Arsenault-Cameron et al. v. Prince Edward Island, (2000) 184 Nfld. & P.E.I.R. 44 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 04, 1999
• Jurisdiction: Canada (Federal)
• Citations: (2000), 184 Nfld. & P.E.I.R. 44 (SCC);249 NR 140;70 CRR (2d) 1;184 Nfld & PEIR 44;559 APR 44;[2000] 1 SCR 3;[2000] ACS no 1;2000 SCC 1;181 DLR (4th) 1;[2000] SCJ No 1 (QL)

Arsenault-Cameron v. P.E.I. (2000), 184 Nfld. & P.E.I.R. 44 (SCC);

    559 A.P.R. 44

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. JA.029

Noëlla Arsenault-Cameron, Madeleine Costa-Petitpas and the Fédération des parents de l'Île-du-Prince-Édouard Inc. (appellants) v. The Government of Prince Edward Island (respondent) and The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Manitoba, the Commission scolaire de langue française de l'Île-du-Prince-Édouard, the Commission nationale des parents francophones, the Société St-Thomas d'Aquin - Société acadienne de l'Île-du-Prince-Édouard (SSTA), and the Commissioner of Official Languages of Canada (interveners)

(26682)

Indexed As: Arsenault-Cameron et al. v. Prince Edward Island

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.

January 13, 2000.

Summary:

Francophone parents sued the Province of Prince Edward Island for: (1) a declaration pursuant to s. 24 of the Charter that they had the right to have their children receive elementary school French first language instruction in the Summerside area of Prince Edward Island in a facility for that purpose; (2) an order pursuant to s. 24 requiring the Province to pay for the instruction out of public funds; (3) a declaration pursuant to s. 24 of the Charter and s. 52 of the Constitution Act, 1982, that, to the extent that the School Act Regulations were inconsistent with s. 23 of the Charter, they were unconstitutional and of no force and effect; (4) a declaration pursuant to the court's inherent jurisdiction that s. 6.08(4) of the Regulations was unconstitutional and of no force and effect; (5) an order pursuant to s. 24 of the Charter requiring the Province to compensate the parents by way of general aggravated and punitive damages for the violation of their s. 23 rights; (6) an order requiring the Province to compensate the parents by way of general and aggravated damages resulting from the Minister of Education's negligence; (7) an order for costs on a solicitor and client basis; and (8) such other relief as the court deemed just.

The Prince Edward Island Supreme Court, Trial Division, in a decision reported 147 Nfld. & P.E.I.R. 308; 459 A.P.R. 308, declared that: (a) the number of children in the Summerside area whose parents had the right to have their children receive grades one through six education in the French language was sufficient to warrant the provision to them, pursuant to s. 23(3)(b) of the Charter, of such instruction out of public funds; and (b) the parents had the right pursuant to s. 23(3)(b) to have their children receive French language primary school (grades one through six) instruction in French language facilities in the Summerside area provided out of public funds. The court refused to strike out the provisions of the School Act, but set out what the Province had to provide in order to comply with s. 23 of the Charter. The court denied damages and stated that it would award the parents solicitor and client costs, but was prepared to consider further submissions on the issue of costs. The parties made further submissions on the issue of costs.

The Prince Edward Island Supreme Court, Trial Division, in a decision reported at 149 Nfld. & P.E.I.R. 96; 467 A.P.R. 96, awarded the parents costs on a solicitor and client basis. The Province appealed, asserting that the trial judge erred in determining that there was an infringement of the s. 23 rights held by the individual parents and in declaring that the parents were entitled to have their children receive French language primary school instruction in the Summerside area. The Province also appealed the decision on costs. The parents cross-appealed requesting that the Province be ordered to provide out of public funds a facility in the Summerside area for French first language instruction. Prior to the appeal hearing, La Commission scolaire de langue française was granted leave to intervene as a friend of the court.

The Prince Edward Island Court of Appeal, in a decision reported at 162 Nfld. & P.E.I.R. 329; 500 A.P.R. 329, allowed the appeal and dismissed the cross-appeal. The court ordered each party to be responsible for their own costs at trial and on appeal. The parents appealed.

