Yellowknife Public Education v. Euchner, (2008) 425 A.R. 254 (NWTCA)

JudgeMcFadyen, O'Brien and Watson, JJ.A.
CourtCourt of Appeal (Northwest Territories)
Case DateJanuary 22, 2008
JurisdictionNorthwest Territories
Citations(2008), 425 A.R. 254 (NWTCA)

Yellowknife Public Education v. Euchner (2008), 425 A.R. 254 (NWTCA);

      418 W.A.C. 254

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.173

In The Matter Of the Local Authorities Elections Act, R.S.N.W.T. 1988, c. L-10, the Education Act, S.N.W.T. 1995, c. 28 and the Northwest Territories Act, R.S.C. 1985, c. N-27, s. 16(n)

In The Matter Of a Decision of Debbie Euchner, the returning officer for the Yellowknife Public Denominational Education Authority, that Amy Hacala and Deborah Simpson, persons not of the Catholic faith nominated as candidates for election to the Board of Trustees of the Yellowknife Public Denominational Education Authority at an Election to Be Held on October 16, 2006.

Yellowknife Public Denominational District Education Authority and Kern Von Hagen (appellants) v. Debbie Euchner, in her capacity under the Local Authorities Elections Act, R.S.N.W.T. 1988, c. L-10 as Returning Officer of Yellowknife Denominational District Education Authority (respondent)

(A-1-AP-2007000017; 2008 NWTCA 1)

Indexed As: Yellowknife Public Denominational District Education Authority et al. v. Euchner

Northwest Territories Court of Appeal

McFadyen, O'Brien and Watson, JJ.A.

February 1, 2008.

Summary:

The applicants applied for judicial review of a decision of a returning officer who supervised the election of trustees to a Yellowknife school board, and, in particular, the returning officer's decision on the eligibility of two candidates to stand for election. In addition to the proper interpretation of certain provisions of the Education Act and the Local Authorities Elections Act, the application raised larger issues, e.g., whether the rights of minority Catholic and Protestant ratepayers to establish separate schools were constitutionally entrenched in the Northwest Territories, and whether s. 16(n) of the Northwest Territories Act was invalid federal legislation contrary to the Canadian Bill of Rights and the Charter of Rights and Freedoms.

The Northwest Territories Supreme Court, in a decision reported at [2007] Northwest Terr. Cases 15, dismissed the application. The court held that constitutional protection applied unevenly in Canada and that statutory rights to denominational education in the Northwest Territories had not been made permanent, or constitutionally enshrined, by any constitutional document because the Northwest Territories Act did not form a part of the Constitution of Canada. Although there was no constitutional right to denominational education, the court held that there was a statutory right pursuant to the Education Act, for minority Catholic or Protestant taxpayers to petition the government to establish a separate school system in their municipality. The court refused to read into the legislation a requirement that trustees in a Catholic school board be of Roman Catholic faith. Rather, it held that the legislation only required that the trustee be a "supporter" of the separate school system. The court further held that the absence of any such requirement in the legislation was by design and not mere omission. The applicants appealed. The Alberta Catholic School Trustees' Association (Alberta applicant), Saskatchewan Catholic School Boards Association Inc. (Saskatchewan applicant), Canadian Catholic School Trustees' Association (Canadian applicant) and Ontario Catholic School Trustees' Association (Ontario applicant), each sought leave to intervene on the appeal.

The Northwest Territories Court of Appeal dismissed the Canadian and Ontario applicants' application. Leave was granted to the Alberta and Saskatchewan applicants to intervene on the following terms: "1. Each Intervener may make a written submission, not exceeding 20 pages, dealing only with the constitutional and Charter issues raised by the appellants in the appeal, as set out in para. 11 above, which written submissions will be filed and served upon the respondent not later than the end of Friday, February 29, 2008. 2. If the respondent desires, the Attorney General may file and serve on her behalf a written reply to the submissions of the Interveners, such reply not to exceed 20 pages and to be filed and served not later than the end of Friday, March 28, 2008. 3. The panel hearing the appeal will determine whether or not it will grant oral argument by the Interveners, and if so, any time limits for the oral arguments so allowed. 4. The Interveners will bear their own costs of their applications and interventions."

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - The Alberta Catholic School Trustees' Association (Alberta applicant), Saskatchewan Catholic School Boards Association Inc. (Saskatchewan applicant), Canadian Catholic School Trustees' Association (Canadian applicant) and Ontario Catholic School Trustees' Association (Ontario applicant), each sought leave to intervene in an appeal where the issues raised include whether the rights of minority Catholic ratepayers to establish separate schools were constitutionally entrenched in the Northwest Territories, and whether s. 16(n) of the Northwest Territories Act, which provided for the establishment of schools, was invalid federal legislation contrary to the Canadian Bill of Rights and the Charter of Rights and Freedoms - The Northwest Territories Court of Appeal granted leave to the Alberta and Saskatchewan applicants to intervene - They shared with the appellants a common legislative history, to the extent that their addition to Canada arose from the Rupert's Land and North-Western Territory Order of 1870 - In addition, they possessed experience and would bring a fresh perspective - Their submissions would be limited to addressing only the constitutional and Charter issues raised in the appeal, without repetition of the submissions already made by the appellants - See paragraph 11.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - The Alberta Catholic School Trustees' Association (Alberta applicant), Saskatchewan Catholic School Boards Association Inc. (Saskatchewan applicant), Canadian Catholic School Trustees' Association (Canadian applicant) and Ontario Catholic School Trustees' Association (Ontario applicant), each sought leave to intervene in an appeal where the issues raised include whether the rights of minority Catholic ratepayers to establish separate schools were constitutionally entrenched in the Northwest Territories, and whether s. 16(n) of the Northwest Territories Act, which provided for the establishment of schools, was invalid federal legislation contrary to the Canadian Bill of Rights and the Charter of Rights and Freedoms - The Northwest Territories Court of Appeal denied leave to the Canadian and Ontario applicants to intervene - While they shared in the sincere and intense interest in the future of Catholic education, these applicants would not be able to bring forward arguments that would not otherwise be made or perspectives that would not otherwise be advanced - Additional interventions by them would serve to lengthen the appeal without compensating benefit to the parties and the court, and simply result in multiple submissions on the same points as foreseen by the respondent - See paragraph 12.

Practice - Topic 684

Parties - Adding or substituting parties - Intervenors - Where constitutional issue raised - [See both Practice - Topic 682 ].

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - [See both Practice - Topic 682 ].

Cases Noticed:

R. v. Morgentaler, [1993] 1 S.C.R. 462; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 4].

Lameman et al. v. Canada (Attorney General) (2005), 380 A.R. 301; 363 W.A.C. 301; 2005 ABCA 320, refd to. [para. 6].

Papaschase Indian Band (Descendants of) v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

Counsel:

Kevin P. Feehan, Q.C., for the appellants, Alberta Catholic School Trustees' Association and Canadian Catholic School Trustees' Association;

Martin Goldney, for the respondent;

Collin Hirschfeld, for Saskatchewan Catholic School Boards Association Inc.;

Peter Lauwers, for Ontario Catholic School Trustees' Association.

This application was heard at Yellowknife, N.W.T., on January 22, 2008, by McFadyen, O'Brien and Watson, JJ.A., of the Northwest Territories Court of Appeal. The following memorandum of judgment was delivered by the Court of Appeal on February 1, 2008.

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