OECTA v. Ont. (A.G.), (1999) 120 O.A.C. 116 (CA)

• Judge: McMurtry, C.J.O., Brooke, Abella, Goudge and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 27, 1999
• Jurisdiction: Ontario
• Citations: (1999), 120 O.A.C. 116 (CA)

OECTA v. Ont. (A.G.) (1999), 120 O.A.C. 116 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. MY.001

Ontario English Catholic Teachers' Association, Marshall Jarvis, Claire Ross and Annemarie Ross (respondents/applicants) v. Attorney General of Ontario (appellant/respondent) and Ontario Catholic School Trustees' Association and Association franco-ontarienne des conseils scolaires catholiques (interveners)

Ontario Public School Boards' Association, Upper Grand District School Board, The Toronto District School Board, Ontario Secondary School Teachers' Federation, Elementary Teachers' Federation of Ontario, Elizabeth Sandals, Joleene Kemp, David Edwards and Robert Churchill (respondents/applicants) v. Attorney General of Ontario (appellant/respondent) and Association des conseillers(ères) des écoles publiques de l'Ontario and Annie Kidder (interveners)

(C30294; C30421; C30428)

Indexed As: Ontario English Catholic Teachers' Association et al. v. Ontario (Attorney General) et al.

Ontario Court of Appeal

McMurtry, C.J.O., Brooke, Abella, Goudge and Borins, JJ.A.

April 27, 1999.

Summary:

The Education Quality Improvement Act, S.O. 1997, c. 31 (EQIA), brought about fundamental changes in the governance and funding of education in Ontario. The appli­cants applied for declarations that various parts of the EQIA were unconstitutional and of no force and effect.

The Ontario Court (General Division), in a decision reported at 69 O.T.C. 321, held that the EQIA, insofar as it removed the taxation power from the Roman Catholic educational community, violated s. 93(1) of the Consti­tution Act, 1867. The Attorney General of Ontario et al. appealed that finding. Other applicants appealed the findings that: the EQIA, as well as the funding model pre­scribed by O. Reg. 287/98, did not violate s. 93(1) of the Constitution Act, 1867; the EQIA did not violate the s. 93(1) rights of public schools; the EQIA was not invalidated on the basis of the doctrine of constitutional convention; the EQIA was not an impermis­sible delegation to the Minister of Finance of the power to impose school taxes by regula­tion.

The Ontario Court of Appeal allowed the Attorney General's appeal and dismissed the other appeals.

Constitutional Law - Topic 63

General - Conventions - Nature of - The Ontario Education Quality Improvement Act (EQIA) removed the power of school boards to determine and levy property tax rates - The applicants argued that the EQIA contravened the doctrine of consti­tutional convention - The trial judge dis­missed the argument - While conventions might be "part" of the Constitution, they were not a justiciable part - Regardless of whether or not there was in fact a consti­tutional convention, it could not be applied so as to strike down or overrule a clear and specific law - The trial judge noted that "[w]hatever the application of conven­tions, it seems extremely unlikely that any such putative convention as the one pro­posed by the applicants could exist. For such a convention to exist, it would be an expansion of an explicitly defined right in s. 93, in the face of another explicitly defined capacity, the province's power to legislate in this field." - The Ontario Court of Appeal adopted these reasons - See paragraphs 95 to 100.

Constitutional Law - Topic 482

Powers of parliament and the legislatures -Limitations on powers of parliament - Rule of law - [See Constitutional Law - Topic 605 ].

Constitutional Law - Topic 605

Powers of parliament and the legislatures -Delegation of power - Taxing powers - Section 257.12(1)(b) of the Ontario Edu­cation Quality Improvement Act (EQIA) stated that "the Minister of Finance may make regulations, (b) prescribing the tax rates for school purposes for the purposes of section 257.7" - The applicants sub­mitted that the power delegated to the Minister to prescribe the tax rates was unconstitutional because it violated ss. 53 and 54 of the Constitution Act, 1867, and being completely unfettered, violated and undermined the "rule of law" and the principle of effective representation through responsible taxation - The Ontario Court of Appeal disagreed - The tax bill originated in the legislature as required by s. 53 - Section 53 did not preclude the delegation of the power to fix the amount of the school tax - See paragraphs 101 to 155.

Constitutional Law - Topic 6822

Provincial jurisdiction (s. 92) - Direct taxation within the province - What con­stitutes a tax - The Ontario Court of Ap­peal stated that "[u]nder s. 92(2) of the Constitution Act, 1867, the provinces were given the power to make laws with respect to direct taxation. The authorities are sparse with respect to what constitutes the exercise of the legislative power to impose a tax. In our view, the power to impose a tax consists of the intention to legislate in respect to all acts necessarily included in the creation of the tax, as well as all acts consequent to its creation, such as the purpose of the tax and its nature, the tax base, the class of persons required to pay it, the rate of the tax or the formula to enable the taxpayer to calculate the amount of the tax and the means for the collection of the tax." - See paragraph 131.

Constitutional Law - Topic 9542

Education - Separate or denominational schools - Extent of constitutional guaran­tees under s. 93, Constitution Act 1867 - The Ontario Court of Appeal discussed the guarantee given to denominational school boards in s. 93(1) of the Constitution Act, 1867 - The court stated that "[t]he juris­prudence does not support the proposition that s. 93(1) guarantees to denominational school boards the right to tax simpliciter. The constitutional protection is not so narrowly focused . Rather, s. 93(1) guaran­tees to the separate school community financial resources distributed in a fair and nondiscriminatory manner in such a way as to manifest the purpose of the section; namely, ... that the denominational minor­ity's interest in a separate but suitable education for its children be protected into the future." - See paragraph 46.

Constitutional Law - Topic 9542

Education - Separate or denominational schools - Extent of constitutional guaran­tees under s. 93, Constitution Act 1867 - The Ontario Court of Appeal discussed the guarantee given to denominational school boards in s. 93(1) of the Constitution Act, 1867 - The court stated that "[i]f there is funding the separate school system can continue to exist and can continue to pro­vide education with a denominational character, with or without the right to tax. It is the funding, not the right to tax, that is the necessity." - See paragraph 49.

Constitutional Law - Topic 9542

Education - Separate or denominational schools - Extent of constitutional guaran­tees under s. 93, Constitution Act 1867 - The Education Quality Improvement Act (EQIA) fundamentally changed the gov­ernance and funding of education in On­tario - The applicants alleged that the EQIA violated s. 93(1) of the Constitution Act, 1867 - The Ontario Court of Appeal held that "... the EQIA does not violate s. 93(1) insofar as it renders inoperative the right to tax. That right is not constitu­tionally protected. Moreover, the legisla­tion does not prejudicially affect the right to funding that is guaranteed by s. 93(1). It provides greater funding to separate schools than that previously available and it ensures that funding for education is distributed equitably to separate schools and public schools alike. It respects the constitutional guarantee of s. 93(1)." - See paragraph 54.

Constitutional Law - Topic 9542

Education - Separate or denominational schools - Extent of constitutional guaran­tees under s. 93, Constitution Act 1867 - The Education Quality Improvement Act (EQIA) fundamentally changed the gov­ernance and funding of education in On­tario - The applicants alleged that the EQIA violated the constitutionally pro­tected right of financial management held by separate school boards over separate schools by, inter alia, imposing a regula­tory regime on both public school boards and separate school boards that placed certain limits on their ability to make spending decisions - The trial judge dis­agreed - There was no evidence of any prejudicial effect on a denominational right because of the restrictions on the power of financial management imposed by the EQIA - The Ontario Court of Appeal agreed with this conclusion - See para­graphs 57 to 79.

Constitutional Law - Topic 9542

Education - Separate or denominational schools - Extent of constitutional guaran­tees under s. 93, Constitution Act 1867 - The Education Quality Improvement Act (EQIA) fundamentally changed the gov­ernance and funding of education in On­tario - The applicants alleged that the EQIA violated the constitutionally pro­tected right of financial management held by separate school boards over separate schools by, inter alia, providing for super­vision by the Minister of Education of separate school boards in financial diffi­culty - The trial judge disagreed - The EQIA set out defined and assessable stand­ards both for the imposition and removal of a vesting order by which the Minister of Education assumed supervision of a sepa­rate school board in financial difficulty - The Ontario Court of Appeal agreed with this conclusion - See paragraphs 57 to 60 and 80 to 92.

Constitutional Law - Topic 9549

Education - Separate or denominational schools - Ontario - [See all Constitu­tional Law - Topic 9542 ].

Constitutional Law - Topic 9555

Education - Separate or denominational schools - Taxes - [See first, second and third Constitutional Law - Topic 9542 ].

Statutes - Topic 4552

Operation and effect - Validity - Vague­ness - Section 257.12(1)(b) of the Ontario Education Quality Improvement Act (EQIA) stated that "the Minister of Finance may make regulations prescribing the tax rates for school purposes for the purposes of section 257.7" - The appli­cants sub­mitted that the power delegated to the Minister to prescribe the tax rates, being completely unfettered, was, inter alia, unconstitutionally vague - The trial judge disagreed, stating that "[t]he object of the taxes is identified, school purposes, as is the body or bodies tasked with their collec­tion. Given its context within the Educa­tion Act, the meaning of school purposes is also readily ascertainable; being expen­ditures connected with school­ing, such as the trustee honoraria provided for in s.191" - The Ontario Court of Appeal agreed with the trial judge - See paragraphs 123 to 128 and 156 to 160.

Cases Noticed:

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.(3d) 305, refd to. [para. 16].

Education Act Amendment Act, Reference Re - see Reference Re Roman Catholic Separate High Schools Funding.

Ontario Home Builders' Association et al. v. Board of Education of York Region et al., [1996] 2 S.C.R. 929; 201 N.R. 81; 93 O.A.C. 241; 137 D.L.R.(4th) 449, refd to. [para. 17].

Hirsch v. Protestant School Board of Montreal Commissioners et al., [1928] 1 D.L.R. 1041 (P.C.), refd to. [para. 19].

