Décision de la Cour d'appel de la C.-B. dans la cause opposant la province et les parents de...

7/29/2019 Dcision de la Cour d'appel de la C.-B. dans la cause opposant la province et les parents de l'cole Rose-des-Vents.

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COURT OF APPEAL FOR BRITISH COLUMBIA

Citation: LAssociation des parents de lcole Rose-des-vents v. British Columbia (Minister of

Education),2013 BCCA 407Date: 20130920

Docket: CA040429Between:

LAssociation des parents de lcole Rose-des-vents and Joseph Pagin his name and in the name of all citizens of Canada residing west ofMain Street in the City of Vancouver whose first language learned andstill understood is French, or who have received their primary schoolinstruction in Canada in French, or of who any child has received or is

receiving primary or secondary school instruction in French in Canada

Respondents(Respondents)

And

The Ministry of Education of British Columbia andThe Attorney General of British Columbia

Appellants

(Respondents)

And

Conseil Scolaire Francophone de la Columbia-Britannique

Respondent(Respondent)

Before: The Honourable Madam Justice SaundersThe Honourable Madam Justice Bennett

The Honourable Mr. Justice Hinkson

On appeal from: Supreme Court of British Columbia, October 31, 2012(LAssociation des parents de lcole Rose-des-vents v. Conseil scolaire

francophone de la Colombie-Britannique, 2012 BCSC 1614,Vancouver Docket S103455)


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Counsel for the Appellant: Leonard T. Doust, Q.C., W. Wilman, K.Wolfe

Counsel for the Respondent,Conseil scolaire francophone:

R. Grant, Q.C., M. Power,B. Elwood

Counsel for the Respondent,LAssociation and Joseph Pag

N.M. Rouleau

Place and Date of Hearing: Vancouver, British ColumbiaJuly 18 and 19, 2013

Place and Date of Judgment: Vancouver, British ColumbiaSeptember 20, 2013

Written Reasons by:The Honourable Mr. Justice Hinkson

Concurred in by:The Honourable Madam Justice SaundersThe Honourable Madam Justice Bennett


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Summary:

An appeal from the orders of a Supreme Court judge (the judge), in casemanagement and sitting in Chambers, dealing with minority languageeducation rights provided for in s. 23 of the Canadian Charter of Rights andFreedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11.

LAssociation des Parents petitioned for a declaration that the petitioners s.23 rights had been breached. In case management, the judge struck certain

paragraphs of the Provinces response for irrelevance and further ordered thatthe petition would be heard in three parts, addressing three issues: whetherthere is equivalency in facilities and transportation for English and Frenchlanguage students in the relevant catchment area; whether any inequalityamounts to a charter breach; and if so, what remedy should be afforded to the

petitioners. In his reasons for judgment on the first issue the judge held thatthe petitioners s. 23 rights had been breached.

The issues on appeal are the legal test to strike pleadings and the proceduralfairness of the judges decision in the first phase of the petition.

Held: order that the order striking paragrahs of the Provinces response be setaside, and order that the declaration of the judge that the petitioners s. 23rights had been breached be set aside and the petition be remitted to the

Supreme Court.

The test for striking pleadings is stringent and a claim may only be struck if itis plain and obvious that it discloses no reasonable cause of action. The

paragraphs struck from the Provinces response may have some relevance.The judges disposition on the first phase of the petition unfairly prejudiced theProvince because the plain meaning of the case management phasing orderwas that the breach of s. 23 rights was to be the subject of the second phase,and the Province was precluded from obtaining evidence to support itsdefence.

Reasons for Judgment of the Honourable Mr. Justice Hinkson:

[1] This appeal arises from the orders of a Supreme Court judge, in casemanagement and sitting in Chambers, dealing with claims asserting minority


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language education rights provided for in s. 23 of the Canadian Charter of

Rights and Freedoms. That section states:

(1) Citizens of Canada

(a) whose first language learned and still understood is that of theEnglish or French linguistic minority population of the province inwhich they reside, or

(b) who have received their primary school instruction in Canadain English or French and reside in a province where the languagein which they received that instruction is the language of theEnglish or French linguistic minority population of the province,

have the right to have their children receive primary and secondary schoolinstruction in that language in that province.

(2) Citizens of Canada of whom any child has received or is receiving primary orsecondary school instruction in English or French in Canada, have the right to

have all their children receive primary and secondary school instruction in thesame language.

(3) The right of citizens of Canada under subsections (1) and (2) to have theirchildren receive primary and secondary school instruction in the language of theEnglish or French linguistic minority population of a province

(a) applies wherever in the province the number of children ofcitizens who have such a right is sufficient to warrant the provisionto them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, theright to have them receive that instruction in minority language

educational facilities provided out of public funds.

Background

[2] Lcole lmentaire Rose-des-vents is the only Francophoneelementary school for students living west of Main Street in Vancouver. It was

established in 2001. Lcole secondaire Jules Verne is a Francophone

secondary school that shares its site, and some of its building facilities with

l'cole lmentaire Rose-des-vents. Lcole secondaire Jules Verne wasconstructed from March 2007 to December 2008. When l'cole secondaire

Jules Verne was planned, it was anticipated that l'cole Rose-des-vents would

move to another site on completion of l'cole secondaire Jules Verne.


