Société des Acadiens du Nouveau-Brunswick Inc. and Association des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, (1986) 69 N.B.R.(2d) 271 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, Chouinard, Lamer, Wilson and Le Dain, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 01, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 69 N.B.R.(2d) 271 (SCC);23 CRR 119;[1986] SCJ No 26 (QL);177 APR 271;[1986] ACS no 26;69 NBR (2d) 271;66 NR 173;19 Admin LR 211;[1986] 1 SCR 549;27 DLR (4th) 406;1986 CanLII 66 (SCC)

Soc. des Acadiens v. Minority Language (1986), 69 N.B.R.(2d) 271 (SCC);

    69 R.N.-B.(2e) 271; 177 A.P.R. 271

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Société des Acadiens du Nouveau-Brunswick Inc. et l'Association des conseillers scolaires francophones du Nouveau-Brunswick v. Association of Parents for Fairness in Education, Grand Falls District 50 Branch (intended intervenor) and Minority Language School Board No. 50 (defendant) and Attorney General of Canada and Attorney General of New Brunswick

(No. 18781)

Indexed As: Société des Acadiens du Nouveau-Brunswick Inc. and Association des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch

Répertorié: Société des Acadiens du Nouveau-Brunswick Inc. and Association des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, Chouinard, Lamer, Wilson and Le Dain, JJ.

May 1, 1986.

Summary:

Résumé:

In 1981 the Schools Act, R.S.N.B. 1973, c. S-5, was amended to provide for the establishment of separate French and English school systems to replace the bilingual system. In the Grand Falls region a minority English language school board was established. The board not only accepted Francophone students into their regular English-speaking program, but also permitted Francophone students to enrol in its French immersion program for Anglophone students. Two Francophone organizations objected to the board's practice and brought an action for a declaration that the practice was illegal and for an injunction to restrain it.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in (1983), 48 N.B.R.(2d) 361; 126 A.P.R. 361, allowed the action in part. The court held that in New Brunswick a parent is free to choose to register his child in a French or English school system, provided that the child has a sufficient knowledge of the chief language of instruction in the school, which sufficiency the school board has the power to determine. However, a school board of one language may not offer immersion training in the other language to a student who can already function in the other language. Specifically, the Grand Falls English school board could take Francophone students, if they were sufficiently fluent in English, but could not place a Francophone student in a French immersion program for English students. The court declined to grant a permanent and mandatory injunction against the school board, but stated that it would consider injunctive relief later should the need arise.

Subsequently, the Francophone organization applied for an injunction regarding two students enrolled in total immersion. At a pretrial conference prior to the hearing of the motion, the New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in 50 N.B.R.(2d) 41; 131 A.P.R. 41, issued a clarification of its earlier decision.

On the hearing of the motion, the New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in 51 N.B.R.(2d) 219; 134 A.P.R. 219, declined to grant the injunction requested regarding the two total immersion students.

An intended intervenor moved for leave to appeal and, if granted, an extension of time within which to file its notice of appeal. The application was made before Stratton, J.A., of the New Brunswick Court of Appeal. The Francophone organization requested that the matter be heard by a bilingual judge, because some presentations in the French language would be made. Stratton, J.A., in a judgment reported 53 N.B.R.(2d) 158; 138 A.P.R. 158, adjourned the hearing of the motion to be held before the Court of Appeal.

The Court of Appeal, composed of two Francophones and Stratton, J.A., (who sat without protest from the Francophone organization) allowed the application in a judgment reported 54 N.B.R.(2d) 198; 140 A.P.R. 198, and granted the intended intervenor leave to appeal and an extension of time within which to file its notice of appeal. The Francophone organization appealed on three grounds. Firstly, it asked whether the New Brunswick Court of Appeal had inherent jurisdiction to grant leave to appeal to a person who is not a party and was out of time. Secondly, if the court had such jurisdiction, was its discretion exercised properly? Thirdly, the following language rights constitutional question was posed: "Does s. 19(2) of the Canadian Charter of Rights and Freedoms entitle a party pleading in a court of New Brunswick to be heard by a court, the member or members of which are capable of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties?"

