Tiny Separate School Trustees v. The King

Tiny Separate School Trustees v. The King
Collection
Supreme Court Judgments
Date
1927-10-10
Report
[1927] SCR 637
Judges
Mignault, Pierre-Basile; Newcombe, Edmund Leslie; Lamont, John Henderson; Anglin, Francis Alexander; Duff, Lyman Poore; Rinfret, Thibaudeau
On appeal from
Ontario
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Tiny Separate School Trustees v. The King, [1927] S.C.R. 637
Date: 1927-10-10
In the Matter of a Petition of Right.
The Board of Trustees of the Roman Catholic Separate Schools for School Section Number Two in the Township of Tiny, and The Board of Trustees of the Roman Catholic Separate Schools for the City of Peterborough, On Behalf of themselves and all Other Boards of Trustees of Roman Catholic Separate Schools in the Province of Ontario (Suppliants) Appellant;
and
His Majesty The King (Respondent) Respondent.
1927: April 20, 21, 22, 23, 25; 1927: October 10.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Constitutional Law—Education—Roman Catholic separate schools in Ontario—Rights as to courses of study and grades of education in such schools—Rights at Confederation—B.N.A. Act, s. 93 (1)—Validity of Ontario Statutes and regulations—Taxation for support of continuation schools, collegiate institutes and high schools—Rights of separate schools as to share in legislative grants. The suppliants claimed: (1) The right to establish and conduct courses of study and grades of education in Roman Catholic separate schools in Ontario such as are conducted in continuation schools, collegiate institutes and high schools; and that all regulations purporting to prohibit, limit, or in any way prejudicially affect such right are ultra vires; (2) The right of Roman Catholics in Ontario to exemption from taxation for the support of continuation schools, collegiate institutes and high schools not conducted by their own boards of trustees; (3) A share in public moneys granted by the Ontario legislature for common school purposes computed in accordance with what they asserted to have been their statutory rights at the date of Confederation; and asked for a declaration that certain Ontario statutory enactments prejudicially affected their rights as granted by the Separate Schools Act, 26 Vic. (1863), c. 5, and secured by s. 93 of the B.N.A. Act, and, in so far as they affected such rights, were ultra vires. The Appellate Division of the Supreme Court of Ontario (60 Ont. L.R. 15), affirming judgment of Rose J. (59 Ont. L.R. 96), held against their claims. On appeal to this Court, three of the six judges hearing the appeal held it should be dismissed, and it was dismissed accordingly. Anglin C.J.C. and Rinfret J. held in the suppliants’ favour on all said claims. Mignault J. held in their favour except, in part, as to their claim in regard to legislative grants. Duff, Newcombe and Lamont JJ. held against them on all claims. As to a certain sum sued for, the Court unanimously held that the appeal failed.
The Separate Schools Act, 26 Vic. (1863), c. 5; the Common Schools Act, C.S.U.C. 1859, c. 64; the B.N.A. Act, s. 93; and other statutes, and official reports and documents, extensively reviewed and discussed.
Per Anglin C.J.C., Mignault and Rinfret JJ.: Any statute or regulation that would materially diminish or curtail the scope of the education which denominational schools were, at Confederation, legally entitled to impart, or that would tend to restrict the period during which supporters of such schools were then legally entitled to have their children’s education subject to the influence of denominational control and instruction, would “prejudicially affect a right or privilege with respect to denominational schools” within s. 93 (1) of the B.N.A. Act. The remedy is to invoke the ordinary tribunals; the right of appeal to the federal executive under s. 93 (3) does not apply. S. 93 (3) has to do with acts of provincial authorities which, although not ultra vires, so affect rights and privileges theretofore enjoyed by a religious minority as to constitute, in the opinion of the Governor in Council, a grievance calling for federal intervention (Brophy v. Att. Gen. of Manitoba [1895] A.C. 202).
The effect of the legislation in force at Confederation, construing it without the aid of any extraneous evidence, was to confer on all separate school trustees, as part of, or incident to, the management and control of the schools entrusted to them, the right to determine the subjects of instruction in, and the grading of, such schools. They had the legal right to provide therein for secondary education. Curtailment of such rights was not within the regulative powers of the Council of Public Instruction. The above view as to the effect of the legislation is prima facie supported by the fact that it was the view accepted and acted upon by the educational authorities, as indicated by the official reports and documents in evidence. (Clyde Navigation Trustees v. Laird, 8 App. Cas. 658, at p. 670). By virtue of the exemption to separate school supporters under s. 14 of the Separate Schools Act of 1863, and from the fact that the Ontario continuation schools, high schools and collegiate institutes are now doing work which formed part of that formerly legally done, or which might have been so done, by the common schools, it follows that separate school supporters are entitled to exemption from rates for the support of such continuation schools, etc. To compel Catholic separate school supporters to support the last-mentioned schools, and to use them, if they would give their children up to 21 years of age a secondary education, is prejudicially to affect the right or privilege enjoyed by Roman Catholics as a class at the Union of having such education given to their children under denominational influence and in separate schools managed by their own trustees (Barrett v. Winnipeg, 19 Can. S.C.R. 374, at p. 424, referred to).
Per Anglin C.J.C. and Rinfret J.: Every Ontario legislative enactment involving a departure from the principle of apportionment between common and separate schools pro rata on the basis of average attendance, as provided by s. 20 of the Separate Schools Act of 1863, of all legislative and municipal grants of public moneys for any purpose that was, under the law at Confederation, a common school purpose, (saving grants to high schools in continuation of former grammar school appropriations), would, if valid, prejudicially affect a right or privilege with respect to their denominational schools which Roman Catholics had by law at the Union and is, therefore, ultra vires. Every grant for a common school purpose, whether made for a particular school or schools, or made subject to some restrictive term or condition, is covered by s. 20 of the Separate Schools Act, 1863, and therefore comes within the ambit of the protection of s. 93 (1) of the B.N.A. Act, and cannot be made so as to preclude the right of separate schools to share therein unless compensation to them for their proportion thereof is otherwise provided. The Common and the Separate Schools Acts alike were continued in force after the Union by s. 129 of the B.N.A. Act as provincial legislation of Ontario, subject to repeal and amendment by the legislature, as to common schools without restriction, and as to separate schools within the limitations imposed by s. 93 (1) of the B.N.A. Act (Dobie v. The Church Temporalities Board, 7 App. Cas. 136, at p. 147; Att. Gen. for Ontario v. Att. Gen. for Canada, [1896] A.C. 348, at pp. 336-7). The presence of the words “this Province” and “the Province” in s. 20 of the Separate Schools Act of 1863 did not render that provision inapplicable after Confederation. Those terms meant after Confederation the new province of Ontario. The words “and not otherwise appropriated by law,” appended in s. 106 of the Common Schools Act, C.S.U.C. 1859, c. 64, to the description of the legislative grants to be apportioned, do not present a formidable difficulty. S. 20 of the Act of 1863 is subsequent legislation, and, so far as there may be inconsistency, its terms must prevail over those of s. 106 of the Act of 1859. S. 20 of the Act of 1863 precludes an appropriation by law of any grants made for common school purposes which would prevent the separate schools sharing proportionately in them.
Quaere, whether the legislature could validly formulate a scheme or impose conditions for the distribution amongst the separate schools themselves, other than on the basis of average attendance, of the proportion of the total grants for common school purposes, as under- stood at Confederation, to which the separate schools as a whole are entitled.
