Reference Re Roman Catholic Separate High Schools Funding, (1987) 77 N.R. 241 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 25, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 77 N.R. 241 (SCC);22 OAC 321;40 DLR (4th) 18;[1987] 1 SCR 1148;1987 CanLII 65 (SCC);77 NR 241;36 CRR 305

Ref. Re R.C. Sep. High Schools Funding (1987), 77 N.R. 241 (SCC)

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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In The Matter Of a Reference to the Court of Appeal pursuant to Section 19 of the Courts of Justice Act, 1984, Statutes of Ontario, 1984, Chapter 11, by Order-in-Council, O.C. 1774/85 respecting Bill 30, An Act to Amend The Education Act to provide full funding for Roman Catholic Separate High Schools

Between

The Metropolitan Toronto Board of Education, Ontario Alliance of Christian Schools, The Waterloo County Board of Education, Coalition for Public Education Ontario Inc., Ontario Secondary School Teachers Federation, Ontario Association of Alternative and Independent Schools, The Board of Education for the City of London, Canadian Civil Liberties Association, Canadian Jewish Congress, Loyal Orange Association in Ontario, Peel Board of Education, Federation of Women Teachers' Associations of Ontario, Reverend William D.F. Morris, Mary Elizabeth Morris, Greg Vezina and Nina Gertrude Stannard and The Attorney General for Ontario and Ontario Separate School Trustees' Association, The Renfrew County Roman Catholic Separate School Board, The Lanark-Leeds & Grenville Roman Catholic Separate School Board, The Huron-Perth County Roman Catholic Separate School Board, The Kirkland Lake & District Roman Catholic Separate School Board, The London and Middlesex County Roman Catholic Separate School Board, The Hamilton-Wentworth Roman Catholic Separate School Board, Metropolitan Separate School Board, Dufferin-Peel Roman Catholic Separate School Board, Hastings-Prince Edward County Roman Catholic Separate School Board, Frontenac-Lennox and Addington Roman Catholic Separate School Board, Carleton Roman Catholic Separate School Board, Ontario English Catholic Teachers' Association and l'Association Française des Conseils Scolaires de l'Ontario and the Quebec Association Of Protestant School Boards, Attorney General for Alberta and Attorney General of Quebec

Indexed As: Reference Re Roman Catholic Separate High Schools Funding

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ.

June 25, 1987.

Summary:

Pursuant to s. 19 of the Courts of Justice Act, 1984, the Lieutenant Governor in Council of Ontario referred a constitutional reference to the Ontario Court of Appeal for determination of whether an Act to Amend the Education Act (Bill 30), which would provide for full funding for Roman Catholic separate high schools, was inconsistent with the Constitution of Canada, including the Canadian Charter of Rights and Freedoms.

The Ontario Court of Appeal in a judgment reported 13 O.A.C. 241; 53 O.R.(2d) 513; 25 D.L.R.(4th) 1, held that Bill 30 was constitutional and did not contravene the Charter.

On appeal the Supreme Court of Canada dismissed the appeal and held that Bill 30 was intra vires the province under s. 93 of the Constitution Act, 1867, which gave the province exclusive plenary power over education, including a power to add new rights and privileges to denominational schools in response to changing conditions. The court held that the Charter did not abrogate or derogate from the rights and privileges granted in s. 93.

Civil Rights - Topic 8302

Canadian Charter of Rights and Freedoms - General - Effect of - On rights in Constitution - The Supreme Court of Canada held that the Charter does not have the effect of abrogating or derogating from rights or privileges granted under the Constitution - See paragraphs 60 to 89.

Constitutional Law - Topic 1007

Interpretation of Constitution Act - General principles - Judicial restraint respecting political issues - Provisions reflecting political compromise - The Supreme Court of Canada stated that a provision which reflects a political compromise, such as s. 93 of the Constitution Act, 1867, concerning the provincial power over education and the denominational schools, should not be given a too wide an interpretation, but it must still be open to the court to breathe life into a compromise that is clearly expressed - See paragraph 29.

Constitutional Law - Topic 9549

Education - Separate or denominational schools - Ontario - Funding for Roman Catholic separate high schools - The Supreme Court of Canada upheld the constitutional validity of Bill 30, legislation proposed to amend the Ontario Education Act to provide full funding for Roman Catholic separate high schools - The court held that the legislation was intra vires the province under s. 93 of the Constitution Act, 1867, which gave the province exclusive plenary power over education, including the power to add new rights and privileges to denominational schools in response to changing conditions - The court held that the Canadian Charter of Rights and Freedoms, particularly the guarantees of freedom of religion in s. 2(a) and freedom from discrimination in s. 15, did not abrogate or derogate from the rights and privileges granted in s. 93 - The court stated that s. 29 of the Charter was not necessary to protect legislation respecting denominational schools under s. 93(1), but was present merely for greater certainty.

Constitutional Law - Topic 9551

Education - Separate or denominational schools - Regulation - Valid provincial legislation - [See Constitutional Law - Topic 9549 above].

Education - Topic 8010

Separate schools - Funding - Roman Catholic high schools - [See Constitutional Law - Topic 9549 above].

Statutes - Topic 5362

Operation and effect - Delegated legislation - Regulations - Validity of - General principles - The Supreme Court of Canada stated that a statutory power to make regulations is not unfettered, but is constrained by the policies and objectives inherent in the enabling statute - See paragraph 55.

Cases Noticed:

Tiny Separate School Trustees v. R. (1926), 59 O.L.R. 96, affd. 60 O.L.R. 15 (C.A.), affd. [1927] S.C.R. 637, affd. [1928] A.C. 363, overruled [paras. 7, 46].

Brophy v. Attorney-General for Manitoba, [1895] A.C. 202, consd. [paras. 21, 25, 28, 72].

City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.), consd. [para. 24].

Reference Re Adoption Act, [1938] S.C.R. 398, consd. [para. 28].

Ottawa Separate School Trustees v. City of Ottawa (1915), 34 O.L.R. 624, consd. [para. 28].

La Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271, consd. [para. 29].

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997, appld. [para. 55].

Oakwood Development Ltd. v. Rural Municipality of St. Francois Xavier, [1985] 2 S.C.R. 164; 61 N.R. 321, appld. [para. 55].

Galloway v. The Mayor and Commonalty of London (1866), L.R. 1 H.L. 34, appld. [para. 55].

Greater Hull School Board v. Attorney General of Quebec, [1984] 2 S.C.R. 575; 56 N.R. 99, appld. [para. 59].

Statutes Noticed:

Education Amendment Act, S.O. 1986, c. 21, sect. 136.1a.

An Act to provide for the advancement of Education in this Province, 1839 (U.C.), c. 10 [para. 34].

Canadian Charter of Rights and Freedoms, sect. 1, sect. 2(a), sect. 15, sect. 15(1), sect. 29 [paras. 9, 82].

Common Schools Act, 1816 (U.C.), c. 36, sect. 1, sect. 2, sect. 3, sect. 5, sect. 6, sect. 8, sect. 13 [para. 33].

Common Schools Act, 1841, c. 18, sect. 7(4), sect. 11 [para. 36].

Common Schools Act, 1843, c. 29 [para. 76].

Common Schools Act, C.S.U.C. 1859, c. 64, sect. 27(7), sect. 27(8), sect. 27(16), sect. 27(18), sect. 27(23)(4), sect. 79(9), sect. 79(15), sect. 79(17), sect. 79(18), sect. 82(1), sect. 119(5), sect. 120, sect. 121, sect. 122, sect. 123, sect. 124, sect. 125 [paras. 38-43].

Constitution Act, 1867, sect. 91, sect. 91(24), sect. 92, sect. 92(10), sect. 93(1), sect. 93(2), sect. 93(3), sect. 93(4).

Constitution Act, 1982, sect. 52.

Courts of Justice Act, S.O. 1984, c. 11, sect. 19, sect. 19(7).

Education Act, R.S.O. 1980, c. 129.

Grammar Schools Act, 1853, c. 186, sect. 5 [para. 34]; sect. 11(4) [para. 35].

Grammar Schools Act, C.S.U.C. 1865, c. 23 [para. 37].

Manitoba Act, 1870, 33 Vict., c. 3, sect. 22, sect. 22(2) [para. 25].

Public Schools Act, 1807 (U.C.) c. 6, sect. 2, sect. 4, sect. 5 [para. 33].

Public Schools Act, S.M. 1890, c. 38 [para. 24].

Separate Schools Act, C.S.U.C. 1859, c. 65, sect. 2, sect. 3, sect. 4, sect. 5, sect. 6, sect. 7, sect. 9, sect. 14, sect. 20, sect. 24, sect. 26, sect. 33 [para. 43].

Separate Schools Act ("Scott Act"), C.S.U.C. 1863, c. 5, sect. 7, sect. 9, sect. 14, sect. 20, sect. 26 [para. 44].

Authors and Works Noticed:

Canada, Debates of the House of Commons, 6th Sess., 7th Parliament, 59 Vic. 1896, col. 2719, at 2724, March 3, 1896 [para. 27].

Canada, Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 1980-1981 [para. 9].

United Kingdom, House of Lords, Parliamentary Debates, 3rd. ser., vol. 185, col. 557, at p. 557, February 19, 1867 [para. 27].

