Lavoie et al. v. Nova Scotia (Attorney General), (1989) 91 N.S.R.(2d) 184 (CA)

• Judge: Clarke, C.J.N.S., Hart, Jones, Macdonald and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 29, 1989
• Jurisdiction: Nova Scotia
• Citations: (1989), 91 N.S.R.(2d) 184 (CA)

Lavoie v. N.S. (A.G.) (1989), 91 N.S.R.(2d) 184 (CA);

    233 A.P.R. 184

MLB headnote and full text

Laurent Lavoie, Joseph Luc Poirier, Leo LeBlanc and The Committee for French Education (plaintiffs) v. The Attorney General of Nova Scotia and The Cape Breton District School Board (defendants)

(S.C.A. 02022)

Indexed As: Lavoie et al. v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Appeal Division

Clarke, C.J.N.S., Hart, Jones, Macdonald and Pace, JJ.A.

March 29, 1989.

Summary:

The plaintiffs brought an action for a declaration that there were sufficient numbers of children of Francophones to warrant French language instruction for them in minority language facilities under s. 23 of the Charter and that ss. 3(aa) and 48(7) of the Education Act, R.S.N.S. 1967, c. 81, were inconsistent with s. 23 of the Charter and were of no force and effect.

Respecting the first issue, fifty students covering nine grades registered for such instruction out of 429 eligible in Cape Breton County. The Minister ruled that 50 students did not warrant the provision of French language instruction in minority language facilities.

Respecting the second issue, s. 3(aa) provided that the test for an Acadian school was "a sufficient number of children " whose first language is French. Section 48(7) gave school boards control over the boundaries and buildings of their districts. Section 23 of the Charter protected minority language education rights and established a test based on the number of parents whose first language was French.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported at page 16 above dismissed the action and held that the Minister's decision that 50 students were insufficient to warrant minority language instruction was reasonable.

In a supplementary judgment reported at page 26 above, the court held that s. 48(7) was not inconsistent with s. 23 of the Charter and that s. 3(aa) was complementary to s. 23.

The plaintiffs appealed. The Nova Scotia Supreme Court, Appeal Division, allowed the appeal in part and held that there were sufficient numbers of students to warrant French language training, but not in a separate facility.

Civil Rights - Topic 2881

Language - Education - Minority language rights - General - The Nova Scotia Court of Appeal held that s. 23 of the Canadian Charter of Rights and Freedoms, being a remedial provision respecting the language education rights of minorities, should be given a large and liberal interpretation and not a legalistic one - The court applied the purposive test of Charter construction and found that s. 23 was aimed at correcting perceived defects in the educational regimes of the provinces as they affected Anglophone and Francophone minorities - See paragraphs 18 to 30.

Civil Rights - Topic 2885

Language - Education - Minority language rights - When applicable - Fifty students covering grades one to nine registered for French minority language instruction in Cape Breton County under s. 23 of the Charter, an average of 5.5 per grade - 429 were eligible - Most were not fluent in French - The Minister ruled that 50 students were insufficient to warrant the provision of French minority language instruction - However, seven English schools had student numbers ranging from 14 to 68 with grade averages of from 3.5 to 22 students - The Nova Scotia Court of Appeal held that there were sufficient numbers of students to warrant French language training, but not in a separate facility - See paragraphs 31 to 51.

Civil Rights - Topic 2888

Language - Education - Invalid provincial legislation - The Education Act, R.S.N.S. 1967, c. 81, s. 3(aa), provided that the test for an Acadian school was "a sufficient number of children " whose first language is French; whereas the later s. 23 of the Charter referred to parents whose first language is French - The Nova Scotia Court of Appeal held that s. 3(aa) did not infringe minority language rights under s. 23 of the Charter, but provided an additional source of French language instruction, magnifying the rights available to members of the Francophone minority - As such, it was valid provincial legislation under s. 93 of the Constitution Act, 1867 - See paragraphs 52 to 58.

Civil Rights - Topic 5671

Equality and protection of the law - Schools - Minority language rights - The Nova Scotia Court of Appeal held that the Acadian Schools Amendment to the Education Act, R.S.N.S. 1967, c. 81, providing for the establishment of French language training for the Francophone minority, did not constitute "invidious discrimination" contrary to s. 15 of the Charter - See paragraphs 59 to 69.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Purposive test - [See Civil Rights - Topic 2881 above].

Civil Rights - Topic 8592

Canadian Charter of Rights and Freedoms - Practice - Parties - Attorney General - The Nova Scotia Court of Appeal held that the Attorney General of Nova Scotia was a proper party to an action challenging the constitutional validity of the Acadian Schools Amendment to the Education Act - Further, any remedy granted against the Attorney General could be enforced against the province - See paragraphs 70 to 73.

Constitutional Law - Topic 2986

Determination of validity of statutes - Practice - Parties - Attorney General - [See Civil Rights - Topic 8592 above].

Constitutional Law - Topic 9551

Education - Separate or denominational schools - Regulation - Valid provincial legislation - [See Civil Rights - Topic 2888 above].

Cases Noticed:

Edwards v. Attorney General of Canada, [1930] A.C. 124 (P.C.), appld. [para. 18].

R. v. Big M Drug Mart Limited, [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 85 C.L.L.C. 14,023; 13 C.R.R. 64, appld. [para. 19].

Quebec Association of Protestant School Boards et al. v. Attorney General of Quebec, [1984] 2 S.C.R. 66; 54 N.R. 196; 10 D.L.R.(4th) 321, appld. [para. 21]; dist. [para. 57].

Reference re Minority Language Educational Rights (1984), 4 O.A.C. 321; 47 O.R.(2d) 1; 10 D.L.R.(4th) 431, appld. [para. 23].

Mahe et al. v. Alberta et al., [1987] 6 W.W.R. 331; 80 A.R. 161, appld. [para. 24].

Societe des Acadiens du Nouveau-Brunswick Inc. et al. v. Minority Language School Board No. 50, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271, appld. [para. 24].

Reference re Minority Language Educational Rights (P.E.I.) (1988), 69 Nfld. & P.E.I.R. 236; 211 A.P.R. 236 (P.E.I.C.A.), appld. [para. 26].

Commission des Ecoles Fransaskoises Inc. v. Saskatchewan, [1988] 3 W.W.R. 354; 64 Sask.R. 123 (Q.B.), appld. [para. 26].

Andrews v. Law Society of British Columbia (1989), 91 N.R. 255 (S.C.C.), appld. [para. 63].

British Columbia Teachers' Federation et al. v. R. in Right of British Columbia et al., [1986] 2 W.W.R. 469, appld. [para. 72].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 23 [para. 4]; sect. 33 [para. 27].

Constitution Act, 1867, sect. 93 [para. 32].

Education Act, R.S.N.S. 1967, c. 81, sect. 1(a), sect. 3(aa), sect. 4(kb), sect. 5A [para. 3].

Counsel:

A. Wayne MacKay and Raymond S. Riddell, for the appellants;

William M. Wilson, for the respondent.

This case was heard on February 14, 1989, at Halifax, Nova Scotia, before Clarke, C.J.N.S., Hart, Jones, Macdonald and Pace, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On March 29, 1989, Clarke, C.J.N.S., delivered the following judgment for the Appeal Division: