Association des parents ayants droit de Yellowknife et al. v. Northwest Territories (Attorney General) et al., (2015) 593 A.R. 180

• Judge: Watson, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: January 09, 2015
• Jurisdiction: Northwest Territories
• Citations: (2015), 593 A.R. 180

Assoc. des parents v. NWT (A.G.) (2015), 593 A.R. 180; 637 W.A.C. 180 (NWTCA)

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: [2015] A.R. TBEd. JA.070

Attorney General of the Northwest Territories and Commissioner of the Northwest Territories (appellants/defendants) v. Association des parents ayants droit de Yellowknife, La Garderie Plein Soleil, Yvonne Careen, Claude St-Pierre and Fédération Franco-Ténoise (respondents/plaintiffs)

(AIAP2012-000011; 2015 NWTCA 2)

Indexed As: Association des parents ayants droit de Yellowknife et al. v. Northwest Territories (Attorney General) et al.

Northwest Territories Court of Appeal

Watson, Slatter and Rowbotham, JJ.A.

January 9, 2015.

Summary:

Minority language education had been provided in Yellowknife, N.W.T., since 1989. A separate school (༄༅cole Allain St-Cyr (EAS)) was built in 1999. In 2003, the Commission scolaire concluded that the facilities were inadequate and commenced discussions with the territorial government for increased space. In 2005, the plaintiffs brought an action, alleging that not only were the school facilities less than ideal, they fell below the minimum constitutional requirement for minority language educational facilities. The claim sought as relief an increase in the capacity of EAS, as well as the construction of specific specialized facilities. The plaintiffs applied almost immediately for an "interlocutory injunction", requiring the defendants to provide access to some of the demanded facilities before trial.

The Northwest Territories Supreme Court, in a decision reported at [2005] Northwest Terr. Cases 58, granted some of the requested relief, including the provision of two portable classrooms joined to the main school building by a passageway. Following the granting of the "injunction", the defendants commenced negotiations with the Commission scolaire and the plaintiffs. Instead of providing portable classrooms, the defendants agreed to construct two permanent classrooms (the Phase 1 work). The defendants also agreed to prepare schematic plans for the school which would accommodate future expansion, particularly to add a gymnasium and further classrooms (described as Phase 2), although no commitment was made to construct those additions. Shortly after the Phase 1 work called for in the consent order was completed, the plaintiffs gave notice that they were reactivating the action, and claiming the rest of the relief set out in the statement of claim.

The Northwest Territories Supreme Court, in a decision reported at [2012] Northwest Terr. Cases Uned. 43, allowed the action in part, finding that: "(a) the Commission scolaire was entitled to exclusive control over admissions to the minority language school; (b) the Commission scolaire was entitled to admit to the minority language school persons who are not rights holders under s. 23, but were interested in a Francophone education, and could thereby inflate the 'numbers' of minority language students in Yellowknife; (c) École Allain St-Cyr is undersized, and should be expanded to a capacity of 250 students, requiring the construction of additional classrooms; (d) the minority language students were entitled to a number of specialized facilities not presently available in École Allain St-Cyr, particularly a gymnasium, but also a science laboratory for secondary students, a home economics room, a space for special needs students, a room for teaching English as a second language, and a larger playground. The sharing of underused facilities at the neighbouring William McDonald Middle School was not a constitutionally acceptable solution." The court granted remedies to address all of these findings and awarded the plaintiffs solicitor and client costs. The defendants appealed all the relief granted. The plaintiffs cross-appealed only on whether daycare and pre-kindergarten programs were protected by s. 23 of the Charter.

The Northwest Territories Court of Appeal allowed the appeal and dismissed the cross-appeal.

Editor's Note: for a companion case, see 593 A.R. 150 (N.W.T.C.A.)

