Judge Willcock, re L’Association des parents de l’école Rose-des-vents v. Conseil scolaire...

7/31/2019 Judge Willcock, re LAssociation des parents de lcole Rose-des-vents v. Conseil scolaire francophone de la Colom

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: LAssociation des parents de lcole Rose-des-vents v.Conseil scolaire francophone de la Colombie-Britannique,

2012 BCSC 1614 Date: 20121031Docket: S103455

Registry: Vancouver

Between:

LAssociation des parents de lcole Rose-des-ventsand Joseph Pag In His Name and In The Name of all Rose-des-vents

Parents who are Entitled to the Right, under Section 23 ofThe Canadian Charter of Rights and Freedoms,

to have their Children Educated in the Language of the Minority,

Namely the French Language, in Publicly FundedFrench-Language School FacilitiesPetitioners

And

Conseil scolaire francophone de la Colombie-Britannique,The Minister of Education of British Columbia, and

The Attorney General of British ColumbiaRespondents

Before: The Honourable Mr. Justice Willcock

Reasons for JudgmentIn Chambers

Counsel for the Petitioners: Nicolas M. Rouleau

Counsel for the Respondent, Conseil-scolairefrancophone de la Colombie-Britannique:

Robert W. GrantMark C. Power

Jean-Pierre Hachey

Counsel for the Respondents, Minister of Educationand Attorney General of British Columbia:

Veronica L. JacksonKarrie A Wolfe

Place and Date of Hearing: Vancouver, B.C.May 30, 2012

June 1, 4-8, 11-15,& 19-22, 2012

Place and Date of Judgment: Vancouver, B.C.October 31, 2012


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LAssociation des parents de lcole Rose-des-vents v.Conseil scolaire francophone de la Colombie-Britannique Page 2

Table of Contents

I. INTRODUCTION ..................................................................................................... 3A. Nature of the Petition ........................................................................................... 3B. History of Proceedings and Identification of the Issue for Determination .............. 4C. The Hearing of the Petition Commencing May 30, 2012 ...................................... 6D. Application to Strike Evidence .............................................................................. 7

1. Hearsay .......................................................................................................... 82. Relevance .................................................................................................... 103. Opinion Evidence ......................................................................................... 124. Argument ..................................................................................................... 135. Evidence Lacking Foundation ...................................................................... 146. Conclusion ................................................................................................... 14

II. EVIDENCE ............................................................................................................ 15 A. Affidavits of the Petitioners and the CSF ............................................................ 15

1. Numbers ...................................................................................................... 162. The Rose-des-vents Facilities ...................................................................... 17

a) The Shared Facility .................................................................................... 17b) Limited Space ............................................................................................ 18c) Renovation of the Activity Room ................................................................ 20d) The Library ................................................................................................ 20e)

The Gymnasium ........................................................................................ 20

f) Washrooms ............................................................................................... 21g) Exterior Space ........................................................................................... 21

3. Evidence of Insufficiency in Fact .................................................................. 214. Comparable Majority Language Facilities..................................................... 225. Transportation & Accessibility ...................................................................... 23

B. Affidavits of the Minister of Education ................................................................ 23III. APPLICABLE LAW ............................................................................................ 27IV. DISCUSSION AND ANALYSIS .......................................................................... 45

A. Numbers ............................................................................................................ 45B. Point of Comparison........................................................................................... 47C. Facilities ............................................................................................................. 49D. Accessibility ....................................................................................................... 55

V. JUDGMENT ........................................................................................................... 58


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I. INTRODUCTION

A. Nature of the Petition

[1] The petitioners, representatives of parents living west of Main Street in the

City of Vancouver who have the right to have their children receive primary schoolinstruction in French, seek a declaration that they are not being provided the minority

language educational facilities guaranteed to them by s. 23 of the Canadian Charter

of Rights and Freedoms(Charter). The Charterprovides:

(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 Canada inEnglish or French and reside in a province where the language inwhich they received that instruction is the language of the English orFrench 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 primaryor secondary school instruction in English or French in Canada, have theright to have all their children receive primary and secondary schoolinstruction in the same language.

(3) The right of citizens of Canada under subsections (1) and (2) to have their

children receive primary and secondary school instruction in the language ofthe English or French linguistic minority population of a province

(a) applies wherever in the province the number of children of citizenswho have such a right is sufficient to warrant the provision to them outof public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the rightto have them receive that instruction in minority language educationalfacilities provided out of public funds.

[2] The petitioners say the facilities at lcole Rose-des-vents, at 5445 Baillie

Street in Vancouver(Rose-des-vents), the only Francophone elementary school inthe relevant catchment area, are not equivalent to those provided to Anglophone

students in Vancouver. They say inadequate facilities have led to the non-

enrollment or withdrawal of students from the Francophone school system operated

by the Conseil scolaire francophone de la Columbie Brittanique (CSF) and to their


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enrolment in more accessible schools of the Vancouver School Board (VSB) with

superior facilities.

B. History of Proceedings and Identification of the Issue for Determination

[3] LAssociation des parents de lcole Rose-des-vents and Mr. Pag, in hisname and as a representative only of parents of children enrolled at Rose-des-vents,

commenced these proceedings in the spring of 2010. They sought a remedy under

s. 24 of the Charterfor the alleged breach of their constitutional rights and an order

setting aside certain funding decisions made by the Minister of Education. The

challenge to the funding decisions was brought pursuant to the provisions of the

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

[4] In response the CSF and the Minister of Education (Minister) raised theissue of responsibility for the alleged inadequacies in the facilities afforded to the

petitioners. The CSF joins the petitioners in alleging that the facilities available to

rights-holders in the Rose-des-vents catchment area are inadequate, but argues

such inadequacies are the result of insufficient funding of Francophone education in

this Province. The CSF in separate proceedings (SCBC, Vancouver Registry Action

S103975), has challenged the adequacy of the global funding of minority language

education in British Columbia. The Minister says the CSF, as the agency chargedwith exercising management and control of the Francophone education system on

behalf of rights-holders, has determined what facilities will be afforded to the

Francophone minority and is responsible for the any inadequacies in Vancouver.

The petitioners seek to advance the cause of their children, if possible, without

bearing the burden of establishing responsibility for the alleged inadequacies.

[5] On November 4, 2011, I considered whether pleadings of the respondents

addressing those questions of responsibility for alleged inadequacies should bestruck; whether certain issues should be determined in priority to others; and

whether the petitioners should act as representatives of all rights-holders in the

catchment area, rather than simply on behalf of parents who currently have children

enrolled at Rose-des-vents. Judgment on that application isindexed at 2011 BCSC

1495.


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[6] Counsel for the petitioners at that time acknowledged the claim impugning

ministerial decisions could necessitate extensive discovery related to the decision-

making process and the role of the CSF in the delivery of constitutionally-mandated

instruction and facilities. The petitioners therefore applied for and obtained leave to

amend the petition to delete the challenge to specific funding decisions brought

pursuant to the Judicial Review Procedure Actand to limit the prayer for relief to a

declaration that existing facilities do not meet the standard mandated by the Charter

and an order that the court retains jurisdiction to later address any claim for further

relief. The petitioners were content that the remedy for any shortcoming would rest,

in the first instance, in the hands of government. They would seek further relief from

the court only in the event of inactivity on the part of government in the face of a

declaratory judgment.