The Supreme Court of Canada dismissed the appeal. The court per Wilson, J., unanimously held "that the New Brunswick Court of Appeal has inherent jurisdiction under s. 8(2) of the Judicature Act based on the ancient practice of the High Court of Chancery in England to grant leave to appeal to a nonparty in a proper case" and that the Court of Appeal properly exercised its discretion to extend the time for filing the notice of appeal. See paragraphs 87 to 127. The court unanimously answered the language rights constitutional question in the affirmative and the majority per Beetz, J., held: "A party pleading in a court of New Brunswick is entitled to be heard by a court, the member or members of which are capable by any reasonable means of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties; this entitlement is derived from the principles of natural justice and from s. 13(1) of the Official Languages of New Brunswick Act, however, and not from s. 19(2) of the Canadian Charter of Rights and Freedoms." The court held that the appellant failed to demonstrate that Stratton, J.A., did not understand the French language presentations at the hearing before the Court of Appeal.

Civil Rights - Topic 2704

Language rights - General principles - Language rights v. rules of natural justice - The Supreme Court of Canada held that the language rights guaranteed in s. 133 of the Constitution Act, 1867, and s. 19(2) of the Canadian Charter of Rights and Freedoms are not to be confused with the requirements of natural justice - Hence, ss. 133 and 19(2) guarantee that a person has the right to speak or write in court in the language of his choice, but do not guarantee that he will be heard or understood - The court held that a litigant's right to be heard and understood and to understand court proceedings is a common law legal right and part of the right to a fair hearing - See paragraphs 13 to 25.

Civil Rights - Topic 2721

Language - Court proceedings - General - The Canadian Charter of Rights and Freedoms, s. 19(2) provided: "either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick" - A Francophone litigant claimed that s. 19(2) required that a judge capable of understanding French was required to sit on cases involving French language presentations - The Supreme Court of Canada held: "A party pleading in a court of New Brunswick is entitled to be heard by a court, the member or members of which are capable by any reasonable means of understanding the proceedings, the evidence and the arguments, written and oral, regardless of the official language used by the parties; this entitlement is derived from the principles of natural justice and from s. 13(1) of the Official Languages of New Brunswick Act, however, and not from s. 19(2) of the Canadian Charter of Rights and Freedoms" - The court held that the language rights guaranteed in s. 133 of the Constitution Act, 1867, and s. 19(2) of the Canadian Charter of Rights and Freedoms are not to be confused with the requirements of natural justice - Hence, ss. 133 and 19(2) guarantee that a person has the right to speak or write in court in the language of his choice, but do not guarantee that he will be heard or understood - The court held that a litigant's right to be heard and understood and to understand court proceedings is a common law legal right and part of the right to a fair hearing.

Civil Rights - Topic 3113

Trials - Due process - Fundamental justice and fair hearings - General principles - Due process - Right to understand proceedings - The Supreme Court of Canada held that a litigant's right to be heard and understood and to understand court proceedings is a common law legal right and part of the right to a fair hearing - The right of a litigant to use French or English in a New Brunswick court guaranteed by s. 19(2) of the Canadian Charter of Rights and Freedoms merely guarantees the right of a person to speak or write in the language of his choice, but does not guarantee that he will be heard or understood - The court held that a person is entitled to be heard by a court capable by any reasonable means of understanding, but the entitlement derives from the principles of natural justice and not from s. 19(2) of the Charter.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Of purpose of right or freedom - Dickson, C.J.C., of the Supreme Court of Canada stated that the Supreme Court of Canada has endorsed a purposive approach to interpreting the Canadian Charter of Rights and Freedoms - Dickson, C.J.C., stated: "To give effect to a purposive approach in the language context, it is important to consider the constitutional antecedents of the Charter language protections, the cardinal values and purpose of the guarantees, the words chosen to articulate the rights, the character and larger objects of the Charter, and the purpose and meaning of other relevant Charter rights and freedoms" - See paragraph 48.