Counsel:

John J. Robinette, Q.C. and Brian A. Kelsey, Q.C., for the Metropolitan Toronto Board of Education;

D.J.M. Brown, Q.C., and Guy Pratte, for Ontario Alliance of Christian Schools;

J.J. Kelly, for the Waterloo County Board of Education;

Bryan Findlay, Q.C., and J.G. Richards, for Coalition for Public Education Ontario Inc.;

Aubrey E. Golden, Q.C., and Maurice A. Green, for the Ontario Secondary School Teachers' Federation;

John B. Laskin and Robert J. Sharpe, for Ontario Association of Alternative and Independent Schools;

Claude Pensa, Q.C., and Edward M. Perlmutter, for the Board of Education for the City of London;

Larry T. Taman and David W. Kent, for Canadian Civil Liberties Association;

John I. Laskin, for Canadian Jewish Congress;

Michael J. Penman and Christopher D. Woodbury, for Loyal Orange Association in Ontario;

R.G. Keel and J.L. Razulis, for Peel Board of Education;

P.S.A. Lamek, Q.C., and Susan E. Paul, for Federation of Women Teachers' Associations of Ontario;

Rev. William D.F. Morris and Mary Elizabeth Morris, appearing on their own behalf;

Nina Gertrude Stannard, appearing on her own behalf;

Ian Scott, Q.C., Blenus Wright, Q.C., John Cavarzan, Q.C., and Peter W. Hogg, Q.C., for the Attorney General for Ontario;

Claude R. Thomson, Q.C., and Gavin MacKenzie, for Ontario Separate School Trustees' Association, et al.;

Robert L. Falby, Q.C., and Peter D. Lauwers, for Metropolitan Separate School Board and Dufferin Peel Roman Catholic Separate School Board;

John Sopinka, Q.C., and David M. Brown, for Hastings-Prince Edward County Roman Catholic Separate School Board;

John Murray, Pierre Genest, Q.C., and Nora Gillespie, for Frontenac-Lennox and Addington Roman Catholic Separate School Board;

William T. Green, Q.C., for Carleton Roman Catholic Separate School Board;

Paul J.J. Cavaluzzo, for Ontario English Catholic Teachers' Association;

Paul Rouleau, for l'Association franeaise des conseils scolaires de l'Ontario;

Colin K. Irving and Allan R. Hilton, for the Quebec Association of Protestant School Boards;

Howard Kushner, for the Attorney General for Alberta;

Jean-K. Samson, Luc Le Blanc and Jean Bouchard, for the Attorney General of Quebec.

Solicitors of Record:

McCarthy & McCarthy, Toronto, Ontario, for the Metropolitan Toronto Board of Education;

Blake, Cassels & Graydon, Toronto, Ontario, for Ontario Alliance of Christian Schools;

Kelly & Morley, Kitchener, Ontario, for the Waterloo County Board of Education;

Weir & Foulds, Toronto, Ontario, for Coalition for Public Education Ontario Inc.;

Golden, Green & Starkman, Toronto, Ontario, for Ontario Secondary School Teachers' Federation;

Tory, Tory, DesLauriers & Binnington, Toronto, Ontario, for Ontario Association of Alternative and Independent Schools;

Giffen, Pensa, London, Ontario, for the Board of Education for the City of London;

McMillan, Binch, Toronto, Ontario, for Canadian Civil Liberties Association;

Davies, Ward & Beck, Toronto, Ontario, for Canadian Jewish Congress;

Fraser & Beatty, Toronto, Ontario, for Loyal Orange Association in Ontario;

Pallett, Valo, Barsky & Yolles, Mississauga, Ontario, for Peel Board of Education;

Fraser & Beatty, Toronto, Ontario, for Federation of Women Teachers' Associations of Ontario;

Reverend William D.F. Morris and Mary Elizabeth Morris, on their own behalf;

Gregory Vezina, on his own behalf;

Nina Gertrude Stannard, on her own behalf;

Attorney General for Ontario, Toronto, Ontario, for the Attorney General for Ontario;

Campbell, Godfrey & Lewtas, Toronto, Ontario, for the Ontario Separate School Trustees' Association, et al.;

Day, Wilson & Campbell, Toronto, Ontario, for Metropolitan Separate School Board and Dufferin-Peel Roman Catholic Separate School Board;

Stikeman, Elliott, Toronto, Ontario, for Hastings-Prince Edward County Roman Catholic Separate School Board;

Cassels, Brock & Blackwell, Toronto, Ontario, for Frontenac-Lennox and Addington Roman Catholic Separate School Board;

Beament, Green, York, Ottawa, Ontario, for Carleton Roman Catholic Separate School Board;

Cavalluzzo, Hayes & Lennon, Toronto, Ontario, for Ontario English Catholic Teachers' Association Cassels, Brock & Blackwell, Toronto, Ontario, for l'Association franeaise des conseils scolaires de l'Ontario;

Colin K. Irving, Ottawa, Ontario, and Allan R. Hilton, Montreal, Quebec, for the Quebec Association of Protestant School Boards;

Attorney General for Alberta, Edmonton, Alberta, for the Attorney General for Alberta;

Attorney General of Quebec, Ste-Foy, Quebec, for the Attorney General of Quebec.

This case was heard on January 29 and 30 and February 3-5, 1987, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ., of the Supreme Court of Canada.

On June 25, 1987, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Wilson, J. (Dickson, C.J.C., McIntyre and La Forest, JJ., concurring) - see paragraphs 1 to 65;

Estey, J. (Beetz, J., concurring) - see paragraphs 66 to 87;

Lamer, J. - see paragraphs 88 to 90.