[7] With a view toward an efficient resolution of the claim, bearing in mind the

direction in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62,

[2003] 3 S.C.R. 3 [Doucet-Boudreau], that allegations of infringements of s. 23

Charterrights should be addressed promptly, so as to minimize the effect of

assimilation during protracted proceedings, I held, at para. 72 of my reasons:

... on the hearing of the petition the Court will first address only the issue of

whether the existing facilities and transportation afforded to the children ofrights holders in the Roses des vents catchment area are sufficient to protectthe rights guaranteed to their parents under s. 23 of the Charter.

[8] That order now requires me to consider the two questions described in the

November 4, 2011, judgment:

a) whether the rights-holders can establish their numbers warrant

instruction and facilities; and

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

students.

[9] At the November 4, 2011, hearing, the Minister sought to have the petitioners

act as representatives of all rights-holders in the catchment area. Counsel for the


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Minister took the position the petitioners met the criteria described in Western

Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534. The

class of s. 23 rights-holders was said to be thoroughly and objectively defined. The

questions of fact and law common to all rights-holders were considered to be clear.

The Minister saw no divergence of interests between those of the named petitioners

and the interests of all s. 23 rights-holders in the catchment area. The Minister

argued it was appropriate that the claims of all rights-holders be assessed once, and

not litigated on a piecemeal basis. I accepted that position. Joseph Pag was

ordered to act as a representative of all s. 23 rights-holders living in the catchment

area. No issue was then taken by any party to the description of the catchment area

as the relevant geographical area for the courts inquiry.

C. The Hearing of the Petition Commencing May 30, 2012

[10] The hearing of the petition commenced on May 30, 2012, and continued for

approximately five weeks. The parties submitted voluminous affidavit evidence and

excerpts from transcripts of the examination of deponents under oath. Following

submissions of the petitioners and the CSF, counsel for the Minister sought an order

permitting the Minister to obtain further discovery evidence and to further cross-

examine affiants, and for leave to adduce further affidavit evidence. Judgment on

that application was reserved to July 6, 2012.

[11] The application was dismissed on the grounds that much of the evidence the

Minister sought leave to adduce related to matters irrelevant to the preliminary issue

for determination, including the CSFs capital and operational funding requests and

the process for handling such requests through the development of the annual

facilities grant and the Francophone educational premium, operational funding by

the CSF, the history of the choice of the site for the school, and decisions with

respect to grade configuration. I concluded that I should not exercise my discretion

to allow further discovery because the discovery sought appeared to be

unnecessary to determine the central issues on the application. Those reasons are

indexedat 2012 BCSC 1206. I am satisfied the parties have had ample opportunity


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to address the issues as described in the pleadings and by my order of November 4,

2011.

D. Application to Strike Evidence

[12] Significant effort was expended at the hearing addressing the admissibility of

the evidence of the petitioners and the CSF. Counsel for the Minister objected to the

admissibility of evidence on the following bases:

1. Hearsay: the Minister says statements made on information and belief

that do not fall within exceptions to the rule against the admission of

hearsay evidence at trial are inadmissible;

2. Relevance: the Minister objects to the admission of evidence that is

not relevant to the matters now before me. The petitioners and the

CSF acknowledge there is some merit to this objection. The affidavits

were filed in some cases before the ruling on the question to be heard

as a preliminary issue;

3. Opinion Evidence: the Minister objects to the admission of statements

of opinion by lay witnesses that are said to offend the rule with respect

to the admission of opinion evidence;

4. Absence of Foundation: the Minister objects to statements in affidavits

that appear to be conclusions without appropriate foundation;

5. Argument: the Minister objects to the admission of statements in the

affidavits filed by the petitioners and the CSF that are argumentative.

[13] The objections to admissibility were numerous. In order to ensure the parties

have a record of the evidence admitted on the hearing of the petition, I append to

these reasons for judgment, as Schedule A, a table listing the objections to evidenceand the ruling with respect to whether the evidence in question is admissible. The

grounds for the rulings on admissibility are, briefly, as follows.


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1. Hearsay

[14] The Minister objects to hearsay evidence on the ground it is presumptively

inadmissible unless an exception to the hearsay rule applies. In response to the

Ministers objection the petitioners and the CSF say:

1. Some of the evidence to which objection is taken is not tendered to

prove the truth of its contents and is not hearsay;

2. Some of the evidence falls within traditional exceptions to the hearsay

rule;

3. The balance of the hearsay evidence falls within the principled

exception to the rule described in R. v. Khelawon, 2006 SCC 57,

[2006] 2 S.C.R. 787 [Khelawon]; and

4. Rule 22-2(13) of the Supreme Court Civil Rules give the court a broad

discretion to admit affidavit evidence containing hearsay.

[15] The petitioners and the CSF say the Civil Rules permit the court to relax the

rules of evidence on the hearing of a petition. They say that not only is the court

able to admit evidence on the basis that it meets the principled exception to the

hearsay rule (as being evidence which is admitted as a result of the necessity of

reliance upon hearsay and the apparent reliability of the evidence tendered) but that

the court has a broad discretion described by Rule22-2(13) to grant leave to the

parties to adduce hearsay evidence at the hearing of a petition. Both before and

after the enunciation of the principled exception to the hearsay rule by the Supreme

Court of Canada, this court has generally granted leave under Rule 22-2(13) and its

predecessor, Rule 51(10), only where the evidence tendered has been considered

to be fundamentally reliable: Ulrich v. Ulrich, 2004 BCSC 95; Miller v. Yukon, 2010

YKSC 22; Chamberlain v. Surrey School District No. 36(1998), 60 B.C.L.R. (3d) 311

(S.C.); Brouwer v. British Columbia (Minister of Energy, Mines and Petroleum

Resources), 2000 BCSC 1743; Trus Joist (Western) Ltd. v. United Brotherhood of

Carpenters and Joiners of America, Local 1598, [1982] 6 W.W.R. 744 (S.C.);


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Litchfield v. Darwin (1997), 29 B.C.L.R. (3d) 203 (S.C.); and Beazley v. Suzuki Motor

Corp., 2008 BCSC 850.

[16] If the discretion to admit hearsay evidence at the hearing of a petition permits

a relaxation of the necessity test described in Khelawon, there is no need to do so inthis case. The petition did not come on for hearing in urgent or exigent

circumstances and the parties had ample opportunity to obtain, test and lead

evidence.

[17] I therefore exclude from consideration hearsay evidence that could be

adduced by other means or is not fundamentally reliable. I exclude the hearsay

evidence of affiants with respect to inadequacies at Rose-des-vents or superior

facilities elsewhere, as described to them by third parties and not observed by the

affiants. There is a wealth of evidence in this case founded upon direct observation.

It is not necessary to rely upon much of the hearsay to which the Minister objects. I

adopt the views expressed in Yellowknife (Assn. des Parents ayants droit de

Yellowknife c. Procureur gnral des Territoires du Nord-Ouest, [2012] N.W.T.J.

No. 45 (S.C.) [Yellowknife], where the court held that evidence of parents with

respect to statements made to them by others concerning activities and problems at

school was neither necessary nor reliable. The court held, at para. 347:L'exception raisonne la rgle interdisant la preuve par ou-dire n'a pas tdveloppe pour des raisons de commodit ni des raisons purementpratiques. Elle a t dveloppe autour de principes se rapportant auxraisons de base pour lesquelles le ou-dire n'est gnralement pas permis: lefait que ce genre de preuve ne permet pas la partie adverse de tester safiabilit.

(The principled exception to the rule prohibiting the introduction of hearsayevidence was not developed for reasons of convenience or purely practicalreasons. It was developed around principles relating to the basic rationale forwhich hearsay is not generally permitted: the fact that type of evidence does

not allow the adverse party to test its reliability.) [My translation.]