Constitutional Law - Topic 1007

Constitution Act - Interpretation - General principles - Judicial restraint respecting political issues - The Supreme Court of Canada distinguished between legal rights, such as the right to a fair hearing in accordance with the principles of natural justice, and rights founded on political compromise, such as language rights in the Canadian Charter of Rights and Freedoms and s. 133 of the Constitution Act, 1867, and stated that the court should exercise restraint in construing rights based on political compromise - See paragraphs 13 to 31.

Constitutional Law - Topic 7750

Language rights - Constitution Act, 1867, s. 133 - Effect of - The Canadian Charter of Rights and Freedoms, s. 19(2), provided: "either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick" - The Supreme Court of Canada held that s. 19(2) was borrowed from the English version of s. 133 of the Constitution Act, 1867, and should be construed to have the same effect as s. 133 - The Supreme Court of Canada held that the language rights guaranteed in s. 133 of the Constitution Act, 1867, and s. 19(2) of the Canadian Charter of Rights and Freedoms are not to be confused with the requirements of natural justice - Hence, ss. 133 and 19(2) guarantee that a person has the right to speak or write in court in the language of his choice, but do not guarantee that he will be heard or understood - The court held that a litigant's right to be heard and understood and to understand court proceedings is a common law legal right and part of the right to a fair hearing - See paragraphs 13 to 25.

Practice - Topic 8989

Appeals - When appeal available - Persons entitled to appeal - Nonparties - The New Brunswick Court of Appeal exercised its inherent jurisdiction and granted leave to appeal to an unincorporated association of persons who, although not a party or parties to the action, was aggrieved by its decision, whose interests were unrepresented at trial, and where (1) legal issues would be raised and (2) no parties intended to appeal but would suffer no inconvenience by responding to the association's appeal - The Court of Appeal also extended the time for filing a notice of appeal - The Supreme Court of Canada in upholding the Court of Appeal's decision held that the Court of Appeal had "inherent jurisdiction under s. 8 (2) of the Judicature Act, based on the ancient practice of the High Court of Chancery in England to grant leave to appeal to a nonparty in a proper case" - See paragraphs 2, 80, 87 to 127.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - An unincorporated association of persons aggrieved by a decision obtained leave to appeal as a defendant - The association tried unsuccessfully to intervene at trial - Many members of the association did not fully appreciate the consequences of the decision until a clarification was issued from the court - After organizing and obtaining a lawyer and funds to pay legal fees, the application was launched - The New Brunswick Court of Appeal extended the time for the association to file its appeal, because it exercised reasonable diligence in bringing the matter before the court - The Supreme Court of Canada upheld the decision and held that the Court of Appeal had inherent jurisdiction to grant leave to appeal to a nonparty and properly exercised its discretion in granting an extension of time to file the notice of appeal - See paragraphs 2, 80, 87 to 127.

Statutes - Topic 1624

Interpretation - Extrinsic aids - Other statutes - Prior statutes respecting same subject matter - The Supreme Court of Canada in determining the jurisdiction of the New Brunswick Court of Appeal under s. 8 (2) of the Judicature Act examined predecessor New Brunswick and English statutes - See paragraphs 90 to 92 - The court in construing s. 19(2) of the Canadian Charter of Rights and Freedoms respecting language rights considered the meaning of s. 133 of the Constitution Act, 1867, from which s. 19(2) was borrowed - See paragraphs 10 to 15, 49 to 59.

Cases Noticed:

Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, consd. [paras. 28, 53, 139, 147].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 11 C.C.C.(3d) 481; 9 D.L.R.(4th) 161; 8 C.R.R. 193, consd. [para. 48].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 41 C.R.(3d) 97; 9 C.R.R. 355; 27 B.L.R. 297; 2 C.P.R.(3d) 1, consd. [para. 48].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, consd. [para. 48].

Reference re Section 94(2) of Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, consd. [para. 48].

Mercure v. Attorney General of Saskatchewan, [1986] 2 W.W.R. 1; 44 Sask.R. 22 (C.A.), consd. [paras. 50, 163].

