Ontario English Catholic Teachers' Assn. v. Ontario (Attorney General)

Ontario English Catholic Teachers' Assn. v. Ontario (Attorney General)
Collection
Supreme Court Judgments
Date
2001-03-08
Neutral citation
2001 SCC 15
Report
[2001] 1 SCR 470
Case number
27363
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
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 27363
Decision Content
Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15
The Ontario English Catholic Teachers’
Association, Marshall Jarvis, Claire Ross
and Annemarie Ross Appellants
v.
The Attorney General for Ontario Respondent
and between
The Ontario Public School Boards’
Association, the Toronto District School
Board, the Ontario Secondary School
Teachers’ Federation, the Elementary
Teachers’ Federation of Ontario, Joleene Kemp,
David Edwards and Robert Churchill Appellants
v.
The Attorney General for Ontario Respondent
and
The Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Alberta,
the Ontario Catholic School Trustees’ Association,
the Association franco-ontarienne des conseils
scolaires catholiques, the Association des conseillers(ères)
des écoles publiques de l’Ontario, the Alberta Catholic
School Trustees’ Association, the Board of Lethbridge
Roman Catholic Separate School District No. 9,
Dwayne Berlando, 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, Moose Jaw School
Division No. 1, Saskatoon School Division No. 13,
Estevan School Division No. 95, the Public School
Boards’ Association of Alberta, the Board of
Trustees of the Edmonton School District No. 7 and
Cathryn Staring Parrish Interveners
Indexed as: Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General)
Neutral citation: 2001 SCC 15.
File No.: 27363.
2000: November 8; 2001: March 8.
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 ontario
Constitutional law ‑‑ Education ‑‑ Funding -- School boards -- Right to financial management and control -- Right to tax – Provincial legislation creating new governance and funding model for all school boards in Ontario ‑‑ Legislation authorizing Minister of Finance to make regulations prescribing tax rates for school purposes -- Legislation also providing for supervision of school boards’ financial affairs by Minister of Education and Training and for take over of a board’s financial control under certain conditions -- Whether legislation prejudicially affecting any protected denominational rights guaranteed by s. 93 of Constitution Act, 1867 – Education Act, R.S.O. 1990, c. E.2, Divisions B, D and F – Education Quality Improvement Act, 1997, S.O. 1997, c. 31.
Constitutional law ‑‑ Conventions -- Education ‑‑ Funding -- Public school boards ‑‑ Property taxes -- Provincial legislation creating new governance and funding model for all school boards in Ontario -- Whether constitutional convention protects design of public school system -- Whether constitutional convention protects right to levy or determine property taxes – Education Act, R.S.O. 1990, c. E.2, Divisions B, D and F -- Education Quality Improvement Act, 1997, S.O. 1997, c. 31.
Constitutional law – Delegation -- Taxation – Education – Provincial legislation authorizing Minister of Finance to make regulations prescribing tax rates for school purposes – Whether guarantee of no taxation without representation infringed -- Whether delegation constitutional – Constitution Act, 1867, s. 53 – Education Act, R.S.O. 1990, c. E.2, s. 257.12(1)(b) – Education Quality Improvement Act, 1997, S.O. 1997, c. 31.
The 1997 Education Quality Improvement Act (“EQIA”) amended the Ontario Education Act and created a new governance and funding model for all school boards in the province, in part to address a disparity of revenues between boards by allocating funds on a per-pupil basis. The EQIA removed the ability of school boards to set property tax rates for education and centralized taxation power in the hands of the Minister of Finance. The new model limits the power of boards to control their budgets and expenditures but guarantees local control over denominational expenditures. The denominational tax base has not been altered because residential taxpayers continue to designate their education taxes for either the public or the separate school system. School boards derive revenue from property taxes collected by municipalities, provincial grants, development charges, and some other limited sources, but the power to make regulations prescribing tax rates for school purposes is vested in the Minister of Finance. The Lieutenant Governor in Council has a restricted power to make regulations governing grants. Grants may consist of foundation grants allocated to all boards at a per-pupil rate to cover the basic cost of an educational program, special purpose grants allocated for particular needs, and pupil accommodation grants for infrastructure. Grants are designated as classroom or non-classroom spending with some restrictions on how the types of grants may be used. Total annual funding of a board is subject to a ceiling. The Ministry of Education and Training may investigate the financial affairs of a board if the board has a fiscal year deficit, or fails to make certain payments, or if the Minister has concerns about the board’s ability to meet financial obligations. An investigator may recommend to the Minister that the Ministry take administrative control of a board. The Minister cannot interfere with the denominational aspects of a separate school board nor with the linguistic or cultural aspects of a French-language board. The Lieutenant Governor in Council may revoke the Ministry’s control over a board.