Per Duff and Newcombe JJ.: Under the legislation existing at Confederation, Roman Catholic separate schools were subject to regulation by the Council of Public Instruction for Upper Canada. Giving their natural sense to the words of s. 26 of the Separate Schools Act of 1863, the Council had a general power of regulation. This power would be subject only to relevant enactments of the separate school law and to the limitations necessarily implied in the fact that the power was given for the purpose of enabling Roman Catholics to carry on more satisfactorily their system of denominational schools. Subject as aforesaid, there is no good reason for restricting the natural sense of the words of s. 26. Another possible view is that s. 26 subordinated separate schools to regulation by the Council in respect of all subject matters which might from time to time fall within the ambit of its jurisdiction in relation to common schools, under the existing Common School Acts or subsequent amending legislation. In any case, and even assuming (but not accepting) that the Council’s regulative powers as to separate schools could be taken as confined to the subject matters which were within the field of its authority in relation to common schools at the date of the passing of the Separate Schools Act of 1863, those powers (even if so confined as last mentioned) covered regulation as to scope and conduct of instruction, including courses of study and text-books. Not only does this appear on a proper construction of the common school legislation itself, but it was the view which, as shown by the documents in evidence, dictated the practice of the Council in exercising its functions under the Common School Acts of 1850 and 1859, in which practice, carried out under circumstances of the greatest publicity, the legislature, in view of its re-enactments without pertinent change in the Act of 1859, and the unqualified language of ss. 26 and 9 of the Act of 1863, must be presumed to have acquiesced.
In scope of instruction common schools or Roman Catholic separate schools were not, at Confederation, on the same footing as collegiate institutes, high schools or continuation schools to-day. Viewing the school legislation as a whole as it stood at Confederation, its history, and the official acts of those charged with administration of the school law, as shown by official documents in evidence and having regard especially to the required qualifications of teachers, the provision made for training them, the programs of studies officially promulgated, and the character of the authorized text-books, it is plain that such schools were intended to be elementary schools only.
The principle of division laid down by s. 20 of the Separate Schools Act of 1863 assumed the existence of a fund which had been appropriated for the benefit of the common schools generally in each municipality. It was upon this fund, so appropriated for a given municipality, that the section operated; it operated only after the fund for each municipality had been ascertained under the distribution provided for in ss. 106, 120, 121 and 122 of the Common Schools Act of 1859. The legislature did not intend to tie its hands by s. 106 (1) of the Act of 1859 in such a way as to necessitate the apportionment of all moneys voted for common schools, according to a fixed arithmetical ratio. The qualification “not otherwise expressly appro- priated” sufficiently manifests its intention to reserve its freedom of action. Assuming s. 20 to have created a legal “right or privilege” within s. 93 (1) of the B.N.A. Act, it was not a right “by law” to require the legislature to refrain from granting appropriations for special purposes or for the aid of schools reaching a certain standard of excellence or of school sections conforming to a certain standard of expenditure. There has been no deprivation of anything to which any “right or privilege” under s. 20 or under s. 20 combined with s. 106 could attach. Nor is there any evidence that the alleged right or privilege has been rendered less valuable by the impeached legislation (assuming that to be a legitimate ground of complaint under s. 93 (1)). There is no reason for supposing that the existing grants, if distributed according to the arithmetical ratios of ss. 106 and 20, would yield a larger sum for Roman Catholics as a whole. But, more important still, it is impossible to know, if under compulsion of a constitutional limitation the legislature were obliged to follow an unwise and wasteful plan of distribution, whether the grants would be as generous as they now are. There is no suggestion that by the statutes now in force Roman Catholics are placed upon a footing of inequality with the public schools. Grants are shared by all schools alike, upon identical conditions.
Quaere as to suppliants’ right by petition of right to obtain a declaration that certain Ontario statutes are ultra vires.
Per Mignault J.: The legislative grant which the Chief Superintendent was to apportion under s. 106 (1) of the Common Schools Act of 1859, and of which he subsequently was to pay a share to the trustees of each separate school, was a general grant for the support of common schools or for common school purposes. A special grant, say for the rebuilding of a particular school destroyed by fire, would be “otherwise appropriated by law,” and he could not deal with it in his apportionment. Such special grants could not be said to be grants “for common school purposes” within the meaning of s. 20 of the Separate Schools Act of 1863.
Conditions in excess of those laid down by s. 20 cannot be imposed on the separate schools to entitle them to share in the grants to which it applies. Any statute purporting to impose such conditions, as well as all statutes and regulations contravening the suppliants’ first two claims, are ultra vires.
Per Newcombe J.: The powers of regulation which, within the scope of the Acts of 1859 and 1863, the province possessed at the Union were not reduced by the B.N.A. Act. The denominational schools to which s. 93 (1) refers, so far as they were Roman Catholic separate schools of Upper Canada, were regulated schools, and the provisions to which the suppliants object are within the powers of regulation which the province had in 1863, and continued to possess at and after the Union.
There is nothing in the B.N.A. Act to compel the legislature to make a grant, or to avoid conditions prescribed for earning it, or to prevent a specific appropriation.
Per Lamont J.: At Confederation the Council of Public Instruction had authority to make regulations, including the prescribing of the courses of study, for the common and separate schools. This appears on the proper construction of the Separate Schools Act of 1863 and the Common Schools Act of 1859, from the history of the legislation, and from the accepted practice carried on. It was the trustees’ right to manage their separate schools subject to the Council’s said regulative powers, that was confirmed by s. 93 (1) of the B.N.A. Act. The Council’s powers would not enable it to make regulations which would wipe out, wholly or partially, the common or the separate schools. The common schools, at Confederation, had a distinct and definite place in the educational system of Upper Canada. They were intended to be the primary schools, furnishing elementary instruction, with the grammar schools as intermediate between them and the University; and the Council’s duty was to make regulations prescribing courses of study which would enable the schools to provide effectively instruction covering the field which the legislature intended they should occupy. The separate schools, as to secular education, were intended to be simply common schools under denominational management, and covered the same field as the common schools. The line of demarcation between the primary and intermediate schools may not always have been definitely drawn or closely adhered to; there may have been some overlapping in instruction, due to the exigencies of particular localities; but the legislature’s intention as disclosed in the various Acts, and not the manner in which the system worked out in actual practice, should be the guide in determining the sphere of operation. It cannot be said that, under the impeached legislation, the separate schools of to-day have lost their status as primary schools of the class to which the Act of 1863 intended them to belong.
The “public grants * * * for common school purposes” in which, under s. 20 of the Act of 1863, every separate school was entitled to share, were general or unconditional grants in which all schools were to share. They did not include moneys appropriated by the legislature to specific purposes, or to grants for apportionment among schools attaining a certain standard of efficiency or equipment, or made payable upon the performance of a condition. “Grants * * * for common school purposes” meant “grants for the purposes of all common schools.” These would include conditional grants for the same purpose once the condition had been performed. But, as the legislature’s authority to say whether or not any grant at all shall be made, or to specify the conditions upon which public moneys shall be devoted to school purposes, is supreme, the only limitation imposed by s. 20 upon the legislature’s exercise of its authority, so far as conditional grants are concerned, is that the separate schools must be given the same right as the common (now public) schools, to perform the conditions and earn the grant.
APPEAL (by leave of the Appellate Division of the Supreme Court of Ontario) from the judgment of the Appellate Division of the Supreme Court of Ontario[1] dismissing the suppliants’ appeal from the judgment of Rose J.[2] dismissing the petition of right. The original suppliant was the board of trustees of the Roman Catholic separate schools for school section no. 2 in the township of Tiny, on behalf of itself and all other boards of trustees of Roman Catholic separate schools in Ontario. At the hearing in the Appellate Division leave was given to the original suppliant to add as a party suppliant the board of trustees of the Roman Catholic separate schools for the city of Peterborough, an urban board, the latter’s consent being filed; the petition of right and statement of defence were amended; and the fiat of the Lieutenant-Governor was granted to the amended petition.
The petition of right (as amended) set out, in effect, as follows:
1. Each of the suppliants is a body corporate under and by virtue of “The Separate Schools Act,” R.S.O. 1914, c. 270, s. 21, ss. 3, and as such conducts a Roman Catholic separate school.