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The defendants appealed, asserting that the trial judge erred in determining the scope of those entitled to rights under s. 23 - The Northwest Territories Court of Appeal allowed the appeal - The trial judge erred in law in concluding that some persons who did not have rights under s. 23 could be included in the "numbers warrant" analysis - The trial judge accepted the plaintiffs' argument that the Commission scolaire was not limited to admitting only students who strictly fell within ss. 23(1) and (2), but could also admit others (e.g. immigrants, persons with distant Francophone antecedents, Anglophones interested in French education), and that this wider potential audience should be included in the "numbers" - Section 23 did not create a universal Charter right to francization, it did not grant the courts a generic power to cure all past inadequacies in promoting minority language communities, and it did not mandate generic policies to reverse or prevent assimilation - The reference in s. 23 to "Canadian citizens" excluded the inclusion of immigrants - The precise "first language learned and still understood" wording of s. 23(1)(a) excluded "lost generations" with Francophone roots - Section 23 could not be interpreted in a way that ignored its fundamental scope - This legal error affected the factual findings about the number of potential s. 23 students, and required appellate intervention - See paragraphs 41 to 46.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The defendants appealed, asserting that the trial judge erred in finding that the Commission scolaire had the exclusive constitutional right to decide who was entitled to attend EAS and that the government had no say in the matter - The Northwest Territories Court of Appeal allowed the appeal - The plaintiffs asserted that the Commission scolaire had the right to enforce its existing policy, which would allow up to 20% of the students to be non-rights holders - However, the rights of management and control outlined were not unlimited - Those rights did not give the school board the ability to do whatever it wanted, with a blank cheque to do it - They did not grant the school board (nor the Minister) the power to interpret s. 23, to decide who had rights under that section, nor to determine the extent of those rights - The school board could neither dictate who were rights holders, nor what facilities it was entitled to under the Charter - Those were issues reserved, ultimately, for the superior courts - See paragraphs 41 and 47.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The central issue was whether the "numbers" of present and potential minority language students in Yellowknife "warrant" the remedies sought by the plaintiffs and granted by the trial judge - The Northwest Territories Court of Appeal held that the test was to determine a "range" between the existing student population, and the potential student population - Within that range was the relevant number of those who would "eventually take advantage", which meant those who were reasonably likely to take advantage of the opportunity within a reasonable period of time - Section 23 rights should be determined having regard to the foreseeable future, not with respect to some indefinite point in time so far into the future as to preclude reasonable estimates - The "numbers warrant" standard was not just a threshold test - It was not just a test that had to be met to determine if a minority language school had to be established - The "numbers warrant" standard was ever-speaking, and it had to be applied at every level in determining if particular facilities or programs were "warranted" - In this appeal, the test was primarily being used to determine if the particular facilities claimed by the plaintiffs were warranted - See paragraphs 98 to 102.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The defendants appealed - The plaintiffs cross-appealed on whether daycare and pre-kindergarten programs were protected by s. 23 - The Northwest Territories Court of Appeal dismissed the cross-appeal - The defendants' obligation under s. 23 was to provide out of public funds such minority language primary and secondary educational facilities as the numbers warranted - Daycare and pre-kindergarten programs were not included - When facilities were provided to the minority language community to discharge the constitutional obligation under s. 23, those facilities could not be diverted to other uses - See paragraphs 79 to 95.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The central issue was whether the "numbers" of present and potential minority language students in Yellowknife "warrant" the remedies sought by the plaintiffs and granted by the trial judge - The Northwest Territories Court of Appeal allowed the defendants' appeal - The trial judge concluded that EAS' capacity should be increased to accommodate 250 students - The present enrollment was 110 - The existing capacity of the school was 160, giving a margin of growth of over 25% - There was no raw capacity problem - There was no evidence of any present unfulfilled potential demand, nor any that would arise in the foreseeable future - On the record there was no reason to set an artificial "capacity" number (of 160, 250 or anything else), and then order the government to build a school to that abstract standard - Rather, what was called for here was an examination of the specific facilities that were said to be lacking, followed by orders to provide those facilities independently of any abstract "capacity" - See paragraphs 103 to 114.