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[3] On May 14, 2010, LAssociation des parents de l'cole Rose-des-ventsand Mr. Pag, in his name and as a representative of parents of children

enrolled at l'cole lmentaire Rose-des-vents, (collectively, the Parents),

filed a petition naming as respondents the Ministry of Education, the Provinceof British Columbia (collectively the Province), and the Conseil Scolaire

Francophone de la Columbie-Britannique. The petition sought a declaration

that the petitioners minority language education rights under s. 23 of

the Charterhad been breached and an order pursuant to the provisions of

the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 (JRPA) setting

aside certain funding decisions made by the Minister of Education.

[4] The Conseil Scolaire Francophone de la Columbie-Britannique is theFrancophone education authority established under the School Act, R.S.B.C.

1996, c. 412. It offers homogenous French language primary and secondary

instruction throughout British Columbia.

[5] La Fdration des Parents is a non-profit organization representing 28parent associations from the Conseil's schools and 13 parent associations

from French language pre-schools.[6] On June 3, 2010, the Conseil Scolaire Francophone de la Columbie-Britannique, La Fdration des Parents, and 33 individual parents (collectively

the CSF) brought an action against the Province, alleging province-wide

breaches of s. 23 of the Charterand raising systemic challenges to the

funding system of the Ministry of Education. The two proceedings ovelapped

in terms of some common claims, the parties, and their relationships.

[7] The CSF agrees with the Parents that the facilities available to rights-holders in the Rose-des-vents catchment area are inadequate, but blames the

inadequacies on what it asserts is insufficient funding of Francophone

education by the Ministry of Education.


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[8] The Province denies that the facilities at Rose-des-vents are deficient,but pleads that if they are, the CSF, as the agency charged with exercising

management and control of the Francophone education system on behalf of

Francophone minority education rights-holders, has determined what facilitiesare to be afforded to the Francophone minority and is responsible for any

inadequacies in the facilities in Vancouver.

[9] The Province applied for orders to convert the Parents Petition to anaction and to consolidate that proceeding with the action brought against it by

the CSF. The Parents opposed the conversion and consolidation, preferring to

advance their cause without bearing the burden of establishing responsibility

for the alleged inadequacies.

[10] Although he made orders in many capacities, I will refer to the SupremeCourt judge throughout these reasons simply as the judge for ease of

reference. On January 26, 2011, the Provinces application was dismissed by

the judge. His reasons for the dismissal of the Provinces application are

indexed at 2011 BCSC 89. At paras. 44 and 74 of those reasons, the judge

acknowledged the need for an appropriate factual basis upon which to

consider claims forCharterbreaches:

[44] The Supreme Court of Canada again addressed the factual backgroundrequired in constitutional cases in Danson v. Ontario (Attorney General), [1990] 2S.C.R. 1086. In that case, Sopinka J., for the Court, noted at pp. 1099-1101 thatthe Court had been vigilant to ensure that a proper factual foundation existsbefore measuring legislation against the provisions of the Charter, particularlywhere the effects of impugned legislation are the subject of the attack:

It is necessary to draw a distinction at the outset between twocategories of facts in constitutional litigation: adjudicative factsand legislative facts. These terms derive from Davis,

Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353.(See also Morgan, Proof of Facts in Charter Litigation, in Sharpe,ed., Charter Litigation (1987).) Adjudicative facts are those thatconcern the immediate parties: in Davis's words, who did what,where, when, how and with what motive or intent .... Such factsare specific, and must be proved by admissible evidence.Legislative facts are those that establish the purpose andbackground of legislation, including its social, economic andcultural context. Such facts are of a more general nature, and are


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attack the impugned rules on the basis of their alleged effectsupon the legal profession in Ontario. It would be, in my view,difficult if not impossible for a motions judge to assess the meritsof the appellant's application under Rule 14.05(3)(h) withoutevidence of those effects, by way of adjudicative facts (i.e., actualinstances of the use or threatened use of the impugned rules) and

legislative facts (i.e., the purpose, history and perceptions amongthe profession of the impugned rules).

[74] The Supreme Court of Canada has cautioned that Charterdecisionsshould not and must not be made in a factual vacuum; to attempt to do so wouldtrivialize theCharterand inevitably result in ill-considered opinions.

[11] The judge dismissed the Provinces application for two reasons. First,he accepted that the Parents had properly commenced their claims for

declaratory relief by way of petition, pursuant to the JRPA. At para. 26, hecorrectly observed that the provisions of the JRPA evince a clear legislative

intent to resolve issues with respect to the propriety of the exercise of

statutory powers in a summary manner, if possible. Second, he concluded

that moving the case to the trial list would significantly delay the hearing of the

case and put the ParentsCharterrights in jeopardy.

[12] At paras. 8384 of these reasons, the judge found:[83] It is in relation to the relief sought that I have the greatest concern that theevidentiary record may be insufficient. The record before the court may,ultimately, be insufficient to permit the court to fashion an appropriate remedy ifthere has been a breach of the Parents' Charterrights. Both in relation to theallegation that theirCharterrights have been infringed and in relation tothe Charterremedies sought it may be necessary for the Court to receivesubstantial evidence beyond that in the affidavits filed.

[84] In my view, however, evidentiary hurdles should not compel the court tomove the case to the trial list where doing so will significantly delay the hearing ofthe case and put the Charterright in jeopardy. The hurdles are notinsurmountable in relation to the remedy sought. In Chartercases there is someflexibility in fashioning a remedy if there has been a breach

[13] On October 11, 2011, the Parents were granted leave to amend theirpetition to remove any reference to or reliance upon the JRPA.


