L'Association des parents de l'école Rose-des-Vents et al. v. Conseil Scolaire Francophone de la Colombie-Britannique et al., (2015) 470 N.R. 278 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 02, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 470 N.R. 278 (SCC);2015 SCC 21;[2015] 2 SCR 139;69 BCLR (5th) 1

Rose-des-Vents v. Conseil Scolaire (2015), 470 N.R. 278 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.R. TBEd. AP.018

Association des parents de l'école Rose-des-vents, Joseph Pagé, in his name and in the name of all citizens of Canada residing west of Main Street in the city of Vancouver whose first language learned and still understood is French, or who have received their primary school instruction in Canada in French, or of whom any child has received or is receiving primary or secondary school instruction in French in Canada, and Conseil scolaire francophone de la Colombie-Britannique (appellants) v. Minister of Education of British Columbia and Attorney General of British Columbia (respondents) and Attorney General for Saskatchewan, Attorney General of Alberta, Attorney General of the Northwest Territories, Attorney General of the Yukon Territory, Commissioner of Official Languages of Canada, Commission scolaire francophone, Territoires du Nord-Ouest, Fédération nationale des conseils scolaires francophones, Conseil des écoles fransaskoises and Commission scolaire francophone du Yukon (interveners)

(35619; 2015 SCC 21; 2015 CSC 21)

Indexed As: L'Association des parents de l'école Rose-des-Vents et al. v. Conseil Scolaire Francophone de la Colombie-Britannique et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

April 24, 2015.

Summary:

L'Association des parents de l'école Rose-des-Vents petitioned for a declaration that the Association's s. 23 Charter language rights had been breached. The case management judge struck certain paragraphs of the Province's response. The judge also ordered that the petition would be heard in three parts, addressing three issues: (1) whether there was equivalency in facilities and transportation for English and French language students in the relevant catchment area; (2) whether any inequality amounted to a Charter breach; and, if so, (3) what remedy should be afforded to the Association. The judge found that the Association's s. 23 Charter rights had been breached (see [2012] B.C.T.C. Uned. 1614). The Ministry of Education of British Columbia and the Attorney General of British Columbia (collectively, the Province) appealed.

The British Columbia Court of Appeal, in a decision reported at 342 B.C.A.C. 251; 585 W.A.C. 251, allowed the appeal and remitted the petition to the Supreme Court. The Province sought an order setting aside the awards of special costs to the Association and Pagé, in his name, and as representative of parents of children enrolled at l'école élémentaire Rose-des-Vents and the Conseil Scolaire Francophone de la Columbie-Britannique by the Supreme Court judge and an order that it be granted its costs of the appeal.

The British Columbia Court of Appeal, in a decision reported at 350 B.C.A.C. 142; 598 W.A.C. 142, set aside the special costs awards, remitted the issue of costs of the parents' petition to the Supreme Court judge hearing the petition and ordered that the parties bear their own costs of the appeal. The Association appealed both judgments.

The Supreme Court of Canada allowed the appeal and restored the Supreme Court judge's declaration and costs award.

Editor's Note: there are several cases involving these parties.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - L'école élémentaire Rose-des-Vents (RDV) was the only publicly-funded French-language elementary school for students living west of Main Street in the city of Vancouver - It was established in 2001 - Enrollment at RDV had increased since 2001 and the school, which currently shared facilities with a French-language secondary school, had become increasingly overcrowded - RDV was small, with narrow hallways and no coat hooks or lockers - There was no available flexible space in the school - The washrooms were inadequate - The library was very small, and the classrooms were significantly smaller than those in other schools - Only three classrooms met the recommended size - Two classrooms had no windows - The playground was divided into small sections - Due to the space sharing arrangement with the secondary school, the space made available to RDV would likely diminish in the coming years - By contrast, the English-language schools in RDV's catchment area were larger, with larger classrooms, larger and better playing fields, and more spacious libraries - None of the RDV students lived within the one kilometre "walk limit" - Over two thirds of these students spent more than 30 minutes per bus trip - By contrast, most students attending English-language schools in the area lived within one kilometre of their schools - L'Association des parents de l'école Rose-des-Vents petitioned for a declaration that the Association's s. 23 Charter language rights had been breached - The case management judge found a lack of equivalence between the school facilities afforded to the parents and the facilities available to majority language students in the same area - Despite the good quality of instruction and academic outcomes, the RDV facilities were inadequate, and the long travel times of many students were not offset by superior facilities or programs - He found that the disparity limited enrolment and contributed to assimilation - He concluded that the facilities were inadequate to meet the standard of equivalence required by s. 23 of the Charter - The British Columbia Court of Appeal allowed the Province's appeal - The Supreme Court of Canada restored the case management judge's declaration - See paragraphs 24 to 57.

