Public School Boards' Assn. of Alberta v. Alberta (Attorney General)

Public School Boards' Assn. of Alberta v. Alberta (Attorney General)
Collection
Supreme Court Judgments
Date
2000-10-06
Neutral citation
2000 SCC 45
Report
[2000] 2 SCR 409
Case number
26701
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 26701
Decision Content
Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409
The Public School Boards’ Association of Alberta,
the Board of Trustees of the Edmonton School District
No. 7 and Cathryn Staring Parrish Appellants
v.
The Attorney General of Alberta,
the Government of Alberta and the Minister of Education Respondents
and between
The Public School Boards’ Association of Alberta
and
The Board of Trustees of Calgary Board of Education
No. 19 and Margaret Ward Lounds Appellants
v.
Her Majesty The Queen in right of Alberta
and the Minister of Education Respondents
and
The Alberta Catholic School Trustees’ Association,
the Board of Trustees of Lethbridge Roman Catholic
Separate School District No. 9 and Dwayne Berlando Respondents
and
The Alberta School Boards’ Association (Plaintiff)
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Saskatchewan,
the Ontario Public School Boards’ Association,
the Ontario English Catholic Teachers’ Association,
the Saskatchewan School Trustees Association,
the British Columbia School Trustees Association,
the Ontario Catholic School Trustees’ Association,
the Catholic Section of the Saskatchewan School
Trustees Association, St. Paul’s Roman Catholic
Separate School Division No. 20,
the Boards of Education of the Regina School Division No. 4,
Saskatchewan Rivers School Division No. 119,
Swift Current School Division No. 94,
Weyburn School Division No. 97,
Yorkton School Division No. 93,
Estevan School Division No. 95,
Melfort School Division No. 100,
Moose Jaw School Division No. 1,
Battlefords School Division No. 118,
and Saskatoon School Division No. 13 Interveners
Indexed as: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General)
Neutral citation: 2000 SCC 45.
File No.: 26701.
2000: March 21, 22; 2000: October 6.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for alberta
Constitutional law — Education — Funding — School boards — Reasonable autonomy — Provincial legislation creating new scheme for funding education in Alberta — Separate but not public school boards could opt out of scheme and continue to raise funds directly from ratepayers — Whether school boards have constitutionally guaranteed rights to reasonable autonomy — Constitution Act, 1867, s. 93 — Alberta Act, S.C. 1905, c. 3, s. 17 — School Act, S.A. 1988, c. S‑3.1.
Constitutional law — Education — Funding — School boards — Discrimination — Provincial legislation creating new scheme for funding education in Alberta — Separate but not public school boards could opt out of scheme and continue to raise funds directly from ratepayers — Whether allowing only separate school boards to opt out of scheme constituted discrimination within meaning of s. 17(2) of Alberta Act — Alberta Act, S.C. 1905, c. 3, s. 17 — School Act, S.A. 1988, c. S‑3.1, ss. 157.1, 158 — Government Organization Act, S.A. 1994, c. G‑8.5, s. 13.
Constitutional law — Education — Funding — School boards — Mirror equality — Provincial legislation creating new scheme for funding education in Alberta — Separate but not public school boards could opt out of scheme and continue to raise funds directly from ratepayers — Whether s. 17(1) of Alberta Act importing principle of mirror equality — Alberta Act, S.C. 1905, c. 3, s. 17 — School Act, S.A. 1988, c. S‑3.1, ss. 157.1(8), 158 — Government Organization Act, S.A. 1994, c. G‑8.5, s. 13.