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[14] On November 4, 2011 (2011 BCSC 1495) at para. 70, the judgeordered that certain paragraphs of the Provinces amended response to the

Parents Petition be struck:

Having assessed the pleadings on this standard I am of the view that the onlyparagraphs that should be struck are:

(a) Paragraph 58: the plea that there are many school facilitiesthat could benefit from upgrading or renovation. This plea isirrelevant to whether the rights-holders are receiving instructionand facilities equivalent to those received by similarly situatedmajority language students;

(b) Paragraph 76 and 77: the plea that assimilation has causesother than inadequate schools, and the plea that most students atRoses des Vents are children of exogamous (mixed language)couples. These pleas lack apparent relevance;

(c) Paragraph 79: the plea that resources have been expended onseismic upgrades. The fact these expenditures have been madeneither advances the claim, nor the Province's defence; and

(d) Paragraph 92: the plea that there are multiple causes for thewithdrawal of students from Roses des Vents. The fact thatstudents leave this school and others for a multitude of reasonsdoes not give rise to a defence. Examining the causes ofwithdrawals from enrolment unrelated to poor facilities andtransportation is an exercise wholly apart from the issues properlybefore the court on the petition.

[15] He also ordered at paras. 7273 that:[72] Bearing in mind the warning inDoucet-Boudreau that the courtsshould promptly address allegations of the breach of s. 23 Charterrights, Iconclude that I should exercise my discretion to order that the petitioners' claimthat their facilities and transportation are inadequate to protecttheirCharterrights, should be heard before considering responsibility orremedies for such breach as may be found to exist. Accordingly, I order that onthe hearing of the petition the Court will first address only the issue of whetherthe existing facilities and transportation afforded to the children of rights holdersin the Roses des Vents catchment area are sufficient to protect the rightsguaranteed to their parents under s. 23 of the Charter.

[73] Until further Order of the Court, to the extent that discovery of documentsis not complete in this proceeding, further discovery will be limited to what isnecessary to address that issue. Affidavits in response and reply will addressonly that issue, and examination of deponents will be limited to questions goingto the adequacy of Roses des Vents facilities and transportation afforded to itsstudents relative to what the parties consider to be appropriate comparators.

[Emphasis added.]


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[16] In addition, in these reasons, the judge found that the petitioner, JosephPag, has an interest in the rights claimed, that his interest is shared with all

rights holders, and that he is an appropriate representative of all persons

living west of Main Street in Vancouver who are entitled to asserts. 23 Charterrights. The judge ordered that that the Petition be amended to

describe the class as: all Citizens of Canada residing west of Main Street in

the City of Vancouver whose first language learned and still understood is

French, or who have received their primary school instruction in Canada in

French. He also ordered that the Petition be set for hearing for five weeks

commencing on February 27, 2012 or five weeks commencing on May 28,

2012.

[17] On November 16, 2011, the Province applied for a second time to havethe amended Petition referred to the trial list and have its hearing proceed

together with the CSF action, in part due to the abandonment of the Parents

claims pursuant to the JRPA. On January 12, 2012, that application was

dismissed by the judge.

[18]

The parties were disagreed on the effect of the order of November 4,2011, and so appeared before the judge on March 14, 2012 to clarify the

effect of that order. In unreported reasons of that date, the judge explained at

para. 7 that:

There are, as I mentioned in the course of submissions, three distinct issues fordetermination in the proceeding begun by petition. The first is whether there isequivalency, that is, whether the students in the relevant catchment area arebeing provided with facilities and transportation equivalent to that which theirEnglish-language peers or counterparts are receiving. The second question iswhether any inequality amounts to a Charterbreach. The third question is, if so,

what remedy should be afforded to the petitioners and how that remedy may beafforded to them.

[Emphasis added.]

[19] At paras. 10 and 11, the judge further clarified that:For clarification for the parties, the intention of the order was to restrict the issueto be dealt with on the hearing of the petition to the question of equivalency of


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facilities. It was not my intention to determine whether or not, if there is notequivalency, that arises as a result of the failure of the Province or the CSF todischarge their obligations. The intention of the order was to have the partiesaddress only the first of the three issues I have described at the hearing of thepetition.

The Province says a declaration on a factual question cannot be granted and thatthe declaration sought will not advance the issues in this case. I am of the viewthat a judgment on the specific issue of equivalency is a preliminary one, theresolution of which will be of some assistance to the parties. That issue will bedetermined before the others, in the interests of efficiency and proprotionality

[Emphasis added.]

[20] The hearing of what was described as the first phase of hearing of thePetition took place in May and June of 2012. After the hearing of the first

phase of the Petition began, the Province applied for an adjournment of the

hearing in order to file additional evidence. Judgment on the application to

adjourn was reserved until July 6, 2012 (2012 BCSC 1206). The judge stated

at paras. 2228 of his reasons for judgment refusing the adjournment

application that:

[22] Counsel for the Province says she prepared for this first phase of thehearing on the understanding the Court would engage in a factual determinationof the equivalence of the existing physical facility and present transportationtimes provided to current students of cole Rose-des-Vents in comparison to

those provided to majority language education students and that Phase 1 of thePetition would not result in a declaration but rather would only result in findings offact. In part, this describes a misunderstanding with respect to whether therewould be any consideration of mixed questions of fact and law; in part, itdescribes a misunderstanding with respect to the potential outcomes (whetherthe Court would consider making a declaratory order); and, in part, amisunderstanding with respect to whether there would be an inquiry into theunmet demands of rights-holders in the catchment area who do not have childrenenrolled at Rose-des Vents.

