SUPREME
COURT OF CANADA
Citation: Association des parents de l’école Rose-des-vents
v. British Columbia (Education), 2015 SCC 21,
[2015] 2 S.C.R. 139
|
Date: 20150424
Docket: 35619
|
Between:
Association
des parents de l’école Rose-des-vents, Joseph Pagé, in his name and in the name
of all citizens of Canada residing west of Main Street in the city of Vancouver
whose first language learned and still understood is French, or who have
received their primary school instruction in Canada in French, or of whom any
child has received or is receiving primary or secondary school instruction in
French in Canada, and Conseil scolaire francophone de la Colombie-Britannique
Appellants
and
Minister
of Education of British Columbia and Attorney General of British Columbia
Respondents
-
and -
Attorney
General for Saskatchewan, Attorney General of Alberta, Attorney General of the
Northwest Territories, Attorney General of the Yukon Territory, Commissioner of
Official Languages of Canada, Commission scolaire francophone, Territoires du
Nord-Ouest, Fédération nationale des conseils scolaires francophones, Conseil
des écoles fransaskoises and Commission scolaire francophone du Yukon
Interveners
Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis,
Wagner and Gascon JJ.
Reasons
for Judgment:
(paras 1 to 90)
|
Karakatsanis J. (McLachlin C.J. and
Abella, Rothstein, Moldaver, Wagner and Gascon JJ. concurring)
|
Association
des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139
Association des parents de l’école Rose-des-vents,
Joseph Pagé, in his name and in the name
of all citizens of
Canada residing west of Main Street in
the city of Vancouver
whose first language learned and still
understood is French, or
who have received their primary school
instruction in Canada
in French, or of whom any child has
received or is receiving
primary or secondary school instruction
in French in Canada, and
Conseil scolaire francophone
de la Colombie-Britannique Appellants
v.
Minister of Education of British
Columbia and
Attorney General of British
Columbia Respondents
and
Attorney General for Saskatchewan,
Attorney General of Alberta,
Attorney General of the Northwest
Territories,
Attorney General of the Yukon Territory,
Commissioner of Official Languages of
Canada,
Commission scolaire francophone, Territoires
du Nord-Ouest,
Fédération nationale des conseils
scolaires francophones,
Conseil des écoles fransaskoises and
Commission scolaire
francophone du Yukon Interveners
Indexed as: Association des parents
de l’école Rose-des-vents v. British Columbia (Education)
2015 SCC 21
File No.: 35619.
2014: December 2; 2015: April 24.
Present: McLachlin C.J. and Abella, Rothstein, Moldaver,
Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for british columbia
Constitutional
law — Charter of Rights — Minority language educational rights — Substantive
equality — Manner in which court should assess whether children of rights
holders are provided with educational experience equivalent to that provided in
schools of linguistic majority of province or territory — Are issues of costs and
practicalities relevant to equivalence analysis? — Whether a finding of lack of
equivalence amounts to Charter breach — Whether it is necessary to determine
responsibility as between province or territory and school board prior to
finding prima facie breach of s. 23 of Canadian Charter of Rights and Freedoms .
Constitutional law
— Charter of Rights — Procedure — Hearing — Procedural fairness — Phasing of
proceedings — Relevance of pleadings — Petition judge phasing proceedings,
leaving determination of responsibility for Charter breach to later phase —
Petition judge striking portions of province’s pleadings as irrelevant to first
phase — Whether procedures adopted by petition judge procedurally unfair.
L’école élémentaire Rose-des-vents (“RDV”) is
the only publicly-funded French-language elementary school for children living
west of Main Street in the city of Vancouver. The school is overcrowded and
enrollment is growing. RDV is small and the classrooms are significantly
smaller than those in other schools. Some have no windows and only three
classrooms meet the recommended size for classrooms. The library is very small,
the washrooms are inadequate and there is no available flexible space in the
school. Roughly 85 percent of students attending RDV are transported to school
by bus and over two-thirds of those have bus trips of more than 30 minutes per
trip. By contrast, the English-language schools in RDV’s catchment area are
larger, with larger classrooms, larger and better playing fields, and more
spacious libraries. Most students attending English-language schools in the
area live within one kilometre of their schools.
In
2010, parents of children attending RDV challenged their school board
and the provincial government, seeking a declaration that the educational
services made available to their children were not equivalent to those of the
English-language schools in the area and that their minority
language education rights under s. 23 of the Charter had been breached. They
requested that the legal proceedings be phased so that they could obtain a
declaration while leaving the question of responsibility for the alleged
inadequacies to a later phase, if necessary. Their hope was that obtaining a
declaration would be sufficient to obtain a favourable government response.
The
petition judge accepted the request to
phase the proceedings, deciding to first assess only whether the
children of rights holders were being provided with instruction and facilities
equivalent to majority language schools, as guaranteed under s. 23 of the Charter .
Prior to undertaking this initial phase of the proceedings, the judge struck
certain parts of the province’s pleadings on the grounds that they were not
relevant to that phase. At the conclusion of the first phase of the
proceedings, the judge issued a declaration that the parents are not being
provided the minority language educational facilities guaranteed to them by s. 23
of the Charter . He did not assign responsibility for the failure to meet
the constitutional standard. The Court of Appeal allowed the appeal brought by
the province. It set aside both the order striking some of the province’s
pleadings, and the declaration.
Held: The appeal should be allowed and the petition judge’s
declaration reinstated. The award of special costs issued by the petition judge
is restored. The matter should be remitted to the Supreme Court of British
Columbia for the next phase of the petition, if necessary. Special costs are
awarded to the appellants for the appeal proceedings.
Section
23 of the Charter guarantees a “sliding scale” of minority language
education rights. At the upper limit of the sliding scale, rights holders are
entitled to full educational facilities that are distinct from, and equivalent
to, those found in the schools of the majority language group. The focus in
giving effect to s. 23 rights should be on substantive equivalence, not on per
capita costs and other markers of formal equivalence. What is paramount is
that the educational experience of the children of s. 23 rights holders at the
upper end of the sliding scale be of meaningfully similar quality to the
educational experience of majority language students.
When
assessing substantive equivalence, a purposive approach requires a court to
consider the educational choices available from the perspective of s. 23 rights
holders. The comparator group that will generally be appropriate for that
assessment will be the neighbouring majority language schools that represent a
realistic alternative for rights holders. The question to be examined is
whether reasonable rights-holder parents would be deterred from sending their
children to a minority language school because it is meaningfully inferior to
an available majority language school. If so, the remedial purpose of s. 23 is
threatened. If the educational experience, viewed globally, is sufficiently
superior in the majority language schools, that fact could undermine the
parents’ desire to have their children educated in the minority language, and
thus could lead to assimilation.
The
comparative exercise must be alive to the varied factors that reasonable
parents use to assess equivalence. The exercise is contextual and holistic,
accounting for not only physical facilities, but also quality of instruction,
educational outcomes, extracurricular activities, and travel times, amongst other
factors. Such an approach is similar to the way parents make decisions
regarding their children’s education. The extent to which any given factor will
represent a live issue in assessing equivalence will be dictated by the
circumstances of each case. The relevant factors are considered together in
assessing whether the overall educational experience is inferior in a way that
could discourage rights holders from enrolling their children in a minority
language school. If, on balance, the experience is equivalent, the requirements
of s. 23 will be met.
Issues
of costs and practicalities are considered in the determination of the level of
educational services a group of rights holders is entitled to on the sliding
scale. It would undermine that analysis to consider costs and practicalities
again, after the appropriate level of educational services has already been
determined. Accordingly, it is not appropriate for provincial or territorial
governments to invoke issues of practicality or cost as part of the inquiry
into equivalence. Costs and practicalities may, however, be relevant in
attempts to justify a breach of s. 23 , and in attempts to fashion an
appropriate and just remedy for a breach.
