The Association des parents de l’école Rose-des-vents (the “Association”) succeeded on its appeal from the judgment of the British Columbia Court of Appeal which had set aside the chambers judge’s order striking certain paragraphs of pleadings filed by the Minister of Education and the Attorney General for British Columbia. In addition, they were successful in restoring the declaration that educational services made available to the students at Rose-des-vents (“RDV”) were not equivalent to the facilities available to majority language students in the same area.

23. June 2015 0

Administrative law – Schools and school boards – Funding – Facilities – Parental rights – Discrimination – Charter of Rights and Freedoms – Equality rights – Minority rights – Language rights – Remedies – Declaratory relief

Association des parents de l’école Rose-des-vents v. British Columbia (Education), [2015] S.C.J. No. 21, 2015 SCC 21, Supreme Court of Canada, April 24, 2015, McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.

RDV was the only publicly funded French language elementary school for children living west of Main Street in Vancouver. The school had become overcrowded due to growing enrolment, and the physical facilities had become inadequate. Only three of the classrooms in the school met the recommended size for classrooms. Washroom and window facilities were inadequate and there was no available flexible space within the school. Over two-thirds of students attending the school by bus had a bus ride of more than 30 minutes each way. English language schools in the same catchment area were larger with larger classrooms, better playing fields, and larger libraries. In addition, most students attending the majority English language schools in the same geographic area live within one kilometre of their schools, and so did not require long bus trips. In 2010, the Association sought a declaration that the educational services available to the children at RDV were not equivalent to those of English language schools in the same area. They sought a declaration that their minority language education rights under charter s. 23 had been breached. However, they sought that the legal proceedings be phased so that declaratory relief could be obtained first, leaving open the question of responsibility for any inadequacies or lack of equivalence.

Mr. Justice Willcock accepted the request the phase the proceedings and struck parts of the province of British Columbia’s pleadings on the grounds that they were not relevant to the phase about declaratory relief. A declaration was issued that parents were not being provided minority language educational facilities that should be guaranteed by s. 23 of the Charter, but responsibility for the failure to meet the constitutional standard was not assigned.

The Court of Appeal allowed an appeal brought by the province and set aside the order striking some of the province’s pleadings and the declaration regarding Charter s. 23.

The Supreme Court of Canada, in a judgment delivered by Karakatsanis J. noted that Charter s. 23 guarantees minority language rights holders the right to have their children receive primary and secondary school education in English or French. Where the number of children of minority rights holders warrants the highest level of services envisioned by s. 23, instruction and educational facilities must be equivalent in quality to that provided in the official language majority of the given province. The requirement is one of substantive equality, and this appeal provided guidance on how to measure the equivalence between minority and majority educational language rights. Section 23 is considered a remedial right under the Charter. It imposes a constitutional duty on provinces and territories to provide minority language education where the numbers of children warrant it. The intention of s. 23 is to preserve language and culture. One difficulty with s. 23 is that delay in implementing an entitlement under s. 23 can result in minority language students becoming assimilated, and can therefore undermine access to their right. It is therefore necessary for s. 23 rights to be implemented vigilantly and for compliance to be timely in terms of remedying violations.

Section 23 guarantees a “sliding scale” of minority language education rights. At the upper limit of this sliding scale numbers warrant the provision of the highest level of services to the minority language community. Where the numbers warrant, full educational facilities must be equivalent to and distinct from those found in the schools of the majority language group in the same area. The facilities must also be accessible and located within the community where the children reside. The upper threshold may incorporate the need for separate minority language school boards. Once there is a determination that the number of children mandates this highest level of services, there is a requirement that the quality of service be substantively equivalent to what is offered to the majority language students. There must be an ability for minority language parents to have some measure of management and control over the educational facilities where their children are being taught. The education provided need not be identical. The test for equivalence must focus on substantive equivalence rather than per capita costs or formal equivalence markers. In this case, although there were higher per capita costs for the French language school board (at a 15% premium compared to other school boards in the province), higher per capita costs for a minority language school board were not unexpected. The purposes approach to assessing equivalence requires the court to consider educational choices available from the perspective of s. 23 rights holders. The question is whether a reasonable rights holder parent would be deterred from sending their children to a minority language school because it is “meaningly inferior to an available majority language school?” (para. 35) The geographic scope should be local, and therefore the comparator group that will generally be appropriate for assessing substantive equivalence is the neighbouring majority language schools that represent a “realistic alternative for rights holders”.