The School Amendment Act, 1994 and the Government Organization Act, together with the Framework for Funding School Boards in the 1995‑96 School Year, introduced a new school funding scheme. The Alberta Government chose to pool all revenues in a central fund and to distribute funding to school boards in a provincially stipulated per‑student amount multiplied by the number of students enrolled within each board’s jurisdiction. With one exception, public school boards may no longer retain money raised through direct taxation. As a result of their constitutional status, separate school boards could and did opt out of the fund and continue to requisition taxes directly from ratepayers. Separate school boards, however, may not retain an amount less than or greater than the allotment they would have received from the fund. In the event of a deficiency, an opted-out board receives a payment from the fund and, in the event of a surplus, opted-out boards must remit to the fund any amount in excess of the allotment they would have received had they participated in the fund. All boards also receive provincial grants determined by the Framework based upon three blocks: instruction, support and capital. Each school receives the same allotment per student for basic instruction. Additional funding is provided to equalize the effect of school‑specific factors. Several school board associations and others challenged the constitutionality of the scheme arguing that school boards had a constitutional right to reasonable autonomy, that the new scheme discriminated against public school boards, and that it violated a constitutional principle of mirror equality that guarantees equivalent rights to public and separate school boards. The trial judge rejected the reasonable autonomy and discrimination arguments but accepted the mirror equality argument, finding the scheme invalid to the extent that it does not allow public school boards to opt out of the funding scheme. The Court of Appeal upheld the trial judge’s decision on the reasonable autonomy and discrimination issues but held that s. 17(1) did not import a principle of mirror equality and found the new scheme constitutional.
Held: The appeal should be dismissed. The new school funding scheme is constitutional.
School boards do not enjoy reasonable autonomy from provincial control. School boards are a form of municipal institution and are delegates of provincial jurisdiction under s. 92(8) of the Constitution Act, 1867 . Municipal institutions do not have an independent constitutional status. School boards are subject to legislative reform even though they are unique vehicles through which denominational rights are realized. Under s. 93 of the Constitution Act, 1867 , the provinces have a plenary jurisdiction over education. A claim to an institutional sphere of reasonable autonomy is inconsistent with, and would impair, this plenary power. Section 17 of the Alberta Act does not alter this position. Alberta may alter educational institutions within its borders, subject only to those rights afforded through the combined effect of s. 93 and s. 17 . Moreover, no constitutional convention demonstrates reasonable autonomy. The historical evidence indicates that significant centralized control existed when Alberta joined Confederation and the grant to the provinces of plenary jurisdiction over education suggests that the framers of the Constitution did not feel bound by convention to restrict the provinces to historic structures or models. Legislative reform since Alberta joined Confederation denies the existence of a belief in binding models of education. The new scheme therefore does not violate a constitutional principle or convention of reasonable autonomy.
Neither the amended legislation nor the conditions or restrictions on funding developed under this legislation violate s. 17(2) of the Alberta Act by discriminating against public school boards in the appropriation or distribution of money for the support of schools. Section 17(2) carries forward a principle of proportionality between the educational opportunities of separate and public school supporters by imposing a standard of fairness upon the distribution of government monies. This standard of fairness does not guarantee absolute or formalistic equality, does not prohibit all distinctions in funding, and deals only with general fairness in the distribution of monies rather than distinctions in the distribution of rights. It follows that it is unnecessary to ascertain the scope of separate school rights under s. 17(1) of the Alberta Act to determine whether the funding scheme meets a standard of fairness under s. 17(2). Equally, the unique ability of separate school boards to opt out is not a source of discrimination under s. 17(2). The amended legislation is fair. The scheme seeks to provide an equal per‑student distribution of the fund and provides redress against prior intra‑provincial funding inequities. Finally, for the reasons given by the majority in the Court of Appeal, the discretion granted to the Lieutenant Governor in Council under s. 13(2) of the Government Organization Act does not violate s. 17(2).
Lastly, s. 17(1) of the Alberta Act does not import a principle of mirror equality. Legislation applicable before Alberta joined Confederation did not equate the rights of public schools to those of separate schools. Section 17(1) is primarily separate school protective legislation which affords only limited and non‑equivalent protection to public schools. Section 17(1) freezes in time the rights and privileges of separate schools and the rights to religious instruction of both public and separate schools as they existed in 1905. Subject to constitutionalization of then existing rights and the continuing effect of s. 17(2) of the Alberta Act, separate and public schools were free to evolve independently after 1905 under the plenary jurisdiction of the Province. Furthermore, the inability of public school boards to opt out of the fund does not infringe the rights to religious instruction afforded public schools under s. 17(1). There is no evidence that the public school boards’ inability to opt out has a prejudicial effect upon these rights.
