Jacobi v. Board of Education of Aqueduct Roman Catholic Separate School District No. 374 et al., (1994) 150 A.R. 34 (QB)

• Judge: O'Leary, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 31, 1994
• Citations: (1994), 150 A.R. 34 (QB)

Jacobi v. Aqueduct R.C. Sep. Sch. Bd. (1994), 150 A.R. 34 (QB)

MLB headnote and full text

Ken Jacobi, Mary Jacobi and Wyatt Jacobi, Marshall Jacobi, Lindsay Jacobi, Clinton Jacobi and Lesley Jacobi, infants, by their next friend Ken Jacobi (plaintiffs) v. The County of Newell No. 4, The County of Newell No. 4 Board of Education, The Aqueduct Roman Catholic Separate School District No. 374 and The Board of Trustees of The Aqueduct Roman Catholic Separate School District No. 374 (defendants)

(Action No. 9308-00122)

Indexed As: Jacobi v. Board of Education of Aqueduct Roman Catholic Separate School District No. 374 et al.

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

O'Leary, J.

January 31, 1994.

Summary:

The Aqueduct Roman Catholic Separate School Board (the Board) was established pursuant to the School Act (Alta.). The Board did not own or lease school premises or employ teachers. Rather, the Board entered into an agreement with a local public school district under which the children of residents of the Aqueduct Separate School District attended the public school and their tuition fees, transportation etc. were paid by the Board. A Roman Catholic family chal­lenged the provisions of the School Act which permitted operation of a separate school district which did not offer its resi­dent students a "denominational" program of education, but rather directed its students to attend public school.

The Alberta Court of Queen's Bench held that the Aqueduct Roman Catholic Separate School Board was without status to act as a separate school board. The court considered the constitutional arguments and interpreted the School Act as not permitting the estab­lishment of a separate school district which does not provide its resident students a denominational education to some minimum standard. In the result, the Roman Catholic family did not have to direct its property taxes to support the separate school, nor were they required to send their children to the school directed by the Board. The court suspended the operation of its judgment for seven months to give the Board a reasonable opportunity to establish a separate school.

Civil Rights - Topic 391.1

Freedom of religion - Infringement of - Schools - Separate - General - A Roman Catholic family challenged various provi­sions of the School Act dealing with sep­arate school districts - The Alberta Court of Queen's Bench stated that to the extent that the impugned provisions permitted the establishment and operation of separate school districts without offering students a denominational education, they were in­consistent with ss. 2(a) and 15(1) of the Charter and clauses 1(b) and 1(c) of the Alberta Bill of Rights - Rather than declare the provisions invalid, the court interpreted the Act as not permitting es­tablishment of separate school districts which do not provide a denominational education to some minimum standard - Further, the provisions do not give a sep­arate school district rights and powers under the Act unless it operates a separate school - See paragraphs 76 to 82.

Civil Rights - Topic 1042

Discrimination - Religion - Schools - General - [See Civil Rights - Topic 391.1 ].

Constitutional Law - Topic 9542

Education - Separate schools - Extent of constitutional guarantees under Constitu­tion Act, 1867, s. 93 - The School Act (Alta.) provided for the creation of separ­ate school districts - A Roman Catholic family challenged the constitutionality of various provisions of the Act - The Alberta Court of Queen's Bench stated, inter alia, that "to the extent that the impugned provisions allow the establish­ment and operation of a separate school district which does not own or lease school premises or employ its own teachers they do not go beyond the protection afforded to separate schools by the Constitution, that is, they do not give the Protestant and Roman Catholic minor­ities something to which they are not entitled under the con­stitutional guarantee" - See paragraph 71.

Constitutional Law - Topic 9546

Education - Separate schools - Alberta - [See Constitutional Law - Topic 9542 ].

Education - Topic 8001

Separate schools - General - [See Civil Rights - Topic 391.1 and Constitutional Law - Topic 9542 ].

Cases Noticed:

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 57].

R. v. Smith (W.H.), [1983] 5 W.W.R. 235 (Alta. Prov. Ct.), refd to. [para. 57].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers Union, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 38 D.L.R.(4th) 321; 18 C.P.C.(2d) 273; 25 Admin. L.R. 20, refd to. [para. 57].

Zylberberg v. Board of Education of Sud­bury et al. (1988), 29 O.A.C. 23; 65 O.R.(2d) 641 (C.A.), refd to. [para. 57].

Corporation of the Canadian Civil Lib­erties Association et al. v. Ontario et al. (1990), 37 O.A.C. 93; 65 D.L.R.(4th) 1 (Ont. C.A.), refd to. [para. 57].

Adler v. Ontario (1992), 9 O.R.(3d) 676 (Gen. Div.), refd to. [para. 57].

