Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment)

Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment)
Collection
Supreme Court Judgments
Date
2023-12-08
Neutral citation
2023 SCC 31
Case number
39915
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Northwest Territories
Subjects
Administrative law
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31
Appeal Heard: February 9, 2023 Judgment Rendered: December 8, 2023 Docket: 39915
Between:
Commission scolaire francophone des Territoires du Nord-Ouest and A.B. Appellants
and
Minister of Education, Culture and Employment of the Northwest Territories Respondent
And Between:
Commission scolaire francophone des Territoires du Nord-Ouest, A.B., F.A., T.B., E.S. and J.J. Appellants
and
Minister of Education, Culture and Employment of the Northwest Territories Respondent
- and -
Attorney General of Canada, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of the Yukon Territory, Canadian Francophonie Research Chair on Language Rights, Commissioner of Official Languages of Canada, Fédération nationale des conseils scolaires francophones, Commission nationale des parents francophones, Société de l’Acadie du Nouveau-Brunswick and Yukon Francophone School Board Interveners
Official English Translation
Coram: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 114)
Côté J. (Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Commission scolaire francophone des Territoires du Nord-Ouest and
A.B. Appellants
v.
Minister of Education, Culture and Employment
of the Northwest Territories Respondent
‑ and ‑
Commission scolaire francophone des Territoires du Nord-Ouest,
A.B., F.A., T.B., E.S. and J.J. Appellants
v.
Minister of Education, Culture and Employment
of the Northwest Territories Respondent
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of Manitoba,
Attorney General of the Yukon Territory,
Canadian Francophonie Research Chair on Language Rights,
Commissioner of Official Languages of Canada,
Fédération nationale des conseils scolaires francophones,
Commission nationale des parents francophones,
Société de l’Acadie du Nouveau-Brunswick and
Yukon Francophone School Board Interveners
Indexed as: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment)
2023 SCC 31
File No.: 39915.
2023: February 9; 2023: December 8.
Present: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for the northwest territories
Administrative law — Judicial review — Discretionary administrative decisions engaging Charter protections — Charter values — Territorial ministerial directive allowing categories of parents not holding right to have their children receive instruction in one of two official languages, where it is minority language, to apply to enrol their children in French first language education program — Minister responsible denying applications for enrolment on ground that non‑rights holder parents concerned did not meet conditions for various categories established by directive — Whether Minister had to consider purpose of minority language educational rights guaranteed by Charter in exercising her discretion — Whether decisions made by Minister are reasonable.
Constitutional law — Charter of Rights — Minority language educational rights — Non‑rights holder parents applying to enrol their children in French first language education program in Northwest Territories — Minister responsible denying applications for enrolment — Whether Minister’s decisions engage Charter protections — Canadian Charter of Rights and Freedoms, s. 23 .
Five parents not holding the right guaranteed by s. 23 of the Charter to have their children receive instruction in one of the two official languages, where it is the minority language, applied to the Minister of Education, Culture and Employment of the Northwest Territories (“Minister”) for their children’s admission to a French first language education program. In each case, the Commission scolaire francophone des Territoires du Nord‑Ouest (“CSFTNO”) recommended admission because it would promote the development of the Francophone community of the Northwest Territories. In spite of those recommendations, the Minister denied each of the applications for admission on the ground that the non‑rights holder parents did not meet the conditions established by the ministerial directive on enrolment in French first language education programs, which created categories of eligible non‑rights holders.
The parents and the CSFTNO applied for judicial review. They were successful in the Supreme Court of the Northwest Territories, which set aside the decisions and referred the applications for admission back to the Minister for reconsideration, chiefly because the Minister’s decisions did not reflect a proportionate balancing of the protections conferred by s. 23. However, on appeals by the Minister, the Court of Appeal for the Northwest Territories restored the decisions that had been set aside. The majority of the Court of Appeal found that the Minister was not required to consider s. 23 in exercising her discretion because the parents were not rights holders under this provision.
Held: The appeal should be allowed.