In
the present case, the petition judge applied the correct test to assess
equivalence. He comprehensively and holistically assessed the relevant factors
and compared RDV to the English-language schools in the relevant catchment area
in Vancouver. In the determination of overall substantive equivalence, he
concluded that the programs offered at RDV were not so superior as to offset
its inadequate facilities, overcrowding and long travel times. In his opinion,
the disparity between the minority and majority language schools was such as to
limit enrollment and contribute to assimilation. There is no error in principle
in the petition judge’s analysis.
The
declaration issued by the petition judge represents the equivalent of a
declaration of a prima facie breach of s. 23 , subject to the future
determination of responsibility, justification for the breach (if applicable),
and positive remedy. Where the children of s. 23 rights holders are entitled to
an educational experience equivalent to that of majority language children,
there is no difference between a finding of a lack of equivalence and a finding
that the rights holders have not received the services to which they are
entitled under s. 23 . However, since responsibility for the breach has not yet
been assigned ― and leaving open the possibility that the responsible
party or parties may seek to justify the breach ― it cannot be said that
the judge’s declaration constitutes a complete finding of a Charter
violation.
Where
a proceeding has been formally phased to separate the question of substantive
equivalence from other elements of the s. 23 analysis, evidence that does not
assist in answering that question would normally not be relevant. Considered
from this perspective, the petition judge was entitled to strike the portions
of the province’s pleadings as they were not relevant to the inquiry into substantive
equivalence.
Cases Cited
Applied:
Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1
S.C.R. 331; discussed: Mahe v. Alberta, [1990] 1 S.C.R. 342; referred to: Assn.
des Parents Francophones (Colombie-Britannique) v. British Columbia (1996), 27 B.C.L.R. (3d) 83; Doucet-Boudreau v. Nova Scotia
(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Arsenault-Cameron
v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Reference
re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Multani
v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R.
256; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; Hryniak v. Mauldin,
2014 SCC 7, [2014] 1 S.C.R. 87; Hamilton v. Open Window Bakery Ltd.,
2004 SCC 9, [2004] 1 S.C.R. 303; British Columbia (Minister of Forests) v.
Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Victoria (City)
v. Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28; Arsenault-Cameron v.
Prince Edward Island (1997), 149 Nfld. & P.E.I.R. 96; Marchand v.
Simcoe County Board of Education (1986), 12 C.P.C. (2d) 140.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 1 , 23 , 24(1) .
Authors Cited
Bastarache, Michel. “Education Rights of Provincial Official
Language Minorities (Section 23)”, in G.-A. Beaudoin and E. Ratushny, eds., The
Canadian Charter of Rights and Freedoms , 2nd ed. Toronto: Carswell,
1989, 687.
Canada. Royal Commission on Bilingualism and Biculturalism. Report
of the Royal Commission on Bilingualism and Biculturalism, Book II, Education.
Ottawa: Queen’s Printer, 1968.
Doucet, Michel. “L’article 23 de la Charte canadienne des droits
et libertés ” (2013), 62 S.C.L.R. (2d) 421.
Hogg,
Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto:
Thomson/Carswell, 2007 (updated 2014, release 1).
Landry, Rodrigue, and Réal Allard. “L’exogamie
et le maintien de deux langues et de deux cultures: le rôle de la francité
familioscolaire” (1997), 23 Revue des sciences de l’éducation 561.
Power, Mark, and Pierre Foucher. “Language Rights and Education”, in
G.-A. Beaudoin and E. Mendes, eds., Canadian Charter of Rights and Freedoms ,
4th ed. Markham, Ont.: LexisNexis Canada, 2005, 1095.
APPEAL
from judgments of the British Columbia Court of Appeal (Saunders, Bennett and
Hinkson JJ.A.), 2013 BCCA 407, 49 B.C.L.R. (5th) 246, 342 B.C.A.C. 251, 585 W.A.C.
251, 367 D.L.R. (4th) 387, 291 C.R.R. (2d) 106, 44 C.P.C. (7th) 122, [2014] 1
W.W.R. 1, [2013] B.C.J. No. 2057 (QL), 2013 CarswellBC 2799 (WL Can.); and 2014
BCCA 40, 54 B.C.L.R. (5th) 79, 350 B.C.A.C. 142, [2014] 4 W.W.R. 528, 58 C.P.C.
(7th) 230, [2014] B.C.J. No. 155 (QL), 2014 CarswellBC 225 (WL Can.), setting
aside decisions of Willcock J., 2011 BCSC 1495, 21 C.P.C. (7th) 111, [2011]
B.C.J. No. 2096 (QL), 2011 CarswellBC 3303 (WL Can.); 2012 BCSC 1614, 39
B.C.L.R. (5th) 144, 270 C.R.R. (2d) 220, [2013] 2 W.W.R. 528, [2012] B.C.J. No.
2247 (QL), 2012 CarswellBC 3373 (WL Can.); and 2013 BCSC 1111, 49 B.C.L.R.
(5th) 189, [2013] 10 W.W.R. 602, 40 C.P.C. (7th) 274, 61 Admin. L.R. (5th) 310,
[2013] B.C.J. No. 1352 (QL), 2013 CarswellBC 1871 (WL Can.). Appeal allowed.
Nicolas M. Rouleau and Joseph Pagé, for the
appellants Association des parents de l’école Rose-des-vents et al.
Robert W. Grant, Q.C., Jean-Pierre Hachey, Mark C. Power and David P. Taylor, for the appellant Conseil
scolaire francophone de la Colombie-Britannique.
Leonard T. Doust, Q.C., Karrie
Wolfe and Warren
B. Milman, for the respondents.
Alan F. Jacobson and Barbara C. Mysko, for the intervener the Attorney
General for Saskatchewan.
Randy Steele, for the intervener the
Attorney General of Alberta.
François Baril, for the intervener the Attorney
General of the Northwest Territories.
Maxime Faille, Guy Régimbald and Pippa Lawson, for the intervener the Attorney
General of the Yukon Territory.
Christine Ruest Norrena and Isabelle Bousquet, for the intervener the
Commissioner of Official Languages of Canada.
Roger J. F. Lepage and Francis
P. Poulin,
for the interveners Commission scolaire francophone, Territoires du Nord-Ouest,
Fédération nationale des conseils scolaires francophones, Conseil des écoles
fransaskoises and Commission scolaire francophone du Yukon.
The judgment of the Court was
delivered by
[1]
Karakatsanis J. — This appeal reflects a new generation of
issues for minority language education rights. When is the quality of a
minority language school education equivalent to that of the majority language
schools? What factors go into determining equivalence?
[2]
These questions lie at the heart of this
appeal. They engage s. 23 of the Canadian Charter of Rights and Freedoms ,
the minority language education provision that guarantees minority language
rights holders the right to have their children receive primary and secondary
school instruction in English or French. While this Court has considered this Charter
right on several occasions over the past 30 years, the present appeal
illustrates the evolution of minority language education disputes since the
adoption of the Charter : rather than focusing on a group’s initial
entitlement to a given level of minority language educational services, this
appeal asks how a court may determine whether a group is, in fact, receiving
its entitlement.
[3]
It is well established that where the number of
children of minority language rights holders warrants the highest level of
services envisioned by s. 23 , those rights holders are entitled to instruction
and educational facilities equivalent in quality to that provided to the
official language majority of the province or territory. This Court’s past
jurisprudence has recognized that, because of the remedial nature of s. 23
rights, equality may mean something different than formal equality. It
requires substantive equality. In this appeal, we are called upon to give
guidance on how to measure this equivalence. We are also asked to determine
the significance of a finding of lack of equivalence, and whether it amounts to
a breach of s. 23 of the Charter .