2. Under and by virtue of s. 20 of 26 Vic. (1863), c. 5, being an Act of the then Parliament of Canada entitled “An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools” each of the suppliants is entitled to receive from and be paid by the respondent a share in the fund annually granted by the Legislature of Ontario for the support of common schools and is entitled also to a share in all other public grants investments and allotments for common school purposes then made or thereafter to be made by the province according to the average number of pupils attending such school during the twelve next preceding months, as compared with the whole average number of pupils attending school in the township of Tiny, and in the city of Peterborough respectively.
3. (Said s. 20 of 26 Vic. c. 5 is set out).
4. (S. 22 of 26 Vic. c. 5 is set out).
5. (S. 106 (1) of c. 64 of C.S.U.C., 1859, an Act entitled “The Upper Canada Common School Act” is set out).
6. That this Act of 1859 including s. 106 was in full force and effect in the year 1863 and in the year 1867 and continued to be the law applicable to the matters referred to therein for several years subsequent to 1867; and the grants annually made by the Legislature were so apportioned down to and including the year 1907.
7. (S. 93 (1) of the B.N.A. Act is set out).
8. That the right of each of the suppliants under and by virtue of the Act of 1863, c. 5, ss. 20 and 23 thereof, and further secured to it by the B.N.A. Act, 1867, c. 5, s. 93, (1), to a share in the fund annually granted by the Legislature of Ontario according to the average number of pupils attending its school as compared with the whole average number of pupils attending school in the said township of Tiny and in the said city of Peterborough respectively was prejudicially affected by the following Acts of the Legislature of Ontario:
(a) 6 Edward VII (1906), chapter 52—The Department of Education Act, section 23.
(b) 7 Edward VII (1907), chapter 50, an Act entitled “An Act to amend the Department of Education Act,” section 4, subsection 3.
(c) 9 Edward VII (1909), chapter 88, an Act entitled “The Department of Education Act,” section 6.
(d) 10 Edward VII (1910), chapter 102, section 1.
(e) R.S.O. 1914, chapter 265, section 6—an Act entitled “The Department of Education Act.”
(f) 12-13 George V (1922), chapter 98, sections 2 and 3—an Act entitled “The School Law Amendment Act, 1922.”
(g) 14 George V (1924) chapter 82, section 2—an Act entitled “The School Law Amendment Act, 1924.”
9. That so far as the said Acts purport to enact a different method for apportioning the share of the fund annually granted for common school purposes to which the separate schools conducted by the suppliants are or may be entitled other than the average attendance basis as enacted in the Separate School Act of 1863, c. 5, and such different method results or may result in a smaller share of said annual fund being paid to the suppliants than would be payable on the basis of average attendance of pupils, the said Acts are ultra vires of the Legislature of Ontario. 10. That in and for the year 1922, out of the fund granted by the Legislature of Ontario for common school purposes for the year 1922 there was paid to the various school boards or schools in Ontario, according to the report for the year 1923 of the Minister of Education, the amount of $3,401,818 under various titles as follows:
(1) To Public and Separate Schools (p. 87 of report).
$2,976,712 00
(2) To Continuation Schools (p. 90 of report).
148,217 00
(3) To Collegiate Institutes and High Schools (p. 91 of report).
276,889 00
$3,401,818 00
11. That the said total sum of $3,401,818 was a fund granted by the Legislature for the support of common schools and for common school purposes within the meaning of s. 20 of 26 Vic. (1863), c. 5, and that the schools conducted by the suppliants were entitled to share in such fund according to the provisions of said Act, 26 Vic. (1863), c. 5.
12. That as to continuation schools and collegiate institutes and high schools above referred to in par. 10, the same are common schools within the meaning of c. 64 of C.S.U.C., 1859—an Act entitled “The Upper Canada Common School Act” and of c. 5 of 26 Vic. 1863—an Act entitled “An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools.”
13. That under and by virtue of the Act of 26 Vic. (1863), c. 5, s. 14, and of the B.N.A. Act of 1867, c. 3, s. 93 (1), the class of persons being separate school supporters represented by the suppliants are exempted from payment of all rates imposed for the support of common schools, and that it is ultra vires of the Legislature of Ontario to impose or attempt to impose upon such persons payment of rates for the support of common schools now known and designated as either continuation schools, collegiate institutes or high schools and which are not established and conducted by the suppliants.
14. That in so far as the Act of 34, Vic. (1870-1871), c. 33, entitled “an Act to improve the Common and Gram- mar Schools of the Province of Ontario”, and subsequent Acts respecting high schools, including c. 268 of R.S.O., 1914, ss. 33, 34, 37, 38 and 39, an Act entitled “The High Schools Act,” purport to impose upon the class of persons being separate school supporters represented by the suppliants payment of rates for the support of high schools and collegiate institutes not established and conducted by the suppliants, the same are ultra vires of the Legislature of Ontario.
15. That each of the suppliants is, and in any event the board of trustees of Roman Catholic separate schools in every city, town and village in Ontario is entitled as of right to establish and conduct in its separate schools the courses of study and grades of education that are carried on in such so-called continuation schools and collegiate institutes and high schools, and the fact is such courses of study and grades were established and conducted by certain boards of trustees of the Roman Catholic separate schools from in or about the year 1841 up to and including the year 1915 when certain regulations were enacted by the respondent under which the respondent claimed and still claims the right to limit the range and grade of the courses of study and grades of education, all of which said regulations are in derogation of the rights of the suppliants and are invalid and ultra vires.
16. That the respondent has no right nor authority as claimed to limit or confine the common school courses of study or grades of education which may be established and carried on by either of the suppliants in the schools conducted by the suppliants respectively.
17. That according to the last census of Ontario made in 1921, the population of the province as of the year 1921 was 2,933,622 persons, and according to the same census the population of the township of Tiny for the year 1921 was 4,026 persons.
18. That the share of the fund mentioned in par. 10 which should have been allotted to the common schools of the said township of Tiny on the basis of the proportion of the population of the said township as compared with the total population of the province was $4,669.00.
19. That the average attendance of the common schools including both common public schools and common sep- arate schools of the said township of Tiny for the year 1922 was 629 pupils, and the average attendance for the same period of pupils of Roman Catholic school section no. 2 of the said township, being the school conducted by one of the suppliants, was 159 pupils.
20. That under and by virtue of the right granted the suppliants by the Act of 1863, s. 20, the suppliant, the board of trustees of the Roman Catholic separate school for school section no. 2, township of Tiny, was entitled in and for the year 1922 to such a share of the said sum of $4,669 mentioned in par. 18 as the average number of pupils attending the suppliant’s school, namely,159 pupils, compared with the whole average number of pupils attending school in the said township of Tiny, namely, 629 pupils;
21. That by reason of the facts referred to in par. no. 20 the said suppliant was entitled as of right to be paid the amount of $1,116 out of the said sum of $4,669.
22. The said suppliant was unlawfully held to be entitled only to and was paid the amount of $380 only out of the said sum of $4,669 and thereby suffered for the year 1922, a pecuniary loss of $736.
23. If, notwithstanding said suppliant’s submission and contention as set out above, it should be held that it is not entitled to a share of the sums of $148,217 and $276,889 paid respectively to continuation schools and collegiate institutes and high schools as set out in par. 10, but is entitled only to its proportion of the sum of $2,976,712 also referred to in said par. 10 (which said suppliant does not admit but denies), then, and in such event, the said suppliant submits that on the said basis of average attendance as referred to in par. 19 it was entitled to receive from and be paid by the respondent for the said year 1922 the sum of $1,027 instead of only the said sum of $380, whereby it suffered a pecuniary loss for the year 1922 of $647.
The suppliants therefore pray:
(1) That there be paid the sum of $736 to the board of trustees of the Roman Catholic separate schools for school section no. 2, township of Tiny.
(2) That it may be declared that the Acts or parts of Acts following: (a) Sections 36 (subsection 1) and 40 of 34 Victoria (1870-1871) chapter 33—an Act entitled “An Act to improve the Common and Grammar Schools of the Province of Ontario.”