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The central issue was whether the "numbers" of present and potential minority language students in Yellowknife "warrant" the remedies sought by the plaintiffs and granted by the trial judge and whether the sharing of facilities in the majority language school was a constitutionally acceptable solution - The Northwest Territories Court of Appeal allowed the defendants' appeal - Section 23 only mandated such separate facilities as were warranted by the numbers, based on the sliding scale test in Mahe (SCC 1990) - The Charter did not guarantee freestanding minority language schools or facilities, unless the "numbers warrant" - Even though the sharing of space with the majority language schools was not ideal, it did not follow that the plaintiffs had a constitutional right to completely freestanding facilities - In Yellowknife, the defendants had provided a freestanding Francophone school, to act as the anchor of the minority language education program - It was not per se constitutionally unacceptable to provide some collateral facilities in neighbouring schools - It did not follow, however, that sharing of neighbouring facilities was ipso facto an acceptable solution - Each situation had to be determined on its facts, having regard to all the components of the sliding scale analysis: "the number of students, the cost of providing separate facilities, the practicality of sharing facilities, the pedagogical needs of the students, the homogeneity of the program, etc." - It was, however, an error of principle for the trial judge to presumptively exclude sharing as a possible option, by overemphasizing the desirability of having separate facilities, and allowing that factor to overtake the entire sliding scale analysis - Section 23(3)(b) did not guarantee distinct facilities - See paragraphs 115 to 131.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - In addition to ordering the expansion of the EAS, the trial judge also directed the provision of certain specialized facilities, such as a gymnasium - The Northwest Territories Court of Appeal held that the trial judge's conclusions with respect to the gymnasium could be supported by the record, and were entitled to deference - The trial judge could reasonably conclude that substantive equality respecting the minority language education experience provided by a gymnasium would not be met by the other solutions proposed - It was reasonable to conclude that a school gymnasium was a crucial feature in the maintenance of the minority language educational experience - While it might be a close call as to whether "numbers" currently "warrant" a dedicated gymnasium, the conclusion that the sliding scale test had now been met could be supported - See paragraphs 137 to 141.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - In addition to ordering the expansion of the EAS, the trial judge also directed the provision of certain specialized facilities, such as a science laboratory - The Northwest Territories Court of Appeal allowed the defendants' appeal - The trial judge concluded that "[t]o improve the quality of its high school teaching, the school must also, in my opinion, have a dedicated laboratory for teaching science at the secondary level." - This result was entirely conclusory - It was not supported by a sliding scale analysis, or any other analysis - There was no discussion of the cost of building such a facility, which was an essential component to the appropriate constitutional analysis, or whether the facility was "warranted" out of "public funds" - Any implied finding that the "numbers warrant" constructing a specialized science laboratory was not supported by the evidence or any appropriate analysis, and reflected palpable and overriding error - See paragraphs 142 to 147.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - In addition to ordering the expansion of the EAS, the trial judge also directed the provision of certain specialized facilities, such as a room suitable to teach home economics, a room dedicated to teach English as a second language and an additional multipurpose room for teaching arts and music - The Northwest Territories Court of Appeal allowed the defendants' appeal - The only justification for these orders was related to the desirability of having a stand-alone minority language school - Section 23 did not, however, mandate separate facilities simply because they were desirable - The trial judge's findings on these issues was subject to deference - However, where the reasons lacked transparency, the legal test was not alluded to, and the result was not reasonably extracted from the record, appellate intervention was imperative - See paragraphs 148 to 151.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - In addition to ordering the expansion of the EAS, the trial judge also directed the provision of certain specialized facilities, such as a larger playground - The Northwest Territories Court of Appeal allowed the defendants' appeal - The mere fact that the playground was "smaller than those of several of the majority schools" was not sufficient - There was no analysis of whether the "numbers" justified the court ordering a larger playground at public expense - There was no evidence as to the cost of providing a larger playground - There was no evidence as to whether a larger playground was even physically possible - The plaintiffs did not meet the burden of proof - See paragraphs 152 and 153.