The Minister was required not only to consider s. 23 of the Charter in exercising her discretion to admit the children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories, but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests. The Minister’s decisions had a significant impact on the values enshrined in this provision. It follows from the requirements laid down in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, that those decisions were unreasonable. The Minister attached too much importance to her duty to make consistent decisions and gave disproportionate weight to the cost of the contemplated services in the exercise of her discretion. Given the remedial nature of s. 23, pedagogical requirements had to have more weight. The orders made by the Court of Appeal are therefore set aside.
Under the approach set out in Doré, which governs the judicial review of discretionary administrative decisions that engage the Charter , a reviewing court must first determine whether the decision limits Charter protections. The Doré framework applies not only where an administrative decision directly infringes Charter rights but also where it simply engages a value underlying one or more Charter rights. Charter values are inseparable from Charter rights, which reflect them, and give meaning to these rights. The choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision‑making process of the various branches of government. Administrative decision makers must always consider the values relevant to the exercise of their discretion.
If the discretionary decision limits Charter protections at the first step of the Doré analysis, the reviewing court must then examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them. The focus of judicial review in this context is on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. To be reasonable, a decision must reflect the fact that the decision maker considered the Charter values that were relevant to the exercise of its discretion. It will often be evident that a value is relevant, whether because of the nature of the governing statutory scheme, because the parties raised the value before the administrative decision maker, or because of the link between the value and the matter under consideration. The decision must also show that the decision maker meaningfully addressed the Charter protections to reflect the impact that its decision may have on the concerned group or individual. The standard of reasonableness here requires a robust analysis that works the same justificatory muscles as s. 1 of the Charter . The approach must take into account the role of the courts as guardians of the Constitution and must reflect the particular importance of justification in decisions that engage Charter protections. The prescribed approach requires reviewing courts to inquire into the weight accorded by the decision maker to the relevant considerations in order to assess whether a proportionate balancing was conducted by the decision maker. The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the applicable objectives, beyond simply asking whether the decision falls within a range of reasonable outcomes. In this sense, reasonableness and proportionality become synonymous.
The Minister’s decisions in this case engage the protections of s. 23. First, the values underlying s. 23 are relevant to the exercise of the Minister’s discretion, having regard to the purposes of this provision. This constitutional provision has three purposes: the right to instruction in the minority official language is at once preventive, remedial and unifying in nature. The provision is intended not only to prevent the erosion of official language communities, but also to redress past injustices and promote the development of these communities. This means that the preservation and development of minority language communities are among the values underlying s. 23. Protection of the right to instruction in the minority official language is a reflection of these values, insofar as education is a means of realizing the societal ideal that they embody.
Second, the admission of children of parents who are not rights holders under s. 23 of the Charter can have an impact on the preservation and development of minority language communities. Population growth in the minority language community helps to ensure its development and prevent its decline, including by reducing the likelihood of assimilation and cultural erosion. The admission of children of non‑rights holder parents also contributes to fulfilling the promise of s. 23, which is to give effect to the equal partnership of Canada’s two official language groups in the context of education. It follows that these values are always relevant when the government exercises its discretion to admit children of non‑rights holder parents to minority language schools and that they must therefore always be taken into account, even when there is no direct infringement of the right guaranteed by s. 23.
Here, the values of preservation and development of minority language communities were limited by the Minister’s decisions. Because of their collective dimension, the protections conferred by s. 23 of the Charter must be assessed in light of the unique language dynamics of a province or territory. At the time the Minister made her decisions, there was a positive link between the admission of children of non‑rights holder parents to French‑language schools in the Northwest Territories and the preservation and development of the Francophone community there. The Minister acknowledged, among other things, that the assimilation rate and exogamous marriages were challenges to be overcome for the transmission of the French language within the Francophone community of the Northwest Territories. The admission of the children in question would thus have helped to reduce the likelihood of assimilation and to prevent cultural erosion.
The Minister therefore had to proportionately balance these values with the government’s interests. The reasons for the Minister’s decisions do not show that she truly took into account the constitutional values at stake or that she meaningfully addressed the considerations arising therefrom. Several factors showed that the children’s admission was beneficial for the development of the Francophone community of the Northwest Territories. First, the Minister did not duly consider the fact that the applications for admission were supported by the CSFTNO, a body with the expertise needed to assess the educational needs of the linguistic minority. Second, the Minister also did not duly consider the individual characteristics of each application in relation to the benefits that could result from a decision to grant it. Among other things, each child concerned had a sound knowledge of French, had significant ties to the Francophone community of the Northwest Territories through their parents, and had the support and commitment of their parents in learning that language. A refusal of admission does not always mean that there was a disproportionate balancing, but in this case, the parents’ motivation for applying for their children’s admission was mistakenly reduced to a mere desire to provide the children with a linguistic advantage.