(b) Section 23, subsection 6, of 6 Edward VII (1906), chapter 52—an Act entitled “The Department of Education Act.”
(c) Section 4, subsection 3 and 4, of 7 Edward VII (1907), chapter 50—an Act entitled “An Act to amend the Department of Education Act.”
(d) Section 6 of 9 Edward VII (1909), chapter 88—an Act entitled “The Department of Education Act.”
(e) Section 1 of 10 Edward VII (1910), chapter 102—an Act entitled “An Act to amend the Department of Education Act.”
(f) Section 6 of chapter 265 of the Revised Statutes of Ontario, 1914—an Act entitled “The Department of Education Act.”
(g) Sections 33, 34, 37, 38 and 39 of chapter 268 of the Revised Statutes of Ontario (1914) and amendments thereto—an Act entitled “The High Schools Act.”
(h) Sections 2 and 3 of 12-13 George V (1922), chapter 98, an Act entitled “The School Law Amendment Act, 1922.”
(i) Section 2 of 14 George V (1924), chapter 82—an Act entitled “The School Law Amendment Act, 1924.”
prejudicially affect the suppliants’ rights as granted by 26 Vic. (1863), c. 5, and secured by the B.N.A. Act, 30-31 Vic. (1867), s. 93 and are ultra vires in so far as they affect the rights of the suppliants.
(3) That it may be declared that the suppliants and each of them have the right to establish and conduct courses of study and grades of education such as are now conducted in what are designated as continuation schools, collegiate institutes, and high schools, and that any and all regulations pur- porting to prohibit, limit or in any way prejudicially affect such right are invalid and ultra vires.
(4) That it may be declared that the class of persons being separate school supporters represented by the suppliants are exempt from payment of rates imposed for the support of so-called continuation schools, collegiate institutes and high schools not established or conducted by the suppliants or by other boards of trustees of Roman Catholic separate schools.
(5) (Further or other relief).
In the statement of defence (as amended) the Attorney-General for the Province of Ontario, in answer to the Petition of Right and on behalf of His Majesty the King, said, in effect, as follows:
1. He admits the allegations contained in par. 1 of the Petition of Right, but except as hereinafter expressly admitted denies all other allegations in the Petition of Right contained and puts the suppliants to the proof thereof.
2. He denies that any right of either of the suppliants within the meaning of s. 93 of the B.N.A. Act, 1867, as claimed in par. 8 of the Petition of Right, has been, or is, prejudicially affected by any of the several Acts of the Legislature of Ontario as in the said par. 8 alleged.
3. He denies that any of the said Acts in said par. 8 prejudicially affects any right or privilege with respect to denominational schools which any class of persons had by law in the said Province on 1st July, 1867, when the B.N.A. Act, 1867, went into effect (hereinafter referred to as “at the Union”) within the meaning of s. 93 of the said B.N.A. Act, or that any of the said Acts or any part thereof is ultra vires the Legislature of the Province as alleged in par. 9 of the Petition of Right.
4. By a series of legislative acts from 1843 to 1863 inclusive, the law relating to the establishment, maintenance, regulation and control of common schools, including separate schools, in Upper Canada was from time to time altered; and at the Union the law governing the establishment, maintenance, regulation and control of Roman Catholic separate schools was contained in an Act of the Parliament of Canada passed in 1863 (26 Vic., Canada, c. 5) and in an Act of the said Parliament entitled “The Upper Canada Common School Act” (C.S.U.C., 1859, c. 64) together with the Regulations in force made pursuant to the last-named Act.
5. In and by the said Act of 1863 relating to Roman Catholic separate schools, which recites that it is just and proper to bring the provisions of the law respecting separate schools more in harmony with the provisions of the law respecting common schools, it was, among other provisions for that purpose enacted that:
(a) The trustees of separate schools should perform the same duties and be subject to the same penalties as trustees of common schools (s. 9);
(b) The teachers of separate schools should be subject to the same examinations and receive their certificates of qualification in the same manner as common school teachers generally (s. 13);
(c) All judges, members of the Legislature, the heads of the municipal bodies in their respective localities, the Chief Superintendent and Local Superintendent of common schools and clergymen of the Roman Catholic Church, should be visitors of separate schools (s. 23); and—
(d) The Roman Catholic separate schools (with their registers) should be subject to such inspection as may be directed from time to time by the Chief Superintendent of Education, and should be subject also to such regulations as may be imposed from time to time by the Council of Public Instruction for Upper Canada (s. 26).
6. The duties and penalties of trustees of separate schools, the qualification of teachers, and the rights and obligations of supporters of Roman Catholic separate schools in respect of the general conduct, management and control of the said separate schools, were determined and prescribed at the Union by the said “The Upper Canada Common School Act” (C.S.U.C., 1859, c. 64) and by the Regulations made and imposed in pursuance thereof by the Council of Public Instruction for Upper Canada then in force. 7. The only distinction in the law governing common schools in general at the Union and that governing the Roman Catholic separate schools related to religious instruction. In all other respects the law and regulations were the same. Any part of a legislative grant to which any school would otherwise be entitled which was not earned or was forfeited because the school was not conducted according to the School Law and Regulations remained the property of the Province.
8. In 1896 the functions formerly vested in the Council of Public Instruction and in the Chief Superintendent of Education were suspended by an Act of the Legislature of Ontario (39 Vic. 16) and vested in a Department of the Provincial Government called the Department of Education and the Minister of Education of the said Province respectively.
9. Subject to the limitation provided by s. 93 of the B.N.A. Act, the Legislature of Ontario may exclusively make laws in relation to education, and the several Acts referred to in the Petition of Right and alleged by the suppliants to be ultra vires of the Legislature are amendments to the school law made from time to time in the interests of primary education in the Province.
10. All of the said Acts are within the competence of the Province and none of the said grants authorized by or made pursuant to any of the said Acts mentioned in par. 8 of the Petition of Right are legislative grants within the meaning of s. 20 of the Separate Schools Act of Upper Canada of 1863 (26 Vic., c. 5).
11. He denies that the total sum of $3,401,818 mentioned in pars. 10 and 11 of the Petition of Right was or is a fund granted by the Legislature for the support of common schools and for common school purposes within the meaning of s. 20 of the above-mentioned Act (26 Vic., c. 5) as claimed in par. 11, or that the schools conducted by the suppliants were entitled to share in such fund according to the provisions of the said Act, or that the continuation schools or collegiate institutes or high schools, referred to in par. 10 thereof, are common schools within the meaning of the said Act or of the Upper Canada Common School Act (C.S.U.C., 1859, c. 54) as claimed in par. 12 of the Petition of Right. 12. The high schools of the Province are in substitution for the grammar schools of the late Province of Upper Canada as re-organized and modified by Ontario legislation from time to time. The said grammar schools were not “common schools” or schools within the meaning of the Upper Canada Common School Act, but were secondary schools. Collegiate institutes are high schools having a prescribed number of teachers and pupils which, on complying with the Regulations of the Department of Education with respect thereto, may be raised to the rank of a collegiate institute.
13. Continuation schools, which were inaugurated in Ontario by an Act entitled “An Act respecting Continuation Schools” (1909, 9 Edward VII, c. 90) are not common schools, within the meaning of either the Upper Canada Common Schools Act or the Act relating to Separate Schools of 1863, but are intermediate schools for secondary education designed to give instruction in the courses of study prescribed for high schools in order to relieve congestion or to provide high school education where not otherwise available.
14. He denies that under and by virtue of the above-mentioned Act of 1863 (26 Vic., c. 5, s. 14) and of the B.N.A. Act, 1867 (s. 93) the separate school supporters represented by the suppliants are exempted from payment of the rates imposed for the support of common schools or that it is ultra vires of the Legislature of Ontario to impose on such persons payments and rates for the support of continuation schools, collegiate institutes or high schools as alleged and claimed by the suppliants in pars. 13 and 14 of the Petition of Right. He submits that none of the said schools are “common schools” within the meaning of s. 14 of the said Act of 1863 (26 Vic., c. 5).