[18] The hearsay rule does not prevent admission into evidence of the results of a

poll where introduced as an expression of the views of a large number of people.

Such polls may be a necessary and reliable means of adducing evidence of a

communitys views, where such views are relevant to the issue before the court. In


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the case at bar, the comparative standing of Rose-des-vents in relation to nearby

Anglophone schools is relevant. So is evidence of the relative importance of factors

considered by Francophone parents when making enrollment decisions. Survey

evidence with respect to the intentions of parents to enrol their children at a

Francophone facility was held to be admissible at trial in Lavoie v. Nova Scotia

(Attorney General) (1988), 84 N.S.R. (2d) 387 (S.C., T.D.) [Lavoie No. 2], because,

at para. 44:

... [I]t would have been impractical in the extreme to have every single eligiblecitizen come and testify before the Court. Furthermore, the nature of theissues, as recognized by counsel at the trial, mandates the consideration ofhearsay evidence as the foundation of surveys. ...

[19] On the other hand, in Yellowknife, the results of a student survey were held to

be inadmissible. Surveys are not inadmissibleper se, but admissible when they are

a necessary means of collecting relevant evidence and conducted in a manner that

is likely to result in reliable evidence, and inadmissible when unnecessary or when

conducted in a manner that makes the results fundamentally unreliable.

[20] The petitioners and the CSF argue that some of the evidence tendered by the

petitioners that might be considered to be hearsay is admissible as an admission by

another party. I accept the argument of the Minister that the CSF is generally notadverse to the petitioners in these proceedings. The evidence of the CSF is

therefore not admissible through hearsay in the affidavits of the petitioners as

admissions of an adverse party. Similarly, admissions by the petitioners are not

admissible through the hearsay evidence of the CSF.

2. Relevance

[21] Issues of relevance have arisen in part as a result of the Order determining

that the sufficiency of the facilities would be considered before any other matters.

As noted above, the intent of that order was to avoid embroiling the petitioners in a

contest with respect to responsibility for perceived deficiencies. So, for example, the

question of whether the CSF could have established a primary school at another site


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but chose to direct its resources toward other needs is irrelevant to the inquiry before

me.

[22] In objecting to the affidavit evidence, counsel for the Minister errs in taking the

position that all evidence with respect to past problems or the development of thepresent situation is irrelevant. That is not the case. If a parent says that she

withdrew her children from school two years ago because it took too long to get to

the school on the bus, that is not evidence of a current inadequacy, but it is evidence

that transportation time of a certain duration is a factor that has, in fact, led rights-

holders to remove their children from the school. It is evidence of the point at which

accessibility becomes an obstacle to enjoyment of the constitutional right. In light of

the Ministers objection to hearsay evidence from the administrators with respect to

reasons parents have given for withdrawal of their children, any evidence of parental

motives, past or present, for enrollment decisions must come from parents. That

evidence can shed light upon the criteria that are important in ensuring access to the

constitutional rights of the rights-holders.

[23] Further, the fact that Rose-des-vents shares a common connected structure

with lcole secondaire Jules Verne (Jules Verne), the period for which the

arrangement has existed and the extent to which it is likely to continue are all factorsthat must be weighed in determining whether the present facilities are adequate to

meet the needs of the rights-holders. In submissions, counsel says that the Minister

regards the Rose-des-vents/Jules Verne site as one institution, whereas the

petitioners regard it as two schools. Evidence with respect to the past, present and

continuing relationship between the institutions is admissible in relation to that

question.

[24] The Minister objects to evidence of anticipated demand as irrelevant to thecurrent proceeding. Given the task that faces the court in assessing the adequacy

of the facilities for the rights-holders, it is, in my view, essential that the court

address not only current but anticipated demand.


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[25] Having said that, all parties agree that some of the evidence with respect to

historical dealings between the parties is irrelevant to the proceedings before me. It

is not in issue that the petitioners have for some time regarded the facilities available

to them as inadequate and the Minister continues to take the position that there is no

constitutional entitlement to better or other facilities. There is no need to address the

course of dealings between the parties in order to determine how they come to the

court, whether judicial intervention is necessary and, if so, what relief ought to be

granted.

3. Opinion Evidence

[26] The Minister objects to the admissibility of opinion evidence in the affidavits. I

address that objection by taking the approach described in British Columbia(Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd. ,

2009 BCSC 322 at paras. 140-141, where Davies J. held:

It is "[a] basic tenet of our law ... that the usual witness may not give opinionevidence, but testify only to facts within his knowledge, observation andexperience": R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 49.

There are, however, two very significant exceptions to that basic rule ofevidence. The first is the expert opinion exception, where an expert may givean opinion based on any combination of facts personally observed and thoseobserved by others: R. v. Lavallee, [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97.The second is the "lay opinion" exception articulated in R. v. Graat, [1982] 2S.C.R. 819, 2 C.C.C. (3d) 365 at para. 49.

[27] In my view, almost all the Ministers objections to opinion evidence are

without foundation. Most of the opinion evidence to which the Minister objects is

evidence of observations of the deponent that are summarized, as observations

often are, with adjectives commonly used and understood. Opinion evidence is not

admissible if it usurps the courts function, but conclusions drawn from observations

that lay people make in everyday life are admissible. In R. v. Graat, [1982] 2 S.C.R.819 at 835, the Supreme Court of Canada held that lay opinion with respect to the

condition of things, whether, for example, they are worn, shabby, used or new is

admissible. So, in the case at bar, the evidence of lay witnesses that buildings

appear to be well-maintained is admissible as evidence the buildings do not appear


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to be dirty or in a condition of disrepair. Evidence that a school does not appear to

be crowded is admissible as evidence that the number of students and teachers is

low in comparison with the available space. It is unnecessary for a lay person

swearing an affidavit to measure the available area observed and count the number

of persons present. That is particularly the case where the lay person is saying that

one facility is less crowded than another. In this case, parents who have had

children attending both Rose-des-vents and another school can testify that one

school or the other is less crowded. Similarly, I will receive their evidence that one

school is better-maintained or has a larger school yard, or even appears to be more

beautiful than another.

[28] The petitioners say rights-holders have been unhappy with the state of

facilities and arrangements for transportation and for that reason some have

withdrawn their children from the school. The Minister says the petitioners must

show both that the facilities are inadequate and that such inadequacy adversely

affects the quality of the education offered at Rose-des-vents. The parents say they

must show that the facilities are inadequate to put the Francophone school on an

equal footing with the majority-language schools. They do not accept that it lies

upon them to address academic outcomes. What is of foremost importance to the

petitioners is enrollment. The parents subjective assessment of the quality of

facilities at Rose-des-vents in comparison with competing schools may inform their

decisions whether to avail themselves of their constitutional rights and, thus,

contribute to or reduce assimilation. Subjective assessments of the quality of the

facilities offered at Rose-des-vents and other schools are relevant to that question

and admissible evidence.

4. Argument

[29] The objection to passages that are said to be argument is, in this case, rarely

well-founded. It is occasionally helpful to have summary paragraphs in lengthy

affidavits describing the purpose for which evidence is being led so as to appreciate

the evidence in context. It is occasionally necessary to refer to the evidence of other

affiants so as to explain why it is not being repeated. There are passages in the


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affidavits of all parties that may be regarded as argument, but few of them, in my

view, are so argumentative that they should be struck.