Cases Cited
Applied: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; referred to: Mahe v. Alberta, [1990] 1 S.C.R. 342; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Mahe v. Alberta (1987), 42 D.L.R. (4th) 514; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; R. v. Oakes, [1986] 1 S.C.R. 103; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72; Dr Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Salituro, [1991] 3 S.C.R. 654; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; R. v. McGregor, 2023 SCC 4; Attorney General (Que.) v. Cumming, [1978] 2 S.C.R. 605; R. v. Beaulac, [1999] 1 S.C.R. 768; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 19 , 23 .
Commission scolaire francophone, Territoires du Nord‑Ouest Regulations, N.W.T. Reg. 071-2000 [am. 117-2020], s. 11(1), (2).
Official Languages Act, R.S.N.W.T. 1988, c. O‑1, s. 9(1).
Authors Cited
Daly, Paul. “The Doré Duty: Fundamental Rights in Public Administration” (2023), 101 Can. Bar Rev. 297.
Fox‑Decent, Evan, and Alexander Pless. “The Charter and Administrative Law: Substantive Review”, in Colleen M. Flood and Paul Daly, eds., Administrative Law in Context, 4th ed. Toronto: Emond Montgomery, 2022, 399.
Northwest Territories. Minister of Education, Culture and Employment. Final Report: Review of the Ministerial Directive — Enrolment of Students in French First Language Education Programs, June 30, 2016 (online: https://www.ece.gov.nt.ca/sites/ece/files/resources/ministerial_french_first_directive_-_directive_review.pdf; archived version: https://scc-csc.ca/cso-dce/2023SCC-CSC31_2_eng.pdf).
Northwest Territories. Minister of Education, Culture and Employment. French First Language School Non‑Rights Holder Admission Policy, August 11, 2016 (online: https://www.ece.gov.nt.ca/sites/ece/files/resources/ministerial_french_first_directive_-_non-rights_holder_admission_policy_-_en.pdf; archived version: https://scc-csc.ca/cso-dce/2023SCC-CSC31_1_eng.pdf).
Northwest Territories. Minister of Education, Culture and Employment. Ministerial Directive — Enrolment of Students in French First Language Education Programs, July 7, 2008.
Northwest Territories. Minister of Education, Culture and Employment. Ministerial Directive — Enrolment of Students in French First Language Education Programs (2016), August 11, 2016.
Régimbald, Guy. Canadian Administrative Law, 3rd ed. Toronto: LexisNexis, 2021.
Sossin, Lorne, and Mark Friedman. “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d) 391.
APPEAL from a judgment of the Northwest Territories Court of Appeal (Slatter, Rowbotham and Crighton JJ.A.), 2021 NWTCA 8, 463 D.L.R. (4th) 277, [2021] 12 W.W.R. 133, 90 Admin. L.R. (6th) 90, [2021] N.W.T.J. No. 43 (QL), 2021 CarswellNWT 49 (WL), setting aside two decisions of Rouleau J., 2020 NWTSC 28, [2020] N.W.T.J. no 35 (QL), 2020 CarswellNWT 41 (WL), and 2019 NWTSC 25, 62 Admin. L.R. (6th) 300, [2019] N.W.T.J. no 26 (QL), 2019 CarswellNWT 29 (WL). Appeal allowed.
Perri Ravon, Audrey Mayrand, Mark C. Power and Darius Bossé, for the appellants.
Maxime Faille, Alyssa Tomkins, Paul McKenna and Tristan Joanette, for the respondent.
Ian Demers, for the intervener the Attorney General of Canada.
Manuel Klein and Vicky Samson, for the intervener the Attorney General of Quebec.
Written submissions only by Deborah L. Carlson, for the intervener the Attorney General of Manitoba.