15. He further denies that either of the suppliants or the boards of trustees of Roman Catholic separate schools (urban) is or are entitled to establish and conduct in separate schools the courses of study and grades of education that are carried on in continuation schools, collegiate institutes and high schools, or any of them, as alleged in par. 15 of the Petition of Right, and also denies that such courses of study and grades of education were ever established by law in connection with Roman Catholic separate schools prior to 1st July, 1867, as in said paragraph alleged.
16. He submits that the suppliants are not entitled to any of the declarations or other relief as prayed in the Petition of Right and that it should be dismissed.
I.F. Hellmuth K.C. and T.F. Battle for the appellants.
W.N. Tilley K.C. and McGregor Young K.C. for the respondent.
ANGLIN C.J.C.—This proceeding was instituted in order to determine the validity of three claims of “Roman Catholics” in the province of Ontario with respect to Education:—
(A) Their claim “to establish and conduct courses of study and grades of education in Catholic separate schools such as are now conducted in continuation schools, collegiate institutes and high schools”; and that “all regulations purporting to prohibit, limit or in any way prejudicially affect such right or privilege are invalid and ultra vires;”
(B) Their claim to exemption from taxation for the support of continuation schools, collegiate institutes and high schools not conducted by their own boards of trustees;
(C) Their claim to a share in public moneys granted by the Legislature of the province of Ontario “for common school purposes” computed in accordance with what they assert to have been their statutory rights at the date of Confederation.
After a long and somewhat bitter struggle, the Separate Schools Act of 1863 (26 Vic., c. 5) was enacted by the Legislature of the province of Canada. That statute, the appellants maintain, re-established the rights and privileges now in question. It was intituled: “An Act to restore to the Roman Catholics in Upper Canada certain Rights in respect to Separate Schools,” and remained in force at Confederation. Whatever rights and privileges the Catholics of Upper Canada enjoyed under it in respect to their separate schools were made permanent by s. 93 (1) of the British North America Act, 1867. That section, authoritatively designated a code of legislative jurisdiction on the subject of Education for the older provinces of Canada (Brophy v. Att. Gen. of Manitoba[3]), reads, in part, as follows:—
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;
(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec;
(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education * * *
As put by Magee J.A., in the present case, the safeguarding provisions of s. 93 “should be interpreted and effectuated in abounding good faith.”[4] So to construe and apply sub-s. 1 of s. 93 that its manifest purpose shall not be defeated is the function of the courts.
The rights and privileges which sub-s. 1 of s. 93 of the B.N.A. Act protects are rights and privileges “with respect to denominational schools” which “any class of persons have by law in the Province at the Union.” It is well established that the “class of persons” whose legal rights and privileges are thus safeguarded is to be determined according to religious belief and that “Roman Catholics together” form such a class. As trustees, vested in their representative character with rights and privileges of members of that class, vindication of which is sought in these proceedings, the status of the appellants to maintain their petition of right was conceded at bar. Ottawa S.S. Trustees v. Ottawa Corporation[5]; Ottawa S.S. Trustees v. Mackell[6].
It is, no doubt, also abundantly clear that only “rights or privileges” which existed “by law” at Confederation are protected by s. 93 (1). The statute expressly so states; and it has been so determined by the highest authority. Maher v. Portland[7].
Any practice, instruction or privilege of a voluntary character, which, at the date of the passing of the Act, might be in operation
is not a “legal right or privilege”[8].
On the other hand, the “rights or privileges” within s. 93 (1) are not only those “in respect to denominational teaching,” as some casual expressions of Lord Buckmaster in the Mackell case[9] might suggest. There is no allusion in the Separate Schools Act of 1863 to religious instruction. There may be an invasion of a “right or privilege with respect to denominational schools” which, although most prejudicial to those schools, does not directly affect them in their “denominational aspect.” The decision in Ottawa S.S. Trustees v. Ottawa Corporation[10], likewise delivered by Lord Buckmaster, makes this abundantly clear. A statute substituting a commission composed of Catholics, but nominated by the Government, to manage the Ottawa separate schools in lieu of the elected board of trustees was there held ultra vires as prejudicially affecting the right or privilege of the supporters of Catholic separate schools to have them managed by their own elected trustees.
The appellants submit that the Provincial Courts have misapprehended the scope and purpose of the Act of 1863 and also the effect upon it of sub-s. 1 of s. 93 of the B.N.A. Act. The view taken below is thus expressed by Hodgins J.A.[11]
The rights in respect of denominational schools, generally speaking, were the establishment and conduct of them by and under the immediate supervision of the Church which desired them, either in Quebec or Ontario, subject to regulations made pursuant to statute law. Rights and privileges in such schools, so far as they were “in relation to education” (as carried on by them), if affected, were to be dealt with by the Legislatures of the Provinces, subject to an appeal, not to the Courts, but to Federal authority, which was to correct any infringement of those rights and privileges. These belonged not to a denomination as the creator and guardian of separate schools, but to the schools themselves, as part of a system of education. It was to the Provinces that education was committed and it is right that the systems of education established by them and the rights flowing therefrom, should be governed by their Legislatures and not by the Courts. The appellants point out that there is no reference in the statute of 1863 to “immediate supervision of the Church” and contend that the view that the redress of separate school supporters against provincial legislation adversely affecting their pre-Confederation legal rights and privileges is confined to an appeal to the federal authority ignores the provisions of sub-s. 1 of s. 93 of the B.N.A. Act. The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training.
Any statute or regulation that would materially diminish or curtail the scope of the education which denominational schools were, at the date of Confederation, legally entitled to impart, or that would tend to restrict the period during which supporters of such schools, Catholic or Protestant, were then legally entitled to have the education of their children subject to the influence of denominational control and instruction, would “prejudicially affect a right or privilege with respect to denominational schools” enjoyed by the class of persons of which such supporters form a section. Catholics deem it of vital importance that denominational influence over, and instruction of, their children should continue during the period of their secondary education. Any attempted interference with such educational rights or privileges, whether by statute or by regulation purporting to be made under statutory authority, contravenes sub-s. 1 of s. 93; the remedy is to invoke “the jurisdiction of the ordinary tribunals of the country”; the right of appeal to the federal executive under sub-s. 3 does not apply. This latter subsection has to do with acts of the provincial authorities, which, although not ultra vires, so affect rights and privileges theretofore enjoyed by a religious minority, Protestant or Catholic (it may be under post-Confederation legislation), as to constitute, in the opinion of the Governor in Council, a griev- ance calling for Federal intervention. (Brophy v. Att. Gen. of Manitoba[12]).
It would require an Act of the Imperial Legislature prejudicially to affect any right or privilege reserved under provision 1, and if the (statutes or) regulations impeached do prejudicially affect any such right or privilege, to that extent they are not binding on the appellants. The Mackell Case,[13] ubi sup.
It was held by Rose J.[14], with the approval of the Appellate Divisional Court, that, because the rights or privileges of the separate schools at Confederation in regard to legislative money grants depended upon legislation of the former province of Canada and such grants were therein (26 Vic., c. 5, s. 20) described as “the fund annually granted by the Legislature of this Province” and “all other public grants, investments and allotments for common school purposes now made, or hereafter to be made by the Province,” the Province of Ontario, newly created in 1867, was unaffected by any obligation in regard thereto and Catholic separate school supporters were not assured of a legal right to share in any appropriations or grants to be made by Ontario for common school purposes. This view is utterly at variance with the spirit and intent of s. 93 (1) of the B.N.A. Act. Unless the legislatures of Ontario and Quebec are debarred from prejudicially affecting the rights and privileges of the respective religious minorities in regard to maintenance and support which their denominational schools enjoyed at Confederation under legislation of the former Province of Canada, the protection of such rights and privileges afforded by sub-s. 1 of s. 93 becomes illusory and the purpose of the Imperial legislation is subverted.