Protestant School Board of Greater Montreal et al. v. Québec (Procureur général) et al. (1989), 92 N.R. 327; 20 Q.A.C. 241; 57 D.L.R.(4th) 521 (S.C.C.), refd to. [para. 20].

Board of Education of Greater Hull v. Quebec (Attorney General), [1984] 2 S.C.R. 575; 56 N.R. 99; 15 D.L.R.(4th) 651; 28 M.P.L.R. 146, refd to. [para. 22].

Renvoi relatif à la Loi sur l'instruction publique, L.Q. 1988, c. 84 (1993), 154 N.R. 1; 56 Q.A.C. 1; 105 D.L.R.(4th) 266 (S.C.C.), refd to. [para. 41].

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

Board of Education (Roman Catholic Sep­arate) of Ottawa v. Ottawa Corp. (1916), 32 D.L.R. 10 (P.C.), refd to. [para. 84].

Board of Education (Separate) of Ottawa, Re (1917), 40 D.L.R. 465 (Ont. C.A.), refd to. [para. 84].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 97].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 98].

Hodge v. R. (1883), 9 App. Cas. 117 (P.C.), refd to. [para. 113].

Gray, Re (1918), 42 D.L.R. 1 (S.C.C.), refd to. [para. 113].

Reference Re Regulations in Relation to Chemicals, [1943] 1 D.L.R. 248 (S.C.C.), refd to. [para. 113].

R. v. National Fish Co., [1931] Ex. C.R. 75, refd to. [para. 114].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241; 83 D.L.R.(4th) 297, refd to. [para. 114].

Reference Re Canada Assistance Plan Act - see Reference Re Constitutional Ques­tion Act (B.C.).

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C.(3d) 289; 15 C.R.(4th) 1; 43 C.P.R.(3d) 1; 93 D.L.R.(4th) 36; 10 C.R.R.(2d) 34, refd to. [para. 121].

Burns Executors v. Minister of National Revenue, [1946] 4 D.L.R. 805 (S.C.C.), revd. in part [1950] 2 D.L.R. 529 (P.C.), refd to. [para. 132].

Vestey v. Inland Revenue Commissioners et al., [1979] 3 All E.R. 976 (H.L.), refd to. [para. 132].

Eurig Estate v. Ontario Court (General Division), Registrar (1998), 213 N.R. 55; 114 O.A.C. 55; 165 D.L.R.(4th) 1 (S.C.C.), appld. [para. 135].

Statutes Noticed:

British North America Act, 1867, sect. 53, sect. 54 [para. 111]; sect. 93(1) [para. 12].

Constitution Act, 1867 - see British North America Act, 1867.

Education Act, R.S.O. 1990, c. E-2, sect. 257.12(1)(b) [para. 109]; sect. 257.106 [para. 11].

Authors and Works Noticed:

Dussault, René, and Borgeat, Louis, Administrative Law, A Treatise (2nd Ed. 1985), vol. 1, pp. 446, 447 [para. 117].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), p. 54 [para. 89].

Keyes, John Mark, Executive Legislation: Delegated Law Making by the Executive Branch (1992), p. 44 [para. 117].

McRuer Report - see Ontario, Royal Commission Inquiry into Civil Rights, Report No. 1 (1968).

Merriam-Webster's Collegiate Dictionary (3rd Ed. 1993), pp. 315 [para. 152]; 583, 1208 [para. 130].

Ontario, Royal Commission Inquiry into Civil Rights, Report No. 1 (McRuer Report) (1968), vol. 1, p. 353 [para. 117].

Counsel:

Janet E. Minor, Robert E. Charney and Michel Y. Hélie, for the Attorney Gen­eral of Ontario;

Paul J.J. Cavalluzzo, for Ontario Catholic Teachers' Association, Marshall Jarvis, Claire Ross and Annemarie Ross;

Peter Lauwers and John C. Murray, for Ontario Catholic School Trustees' Asso­ciation;

John C. Murray and Paul S. Rouleau, for Association franco-ontarienne des con­seils scolaires catholiques and Asso­cia­tion des conseillers(ères) des écoles publiques de l'Ontario;

Brian A. Kelsey, Q.C., Eric K. Gillespie, Michael A. Hines and Elizabeth J. Shil­ton, for Ontario Public School Boards' Association;

Michael A. Hines, for Upper Grand Dis­trict School Board, Elizabeth Sandals, Joleene Kemp and Annie Kidder;

Brian A. Kelsey, Q.C., and Eric K. Gillespie, for the Toronto District School Board and Metro Toronto School Board;

Maurice A. Green and Susan M. Ursel, for Ontario Secondary School Teachers' Federation, David Edwards and Robert Churchill;

Elizabeth J. Shilton, for Elementary Teachers' Federation of Ontario and Federation of Women Teachers' Associ­ation of Ontario.

These appeals were heard on November 16-19, 1998, by McMurtry, C.J.O. Brooke, Abella, Goudge and Borins, JJ.A., of the Ontario Court of Appeal. The Court of Appeal released the following judgment on April 27, 1999.