[23] There is, in my view, no basis for saying the misapprehension describedarose from the case management orders made to date.

[24] First, in my opinion, it ought to have been clear from November 4, 2011onward that at the first phase of the hearing the court would have to considermixed questions of fact and law. The issue I directed the parties to address atthis phase of the hearing has been clearly stated on more than one occasion tobe whether the existing facilities and transportation afforded to the children ofrights holders in the Roses des Vents catchment area are sufficient to protect therights guaranteed to their parents under s. 23 of the Charter. The question ofequivalence before the Court could never have been considered to be a questionof fact alone. It arises in the context of the consideration of the constitutional


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rights of the Petitioners under s. 23 of the Charter. As all parties appreciate, therequirement that facilities afforded to minority-language students be equivalent tothose afforded to majority-language students, where numbers warrant, is not arequirement that the facilities be identical. The case law cited by all partiesclearly describes the exercise that must be engaged in where a question ofequivalence arises. The exercise clearly involves mixed questions of fact and

law.[25] Second, it has been clear since November 4, 2011 that I would nowconsider the Petitioner's entitlement to a declaration the facilities do not meet thatconstitutionally-mandated standard. The Petitioners have stated on a number ofoccasions that they regard declaratory relief as sufficient for their purposes at thistime. It was in the interests of efficiency and proportionality that I held thePetitioners' entitlement to that limited relief should be addressed before otherquestions. The fact declaratory relief was being sought was central to the rulingthat there would be some value in determining the issue of equivalence in priorityto other questions (specifically responsibility for any inequality established on theevidence) and the decision the petition would proceed as a representative

proceeding on behalf of all rights-holders.[26] Last, the preliminary issue now before me has always been stated as aquestion affecting the interests of the rights-holders in the catchment area.

Although the proceedings were first brought on behalf of the parents of currentstudents, and although some rights-holders without children at the school did notwant to participate or be bound by the outcome in these proceedings, all werebrought in by order of the court. When the representative status of the Petitionerswas before this court Counsel for the Minister said the rights holders are clearlydefined by the Charterand the catchment area; the question of fact and lawcommon to all rights holders is clear; and there is no divergence of interestbetween those of the named Petitioners and all s. 23 rights holders in thecatchment area. In my view it cannot now be said the Minister did not

contemplate a declaratory judgment binding upon all rights-holders in thecatchment area on the question whether the facilities afforded to their childrenare adequate to meet the standard to which they are constitutionally entitled. Norcan it be said, therefore, that it was anticipated the issue before me would berestricted to the rights of parents who currently have children registered at theschool.

[27] To the extent the Minister considered the appropriate analysis of numbersin this case did not call for an examination of the number of potential students orof students at private French language schools, that reflected the approach theMinister has taken to the analysis of demand for minority-language instruction.The Minister continues to take the position that current enrolment and currentCSF projections are the most reliable indicator of demand. That position is not amisapprehension of the question now before the Court but, rather, a consideredapproach to the assessment of numbers.

[28] To the extent counsel for the Minister says the Province is not preparedto address the question whether the existing facilities and transportation timesare sufficient to satisfy the Province's obligations pursuant s. 23 of the Charter,she ought to have no concern. I do not intend to address, and the Petitioners donot seek to have me describe, what are referred to as the Province'sobligations. Specifically, I cannot, on the evidence, assess responsibility for the


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current state of affairs, nor am I asked to determine what must be done to rectifyany inequality that may be established on the evidence, or to describe thefacilities to which rights holders are entitled. I am only asked to declare theexisting facilities insufficient to meet the constitutional entitlement of rightsholders. There should be no misapprehension in that regard.

[Emphasis added.]

[21] Reasons for judgment on the first phase of the Petition were handeddown on October 31, 2012 and are indexed at 2012 BCSC 1614. At para. 8 of

those reasons, the judge reiterated the two questions he had advised that he

would resolve in that phase of the hearing of the petition:

a) whether the rights-holders can establish their numbers warrant instructionand facilities; and

b) whether existing instruction and facilities are in fact equivalent toinstruction and facilities afforded to similarly situated majority languagestudents.

[22] The judge found that compared to the facilities made available toAnglophone students, the facilities made available to Francophone students

residing west of Main Street in Vancouver were not equivalent.

[23] The judge went on to also find that the disparity between the facilities

made available to Anglophone students, the facilities made available toFrancophone students residing west of Main Street in Vancouver was such as

to limit enrolment in the minority Francophone program and contribute to the

assimilation which is sought to be avoided by s. 23 of the Charterand

concluded that the Parents were not being afforded the minority language

educational facilities guaranteed to them by s. 23 of the Charter. At para. 158

of his reasons, the judge held:

I find that the petitioners are not being afforded the minority language educationalfacilities guaranteed to them by s. 23 of the Canadian Charter of Rights andFreedoms. I am satisfied, weighing all the evidence of the facilities madeavailable to Francophone students in comparison with the facilities madeavailable to Anglophone students, that the former are not equivalent to the latter.I am further satisfied that the disparity is such as to limit enrolment in the minorityFrancophone program and contribute to the assimilation which is sought to beavoided by s. 23.