Robin v. College de St-Boniface (1984), 28 Man.R.(2d) 301, affd. 30 Man.R.(2d) 50 (C.A.), consd. [paras. 50, 168, 170].

R. v. Tremblay (1985), 41 Sask.R. 49; 20 C.C.C.(3d) 454 (Q.B.), consd. [paras. 50, 166].

R. v. Paquette, [1985] 6 W.W.R. 594; 63 A.R. 258 (Alta. Q.B.), consd. [paras. 50, 167].

Blaikie v. Attorney General of Quebec (No. 1), [1979] 2 S.C.R. 1016; 30 N.R. 225, consd. [paras. 54, 147].

Blaikie v. Attorney General of Quebec (No. 2), [1981] 1 S.C.R. 312; 36 N.R. 120, consd. [paras. 54, 147].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, consd. [paras. 56, 147].

Bilodeau v. Attorney General of Manitoba (1986), 67 N.R., consd. [para. 57].

Montreal (City of) v. MacDonald (1986), 67 N.R. 1, consd. [para. 57].

Securities Insurance Company, Re, [1894] 2 Ch. 410, appld. [para. 99].

Padstow Total Loss and Collision Assurance Association (1882), 20 Ch. D. 137, consd. [para. 103].

Gwynne v. Edwards (1845), 9 Beav. R. 22, consd. [para. 104].

Madras Irrigation and Canal Company; Wood v. Madras Irrigation and Canal Company (1883), 23 Ch. D. 248, consd. [para. 105].

Markham, Re (1880), 16 Ch. D. 1, consd. [para. 106].

Dumoulin v. Langtry (1886), 13 S.C.R. 258, reving 11 Ont. App. R. 544 (C.A.), consd. [para. 108].

Henderson and Township of West Nissouri, Re (1911), 23 O.L.R. 651, consd. [para. 109].

Fussel v. Dowding (1884), 27 Ch. D. 237, consd. [para. 110].

Curtis v. Sheffield (1882), 21 Ch. D. 1, consd. [para. 110].

Manchester Economic Building Society, Re (1883), 24 Ch. D. 488, consd. [para. 116].

Cairns v. Cairns, [1931] 4 D.L.R. 819, consd. [para. 117].

Wigfull & Sons', Lim. Trade Mark, Re (1918), 88 L.J. Ch. 30, consd. [para. 117].

R. v. E. & A. Leduc Ltee, [1955] Ex. C.R. 286, consd. [para. 118].

Bank of Nova Scotia v. Brown (1967), 40 N.B.R.(2d) 245; 105 A.P.R. 245, consd. [para. 119].

Lane v. Esdaile, [1891] A.C. 210, consd. [para. 123].

Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; 30 N.R. 316, consd. [para. 123].

Joyal v. Air Canada, [1976] C.S. 1211, revd. [1982] C.A. 39; 134 D.L.R.(3d) 410, consd. [paras. 133, 134].

Association des Gens de l'Air du Quebec Inc. v. Lang, [1977] 2 F.C. 22, affd. [1978] 2 F.C. 371; 22 N.R. 328, consd. [para. 136].

R. v. Reale, [1975] 2 S.C.R. 624; 8 N.R. 164, consd. [para. 144].

Unterreiner v. R. (1980), 51 C.C.C.(2d) 373, consd. [para. 144].

Miller v. R., [1970] S.C.R. 214, consd. [para. 157].

Veuillette v. R. (1919), 58 S.C.R. 414, consd. [para. 158].

R. v. Mercure, [1981] 4 W.W.R. 435, consd. [para. 162].

Statutes Noticed:

Administration of Justice in Equity Act, R.S.N.B. 1854, vol. 2, c. 18, sect. 1, sect. 2 [para. 92].

Canadian Charter of Rights and Freedoms, sect. 7 [para. 20]; sect. 14 [paras. 20, 142]; sect. 16 [paras. 9, 26, 61, 130]; sect. 17 [paras. 9, 130]; sect. 18 [paras. 9, 130]; sect. 19 [paras. 9, 46, 130]; sect. 20 [paras. 9, 130]; sect. 21 [paras. 9, 130]; sect. 22 [paras. 9, 130]; sect. 27 [para. 142].

