Case: Northwest Territories (Attorney General) v Association des parents ayants droit de Yellowknife, 2015 NWTCA 2

Keywords: French language education rights, Charter, s. 23

Synopsis: The plaintiffs in the trial below consisted of an association of parents asserting s. 23 Charter rights, two rights-holder parents, a French daycare association, and a federation of several Francophone associations in NWT. The defendants were the Attorney General of the NWT and Commissioner of the NWT. The plaintiffs alleged that minority language schools in the territory were not meeting the minimum constitutional standards due to lack of facilities. The trial judge agreed and ordered the government to expand the facilities available to francophone students.

The panel of the Court of Appeal for the Northwest Territories (also justices of the Court of Appeal of Alberta) were split in their decision on s. 23. The majority reasons were written by Justice Slatter with Justice Watson concurring. It allowed the appeal and scaled back the facility expansions ordered by the trial judge. The government it said is only required to provide a gym and special education classroom at one of two schools that were the focus of the case. The majority found that the trial judge erred with respect to determining whether the “numbers” warranted an expansion of services or facilities — she overestimated the target capacity needed for students who could access minority language education. Justice Rowbotham, in dissent, disagreed with respect to overturning the trial judge’s s. 23 findings.

Importance: This is the latest decision in the battle over French language education rights in anglophone provinces. With the aide of a strong dissent focusing on a legal test, the respondents will undoubtedly consider an appeal to the Supreme Court of Canada. The SCC has been recently active in this area having heard on January 21, 2015 the appeal Yukon Francophone School Board, Education Area #23 v. Attorney General of the Yukon Territory SCC No. 35823 (Charter s. 23) and having released in 2013 its decision Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42 (language of exhibits). Further, it has now been over 11 years since the SCC released its 5:4 split decision Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 regarding remedies available for realization of minority language education rights.

Section 23 of the Charter provides that the protected minority language education rights only “apply wherever” the “numbers warrant”. Who is to be included in this analysis and the proper test for calculating the numbers remains unclear. The test, previously described as a “sliding scale” approach (see Dickson C.J. in Mahe v. Alberta, [1990] 1 SCR 342), results in a very factually dependent analysis. The majority below spends considerable time reviewing the various standard of reviews and goes to some lengths to justify its decision to overcome the deference owed to the trial judge’s findings. While standard of review grounds of appeal have not been favourably received by the SCC since being exhausted by Dunsmuir (whatever that now means) a case such as this may provide the proper constellation of legal problems to warrant a review.

There will undoubtedly be future language education rights litigation and this decision will serve a guide to those parties seeking to establish they have the critical mass of individuals to justify a higher level of services. It will also be relied upon by governments seeking to justify a lower level of services provided to minority language students. The Court’s consideration of standard of review, discussion of remedies, and cost awards (when solicitor-client costs are justified in a constitutional case) make for a worthwhile read.

Counsel for Appellants: Max Faille, François Baril and Guy Régimbald (Gowlings, Ottawa)

Counsel for Respondent: Roger Lepage and Francis Poulin (Miller Thomson, Regina)

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