[4]
In this case, the parents of children attending
a French-language elementary school challenged their school board and the provincial
government, and sought a declaration that the educational services were not
equivalent to those of the English-language schools in the area. In my view, they
were entitled to that declaration. As a result, I would allow the appeal and
restore the declaration of the petition judge.
I.
Facts
[5]
L’école élémentaire Rose-des-vents (RDV) is the
only publicly-funded French-language elementary school for students living west
of Main Street in the city of Vancouver. It was established in 2001, five
years after the Supreme Court of British Columbia ruled that the number of
children of rights holders in the geographic area of Vancouver/Lower Mainland and Victoria warranted the highest measure of
management and control contemplated under s. 23 (Assn. des Parents Francophones (Colombie-Britannique) v. British Columbia
(1996), 27 B.C.L.R. (3d) 83). The court concluded
that the B.C. legislature could no longer delay putting in place an appropriate
minority language education scheme.
[6]
As the petition judge held, enrollment at RDV
has increased since 2001 and the school, which currently shares facilities with
a French-language secondary school, has become increasingly overcrowded. In
2012, RDV had a nominal capacity of 215 students and an operating capacity of
199 students. Enrollment in 2011 was 344 students, and enrollment is growing.
[7]
RDV is small, with narrow hallways and no coat
hooks or lockers. There is a lack of storage space. This is said to have
contributed to the spread of lice among students. There is no available
flexible space in the school. The washrooms are inadequate. The library is
very small, and the classrooms are significantly smaller than those in other schools.
Only three classrooms meet the recommended size for classrooms. Two classrooms
have no windows. The playground is divided into small sections. Due to the
space sharing arrangement with the secondary school, the space made available
to RDV will likely diminish in the coming years.
[8]
By contrast, the English-language schools in
RDV’s catchment area are larger, with larger classrooms, larger and better
playing fields, and more spacious libraries.
[9]
Of the 344 students attending RDV in 2012, 293 were
transported to school by bus. None of those elementary school students live
within the one kilometre “walk limit”. Over two thirds of these students spend
more than 30 minutes per bus trip. By contrast, most students attending English-language
schools in the area live within one kilometre of their schools.
[10]
The B.C. Minister of Education has acknowledged
that RDV is operating “over capacity”. The construction of a new French-language
school in Vancouver has been a “high priority” of the Ministry of Education at
least since 2008 (A.R., vol. II, at p. 104). The Conseil scolaire francophone
de la Colombie-Britannique (CSF), the French-language school board that
oversees RDV, acknowledges the overcrowding, the substandard facilities, and
the long bus rides.
[11]
In 2010, the Association des parents de l’école
Rose-des-vents and Joseph Pagé, on his own behalf and as a representative of
parents of children enrolled at RDV (“the Parents”),
filed a petition naming as respondents the Minister of Education, the Attorney
General of British Columbia (collectively, “the Province”), and the CSF. The petition sought a
declaration that the Parents’ minority language education rights under s. 23 of
the Charter had been breached. The Parents argued that the RDV school
facilities were not equivalent to those of the English-language schools in the
area. However, they sought to avoid the question of assigning responsibility
for the alleged inadequacies during the first stage of the proceedings. They
hoped that a declaration at the first stage would be sufficient to obtain a
favourable government response.
[12]
The CSF agrees with the Parents that the
facilities available to rights holders in the RDV catchment area are inadequate.
However, it blames the inadequacies on insufficient funding from the Province,
which funds capital expenditures separately from regular operating
expenditures. The Province denies that the RDV facilities are deficient, but
argues that if they are, the CSF, as the agency charged with exercising
management and control of the minority language education system on behalf of
rights holders, bears responsibility for any inadequacies.
[13]
In a separate action commenced later in 2010,
the CSF, the Fédération des parents francophones de Colombie-Britannique, and 33 individual
parents initiated proceedings against the Province, alleging province-wide
breaches of s. 23 of the Charter and raising systemic challenges to the capital
funding system put in place by the Ministry of Education as it applies to
minority language education. While that action is not a subject of this
appeal, it may resolve some of the outstanding issues raised in this petition.
II.
Judicial History
A.
Supreme Court of British Columbia
[14]
The present matter constitutes
the first phase of what may be a multi-phase proceeding. Justice Willcock,
then of the Supreme Court of British Columbia, presided over the petition. He
decided to phase the proceedings in light of the declaratory nature of the
relief sought by the Parents, and the possibility that the outcome of the first
phase might lead to a resolution of the dispute (2011 BCSC 1495, 21 C.P.C. (7th)
111). In doing so, he took into consideration the efficient use of judicial
resources and the critical need for timely compliance in s. 23 cases to avoid
the risks of assimilation caused by delay, relying on this Court’s decision in Doucet-Boudreau
v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at
para. 29.
[15]
This appeal concerns the first phase. The judge
was to assess whether the Parents were being provided with instruction and
facilities equivalent to majority language schools, as guaranteed under s. 23
of the Charter . Prior to undertaking this first phase, the judge struck
certain parts of the Province’s pleadings on the grounds that they were not
relevant to the first phase of proceedings (2011 BCSC 1495). As well, during
the course of the hearing, the Province sought an adjournment in order to bring
further evidence on various points, including responsibility for any breach of
s. 23 . The judge denied this adjournment request (2012 BCSC 1206).
[16]
In his reasons for judgment at the conclusion of
the first phase of proceedings, the judge found a lack of equivalence between
the school facilities afforded to the Parents and the facilities available to
majority language students in the same area (2012 BCSC 1614, 39 B.C.L.R. (5th)
144). He found that, despite the good quality of instruction and academic
outcomes, the RDV facilities are inadequate, and that the long travel times of
many students are not offset by superior facilities or programs. He found that
the disparity limited enrollment and contributed to assimilation. He concluded
that the facilities are inadequate to meet the standard of equivalence required
by s. 23 of the Charter . He did not assign responsibility for the
failure to meet the constitutional standard.
[17]
The judge issued “a declaration in favour of the
parents . . . that they are not being provided the minority language
educational facilities guaranteed to them by s. 23 of the Canadian Charter
of Rights and Freedoms ” (para. 160). He also retained jurisdiction over
the litigation to hear further applications, should the outcome of the first
phase of the proceedings be insufficient to facilitate the resolution of the
issues between the parties.
[18]
The judge awarded special costs to the Parents
throughout, and to the CSF in relation to all proceedings on or after November 4, 2011 (2013 BCSC 1111, 49 B.C.L.R. (5th) 189). Though he
did not find the Province’s conduct worthy of reproof or rebuke, the judge
concluded that the petitioners and the CSF were entitled to special costs as
public interest litigants.
B.
Court of Appeal for British Columbia
[19]
The Court of Appeal for British Columbia allowed
the appeal brought by the Province. Hinkson J.A. (Saunders and Bennett JJ.A.
concurring) concluded that certain paragraphs struck by the judge should not
have been struck, as they were not clearly irrelevant to the first phase of
proceedings (2013 BCCA 407, 49 B.C.L.R. (5th) 246). The Court of Appeal was of
the view that issues of costs and practicalities may be relevant to the
equivalence analysis performed as part of the first phase. The Court of
Appeal, relying on the judge’s March 2012 clarification of his 2011 phasing
order, also concluded that the reasons for judgment went
beyond what the judge said he intended to resolve as part of the first phase of
the proceedings. This had the effect of unfairly precluding the Province from
obtaining further evidence to support its defence that any disparity in the
facilities did not amount to a breach of the Parents’ s. 23 rights.