Moreover, by s. 129 of the B.N.A. Act, the Separate Schools Act of 1863 was continued in force “as if the Union had not been made,” subject only to a power of repeal or alteration “according to the authority * * * of the Legislature under this Act.” That power of repeal or alteration is, like all other provincial legislative jurisdiction over education, subject to the restriction imposed by sub-s. 1 of s. 93. That the deprivation or diminution of a right to share in financial aid out of public moneys assured by law to their denominational schools at Con- federation would prejudicially affect a privilege of Roman Catholics in regard to those schools seems incontrovertible.
It is also urged that inherent in the conception of a legislature is the untrammelled right to make or withhold grants of public moneys and to attach thereto such conditions as it may see fit. That is, no doubt, true of every sovereign Parliament whose powers are unrestricted; it was true of the Legislature of the Province of Canada up to 1867; and it is likewise true since Confederation of a Canadian Provincial Legislature, save as otherwise provided in the B.N.A. Act. But, as Lord Herschell said, speaking for the Judicial Committee, in Brophy v. Att. Gen. of Manitoba[15].
It must be remembered that the Provincial Legislature is not in all respects supreme within the province. Its legislative power is strictly limited. * * * In relation to the subjects specified in sect. 92 of the British North America Act, and not falling within those set forth in sect. 91, the exclusive power of the Provincial Legislature may be said to be absolute. But this is not so as regards education, which is separately dealt with and has its own code * * * in the British North America Act. * * * It may be said to be anomalous that such a restriction as that in question should be imposed on the free action of a Legislature, but is it more anomalous than to grant to a minority who are aggrieved by legislation an appeal from the Legislature to the Executive Authority? And yet this right is expressly and beyond all controversy conferred.
To impugn the efficacy of a restriction placed by s. 93 of the B.N.A. Act on the control of a provincial legislature over rights in regard to aid out of public moneys for denominational schools existing by law at Confederation would be to challenge the power of the Imperial Parliament, when creating a legislature, to impose on the exercise of one or more of its functions such limitations as, in its discretion, it may deem advisable.
(A) While the right of the trustees to determine the courses of study in separate schools rests primarily on the duty of management expressly imposed on them, a much discussed issue on this branch of the case was whether, in affording the secondary education undoubtedly imparted, as will presently appear, at and prior to Confederation, by schools established under the Common Schools Act and conducted as common schools (and not improbably in some Catholic separate schools), trustees were exercising powers conferred on them by law, or whether their doing so was merely a practice lacking legal sanction, but tolerated by the educational authorities.
The Trustees of a Catholic separate school, under the Act of 1863, were elected
for the management of such separate school (s. 3)
and had (s. 7)
all the powers in respect of separate schools that the Trustees of Common Schools (had) and (possessed) under the provisions of the Act relating to Common Schools (C.S.U.C., 1859, c. 64);
and they were required (s. 9) to
perform the same duties and (were) subject to the same penalties as Trustees of Common Schools.
The teachers of separate schools were required to have the same qualifications (s. 13) and were liable to the same obligations as teachers of the common schools (s. 9).
The preamble of the Act of 1863 states its purpose to have been
to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to Separate Schools and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools.
It is, therefore, abundantly clear that, if, in 1867, trustees of common schools in Upper Canada had, by law, the right to provide in their schools for the secondary education now in question, Catholic trustees had, in the management of their separate schools, the same legal right.
Turning to the Common Schools Act in force in 1867 (C.S.U.C., 1859, c. 64), we find that it contains no limitation upon the scope of the education to be imparted or upon the courses of study to be conducted in the common schools.
In rural school sections school trustees were required inter alia (s. 27) to provide school premises; to contract with, employ and pay teachers; to permit all residents between the ages of 5 and 21 to attend their schools (sub-s. 16); to exclude unauthorized text-books; and to report the number of children over 5 years of age and under 16 years of age in the school section and the number of “children and young persons” taught (distinguishing the sexes and those over and under 16 years of age), the average attendance, the branches of education taught with the numbers in each branch, and the text-books used. By s. 32 provision was made for the inclusion of all the school sections of a township under a single board of five trustees, who
shall be invested with the same powers and be subject to the same obligations as Trustees (of schools) in Cities and Towns, by the seventy-ninth section of this Act.
Urban school trustees were required, inter alia, (s. 79 (8))
to determine (a) the number, sites, kind and description of schools to be established and maintained in the City, Town, or Village; also (b) the Teacher or Teachers to be employed; the terms of employing them, the amount of their remuneration, and the duties which they are to perform; (and) also (c) the salary of the local Superintendent of Schools appointed by them, and his duties;
(sub-s. 11) to lay before the municipal councils an estimate of the sums required for purchasing or renting school premises, buildings, sites, etc., and (sub-s. 17) to report as in the case of rural trustees.
While there was no express statement of the ages of children eligible for attendance at urban common schools, the provision of sub-s. 16 of s. 27 conferring a right of attendance on all residents up to 21 years of age, was made applicable by sub-ss. 17 and 18 of s. 79.
Every common school teacher employed by the trustees (s. 27 (8)), on terms and for a remuneration and to perform duties to be determined by them (s. 79 (8)), was obliged
to teach diligently and faithfully all the branches required to be taught in the School according to the terms of his engagement with the Trustees and according to the provisions of this Act (s. 82 (1)).
The same obligations were imposed on teachers of separate schools (26 Vic., c. 5, s. 9).
Local superintendents were required to see that the common schools were conducted according to law (s. 91 (6)) and to report to the Chief Superintendent (sub-s. 12) the branches taught, the number of pupils in each branch, the text-books used, the average school attendance, etc.
County and Circuit Boards were also provided for and were empowered
to select (if deemed expedient) from a list of text-books recommended or authorized by the Council of Public Instruction, such books as they may think best adapted for use in the Common Schools of the County or Circuit (s. 98 (3)).
A Council of Public Instruction, constituted in 1850 (13-14 Vic., c. 48, s. 36), was continued (s. 114) and was empowered, inter alia, (s. 119 (4)) to make such regulations from time to time, as it deems expedient, for the organization, government and discipline of Common Schools, for the classification of Schools and Teachers * * *
and (sub-s. 5)
to examine, and at its discretion, recommend or disapprove of text-books for the use of schools. * * *
It is noteworthy that these powers were conferred in the Common Schools Act; and sub-s. 4 of s. 119 of that Act appears to have been the only statutory provision giving jurisdiction to the Council of Public Instruction to make regulations affecting common (or separate) schools. The language of sub-s. 4 may be compared with the wider terms in which the Board of Education, the predecessor of the Council of Public Instruction, had been empowered by the statute of 1846 (9 Vic., c. 20, s. 3)
to make from time to time all needful rules and regulations for the management and good government of such School (s).
By s. 26 of the Separate Schools Act of 1863 separate schools were declared to be
subject to such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada.
These regulations were, no doubt, such as the Council of Public Instruction might legally make in exercising the power conferred upon it by s. 119 (4) of the Common Schools Act (the only provision which purports to confer, and define the subjects of, its jurisdiction to regulate), without derogating from the rights of management and control conferred on trustees by the Separate Schools Act. The Separate Schools Act, 1863, contained nothing corresponding to sub-s. 5 of s. 119 of the Common Schools Act which expressly gave supervision over text‑books for common schools to the Council of Public Instruction.
Such appear to be the relevant statutory provisions on this branch of the appeal.