In Ontario, denominational education rights provided by law in 1867 are protected by s. 93(1) of the Constitution Act, 1867 . Both groups of appellants argue that the new funding and governance model violates s. 93(1) because it interferes with claimed rights to local control over property taxation for education purposes and to local control over school finances and management. The second group of appellants further argues that the EQIA violates a constitutional convention that has developed regarding such matters, and that the delegation of control over the setting of education tax rates to the Minister of Finance violates ss. 53 and 54 of the Constitution Act, 1867 . The first group of appellants succeeded at trial in establishing that separate school boards have a right to local taxation and that the right had been violated but this holding was reversed on appeal. All other claims failed both at trial and before the Court of Appeal.
Held: The appeal should be dismissed. The new school funding and governance scheme is constitutional.
Under s. 93 of the Constitution Act, 1867 , the province has exclusive jurisdiction to legislate with respect to education, but it cannot prejudicially affect a right or privilege affecting denominational schools enjoyed by a particular class of person by law in effect at the time of Confederation. The animating principles of s. 93 are religious freedom and equitable treatment. The aspects approach is used to determine whether a right claimed is protected by s. 93 . This approach recognizes that provinces may alter their education systems but prevents an expansion of the original purpose of s. 93 . The rights guaranteed by s. 93 do not replicate the law of 1867 verbatim.
The EQIA does not prejudicially affect the right of separate schools to financial management and control. In Ontario, at the time of Confederation, the Scott Act gave separate school trustees the same powers and duties as common school trustees. These duties and powers, however, were subject to a broad power of regulation by the Chief Superintendent of Education for Upper Canada and the Council of Public Instruction for Upper Canada. The province’s regulatory power has long been enforced by the courts and the fact that it may have gone unexercised is irrelevant. The aspects approach to the guarantees of s. 93(1) allows Ontario to manage its denominational education system as it sees fit, so long as it does not prejudicially affect a denominational right or privilege or a non-denominational aspect necessary to deliver denominational elements of education. The EQIA affects only secular aspects of education and does not interfere with aspects of financial management and control necessary to provide denominational elements of education. It applies to all schools alike and impartially. As well, the power to take financial control of a board is not prejudicial interference with a right to financial management and control. The protections provided by ss. 257.52(1) and 257.40(5) of the amended Education Act meet the requirements of s. 93(1) . Section 257.52(1) specifically forbids the Minister from interfering with the denominational aspects of a Roman Catholic school board, and whether such an interference has occurred can be reviewed by the courts, pursuant to s. 257.40(5). It should be noted also that provincial supervision of a school board cannot be for an indefinite period of time.
The EQIA does not prejudicially affect the right of separate schools to fair and equitable funding. The Scott Act explicitly conferred on separate boards a legal right to tax their supporters and local taxation was the dominant component of education funding in Ontario until the enactment of the EQIA. The right to tax, however, is not automatically protected by s. 93(1) simply because it existed in 1867. The ability to tax supporters is not a right or privilege “with respect to Denominational Schools” and s. 93(1) only protects the right to funding, not the specific mechanism through which funding is delivered. The Scott Act established local taxation and provincial grants as two funding mechanisms. The province is generally free to alter the funding allocation between these sources as it sees fit, provided that the source relied on delivers sufficient funds to operate a denominational education system equivalent to the public education system. Under the EQIA, local taxation remains, but the Minister of Finance now sets the applicable tax rates throughout the province. Provincial education grants are used to equalize education funding between school boards. The evidence indicates that the new model will benefit denominational boards. The new model treats separate schools in a like manner as public schools and imports a standard for fair and equitable funding. It also guarantees that minority language rights protected under s. 23 of the Canadian Charter of Rights and Freedoms will be respected by education funding in Ontario.