[20]
The Court of Appeal set aside the order striking
certain paragraphs of the Province’s pleadings. It also set aside Justice
Willcock’s declaration dated October 31, 2012, and ordered that the petition be
remitted to the Supreme Court of British Columbia. The Court of Appeal also
set aside the award of special costs (2014 BCCA 40, 54 B.C.L.R. (5th) 79).
III.
Issues
[21]
This appeal raises both substantive and
procedural issues.
[22]
First, how should a court assess the substantive
equivalence of a minority language school facility as compared to majority
language school facilities, for the purpose of determining whether the minority
language facility complies with s. 23 of the Charter ? In particular,
are issues of costs and practicalities relevant to the s. 23 equivalence
analysis? Is it necessary to determine responsibility, as between a province
or territory and a school board, prior to finding a prima facie breach
of s. 23 ?
[23]
Second, were the procedures adopted by the petition
judge in managing the proceedings procedurally unfair?
IV.
Analysis
A.
Equivalence Under Section 23 of the Charter
(1)
Basic Principles and Interpretation of Section
23
[24]
Section 23 of the Charter guarantees
minority language rights holders the right to have their children educated in
English or French, as the case may be:
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.
(3) The right of citizens of Canada under subsections (1) and (2)
to have their children receive primary and secondary school instruction in the
language of the English or French linguistic minority population of a province
(a)
applies wherever in the province the number of children of citizens who have
such a right is sufficient to warrant the provision to them out of public funds
of minority language instruction; and
(b)
includes, where the number of those children so warrants, the right to have
them receive that instruction in minority language educational facilities
provided out of public funds.
[25]
Section 23 is a remedial right that differs from
many other Charter rights. The provision is an important marker of
Canada’s commitment to bilingualism, and to the bicultural founding character
of this country. It imposes a constitutional duty on the provinces and
territories to provide minority language education to children of s. 23 rights holders
where numbers warrant. This commitment sets Canada apart among nations, as
Justice Vickers of the Supreme Court of British Columbia explained in Assn.
des Parents Francophones:
From its genesis, Canada
brings to the world a unique history and culture of cooperation and tolerance.
It is rooted in the commitment of French and English people, who had earlier
been separated by geography, a history of divisive disputes, language and
culture, to live together, to work together and to share the resources of a new
nation. Section 23 restates a fundamental part of that commitment relating to
language and culture and acknowledges the vision and faith of our nation’s
pioneers. Our distinct place in the world’s family of nations is dependent on
governments honouring the commitment entered into more than two centuries ago
which has been reaffirmed by this generation of Canadians through the enactment
of particular provisions of the Canadian Charter of Rights and Freedoms .
[para. 24]
[26]
Section 23 is concerned with the preservation of
culture as well as language. As the Royal Commission on Bilingualism and
Biculturalism noted, “[l]anguage and culture are not synonymous, but the
vitality of the language is a necessary condition for the complete preservation
of a culture” (Report of the Royal Commission on Bilingualism and
Biculturalism, Book II, Education (1968), at p. 8). As this Court
noted in Mahe v. Alberta, [1990] 1 S.C.R. 342, at p. 362, “any broad
guarantee of language rights, especially in the context of education, cannot be
separated from a concern for the culture associated with the language. Language is more than a mere means of
communication, it is part and parcel of the identity and culture of the people
speaking it”: see also M. Bastarache, “Education Rights
of Provincial Official Language Minorities (Section 23)”, in G.-A. Beaudoin and
E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed.
1989), 687, at p. 695.
[27]
Section 23 was designed to correct and prevent
the erosion of official language minority groups so as to give effect to the
equal partnership of Canada’s two official language groups in the context of
education: Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1,
[2000] 1 S.C.R. 3, at para. 26; Mahe, at p. 364. Minority language
education is crucial to the maintenance of that partnership:
For a
minority group, equal partnership means the possibility of preserving its linguistic
and cultural identity. . . . The gradual loss of the mother
tongue is inevitable without some institution to give formal instruction in the
language and to enhance its prestige by according it some social recognition.
At the same time, minority-language schools can adapt the curriculum to stress
the cultural heritage of the minority group. [Report of the Royal
Commission, at pp. 8-9]
Indeed, in minority
language communities, schools are a primary instrument of linguistic, and thus
cultural, transmission: Mahe, at pp. 362-63. In many such communities,
demographic changes and the shifting role of religious establishments have
turned local minority language schools into vital community centres (M. Power and
P. Foucher, “Language Rights and Education”, in G.-A. Beaudoin and E. Mendes,
eds., Canadian Charter of Rights and Freedoms (4th ed. 2005), 1095, at
pp. 1100-1101).
[28]
One distinctive feature of s. 23 is that it is
particularly vulnerable to government inaction or delay. Delay in implementing
this entitlement or in addressing s. 23 violations can result in assimilation
and can undermine access to the right itself. As this Court has noted before,
for every school year that governments do not meet their obligations under s.
23, there is an increased likelihood of assimilation and cultural erosion (Doucet-Boudreau,
at para. 29). Left neglected, the right to minority language education could
be lost altogether in a given community. Thus, there is a critical need both
for vigilant implementation of s. 23 rights, and for timely compliance in
remedying violations.
(2)
“Numbers Warrant” and the “Sliding Scale” of
Section 23 Rights
[29]
The s. 23 right to equivalent educational
facilities for minority language rights holders where numbers warrant provides
a means to counteract the assimilation that occurs when the children of rights
holders attend majority language schools. In Mahe, this Court explained
that s. 23 guaranteed a “sliding scale” of minority language education rights
(p. 366). At the upper limit of the sliding scale, numbers will warrant the provision
of the highest level of services to the minority language community. In such
cases, rights holders are entitled to full educational facilities that are
distinct from, and equivalent to, those found in the schools of the majority
language group (Reference re Public Schools Act (Man.), s. 79(3), (4) and
(7), [1993] 1 S.C.R. 839, at pp. 854-55; Mahe, at p. 378). These
facilities must be accessible and, where possible, located in the community
where the children reside (Arsenault-Cameron, at para. 56). The
upper threshold of the sliding scale can include separate minority language
school boards (Mahe, at p. 374).
[30]
In Mahe, this Court held that costs
and practicalities are relevant to the determination of where, on the sliding
scale of s. 23 rights, a given minority language community falls, although
pedagogical concerns will generally assume more weight (pp. 384-85). Once it
is determined that the number of children mandates the highest level of
services, s. 23 requires that the quality of services be substantively
equivalent to that offered to the majority language students. It is also
imperative that minority language parents
possess a measure of management and control over the educational facilities in
which their children are taught (pp. 371-72). This management and control is
vital to ensuring that the minority language and culture flourish in the
educational setting.
[31]
As this Court noted in Mahe, “it should
be self-evident that in situations where the [highest] degree of management and
control is warranted the quality of education provided to the minority should
in principle be on a basis of equality with the majority” (p. 378). That being
said, the education provided need not be identical. Section 23 is not meant to
adopt a formal vision of equality that would focus on treating the majority and
minority official language groups alike. In Arsenault-Cameron, this
Court cautioned against applying to a s. 23 analysis the accessibility and
pedagogy standards that apply to the majority language group, given the
importance of s. 23 rights to the flourishing and preservation of the minority
language and culture (paras. 39-40 and 49-51).
(3)
What Is the Test for Equivalence?
[32]
As noted above, a central aim of s. 23 is “to correct,
on a national scale, the historically progressive erosion of official language
groups”: Arsenault-Cameron, at para. 26; see also Mahe, at
p. 364. Because of the remedial nature of s. 23, and the specific challenges
relating to the protection of minority language and culture and the prevention
of assimilation, equivalence in the context of s. 23 may mean something other
than formal equivalence.