Cases Cited
Referred to: Godbout v. Longueil (City), [1997] 3 S.C.R. 844; R. v. Greenbaum, [1993] 1 S.C.R. 674; R. v. Sharma, [1993] 1 S.C.R. 650; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; Reference Re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Reference Re Education Act (Que.), [1993] 2 S.C.R. 511; Alder v. Ontario, [1996] 3 S.C.R. 609; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Regina Public School District v. Gratton Separate School District (1915), 50 S.C.R. 589; Calgary Board of Education v. Attorney General for Alberta, [1980] 1 W.W.R. 347, aff’d [1981] 4 W.W.R. 187, leave to appeal refused, [1981] 1 S.C.R. vi; Ontario Home Builders’ Association v. York Region Board of Education, [1996] 2 S.C.R. 929; Reference Re s. 17 of the Alberta Act, [1927] S.C.R. 364; Mahe v. Alberta, [1990] 1 S.C.R. 342; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377.
Statutes and Regulations Cited
Alberta Act, S.C. 1905, c. 3 [reprinted in R.S.C., 1985, App. II, No. 20], s. 17(1), (2).
Canadian Charter of Rights and Freedoms, ss. 2 (b), 7 .
Constitution Act, 1867, ss. 92(8) , 93 .
Government Organization Act, S.A. 1994, c. G‑8.5, s. 13(2).
Magna Carta (1215).
School Act, S.A. 1988, c. S‑3.1 [am. 1994, c. 29; am. 1994, c. G‑8.5], ss. 15(c.1), 25(1)(e), (f), 28(6), 32, 94(1), (4), 94.1, 155(6), 157.1(1), (2), (8), 158(1), (2), (4), (8), 159.1(1), (2), (3), (4), (7), 167(2), (3.1), 181.1, 187, 192, 237.
School Assessment Ordinance, O.N.W.T. 1901, c. 30.
School Ordinance, O.N.W.T. 1901, c. 29, ss. 45, 137‑139.
School Amendment Act, 1994, S.A. 1994, c. 29.
Authors Cited
Funding for School Authorities in the 1995‑1996 School Year: A Manual for School Jurisdictions, Private Schools and Private ECS Operators. Alberta: Alberta Education, 1995.
Lupul, Manoly R. The Roman Catholic Church and the North‑West School Question: a study in church‑state relations in western Canada, 1875‑1905. Toronto: University of Toronto Press, 1974.
APPEAL from a judgment of the Alberta Court of Appeal (1998), 60 Alta. L.R. (3d) 62, 216 A.R. 201, 175 W.A.C. 201, 158 D.L.R. (4th) 267, [1998] A.J. No. 317 (QL), allowing an appeal and dismissing a cross‑appeal from a judgment of Smith J. (1995), 198 A.R. 204, [1995] A.J. No. 1317 (QL), declaring the impugned legislation invalid. Appeal dismissed.
Dale Gibson, Ritu Khullar and Rangi J. Jeerakathil, for the appellants the Public School Boards’ Association of Alberta, the Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish.
Eric P. Groody and David H. de Vlieger, for the appellants the Board of Trustees of Calgary Board of Education No. 19 and Margaret Ward Lounds.
Robert C. Maybank, Margaret Unsworth and Roderick Wiltshire, for the respondents the Attorney General of Alberta, the Government of Alberta, Her Majesty the Queen in right of Alberta, and the Minister of Education.
Kevin P. Feehan and James E. Redmond, Q.C., for the respondents the Alberta Catholic School Trustees’ Association, the Board of Trustees of Lethbridge Roman Catholic Separate School District No. 9 and Dwayne Berlando.
Robert E. Charney and Janet E. Minor, for the intervener the Attorney General for Ontario.
Written submissions only by Monique Rousseau, for the intervener the Attorney General of Quebec.
Written submissions only by Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.
Written submissions only by Eugene B. Szach and Darrin R. Davis, for the Attorney General of Manitoba.
Written submissions only by George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.
Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
Michael A. Hines, for the intervener the Ontario Public School Boards’ Association.
Paul J. J. Cavalluzzo and Fay C. Faraday, for the intervener the Ontario English Catholic Teachers’ Association.
LaVonne R. Beriault, for the intervener the Saskatchewan School Trustees Association.
Judith Anderson and Katherine Arnold, for the intervener the British Columbia School Trustees Association.
Peter D. Lauwers, for the intervener the Ontario Catholic School Trustees’ Association.
John R. Beckman, Q.C., and L. J. Dick Batten, for the interveners the Catholic Section of the Saskatchewan School Trustees Association and St. Paul’s Roman Catholic Separate School Division No. 20.
Robert G. Richards, Q.C., and Debra G. Burnett, for the interveners the Boards of Education of Regina School Division No. 4, et al.
The judgment of the Court was delivered by
1 Major J. — The appellants challenge provisions of the School Amendment Act, 1994, S.A. 1994, c. 29, and the Government Organization Act, S.A. 1994, c. G-8.5. These provisions, together with the adoption of the Framework for Funding School Boards in the 1995-96 School Year (“Framework”), centralized the control and funding of primary and secondary education in Alberta. The scheme created the Alberta School Foundation Fund (“ASFF”), implemented spending restrictions upon school boards, and strengthened ministerial control over school board senior staff.
2 Simply speaking, the impugned scheme was a cost-cutting measure implemented to reduce overall funding to education and to address past discrepancies in school resources. To this end, the Alberta Government chose to pool all revenues and distribute funding based upon the number of students enrolled in each school board’s jurisdiction. The level of per-student funding would be determined by the Province so that total funding could be both controlled and allocated equitably. Separate school boards retained the ability to opt out of the scheme and continue to raise funds directly from their supporters. It is the inability of public boards also to opt out that is the centre of this appeal.
I. Factual Background
3 At Confederation, Roman Catholics in Ontario and Protestants in Quebec were afforded constitutional guarantees with respect to the ability to provide a denominational education. These principles, embodied in s. 93 of the Constitution Act, 1867 , were affirmed in s. 17 of the Alberta Act, S.C. 1905, c. 3, upon the Province of Alberta’s creation. Presently, both Protestant and Roman Catholic “separate” schools co-exist within Alberta alongside public schools. Public schools are generally not religiously affiliated, but specific population patterns have given rise to at least one Roman Catholic public school in Alberta. In addition, there are private schools, usually religious, that operate independently but within the public curriculum and with some provincial aid.
4 Prior to the introduction of the amendments in question, primary and secondary education in Alberta was funded partly by the provincial government and partly by local boards. Provincial funding was provided through grants and property taxes. Local boards also imposed taxes supplementary to those implemented by the Province. The ratio of local to provincial funding ebbed and flowed over time.
5 To limit the ability of local boards to tax at will, the Province placed caps upon local education taxes which could be exceeded only through plebiscite. In the mid-1970s plebiscites were replaced by a less onerous by-law requirement and as a result, or by coincidence, local requisitions increased substantially. Given the disparities among local assessment bases, intra-provincial mill rates and expenditures per student varied widely. These inequities were partially remedied through provincial equalization payments.
6 To address disparate local funding levels, the Legislature of Alberta passed the impugned legislation creating the ASFF. The ASFF scheme appropriates all local requisitions to the control of the Province. With the exception of a limited plebiscite levy, public school boards may no longer retain money raised through direct taxation. The pooled ASFF funds are distributed to school boards in provincially stipulated per-student increments multiplied by the number of students enrolled within each board’s jurisdiction.
7 As a result of their constitutional status, separate school boards could and did opt out of the ASFF and continue to requisition taxes directly from ratepayers. Nevertheless, on a per-student basis these boards may not retain an amount less than or greater than the provincially stipulated amount. Thus, in the event of a deficiency the ASFF provides a top-up payment. Conversely, pursuant to s. 159.1(4) of the School Act, S.A. 1988, c. S-3.1, opted-out separate boards must remit to the ASFF any amount in excess of the provincial per-student budget (the “claw-back”).