Both the quality of instruction and the facilities are important elements in comparing and assessing equivalence. The comparative exercise must be contextual and holistic, including consideration of physical facilities, quality of instruction, educational outcomes, extracurricular activities, and travel time, among other factors.

The quality of teachers, the curriculum, and cultural opportunities offered by a minority language school are all relevant to the consideration. If, on balance, the experience is equivalent, in the substantive sense, then the requirements of s. 23 are met.

The test that the province had proposed was unnecessarily complex and rigid. The Supreme Court of Canada urged separation of the equivalent analysis from the question of responsibility for a lack of equivalence. Costs and practicalities are relevant to the determination of the level of services a group of rights holders is entitled to on the sliding scale. However, costs and practicalities would already have been considered in the “numbers warrant” analysis and it should therefore not be considered again after the appropriate level of educational services had already been determined. Thus, costs will be subsumed within pedagogical needs in determining what level of services the numbers warrant. While funds allocated to minority language schools should be at least the same per capita as those allocated to majority language schools, pedagogical needs would prevent the imposition of unrealistic financial demands upon the province (a school would not be established for only ten students within an urban centre).

Costs and practicalities would therefore be irrelevant when considering the minimum requirements for educational equivalence, and the question should be whether upper threshold rights holder groups are receiving equivalence of educational services guaranteed by s. 23.

Costs and practicalities may become relevant in a s. 1 Charter analysis where a responsible party seeks to justify a violation of s. 23. Further, in arguments about a s. 24(1) remedy where the court is seeking to fashion a “appropriate and just” remedy in the circumstances, costs and practicalities may again be relevant. Although the issue was not considered on this appeal, the court noted that there is “a perpetual tension in balancing competing priorities; between the availability of financial resources, and the demands of the public purse”.

The court held that the factual findings demonstrated striking inadequacies at RDV. At least 710 students lived within the catchment area, and there should have been elementary school facilities capable of accommodating about 500 students, given the francophone population and the relevant area. The chambers judge understood that facilities and academic programming were both relevant. While the parents were satisfied with the quality of instruction received by their children, the facilities afforded to students at RDV were inadequate, and long travel times were a disincentive to enrolment. The programming offered at RDV was not so superior as to offset its inadequate facilities, overcrowding, and long travel times.

The chambers judge’s declaration was a prima facie declaration of a breach of s. 23. Unless the absence of equivalence could be justified under s. 1, there had been a violation of the claimant’s charter rights. Responsibility for the breach had not yet been assigned, so it could not be said that a declaration was a complete finding of a Charter violation.

The issues of determining responsibility, justifying the breach (if applicable), and a positive remedy had been left outstanding.

The order striking the pleadings was also reinstated, while the Court noted that the province’s struck pleadings may be relevant to subsequent phases of the litigation, the decision to strike the pleadings was appropriate, given the phasing of the questions before the Court.

The appeal was allowed and the petition judge’s declaration reinstated.

The chambers judge’s award of special costs to the parents based on the fact that they, and the francophone school board were successful public interest litigants, was also restored on the appeal.

The chambers judge had shown he was alive to the exceptional nature of an award of special costs in the public interest context. His reasons noted that the questions were of public importance and involved constitutional principles and the sufficiency of measures taken to protect minority language culture. Although the chambers judge did not have the benefit of the Supreme Court of Canada in Carter, his decision met with the requirements therein.

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