[33]
The focus in giving effect to s. 23 rights,
then, should be on substantive equivalence, not on per capita costs and
other markers of formal equivalence. In the present case, there is evidence
that the CSF receives a 15% premium in its operational funding from the Province,
as compared to other school boards in the province. Given economies of scale,
higher per capita costs for a minority language board or school are not
unexpected (Mahe, at p. 378). However, there is no particular per
capita number that will satisfy the requirements of s. 23 in any given
instance. Rather, what is paramount is that the educational experience of the
children of s. 23 rights holders at the upper end of the sliding scale be of
meaningfully similar quality to the educational experience of majority language
students. As this Court noted in Arsenault-Cameron, “[s]ection 23 is
premised on the fact that substantive equality requires that official language
minorities be treated differently, if necessary, according to their particular
circumstances and needs, in order to provide them with a standard of education
equivalent to that of the official language majority” (para. 31).
(a)
What Analytical Perspective Is Relevant in
Assessing Equivalence?
[34]
The first step in any s. 23 analysis is to
determine the entitlement of the parents, who are the holders of the
right. This requires assessing what level of service the number of rights
holders in a given community warrants. In the present case, a court has previously
determined, and the parties accept, that numbers warrant the highest level of
French-language educational instruction and facilities, which necessarily
includes an element of management and control for the rights holders. This
being established, the issue in this case is how to determine whether the Parents
have, in fact, been provided the substantive equivalence to which they are
entitled.
[35]
When assessing equivalence, a purposive approach
requires a court to consider the educational choices available from the
perspective of s. 23 rights holders. Would reasonable rights-holder parents be
deterred from sending their children to a minority language school because it
is meaningfully inferior to an available majority language school? If so, the
purpose of this remedial provision is threatened. If the educational
experience, viewed globally, is sufficiently superior in the majority language
schools, that fact could undermine the parents’ desire to have their children
educated in the minority language, and thus could lead to assimilation. The
inquiry into equivalence should thus focus on comparisons that would adversely
affect the realization of the rights under s. 23 of the Charter .
(b)
What Geographic Scope Is Relevant for the Assessment
of Equivalence?
[36]
As this Court has noted, both the statutory
language and the purpose of s. 23 in preventing the erosion of official
language minority groups require considering “wherever in the province” numbers
will warrant the application of s. 23 rights (Mahe, at p. 386; Arsenault-Cameron,
at paras. 56-57). For that reason, it is necessary to think locally, as
the linguistic and cultural benefits of minority language education accrue to
the local community.
[37]
If rights holders consider which school their
child should attend, or whether to withdraw their child from a minority
language school, they will look to nearby majority language schools as
alternatives. It follows that the comparator group that will generally be
appropriate for the assessment of substantive equivalence of a minority
language school will be the neighbouring majority language schools that
represent a realistic alternative for rights holders. To compare the facilities
of a minority language school to facilities outside of the area would not
realistically capture the choice available to rights holders, who cannot send
their children to a school located across the province. Of course, the precise
geographic scope of the comparator group, and the relative usefulness of this
sort of comparison, will vary with the circumstances (Arsenault-Cameron,
at para. 57).
(c)
What Factors Are to Be Compared in Assessing
Equivalence?
[38]
As the Province has argued, no school is likely
to be considered by all parents to be equal or better than its neighbours in
every respect. The comparative exercise must be alive to the varied factors
that reasonable parents use to assess equivalence. The fact that a given
school is deficient in one area does not mean that it lacks equivalence in an
overall sense. In particular, both quality of instruction and facilities can
represent important elements of comparison. Indeed, in Mahe, Dickson
C.J. rejected an approach that would treat instruction and facilities as “separate
rights” under s. 23 of the Charter , rights to be associated with
different numerical thresholds. He preferred instead to consider instruction
and facilities together when determining the scope of the s. 23 right (p.
366). Such an approach is consistent with the purpose of s. 23 . It stands to
reason that the same considerations apply when comparing equivalence between
minority and majority language schools. The quality of instruction and the
quality of facilities may both be strong indicators of equivalence, and are
properly considered together.
[39]
Thus, the comparative exercise is contextual and
holistic, accounting for not only physical facilities, but also quality of
instruction, educational outcomes, extracurricular activities, and travel
times, to name a few factors. Such an approach is similar to the way parents
make decisions regarding their children’s education. Of course, the extent to
which any given factor will represent a live issue in assessing equivalence
will be dictated by the circumstances of each case. The relevant factors are
considered together in assessing whether the overall educational experience is inferior
in a way that could discourage rights holders from enrolling their children in
a minority language school.
[40]
As a result, the fact that a minority language
school is older than nearby majority language schools is not, when viewed in
isolation, enough to ground a finding of lack of equivalence. Schools can last
for a long time, and older schools may have facilities that are inferior to those
of newer schools. The fact that a minority language school is in the older
range would not normally drive a reasonable rights-holder parent to withdraw
her child from the school, particularly where other aspects of the educational
experience are strong. Fundamentally, the age of a school and the quality of
its physical facilities are but two factors among many. There are several
other compelling considerations that form part of a reasonable parent’s
comparison: the quality of the teachers, the curriculum, and the cultural
opportunities offered by a minority language school are all relevant. The
expectation is not, and cannot reasonably be, to have the “very best” of every
aspect of the educational experience. As noted above, the comparative exercise
is holistic.
[41]
Ultimately, the focus of the assessment is the substantive
equivalence of the educational experience. If, on balance, the experience
is equivalent, the requirements of s. 23 will be met.
[42]
For its part, the Province proposed a very
different test for measuring equivalence under s. 23 . This test would include
four distinct elements. First, a court would consider the allegations of
inferiority; second, it would weigh the deficiencies against the relative superiorities
at the minority language school in order to determine how the two net out in
their impact on assimilation; third, the court would consider the resource
allocation decisions of the minority language school board and whether the deficiencies
are attributable to inadequate funding; and lastly, it would weigh the extent
of the assimilation attributable to the alleged inferiorities against the
practicalities of the available alternatives.
[43]
In my view, such a test is unnecessarily complex
and rigid. Not only would it introduce unnecessary elements into the
equivalence analysis, it would also require unravelling the question of
responsibility for a lack of equivalence, as between the Province and the local
school board, even where such an exercise provides no insight into the question
of whether a given minority language school is equivalent to its majority
counterparts. Such a test would also require the court to jump forward to
considering possible positive remedies, under the guise of assessing the
practicalities of the alternatives available, even where the litigants do not
seek a positive remedy. For all of these reasons, I reject this approach to
assessing equivalence.
(4)
Is There a Role for Costs and Practicalities
Within the Equivalence Test?
[44]
The Court of Appeal concluded that costs and
practicalities may, in some cases, play a role in the equivalence analysis.
The Province takes the position that costs and practicalities are part of every
entitlement-related decision under s. 23 . Thus, where there is a question of
upgrading facilities or constructing new facilities for a group of s. 23 rights
holders, costs and practicalities will enter into the analysis of whether the
existing facilities are equivalent.
[45]
By contrast, the Parents and the CSF say that costs
and practicalities are only relevant in the assessment of where on the sliding
scale a given group of rights holders belongs. Once such a group has been
determined to be entitled to the highest level of educational services anticipated
by s. 23 , they are entitled to services of a quality equal to those of the
majority, regardless of costs or practicalities.
[46]
In my view, costs and practicalities are
relevant to the determination of the level of services a group of rights holders
is entitled to on the sliding scale. The Province’s position misconceives the
nature of the equivalence analysis, and conflates entitlement and equivalence.