8 Subsequent to the 1994 amendments, both public and separate school boards continued to receive provincial grants in addition to ASFF or directly requisitioned monies, as the case may be. At the relevant time, grant levels were determined in accordance with the Framework.
9 The Framework determined each board’s allocation of funding based upon three blocks: instruction, support and capital. Each school received the same allotment per student for basic instruction. Additional funding is provided to equalize the effect of school-specific factors such as student transportation requirements or the number of special needs students in attendance. The size of an individual board’s provincial grant is then determined by subtracting the amount available to that board from property assessments (whether sourced via the ASFF, direct assessment or a combination thereof) from the total funding allotment calculated in accordance with the Framework.
10 The Framework also placed restrictions upon a board’s use of funds by prescribing budgeted allotments for each of the instruction, support and capital blocks. Transferring funds between blocks is either precluded or limited to specified percentages.
11 The Alberta Government maintained that the Framework’s spending restrictions apply equally to boards that opt out. It also took the position that a failure to comply with the restrictions will result in penalties being assessed against future grants. The Framework itself, however, is silent on these points.
II. Relevant Constitutional and Statutory Provisions
12 Constitution Act, 1867
93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:—
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union....
Alberta Act, S.C. 1905, c. 3 (reprinted in R.S.C., 1985, App. II, No. 20)
17. Section 93 of the Constitution Act, 1867 , shall apply to the said province, with the substitution for paragraph (1) of the said section 93 , of the following paragraph:—
“(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.”
(2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29 or any Act passed in amendment thereof, or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.
School Act, S.A. 1988, c. S-3.1 (as of May 25, 1994)
157.1(1) Subject to a resolution of a board under subsection (2), this Division applies to all boards.
(2) The board of a separate school district or a division made up only of separate school districts may, pursuant to a resolution, certify to the Minister under the seal of the district or division that this Division does not apply to it.
. . .
(8) A board of a district or division to which this Division applies shall requisition a municipality under Division 3 only in accordance with a special school tax levy or an additional requisition under Division 7.
158(1) The Lieutenant Governor in Council shall in each year establish one or more rates expressed in mills.
. . .
(2) Each municipality shall pay annually into the Alberta School Foundation Fund a sum equal to the amount that results from applying the mill rates referred to in subsection (1) in accordance with the order that establishes them to the equalized assessment of the municipality as established for the year by the Alberta Assessment Equalization Board under section 21(7) of the Municipalities Assessment and Equalization Act.
. . .
(4) Each municipality shall pay into the Alberta School Foundation Fund the amount calculated by applying the mill rates set pursuant to subsection (1).
. . .
(8) If it is determined on appeal under the Municipalities Assessment and Equalization Act that a municipality has paid an amount into the Alberta School Foundation Fund in excess of the sum that it is required to pay under subsection (2), the Minister may order the repayment of the excess to the municipality from the Alberta School Foundation Fund.
159.1(1) Subject to regulations made under subsection (7), the Minister shall make payments from the Alberta School Foundation Fund to all boards, whether or not the board has a subsisting resolution that this Division does not apply to it.
(2) In this section, “amount per student” with respect to a board means the amount obtained when
(a) the total amount received by the board pursuant to a payment from the Alberta School Foundation Fund and a requisition under section 150, other than pursuant to a special school tax levy or an additional requisition under Division 7,
is divided by
(b) the number of eligible students enrolled in schools operated by the board.
(3) The Minister shall calculate the amount to be paid from the Alberta School Foundation Fund to all boards in such a way that the payment for a school year to one board is consistent with the principle that each board is entitled to receive the same amount per student for the school year.
(4) If a separate school district or division to which Division 4 does not apply receives from municipalities requisitioned by the board an amount per student for a school year that is greater than the amount per student for the school year used by the Minister to calculate payments from the Alberta School Foundation Fund under subsection (3) and subject to the rights under the Constitution of Canada of separate school electors, the board of that district or division shall pay the difference between the amounts into the Alberta School Foundation Fund.
. . .
