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SCHOOL REGULATION AND ADMINISTRATION - Finances and funding - Constitutional issues - Canadian Charter of Rights and Freedoms

Friday, June 12, 2020 @ 3:27 PM  

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Appeal by the claimants from a decision of the British Columbia Court of Appeal dismissing their appeal and allowing of the respondent Province’s cross-appeal. The Conseil scolaire francophone de la Colombie-Britannique (CSF) was the sole French-language school board in British Columbia and had responsibility for 37 schools throughout the province. CSF and the other appellant rightholders alleged that their s. 23 Charter rights had been infringed by the Province’s underfunding of French-language education. The trial judge found several infringements of the appellants’ s. 23 Charter rights and approved several but not all school projects claimed. The trial judge found several infringements of the appellants’ language rights were justified under s. 1. She awarded $6 million in damages to CSF for inadequate funding of school transportation. The Court of Appeal held that the Charter did not require the Province to use public funds to finance the school projects claimed by the appellants. In allowing the cross-appeal, it set aside the damages award, finding the trial judge had not applied the government’s immunity from damages awards.

HELD: Appeal allowed in part. The lower courts adopted an inordinately narrow interpretation of s. 23 that did not reflect its remedial purpose related to promoting the development of official language minority communities and changing the status quo. Under s. 23 of the Charter, the application of the rights of official language minorities depended on there being a sufficient number of children. Section 23 had to be understood “as encompassing a ‘sliding scale’ of requirement”. The low end of the scale corresponded to the right only to instruction that was provided for in s. 23(3)(a), while the high end corresponded to the “upper level of management and control” provided for in s. 23(3)(b). Once the minimum threshold of s.23(3)(a) was crossed, the sliding scale applied to determine the level of services that corresponded to the extent to which the minority would have control over the provision of educational services. Applying this approach, the appellants were entitled to eight homogeneous schools that were denied by the courts below. The schools were warranted by the numbers of minority language students in the communities in question. The failure to recognize the right to those eight schools resulted from errors in the assessment of the relevant number that would warrant a school under s. 23 and the basis for comparison used to situate the numbers of minority language students on the sliding scale. The children of rights holders who attended CSF schools were entitled to an educational experience that was substantively equivalent to the experience of the majority, regardless of the size of the school or program in question. Compelling CSF to prioritize its capital projects did not infringe the right of management guaranteed by s. 23 of the Charter. The courts below erred in finding the fair and rational allocation of limited public funds was a pressing and substantial objective to justify infringements of s. 23. Cost savings that resulted from infringements of s. 23 could not serve to justify the infringements. Limited government immunity did not apply in respect of government policies, including the freeze on school transportation funding. The trial judge’s order awarding damages for the inadequate funding of school transportation was restored. The appellants were entitled to a further $1.1 million in damages on the basis that insufficient funding was granted for rural minority language schools.

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, [2020] S.C.J. No. 13, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., June 12, 2020. Digest No. TLD-June82020011-SCC