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[24] The order resulting from the hearing includes the following:THIS COURT DECLARES that parents living west of Main Street in the City ofVancouver who have the right to have their children receive primary schoolinstruction in French are not being provided the minority language educationalfacilities guaranteed to them by s. 23 of the Charter of Rights and Freedoms; and

THIS COURT ORDERS that it retains jurisdiction to hear applications for anyfurther relief that may be sought by the Petitioners arising out of the issues raisedby the pleadings.

Issues on Appeal

[25] The Province contends that the judge erred by applying the wrong testto measure the adequacy of the facilities at Lcole Rose-des-vents by:

a) focussing on an unduly narrow and formalisitic concept of

equivalence;

b) ignoring the role played by the rights-holders in exercising their

ancillary right of management and control; and

c) failing to consider the existence or cost of practical alternatives.

[26] The Province contends further that the judges error was compoundedby a series of procedural errors including:

a) applying the wrong test to strike pleadings;

b) improperly phasing the hearing of the Petition; and

c) refusing to direct that the Petition be transferred to the trial list to

be heard at the same time as the CSF action.

Discussion

[27] The two orders that I propose to deal with are the November 4, 2011order striking certain paragraphs from the Provinces amended response to

the Parents Petition, and the order of October 31, 2012 declaring that parents

living west of Main Street in the City of Vancouver who have the right to have


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their children receive primary school instruction in French are not being

provided the minority language educational facilities guaranteed to them by

s. 23 of the Charter of Rights and Freedoms.

[28] In my view the judge applied the wrong legal test with respect to thefirst order and erred by going beyond what he directed he would resolve in the

first phase of the hearing of the Petition in the second order. I have concluded

that the Petition must therefore be remitted for rehearing in the Supreme

Court. In the result, I consider it inappropriate to address the other issues

raised in this appeal, and I will refrain from comment on those issues.

a) The Order Striking paragraphs in the Provinces AmendedResponse to the Parents Petition

[29] The Parents contend that what they allege to be the assimilation of theFrancophone minority living west of Main Street in the City of Vancouver is

attributable to the non-equivalence of the facilities available to their children,

compared to those available to English language students on the west side of

Main Street in the City of Vancouver.

[30] As described by the judge and set out above, the paragraphs that werestruck from the Provinces amended response to the Parents Petition dealt

with other arguable causes for the withdrawal of students and the assimilation

alleged by the Parents as well as comparable deficiencies in the English-

language schools to those asserted by the Parents.

[31] The application to strike parts of the Provinces amended response to

the Petition required the judge to apply a legal test. The applicable legal test isa question of law, and its selection is subject to review on the standard of

correctness: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.


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[32] The test for striking pleadings is a stringent one. As Chief JusticeMcLachlin wrote with respect to Rule 19(24)(a) of the B.C. Supreme Court

Rules B.C. Reg. 221/90, at para. 17 in R. v. Imperial Tobacco Canada Ltd.,

[2011] 3 S.C.R. 45: A claim will only be struck if it is plain and obvious, assuming the factspleaded to be true, that the pleading discloses no reasonable cause ofaction: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, atpara. 15; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980. Another wayof putting the test is that the claim has no reasonable prospect of success.Where a reasonable prospect of success exists, the matter should be allowed toproceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007SCC 38, [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of Canadav. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.

[33] Rule 19(24) of the Supreme Court Rules, has been replaced by Rule 9 -5 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, but the test remains

the same.

[34] Based upon his view of the decision of the Supreme Court of Canadain Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, the

judge considered that there is a constitutional imperative to provide an

expeditious and meaningful vindication of the breach of a s. 23 Charterright.Quoting from para. 55 ofDoucet-Boudreau(which itself quoted from R. v.

974649 Ontario Inc., [2001] 3 S.C.R. 575 at para. 20 and Mills v. The Queen,

[1986] 1 S.C.R. 863 at 882), the judge, at para. 34, accepted that the [f]ailure

to consider the vulnerability of the rights at stake may result in the

ineffectiveness of any remedy to which the petitioners may be entitled. A

remedy, therefore, should not be smothered in procedural delays and

difficulties.

[35] Although he referred to Rule 9 - 5 of the Supreme Court Civil Rules thejudge modified the test that he applied, stating at para. 35 of his November 4,

2011 reasons for judgment that:


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The application to strike pleadings so as to limit the matters at issue on thehearing of the petition should be read in light of the above constitutionalimperative. Care must be taken, however, not to employ too crude an instrumentto attain what are otherwise desirable ends.

[36] At paras. 6769 and 72 of his reasons for judgment, the judgeconcluded:

[67] I accept that because s. 23 rights are not absolute but relative to theinstruction and facilities afforded to majority language students, the Province mayappropriately raise in the pleadings its case that a comparison may be drawnbetween minority language schools and what it regards as appropriatecomparators.

[68] I also accept the Province's submission that so long as the petitionersseek to have the court order one of the respondents to remedythe Charterbreach, and so long as the petitioners seek to have the court retain

supervisory jurisdiction and to grant further and other relief in the event a breachis not remedied forthwith, the Province's pleadings with respect to the obligationsof the CSF cannot be said to be unnecessary, frivolous, embarrassing orvexatious. The result the petitioners seek (i.e. a ruling on the breach beforeaddressing what may be the difficult task of describing a remedy), may beobtained by ordering the hearing of one issue before the other, and ordering thatdiscovery be tailored to the first issue, with further discovery to follow in the eventthat further relief is sought following the hearing of the petition.