(7) The Lieutenant Governor in Council may make regulations respecting payments to boards from the Alberta School Foundation Fund for the purposes of education under this Act.
Government Organization Act, S.A. 1994, c. G-8.5
13...
(2) The Lieutenant Governor in Council may make regulations applicable to a Minister
. . .
(d) respecting the persons or organizations or classes of persons or organizations eligible for grants;
(e) respecting the conditions required to be met by any applicant for a grant to render that person or organization eligible for the grant;
(f) empowering the Minister in particular circumstances to waive eligibility criteria prescribed under clause (d) or (e). . . .
III. Judicial History
A. Alberta Court of Queen’s Bench (1995), 198 A.R. 204
13 The Alberta School Boards’ Association (“ASBA”), the Public School Boards’ Association of Alberta (“PSBAA”) and others challenged the constitutionality of the amendments and the Framework’s spending restrictions on three bases. First, it was alleged that school boards were guaranteed a sphere of reasonable autonomy under s. 93 of the Constitution Act, 1867 or s. 17 of the Alberta Act, under ss. 2 (b) and 7 of the Canadian Charter of Rights and Freedoms , or through convention. Second, it was alleged that allowing only separate school boards to opt out of the ASFF violated a prohibition against discrimination contained in s. 17(2) . Third, it was alleged that the differential manner in which the amendments treated separate and public boards violated a principle of “mirror equality” implicit in s. 17(1) .
14 The Alberta Catholic School Trustees’ Association and others joined in the litigation to ensure that existing s. 17(1) separate school rights were not addressed or abrogated in resolving the mirror equality or discrimination arguments.
15 The trial judge rejected the reasonable autonomy argument. He also held that the amendments and the application of the Framework’s spending restrictions did not discriminate against public schools within the meaning of s. 17(2).
16 The trial judge held that the impugned legislation violated a principle of mirror equality implicit in s. 17(1) and found the amendments invalid because they allowed only separate school boards to opt out of the ASFF. He did not address the scope of separate school rights.
17 Smith J. declared the impugned legislation invalid, but suspended the declaration of invalidity until June 15, 1996. In February 1996, an order staying the judgment was granted pending an appeal. The order provided for a further stay of six months in the event the Government was unsuccessful on appeal.
B. Alberta Court of Appeal (1998), 60 Alta. L.R. (3d) 62
18 The PSBAA, the ASBA and the Government filed appeals on each of the reasonable autonomy, discrimination and mirror equality issues. The appeal was allowed in part.
19 Additionally, the Government brought two applications to adduce fresh evidence. The first application concerned two documents: Funding for School Authorities in the 1995-96 School Year, and an excerpt from Funding for School Authorities in the 1996-97 School Year. These documents were tendered to counter the s. 17(2) discrimination argument by demonstrating that the Framework applied equally to both public boards and separate boards, whether opted-out or not, and that non-compliance would result in penalties being assessed against future grants.
20 The second application related to three charts comparing enrollment, fiscal inequity and administrative costs for separate school boards in school years prior and subsequent to the impugned amendments. This evidence was tendered to demonstrate that the ASFF scheme had not prejudicially affected the rights of separate schools.
(a) Majority Decision of Russell J.A. (Picard J.A. concurring)
21 Addressing the fresh evidence, Russell J.A. admitted the documents forming the subject matter of the first application because they could be determinative of the s. 17(2) discrimination issue. However, she refused to admit the subject matter of the second application as she was not satisfied it would be practically conclusive of any issue.
22 Russell J.A. rejected the argument that school boards have a constitutionally guaranteed right to reasonable autonomy. She declined to address whether ss. 2 (b) and 7 of the Charter supported a claim to reasonable autonomy. She also declined to recognize a right to reasonable autonomy grounded in constitutional convention.
23 The majority concluded that the reference to “discrimination” in s. 17(2) imported a standard of fairness. This standard was not violated by granting only separate boards the ability to opt out of the ASFF or by the discretion granted to the Minister of Education by s. 13(2) of the Government Organization Act.
