Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: B.C. Violated French Education Rights

Lawyer Susan Kootnekoff discusses British Columbia’s only French language school board

Conseil scolaire francophone v B.C.: Part 1

In 2010, British Columbia’s only French language school board, a francophone association and three parents sued the province of British Columbia. They claimed that the province was violating their rights to a French language education under section 23(1) of the Canadian Charter of Rights and Freedoms by underfunding minority language education.

The trial judge awarded them $6 million for lack of transportation to French language schools.

The British Columbia Court of Appeal set aside that award.

Last week, in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, the Supreme Court of Canada reinstated the trial judge’s $6 million award. It also added another $1.1 million for delays in a provincial facilities upgrades grant. The appellants were awarded costs at all levels of courts.

Section 23(1) of the Charter recognizes the right to receive primary and secondary education in English or French, where the numbers of children so warrants. The Court’s decision discusses in some detail how to determine if numbers warrant.

The purpose underlying section 23(1) is to assist French speaking Canadians to maintain their language and culture, and afford them a degree of protection against assimilation.

But Charter rights and freedoms are not absolute. They can be limited to protect other rights or important national values. Any such limit must be justified under section 1 of the Charter.

Under section 1, Charter rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

To demonstrably justify a reasonable limit of a Charter right, the state must show that the objective of the proposed measure is pressing and substantial, and that the means by which the measure is achieved are proportionate. At that stage, further analysis occurs to determine proportionality.

Financial Constraints did not Justify Infringing s. 23

British Columbia argued that limited government budgets justified infringing section 23(1).

The majority of the Supreme Court of Canada was not persuaded. It stated:

The mission of a government is to manage a limited budget in order to address needs that are, for their part, unlimited. This is not a pressing and substantial objective that can justify an infringement of rights and freedoms. Treating this role as such an objective would lead society down a slippery slope and would risk watering down the scope of the Charter.

This passage is significant and may have broader implications in Charter cases generally.

No Immunity from Charter Damages for Government Policies

The decision is also significant for its award of $7.1 million in Charter damages. Up until 2010, Charter damages were largely a curiosity. In the past decade, however, courts have shown a willingness to award them, though they are not to be presumed.

Just 10 years ago, in Vancouver (City) v Ward, the Supreme Court of Canada set out a four-part test to be met before awarding Charter damages:

  1. the claimant must establish a breach of a Charter right;
  2. the claimant must show that damages would serve to compensate, vindicate the right, or deter future breaches;
  3. the state may raise defences to show that damages are inappropriate or unjust; and
  4. The amount of damages is quantified.

In the third step, governments may seek immunity from Charter damages, based on Mackin v New Brunswick. That case held that a government will not generally be liable for damages arising from enforcing a law that is later found to be unconstitutional. This immunity does not apply to conduct that is “clearly wrong, in bad faith or an abuse of power.”

In Conseil, the Court clarified that generally this immunity protects government only from laws later found to be unconstitutional, and does not extend to unconstitutional policies. One reason for this is that laws are created through a “transparent public process that is central to the democratic process.” This includes debate, consultation, and revisions. Policies are less transparent and do not undergo such a process.

In Summary

The Court stated that children of rights holders in the Kelowna area and rights holders living in the catchment area of École Entre‑lacs in Penticton are “entitled to an educational experience that is substantively equivalent to the experience at nearby majority language schools.” For Penticton this means a new elementary and middle school with space for approximately 175 students.

This decision is a welcome development not only for francophones in B.C. and across Canada, but also for those whose Charter rights or freedoms are infringed by public bodies.

Next week, we will look at some implications of this decision.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

If you would like to reach us, we may be reached through our website, at www.inspirelaw.ca.

To report a typo, email:
newstips@kelownacapnews.com
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