Mahe v. Alberta (1987), 80 A.R. 161; 54 Alta. L.R.(2d) 212 (C.A.), refd to. [para. 63].

Schmidt v. Calgary Board of Education and Human Rights Commission (Alta.), [1976] 6 W.W.R. 717; 1 A.R. 286 (C.A.), refd to. [para. 64].

St. Walburg Roman Catholic Separate School Board District No. 25 v. Turtle­ford Division No. 65, [1987] 2 W.W.R. 698; 54 Sask.R. 83 (C.A.), refd to. [para. 65].

Hirsch v. Montreal Protestant Board of School Commissioners, [1928] A.C. 200; [1928] 1 D.L.R. 1041 (P.C.), refd to. [para. 66].

Renvoi relatif à la Loi sur l'instruction publique, L.Q. 1988, c. 84, [1993] 2 S.C.R. 511; 154 N.R. 1; 56 Q.A.C. 1; 105 D.L.R.(4th) 266, refd to. [para. 67].

Reference Re Education Act (Quebec), S.Q. 1988, c. 84 - see Renvoi relatif à la Loi sur l'instruction publique, L.Q. 1988, c. 84.

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321; 40 D.L.R.(4th) 18; 36 C.R.R. 305, refd to. [para. 72].

Brophy v. Manitoba, [1895] A.C. 202, refd to. [para. 72].

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. 77].

Statutes Noticed:

Alberta Act, S.C. 1905, c. 3, sect. 17 [para. 40].

Alberta Bill of Rights, R.S.A. 1980, c. A-16, sect. 1(b), sect. 1(c) [paras. 4, 49].

British North America Act - see Constitu­tion Act, 1867.

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 48]; sect. 2(a), sect. 15(1) [paras. 4, 48]; sect. 29 [para. 42].

Constitution Act, 1867, sect. 93 [para. 39].

Constitution Act, 1982, sect. 52(1) [para. 48]; sect. 52(2) [para. 41].

Judicature Act, R.S.A. 1980, c. J-1, sect. 25 [para. 5].

School Act, R.S.A. 1980, c. S-3.1, sect. 1(1)(q) [para. 70]; sect. 27, sect. 28 [para. 3]; sect. 28(1)(a), sect. 28(1)(b) [para. 13]; sect. 28(2) [para. 15]; sect. 31, sect. 32, sect. 34, sect. 35, sect. 36, sect. 43, sect. 44, sect. 45, sect. 46, sect. 47, sect. 48, sect. 49, sect. 50, sect. 51, sect. 52, sect. 53, sect. 54, sect. 55, sect. 56, sect. 57, sect. 58 [para. 3]; sect. 46(1) [para. 14]; sect. 94, sect. 96, sect. 97, sect. 131, sect. 133, sect. 134, sect. 135, sect. 136, sect. 137, sect. 138, sect. 139, sect. 140, sect. 141, sect. 142, sect. 143, sect. 144, sect. 145, sect. 146, sect. 147, sect. 148, sect. 149, sect. 150, sect. 151, sect. 152, sect. 153, sect. 154, sect. 155, sect. 156, sect. 157, sect. 158, sect. 159, sect. 160, sect. 161, sect. 162, sect. 163, sect. 164, sect. 165, sect. 166, sect. 167, sect. 168, sect. 169, sect. 170, sect. 171, sect. 172, sect. 173, sect. 174, sect. 175, sect. 176, sect. 177, sect. 178, sect. 179, sect. 180, sect. 181, sect. 182, sect. 183, sect. 184, sect. 185, sect. 186, sect. 187 [para. 3]; sect. 206(1) [para. 17]; sect. 207 [para. 3]; sect. 207(6) [para. 17]; sect. 208, sect. 210, sect. 213 [para. 19]; Forms 1 and 2 [para. 3].

School Assessment Ordinance, Ord. N.W.T. 1901, c. 30, sect. 26 [para. 47].

School Ordinance Act, Ord. N.W.T. 1901, c. 29, sect. 41 [paras. 43, 61]; sect. 42, sect. 43, sect. 44 [para. 44]; sect. 45 [para. 45]; sect. 95(7), sect. 95(8), sect. 95(17) [para. 46].

Counsel:

T.W. Wakeling and G.D. Chipeur, for the plaintiffs;

K.W. Lutes, for the defendants, The Aqueduct Roman Catholic Separate School District No. 374 and Aqueduct Board of Trustees;

M. Unsworth, for the Attorney General of Alberta;

R.J. Shaw, for the defendants, The County of Newell No. 4 and the County of Newell No. 4 Board of Education.

This action was heard by O'Leary, J., of the Alberta Court of Queen's Bench, Judicial District of Medicine Hat, who delivered the following decision on January 31, 1994.