[69] There are, in my view, very few paragraphs in the Amended Response ofthe Province filed on March 11, 2011 that cannot be said to address theadequacy of the Province's allocation of resources for provision of instruction andfacilities to the children of Roses des Vents parents. As long as it remains open

to the petitioners to seek an order compelling the Province to take remedialaction for the alleged breach of s. 23 rights, it cannot be said that the Province'splea that it has adequately funded the CSF is an embarrassing plea; one that iswholly apart from the issues or clearly irrelevant.

[72] Striking of the identified paragraphs from the Amended Response of theProvince will not substantially expedite the hearing. Bearing in mind the warningin Doucet-Boudreau that the courts should promptly address allegations of thebreach of s. 23 Charterrights, I conclude that I should exercise my discretion toorder that the petitioners' claim that their facilities and transportation areinadequate to protect theirCharterrights, should be heard before considering

responsibility or remedies for such breach as may be found to exist. Accordingly,I order that on the hearing of the petition the Court will first address only the issueof whether the existing facilities and transportation afforded to the children ofrights holders in the Roses des Vents catchment area are sufficient to protect therights guaranteed to their parents under s. 23 of the Charter.


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[37] I find it unnecessary to resolve the point raised by the Province of thecorrectness of the view ofDoucet-Boudreau taken by the judge, and I will

refrain from so doing. Assuming that his view of a constitutional imperative is

correct, it cannot be used to prevent a party from advancing arguabledefences to a claim for the breach of a Charterright against it by striking

pleadings that are arguably relevant with respect to the alleged breach.

[38] The Province has appealed the order with respect to paras. 58, 76, 77and 92, but not with respect to para. 79. I am unable to agree with the judge

that the four paragraphs that he struck from the Provinces amended response

to the Parents Petition which are the subject of the Provinces appeal are

clearly irrelevant. The judge preceded his analysis of the Provinces amended

response to the Parents Petition by accepting, at para.67, that s. 23 rights

are not absolute but relative to the instruction and facilities afforded to majority

language students.

[39] This view accords with the decision of the Supreme Court of Canadain Mahe v. Alberta, [1990] 1 S.C.R. 342, at pp. 365 and 367, where Chief

Justice Dickson explained that:The proper way of interpreting s. 23, in my opinion, is to view the section asproviding a general right to minority language instruction. Paragraphs (a) and (b)of subs. (3) qualify this general right: para. (a) adds that the right to instruction isonly guaranteed where the number of children warrants, while para. (b) furtherqualifies the general right to instruction by adding that where numbers warrant itincludes a right to minority language educational facilities. In my view, subs.(3)(b) is included in order to indicate the upper range of possible institutionalrequirements which may be mandated by s. 23 (the government may, of course,provide more than the minimum required by s. 23).

In my view, it is more sensible, and consistent with the purpose of s. 23, tointerpret s. 23 as requiring whatever minority language educational protection thenumber of students in any particular case warrants. Section 23 simply mandatesthat governments do whatever is practical in the situation to preserve andpromote minority language education.

[Emphasis added.]


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[40] At pp. 384385, the Chief Justice addressed the numbers warrantprovision of s. 23 of the Charter:

The numbers warrant provision requires, in general, that two factors be taken intoaccount in determining what s. 23 demands: (1) the services appropriate, in

pedagogical terms, for the numbers of students involved; and (2) the cost of thecontemplated services. The first, pedagogical requirements, recognizes that athreshold number of students is required before certain programmes or facilitiescan operate effectively. There is no point, for example, in having a school for onlyten students in an urban centre. The students would be deprived of thenumerous benefits which can only be achieved through studying and interactingwith larger numbers of students. The welfare of the students, and thus indirectlythe purposes of s. 23, demands that programmes and facilities which areinappropriate for the numbers of students involved should not be required.

Cost, the second factor, is not usually explicitly taken into account in determiningwhether or not an individual is to be accorded a right under the Charter. In thecase of s. 23, however, such a consideration is mandated. Section 23 does not,like some other provisions, create an absolute right. Rather, it grants a rightwhich must be subject to financial constraints, for it is financially impractical toaccord to every group of minority language students, no matter how small, thesame services which a large group of s. 23 students are accorded. I note,however, that in most cases pedagogical requirements will prevent the impositionof unrealistic financial demands upon the state. Moreover, the remedial nature ofs. 23 suggests that pedagogical considerations will have more weight thanfinancial requirements in determining whether numbers warrant.

[Emphasis added.]

See also Reference re Public Schools Act (Manitoba), [1993] 1 S.C.R. 839 perChief Justice Lamer at pp. 850 and 856.

[41] The Parents contend that once a sufficient number of minorityFrancophone students are present in a community, the only remaining issue is

whether the facilities in the community meet the s. 23 Charterstandard for the

currently attending population. They rely on the comments of Mr. Justice

Bastarache in R. v. Beaulac,[1999] 1 S.C.R. 768, at para. 25, where he

wrote:Language rights must in all cases be interpreted purposively, in a mannerconsistent with the preservation and development of official languagecommunities in Canada; seeReference re Public Schools Act (Man.), [1993] 1S.C.R. 839, supra, at p. 850. To the extent that Socit des Acadiens duNouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation oflanguage rights, it is to be rejected. The fear that a liberal interpretation oflanguage rights will make provinces less willing to become involved in the


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geographical extension of those rights is inconsistent with the requirement thatlanguage rights be interpreted as a fundamental tool for the preservation andprotection of official language communities where they do apply. It is also usefulto re-affirm here that language rights are a particular kind of right, distinct fromthe principles of fundamental justice. They have a different purpose and adifferent origin. ...