Civil Rights - Topic 2886.1

Language - Education - Breach - Remedies - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - In addition to ordering the expansion of the EAS, the trial judge also directed the provision of certain specialized facilities - The Commission scolaire was not a party in this litigation - The Northwest Territories Court of Appeal held that it was inappropriate to grant any relief contemplating actual or specific physical changes to EAS, as the school was under the control of the Commission scolaire, not the plaintiffs - Further, the absence of the Commission scolaire from the litigation made it inappropriate to grant a declaration with respect to the Minister of Education's decision not to delegate powers under s. 119 of the Education Act - See paragraphs 159 and 160.

Civil Rights - Topic 2886.1

Language - Education - Breach - Remedies - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - In addition to ordering the expansion of the EAS, the trial judge also directed the provision of certain specialized facilities - Even though the trial judge concluded that daycare and pre-kindergarten were not protected under s. 23, an order was granted requiring the defendants to provide more space for those programs - This was said to be a constitutional remedy for undefined past "inaction", and because the defendants "knowingly allowed" the inadequate facilities to continue - The Northwest Territories Court of Appeal allowed the defendants' appeal - The remedy for "inaction" was misdirected - It essentially granted rights to the community, not any s. 23 rights holder - The wording of s. 23 created rights in specific categories of parents, allowing them to send their children to the minority language school, and remedies had to be directed to them - The generic remedy to create more daycare spaces was not tied to any Charter breach against any rights holder - No potential rights holder could show that but for extra space in the daycare, their children would have been able to attend the minority language primary education program - Since daycare was not protected by s. 23, the absence of daycare spaces could not possibly be a breach of the Charter - Section 23 did not place any obligation on the government to create more s. 23 rights holders, or persons interested in a minority language education, by creating more daycare spaces or other linguistic opportunities - The trial reason's justification of this remedy as promoting "recruitment and francization" represented an error of law, because the Charter did not protect such rights - Institutions, programs and facilities established to create more s. 23 rights holders were not part of a constitutionally genuine educational pathway - See paragraphs 161 to 174.

Education - Topic 702.2

Education authorities - School commissions or boards - General - Minority language school boards - [See second Civil Rights - Topic 2884 ].

Education - Topic 704

Education authorities - School commissions or boards - General - Powers of - General - [See second Civil Rights - Topic 2884 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The plaintiffs called expert evidence on the potential number of minority language rights holders in Yellowknife - Both those experts, and the defendants, relied on data from the 2006 Census - The trial judge accepted that the census data was reliable, but concluded that it needed to be adjusted to be helpful in the particular factual context presented - The trial judge also heard a significant amount of expert evidence - She accepted the opinion of the experts - On appeal, the Northwest Territories Court of Appeal held that the selection of and weight to be given to expert evidence was within the mandate of the trial judge, and was not to be interfered with unless it demonstrated palpable and overriding error - There was no reviewable error of that nature shown on this record - That being said, some of the expert evidence was of limited relevance - A lot of it amounted to an opinion that "section 23 is a good idea", and that it would have been a "better idea" if s. 23 had been drafted more widely than it was, or that it would be better if such wider interpretations were placed on it - Since s. 23 was found in the Charter, and it had to be interpreted according to accepted constitutional principles, that opinion evidence was, at best, of marginal relevance - In some cases, the experts were allowed to give evidence on points of law - Evidence was not permitted on points of law - Expert evidence that strayed beyond the accepted qualifications of the witness was inadmissible - The experts' opinions on how they would have drafted s. 23, if given the opportunity, were not relevant, and had the potential of distracting the court - See paragraphs 67 to 69.