Civil Rights - Topic 2886

Language - Education - Minority language education rights - Facilities - At issue in this appeal was minority language education rights under s. 23 of the Charter, i.e., when was the quality of a minority language school education equivalent to that of the majority language schools and what factors went into determining equivalence - The Supreme Court of Canada stated that "[u]ltimately, the focus of the assessment is the substantive equivalence of the educational experience. If, on balance, the experience is equivalent, the requirements of s. 23 will be met." - The first step in any s. 23 analysis was to determine the entitlement of the parents, who were the holders of the right - If rights holders considered which school their child should attend, or whether to withdraw their child from a minority language school, they would look to nearby majority language schools as alternatives - It followed that the comparator group that would generally be appropriate for the assessment of substantive equivalence of a minority language school would be the neighbouring majority language schools that represented a realistic alternative for rights holders - The comparative exercise was contextual and holistic, accounting for not only physical facilities, but also quality of instruction, educational outcomes, extracurricular activities, and travel times, to name a few factors - Issues of costs and practicalities were considered in determining where a minority language community fell on the sliding scale of rights guaranteed under s. 23 - Where the community was entitled to the highest level of educational services, on an equal footing with the majority language community, costs and practicalities would not be relevant to a determination of whether the rights holders were receiving the services to which they were entitled - It might be, however, that costs and practicalities would be relevant in attempts to justify a breach of s. 23, and in attempts to fashion an appropriate and just remedy for a breach - See paragraphs 32 to 50.

