SCC issues landmark ruling on minority language education rights, Charter justification and damages

Law360 Canada (June 12, 2020, 5:36 PM EDT) -- In a robust and expansive interpretation of the Charter’s s. 23 guarantee of minority language educational rights, the Supreme Court of Canada has mostly allowed the appeal of British Columbia’s sole francophone school board in a milestone judgment that orders the province to pay more than $7 million in Charter damages for failing to properly fund francophone students’ transit and French-language rural schools.

The catalyst for the Supreme Court’s June 12 ruling, which spans 348 paragraphs and 213 pages (including a partial dissent co-written by Justices Russell Brown and Malcolm Rowe) was underfunding of francophone schools in B.C. but counsel say Chief Justice Richard Wagner’s majority judgment will assist minority language communities across the land, along with clarifying and elaborating key elements of the constitutional law of language rights, Charter damages, and s. 1 justification of Charter breaches: Conseil scolaire francophone de la Colombie-Britannique v. British Columbia 2020 SCC 13.

His decision sets out the approach to be taken in order to determine the level of services that is guaranteed to minority language rights-holder parents on the basis of a given number of students; establishes the test to be applied in order to determine whether the educational experience of the children of those rights holders is equivalent to the experience provided to the majority; establishes that infringements of minority language educational rights will rarely be justified under s. 1 (they never yet have been at the Supreme Court); and affirms that damages can be awarded as a remedy in the event of an infringement.

The case attracted 19 interveners, including the attorneys general of seven provinces and territories, the federal official languages commissioner, the Assembly of Manitoba Chiefs, the Association des juristes d’expression française du Nouveau-Brunswick, and multiple language and constitutional advocacy groups.

“This is a crucially important decision for the protection of minority language education in Canada, and for meaningful access to the rights s. 23 protects,” remarked Audrey Boctor of Montreal’s IMK LLP, who with Johanna Mortreux represented the intervener Canadian Association for Progress in Justice.

“The decision reinforces that s. 23 is about improving the status quo, not just maintaining it,” Boctor explained. “It confirms that all minority language students are entitled to a substantively equivalent education [to majority language students], regardless of the size of the school, or program in question. It also goes a long way towards simplifying the requirements, and respective burdens of proof, on rights-holders and governments — a welcome improvement for access to justice.”

Boctor predicted the decision will impact Charter damages claims beyond minority language rights, given the court’s affirmation that governments are not immune for policies that breach the Charter.

Another intervener, François Larocque, the Canadian Francophonie research chair in language rights at the common law faculty of the University of Ottawa, also hailed the court for underscoring that minority language education rights are an essential part of Canada’s constitutional fabric. “It is a good decision for francophones of British Columbia, and also for the official language minority communities of every province,” said Larocque who also was a co-counsel for the successful appellants.

Larocque said Chief Justice Wagner’s judgment emphasizes that even though minority language educational rights “emerged from political compromise, they are substantive rights that create important positive obligations for provincial governments to fund minority language schools and programs that are substantially equal in quality to the majority programs and schools — that it is no longer acceptable for provinces, as in the pre-Charter era, to turn their backs on their official language minority populations.”

In Larocque’s view, the court has affirmed that ss. 16 to 23 of the Charter “represent a New Deal in Canada around official languages, aimed at promoting the linguistic security of both francophone and anglophone minority communities. Courts will hold provinces accountable to the terms and spirit of that deal.”

Larocque said the Supreme Court also clarified some unresolved and important legal questions with respect to the application of s. 23 of the Charter to communities that fall in the middle of the so-called “sliding scale” approach the top court developed in its landmark judgment in Mahé v. Alberta [1990] 1 S.C.R. 342.

In the June 12 judgment, “the court articulated the principles to be applied in those cases, which in turn led to important findings that many of the francophone schools involved [in the B.C. case] were chronically underfunded in comparison to their anglophone counterparts,” Larocque explained. “The decision also confirmed that the s. 1 Oakes test applies to s. 23 of the Charter, but that it is subject to stringent justification standards in light of s. 23’s purpose and built-in restrictions. Of considerable importance is the finding that the fair and rational allocation of public funds cannot be a ‘pressing and substantial’ objective in the sense contemplated in Oakes, thereby disallowing any financial justification for violating s. 23 absent a grave economic crisis,” as in Newfoundland (Treasury Board) v. N.A.P.E. 2004 SCC 66.

Larocque also highlighted as “significant” the top court’s holding that government immunity from Charter (or Ward) damages awards does not apply to decisions made in accordance with government policies that are found to be contrary to s. 23.

Vincent Larochelle of Larochelle Law in Whitehorse, counsel for the intervener Commission nationale des parents francophones, told The Lawyer’s Daily the Supreme Court has: reiterated a broad and generous interpretation of s. 23 that aims to repair and resist the assimilation of linguistic minorities; clarified and expanded the framework for determining when linguistic minorities are entitled to their own “homogenous” schools; placed the perspective of language right-holder parents at the heart of the s. 23 Charter analysis; and firmly entrenched the concept of “substantive equivalence” in the s. 23 analysis.