The Supreme Court of Canada allowed the appeal, set aside the decision of the Appeal Division, restored the decision of the trial judge and awarded the parents costs on a solicitor-client basis, as ordered by the trial judge, throughout.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - Section 23 of the Charter guaranteed minority language educational rights - The Supreme Court of Canada noted that s. 23 was remedial in nature and stated that it was important to understand the historical and social context of the situation to be redressed - It was necessary to consider the importance of language and culture in the context of instruction as well as the importance of official language minority schools to the development of the official language community when examining the government's actions in dealing with a request for services - A purposive interpretation of s. 23 rights was based on the true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language in circumstances where community development would be enhanced - See paragraph 27.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - Section 23 of the Charter guaranteed minority language educational rights - The Supreme Court of Canada noted that s. 23 was remedial in nature and was not meant to reinforce the status quo by adopting a formal vision of equality that focused on treating the majority and minority official language groups alike - The use of objective standards, which assess the needs of minority language children primarily by reference to the pedagogical needs of majority language children, did not take into account the special requirements of the s. 23 rights holders - Section 23 was 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 - See paragraph 31.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - Section 23 of the Charter guaranteed minority language educational rights - The Prince Edward Island Court of Appeal concluded that the sliding scale approach to the application of s. 23 was governed by the "reasonable accessibility of services" - The Supreme Court of Canada concluded that the Court of Appeal erred in not considering which services would best encourage the flourishing and preservation of the French language minority - Further, the Minister of Education could not unilaterally decide the issue - Sending elementary school children on unnecessary bus trips of 30 to 45 minutes each way was unreasonable if the priorities of the minority community was kept in mind - These priorities were to be determined and exercised in light of the Minister's role - See paragraph 51.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - Section 23 of the Charter guaranteed minority language educational rights - The Supreme Court of Canada stated that "[t]he province has a legitimate interest in the content and qualitative standards of educational programs for the official language communities and it can impose appropriate programs in so far as they do not interfere with the legitimate linguistic and cultural concerns of the minority. School size, facilities, transportation and assembly of students can be regulated, but all have an effect on language and culture and must be regulated with regard to the specific circumstances of the minority and the purposes of s. 23" - See paragraph 53.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - Section 23(3)(a) of the Charter provided that the right to minority language instruction applied "wherever in the province" the number of s. 23 children was sufficient to warrant instruction out of public funds - The Supreme Court of Canada stated that "wherever in the province" meant that "... the calculation of the relevant numbers is not restricted to the existing school boundaries. ... When a minority language board has been established, the definition of the area is subject to the minority's exclusive powers of management and control over minority language instruction and facilities, subject to objective provincial norms and guidelines that are consistent with s. 23." - See paragraph 54.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - Section 23(3)(a) of the Charter provided that the right to minority language instruction applied "wherever in the province" the number of s. 23 children was sufficient to warrant instruction out of public funds - The Supreme Court of Canada stated that the duty to promote French language and culture in Prince Edward Island did not mean that the government could concentrate all minority language students in one predominantly French region - Both a textual and purposive analysis of s. 23(3) of the Charter indicated that when the number of s. 23 children in a specific area warranted the provision of minority language instruction, that instruction should take place in facilities located in the community where those children resided - "Wherever in the province" linked the right to instruction to the geographic place where the conditions for the exercise of that right were present - See paragraph 56.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - Section 23 of the Charter guaranteed minority language educational rights - The Supreme Court of Canada stated that "[t]he determination of the appropriate area for the provision of minority language instruction and facilities is something that has to be decided in each case with due consideration to the numbers involved as well as all of the important factors specific to the case. It is however important to note that the s. 23 standard is not neutral but favours community development. ... Another important consideration is that s. 23 was intended in part to protect the minority against the effect of measures adopted to suit the needs of the majority. It is therefore clear that minority language parents and their representatives are in the best position to identify local needs when it comes to defining the relevant areas. This decision will bring into play complex historical, social and geographical factors." - See paragraph 57.

Civil Rights - Topic 2885

Language - Education - Minority language education rights - When applicable - Section 23 of the Charter guaranteed minority language educational rights - The Province of Prince Edward Island acknowledged that the number of s. 23 children in the Summerside area warranted French language instruction for primary school, but denied financial support for a Summerside facility - The Province provided transportation to a French language school in another area (a 57 minute bus ride) - Pursuant to s. 24(1) of the Charter, the trial judge declared that: (a) the number of s. 23 children warranted the provision of French language instruction out of public funds; and (b) the parents had the right to have their children receive such instruction in a French language facility in the Summerside area provided out of public funds - The Supreme Court of Canada affirmed the decision.

Civil Rights - Topic 2890

Language - Education - Minority language education rights - Right of minority to control its school - [See fourth and seventh Civil Rights - Topic 2884 ].

Civil Rights - Topic 2890

Language - Education - Minority language education rights - Right of minority to control its school - Section 23 of the Charter guaranteed minority language educational rights - The Supreme Court of Canada stated that "... where a minority language board has been established in furtherance of s. 23, it is up to the board, as it represents the minority official language community, to decide what is more appropriate from a cultural and linguistic perspective. The principal role of the Minister is to develop institutional structures and specific regulations and policies to deal with the unique blend of linguistic dynamics that has developed in the province" - See paragraph 43.

Civil Rights - Topic 2890

Language - Education - Minority language education rights - Right of minority to control its school - Section 23 of the Charter guaranteed minority language educational rights - Section 6.11 of the School Act Regulations (P.E.I.) gave the Minister of Education the sole discretion to designate a school as a French school, having regard to the number of students, the number of grade levels and the reasonable assembly of the students in one location - The Supreme Court of Canada stated that when the Minister exercised his discretion to refuse a proposal pursuant to the Regulations, the Minister's discretion was limited by the remedial aspect of s. 23 of the Charter, the specific needs of the minority language community and the exclusive right of representatives of the minority to the management of minority language instruction and facilities - See paragraph 44.