5. Evidence Lacking Foundation

[30] There is one common statement in the petitioners affidavits and those of the

CSF that appears to be made without foundation. Most affiants, after describing an

inadequacy in the facility at Rose-des-vents, make the bald statement that no such

inadequacies affect the Anglophone schools of the VSB. In some cases, the affiants

have some experience or personal familiarity with the Anglophone schools. In those

cases, they may have described sufficient contact with the Anglophone schools to

be in a position to say that schools with which they are familiar do not have the

inadequacies attributed to Rose-des-vents. Where the teachers depose to nofamiliarity with the Anglophone schools of the VSB, those statements are made

without foundation and are inadmissible.

[31] The remaining objections to statements founded upon the view they are made

without foundation are unjustified. For example, in the affidavit of Luc Morin dated

May 13, 2010, at para. 37, he states:

... [I]t appears obvious from a map containing Vancouver elementary schools

that almost all VSB students live within one kilometre of an English languageprimary school, and can therefore walk to school. I have attached to thisaffidavit as Exhibit E a copy of a map that contains Vancouver schools.

[32] According to the Minister, that evidence is an assertion made without

foundation. However, the exhibit illustrates the location of the schools and appears

clearly to be foundation for the statement that almost all VSB students live within one

kilometre of an Anglophone primary school, simply because no VSB schools appear

to be more than two kilometres apart. The statement that its students can therefore

walk to school is an inference than can fairly be drawn from the maps.

6. Conclusion

[33] In weighing the objections founded on relevance, opinion and argument, I

seek to ensure that no reliable and cogent evidence is ignored. Admitting evidence


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liberally will not work an injustice in this case. This is not a case where there are

serious credibility issues. No significant effort has been made to contradict or

impeach the testimony of any deponents. Prior to the hearing of the petition, the

parties conducted such examinations of affiants under oath as they considered

necessary. The affidavits of all parties contain similar statements of opinion;

passages that might be regarded as argumentative; evidence that relates to

responsibility for the alleged shortcomings of the facilities; and remedial efforts to

address inadequacies.

[34] In summary, I am of the view that there is little in the affidavit evidence that

ought to be redacted from the record. I have before me sufficient evidence

constituting the factual matrix upon which this judgment may be rendered.

II. EVIDENCE

A. Affidavits of the Petitioners and the CSF

[35] The CSF did not dispute the petitioners allegation that the facilities at Rose-

des-vents are inadequate to meet the needs of the current and reasonably

anticipated enrolment. The petitioners case is founded in part upon evidence led by

the CSF and I therefore summarize the evidence of the petitioners and the CSF

collectively.

[36] The record includes affidavits sworn by a number of administrators: the

superintendent, deputy superintendent and secretary treasurer of the CSF, the

present and former principals and vice principals of Rose-des-vents and Jules

Verne, the CSF District Principal of Special Education, the coordinator of the Early

Childhood Education Network, the president of the board of the daycare (Lle aux

enfants), and the president of the before-and-after-school program (Les Copains).

[37] Affidavits have been sworn by many present and former teachers, the

librarian, and the school secretary.

[38] Affidavits have been sworn by parents who currently have children at Rose-

des-vents, parents who have formerly had children at the school but have withdrawn


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them, and rights-holders who have chosen not to enrol their children at Rose-des-

vents.

[39] Affidavits have also been sworn by experts and individuals who have

researched specific issues. Angeline Martel inspected 36 VSB Anglophoneelementary schools on February 15-16, 2012, and described their characteristics in

comparison with Rose-des-vents. Dr. Rodrigue Landry is a specialist in educational

psychology and education. He addressed the question of assimilation of the

Francophone minority in Vancouver and estimated the number of rights-holders in

the relevant catchment area. Kelly Grittner is an experienced transportation analyst.

[40] In addition, the petitioners and the CSF led the evidence of Ms. Shannie

Harvey, who visited 24 Anglophone schools in the catchment area in May 2012, with

the intention of describing important points of comparison; Dr. Nicholas Kenny, a

historian who provided evidence of the historical context in which the petition is

brought; Marie-Andre Asselin, the executive director of the Fderation des parents;

and Claudiu Bogdan Chifan, the maintenance manager who measured the size of

the 15 classrooms in the Rose-des-vents building.

1. Numbers

[41] The petitioners say the number of rights-holders in the catchment area cannot

be accurately determined. Statistics Canada data is used by Dr. Landry to conclude

that within the catchment area there are probably 710 elementary aged children

whose parents are Canadian citizens whose first language learned and still

understood is French. This is a reasonably accurate estimate of the number of

children of rights-holders as defined under s. 23(1)(a) of the Charter. Statistics

Canada does not have data on individuals in the catchment area who have received

their primary school instruction in French in Canada, or the number of children of

Canadian citizens who have siblings who have received or are receiving primary or

secondary school instruction in French in Canada. Dr. Landry says that such rights-

holders will amount to some portion of the 2,195 children of Canadian citizens living

in English-speaking households who reported they had some knowledge of French.


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The census indicates there are 320 elementary school age children who speak

French regularly at home whose parents are Canadian citizens with a mother

language other than French. The majority of children who speak French at home in

Vancouver with non-Francophone parents must be French immersion students. On

the whole, in my view, the evidence supports the view that the population from which

Rose-des-vents must draw its students is at least 710 but is unlikely to exceed

1,000.

[42] The enrollment at Rose-des-vents grew from 21 students in 1997 to 344 in

2011. Its enrollment continues to grow. Similarly, the enrollment at the secondary

school, Jules Verne, is growing. It grew from 161 in 2008-09, steadily, to 244 in

2011-2012. Given the growing population at Rose-des-vents, it is likely that the

secondary school enrolment will continue to grow. That growing enrolment, as

noted below, will have some impact upon the space available for Rose-des-vents

students.

[43] There is some evidence that rights-holders have been discouraged from

enrolling their children at Rose-des-vents as a result of the state of its facilities and

the long bus ride that some students must take to get there. There is also some

evidence that when a new facility is built, it will attract and retain additional students.That was the experience at cole Brodeur in Victoria, cole Andr Piolat in North

Vancouver, and cole Anne Hbert in Vancouver. Rose-des-vents is projected to

grow to 360 students by 2012-2013. The petitioners say that if the catchment area

in question were divided into two zones, there would remain a sufficient number of

students in each zone to justify the establishment of two elementary schools. They

say there are several VSB schools west of Main Street with a population between

75-250 students.

2. The Rose-des-vents Facilities

a) The Shared Facility

[44] The petitioners say the facilities afforded to elementary students in Vancouver

are inadequate because they require the elementary students to share a facility with


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the secondary school. The CSF is not opposed in principle to the establishment of

shared K-12 facilities, and in fact is seeking to build more such facilities, but it says

that they only work well if they are purpose-built facilities, permitting the elementary

and secondary students to work on different schedules, use separate washrooms,

and avoid the complete integration that has given rise to the problems described in

the material.

[45] Rose-des-vents was established at the Baillie Street site in 2001. Jules

Verne was constructed from March 2007 to December 2008. It shares a common

site with and is structurally attached to Rose-des-vents. Sharing of the facilities

between the secondary and elementary school on the site was not contemplated

when Jules Verne was planned and built. It was anticipated that Rose-des-vents

would move to another site on completion of Jules Verne. The current configuration

sees significant contact between elementary and secondary school students. Grade

4, 5 and 6 students occupy four classrooms in the Jules Verne side of the building.