Keith Brown and Lauren Mar, for the intervener the Attorney General of the Yukon Territory.
François Larocque, for the intervener the Canadian Francophonie Research Chair on Language Rights.
Élie Ducharme, for the intervener the Commissioner of Official Languages of Canada.
Roger J. F. Lepage, for the intervener Fédération nationale des conseils scolaires francophones.
David Taylor and Maritza Woël, for the intervener Commission nationale des parents francophones.
Dominic Caron, for the intervener Société de l’Acadie du Nouveau-Brunswick.
Paul Daly, for the intervener the Yukon Francophone School Board.
English version of the judgment of the Court delivered by
Côté J. —
TABLE OF CONTENTS
Paragraph
I. Overview
1
II. Background
10
A. Situation of the Appellant Parents
23
(1) A.B. (Mother of Child W.)
23
(2) F.A. (Mother of Child A.)
29
(3) T.B. (Father of Child V.)
35
(4) E.S. (Mother of Child E.)
38
(5) J.J. (Father of Children T. and N.)
40
III. Judicial History
44
A. Supreme Court of the Northwest Territories, 2019 NWTSC 25 (Rouleau J.)
44
B. Supreme Court of the Northwest Territories, 2020 NWTSC 28 (Rouleau J.)
46
C. Court of Appeal for the Northwest Territories, 2021 NWTCA 8, 463 D.L.R. (4th) 277 (Slatter, Rowbotham and Crighton JJ.A.)
50
(1) Majority Reasons (Slatter and Crighton JJ.A.)
52
(2) Concurring Reasons (Rowbotham J.A.)
55
IV. Issues
58
V. Analysis
59
A. Doré Framework
60
B. The Decisions Engage the Protections of Section 23
75
(1) The Values Underlying Section 23 Are Relevant to the Exercise of the Minister’s Discretion
75
(2) The Minister’s Decisions Have the Effect of Limiting the Values Underlying Section 23
84
C. The Minister Did Not Proportionately Balance the Values Underlying Section 23 With the Government’s Interests
92
D. It Is Neither Necessary nor Appropriate for This Court To Rule on the Allegation That the Right To Use French or the Right To Be Heard Was Infringed
104
VI. Disposition
114
I. Overview
[1] A legal guarantee with unique features, s. 23 of the Canadian Charter of Rights and Freedoms grants a defined category of Canadian citizens the right to have their children receive instruction in one of the two official languages where it is the minority language (Mahe v. Alberta, [1990] 1 S.C.R. 342, at p. 365). The provision has three purposes; it is at once preventive, remedial and unifying (Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 15).
[2] Section 23 has two features that make it stand out from the rest of Canada’s constitutional landscape. First, unlike certain other constitutional provisions that impose only negative obligations, s. 23 imposes positive obligations on the state. This is the case because the very existence of s. 23 “implies the inadequacy of the present regime” (Mahe, at p. 363, quoting Mahe v. Alberta (1987), 42 D.L.R. (4th) 514 (C.A.), at p. 534, per Kerans J.A.; Conseil scolaire francophone de la Colombie‑Britannique, at para. 15). Section 23 is therefore meant to alter the status quo, and its application “will of necessity affect the future of minority language communities” (Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, at para. 23).
[3] Second, s. 23 differs from other provisions of the Charter because of the collective scope of the individual rights it grants (Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at paras. 27 and 29; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23; Solski, at para. 33; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208, at para. 23; Conseil scolaire francophone de la Colombie‑Britannique, at para. 17).
[4] It is important to note that minority language schools play a vital role in fulfilling the promise contained in s. 23 of the Charter , which is to “give effect to the equal partnership of the two official language groups in the context of education” (Arsenault‑Cameron, at para. 26; see also Mahe, at p. 364; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at para. 27). These schools are settings for socialization where the language of minority language communities is passed on and where their culture can be expressed. The preservation and vitality of these educational environments promote the development of the minority language communities they serve (Mahe, at p. 363; Conseil scolaire francophone de la Colombie‑Britannique, at para. 1).