Civil Rights - Topic 8362

Canadian Charter of Rights and Freedoms - Denial of rights - Meaning of - L'école élémentaire Rose-des-Vents (RDV) was the only publicly-funded French-language elementary school for students living west of Main Street in the city of Vancouver - It was established in 2001 - Enrollment at RDV had increased since 2001 and the school, which currently shared facilities with a French-language secondary school, had become increasingly overcrowded - RDV was small, with narrow hallways and no coat hooks or lockers - There was no available flexible space in the school - The washrooms were inadequate - The library was very small, and the classrooms were significantly smaller than those in other schools - Only three classrooms met the recommended size - Two classrooms had no windows - The playground was divided into small sections - Due to the space sharing arrangement with the secondary school, the space made available to RDV would likely diminish in the coming years - By contrast, the English-language schools in RDV's catchment area were larger, with larger classrooms, larger and better playing fields, and more spacious libraries - None of the students lived within the one kilometre "walk limit" - Over two thirds of these students spent more than 30 minutes per bus trip - By contrast, most students attending English-language schools in the area lived within one kilometre of their schools - L'Association des parents de l'école Rose-des-Vents petitioned for a declaration that the Association's s. 23 Charter language rights had been breached - The case management judge found a lack of equivalence between the school facilities afforded to the parents and the facilities available to majority language students in the same area - Despite the good quality of instruction and academic outcomes, the RDV facilities were inadequate, and the long travel times of many students were not offset by superior facilities or programs - He found that the disparity limited enrolment and contributed to assimilation - He concluded that the facilities were inadequate to meet the standard of equivalence required by s. 23 of the Charter - The British Columbia Court of Appeal allowed the Province's appeal - The Supreme Court of Canada restored the case management judge's declaration - "[T]he judge's declaration regarding the lack of s. 23 equivalence represents the equivalent of a declaration of a prima facie breach of s. 23, subject to the future determination of responsibility, justification for the breach (if applicable), and positive remedy." - See paragraphs 58 to 63.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - L'Association des parents de l'école Rose-des-Vents petitioned for a declaration that the Association's s. 23 Charter language rights had been breached - The case management judge struck certain paragraphs of the Province's response - The judge also ordered that the petition would be heard in three parts, addressing three issues: (1) whether there was equivalency in facilities and transportation for English and French language students in the relevant catchment area; (2) whether any inequality amounted to a Charter breach; and, if so, (3) what remedy should be afforded to the Association - The judge found that the Association's s. 23 Charter rights had been breached - The Ministry of Education of British Columbia and the Attorney General of British Columbia (collectively, the Province) appealed - The Court of Appeal allowed the appeal - With respect to the order striking pleadings, the Province should not have been prevented from pursuing and developing through the pre-hearing discovery process crafted by the judge, or through the evidence of expert witnesses, the defences that it wished to advance respecting the equivalence of the facilities based upon the application of the sliding scale - The Supreme Court of Canada restored the case management judge's order striking the pleadings - Some or all of the Province's struck pleadings might be relevant to a subsequent phase of the litigation - However, based on the judge's organization of the proceedings, they did not assist in the first phase at issue in this appeal - Given the lack of relevance of the pleadings struck, the Court of Appeal erred in setting aside the order striking the pleadings, and in setting aside the judge's declaration - See paragraphs 74 to 81.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - L'Association des parents de l'école Rose-des-Vents (RDV) petitioned for a declaration that the Association's s. 23 Charter language rights had been breached - The case management judge granted the petition - Despite the good quality of instruction and academic outcomes, the RDV facilities were inadequate, and the long travel times of many students were not offset by superior facilities or programs - He found that the disparity limited enrolment and contributed to assimilation - He concluded that the facilities were inadequate to meet the standard of equivalence required by s. 23 of the Charter - The judge awarded special costs to the petitioners - The Court of Appeal set aside the special costs order - The Supreme Court of Canada restored the costs order - The judge turned his mind to the limited ability of the parents to bear the costs of the proceedings - Further, he noted the Province's superior capacity to bear these expenses, and the inability of the Conseil Scolaire Francophone (CSF) to bear such costs without impacting students, thus risking further s. 23 violations - The type of litigation at issue in this appeal was unusual - The parents already had a right to minority language education recognized under s. 23, and their petition was initiated largely as a means to compel the Province and the CSF to live up to existing obligations - This process raised novel legal questions regarding the analysis of equivalence under s. 23 - Even with such a focused approach, litigation of this nature was nonetheless an onerous burden for a small group of parents to bear - It was for this reason that courts had, in the past, awarded special costs in cases involving s. 23 violations where the rights holders made sustained efforts to alert government to the s. 23 issues prior to launching legal proceedings - See paragraphs 83 to 90.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - [See Practice - Topic 7029.5 ].

Cases Noticed:

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 14].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 26].

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. 27].

Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839; 149 N.R. 241; 83 Man.R.(2d) 241; 36 W.A.C. 241, refd to. [para. 29].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 62].

Solski v. Quebec (Attorney General), [2005] 1 S.C.R. 201; 331 N.R. 256; 2005 SCC 14, refd to. [para. 76].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 78].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 83].

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 84].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 84].

Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 100 B.C.L.R.(4th) 28; 2009 BCCA 563, refd to. [para. 86].

Arsenault-Cameron et al. v. Prince Edward Island (1997), 149 Nfld. & P.E.I.R. 96; 467 A.P.R. 96 (P.E.I.T.D.), refd to. [para. 89].

Marchand v. Simcoe (County) Board of Education (1986), 12 C.P.C.(2d) 140 (Ont. H.C.), refd to. [para. 89].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 23 [para. 24].