The entitlement is to equivalent educational services. The equivalence
analysis is thus a factual inquiry, not an entitlement-related decision. The
“numbers warrant” analysis will have already considered costs and
practicalities in determining the scope of the s. 23 rights to be afforded to the
minority language group. It would undermine that analysis to consider costs
and practicalities again, after the appropriate level of educational services
has already been determined. Such an approach is neither logical nor
principled. Thus, it is not appropriate for provincial or territorial governments
to invoke issues of practicality or cost as part of the inquiry into the
factual equivalence of minority language and majority language schools.
[47]
As this Court noted in Mahe, costs will
usually be subsumed within pedagogical needs in determining what level of
services the numbers warrant (pp. 384-85). Funds allocated to minority
language schools should be at least the same per capita as those
allocated to majority language schools (p. 378). However, pedagogical needs
will, in most cases, prevent the imposition of unrealistic financial demands on
the state (p. 385). For example, it would not make sense, either from a
pedagogical or a cost perspective, to establish a school for only 10 students
in an urban centre. This would be true generally for educational services in
either language.
[48]
However, where numbers have previously been
found to warrant equivalent services, for example, in earlier litigation, the
“numbers warrant” analysis may become somewhat pro forma. Unless evidence of a
numbers decline puts into question whether the community still sits at the
upper end of the sliding scale, entitlement to a previously established level
of instruction and facilities is unlikely to be challenged. The more useful
inquiry for upper threshold rights-holder groups may be into whether they are
receiving the equivalence of the educational services guaranteed to them under
s. 23 . Costs and practicalities will be irrelevant when considering the
minimum requirements for educational equivalence.
[49]
It may be that costs and practicalities again
become relevant if a responsible party seeks to justify a violation of s. 23
under s. 1 of the Charter . As well, costs and practicalities may be
relevant where a court seeks to fashion a remedy that is “appropriate and just”
in the circumstances, pursuant to s. 24(1) of the Charter . Thus, it
does not automatically follow from a finding of a s. 23 breach that rights
holders will receive a new school. There is a perpetual tension in balancing
competing priorities; between the availability of financial resources and the
demands on the public purse. In fashioning a remedy, the court will take into
account the costs and practicalities that form part of the provision of all
educational services ― for both majority and minority language schools.
However, this issue is not before us on this appeal.
[50]
To summarize, issues of costs and practicalities
are considered in determining where a minority language community falls on the
sliding scale of rights guaranteed under s. 23 . Where the community is
entitled to the highest level of educational services, on an equal footing with
the majority language community, costs and practicalities will not be relevant
to a determination of whether the rights holders are receiving the services to
which they are entitled. It may be, however, that costs and practicalities
will be relevant in attempts to justify a breach of s. 23 , and in attempts to
fashion an appropriate and just remedy for a breach.
B.
Application to This Appeal
(1)
Equivalence
[51]
In the present case, the petition judge made a
number of factual findings regarding RDV and neighbouring English-language
schools. He found a number of serious inadequacies at RDV compared to English-language
schools in the area. Many of these are set out at the outset of these
reasons. The inadequacies at RDV are striking.
[52]
The judge also determined the number of eligible
students living in the catchment area to be at least 710, and found that the
Francophone population in the relevant area warrants the provision of
elementary school facilities capable of accommodating approximately 500
students. As of 2011, 344 students were enrolled at RDV, while the school has
an operating capacity of only 199 students. There is both overcrowding and
unmet demand at RDV.
[53]
As already mentioned, in 1996, the Supreme Court
of British Columbia found that
the number of children of rights holders in the
geographic area of Vancouver/Lower Mainland and Victoria warranted the maximum level of management
and control contemplated under s. 23 of the Charter : see Assn. des Parents Francophones. As of 1996, the
minority language community in Vancouver and Victoria was of sufficient numbers
to be entitled to the highest threshold of educational services anticipated by
the sliding scale: there were 8,725 eligible children in 1991 (paras. 44 and 53).
There was no suggestion in this appeal that today’s numbers are any less
compelling. It remains clear that the number of rights holders living west of
Main Street in Vancouver warrants the highest level of services, and thus
educational equivalence with nearby English-language schools.
[54]
The petition judge applied the correct test to
assess equivalence. In his reasons, he described the test to be applied as
follows:
I am of the
opinion that in measuring equivalence I should look primarily to factors that
influence parental enrollment decisions. I should look to evidence of the
aesthetic qualities of the facilities and their structural integrity as well as
evidence of academic outcomes. The principal objective of avoiding linguistic
assimilation should be borne in mind. [2012 BCSC 1614, at para. 135]
It is clear that the
judge understood that both facilities and academics are relevant. With respect
to academics, he held that to the extent that academic results contribute to
enrollment, they must be considered but do not constitute a substitute for a
comprehensive measure of equivalence. In the present case, the judge noted:
“[T]he parents and the CSF do not challenge the government’s position that
academic results are reasonably good. Parents are satisfied with the quality
of the instruction their children are receiving” (para. 138).
[55]
The judge compared RDV to the English-language
schools in the relevant catchment area in Vancouver. In the circumstances,
this represents an appropriate geographic scope for the assessment of
equivalence.
[56]
After reviewing the evidence, the judge
concluded that RDV was not equivalent to the majority language schools in the
area, stating:
I am
prepared . . . given the evidence with respect to the facilities
afforded to students at Rose-des-vents, to say that long travel times in this
case are clearly not offset by superior facilities or programs, and that
together with inadequate facilities, long travel times act as a disincentive to
enrolment, preserve the status quo, and defeat the purposes of s. 23 of
the Charter . . . . What can be said on the evidence is
that, collectively, the facilities, including transportation facilities,
afforded to the children of rights-holders in the City of Vancouver west of
Main Street are presently inadequate to meet the standard of equivalence
required to satisfy the constitutional guarantee established by s. 23 . [para.
157]
[57]
The judge comprehensively and holistically
assessed the relevant factors. He noted the high quality of instruction and
good academic outcomes. However, in the determination of overall substantive
equivalence, he concluded that the programs offered at RDV were not so superior
as to offset its inadequate facilities, overcrowding and long travel times. In
his opinion, the disparity between the minority and majority language schools
was such as to limit enrolment and contribute to assimilation. I can see no
error in principle in his analysis.
(2)
The Declaration
[58]
At the end of the first phase of the proceedings,
the petition judge issued a declaration that the rights holders in the
designated area “are not being provided the minority language educational
facilities guaranteed to them by s. 23 ” (2012 BCSC 1614, at para. 160).
[59]
The Province argues that a court cannot make a
finding that a group of s. 23 rights holders is not receiving what they are
entitled to without first determining responsibility. In its view, a finding that
a minority language school lacks equivalence does not equal a finding of a s.
23 breach.
[60]
The Parents disagree. They characterize the
judge’s conclusion as a finding of a s. 23 breach, albeit one that does not
assign responsibility for that breach. The Parents are of the view that a
declaration alone could be sufficient to facilitate a resolution to the
situation. Section 1 has not been pleaded and has not been extensively argued
up to this point in the proceedings.
[61]
In my view, the judge’s declaration in this case
constitutes a limited, or prima facie, declaration of a breach of s.
23 . In these circumstances, where the children of s. 23 rights holders are
entitled to an educational experience equivalent to that of majority language
children, there is no difference between a finding of a lack of equivalence and
a finding that the rights holders have not received the services to which they
are entitled under s. 23 . In effect, unless the absence of equivalence can be
justified under s. 1 , it is a violation of the claimants’ Charter
rights. Put differently, what else could save a breach, other than
justificationof the
failure to provide equivalent services or to allocate sufficient resources?
