The appeal by the Yellowknife Public Denominational District Education Authority (the “Board”) was dismissed where the court found that there was no statutory authority in the Northwest Territories, express or implied, requiring that a candidate for trustee of a Catholic public denominational school board be Catholic

Administrative law – Decisions of administrative tribunals – School boards – Composition – Compliance with legislation – Human rights complaints – Religion – Legislation – Constitutional issues

Yellowknife Public Denominational District Education Authority v. Euchner, [2008] N.W.T.J. No. 95, Northwest Territories Court of Appeal, December 12, 2008, C.A. Fraser C.J.N.W.T., C.M. Conrad and C. O’Brien JJ.A.

The Board was a separate school board created in 1951 pursuant to a petition by the Catholic minority of the education district. Under the Education Act, S.N.W.T. 1995 c. 28, separate schools in the N.W.T. are referred to as public denominational schools. The Board operates four schools in the city of Yellowknife and provides schooling to approximately 40% of the city’s student population. A number of its students are not Catholic. Prior to the close of nominations for an election of Board members, the Board sought a ruling from Euchner, in her capacity as Returning Officer, disqualifying two candidates on the ground they were not of the Catholic faith. The Returning Officer declined to disqualify the candidates and instead accepted their nomination papers on the basis that the governing legislation did not require a candidate for the Board to be Catholic. The Board sought judicial review of the Returning Officer’s decision. The Attorney General of the N.W.T., acting on behalf of the Returning Officer, then filed a constitutional notice under the Judicature Act, R.S.N.W.T. 1988, c. J-1 giving notice of her intention to challenge the constitutional validity of section 16(n) of the Northwest Territories Act, R.S.C. 1985, c. N-27 on the ground that it contravened ss. 2(a), 2(b) and 15 of the Canadian Charter of Rights and Freedoms. This provision entitled minority ratepayers in an education district, whether Protestant or Catholic, to establish separate schools therein.

The chambers judge dismissed the application for judicial review and upheld the Returning Officer’s decision that non-Catholics are eligible for election to the Board (reported at 2007 N.W.T.S.C. 15). Following a careful and detailed review of historical and current legislation, the chambers judge concluded that denominational school rights in the N.W.T. are not constitutionally entrenched but rather statutory only. Such rights are therefore subject to amendment from time to time as the N.W.T. Legislature sees fit. The chambers judge also found that the relevant legislation permits non-Catholics to vote and to stand for election for the Board and that this was an intentional decision by the N.W.T. Legislature. The Board appealed this decision.

The appeal was dismissed. The Court of Appeal held that the Board’s claim that denominational school rights were constitutionally entrenched in the N.W.T. could not succeed. The court agreed with the chamber’s judge that the legislation, both Federal and Territorial, dealing with denominational school rights was simply ordinary legislation and the rights contained therein were ordinary educational rights, not constitutionally entrenched ones. As such, it followed that this legislation was subject to change through ordinary legislative measures. The principle applied to the N.W.T. Act and related legislation, including the Education Act and the Local Authorities Elections Act. The court held there was no statutory authority in the N.W.T., express or implied, that a candidate for trustee of Catholic Public Denomination School Board be Catholic.

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