They share the secondary schools washroom, workshop and music room. The

secondary school must be traversed by elementary students seeking to use the

shared facilities, particularly the gymnasium. Some parents have objected to the

close interaction between elementary and secondary students, particularly in

washrooms. The parents and in some cases teachers of the elementary school

students feel that they are in an inferior position when it comes to negotiating the

shared use of facilities.

b) Limited Space

[46] Rose-des-vents has a nominal capacity(defined as: number of kindergarten

classes x 20 students + number of elementary school classes x 25 students) of 215

and an operating capacity(defined as: number of classrooms x legislated maximum

enrolment per grade level) of 199 students. Enrollment is currently 344 students.

School enrollment is growing and weighted in favour of the lower grades. The

current kindergarten class is the largest ever. Rose-des-vent uses four classrooms

in the Jules Verne building and two modular classrooms. One modular is used as a

music room. There are two portable classrooms on the site. They are described as


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old, smelly, and uncomfortable. One portable classroom is used for special

education. The other will be used as a classroom this year despite the principals

preference not to place students there for a full day.

[47] The operating and nominal capacity do not take into account temporary spacein portables and modular classrooms on temporary permits. There is evidence that

Jules Verne will need two more classrooms this year and its population is growing.

There is said to be no additional space in the Jules Verne building.

[48] The daycare programme at the school, Lle aux enfants, has a very limited

capacity due to space constraints. It can accept four children under 36 months of

age, and eight children between 3 and 5 years of age. There are ninety names on

the wait list for that daycare. Of the 344 students at Rose-des-vents, over 100 use

the Les Copains after school program. That programme is situated in the school

gymnasium. There is a waiting list for the program.

[49] Because of the space pressure of the building, the CSF has now made

arrangements to rent the basement of the Oakridge Seventh Day Adventist Church

across Baillie Street from Rose-des-vents as additional classroom space for

secondary school students.

[50] The pre-school and daycare program are regarded by the CSF and the

parents association as essential for the success of the Francophone education

system. The pre-school acts as a feeder for the elementary school. The after-

school program is said to play an important role in the building of a community and

making attendance at the school attractive and possible for parents who live some

distance from the school. Of the students who finish the French pre-school program,

over 80% enter the CSF program.

[51] The Rose-des-vents portion of the conjoined buildings is said to be small.

Hallways are narrow. There are no coat hooks and no room for lockers. There is a

lack of storage space. That is said to have contributed to the spread of lice in

students on occasions when that affliction strikes. The maintenance manager has


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measured the 15 classrooms in the Rose-des-vents building. They range in size

from 36.6 square meters to 87.2 metres. Six of the classrooms are less than 60 m2.

The recommended standard area for classrooms, according to the Ministry of

Education standards, is 75 m2. Only three classrooms meet that standard.

c) Renovation of the Activity Room

[52] Three classrooms, E109, 110 and 112, were created by division of the activity

room in the Rose-des-vents building. Two of these classrooms have no outside

windows. The teachers who work in these classrooms describe them as crowded.

Noise can be heard through the walls of the classrooms. The acoustics are poor.

There is a shortage of electrical outlets. The students in third grade class in Room

110 must exit the building and enter through an exterior door to go to the washroom.It does not have access to an interior hallway.

d) The Library

[53] The library is described as small and inadequate. There are few seating or

work areas. It is smaller than a classroom; it occupies 57.1 m2. The librarian says

the school should have a library of 110 m2. Size constraints limit the number of

books that can be kept on hand and prevent students from doing research in groups

or studying research methods in the library.

e) The Gymnasium

[54] A large new gymnasium constructed as part of the Jules Verne building is

shared by the elementary and secondary students. The gymnasium can be divided

by a curtain into sections. Because the gymnasium is used for the after school

program, it is not available to elementary students for extracurricular sports. There

are conflicts between elementary and secondary school uses. The teachers

complain that access to the gymnasium is limited. The purposes for which it can be

used are also limited because the secondary school will not permit it to be used for

activities, such as book fairs, that might adversely affect the gyms floor surface.


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f) Washrooms

[55] There are an inadequate number of washrooms in the school. There are nine

bathroom stalls and two urinals in the Rose-des-vents side of the structure. There

are frequent line-ups for the washrooms. There are no washrooms in the portable or

the modular structures. Elementary school students in the Jules Verne classrooms

share washrooms with secondary school students in that portion of the joined

buildings. Parents and teachers are concerned that young students are thereby

exposed to inappropriate conduct and language.

g) Exterior Space

[56] The exterior playing space has been impinged upon by the presence of

portable and modular structures. The outdoor play space is divided into three smallareas. There is no field area that can accommodate soccer or baseball games.

Recess has been taken in shifts. Arrangements have been made to use a

neighbouring park, but because it is across the street additional supervision is

required during its use. Excluding the newly rented space in the adjacent park, the

playing field area does not meet Ministry standards of one hectare for a school of

this size.

3. Evidence of Insufficiency in Fact

[57] There have been parents who have decided not to enroll their children after

looking at the facilities. The Minister acknowledges that Rose-des-vents is operating

over capacity. Pascale-Sara Frenette is a rights-holder who deposes that she has

enrolled her child in a VSB school because of perceived deficiencies in the Rose-

des-vents building, specifically narrow hallways, a disorganized layout, noisy

classrooms, a tiny library, and limited outdoor space. Paul Rostagno is a rights-

holder who withdrew his children from Rose-des-vents because he was unhappywith the cramped facilities. Steven Fedder is a rights-holder who removed his

daughters from Rose-des-vents because the school was too integrated with the

secondary school. Similarly, Bernie Hadley-Beauregard is a rights-holder who

withdrew his children from Rose-des-vents because of problems associated with the


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close integration of the primary and secondary school students. Nadine Cahan is a

rights-holder who withdrew her children this year because Rose-des-vents is

overcrowded and its facilities are inadequate.

4. Comparable Majority Language Facilities

[58] I place no weight upon the evidence of witnesses who deposed that to the

best of their knowledge majority language schools in Vancouver do not have the

problems and restrictions they describe at Rose-des-vents. That evidence is of no

value without a description of their familiarity with the Anglophone schools and the

basis for their comparison.

[59] On the other hand, there is a substantial record describing the VSB

elementary schools in the catchment area. Almost without exception, the

Anglophone schools are described as more attractive and aesthetically pleasing,

larger and more functional than Rose-des-vents. All except one are said to have

ample playgrounds. Most have large libraries. Most have classrooms that can be

used for multiple or flexible purposes. Almost all schools have larger hallways and

many have lockers in the hallways. Almost all have classrooms that are described

as more spacious than those afforded to the Rose-des-vents students. Those that

have small classrooms, such as Dr. Annie B. Jamieson School, have multipurposerooms or spare classrooms and large libraries.

[60] No VSB elementary schools, however, are said to have a gymnasium larger

than the half gymnasium that is available to Rose-des-vents students.

[61] Although counsel for the Minister took exception to the description of some

schools as imposing and some facilities as grandiose or convivial, aesthetically

pleasing and inviting, there was no challenge generally to the evidence that as arule the Anglophone schools in the catchment area are larger, with larger

classrooms, larger and better playing fields, and more spacious libraries. First

person comparisons of some of the schools were made by Angeline Martel, Shannie

Harvey, Michele Marsan, Stphane Lebhian, Rejean Gosselin, Steven Fedder,

Isabeau Iqbal, Luc Morin, Marie-Christing Pelletier, and Nadine Cahan.