However, since responsibility for the breach has not yet been assigned ―
and leaving open the possibility that the responsible party or parties may seek
to justify the breach ― it cannot be said that the judge’s declaration
constitutes a complete finding of a Charter violation. Indeed, the
judge’s careful phrasing of his declaration indicates that he was alive to
these complexities.
[62]
Establishing responsibility for the breach may
be relevant to crafting an appropriate remedy, should one be necessary. Even
if the CSF was found, at a later phase of the proceedings, to be the sole party
responsible for the absence of equivalence, such a finding would not undermine
the judge’s declaration at the conclusion of the first phase. The Charter binds
both the Province and the CSF: see Multani
v. Commission scolaire
Marguerite-Bourgeoys, 2006 SCC 6,
[2006] 1 S.C.R. 256, at
para. 22. Provinces have
mechanisms for overseeing good governance by school boards. Even if the CSF
were found solely responsible for the breach, restoring and maintaining
educational equivalence at RDV may require action and expenditure on the part
of both the CSF and the Province.
[63]
In summary, the judge’s declaration regarding
the lack of s. 23 equivalence represents the equivalent of a declaration of a prima
facie breach of s. 23 , subject to the future determination of responsibility,
justification for the breach (if applicable), and positive remedy.
(3)
The Effect of the Declaration
[64]
As of this stage of the proceedings, any
positive remedy remains outstanding. The petition judge gave no specific
direction to the Province or to the CSF.
[65]
That said, there is a tradition in Canada of
state actors taking Charter declarations seriously: see, e.g., P. W.
Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 40-37. As
this Court noted in Doucet-Boudreau, “[t]he assumption underlying this
choice of remedy is that governments will comply with the declaration promptly
and fully” (para. 62). Indeed, this represents one reason why courts often
choose to issue declarations in the context of s. 23 (M. Doucet, “L’article 23
de la Charte canadienne des droits et libertés ” (2013), 62 S.C.L.R.
(2d) 421, at pp. 462-63).
[66]
The Parents hope that as a result of this
declaration, the main actors implicated ― the Province and the CSF
― will recognize the need to promptly address the inadequate facilities
at RDV. They hope that there is no need to await the outcome of the
province-wide litigation, or any subsequent phase of this litigation.
[67]
The declaratory relief granted by the judge at
the conclusion of the first phase of litigation defers to the parties, allowing
them to determine among themselves the best course of action to remedy the lack
of equivalence (see Mahe, at pp. 392-93). To the extent that there are disputes between a provincial ministry
of education and a minority language school board over how best to ensure
compliance with the requirements of s. 23 , these disputes should be worked out
between those parties whenever possible. While parents may have representation
on school boards, and thus have a degree of input over school board priorities,
school boards are also governmental actors. It does not play to the
institutional strength of courts to have judges participate deeply in
operational questions, such as detailed decisions surrounding the construction
of a new school facility. In the face of competing resource demands and the
imperfect realities of day-to-day management of an education system, s. 23 of
the Charter requires good faith on the part of all interested parties to
ensure substantive equivalence for rights holders.
[68]
As this Court noted in Doucet-Boudreau, “[f]or
every school year that governments do not meet their obligations under s. 23 ,
there is an increased likelihood of assimilation”, which undermines the
remedial goals of s. 23 (para. 29). The situation is urgent.
(4)
Organization of the Proceedings
(a)
Justice Willcock’s Phasing Order
[69]
Properly structured, communicated, and
understood, phasing can facilitate access to justice by ordering a proceeding
in such a way as to resolve first those issues that can be dealt with more
expeditiously, while leaving to later phases more time-consuming or complex
issues, particularly where it may prove unnecessary to engage the later
stages. This can be particularly important in litigation involving s. 23 of
the Charter . For this reason, it is understandable that minority
language education rights holders would seek a timely determination of whether
or not they are receiving the services required by s. 23 .
[70]
This interest in the timely determination of s.
23 rights does not mean that normal rules of procedural fairness cease to
apply. However, it is relevant to the exercise of a judge’s discretion to use
phasing or other types of creative structuring of proceedings.
[71]
In this case, the petition judge phased the
proceedings in light of the limited nature of the Parents’ requested relief,
taking into consideration the efficient use of judicial resources and the
special nature of s. 23 . Determining responsibility for the breach was left
for a subsequent phase of proceedings, if necessary.
[72]
Additionally, the ongoing litigation between the
CSF and the Province involves the apportionment of responsibility for alleged
s. 23 breaches on a province-wide scale. The outcome of that litigation may
impact the future course of the proceedings under appeal here. From the
Parents’ perspective, the outcome of the province-wide litigation may obviate
the need for a subsequent phase of these proceedings.
[73]
Responsibility for the breach at issue here cannot
be determined until the next phase of proceedings. Division of responsibility
will determine where the burden of justifying the s. 23 violation lies, if a s.
1 argument is raised. Similarly, the division of responsibility would most
likely precede any substantive remedial orders.
(b)
Striking of Pleadings and Procedural Directions
[74]
Given the phasing of the petition, the portions
of the Province’s pleadings struck by the judge were not relevant to the
first-phase inquiry into equivalence. In the circumstances, it was open to the
judge to strike those portions of the Province’s pleadings. Further, the judge
was entitled to decline to hear evidence on the question of responsibility for
any inadequacies at RDV. While the judge’s communication of the phasing of the
petition was perhaps not as clear as it might have been, this did not result in
any prejudice to the parties. It was clear throughout the proceedings that the
judge would not assign responsibility for any s. 23 breach or fashion any
remedy as part of the first phase.
[75]
The Province’s struck pleading that there are
many school facilities in British Columbia that could benefit from upgrading,
renovation or replacement is irrelevant to the question of whether the children
of rights holders are receiving instruction and facilities equivalent to those
received by similarly situated majority language students. Similarly, the Province’s
struck pleading that there are many causes of assimilation apart from
inadequate facilities does not assist the court in the evaluation of
substantive equivalence between minority and majority language schools. Moreover,
the Province’s pleading that there is a variety of reasons for which rights
holders could choose not to send their children to RDV is similarly irrelevant
to the question of equivalence. I agree that there could be circumstances
where a parent may take her child out of RDV for a reason other than a lack of
equivalence. However, this does not negate the evidence that other
students were not enrolled or were withdrawn from the school due to long
transportation times or inadequate facilities. Thus, the struck pleading is
not relevant to the question of equivalence.
[76]
The Province’s struck pleading that most of the
students at RDV are children of exogamous couples, and that a decrease in the
use of French at home is related to the incidence of exogamous couples, is also
irrelevant. By the express terms of s. 23 , a member of
an exogamous couple can be a rights holder. The children of couples that
include one rights holder are entitled to attend minority language schools. As
this Court has underlined, s. 23(2) applies “without regard to the fact that
qualified parents or children may not be French or English, or may not speak
those languages at home” (Solski (Tutor of) v. Quebec (Attorney General),
2005 SCC 14, [2005] 1 S.C.R. 201, at para. 31). Indeed, a French-language
school may play a crucial role in the transfer of the French language and
culture where it is more difficult for one of the parents to transmit the
language and culture in a minority context: see R. Landry and R. Allard,
“L’exogamie et le maintien de deux langues et de deux cultures: le rôle de la
francité familioscolaire” (1997), 23 Revue des sciences de l’éducation
561.
[77]
Relevance is assessed against the facts in
issue. Here, the question that guides the inquiry into substantive equivalence
between minority and majority language facilities is the following: would
reasonable rights holders be deterred from sending their children to a minority
language school because it is meaningfully inferior to an available majority
language school? Where a proceeding has been formally phased to separate this
question from other elements of the s. 23 analysis, evidence that does not
assist in answering this question would normally not be relevant. Considered
from this perspective, it is clear that the petition judge was entitled to
strike the portions of the Province’s pleadings.
