The Role of Courts in Education

• Author: Shirley Van Nuland
• Pages: 59-81

59

CHAPTER 3

The Role of Courts in Education

Shirley Van Nuland

A. INTRODUCTION

The Cons titution Act, 1867 a ords education i n Canada spe cial stat us

through sec tion 93, which outlines that t he provinces are a ssigned legis-

lative authorit y in all education mat ters. Specically,

In and for each P rovince the Legisl ature may exclusively m ake Laws in

relation to Educ ation, subject and a ccording to the fol lowing Provi sions:

(1) Nothing i n any such Law shal l prejudicially a ect any Right or Pr iv-

ilege with re spect to Denom ination al Schools wh ich any Cla ss of

Persons have by L aw in the Provinc e at the Union . . . .1

Provinces h ave authority to make laws th at relate to education subject to

certai n safeguards for denomin ational schools. The one exception to t he

federal govern ment not interfer ing in educat ional matte rs is the power

that it has over educ ation of Aborigina l peoples, that is, “per sons governed

by the Indian Act a nd Federal agreements w ith Bands or Band Counci ls.”2

In 1982, the Canadian Charter of Rights and Freedom s was entrenched in

the C onstitution Act, 1982.3 As a key element of the Constitut ion Act, 1982,

the Charte r is supreme as the l aw in Canada. All law or legi slation is to be

consistent wit h the provisions of the Constitution A ct, 1982; if not, the law

1 Constitutio n Act, 1867 (UK), 30 & 31 Vic t, c 3, s 93 (distri bution of legislat ive pow-

ers), re printed in RSC 1985, Ap p II, No 5.

2 Anthony Brown & Mar vin Zuker, Education Law, 4th ed ( Toronto: Thomson Car-

swell, 2007) at 3.

3 Part I of the Constitution Act, 1982, being Sch edule B to the Canada Ac t 1982 (UK),

1982, c 11 [Charter].

60 / Shirley Van Nuland

or legislation ha s no force or eect.4 The Charte r has established the r ights

and freedoms f or all Canadia ns regardless of residence. A s the courts hear

cases that i nvolve the impact of the Charte r, the provinces are forced to ad-

just their leg islation to comply wit h the standards of the Char ter as inter-

preted by the cour ts. Charter-based is sues that come before t he courts i n

Newfoundl and and Labrador now have an impa ct on schools in Manitoba

or British Columbia. To avoid chal lenges in their own cou rts, all prov inces

need to be attentive to o ther jurisdict ions.

Education in Can ada is dire cted also by a plet hora of rules foun d in

statutes and r egulations that g rant and impose a formida ble collection of

powers and duties to t hose involved with it. Most ofte n, these statutes a nd

regulation s are located in prov incial e ducation acts and their attend ant

regulation s that govern the obligations of sc hools and school boards, the

duties of teachers and pr incipals, t he responsibil ities of the mi nister of

education, the f unding of scho ols, and so on. Fur ther stat utes and regu-

lations dir ecting res ponsibilit ies of educators and applyi ng to others out-

side the realm of education include, but are not l imited to, the Cr iminal

Code, collective barga ining leg islation, hum an right s codes, the You th

Criminal Justice Act, the C hild and Family Services Act, the Cop yright Ac t, and

the Municipal Freedom of Information and P rotection of Privacy Act.

B. THE COURTS

As with educat ion, each province is respon sible for organizing a nd admin-

istering a spects of its own judici al system5 subject to sec tions 91 and 92 of

the Cons titution Act, 1867. Al l Canadian jurisd ictions, wit h the exception

of Nunavut, have t hree levels of cou rt. Nunavut has Canad a’s rst, and

only, single-level court i n which judges may hea r any typ e of case. The

remainder of t he country’s judicial le vels are explained a s follows:

4 Constitution Act, 1982, s 52(1), being Schedule B to the Can ada Act 1982 (UK), 1982, c 11.

5 Information on t he provincia l/territoria l courts for ea ch jurisdic tion may be

found at the fol lowing sites: A lberta (htt ps://alberta courts.ca), Briti sh Columbia

(www.court s.gov.bc.ca), Manitoba (ww w.manitobacour ts.mb.ca), New Bruns-

wick (ww w.gnb.ca/Cour/index-e.asp), Newfou ndland and La brador (www.cour t.

nl.ca), Northwes t Territories (ww w.nwtcourts.ca), Nova S cotia (www.cour ts.

ns.ca), Nunavut (w ww.nunavutcou rts.ca), Ontar io (www.ontarioc ourts.ca),

Prince Edw ard Island (w ww.gov.pe.ca/courts), Québec (ww w.tribunaux.qc.ca/

mjq_en), Sa skatchewan (w ww.sasklawc ourts.ca), and Yukon (w ww.yukoncourt s.

ca). Websites are cur rent as of 27 May 2016.