[Emphasis in original.]

[42] I am unable to accept that this passage must be interpreted as doingaway with cost considerations once a sufficient number of minority

Francophone students are present in a community. Cost remains a factor in at

least some s. 23 Chartercases, as can be seen from the reasons of Major

and Bastarache JJ. inArsenault-Cameron v. P.E.I., [2000] 1 S.C.R. 3 at

paras. 38 and 41:[38] Mahe explains that the numbers warrant provision requires that twofactors be considered in determining the demands of s. 23. First, it requires adetermination of the appropriate services, in pedagogical terms, for the numberof students involved. Then it requires an examination of the costs of thecontemplated service. In addressing the first concern, pedagogical requirements,it is important to consider the value of linguistic minority education as part of thedetermination of the services appropriate for the number of students. Thepedagogical requirements established to address the needs of the majoritylanguage students cannot be used to trump cultural and linguistic concernsappropriate for the minority language students.

[41] The second factor to be considered is the cost of the contemplatedservices. At the hearing before this Court, the province explained that costs werenot a consideration in the Minister's decision. This is consistent with the fact thatthe Minister had maintained at trial that the Board's plan to provide Frenchlanguage instruction locally to such a small group was not pedagogically viable.The trial judge concluded that the Minister had simply decided that a facility inSummerside was not a practical option. This conclusion, as mentioned earlier,was based on the availability of space at cole vangline (pp. 336-37). It cantherefore be assumed for the purpose of analysis that the second factor inassessing sufficient numbers in Mahe, i.e. costs, is not at issue in this case.

[43] In my opinion, given the stringent test for striking pleadings, the fourparagraphs in the Provinces amended response to the Parents Petition

which are the subject of the Provinces appeal may have relevance.


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[44] Paragraph 58 of that response was described by the judge as a pleathat there are many school facilities that could benefit from upgrading or

renovation. I consider that this assertion may be relevant to the issue of

equivalence in terms of what is practical in the situation confronting all of theparties.

[45] The judge described paragraphs 76 and 77 of the response as a pleathat assimilation has causes other than inadequate schools, and the plea that

most students at Rose-des-vents are children of exogamous (mixed

language) couples. Although, as I have already indicated, I conclude that the

judge erred by going beyond what he directed he would resolve in the first

phase of the hearing of the Petition, his order that parents living west of Main

Street in the City of Vancouver who have the right to have their children

receive primary school instruction in French are not being provided the

minority language educational facilities guaranteed to them by s. 23 of

the Charter of Rights and Freedoms highlights the relevance of these two

paragraphs, at some stage of the hearing of the Parents Petition. These

paragaphs may have relevance to what is practical in terms of equivalency in

the situation confronting all of the parties as well as the ultimate remedysought.

[46] Paragraph 92 of the Provinces response was described by the judgeas a plea that there are multiple causes forthe withdrawal of students from

Rose-des-vents. He concluded that the fact that students leave this school

and others for a multitude of reasons does not give rise to a defence. I

consider that this paragraph may have relevance to what is practical in terms

of equivalency in the situation confronting all of the parties as well as to the

ultimate remedy sought.

[47] I would therefore accede to this ground of appeal. In my opinion, theProvince should not have been prevented from pursuing and developing


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through the pre-hearing discovery process crafted by the judge, or through the

evidence of expert witnesses, the defences that it wished to advance

respecting the equivalence of the facilities based upon the application of the

sliding scale referred to by Chief Justice Dickson in Mahe at pp. 365368.

[48] While this is a sufficient basis for setting aside the declaration ofOctober 31, 2012 of the judge, I will also address the second issue I have

identified above: the declaration granted in light of the effect of the judges

phasing order and its clarification.

b) The Declaratory Order

[49] In my opinion, the order to hear the Parents Petition in phases was anorder that was open to the judge to make in his capacity as the case

management judge.

[50] For ease of reference I will repeat the judges clarification of his phasingorder from para. 10 of his unreported reasons for judgment of March 14, 2012

:

There are, as I mentioned in the course of submissions, three distinct issues fordetermination in the proceeding begun by petition. The first is whether there isequivalency, that is, whether the students in the relevant catchment area arebeing provided with facilities and transportation equivalent to that which theirEnglish-language peers or counterparts are receiving. The second question iswhether any inequality amounts to a Charter breach. The third question is, if so,what remedy should be afforded to the petitioners and how that remedy may beafforded to them.

[51] I am unable to agree with the judge that his case management orders

should have alerted the Province to the prospect that he intended todetermine whether the existing facilities and transportation afforded to the

children of rights holders in the Rose-des-vents catchment area are sufficient

to protect the rights guaranteed to their parents under s. 23 of the Charterat

the first phase of the hearing of the Petition.


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[52] The plain meaning of the clarification of the phasing order by the judgeis that the first phase of the hearing of the petition was to assess only the

issue of whether there was equivalency between the facilities and

transportation offered to the children of the Parents, and those offered to theirEnglish language counterparts. That is the meaning taken from the clarified

phasing order by the Province. Whether any non-equivalency amounted to a

breach of the Parents s. 23 Charterrights was to be the subject of the second

phase of the hearing.

[53] I am therefore unable to reconcile the phasing order as clarified by thejudge with his reasons of July 6, 2012 or with his disposition of the Petition.