24 Russell J.A. held that s. 17(1) did not import a principle of mirror equality. Therefore, the inability of public boards to opt out of the ASFF did not violate s. 17(1).
25 Russell J.A. dismissed the appeal brought by the ASBA and PSBAA and allowed the Government’s cross-appeal on the trial judge’s finding on mirror equality.
(b) Berger J.A. (concurring in the result)
26 Berger J.A. substantially agreed with the reasons of the majority on the reasonable autonomy and mirror equality issues.
27 Berger J.A. addressed the scope of separate school rights under s. 17(1) in determining whether the impugned provisions discriminated against public schools under s. 17(2). He held that the claw-back and the Framework’s spending restrictions violated the s. 17(1) rights of separate schools and were inapplicable to them. Nevertheless, opted-out separate boards which failed to raise the provincial per-student average amount through direct requisitions would have the right to claim top-up funds from the ASFF.
28 As with the majority, Berger J.A. concluded that s. 17(2) imported a standard of fairness. Because the impugned scheme provided minimum per capita grants, it did not discriminate against public schools.
29 Therefore, subject to his findings with respect to separate schools, Berger J.A. agreed that the public boards’ appeal should be dismissed and the cross-appeal allowed.
IV. Issues
30 On June 24, 1999, Lamer C.J. stated the following constitutional questions:
1. Are ss. 15(c.1), 25(1)(e) and (f), 28(6), 32, 94(1) and (4), 94.1, 155(6), 157.1, 167(2) and (3.1), 181.1, 187, 192 and 237 of the School Act, S.A. 1988, c. S-3.1, as amended, unconstitutional to the extent that they violate the principle of reasonable autonomy for municipal institutions, including school boards, as may be contained in the Constitution of Canada, including the preamble or ss. 92(8) or 93 of the Constitution Act, 1867 , in s. 17 of the Alberta Act, or in a constitutional convention?
2. (a) Do ss. 157.1 or 158 of the School Act, S.A. 1988, c. S-3.1 (as amended by the School Amendment Act, 1994, S.A. 1994, c. 29), or s. 13 of the Government Organization Act, S.A. 1994, c. G-8.5, and the imposition of conditions or restrictions on funding developed under the authority of that legislation, insofar as they provide for “opting-out” from the Alberta School Foundation Fund by Separate but not Public School Boards, contravene s. 17(2) of the Alberta Act, which amends s. 93 of the Constitution Act, 1867 , by discriminating against Public Schools in the appropriation by the Legislature or distribution by the Government of Alberta of any moneys for the support of schools? If so, in what respects do they do so?
(b) Do ss. 157.1(8) or 158 of the School Act, S.A. 1988, c. S-3.1 (as amended by the School Amendment Act, 1994, S.A. 1994, c. 29), or s. 13 of the Government Organization Act, S.A. 1994, c. G‑8.5, and the imposition of conditions or restrictions on funding developed under the authority of that legislation, insofar as they provide for “opting-out” from the Alberta School Foundation Fund by Separate but not Public School Boards, contravene s. 17 of the Alberta Act, which amends s. 93 of the Constitution Act, 1867 , by violating an implicit guarantee in s. 17(1) of the equality between Separate and Public Schools? If so, in what respects do they do so?
V. Analysis
A. Constitutional Question 1
Are ss. 15(c.1), 25(1)(e) and (f), 28(6), 32, 94(1) and (4), 94.1, 155(6), 157.1, 167(2) and (3.1), 181.1, 187, 192 and 237 of the School Act, S.A. 1988, c. S-3.1, as amended, unconstitutional to the extent that they violate the principle of reasonable autonomy for municipal institutions, including school boards, as may be contained in the Constitution of Canada, including the preamble or ss. 92(8) or 93 of the Constitution Act, 1867 , in s. 17 of the Alberta Act, or in a constitutional convention?