Since separate school boards have neither a right to independent taxation nor an absolute right to management or control, no such rights could possibly exist for public school boards. Subject to limited protection in s. 93 of the Constitution Act, 1867 , they have no constitutional status. The Scott Act and the Common Schools Act use the public system as a benchmark for the rights of separate boards but s. 93(1) does not protect the design of the public school system. In addition, no constitutional convention protects the design of the public system or a right of school boards to levy and determine property taxes. Constitutional conventions relate to principles of responsible government, not to how a power is exercised. They ensure that the legal framework of the Constitution will operate in accordance with generally accepted principles, but there is no generally accepted principle in Canada as to the design of the public education system. Every province has a different design and Ontario’s use of a particular design for an extended period of time reflects consistency in public policy. It does not announce the arrival of a new principle of responsible government. The recognition of a constitutional convention would be inconsistent with the plenary power over education given to the provinces by s. 93 .
The EQIA meets the guarantee of “no taxation without representation” provided in s. 53 of the Constitution Act, 1867 . A delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. If the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. The EQIA clearly and unambiguously authorizes taxation within the enabling statute. It expressly authorizes the Minister of Finance to prescribe tax rates for school purposes. The delegation of the setting of the rate takes place within a detailed statutory framework that sets out the structure of the tax, the tax base, and the principles for its imposition. Property taxes for education purposes are intra vires the province. The delegation, therefore, is constitutional. Section 54 of the Constitution Act, 1867 was not relied upon nor is it relevant.
Cases Cited
Referred to: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; City of Winnipeg v. Barrett, [1892] A.C. 445; Brophy v. Attorney-General of Manitoba, [1895] A.C. 202; Ottawa Separate Schools Trustees v. Mackell, [1917] A.C. 62; Ottawa Separate Schools Trustees v. Ottawa Corporation, [1917] A.C. 76; Hirsch v. Protestant School Commissioners of Montreal, [1928] A.C. 200; Roman Catholic Separate School Trustees v. The King, [1928] A.C. 363; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Reference Re Education Act (Que.), [1993] 2 S.C.R. 511; Ontario Home Builders’ Association v. York Region Board of Education, [1996] 2 S.C.R. 929; Adler v. Ontario, [1996] 3 S.C.R. 609; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45; Waldman v. Canada, 7 IHRR 368 (2000); Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference Re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Arsenault‑Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1; Re Ottawa Separate Schools (1917), 41 O.L.R. 259; Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), 151 D.L.R. (4th) 346; Eurig Estate (Re), [1998] 2 S.C.R. 565; Ottawa Separate School Trustees v. City of Ottawa (1915), 34 O.L.R. 624; Reference Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; Reference Re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793; Reference Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134; Executors of Will of Hon. Patrick Burns, deceased v. Minister of National Revenue, [1947] S.C.R. 132; Attorney-General v. Wilts United Dairies (1921), 37 T.L.R. 884, aff’d (1922), 91 L.J.K.B. 897; Gruen Watch Co. of Canada Ltd. v. Attorney-General of Canada, [1950] O.R. 429; Bulova Watch Co. v. Attorney-General of Canada, [1951] O.R. 360; The King v. National Fish Co., [1931] Ex. C.R. 75; Hodge v. The Queen (1883), 9 App. Cas. 117.
Statutes and Regulations Cited
Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, ss. 27, 79, 106(1), (7), (9), (10), (11), (12), (13), (17), 103 to 113, 114 to 125.
Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5, ss. 7, 20, 26.
Administration of Justice Act, R.S.O. 1990, c. A.6.
Alberta Act, S.C. 1905, c. 3, s. 17 [reprinted in R.S.C. 1985, App. II, No. 20].
Bill of Rights (1688).
Canadian Charter of Rights and Freedoms, ss. 23 , 29 .
