Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21 (Constitutional law — Charter of Rights — Minority language educational rights — Substantive equality — Procedural fairness)

On appeal from the judgment of the Court of Appeal for British Columbia (2013 BCCA 407) dated September 20, 2013.

L’école élémentaire Rose‑des‑vents (“RDV”) is the only publicly‑funded French‑language elementary school for children living west of Main Street in the city of Vancouver. The school is overcrowded and enrollment is growing. RDV is small and the classrooms are significantly smaller than those in other schools. Some have no windows and only three classrooms meet the recommended size for classrooms. The library is very small, the washrooms are inadequate and there is no available flexible space in the school. Roughly 85 per cent of students attending RDV are transported to school by bus and over two‑thirds of those have bus trips of more than 30 minutes per trip. By contrast, the English‑language schools in RDV’s catchment area are larger, with larger classrooms, larger and better playing fields, and more spacious libraries. Most students attending English‑language schools in the area live within one kilometre of their schools.

In 2010, parents of children attending RDV challenged their school board and the provincial government, seeking a declaration that the educational services made available to their children were not equivalent to those of the English‑language schools in the area and that their minority language education rights under s. 23 of the Charter had been breached. They requested that the legal proceedings be phased so that they could obtain a declaration while leaving the question of responsibility for the alleged inadequacies to a later phase, if necessary. Their hope was that obtaining a declaration would be sufficient to obtain a favourable government response.

The petition judge accepted the request to phase the proceedings, deciding to first assess only whether the children of rights holders were being provided with instruction and facilities equivalent to majority language schools, as guaranteed under s. 23 of the Charter. Prior to undertaking this initial phase of the proceedings, the judge struck certain parts of the province’s pleadings on the grounds that they were not relevant to that phase. At the conclusion of the first phase of the proceedings, the judge issued a declaration that the parents are not being provided the minority language educational facilities guaranteed to them by s. 23 of theCharter. He did not assign responsibility for the failure to meet the constitutional standard. The Court of Appeal allowed the appeal brought by the province. It set aside both the order striking some of the province’s pleadings, and the declaration.

Held (7:0): The appeal should be allowed and the petition judge’s declaration reinstated. The award of special costs issued by the petition judge is restored. The matter should be remitted to the Supreme Court of British Columbia for the next phase of the petition, if necessary. Special costs are awarded to the appellants for the appeal proceedings.

Section 23 of the Charter guarantees a “sliding scale” of minority language education rights. At the upper limit of the sliding scale, rights holders are entitled to full educational facilities that are distinct from, and equivalent to, those found in the schools of the majority language group. The focus in giving effect to s. 23 rights should be on substantive equivalence, not on per capita costs and other markers of formal equivalence. What is paramount is that the educational experience of the children of s. 23 rights holders at the upper end of the sliding scale be of meaningfully similar quality to the educational experience of majority language students.

When assessing substantive equivalence, a purposive approach requires a court to consider the educational choices available from the perspective of s. 23 rights holders. The comparator group that will generally be appropriate for that assessment will be the neighbouring majority language schools that represent a realistic alternative for rights holders. The question to be examined is whether reasonable rights‑holder parents would be deterred from sending their children to a minority language school because it is meaningfully inferior to an available majority language school? If so, the remedial purpose of s. 23 is threatened. If the educational experience, viewed globally, is sufficiently superior in the majority language schools, that fact could undermine the parents’ desire to have their children educated in the minority language, and thus could lead to assimilation.

The comparative exercise must be alive to the varied factors that reasonable parents use to assess equivalence. The exercise is contextual and holistic, accounting for not only physical facilities, but also quality of instruction, educational outcomes, extracurricular activities, and travel times, amongst other factors. Such an approach is similar to the way parents make decisions regarding their children’s education. The extent to which any given factor will represent a live issue in assessing equivalence will be dictated by the circumstances of each case. The relevant factors are considered together in assessing whether the overall educational experience is inferior in a way that could discourage rights holders from enrolling their children in a minority language school. If, on balance, the experience is equivalent, the requirements of s. 23 will be met.

Issues of costs and practicalities are considered in the determination of the level of educational services a group of rights holders is entitled to on the sliding scale. It would undermine that analysis to consider costs and practicalities again, after the appropriate level of educational services has already been determined. Accordingly, it is not appropriate for provincial or territorial governments to invoke issues of practicality or cost as part of the inquiry into equivalence. Costs and practicalities may, however, be relevant in attempts to justify a breach of s. 23, and in attempts to fashion an appropriate and just remedy for a breach.

In the present case, the petition judge applied the correct test to assess equivalence. He comprehensively and holistically assessed the relevant factors and compared RDV to the English‑language schools in the relevant catchment area in Vancouver. In the determination of overall substantive equivalence, he concluded that the programs offered at RDV were not so superior as to offset its inadequate facilities, overcrowding and long travel times. In his opinion, the disparity between the minority and majority language schools was such as to limit enrolment and contribute to assimilation. There is no error in principle in the petition judge’s analysis.

The declaration issued by the petition judge represents the equivalent of a declaration of a prima facie breach of s. 23, subject to the future determination of responsibility, justification for the breach (if applicable), and positive remedy. Where the children of s. 23 rights holders are entitled to an educational experience equivalent to that of majority language children, there is no difference between a finding of a lack of equivalence and a finding that the rights holders have not received the services to which they are entitled under s. 23. However, since responsibility for the breach has not yet been assigned ― and leaving open the possibility that the responsible party or parties may seek to justify the breach ― it cannot be said that the judge’s declaration constitutes a complete finding of a Charter violation.

Where a proceeding has been formally phased to separate the question of substantive equivalence from other elements of the s. 23 analysis, evidence that does not assist in answering that question would normally not be relevant. Considered from this perspective, the petition judge was entitled to strike the portions of the province’s pleadings as they were not relevant to the inquiry into substantive equivalence.

The judgment of the Court was delivered by Karakatsanis J.

Neutral Citation: 2015 SCC 21. Docket No. 35619

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