31 The appellants took the position that school boards may lay claim to a sphere of reasonable autonomy based upon implicit legal norms derived from ss. 92(8) and 93 of the Constitution Act, 1867 and from s. 17 of the Alberta Act. Alternatively, it was submitted that constitutional convention supported such a right. School boards were described as municipal institutions founded upon democratic principles. Such a foundation, it was argued, should insulate school boards to a degree from the unfettered legislative interference of provincial government. The appellants cited historical material in support of the proposition that educational institutions in the Northwest Territories exercised a broad degree of autonomy prior to the constitutionalization of denominational education rights in the Alberta Act.
32 Before addressing these arguments, I note that it was argued before the Court of Appeal that the impugned provisions violated ss. 2 (b) and 7 of the Charter . As I am in substantial agreement with the Court of Appeal’s conclusion on this issue, I do not propose to address the Charter as a basis for a claim to reasonable autonomy.
33 The appellants’ submission that ss. 92(8) and 93 of the Constitution Act, 1867 and s. 17 of the Alberta Act provide a legal basis for reasonable autonomy fails. I agree with the PSBAA that school boards are a form of municipal institution. However, municipal institutions take various forms and are not identical. Although their characteristics and historical backgrounds differ, all municipal institutions are delegates of provincial jurisdiction under s. 92(8) of the Constitution Act, 1867 . See Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at paras. 51-52; R. v. Greenbaum, [1993] 1 S.C.R. 674; R. v. Sharma, [1993] 1 S.C.R. 650, at p. 668; and Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13, at para. 31.
34 Municipal institutions do not have an independent constitutional status. School boards are somewhat unique, however, as they represent the vehicles through which the constitutionally entrenched denominational rights of individuals are realized. Yet that is not to say that the institutions themselves are entrenched or must remain mired in their historical form to fulfill these constitutional guarantees.
35 The proposition that educational institutions are malleable and subject to legislative reform is sound. The introductory language of s. 93 has been found to confer upon the provinces a plenary jurisdiction over education. See Reference Re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1169, per Wilson J., and at p. 1202, per Estey J.; Reference Re Education Act (Que.), [1993] 2 S.C.R. 511, at pp. 530-31, 541-42 and 564-65. Per Gonthier J., at pp. 541-42:
What s. 93 of the Constitution guarantees . . . is the right to dissent itself, not the form of the institutions which have made it possible to exercise that right since 1867. This means, for example, that while the right of dissent obviously includes the means and framework in which it is exercised, the latter are not in themselves constitutionally guaranteed. The framers of the Constitution were wise enough not to determine finally the form of institutions, as it is those very institutions which must be capable of change in order to adapt to the varying social and economic conditions of society.
36 This conclusion is applicable to public schools. See Adler v. Ontario, [1996] 3 S.C.R. 609, at paras. 47-48, per Iacobucci J.:
. . . public school rights are not themselves constitutionally entrenched. It is the province’s plenary power to legislate with regard to public schools, which are open to all members of society, without distinction, that is constitutionally entrenched. . . .
One thing should, however, be made clear. The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by s. 93(1).
37 A claim to an institutional sphere of reasonable autonomy is inconsistent with, and would impair, this plenary power. Section 17 of the Alberta Act does not alter this position. The Province of Alberta may alter educational institutions within its borders as it sees fit, subject only to those rights afforded through the combined effect of s. 93 and s. 17 . Whether the impugned provisions infringe these rights in respect of public schools in Alberta is the subject matter of the following two constitutional questions in this appeal.
38 While constitutional convention has been argued, none has been identified which would demonstrate that school boards have a sphere of reasonable autonomy. See Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at p. 888:
The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative. We adopt the following passage of Sir W. Ivor Jennings, The Law and the Constitution (5th ed., 1959), at p. 136:
We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?...
39 The appellant PSBAA referred to historical material dating as far back as the Magna Carta (1215) to establish a convention of local institution independence. Of more recent date, the PSBAA alleged that prior to the introduction of the impugned legislation in 1994, school governance in Alberta displayed de facto reasonable autonomy.
40 The submission that in 1905 educational institutions in Alberta operated under a precedent of local autonomy is unconvincing. In fact, the historical evidence submitted by the respondent Province of Alberta indicates a significant degree of centralized control. Such control was exhibited, for example, through the imposition of mill rate caps on local boards under The School