Evidence - Topic 7153

Opinion evidence - Prohibited opinions - Re legal conclusions - [See Evidence - Topic 7002 ].

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Against the Crown or governmental bodies - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The trial judge awarded the plaintiffs solicitor and client costs - The Northwest Territories Court of Appeal allowed the defendants' appeal and struck the costs award - There was no justification for an award of solicitor and client costs - The plaintiffs had achieved some success which was significant in the abstract (a new gymnasium), but modest compared to the claims that were being advanced - The respondents should be awarded taxed costs of the trial at double Column 5 of Schedule A, plus reasonable disbursements and GST - See paragraphs 175 to 182.

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The defendants appealed - The Northwest Territories Court of Appeal discussed the standard of review that was to be applied by intermediate appellate courts to trial decisions - In this case, "[t]he standard of review for questions of law is correctness. The findings of fact of the trial judge will only be reversed on appeal if they disclose palpable and overriding error. ... Inferences drawn from the facts are also reviewed for palpable and overriding error. If the inference drawn by the trial judge is reasonable, an appellate court should not intervene just because other inferences could also have been reasonably drawn" - See paragraphs 17 to 34.

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The defendants appealed, asserting that the trial judge erred in considering irrelevant considerations: (1) the failure of the defendants to respond to correspondence received from the plaintiffs; (2) the failure of the parties to agree on a methodology for conducting a survey to determine the number of potential s. 23 rights holders; and (3) the failure of the defendants to construct the Phase 2 expansion - The Northwest Territories Court of Appeal allowed the appeal - Some fact findings were undermined by consideration of this conduct of the parties relating to the gathering of evidence prior to the commencement of the trial, rather than being based on the evidence itself - This was irrelevant, as was any criticism of the parties - See paragraphs 49 to 66.

Practice - Topic 8800.1

Appeals - Duty of appellate court regarding findings of mixed law and fact by a trial judge - [See first Practice - Topic 8800 ].

Practice - Topic 8807

Appeals - Duty of appellate court regarding inferences - [See first Practice - Topic 8800 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The issue in this appeal was whether École Allain St-Cyr (EAS), the minority language school in Yellowknife, N.W.T., met the minimum constitutional standards under s. 23 of the Charter - The trial judge held that it did not, and ordered the defendants to construct further facilities for the school - The defendants appealed - The plaintiffs included in their materials a bundle of documents characterized as "Brandeis sources", which had not been presented at trial - The defendants applied to strike the documents - The Northwest Territories Court of Appeal allowed the application and struck the documents - The rules of appellate procedure did not permit either party to embellish the appeal record simply by adding new material - The proper approach was to bring an application for fresh evidence - The plaintiffs' attempt to slip new material into the record without following the appropriate procedures was unacceptable - The offered material was, in any event, inadmissible - The rights of the parties had to be determined at the time of the trial in 2010 - It appeared that the nature of primary and secondary education in the Northwest Territories might still be evolving, but whatever might happen in the future did not affect the outcome at trial - Some of the other material was available before trial, and would not meet the Palmer test (SCC 1980) - See paragraphs 35 and 36.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 18].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 20].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 20].

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) - see Vilardell v. Dunham.

Vilardell v. Dunham (2014), 463 N.R. 336; 2014 SCC 59, refd to. [para. 21].

R. v. Cambridge University, ex party Bentley (1723), 1 Str. 557; 93 E.R. 698, refd to. [para. 21].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 24].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 26].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 26].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 32].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 33].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2003), 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 33].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [1999] 3 S.C.R. 845; [1999] N.R. Uned. 167; 89 Alta. L.R.(3d) 1, refd to. [para. 35].

R. v. Keegstra (J.), [1995] 2 S.C.R. 381; 180 N.R. 120; 169 A.R. 50; 97 W.A.C. 50; 29 Alta. L.R.(3d) 305, refd to. [para. 35].