Constitution Act, R.S.B.C. 1979, c. 62.
Constitution Act, 1867 , preamble, ss. 53 , 54 , 90 , 92(2) , 93 , 93A .
Constitution Act, 1982, s. 45 .
Constitution Amendment, 1997 (Québec), SI/97-141.
Constitution Amendment, 1998 (Newfoundland Act), SI/98-25.
Education Act, R.S.O. 1990, c. E.2 [am. 1997, c. 31], ss. 234(1), (2), (3), (14), Division B, 257.7, 257.12(1)(b), (3) to (5), 257.19, Part IX Division D, 257.30(1), (5), (6), 257.31, 257.33 to 257.49, 257.50, 257.52, Division E, Division F, 257.106, 257.107.
Education Quality Improvement Act, 1997, S.O. 1997, c. 31.
Manitoba Act, 1870, S.C. 1870, c. 3, s. 22 [reprinted in R.S.C. 1985, App. II, No. 8].
Saskatchewan Act, S.C. 1905, c. 42, s. 17 [reprinted in R.S.C. 1985, App. II, No. 21].
Authors Cited
Kelsey, Brian A. An Educator’s Guide to Funding and Governance. Aurora, Ont.: Aurora Professional Press, 1999.
Small, Joan. “Money Bills and the Use of the Royal Recommendation in Canada: Practice versus Principle?” (1995), 27 Ottawa L. Rev. 33.
APPEAL from a judgment of the Ontario Court of Appeal (1999), 44 O.R. (3d) 7, 120 O.A.C. 116, 172 D.L.R. (4th) 193, dismissing appeals by the appellants and allowing an appeal by the respondent from a judgment of Cumming J. (1998), 162 D.L.R. (4th) 257, [1998] O.J. No. 2939 (QL), declaring the Education Quality Improvement Act, 1997 unconstitutional in part and declaring the Education Act of no force and effect in part. Appeal dismissed.
Paul J. J. Cavalluzzo and Fay C. Faraday, for the appellants the Ontario English Catholic Teachers’ Association, Marshall Jarvis, Claire Ross and Annemarie Ross.
Brian A. Kelsey, Q.C., Maurice A. Green, Michael A. Hines and Elizabeth J. Shilton, for the appellants the Ontario Public School Boards’ Association, the Toronto District School Board, the Ontario Secondary School Teachers’ Federation, the Elementary Teachers’ Federation of Ontario, Joleene Kemp, David Edwards and Robert Churchill.
Janet E. Minor, Robert E. Charney, and Michel Y. Hélie, for the respondent.
Monique Rousseau, for the intervener the Attorney General of Quebec.
Eugene B. Szach and Denis Guénette, for the intervener the Attorney General of Manitoba.
Timothy Leadem, for the intervener the Attorney General of British Columbia.
Robert C. Maybank, for the intervener the Attorney General for Alberta.
Peter D. Lauwers, for the intervener the Ontario Catholic School Trustees’ Association.
Paul S. Rouleau, for the interveners the Association franco-ontarienne des conseils scolaires catholiques and the Association des conseillers(ères) des écoles publiques de l’Ontario.
James E. Redmond, Q.C., and K. P. Feehan, for the interveners the Alberta Catholic School Trustees’ Association, the Board of Lethbridge Roman Catholic Separate School District No. 9 and Dwayne Berlando.
Robert G. Richards, Q.C., for the interveners the Boards of Education of 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, Moose Jaw School Division No. 1, Saskatoon School Division No. 13, and Estevan School Division No. 95.
Dale Gibson, for the interveners the Public School Boards’ Association of Alberta, the Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish.
The judgment of the Court was delivered by
1 Iacobucci J. -- In many countries, education issues are matters of public policy, to be decided by democratic debate. In Canada, we are in the rather unusual position of having certain education rights constitutionally entrenched in s. 93 of the Constitution Act, 1867 . This state of affairs is the product of our history, stemming from what this Court has referred to as “a solemn pact resulting from the bargaining which made Confederation possible”: Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1173, per Wilson J.