“The judgment of the Supreme Court of Canada is very favourable to linguistic minorities,” Larochelle opined. “It will most likely encourage such minorities to seek out homogenous schools across the country. However, the judgment also provides a clear framework which should encourage provinces and territories across the country to reach agreements with minority communities,” he suggested. “In particular, the presumption that numbers will warrant a school where a comparable school exists elsewhere in the province or territory is a welcome progress in the jurisprudence which should discourage needless litigation.”

Larochelle pointed out that the Supreme Court explicitly stated its intention to discourage litigation when propounding that presumption favourable to linguistic minorities.

He remarked it is difficult to predict whether the judgment sets the scene for increased Charter damages for s. 23 breaches, or will spark other Charter litigation. “This case will certainly serve as a good precedent for further litigation.”

At the same time, in his view the law set out by the Supreme Court is what it has been since Mahé and Association des parents de l’école Rose‑des‑vents v. British Columbia (Education) 2015 SCC 21.

In 2016 and after “the B.C. courts tried departing from the clear jurisprudence on s. 23, and the Supreme Court of Canada reined them in,” Larochelle commented. “In fact, the Supreme Court of Canada took another step in favour of linguistic minorities.”

He advised that in the wake of the decision, school boards, and minority language communities without school boards, “should give some serious thought to whether their entitlements under s. 23 of the Charter are greater than previously thought. The streamlined process for raising the presumption that the numbers warrant a school should embolden school boards and lead provincial and territorial governments to take the threat of s. 23 litigation more seriously.”

“Hopefully,” he added, “this will increase dialogue and agreement between school boards and governments, rather than increase litigation.”

Chief Justice Wagner’s “clear, concise” judgment will be the starting point for all future s. 23 litigation, he predicted.

“Very little is left unanswered by the court, although like any area of the law, unforeseen circumstances are bound to present themselves before the courts at a later date.”

Roger Lepage of Miller Thomson LLP in Regina, who was co-counsel with Peter Bergbusch and Jonathan Martin for the Fédération nationale des conseils scolaires francophones, called the judgment “a landmark decision regarding the positive obligation of provinces and territories to build schools for their official language minority communities that are equivalent to majority schools, and built in a timely manner.”

“It will have a major impact on francophone students, parents, school boards and especially governments,” Lepage predicted. “Francophone communities, even with currently low enrolments or lack of sufficient schools, can demand that governments immediately implement s. 23 by building schools in their communities, equivalent to anglophone schools,” he said. “Those schools must compare favorably to anglophone schools in the neighbourhood, or elsewhere in the province. The governments can no longer plead they have other economic priorities, since francophone schools have constitutional protection.”

Lepage noted the judgment will affect ongoing litigation in many jurisdictions, including Saskatchewan, where there are four ongoing legal actions for adequate operational funding and the construction of four more schools. “Other school boards across Canada have been pressing their governments for the same,” he remarked. “If negotiations don’t bring about quick results, we can expect to see new legal actions being filed. In some jurisdictions, francophone schools are still relatively new and governments have not kept up with the demand. Some francophone school boards are still at the developmental stage and have to build schools in new communities or new neighbourhoods. It is important that the schools be in close proximity to where young families live.”

Speaking about the legal doctrine set out by the court, Lepage said the judgment marks the Supreme Court’s first clarification of how the justification section of the Charter (s. 1) intersects with s. 23. “The Supreme Court formulated a particularly stringent justification standard since s. 23 imposes a positive obligation on governments; further, s. 23 is protected from the s. 33 notwithstanding clause, and s. 23 has its own internal limit on cost,” he elaborated. “As a result, governments can’t justify a s. 23 violation simply on economic grounds. Also, governments have to consider that lack of schools leads to assimilation. As a result, cost saving linked to a violation of s. 23 is not a relevant factor for balancing salutary and deleterious effects of an infringing measure.”

Lepage said the court concluded that governments can’t claim s. 1 protection for s. 23 violations by saying the fair and rational allocation of limited public funds is a pressing and substantial objective.

“This case is as important as the 1990 Mahé case ... that recognized that s. 23 contained governance rights through francophone school boards,” he opined. “This new decision sets out the roadmap for governments to now truly implement section 23 educational rights.”

University of Toronto law professor Kent Roach, who with Cheryl Milne represented the intervener David Asper Centre for Constitutional Rights, told The Lawyer’s Daily that the majority’s decision not to extend qualified immunities to all Charter violations authorized by government “policies” is an important precedent.

“It may help breathe life into Charter damage actions,” Roach suggested. “The minority in the case would have required Charter applicants to prove fault in addition to a Charter violation (except for s. 23 violations), whenever a government could establish that they had policies that authorized the Charter violation,” he explained. “It would have been a backward step if the court had embraced qualified immunities at the same time that they are being seriously reconsidered in the United States.”