Lameman et al. v. Canada (Attorney General) (2006), 380 A.R. 306; 363 W.A.C. 306; 2006 ABCA 43, refd to. [para. 35].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 35].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 38].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 38].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 38].

Nguyen et al. v. Quebec (Minister of Education, Recreation and Sports), [2009] 3 S.C.R. 208; 394 N.R. 255; 2009 SCC 47, refd to. [para. 43].

Gosselin v. Quebec (Attorney General), [2005] 1 S.C.R. 238; 331 N.R. 337; 2005 SCC 15, refd to. [para. 44].

Solski v. Quebec (Attorney General) (2005), 331 N.R. 256; 2005 SCC 14, refd to. [para. 45].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321; 72 Alta. L.R.(2d) 257, appld. [para. 47].

Richards v. Gellatly (1872), L.R. 7 C.P. 127, refd to. [para. 50].

Teskey v. Canada (Attorney General), [2014] O.A.C. Uned. 554; 2014 ONCA 612, refd to. [para. 50].

Nova, An Alberta Corporation v. Guelph Engineering Co. and Daniel Valve Co. et al. (1989), 100 A.R. 241; 1989 ABCA 253, refd to. [para. 68].

Pedherney v. Jensen et al. (2011), 499 A.R. 216; 514 W.A.C. 216; 2011 ABCA 9, refd to. [para. 68].

R. v. Sekhon (A.S.) (2014), 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 69].

R. v. Russel (W.I.), [2013] 3 S.C.R. 3; 447 N.R. 111; 308 O.A.C. 347; 2013 SCC 43, refd to. [para. 76].

Desrochers et al. v. Industry Canada et al. (2009), 384 N.R. 50; 2009 SCC 8, refd to. [para. 111].

L'Association des parents de l'école Rose-des-Vents et al. v. Conseil scolaire francophone de la Colombie-Britannique et al., [2012] B.C.T.C. Uned. 1614; 39 B.C.L.R.(5th) 144; 2012 BCSC 1614, revd. (2013), 342 B.C.A.C. 251; 585 W.A.C. 251; 49 B.C.L.R.(5th) 246; 2013 BCCA 407, dist. [para. 112].

Conseil scolaire fransaskois et al. v. Saskatchewan (2013), 422 Sask.R. 26; 2013 SKQB 211, dist. [para. 112].

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. 123].

Thibodeau v. Air Canada (2014), 463 N.R. 231; 2014 SCC 67, refd to. [para. 153].

Jodhan v. Canada (Attorney General) et al. (2012), 431 N.R. 144; 2012 FCA 161, refd to. [para. 155].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 177].

Little Sisters Book and Art Emporium v. Minister of National Revenue (2007), 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 177].

Arsenault-Cameron et al. v. Prince Edward Island, [2000] 1 S.C.R. 3; 249 N.R. 140; 184 Nfld. & P.E.I.R. 44; 559 A.P.R. 44; 2000 SCC 1, refd to. [para. 187].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 23 [para. 2].

Authors and Works Noticed:

Dicey, A.V., Introduction to the Study of the Law of the Constitution (10th Ed. 1960), pp. 202, 203 [para. 21].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), vol. 2, pp. 40 to 45 [para. 155].

Kerans, Peter W., Roger P., Standards of Review Employed by Appellate courts (1994), generally [para. 18].

Counsel:

M. Faille, F. Baril and G. Régimbald, for the appellants;

R.J.F. Lepage and F. Poulin, for the respondents.

This appeal and cross-appeal were heard on March 24 and 25, 2014, by Watson, Slatter and Rowbotham, JJ.A., of the Northwest Territories Court of Appeal. The memorandum of judgment of the Court of Appeal was delivered on January 9, 2015, and included the following opinions:

Slatter, J.A. (Watson, J.A., concurring) - see paragraphs 1 to 186;

Rowbotham, J.A., dissenting in part - see paragraphs 187 to 240.