Civil Rights - Topic 2890

Language - Education - Minority language education rights - Right of minority to control its school - Section 23 of the Charter guaranteed minority language educational rights - The Minister of Education (P.E.I.) accepted that, according to the School Act Regulations and s. 23 factors, numbers warranted French language instruction for primary school, but denied financial support for a Summerside facility - The Minister agreed to transport the children to a school in another area - The Supreme Court of Canada held that the Minister's decision was unconstitutional because the offer of classes or a facility came within the exclusive right of management of the minority and met with all provincial and constitutional requirements -The Minister's discretion was limited to verifying whether the Board had met provincial requirements - See paragraphs 52 to 55.

Civil Rights - Topic 2890

Language - Education - Minority language education rights - Right of minority to control its school - Section 23 of the Charter guaranteed minority language educational rights - The Supreme Court of Canada stated that a minority language board's exclusive power to decide how it would provide services to the minority did not mean that in a special situation a s. 23 right holder could not challenge a decision of the board - See paragraph 58.

Education - Topic 702.2

Education authorities - School commissions or boards - General - Minority language school boards - [See second and fifth Civil Rights - Topic 2890 ].

Education - Topic 1115

Education authorities - Ministers of education - Minority language schools, re - [See third and fourth Civil Rights - Topic 2884 and second, third and fourth Civil Rights - Topic 2890 ].

Education - Topic 8010

Separate schools - General - Funding - [See Civil Rights - Topic 2885 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper conduct - The Province of Prince Edward Island refused to fund a French language elementary facility in the Summerside area - The plaintiffs obtained a declaration respecting the denial of their minority language educational rights under s. 23 of the Charter - The trial judge awarded the plaintiffs costs on a solicitor and client basis - The plaintiffs were consistently denied a constitutionally guaranteed right and had to go to court to enforce that right - The struggle that they were forced to endure, should have been unnecessary given the Supreme Court of Canada's strong direction on the issue of minority language rights in Mahe v. Alberta and in Reference Re Public Schools Act (Man.) - The Supreme Court of Canada affirmed the declaration and awarded the parents costs on a solicitor-client basis, as ordered by the trial judge, throughout - See paragraph 63.

Cases Noticed:

Reference Re Minority Language Educational Rights (P.E.I.) (1988), 69 Nfld. & P.E.I.R. 236; 211 A.P.R. 236; 49 D.L.R.(4th) 499 (P.E.I.C.A.), refd to. [para. 1].

Reference Re School Act - see Reference Re Minority Language Educational Rights (P.E.I.).

Mahe, Martel, Dubé and Association d'école Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 8].

Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839; 149 N.R. 241; 83 Man.R.(2d) 241; 36 W.A.C. 241, refd to. [para. 8].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 27].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16, refd to. [para. 30].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 30].

Lavoie et al. v. Nova Scotia (Attorney General) and Board of Education of Cape Breton District (1988), 84 N.S.R.(2d) 387; 213 A.P.R. 387; 47 D.L.R.(4th) 586 (T.D.), apprvd. [para. 51].

Minority Language Educational Rights, Re (1984), 4 O.A.C. 321; 10 D.L.R.(4th) 491 (C.A.), refd to. [para. 54].

Reference Re Education Act of Ontario and Minority Language Education Rights - see Minority Language Educational Rights, Re.

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 23 [para. 7].

Counsel:

Robert A. McConnell, for the appellants;

Roger B. Langille, Q.C., and David M. Attwater, for the respondent;

Claude Joyal, Warren J. Newman and Marc Tremblay, for the intervener, the Attorney General of Canada;

Robert Earl Charney, for the intervener, the Attorney General for Ontario;

Deborah L. Carlson, for the intervener, the Attorney General of Manitoba;

Pierre Foucher, for the intervener, the Commission scolaire de langue française de l'Île-du-Prince-Édouard;

Paul S. Rouleau, for the intervener, the Commission nationale des parents francophones;

Christian E. Michaud, for the intervener, the Société St-Thomas d'Aquin - Société acadienne de l'Île-du-Prince-Édouard;

Daniel Mathieu and Richard L. Tardif, for the intervener, the Commissioner of Official Languages of Canada.

Solicitors of Record:

Campbell, Lea, Michael, McConnell & Pigot, Charlottetown, Prince Edward Island, for the appellants;

The Attorney General of Prince Edward Island, Charlottetown, Prince Edward Island, for the respondent;

The Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

The Ministry of the Attorney General, Toronto, Ontario, for the intervener, the Attorney General for Ontario;

The Department of Justice, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba;

Pierre Foucher, Dieppe, New Brunswick, for the intervener, the Commission scolaire de langue française de l'Île-du-Prince-Édouard;

Genest Murray DesBrisay Lamek, Toronto, Ontario, for the intervener, the Commission nationale des parents francophones;

Patterson Palmer Hunt Murphy, Moncton, New Brunswick, for the intervener, the Société St-Thomas d'Aquin - Société acadienne de l'Île-du-Prince-Édouard;

The Office of the Commissioner of Official Languages of Canada, Ottawa, Ontario, for the intervener, the Commissioner of Official Languages of Canada.

This appeal was heard on November 4, 1999, by Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ., of the Supreme Court of Canada. Major and Bastarache, JJ., delivered the following judgment for the court in both official languages on January 13, 2000.