done.

49                            In the event that such a solution is not feasible, the Superior Court does have residual jurisdiction to grant injunctive relief in urgent situations.  We turn now to a discussion of the residual jurisdiction of the Superior Court.

G.     The Residual Jurisdiction of the Superior Court

50                            The thrust of our judgment to this point has been to emphasize the exclusive nature of the ATQ’s jurisdiction to hear appeals in respect of entitlement to minority language education.  We feel it necessary, however, to mention the following two caveats relating to the Superior Court’s residual jurisdiction to grant injunctive relief in urgent situations and, potentially, to hear direct constitutional challenges to a legislative scheme.

(1)     Injunctive Relief in Urgent Situations

51                            The legislature’s intention to confer exclusive jurisdiction over the matter in issue on the ATQ should be respected to the greatest extent possible.  However, the fact remains that an injunction is defined in art. 751 of the Code of Civil Procedure as “an order of the Superior Court or of a judge thereof”.  Thus, the Superior Court has exclusive jurisdiction to grant an injunction, in the strict sense of the word. 

52                            That said, an injunction is a discretionary remedy that courts have on many occasions declined to grant where other avenues of recourse were available (see D. Ferland and B. Emery, Précis de procédure civile du Québec (4th ed. 2003), vol. 2, at p. 435).  We have accordingly been at pains in this judgment to emphasize the exclusive jurisdiction and broad remedial powers accorded to the ATQ.  As a result, the Superior Court should exercise sparingly its discretion to award injunctive relief in minority language education claims.  Such injunctive relief should be granted only to fill in the cracks in the administrative process, so to speak.  In this way, injunctive relief can complement the administrative process rather than serving to weaken it. 

53                            As a result, recourse to urgent injunctive relief remains possible in certain circumstances, but it should remain the rare exception, rather than the rule.  Seeking injunctive relief should not be allowed to develop into a means of bypassing the judicial process, or as P.-A. Gendreau et al. note in L’injonction (1998), at p. 201: [translation]  “. . . neither the injunction nor any other procedure may be used to short-circuit an administrative tribunal’s exercise of its exclusive jurisdiction or to obtain a review of its decision . . .”.

(2)     Direct Constitutional Challenges to the Legislative Scheme

54                            Superior courts may also retain residual jurisdiction to hear direct constitutional challenges to a legislative scheme, should the proper circumstances arise.  Such a challenge would have to be distinguishable from the facts of the cases at bar in which the appellants have, in effect, attempted to obtain relief (the right to minority language education) by circumventing the administrative process and bringing their claims directly to the Superior Court.  That said, the residual jurisdiction of superior courts cannot be entirely ousted by the legislature, in particular where recourse to such courts is necessary to obtain an appropriate and just remedy.  As Lamer J. noted in Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 882:

. . . a person whose Canadian  Charter  rights have been infringed or denied has the right to obtain the appropriate and just remedy under the circumstances.  A corollary which flows from this is the fundamental principle that there must always be a court available to grant, not only a remedy, but the remedy which is the appropriate and just one under the circumstances. [Emphasis in original.]

Lamer J. went on to recognize the unique nature of constitutional remedies.  He noted, at p. 893, that where inferior courts are endowed by the legislature with the power to grant constitutional remedies, this delegation of remedial power cannot completely oust the jurisdiction of superior courts:

. . . a “special law” is not sufficient to oust the jurisdiction of the superior courts, for a constitutional remedy and its accessibility should not in principle be open to statutory limitation.  While limitation of the remedial power to inferior courts may well be permissible, this, in my view, can only be possible if the superior court is available to fill the remedial vacuum that would result.

As H. Brun and G. Tremblay note in Droit constitutionnel (4th ed. 2002), at p. 187, superior courts [translation] “theoretically have the power to review the constitutionality of legislation”.  This inherent power to ensure that the Constitution is adhered to necessarily requires that superior courts retain jurisdiction, where the circumstances are appropriate, to “fill the remedial vacuum” mentioned by Lamer J. in Mills.

55                            Lamer J.’s words in Mills are equally applicable in a situation like the one in the cases at bar, in which remedial powers with respect to constitutional rights have been conferred by the legislature on an administrative body.  Despite this conferral of remedial power, the residual, inherent jurisdiction of superior courts remains in place to provide the appropriate and just remedy where required. 

VI.    Disposition

56                            For the above reasons, the appeal is dismissed.  The Court makes no order with respect to costs.

Appeal dismissed.

Solicitor for the appellants:  Brent D. Tyler, Montréal.

Solicitors for the respondents:  Bernard, Roy & Associés, Montréal; Department of Justice, Montréal.