[5] There has been a Francophone presence in the Northwest Territories since the 18th century, but instruction in French has been offered only since 1989 in Yellowknife and since 1998 in Hay River. This appeal is about whether the refusal to admit children of non‑rights holder parents to minority language schools in the Northwest Territories gave due consideration to the protections conferred by s. 23 of the Charter , having regard to the three purposes of this section, which is at once preventive, remedial and unifying in nature.
[6] Five non‑rights holder parents asked the then Minister of Education, Culture and Employment (“Minister”) to exercise her discretion to admit their children to a French first language education program. In each case, the Commission scolaire francophone des Territoires du Nord‑Ouest (“CSFTNO”) recommended admission, essentially because it would promote the development of the Francophone community of the Northwest Territories. It is important to note that the CSFTNO represents the interests of the holders of s. 23 rights, including in their collective aspect. Nevertheless, in spite of the CSFTNO’s recommendations, the Minister denied each of the applications for admission.
[7] The parents and the CSFTNO applied for judicial review. They were successful in the Supreme Court of the Northwest Territories, which set aside the decisions and referred the applications for admission back to the Minister for reconsideration, chiefly because the Minister’s decisions did not reflect a proportionate balancing of the protections conferred by s. 23. However, on appeals by the Minister, the Court of Appeal for the Northwest Territories restored the decisions that had been set aside. The majority of the Court of Appeal found that the Minister was not required to consider s. 23 in exercising her residual discretion given the fact that the appellant parents were not rights holders under this provision. The children of the appellant parents have since been admitted or have ceased residing in the Northwest Territories. However, it remains important for this Court to determine what role, if any, s. 23 had to play in the Minister’s decision‑making process. If this Court does not intervene, it might be argued that governments need not give due consideration to the values reflected in the three purposes of s. 23 when making decisions that affect s. 23 rights holders or that engage this provision.
[8] For the reasons that follow, I conclude that the Minister was required not only to consider the values embodied in s. 23 in exercising her discretion to admit the children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories, but also to conduct a proportionate balancing of these values and the government’s interests. Since she did not do so, I am of the view that the appeal should be allowed and the orders made by the Court of Appeal set aside on the basis of this first ground of appeal.
[9] As a second ground of appeal, the appellants allege that their right to use French, guaranteed to them by s. 19(1) of the Charter and s. 9(1) of the Official Languages Act, R.S.N.W.T. 1988, c. O‑1 (“OLA”), was infringed by the Court of Appeal because they could not be understood by that court without an interpreter. In the alternative, they argue that their right to natural justice was infringed because of the quality of the interpretation services. Given my conclusion on the first ground of appeal, I am of the view that it is neither necessary nor appropriate for me to rule on this second ground.
II. Background
[10] Two public schools offer a French first language education program in the Northwest Territories. The first, École Allain St‑Cyr, was built in 1999 and is located in Yellowknife. The second, École Boréale, was built in 2005 and is located in Hay River.
[11] On July 7, 2008, the Northwest Territories Department of Education, Culture and Employment adopted the Ministerial Directive — Enrolment of Students in French First Language Education Programs (“2008 Directive”) to govern the admission of children of rights holder and non‑rights holder parents to French first language education programs. In the case of children of non‑rights holder parents, the 2008 Directive simply stated that the minister could approve their admission to a French first language education program. However, it said nothing about the basis for making such a decision.
[12] The 2008 Directive remained in force until a new directive was adopted in 2016 further to the Final Report: Review of the Ministerial Directive — Enrolment of Students in French First Language Education Programs prepared on June 30, 2016, by the Department of Education, Culture and Employment (online).
[13] The Report recognizes that “the sustainability of the school and broader community is dependent on the ability to expand” (p. 10). It notes a lack of transparency in the handling of admissions of children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories (p. 17). In addition, the Report points out that natural growth of the rights holder population and the migration of rights holders “may not be sufficient to maintain a level of population sufficient for supporting French first language schools, particularly in Hay River” (p. 20).
[14] To “[a]llow for the sustainment and growth of the French first language communities” (p. 21), the Report therefore recommends that the minister revise the 2008 Directive to allow the admission of the following categories of children of non‑rights holder parents:
(a) Children of parents who would have been rights holders but for their parent’s or grandparent’s lack of opportunity to attend a French first language school,
(b) Those who meet the criteria of section 23 of the Charter but are not Canadian citizens, and
(c) Immigrants to Canada, who upon arrival, do not speak English or French and are enrolling in a Canadian school for the first time . . . .
