Commission Scolaire Francophone et al. v. Northwest Territories (Attorney General) et al., (2015) 593 A.R. 150

• Judge: Watson, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: March 24, 2014
• Jurisdiction: Northwest Territories
• Citations: (2015), 593 A.R. 150

Comm. Scolaire Francophone v. NWT (A.G.) (2015), 593 A.R. 150; 637 W.A.C. 150 (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.069

Attorney General of the Northwest Territories and Commissioner of the Northwest Territories (appellants/defendants) v. Commission Scolaire Francophone, Territoires du Nord-Ouest, Catherine Boulanger and Christian Girard (respondents/plaintiffs)

(AIAP 2012-000012; 2015 NWTCA 1)

Indexed As: Commission Scolaire Francophone et al. v. Northwest Territories (Attorney General) et al.

Northwest Territories Court of Appeal

Watson, Slatter and Rowbotham, JJ.A.

January 9, 2015.

Summary:

The Northwest Territories Attorney General and Commissioner (the defendants) appealed a trial decision (a) ordering them to construct more minority language school facilities, and (b) declaring unconstitutional the Minister's directive on admissions to the minority language school (see [2012] Northwest Terr. Cases Uned. 44). This appeal engaged the unique question of the scope of government's discretion regarding admission to the French first language school in Hay River, École Boréale, and the constitutionality of a Ministerial Directive curtailing the Commission Scolaire Francophone, Territoires du Nord-Ouest's (school board's) power with respect to admission.

The Northwest Territories Court of Appeal allowed the appeal.

Editor's Note: for a companion case, see 593 A.R. 180; 637 W.A.C. 180 (N.W.T.C.A.).

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - A French first language instruction program was established in Hay River, N.W.T., in 1998 - In 2002, the school board adopted its admission policy and obtained government funds to build a school - Enrollment increased rapidly - In 2008, the court granted the school board an interlocutory injunction, directing the government to provide the school with three extra classrooms - In July 2008, the Minister adopted an admission policy which significantly limited the school board's 2002 admission policy - The school board challenged the constitutionality of the Minister's admission policy - The trial judge declared the Minister's directive unconstitutional - The Northwest Territories Attorney General and Commissioner (the defendants) appealed - The Northwest Territories Court of Appeal allowed the appeal - The trial judge erred in her interpretation of s. 23 and erroneously inflated the powers of the school board, elevating it to a government institution - Even the most generous interpretation of s. 23 could not mean that the school board had the unilateral power to admit anyone to its schools without governmental oversight - Section 23 required a narrower interpretation than that given by the trial judge - Giving the school board exclusive control of admissions had important financial consequences on the government - It was not up to the school board to dictate how public funds were spent - See paragraphs 13 to 30.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - A French first language instruction program was established in Hay River, N.W.T., in 1998 - In 2002, the school board adopted its admission policy and obtained government funds to build a school - Enrollment increased rapidly - In 2008, the court granted the school board an interlocutory injunction, directing the government to provide the school with three extra classrooms - At trial, the trial judge ordered the N.W.T. government to construct more minority language school facilities - The Northwest Territories Attorney General and Commissioner (the defendants) appealed - The Northwest Territories Court of Appeal allowed the appeal - The right at issue under s. 23 was the right to receive instruction in minority language facilities provided out of public funds, where numbers warranted - The trial judge erred in determining that the numbers warranted the expansion of a facility which even with the admission of non-rights holders, was only at 67% (85/126) capacity at the time of trial - It was acknowledged that it was higher now - The numbers did not warrant the expansion - A school was a dynamic institution, and the required capacity would have to be reassessed from time to time - See paragraphs 31 to 43.

Education - Topic 702.2

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

Education - Topic 704

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

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. 11].

Abbey v. Board of Education of Essex County (1999), 117 O.A.C. 358; 42 O.R.(3d) 481 (C.A.), consd. [para. 18].

Gosselin v. Quebec (Attorney General), [2005] 1 S.C.R. 238; 331 N.R. 337; 2005 SCC 15, refd to. [para. 20].

Solski v. Quebec (Attorney General) (2005), 331 N.R. 256; 2005 SCC 14, refd to. [para. 20].

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. 20].

Ontario English Catholic Teachers' Association et al. v. Ontario (Attorney General) et al., [2001] 1 S.C.R. 470; 267 N.R. 10; 144 O.A.C. 1; 2001 SCC 15, refd to. [para. 21].

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. 22].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale) (2014), 351 B.C.A.C. 216; 599 W.A.C. 216; 2014 YKCA 4, refd to. [para. 23].

Mahe et al v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321; 68 D.L.R.(4th) 69, refd to. [para. 25].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 23 [para. 9].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, Sess. 1, 32nd Parl. (October 6, 1980), p. 3286 [para. 27].

Hansard - see Canada, Hansard, House of Commons Debates.

Counsel:

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

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

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