Authors and Works Noticed:

Bastarache, Michel, Education Rights of Provincial Official Language Minorities (Section 23), in Beaudoin, Gerald, and Ratushny, Ed, The Canadian Charter of Rights and Freedoms (2nd Ed. 1989), p. 695 [para. 26].

Beaudoin, Gerald, and Mendes, Errol, Canadian Charter of Rights and Freedoms (4th Ed. 2005), pp. 1100 to 1101 [para. 27].

Beaudoin, Gerald, and Ratushny, Ed, The Canadian Charter of Rights and Freedoms (2nd Ed. 1989), p. 695 [para. 26].

Canada, Royal Commission on Bilingualism and Biculturalism, Report of the Royal Commission on Bilingualism and Biculturalism, Book II, Education (1968), p. 8 [para. 26].

Doucet, Michel, L'article 23 de la Charte canadienne des droits et libertés (2013), 62 S.C.L.R.(2d) 421, pp. 462 to 463 [para. 65].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (2014 Update, Release 1), vol. 2, p. 40-37 [para. 65].

Landry, Rodrigue, and Allard, Réal, L'exogamie et le maintien de deux langues et de deux cultures: le rôle de la francité familioscolaire (1997), 23 Revue des sciences de l'éducation 561, generally [para. 76].

Power, Mark, and Foucher, Pierre, Language Rights and Education, in Beaudoin, Gerald, and Mendes, Errol, Canadian Charter of Rights and Freedoms (4th Ed. 2005), pp. 1100 to 1101 [para. 27].

Counsel:

Nicolas M. Rouleau and Joseph Pagé, for the appellants, Association des parents de l'école Rose-des-vents et al.;

Robert W. Grant, Q.C., Jean-Pierre Hachey, Mark C. Power and David P. Taylor, for the appellant, Conseil scolaire francophone de la Colombie-Britannique;

Leonard T. Doust, Q.C., Karrie Wolfe and Warren B. Milman, for the respondents;

Alan F. Jacobson and Barbara C. Mysko, for the intervener, the Attorney General for Saskatchewan;

Randy Steele, for the intervener, the Attorney General of Alberta;

François Baril, for the intervener, the Attorney General of the Northwest Territories;

Maxime Faille, Guy Régimbald and Pippa Lawson, for the intervener, the Attorney General of the Yukon Territory;

Christine Ruest Norrena and Isabelle Bousquet, for the intervener, the Commissioner of Official Languages of Canada;

Roger J.F. Lepage and Francis P. Poulin, for the interveners, Commission scolaire francophone, Territoires du Nord-Ouest, Fédération nationale des conseils scolaires francophones, Conseil des écoles fransaskoises and Commission scolaire francophone du Yukon.

Solicitors of Record:

Nicolas M. Rouleau, société professionnelle, Toronto, Ontario; Joseph Pagé, Vancouver, British Columbia, for the appellants, Association des parents de l'école Rose-des-vents et al.;

Gall, Legge, Grant & Munroe, Vancouver, British Columbia; Power Law, Ottawa, Ontario, for the appellant, Conseil scolaire francophone de la Colombie-Britannique;

Attorney General of British Columbia, Victoria, British Columbia; McCarthy Tétrault, Vancouver, British Columbia, for the respondents;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

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

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, the Attorney General of the Northwest Territories;

Attorney General of the Yukon, Whitehorse, Yukon; Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, the Attorney General of the Yukon Territory;

Office of the Commissioner of Official Languages, Gatineau, Quebec, for the intervener, the Commissioner of Official Languages of Canada;

Miller Thomson, Regina, Saskatchewan, for the interveners, Commission scolaire francophone, Territoires du Nord-Ouest, Fédération nationale des conseils scolaires francophones, Conseil des écoles fransaskoises and Commission scolaire francophone du Yukon.

This appeal was heard on December 2, 2014, by McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme  Court  of  Canada. The  following judgment of the Supreme Court was delivered in both official languages by Karakatsanis, J., on April 24, 2015.