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5. Transportation & Accessibility

[62] The transportation for the CSF in Vancouver is provided by a contractor,

Thirdwave. The contractors services are purchased and supervised by Ms. Grittner,

the CSFs transportation consultant. Of the 344 students at Rose-des-vents, 293

are transported to school by bus. None of those students live within the one

kilometer walk limit. There are 16 bus routes. Last year the longest one way trip

took 48 minutes. This year the longest ride is the 45 minute ride of a grade 1

student. That time does not include waiting times at the designated pick up points or

the walk from home to the bus stop. A large majority (67%) of the students spend

over 30 minutes per bus trip. Because the elementary and secondary schools run

on different schedules, but the bus serves both schools, elementary students must

wait for the end of the secondary school day and leave school 20 minutes after their

classes end, lengthening their time away from home. Most VSB students live within

one kilometre of their schools.

[63] There is evidence that long transportation times have affected enrolment at

Rose-des-vents. Paul Rostagno withdrew his children from Rose-des-vents in part

because he was unhappy with the long bus rides to school. Steven Fedder removed

his daughters from Rose-des-vents after three years because transportation was too

onerous. Isabeau Iqbal removed her daughter from Rose-des-vents after three

years because of long bus rides. Marie-Christine Pelletier withdrew her two children

from Rose-des-vents after a year because their bus ride, taking 60 minutes each

way, was too long. Quynh Doan and Phillippe Le Billon are rights-holders who did

not enroll their children in Rose-des-vents because the bus ride would have been

too long for them. Luce Lafontaine is a rights-holder who is considering withdrawing

her son from the school because of a bus ride that takes one hour each way.

Pascale de Kerckhove is a rights-holder who says that her children have to be at thebus stop 65 minutes before the start of the scheduled school day.

B. Affidavits of the Minister of Education

[64] The Minister has led the affidavit evidence of the Assistant Deputy Minister of

the Resource Management Branch of the Ministry of Education (with respect to


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educational standards and the extent to which Rose-des-vents meets those

standards); the chief information officer of the Ministry of Education; the manager of

capital information and data; a planning officer with the Capital Management Branch

of the Ministry of Education, and the Manager of the Learning Division of the Ministry

of Education; and Susan Anson, the General Manager of VFA Canada, a capital

asset manager (with respect to the VFA assessment of the Ministrys public

education facilities).

[65] The Minister has also led the evidence of a number of superintendents of

school districts in the Province, the Deputy Superintendent of schools for the VSB,

and the secretary treasurer of the Surrey School District.

[66] Keith Miller, Assistant Deputy Minister of the Resource Management Branch,

provides the court with valuable statistical information with respect to the resources

available to the CSF and the facilities afforded to the students at Rose-des-vents.

The CSF is one of six (out of more than sixty) school districts experiencing growth in

its enrolment. Mr. Miller calculates Rose-des-vents capacity utilization at 154.4%.

Taking into account modifications to the multi-use activity room and the classrooms

used in Jules Verne, capacity utilization decreases to 112.3%. Jules Verne is said to

have capacity utilization of 70%. That assessment of capacity utilization assumesthat classes now used for daycare or pre-school uses are available as classrooms. It

therefore understates actual capacity utilization.

[67] According to Mr. Miller, 38 of the 119 VSB facilities had capacity utilization

over 100%. Twenty-seven had a capacity enrolment over 110%, and three were

over 150% (one of those, lcole Bilingue, had 432 students in a school with an

operating capacity of 232; Sir James Douglas Annex had 133 students in a school

with an operational capacity of 88; and Tyee Elementary had 178 students in aschool with an operational capacity of 93). Two of the relatively overcrowded

schools were, therefore, small annexes. The average utilization rate of VSB schools

was 87.7%. It is of note that this estimate of capacity utilization is insensitive to


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classroom size or shape. Capacity utilization is not a description of the space

available per student.

[68] Ken Frith, the manager of capital information and data of the Ministry of

Education, and Susan Anson, the General Manager of VFA Canada, describe theProvinces use of a facility condition index (FCI) to assess the state of repair of

Ministry-owned facilities. The FCI is the ratio between anticipated repair costs and

the total capital value of the structure surveyed. Schools with a high FCI require

more significant capital expenditures than schools with a low FCI. The FCI survey is

conducted by a mechanical engineer, an electrical engineer, and a structural

engineer. The FCI is therefore a useful measure of the structural condition of the

facilities. It does not assess their fitness for educational purposes. The average FCI

of elementary schools in Vancouver in January 2012 was 0.42. The FCI for Rose-

des-vents was 0.35. It is less in need of repair than the average Vancouver

elementary school.

[69] Brent Munroe, Manager of the Learning Division of the Ministry of Education,

deposes to information in the hands of the Ministry with respect to average class

sizes, academic achievement, and student and parent satisfaction surveys. The

data establishes that class sizes (number of students per classroom, not classroomdimensions) at Rose-des-vents are within the average of elementary schools in

Vancouver (although on the high side); academic performance is comparable to

performance at Dr. Annie B. Jamieson, the nearest VSB school (although that is the

only Mandarin immersion school in the VSB and, like most immersion schools, may

be said to attract a highly motivated students); parental satisfaction with learning at

Rose-des-vents is generally good but has diminished annually since 2006.

Satisfaction with participation in activities outside of school is low (25%). A large

proportion of respondents (82%) sought more arts, sports and athletics programs in

school. In general, according to the survey results, parents at Rose-des-vents were

about as satisfied with their childrens academic programs as were parents at

Dr. Annie B. Jamieson.


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[70] Jordan Tinney is the Deputy Superintendant of schools for the VSB. He

describes the instruction and facilities afforded to the 29,000 elementary school

children in the district. Like Mr. Miller, he speaks to capacity utilization. His figures

are similar but not identical. He says thirty schools are over 100% capacity. Nine

have a capacity utilization of over 110%. The school with the highest enrolment over

capacity is lcole Bilingue. Overcrowding generally is most significant in French

immersion schools. There is apparently strong demand for French-language

education.

[71] Mr. Tinney described structural concerns of the VSB with respect to the VSB

schools. There are serious concerns with respect to seismic and air quality issues.

The board has concerns with respect to asbestos, lead and other contaminants on

school property. Mr. Tinney, like Mr. Frith, says there is a significant need for

structural work at VSB schools.

[72] It is Mr. Tinneys evidence that it is not uncommon for schools to have a split

gymnasium. None of the 17 annex schools have gymnasiums. Because they are

usually schools for children in the early elementary grades, they have activity rooms.

Mr. Tinney says VSB schools are generally not closed when enrollment declines, but

are kept open as long as possible because it is recognized that they are the heartand soul of the community.

[73] Wayne Noye is the secretary treasurer of the Surrey School District. It is a

very fast growing district that operates 100 elementary schools with over 38,000

students. There is significant overcrowding in some schools. Typically elementary

schools in Surrey do not have specialized classrooms. Specialized courses and

programs are accommodated in portables. Only where space is available is it rented

to pre-schools or daycares. Gymnasiums are often shared, and 25 elementaryschools have no playing fields and lease city playing fields.

[74] According to Mr. Tinney and Mr. Noye few students in the Lower Mainland

are transported by bus to school.


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[75] The Minister has adduced the evidence of a number of superintendents of

rural school districts. Theresa Downs is the superintendant of the Gold Trail School

District. It is a rural district with declining population. Some students in the district

travel for more than an hour to get to school. The district operates two K-12 schools,

only one of which was purpose -built for that role. Larry Espe is the superintendant

of schools for the Peace River North School District. It is also a rural district, serving

over 5,000 students. It operates three two-room rural schools and four K-12

schools. Interaction between students at those schools is endorsed and

encouraged. All of its in-town schools are crowded. None have what he considers

to be adequate gymnasium space. All the schools are described as the absolute

hub of their respective communities. Jeff Hopkins is the superintendant of schools

for the Gulf Islands School District. It operates eleven schools, three of which areelementary schools and five of which are K-12 schools. Because of very long travel

times between the Gulf Islands, the school has a modified week offering classes four

days per week. The K-12 programme is described as positive and well received.