(p. 21)
[15] The Report also recommends that children of non‑rights holder parents not be admitted to a school of the Francophone minority in the Northwest Territories if enrolment at the school is at or exceeds 85 percent capacity, as per the Northwest Territories Schools Capital Standards and Criteria (p. 21).
[16] On August 11, 2016, the then Minister of Education, Culture and Employment adopted the Ministerial Directive — Enrolment of Students in French First Language Education Programs (2016) (“2016 Directive”) (reproduced in A.R., vol. III, at p. 34). The 2016 Directive stated that the Government of the Northwest Territories is “committed to supporting language and culture revitalization”, an “inherent part” of which is supporting “population growth”. To this end, the 2016 Directive provided for the admission of children of “eligible non‑rights holder parents”.
[17] To be eligible under the 2016 Directive, non‑rights holder parents had to meet the conditions for one of the following streams:
Reacquisition — The parent would have been a rights holder but for his or her lack of opportunity to attend a French first language school or his or her parent’s lack of opportunity to attend a French first language school (i.e. the child’s grandparent);
Non‑citizen francophone — The parent meets the criteria of section 23 of the Canadian Charter of Rights and Freedoms except for the fact that he or she is not a Canadian citizen; or
New immigrant — The parent is an immigrant to Canada, whose child upon arrival, does not speak English or French and is enrolling in a Canadian school for the first time.
[18] An eligible non‑rights holder parent could therefore apply for their child’s admission to a French first language education program managed by the CSFTNO, except where enrolment at the school in question exceeded 85 percent capacity, as per the Schools Capital Standards and Criteria. In such a situation, the 2016 Directive provided that new enrolment was limited to children of rights holder parents until such time as the enrolment numbers dropped below 85 percent capacity.
[19] An eligible non‑rights holder parent wishing to enrol their child in a French first language education program had to provide the school administration with an enrolment form, a statement of eligibility for non‑rights holder parents and official documents in support of the statement. The CSFTNO then verified that all the required documentation had been provided and assessed the child’s language skills and the impact of the proposed admission on the quality and delivery of the education program, using an assessment tool approved by the minister. Following the assessment, the CSFTNO made a recommendation to the minister.
[20] If the CSFTNO recommended denying the application, the unsuccessful parent could submit a written appeal to the minister, who then made a final decision that could not be appealed. If, on the other hand, the CSFTNO recommended that the child be admitted, the minister in turn assessed the admissions file. Approval of enrolment in such a case was based on “whether the correct documentation has been provided in full, the assessment of CSFTNO with respect to language skills, the current capacity of the school and any other relevant considerations” (2016 Directive). The decision was final and could not be appealed.
[21] Also on August 11, 2016, the then Minister of Education, Culture and Employment adopted the French First Language School Non‑Rights Holder Admission Policy (online). The Policy specified how applications for admission were to be transmitted and how the minister’s decisions under the 2016 Directive were to be communicated. It also set out the time within which the minister’s decision had to be communicated and the time limit for appealing a negative recommendation by the CSFTNO.
[22] It should be noted that the 2016 Directive is no longer in force. On August 28, 2020, the Commission scolaire francophone, Territoires du Nord‑Ouest Regulations, N.W.T. Reg. 071‑2000, were amended to introduce a scheme for the admission of children of non‑rights holder parents to a French first language education program that is similar to the scheme in the 2016 Directive but is directly managed by the CSFTNO (Regulations, s. 11(2)). This scheme provides for a new class of eligible children, the “Francophile” category, for children who have at least one parent who is proficient in French (Regulations, s. 11(1)).
A. Situation of the Appellant Parents
(1) A.B. (Mother of Child W.)
[23] On April 9, 2018, A.B. applied for the admission of her child, W., to the preschool program at École Allain St‑Cyr. The application was made in the “New immigrant” stream. A.B. and W.’s father are citizens of the Netherlands who settled in Yellowknife in 2014. W. was born in Canada. At the time of the first application for admission, W. was attending Garderie Plein Soleil, a French daycare centre in Yellowknife. The CSFTNO recommended that the application for admission be granted.