[78]
Far from being unfair to the parties, limiting
the evidence that may be adduced according to the phasing of proceedings heeds
this Court’s guidance in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R.
87. Judges must actively manage the legal process in line with the principle
of proportionality, taking into account fair access to the affordable, timely
and just adjudication of claims: Hryniak, at paras. 32 and 5. Such
considerations apply with equal force to s. 23 litigation.
[79]
Some or all of the Province’s struck pleadings
may be relevant to a subsequent phase of the litigation. However, based on the
judge’s organization of the proceedings, they do not assist in the first phase
at issue in this appeal. Of course, his decision is without prejudice to any
motions on the part of one or more of the parties to amend their pleadings at
subsequent phases of the litigation.
[80]
For the same reasons, it was not inappropriate for
the judge to deny the Province’s adjournment request to adduce new evidence
during the first phase of proceedings. The additional evidence that the Province
sought to adduce was largely irrelevant to the questions at issue in the first
phase, and the judge concluded that the prejudice likely to be created by the
delay outweighed the marginal relevance of the evidence.
[81]
Given the lack of relevance of the pleadings
struck, the Court of Appeal erred in setting aside the order striking the pleadings,
and in setting aside the judge’s declaration.
V.
Disposition
[82]
The appeal is allowed and the petition judge’s
declaration is reinstated. The matter will be remitted to the Supreme Court of
British Columbia for the next phase of the petition, if necessary.
VI.
Costs
[83]
The judge awarded special costs to the Parents
throughout the proceedings and to the CSF for all proceedings on or after November
4, 2011. He made this award on the basis that the Parents and the CSF were
successful public interest litigants. The Court of Appeal set aside the award
of special costs on the basis that the Parents and the CSF were no longer the
successful litigants. As this Court is restoring the judge’s declaration,
absent an error in principle or a plainly wrong award, his award of special costs
should also be restored: see Hamilton v. Open Window Bakery Ltd., 2004
SCC 9, [2004] 1 S.C.R. 303, at para. 27.
[84]
As this Court recently emphasized in Carter
v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the standard for awarding special
costs is a high one; only exceptional cases will warrant such treatment (para.
139). This Court described the test for special costs as a modification of the
test for advance costs in British Columbia (Minister of Forests) v. Okanagan
Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371. The test for special costs described
in Carter sets out two requirements:
First, the case must involve
matters of public interest that are truly exceptional. It is not enough that
the issues raised have not previously been resolved or that they transcend the
individual interests of the successful litigant: they must also have a
significant and widespread societal impact. Second, in addition to showing
that [the plaintiffs] have no personal, proprietary or pecuniary interest in
the litigation that would justify the proceedings on economic grounds, the [plaintiffs]
must show that it would not have been possible to effectively pursue the
litigation in question with private funding. . . .
Where
these criteria are met, a court will have the discretion to depart from the
usual rule on costs and award special costs. [paras. 140-41]
This Court further noted
that only those costs that are shown to be “reasonable and prudent” will be
covered (para. 142).
[85]
Although the judge in the present case did not
have the benefit of this Court’s decision in Carter, his reasons with
respect to costs show that he was alive to the considerations outlined in that
case. Moreover, he was clearly alive to the exceptional nature of such an
award, as evidenced by his frequent use of the words “exceptional” and
“exception” throughout his reasons.
[86]
He found that the matter before him was one of
significant and widespread societal impact:
The questions were of public importance
as they involved constitutional principles and the sufficiency of measures
taken to protect the minority language culture which is regarded as an
important objective for all Canadians, given its place in the Charter .
The case therefore implicates fundamental social values and policies. [2013
BCSC 1111, at para. 72]
As required by Carter,
these findings go beyond the basic requirements set out in Victoria (City)
v. Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28.
[87]
Furthermore, the petition judge concluded that the
interest of the Parents and the CSF was not such as would justify the
proceedings on economic grounds given their means and the high cost of
litigation. Regarding the ability of the Parents to bear the costs of the
litigation, the judge referred to LeBel J.’s majority reasons in Okanagan
on the importance of access to Charter justice for litigants of limited
means:
In special cases where individual
litigants of limited means seek to enforce their constitutional rights, courts
often exercise their discretion on costs so as to avoid the harshness that
might result from adherence to the traditional principles. This helps to
ensure that ordinary citizens have access to the justice system when they seek
to resolve matters of consequence to the community as a whole. [para. 27]
The judge turned his mind
to the limited ability of the Parents to bear the costs of the proceedings.
Further, he noted the Province’s superior capacity to bear these expenses, and
the inability of the CSF to bear such costs without impacting students, thus
risking further s. 23 violations. While, according to Carter, the fact
that the unsuccessful party has a superior capacity to bear the cost of the
proceedings cannot, in itself, justify an award of special costs, it remains a
relevant consideration: Carter, at para. 137.
[88]
The type of litigation at issue in this appeal
is unusual. The Parents already had a right to minority language education
recognized under s. 23 , and their petition was initiated largely as a means to
compel the Province and the CSF to live up to existing obligations. This
process raised novel legal questions regarding the analysis of equivalence
under s. 23 . By seeking a simple declaration of a lack of equivalence under s.
23 , without seeking a positive remedy at the outset, the Parents evidently
hoped to resolve some of their issues outside of the courtroom, by way of
negotiation with the Province and the CSF.
[89]
Even with such a focused approach, litigation of
this nature is nonetheless an onerous burden for a small group of parents to
bear. It is for this reason that courts have, in the past, awarded special
costs in cases involving s. 23 violations where the rights holders made
sustained efforts to alert government to the s. 23 issues prior to launching
legal proceedings: see Doucet-Boudreau, at para. 90; Arsenault-Cameron, at para. 63; Arsenault-Cameron v. Prince Edward Island (1997), 149
Nfld. & P.E.I.R. 96 (P.E.I.S.C.T.D.), at paras. 12-14; Marchand v. Simcoe County
Board of Education (1986), 12 C.P.C. (2d) 140 (Ont.
H.C.), at pp. 142-43.
[90]
In these circumstances, the cost award of the
judge will be restored. I would also order special costs to the Parents and
the CSF for the appeal proceedings.
Appeal
allowed with costs.
Solicitors for the
appellants Association des parents de l’école Rose-des-vents et al.: Nicolas M.
Rouleau, société professionnelle, Toronto; Joseph Pagé, Vancouver.
Solicitors for the
appellant Conseil scolaire francophone de la Colombie-Britannique: Gall, Legge,
Grant & Munroe, Vancouver; Power Law, Ottawa.
Solicitors for the respondents: Attorney General of British
Columbia, Victoria; McCarthy Tétrault, Vancouver.
Solicitor for the
intervener the Attorney General for Saskatchewan: Attorney General for
Saskatchewan, Regina.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of Alberta,
Edmonton.
Solicitors for the
intervener the Attorney General of the Northwest Territories: Gowling Lafleur
Henderson, Ottawa.
Solicitors for the
intervener the Attorney General of the Yukon Territory: Attorney General of the
Yukon, Whitehorse; Gowling Lafleur Henderson, Ottawa.
Solicitor for the
intervener the Commissioner of Official Languages of Canada: Office of the
Commissioner of Official Languages, Gatineau.
Solicitors for the interveners Commission scolaire francophone,
Territoires du Nord-Ouest, Fédération nationale des conseils scolaires
francophones, Conseil des écoles fransaskoises and Commission scolaire
francophone du Yukon: Miller Thomson, Regina.