2 This appeal again raises the scope and content of the rights protected under s. 93 in light of recent legislation passed by the legislature of Ontario. Before dealing with the issues in this appeal, it may be helpful to put this case in a wider context.
I. Background
A. General
3 Section 93 of the Constitution Act, 1867 gives effect to the historic compromise that was reached regarding education in Canada. It confers on the provincial legislatures the plenary power to enact laws in relation to education, subject to the rights of denominational schools. Denominational education rights are protected primarily by s. 93(1) , the provision at issue in this appeal. Section 93(1) reads:
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:
When the Canadian Charter of Rights and Freedoms was drafted in the early 1980s, the rights protected by s. 93 were specifically preserved. Section 29 of the Charter reads:
29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.
4 Section 93 applies directly to Ontario, Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia. However, only Ontario had denominational education rights conferred “by law” at the relevant time, and so the guarantees provided by s. 93(1) are of no importance in Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia. A modified version of s. 93 applies to the western provinces of Manitoba, Saskatchewan and Alberta: s. 22 of the Manitoba Act, 1870, S.C. 1870, c. 3; s. 17 of the Saskatchewan Act, S.C. 1905, c. 42, and s. 17 of the Alberta Act, S.C. 1905, c. 3. As a result of recent constitutional amendments, Quebec and Newfoundland have new constitutional frameworks for education rights. Quebec has removed the protection of denominational education rights altogether, by amending the Constitution so that ss. 93(1) through (4) no longer apply to Quebec: Constitution Amendment, 1997 (Québec), SI/97-141; s. 93A of the Constitution Act, 1867 . Newfoundland no longer has denominational schools, but instead guarantees the provision of courses in religion that are not specific to a religious denomination and guarantees that religious observances shall be permitted in a public school where requested by parents: Constitution Amendment, 1998 (Newfoundland Act), SI/98-25.
5 The rights protected by s. 93 , or its equivalent in certain provinces, have been the source of considerable litigation throughout our country’s history, both domestically and, more recently, internationally. See, e.g., City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.); Brophy v. Attorney-General of Manitoba, [1895] A.C. 202 (P.C.); Ottawa Separate Schools Trustees v. Mackell, [1917] A.C. 62 (P.C.); Ottawa Separate Schools Trustees v. Ottawa Corporation, [1917] A.C. 76 (P.C.); Hirsch v. Protestant School Commissioners of Montreal, [1928] A.C. 200 (P.C.); Roman Catholic Separate School Trustees v. The King, [1928] A.C. 363 (P.C.); Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Reference Re Bill 30, supra; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377 (“G.M.P.S.B.”); Reference Re Education Act (Que.), [1993] 2 S.C.R. 511 (“Quebec Education Reference”); Ontario Home Builders’ Association v. York Region Board of Education, [1996] 2 S.C.R. 929; Adler v. Ontario, [1996] 3 S.C.R. 609; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45, (“Alberta Public Schools”); and, Waldman v. Canada, 7 IHRR 368 (2000).
B. The Background of this Appeal
6 In 1997, the Ontario government, represented on this appeal by the respondent Attorney General for Ontario, passed Bill 160, the Education Quality Improvement Act, 1997, S.O. 1997, c. 31 (“EQIA”). The EQIA amended the Education Act, R.S.O. 1990, c. E.2, to create a new governance and funding model for all school boards in Ontario, including both public and separate (denominational) boards. To address a disparity of revenues between school boards, both between urban and rural boards and between separate and public boards, the EQIA allocates funds on a per-pupil basis. It also removes the ability of school boards to set property tax rates for education purposes, and centralizes this taxation power in the hands of the Minister of Finance. At the same time, the EQIA limits the power of school boards to control their budgets and expenditures, although it guarantees local control over denominational expenditures. Finally, the EQIA allows the Minister of Education and Training to take control of a school board temporarily if financial problems arise, again subject to certain protections, which are set out below.