The trustees of all separate schools were elected for their “management.” The trustees of urban common schools were explicitly required to determine the kind and description of schools to be carried on under their charge since 1847 (10-11 Vic., c. 19, s. 5 (3)), when the Legislature appears to have thought it advisable to make some distinct provisions for cities and towns, which were extended to villages in the C.S.U.C. of 1859, c. 64, s. 79 (8). In our opinion the effect of the legislation in force at Confederation, construing it without the aid of any extraneous evi- dence, is that it conferred on all separate school trustees, as part of, or incident to, the management and control of the schools entrusted to them, the right to determine the subjects of instruction in and the grading of such schools. In the cases of urban trustees, and of township boards, constituted under s. 32 of the C.S.U.C., 1859, c. 64, this right is expressly conferred. (C.S.U.C., 1859, c. 64, s. 79 (8); 26 Vic., c. 5, s. 7.)
There is, moreover, no doubt, as appears from the following extracts, that this view of the scope of the trustees’ powers and duties was acted upon from 1847 by the provincial authorities. Indeed most of the official statements to be quoted were made after 1850, when the respondent asserts that the duty of school trustees to determine the courses of study and the books to be used in the schools under their charge, imposed by the statutes of 1841 (4-5 Vic., c. 18, s. 7 (4)) and of 1843 (7 Vic., c. 29, s. 44 (7)), was transferred to the Council of Public Instruction under the power to regulate common schools then given to it. (13-14 Vic., c. 48, s.38 (4); C.S.U.C., 1859, c. 64, s.119 (4)). Following a suggestion of their Lordships of the Privy Council in Citizens’ Insurance Co. v. Parsons[16], we make of the official reports and documents in evidence the use indicated by Lord Blackburn in Clyde Navigation Trustees v. Laird[17]. See, too, Assheton Smith v. Owen[18]; Goldsmiths’ Company v. Wyatt[19]; and Dunbar v. Roxburghe[20]. Reference may also be made to Van Diemen’s Land Co. v. Table Cape Marine Board[21], and to some observations of the Lord Chancellor in delivering the report of the Judicial Committee in the recent Labrador Boundary Case[22].
Dr. Egerton Ryerson, from whose reports and official circulars the extracts about to be quoted are taken, had been assistant superintendent prior to 1846 and was chief superintendent of the schools of Upper Canada from that time until 1876. His statutory duties were, inter alia, (C.S.U.C., 1859, c. 64, s. 106) (5) To prepare suitable forms, and to give such instructions as he may judge necessary and proper, for making all reports and conducting all proceedings under this Act, and to cause the same, with such general regulations as may be approved of by the Council of Public Instruction for the better organization and government of Common Schools, to be transmitted to the officers required to execute the provisions of this Act;
(6) To cause to be printed from time to time, in a convenient form, so many copies of this Act, with the necessary forms, instructions, and regulations to be observed in executing its provisions, as he may deem sufficient for the information of all officers of Common Schools, and to cause the same to be distributed for that purpose;
Dr. Ryerson would appear to have used the Journal of Education, constituted by His Excellency the Governor General in Council for that purpose (Ex. 34, p. 100, n. 4.), as a medium of communication with trustees and teachers.
In his report to the Governor for the year 1847, at p. 118 (Journal of Education, 1849, Vol. II), the Chief Superintendent said, referring to conditions existing prior to the legislation of that year (10-11 Vic., c. 19):—
The statistics afford a clear but painful proof of the very elementary character of the Common Schools, and the absolute necessity of employing every possible means of elevating it.
In enumerating the number of pupils in the different branches, he said that
the 1,773 reported as pursuing “other studies” seem to have been pursuing “higher studies,” for under this head in Abstract C will be found 41 Common Schools in which Latin and Greek were taught, 60 in which French was taught, and 77 in which the elements of Natural Philosophy were taught;
and, citing a New York report shewing the schools of that State to be more advanced in their studies, he proceeded—
The introduction of these studies into our Common Schools has been sanctioned by the Legislative department of the Government.
In his Circular of 1848, explaining the objects of the Act of 1847 in regard to cities and towns and suggested general regulations, the Chief Superintendent said, at p. 197 (Exhibit 6):—
The Board of Trustees will, of course, determine the age at which pupils will be admitted in each kind, or class, of schools, or in each department of a School comprising more than one department; the particular School which pupils in the different localities of a City, or Town, shall attend; the condition of admission and continuance in each School; the subjects of instruction and the text-books to be used in each School, and in each department; * * *
Page 6, paragraph V of the Chief Superintendent’s report of 1849, dealing with the “Classification of Pupils, and Subjects taught in the Schools” shews that these subjects included: Mensuration, Algebra, Geometry, Elements of Natural Philosophy, Vocal Music, Linear Drawing, and other Studies, such as the Elements of the Latin and Greek Languages, etc. * * * which are taught in some of the Common Schools.
In the same report, at p. 14, we are told by the superintendent of common schools for the Simcoe District that in the schools in seven townships (which he names) including the township of Tiny,
the teachers are capable of imparting a thorough English, and, in some instances, a good classical education.
And, at p. 50 of the same report, the Chief Superintendent said:
It is also worthy of remark, that the Board of Trustees in each city and incorporated town in Upper Canada, has authority to establish Male and Female Primary, Secondary and High Schools, adapted to the varied intellectual wants of each city and town; while in each country School Section, it requires the united means of intelligence of the whole population to establish and support one thoroughly good School.
At p. 18 of his report of 1850, the Chief Superintendent said:
The board of trustees in each city, town and incorporated village, having the charge of all the schools in such municipality, is able to establish and classify them in such manner as to meet the wants of all ages and classes of youth. This is done by the establishment of primary, intermediate and high schools. In some instances, this system of the classification or gradation of such schools has been commenced by establishing a large central school under the direction of a head master, with assistants, having a primary and intermediate, as well as high school department—the pupils being promoted from one department to another according to their progress and attainments. In other instances the same object is pursued by having one high school and intermediate and primary schools in different buildings and parts of the city or town. These schools can also be male, or female, or mixed, as the board of trustees may judge expedient.
At p. 204 the Chief Superintendent repeated the observations already quoted from p. 50 of his report of 1849. At p. 309 of the same report, 1850, (Exhibit 9), speaking of cities, towns and incorporated villages, he said:
Each Board has the charge of all the Common Schools in the municipality, determines their number and kind, whether primary, intermediate or high schools, whether classical or English, whether denominational or mixed,
and, at p. 310:
In regard to the large central school houses in cities, towns, and villages, after the noble examples of the boards of trustees in Hamilton, London, Brantford, Brockville, and Chatham, etc. * * * It may often be found more economical to bring all grades of schools into one building.
In the annual report of 1852, at p. 41, Table B, is given the list of higher subjects taught in the common schools and at p. 43, Table C, the text-books, which include Latin, Greek and Euclid. In 1863 the annual report shews 20,991 pupils over 16 years of age attending the common schools and 12,094 in “other studies”, which, no doubt, included Latin and Greek.
As has been already stated, the trustees of separate schools were granted the same powers as trustees of common schools (26 Vic., c. 5, s. 7).
In Ottawa Separate Schools Trustees v. Mackell[23], their Lordships of the Judicial Committee, discussing the legal rights and privileges of separate school trustees, say that
the “kind” of school referred to in sub-s. 8 of s. 79 (C.S.U.C., 1859, c. 64) is, in their opinion, the grade or character of school * * *
The provisions of the Common Schools Act were generally understood to contemplate that, at all events in cities, towns, and villages, and in rural districts where s. 32 of the Act of 1859 applied, the trustees should determine, according to their conception of local educational requirements, the subjects to be taught and the scope of the education to be imparted in the school or schools under their charge and would appear to confer upon them the legal right to do so. It was a statutory duty in 1867 to provide in all common schools education suitable for pupils ranging from 5 to 21 years of age and of both sexes.
With the law in the state thus indicated it is not surprising that in many of the larger centres, where higher educational standards were necessary to meet local requirements, common schools, at and prior to Confederation, were carrying on, with the approval and encouragement of the provincial educational authorities, courses in practically all the branches of learning now included in the curricula of high schools as well as public schools and were imparting to their pupils the education requisite to enable them to matriculate into the University, to enter the Normal School, and to take up the studies prescribed for the “learned professions”.