The Lawyer’s Daily could not immediately reach counsel who speak for the successful school board and other appellants, who are represented by Robert Grant, Mark Power, François Larocque, Jennifer Klinck and David P. Taylor.

Craig Sorochan, a B.C. Ministry of Education spokesperson, told The Lawyer’s Daily the respondent B.C. government is studying the lengthy ruling. “We respect [the court’s] direction and guidance on minority language education rights,” he said in a statement.

“Given the complexity of the case, we will need time to carefully review the decision and to determine next steps,” Sorochan noted. “We will continue to work with the francophone community in B.C. to ensure minority language education rights are respected.”

Asked for his reaction to the court’s decision during his daily COVID-19 update in Ottawa June 12, Prime Minister Justin Trudeau welcomed the ruling as “very good news” for minority language communities and for the country. “The communities have been telling us for a long time that the provinces are not adequately funding the services they are owed, and we hope that from now on the provinces will better respect the linguistic communities,” Trudeau said in French.

“As a federal government, we moved forward in many ways to strengthen protections and support minority language communities across this country, but we now hope that the provincial governments will step up further in areas that are their exclusive jurisdictions like education and certain services for minority language communities,” he added in English. “As a federal government, we will always stand ready to support and help minority language communities across this country.”

Alberta Education Minister Adriana LaGrange reacted to the ruling June 12 by stating that her government is carefully reviewing the decision to determine its potential impacts on francophone education in her province.

“Alberta has a robust education system which provides French-language education for francophone Albertans,” LaGrange said in a prepared statement. “Alberta’s four francophone school divisions allow for francophone communities to learn in their first language. Our government values the important contributions francophone Albertans make to our province, and will continue to work closely with the francophone community to strengthen francophone education in the province.”

In his decision, Chief Justice Wagner noted that the appeal concerned the scope of s. 23 and its interplay with s.1 of the Charter, as well as with the remedial provisions of the Constitution.

“The courts below conducted an exhaustive and rigorous analysis of certain of these issues. But I find that they adopted an inordinately narrow interpretation of s. 23 and its role in the Canadian constitutional order,” he said. “Section 23 has a remedial purpose related to promoting the development of official language minority communities and changing the status quo. In my view, in accordance with an interpretation of that section that takes its remedial purpose fully into account, and in light of the trial judge’s findings of fact, the appeal should be allowed in part.”

The appellant Conseil scolaire francophone de la Colombie‑Britannique (CSF) is the sole French‑language school board in B.C., whose territory covers the entire province, and comprises 37 schools. In June 2010, the CSF, the Fédération des parents francophones de Colombie‑Britannique, and three parents who are s. 23 rights-holders sued the provincial government, arguing that several aspects of the province’s educational funding penalized the official language minority, and infringed s. 23 rights.

The claimed infringements were in two categories: systemic claims, (including: the CSF had not received an annual grant for building maintenance; the formula used to set priorities for capital projects; a lack of funding for school transportation; and a lack of space for cultural activities). The second category of claims alleged inadequate funding for the purpose of obtaining new schools, or making improvements to existing schools in 17 communities.

In 2016, the trial judge issued declarations concerning the right to educational facilities in several communities. She concluded with respect to several communities that the children of rights holders are entitled to facilities that provide them with an educational experience that is substantively equivalent to the experience of the majority. But she found with respect to other communities that the numbers of children of rights holders warranted not a substantively equivalent educational experience, but one that is proportionately equivalent to the educational experience provided to the majority. She also concluded that several infringements of the rights holders’ language rights were justified as reasonable and demonstrably justified in a free and democratic society, under s. 1 of the Charter. She held that awarding Charter damages would not be appropriate for most of the claims of the linguistic minority representatives, but she found that the freeze on funding for school transportation at a time when the number of students of the linguistic minority was rising did injustifiably violate s. 23. She thus awarded $6-million in damages to the CSF. She declined to award damages to the CSF in compensation for its funding not including the “annual facilities grant rural factor”.

In 2018 the B.C. Court of Appeal dismissed the appellants’ appeal, allowed the government’s cross-appeal, and set aside the Charter damages award for the government’s inadequate funding of school transportation.

The Supreme Court’s 7-2 decision restored the $6-million damages award for transit, as well as ordering the government to pay $1.1 million to reflect the damage that the CSF sustained by being unjustifiably denied the benefit of the annual facilities grant rural factor.

Chief Justice Wagner held that the courts below erred in ruling that the fair and rational allocation of limited public funds is a pressing and substantial objective that can justify infringements of s.23 under the Oakes test for s. 1 of the Charter. “The fair and rational allocation of limited public funds represents the daily business of government,” the chief justice explained. “The mission of a government is to manage a limited budget in order to address needs that are, for their part, unlimited. There is accordingly no pressing and substantial objective here that can justify an infringement of rights and freedoms in this case. The justification for the infringements therefore fails at the first stage of the analysis. Without a valid objective, the province cannot justify the infringements of s.23.”

Photo of Chief Justice Richard Wagner by Supreme Court of Canada Collection

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