Constitution Act, 1867, sect. 133 [paras. 10, 52].

Constitution Act, 1982, sect. 43 [para. 29].

Improvement of the Practice in the Court of Chancery Act, 1839 (U.K.), c. 35, sect. 13 [para. 92].

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 1, sect. 2(1) [para. 91]; sect. 8(2) [paras. 87, 90]; sect. 21 [para. 91].

Judicature Act, R.S.N.B. 1952, c. 120, sect. 8(2), sect. 23 [para. 91].

Judicature Act, R.S.N.B. 1927, c. 113, sect. 8(1), sect. 23 [para. 91].

Judicature Act, S.N.B. 1909, c. 5, sect. 13, sect. 15 [para. 91].

Judicature Act, S.N.B. 1906, c. 37, sect. 3, sect. 6, sect. 19, sect. 20 [para. 91].

Official Languages Act, R.S.C. 1970, c. O-2, sect. 2 [para. 132].

Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O-1, sect. 2 [para. 188]; sect. 13(1) [paras. 15, 129, 188]; sect. 13(1.1), sect. 15 [para. 188].

Official Languages (Documents) Regulations, N.B. Reg. 76-47 [para. 181].

Practice and Proceedings in the Supreme Court in Equity Act, S.N.B. 1890, c. 4, sect. 131 [para. 113].

Rules of Court (N.B.), rule 3.02 [paras. 101, 112]; rule 15.01, rule 62.21 [para. 89]; rule 62.03 [para. 112].

Authors and Works Noticed:

Barristers' Society of New Brunswick, Final Report of Committee on Integration of the Two Official Languages in the Practice of Law (1981) [para. 145].

Daniell's Chancery Practice (8th Ed. 1914), vol. 1, p. 147 [para. 100]; vol. 2, p. 1111 [para. 96]; 1127-1128 [para. 114].

Gautron, Alain, French/English Discrepancies in the Canadian Charter of Rights and Freedoms (1982), 12 Man. L.J. 220 [para. 143].

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23 [para. 94].

Katz, Are there Constitutionally Guaranteed Rights in the Criminal Code Proceedings, (1973) 11 Osgoode, Hall L.J., 545 [para. 157].

Magnet, The Charter's Official Languages Provisions: The Implications of Entrenched Bilingualism (1982), 4 S.C.L. Rev. 163 [para. 135].

Royal Commission on Bilingualism and Biculturalism Report [para. 183].

Smith, John Sydney, A Practice of the Court of Chancery (1855), pp. 282 [para. 97]; 283 [para. 115].

Supreme Court Practice (U.K.), vol. 1, p. 814 [para. 98].

Tarnopolsky and Beaudoin, Canadian Charter of Rights and Freedoms: Commentary (1982), p. 457 [paras. 62, 132, 147, 177].

Tremblay, Andre, L'Interpretation des dispositions constitutionnelles relatives aux droits linguistiques (1983), 13 Man. L.J. 651, 653 [para. 60].

Tremblay, "The Language Rights", Canadian Charter of Rights and Freedoms: Commentary (1982), Tarnopolsky and Beaudoin, Eds., p. 443 [paras. 62, 132, 147, 177].

Vers L'Egalite des langues officielles au Nouveau-Brunswick (1982) [para. 180].

Counsel:

Maurice F. Bourque and Robert Decary, for the appellants;

John C. Friel, for the respondent;

Alban Garon, Q.C., and Roger Roy, for the Attorney General of Canada;

Bruce Judah, for the Attorney General of New Brunswick.

This case was heard on December 4 and 5, 1984, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, Chouinard, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada.

On May 1, 1986, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Beetz, J. (Estey, Chouinard, Lamer and Le Dain, JJ., concurring) - see paragraphs 1 to 41;

Dickson, C.J.C. - see paragraphs 42 to 81;

Wilson, J. - see paragraphs 82 to 192.