Nancy Wells is the superintendant of Coast Mountain School District, centred in

Terrace. It is roughly the size of Finland and has 5,500 students in 22 schools, one

of which, the 79 student Bear Valley School in Stewart, is a K-12 school.

Transportation throughout the district is problematic.

[76] In addition to relying upon that evidence, the Minister adduced the evidence

produced by the CSF that it has sought to build new K-12 schools. The CSFs

transportation policy seeks to limit transportation times to 45 minutes in each

direction, suggesting that travel times up to 45 minus are acceptable. The CSF

acknowledges there is no concern with respect to the quality of instruction at its

schools. It has remedied some of the concerns with respect to school and play

space at Rose-des-vents by receiving three modular units in the 2011-2012 schoolyear, and by leasing the adjacent park space at Oak Street and 37 th Avenue.

III. APPLICABLE LAW

[77] The remedial nature of s. 23 of the Charterhas beenclearly identified since

its earliest consideration by the Supreme Court of Canada in Quebec (Attorney


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General) v. Quebec Assn. of Protestant School Boards , [1984] 2 S.C.R. 66. The

Court there held, at 79:

... Rightly or wrongly,--and it is not for the courts to decide,--the framers of theConstitution manifestly regarded as inadequate some-- and perhaps all--of

the regimes in force at the time the Charterwas enacted, and their intentionwas to remedy the perceived defects of these regimes by uniform correctivemeasures, namely those contained in s. 23 of the Charter, which were at thesame time given the status of a constitutional guarantee. ...

[78] The judicial description of the substance of the rights afforded to individuals

by s. 23 was developed in Marchand v. Simcoe County Board of Education et al.

(1986), 55 O.R. (2d) 638 (H.C.J.) [Marchand No. 1] and (1987), 61 O.R. (2d) 651

(H.C.J.) by Sirois J. The plaintiff sought a declaration that the number of children in

or near Penetanguishene was sufficient to warrant the provision of French-languageinstruction and facilities out of public funds, and a mandatory order requiring the

local school board to provide facilities and funding necessary to achieve an

equivalent level of instruction to that afforded to Anglophone secondary students.

The proceedings there, like those before me, were commenced with a view to

obtaining a declaration that the facilities provided to the minority rights-holders were

not equivalent to those afforded to the majority, and a declaration that their numbers

warranted better facilities. The facilities were said to be inadequate because of the

absence of shops classes, an inadequate gymnasium and poor science facilities.

The court received evidence from educators regarding the effect of the inadequate

facilities on enrolment at the school, and the fact that parents had been discouraged

from registering their children. There was no real issue with the numbers. The court

was easily satisfied that the number of potential students was sufficient to justify at

least one first class high school facility (at 654). The Board of Education

acknowledged the minoritys numbers clearly warranted some facility--there was an

existing school--but argued they did not warrant the specific programs underconsideration. In response to that argument, Sirois J. held, at 655:

... If the framers of that Charter had meant that at each turn the minorityshould meet another numbers test they would have said so. In s. 23 theymentioned only a test for para. (a) instruction and para. (b) facilities ....[Italics in original.]


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[79] The court went on to note that the quality of the education of the minority

must be equal to the majority (at 655), citing the decision of the Ontario Court of

Appeal in Reference re Education Act of Ontario and Minority Language Education

Rights (1984), 47 O.R. (2d) 1 at 43 [Referencere Education Act of Ontario], as

follows:

... The rights conferred by this section with respect to minority languagefacilities impose a duty on the Legislature to provide for educational facilitieswhich, viewed objectively, can be said to be of or appertain to the linguisticminority in that they can be regarded as part and parcel of the minority'ssocial and cultural fabric. The quality of education to be provided to theminority is to be on a basis of equality with the majority.

[80] After reviewing the case law, the court held, at 660:

From the clear language of those ... cases the plaintiff is entitled to beprovided out of public funds for an education in French to his children. Thatmeans the sameeducation as is given the majority but in the other officiallanguage. This is to be a full and complete education not a limited, partial ortruncated one, which necessarily would be an inferior education, a secondclass one.

The costs of education to the majority is a relevant factor too, but not to alesser extent nor a greater extent than for the minority. It is equally a limitingfactor for both groups.

As long as the education provided to the minority is equivalent to thatprovided to the majority, then the constitutional rights of the minority can be

said to have been respected.[Italics in original.]

[81] Means of addressing s. 23 claims were elaborated upon in Lavoie v. Nova

Scotia (Attorney General) (1988), 84 N.S.R. (2d) 387 (S.C., T.D.) [Lavoie No. 1];

Lavoie No. 2; and (1989), 91 N.S.R. (2d) 184 (C.A.). In the first of these decisions,

the learned trial judge found the evidence to be inadequate to permit him to

determine whether the number of children in the relevant area warranted instruction

or facilities. The court ordered the collection of further data.

[82] When the case returned to the court later that year, it was as a challenge to

the designation of a location for a minority Francophone school. The parents

contended that very young children would have to make long bus rides to attend

school (a complaint similar to that before me) and they were unwilling to have their


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elementary school children mix with secondary school children (again, a similar

complaint to that made by the petitioners). The court granted a declaration that the

site chosen was inappropriate on the following basis, at paras. 37-39:

Sending elementary school children on bus trips of thirty to forty-five minuteseach way, when it is not necessary, is unreasonable if appropriate prioritiesare kept in mind. The priority that cannot be swept under the rug is the rightof Canadian citizens in the minority language group to have their childreninstructed in their own language if numbers warrant the provision of suchinstruction and facilities.

A facility for elementary school children cannot be considered to bereasonably accessible if it is located miles away from the main geographicarea where the majority of the students who would be attending the schoollive if there are facilities available in the vicinity of the students' residences....

It is implicit in the s. 23 Charterright that a facility for minority languageinstruction be reasonably accessible. ...

[83] When the case came before the Nova Scotia Court of Appeal in 1989, the

court had before it a specific proposal for an elementary school at a particular

location and evidence that enrolment would be low at that location. The court

described the role of government in relation to the provision of minority language

education in the following terms, at para. 38, quoting favourably from the Ontario

Court of Appeal in Referencere Education Act of Ontario:

The discretion that may be exercised pursuant to its (Charter) provisions islimited to one issue: looked at objectively, is the number of children ofqualified parents sufficient to warrant the establishment of French languageinstruction or facilities?

[84] The issue raises two questions: whether the numbers are sufficient to warrant

instruction, and whether they are sufficient to warrant facilities. The court noted the

test to be met in addressing the second question is more onerous than that under

the first, and held that, when looked at objectively, 50 children of qualified parents is

a number sufficient to warrant the provision of instruction, but not facilities.

[85] Numerous cases before and since have established that the numbers

warrant test cannot be reduced to a formula. The instruction or facilities that may

be warranted by a certain number of students is dictated, first, by pedagogical


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considerations, and second, by costs. In most cases, pedagogical considerations,

rather than costs, will dictate minimum class and school sizes.