From the official documents in evidence we learn that such secondary education—apparently a complete high school course—was being given before Confederation in the central common schools of the cities of Hamilton and London, that similar courses for girls were recommended for the city of Toronto, and were contemplated for the cities of Kingston and Guelph by the common school trustees of each of those three cities—all with the endorsation and active encouragement of the Chief Superintendent of Education and, presumably, with the knowledge and sanction of the Legislature, to which his annual reports were submitted.
In the annual report of 1852 (already referred to) in Appendix A, at p. 132, the Chief Superintendent, referring to the city of London, says:
The board of trustees deeming it proper to place within the reach of every class of the community, and of every child who might evince a taste and talent for a more extended range of studies than are generally pursued at common schools, facilities for the acquisition of literary and scientific attainments, equal to those afforded by the higher order of academies, directed the principal to introduce, in addition to the other studies, that of classics, and during the past year about twenty-five pupils have availed themselves of the advantages thus offered in the abstract sciences.
In the annual report of 1855 (Exhibit 12) the local superintendent of schools at Hamilton says, at p. 282:
Any child under twenty-one years of age, whose parents reside within the city limits, and who is qualified for admission into the junior class, can, by applying, gain an entrance into the Central School, and can remain there, free of charge, until he has passed through the various classes, and if desirous, qualify himself for matriculation at the University. The course of instruction includes reading, writing, arithmetic, geography, grammar, history (Canadian, English and general), history of English literature, linear drawing, vocal music, book-keeping, human physiology, astronomy, elements of natural philosophy and chemistry, algebra, Euclid and mensuration, natural history, botany and geology, and the Latin, Greek and French languages. * * * The teachers at present engaged in the city schools number thirty, and include a principal, a classical master, a French master, a writing master, a music school master, thirteen division teachers in the Central School, and thirteen primary teachers.
And, in the annual report of 1863, the Honourable Mr. Justice John Wilson, who had been local superintendent at London, at p. 154, reporting on the London common schools, says:
The board was unwilling to be connected with the County Grammar School. At the date secondly mentioned (1855), which I look upon as a turning point in our educational affairs in this place, something was added to the English course, with a few boys in the elements of the Latin language, forming merely a classical nucleus. * * * Now the English course is at once extensive and thorough, embracing every subject of importance to the mechanic, the merchant or the professional man. The classical department has been extended so as to embrace Latin, Greek and French, and made comprehensive enough to qualify students for entering upon the study of any of the learned professions, or to matriculate in any college or university in the province.
The annual report for 1867 (p. 89), showed in the counties, cities, towns and villages 31,132 common school pupils over 16 years of age, 72,987 doing high school work and 8,019 in the “higher studies”.
While our attention was not drawn to any explicit evidence to that effect, there is little room for doubt that the attendance of pupils at the common schools who were taking the courses of high school work was included in the returns made for the purpose of ascertaining the proportion of the legislative grants to which the several school sections in which such schools were carried on were entitled (C.S.U.C., c. 64, ss. 106 (1) and 91 (1)); and also in determining the amount of public moneys to be apportioned to the separate schools (26 Vic., c. 5, s. 20). That could properly be done only if the trustees of common schools had the legal right to conduct the classes in which high school or classical education was given.
In the Journal of Education for September, 1865, (Exhibit 37), commenting on the new Grammar Schools Act, Dr. Ryerson (at p. 132) says:
The Common School law amply provides for giving the best kind of a superior English education in the High Schools, in the cities, towns and villages, with primary ward schools as feeders (as in Hamilton); while to allow Grammar Schools to do Common School work is a misapplication of Grammar School funds to Common School purposes; Common Schools are already adequately provided for. * * *
Again, in the issue of the same Journal for May, 1867, at p. 81 (Exhibit 38)—only two months before Confederation, Dr. Ryerson writes:
And according to the best opinions any course of studies which would attempt to be equally excellent for the higher education of both boys and girls, would be simply worthless for either. * * * It therefore becomes advisable to discourage the present unusual attendance of girls at the Grammar Schools.
But it is often urged that “if our girls do not go to the grammar school there is no other provision made for their receiving an advanced education in our public schools.” This is a mistake. The Consolidated Common School Act, section 79, subsection 8, authorizes the Common School Trustees of every city, town, or incorporated village “to determine (a) the number, sites, kind and description of schools to be established and maintained in the city, town or village (whether they be high schools for boys and girls, or infant schools, etc.), also (b) the teacher or teachers to be employed; the terms of employing them; the amount of their remuneration; and the duties which they are to per- form.” There is thus every legal facility for the establishment of high schools for girls throughout the country, and it is in such institutions that those pupils ought to find the means of prosecuting the advanced studies which they now seek in the grammar schools, and which if they find there, it is at the expense of not employing their time to the best advantage, and of studying some subjects which are of very little use to them. (Italics appear in the original.)
The law in force at Confederation was continued by s. 129 of the British North America Act and remained practically unchanged until 1871.
In the Journal of 1868, p. 84 (Exhibit 24), Dr. Ryerson says:—
I regret to observe that the evil of inducing girls to enter the Grammar Schools, with the apparent object of unduly swelling the number of pupils, has not diminished but has increased, although there are still several schools which are not open to this reproach. It therefore becomes the duty of the Department, in its administration of the law, to take care that no encouragement is offered to a course of action which is contrary to the intention of the Grammar School Law and Regulations, and injurious to the best interests of the schools and pupils.
The law invests School Trustees with ample powers for the establishment and maintenance of schools or departments of schools in which girls, who have passed through the elementary Common School studies, may obtain that higher culture and instruction which they may require. But the organization and studies of the Grammar Schools are not adapted for mixed classes of grown up girls and boys, nor is it desirable that such mixed classes should exist.
The matter is of so serious an aspect, that I felt it my duty to consult the Principal Law Officer of the Crown in this province as to the proper interpretation of the Law, and the following is the opinion he has given:—
“My interpretation of the Grammar School Act in relation to the question submitted by you is that boys alone should be admitted to those schools, and that consequently, the Grammar School Fund was intended for the classical, mathematical and higher English education of boys.”
It therefore became my duty, as thus instructed, to apportion the grant of 1868 on the basis of the boys’ attendance.
As against all this evidence indicative of the view current and acted upon by the provincial educational authorities about the time of Confederation, that trustees of common and separate schools had the legal right to provide for the secondary education of pupils attending their schools up to matriculation, the only document in the printed record on which the respondent relies shews the adoption by the Council of Public Instruction in 1858 of a regulation prescribing the courses of study for common schools, which was declared in the Separate School Manual of 1863, issued by the provincial educational authorities, to be applicable to Roman Catholic separate schools (Exhibit 5A). These “prescribed studies” may be regarded as those “required to be taught” in the common schools (Exhibit 34 (1864), p. 75), i.e., as a minimum and not exclusive. While the curriculum of studies so prescribed was comparatively restricted, it included the first, six books of Euclid and mensuration of surfaces and solids, and, for boys, trigonometry, and other matters in the discretion of the trustees. Indeed it comprised most, if not all, that is obligatory in the curriculum prescribed for high schools to-day.
Our attention has been drawn to extracts (not printed in the Record) from a letter of the Chief Superintendent, published in The Globe newspaper of the 27th of March, 1866, copied in the Journal of Education and reprinted in Exhibit 33, intituled “Grammar School Manual” (compiled by J. George Hodgins, LL.B., Deputy Superintendent), at pp. 73-4. The main purpose of this letter was, as indicated by its heading in the Manual, to emphasize “The Necessity for Uniform Text-books in all Common Schools.” Incidentally the writer alludes to the power and duty of the Council of Public Instruction
to prescribe the subjects of instruction in the public schools