[24] On May 28, 2018, the Minister denied the application for admission on the ground that W. had been born in Canada and that his situation therefore did not meet the criteria for the “New immigrant” stream of the 2016 Directive. On August 3, 2018, the CSFTNO requested that the Minister reconsider her decision and exercise her residual discretion. In the CSFTNO’s opinion, it was unfair and unreasonable to deny the application for W.’s admission on the basis of an overly restrictive interpretation of the “New immigrant” stream.
[25] On August 29, 2018, the Minister denied the request for reconsideration because admission to École Allain St‑Cyr was limited to children of rights holder parents as well as children of non‑rights holder parents who were eligible under the 2016 Directive. A.B. and the CSFTNO filed an application for judicial review.
[26] On July 2, 2019, the Supreme Court of the Northwest Territories set aside the initial decision of May 28, 2018, and the decision of August 29, 2018, on the request for reconsideration on the ground that the Minister had fettered her discretion by refusing to admit W. because his situation did not fit into one of the streams of the 2016 Directive. The Supreme Court of the Northwest Territories accordingly referred the application for admission back to the Minister for reconsideration. I will come back to this. The Minister announced her intention to appeal the Supreme Court’s judgment, but she abided by it in the meantime.
[27] On the occasion of this reconsideration, A.B. sent the Minister a letter dated August 6, 2019, in which she described her family’s ties to Yellowknife’s Francophone community. A.B. sat on the board of directors of Garderie Plein Soleil. All of her children attended that French daycare centre. Her family participated in the activities organized by Yellowknife’s Francophone community. A.B. also explained that, as a result of the Minister’s negative decisions, W. had to attend a French immersion school, which had a negative impact on his level of French.
[28] On August 30, 2019, the Minister again denied the application for W.’s admission on the ground that his situation involved no distinctive element, apart from the fact that his admission would support his development and that he already spoke French. The Minister was of the opinion that, if she granted the application for admission on that basis, she would, in the interests of fairness, have to grant applications for the admission of all children in the same situation, which would have unforeseen and unpredictable budgetary consequences for the government. In a notice of application dated September 25, 2019, A.B. and the CSFTNO sought judicial review of that decision.
(2) F.A. (Mother of Child A.)
[29] On February 18, 2019, F.A. applied for the admission of her child, A., to École Allain St‑Cyr. A.’s parents had arrived in Yellowknife in 2013. French is their second language, and they routinely spoke it with their children. Since arriving in Yellowknife, the parents had been involved in Francophone community life in the Northwest Territories. F.A.’s spouse was on the board of directors of Garderie Plein Soleil, and A. attended that daycare centre. In addition, F.A. and her spouse, who are both physicians, made an effort to offer their patients services in French. F.A. applied for admission in the “Reacquisition” stream of the 2016 Directive and, alternatively, on the basis of the Minister’s residual discretion.
[30] The CSFTNO supported F.A.’s applications. In its report, the CSFTNO explained that the child’s admission would help “cur[b] losses to the community, where parents are free to enrol their children in majority‑language schools. There is also the loss of rights holder status when parents choose schools outside the CSFTNO”, and admission would enable the child to continue living in French as well (A.R., vol. V, at p. 194). In addition, the CSFTNO noted that admitting A. “would be a way of recognizing and supporting diversity in the school system” in the Northwest Territories (p. 196).
[31] On April 18, 2019, the Minister refused to admit A. in the “Reacquisition” stream of the 2016 Directive because there was nothing to show that one of A.’s parents or grandparents would have been a rights holder but for a lack of opportunity to attend a French first language education program.
[32] In a letter dated June 20, 2019, F.A. asked the Minister to reconsider her decision and exercise her residual discretion to admit her child to École Allain St‑Cyr. In that letter, F.A. reiterated the close professional and personal ties between her family and Yellowknife’s Francophone community.
[33] On July 26, 2019, the Minister informed F.A. that she would reconsider the application for A.’s admission in light of the decision rendered by the Supreme Court of the Northwest Territories in A.B.’s case.
[34] On August 30, 2019, following that reconsideration, the Minister denied the application for admission, essentially for the same reason