[86] Minority language rights were comprehensively considered by the Supreme

Court of Canada in Mahe v. Alberta, [1990] 1 S.C.R. 342 [Mahe]. The issue at stakein that case was the extent to which s. 23 confers upon minority communities the

right to manage and control their own instruction and facilities. Mahe, as the first

consideration of s. 23 in detail by the Supreme Court of Canada, established basic

principles of interpretation that have coloured the subsequent consideration of the

Charterguarantee of minority-language education rights. In Mahe, s. 23 was

described as a lynchpin of this nations commitment to the values of bilingualism and

biculturalism. The purpose of s. 23 was held to be the preservation and promotion

of the two official languages of Canada and their respective cultures. Its remedial

purpose is to correct the progressive erosion of minority official language groups. It

establishes a right measured by a sliding scale, described in the following terms, at

366:

... The idea of a sliding scale is simply that s. 23 guarantees whatever typeand level of rights and services is appropriate in order to provide minoritylanguage instruction for the particular number of students involved.

[87] Language rights guaranteed by the Charterstand alone. In Mahe, it was held

it was not necessary to read s. 23 together with s. 15 or s. 27 of the Charter

because, as the Court stated, at 369:

... Section 23 provides a comprehensive code for minority languageeducational rights; it has its own internal qualifications and its own method ofinternal balancing. ...

[88] The reference point to fix on the sliding scale the nature of instruction and

facilities that must be provided to fulfil the guarantee enshrined in s. 23 is normallythe number of students actually receiving minority language education in the area in

question. However, the Court in Mahe recognized that where minority language

schools are being established, governments should project likely attendance. When

doing so they should give consideration to those factors that would equally be

considered in relation to the start up of majority language schools, including the fact


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that the establishment of a new facility will ordinarily produce increased demand for

the instruction it provides. Dickson C.J.C. stated, at 384:

... [T]he relevant figure for s. 23 purposes is the number of persons who willeventually take advantage of the contemplated programme or facility. It will

normally be impossible to know this figure exactly, yet it can be roughlyestimated by considering the parameters within which it must fall....

[89] The inquiry into the nature of the facilities warranted by the number of

minority language students must be informed by the purpose of s. 23, which is to

establish minority language education as a bulwark against assimilation. The

Supreme Court of Canada in Mahe clearly noted that the Charteris not intended to

preserve the status quo. I bear that in mind in addressing the argument made by the

Minister in the case at bar that the first inquiry ought to be whether existing facilities

are satisfactory to serve the students who are now enrolled.

[90] The interpretive principles described in Mahe were restated by the Supreme

Court of Canada in Reference re Public Schools Act (Man.), s. 79(3), (4) and (7),

[1993] 1 S.C.R. 839 [Reference re Public Schools Act (Man.)]. In that case, Lamer

C.J.C., writing for the Court, described them as follows:

1. First, courts should take a purposive approach to the application of

s. 23;

2. Second, the rights guaranteed by s. 23 should be considered to have a

remedial intention;

3. Third, language rights should be recognized as a fundamentally

different class of rights, created by political compromise and

fundamental to the national character. Because they are created by a

political compromise, their nature has been defined by the Charter, and

the court should be cautious not to read into or read out of the Charter

rights which are not there described, but should breathe life into those

rights which are created by s. 23;


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4. Fourth, the language rights described in the Charterdo not create a

right to a particular legislative scheme, but a right to a type of

educational system.

[91] Two principles underlined in the Reference re Public Schools Act (Man.) caseare particularly noteworthy in the case at bar. First, the Court emphasized the

importance of looking at the number of students who will eventually take advantage

of the contemplated program when setting the case on the sliding scale. Second,

the Court underlined that minority language rights are granted to parents individually

and the entitlement is not subject to the will of the majority among the group of

rights-holders. The latter principle is relevant to the Ministers argument that

deference to the CSF should preclude this Court from passing judgment upon the

adequacy of the instruction and facilities afforded to the petitioners children.

[92] These principles were tested and applied in Conseil des coles Spars

Catholiques Romaines de Dufferin et Peel v. Ontario (Ministre de l'ducation et de la

Formation) (1996), 30 O.R. (3d) 681 (Div. Ct.), affd (1996), 30 O.R. (3d) 686 (C.A.)

[Dufferin et Peel]. In that case, a moratorium on new capital projects imposed by the

Ontario Ministry of Education was challenged by s. 23 rights-holders. The plaintiffs

there, as here, acted on behalf of all s. 23 rights-holders living within the area inquestion (the municipality of Peel). The Ministry of Education acknowledged the

facilities available to Francophone students in the municipality were not reasonably

equivalent to the facilities provided to Anglophone students but sought to defend the

governments unfettered right to suspend capital expenditures. The Divisional Court

held the financial imperatives that resulted in the Ministrys moratorium could not

stand as a bar to the provision of services guaranteed by s. 23. In doing so, the

court adopted, at 685, the words of Sirois J. from Marchand No. 1 as follows:

The framers must be taken to have intended the natural, normal andforeseeable financial consequence of their agreeing to the new Constitutionin late 1981 and its proclamation in force on April 17, 1982.

[93] Having committed, without reservation, to providing instruction and facilities to

minority language students where numbers warrant, governments cannot say limited


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financial means compel them to avoid that constitutional commitment. The Court of

Appeal upheld the decision of the Divisional Court, at 687:

... Il est vident que l'imposition du moratoire n'a pas le meme impact sur lamajorit qu'il a sur la minorit. La majorit a de nombreuses coles tandis

que la minorit a une partie d'une cole qu'elle risque de perdre. Lemoratoire risque d'avoir des effets catastrophiques sur l'avenir de l'coleSainte-Famille et sur l'avenir de la minorit linguistique de Dufferin et de Peel.D'aprs les faits qui ne sont pas en dispute, il y a un risque de perteirrparable. ...

(It is apparent that the imposition of the moratorium does not have the sameimpact upon the majority that it has upon the minority. The majority hasmany schools while the minority has part of one school that it stands to lose.The moratorium may catastrophically affect the future of cole Sainte-Familleand the future of the linguistic minority of Dufferin and Peel. On theundisputed facts, there is a risk of irreparable harm. ...) [My translation.]

[94] The decision in that case reflects the view that the perpetuation of the status

quo and failure to recognize and give effect to the remedial purpose of s. 23 may

cause irreparable harm to linguistic minorities. That approach to s. 23 is reinforced

in the decision of the Supreme Court of Canada inArsenault-Cameron v. Prince

Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3 [Arsenault-Cameron]. The Court

again emphasized the remedial intent of the section and underlined that it is not

meant to reinforce the status quo but, at para. 31:

... Section 23 is premised on the fact that substantive equality requires thatofficial language minorities be treated differently, if necessary, according totheir particular circumstances and needs, in order to provide them with astandard of education equivalent to that of the official language majority. ...

[95] The Court also restated with approval the method of estimating the number of

rights-holders that had been adopted in previous jurisprudence, holding, at para. 32:

... The relevant number is the number who will potentially take advantage ofthe service, which can be roughly estimated as being somewhere between

the known demand and the total number of persons who could potentiallytake advantage of the service....

[96] The Court held the Prince Edward Island Court of Appeal had erred by

looking solely at the actual enrolment or actual demand for the service under

consideration, rather than considering the community and the potential advantage to

that community of the service under consideration. There had been a relatively poor


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assessment of the potential pool of individuals who might take advantage of the

instruction sought by the petitioners. The Supreme Court of Canada noted that the

Province could not avoid its consti

Judge Willcock, re L’Association des parents de l’école Rose-des-vents v. Conseil scolaire...

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