He did what he said in his clarification ruling he would not do until the second

phase of the hearing of the Petition, and in so doing deprived the Province of

any ability to advance its defence that any lack of equivalency between the

facilities afforded to English-language students and those afforded to the

minority Francophone students did not breach the Parents

s. 23Charterrights.

[54]

The effect of the judges disposition of the first phase of the hearing ofthe Petition was to unfairly preclude the Province from ever having an

opportunity to obtain all of the evidence it wished to pursue to support its

defence that any disparity in the facilities did not amount to a breach of the

Parents s. 23 Charterrights through the discovery process that he set, or to

present expert evidence with respect thereto.

[55] I am not prepared to find that the phasing order of the judge should be

set aside, but the effective resolution of the second phase of the hearing ofthe Petition, as he described it, requires that the declaration that the Parents

s. 23 Charterrights are not being met must be set aside.

Relief Sought


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[56] The Province seeks the following three orders on this appeal:

a) setting aside the order striking the Provinces responsive pleading

in paragraphs 58, 76, 77, and 92 of the Provinces Amended

Response;

b) setting aside the Declaration; and

c) remitting the matter to the Supreme Court trial list, to be heard at

the same time as the CSF action.

[57] For the reasons set out above, I would set aside the order striking

paragraphs 58, 76, 77, and 92 of the Provinces amended response to civilclaim.

[58] As I have already indicated, I am unable to sustain the declaration thatparents living west of Main Street in the City of Vancouver who have the right

to have their children receive primary school instruction in French are not

being provided the minority language educational facilities guaranteed to them

by s. 23 of the Charter of Rights and Freedoms, and I conclude that that order

must be set aside.

[59] The CSF argued before us that if the declaration of the casemanagement judge were to be set aside, that it be replaced with a declaration

that the facilities and transportation offered to parents living west of Main

Street in the City of Vancouver who have the right to have their children

receive primary school instruction in French are not equivalent to those

provided to their English-language counterparts. The Province contends thatthis declaratory order must be set aside in its entirety.

[60] I am unable to accept that the replacement declaration proposed by theCSF should be fashioned by this Court. As I have already discussed,


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equivalency as it pertains to s. 23 of the Charteris to be assessed on a sliding

scale.

[61] In Mahe, at p. 378, Chief Justice Dickson explained:

I think it should be self-evident that in situations where the above degree ofmanagement and control is warranted the quality of education provided to theminority should in principle be on a basis of equality with the majority. Thisproposition follows directly from the purpose of s. 23. However, the specific formof educational system provided to the minority need not be identical to thatprovided to the majority. The different circumstances under which variousschools find themselves, as well as the demands of a minority languageeducation itself, make such a requirement impractical and undesirable. It shouldbe stressed that the funds allocated for the minority language schools must be atleast equivalent on a per student basis to the funds allocated to the majorityschools. Special circumstances may warrant an allocation for minority language

schools that exceeds the per capita allocation for majority schools. I am confidentthat this will be taken into account not only in the enabling legislation, but inbudgetary discussions of the board.

[62] The effect of the revival of paragraphs 58, 76, 77, and 92 of theProvinces amended response to civil claim, and the issues raised therein may

result in further evidence by way of examinations for discovery or expert

evidence that may have an impact upon the issue of equivalency. It would be

inappropriate to foreclose the consideration of such evidence by substituting a

declaration for that of the case management judge when such evidence has

yet to be adduced or considered.

[63] Finally, the Province asks that this Court remit the matter to theSupreme Court trial list to be heard at the same time as the CSF action. I do

not consider that such a course of action is warranted.

[64] The case management judge specifically stated at para. 161 of hisreasons for judgement indexed at 2012 BCSC 1614 that he would retain

jurisdiction to hear applications for any further relief that may be sought by the

Petitioners arising out of the issues raised by the pleadings. We have been

advised that a different Supreme Court judge has assumed the case


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management of the CSF action, and that that action is set to proceed in the

fall of this year.

[65] I have not been persuaded that it is appropriate to set aside the phasingorder of the case management judge. The management of the Parents

Petition and the CSFs action should be determined by one or both of the two

Supreme Court judges presently managing the two proceedings. It may be

that adherence to what the judge had indicated he would do in terms of

hearing distinct phases of the petition, following the revival of paragraphs 58,

76, 77, and 92 of the Provinces amended response to civil claim, and the

evidence that may flow therefrom will assist in the resolution of the Petition

without the need for the Parents to be involved in the broader issues and relief

sought by the CSF in its action, but that is for the case management judges to

determine.

Conclusion

[66] The effect of the judges November 4, 2011 order striking certainparagraphs from the Provinces amended response to the Parents Petition,

and the order of October 31, 2012 declaring that parents living west of MainStreet in the City of Vancouver who have the right to have their children

receive primary school instruction in French are not being provided the

minority language educational facilities guaranteed to them by s. 23 of

the Charter of Rights and Freedoms was to deprive the Province of the ability

to advance a defence that offered a reasonable prospect of success.

[67] In the result I would order that the order that paragraphs 58, 76, 77 and92 be struck from the Provinces amended response to civil claim be set

aside, and those paragraphs be permitted to be included in the amended

response.


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[68] I would also order that the declaration of the trial judge dated October31, 2012 be set aside and that the Petition be remitted to the Supreme Court.

The Honourable Mr. Justice Hinkson

I agree:

The Honourable Madam Justice Saunders

I agree:

The Honourable Madam Justice Bennett

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