7 Two challenges to the constitutionality of the EQIA were initiated in the Ontario Court (General Division) and were heard together. One challenge was brought by separate school supporters through the Ontario English Catholic Teachers’ Association group of appellants (“OECTA appellants”), the other by public school supporters through the Ontario Public School Boards’ Association group of appellants (“OPSBA appellants”). The OECTA represents over 30,000 separate school teachers in the province, while the OPSBA represents over 90 Ontario public school boards. Other organizations in the OPSBA group of appellants are the Ontario Secondary School Teachers’ Federation, representing over 35,000 public secondary school teachers in the province, the Elementary Teachers’ Federation of Ontario, representing over 60,000 public elementary school teachers and education workers, and the Toronto District School Board.
8 Both groups of appellants argue that the new funding and governance model violates s. 93(1) of the Constitution Act, 1867 because it interferes with claimed rights to local control over property taxation for education purposes and to local control over school finances and management. The OPSBA appellants further argue that the EQIA violates a constitutional convention that has developed regarding such matters, and that the delegation of control over the setting of education tax rates to the Minister of Finance violates ss. 53 and 54 of the Constitution Act, 1867 . These sections require, in part, that bills imposing a tax must originate in the House of Commons, and they apply to provincial legislatures by virtue of s. 90 of the Constitution Act, 1867 .
9 The Catholic community in Ontario is apparently divided as to the constitutional validity of the EQIA. The intervener Ontario Catholic School Trustees’ Association (“OCSTA”) represents 29 English-language separate school boards in the province. The intervener Association franco-ontarienne des conseils scolaires catholiques represents French-language separate school trustees. Both of these interveners support the respondent’s position that the EQIA is constitutionally valid. While there are also differences amongst public school supporters on this issue, the only non-governmental intervener supporting the respondent is the Association des conseillers(ères) des écoles publiques de l’Ontario, representing French-language public school trustees in Ontario.
10 The OECTA appellants succeeded at trial in establishing a right of separate school boards to local taxation for education purposes, and in establishing that this right had been violated by the EQIA. However, this holding was reversed on appeal. All other claims failed both at trial and before the Ontario Court of Appeal.
II. An Overview of Relevant Constitutional and Legislative Provisions
11 Section 93(1) of the Constitution Act, 1867 protects only those denominational education rights provided by law as of 1867. In Ontario, these rights were primarily conferred by An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5 (“Scott Act”), the last statute pertaining to separate schools enacted in Ontario prior to Confederation, and An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64 (“Common Schools Act”). Section 7 of the Scott Act empowered separate school trustees to tax their supporters and gave separate school trustees the same powers as public school trustees:
7. The Trustees of Separate Schools forming a body corporate under this Act, shall have the power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools, and shall have all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools.
Section 20 entitled separate schools to a share of provincial education grants:
20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities, according to the average number of pupils attending such school during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township.
Section 26 subjected separate schools to provincial regulation:
26. The Roman Catholic Separate Schools, (with their Registers), shall be subject to such inspection, as may be directed from time to time, by the Chief Superintendent of Education, and shall be subject also, to such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada.
The relevant provisions of the Common Schools Act affirmed that school boards and municipal governments had the ability, and indeed were required, to raise funds for education purposes through local taxation at the time of Confederation: ss. 27(10), 79(12), 123 and 124. Trustees were also given considerable scope to manage the local education system: ss. 27 and 79. However, the Common Schools Act also established two central education authorities and set out their powers: the Chief Superintendent of Education for Upper Canada (ss. 103 to 113) and the Council of Public Instruction for Upper Canada (ss. 114 to 25). The provisions of the Common Schools Act will be examined in greater detail below.
12 The amendments made to Ontario’s Education Act by the EQIA are lengthy and complex. I will refer only to those sections necessary to understand the central issues of this appeal. Part IX of the new Education Act is entitled “Finance” and contains most of the contested provisions. The new funding model provides five sources from which school boards can derive revenue (see Brian A. Kelsey, An Educator’s Guide to Funding and Governance (1999), at p. 118):
(i) residential property tax revenue from their own school supporters;
(ii) business property tax revenue shared between coterminous boards on the basis of student enrolment;
(iii) provincial grants, which equalize board disparities in revenues;
(iv) education development charges; and
(v) other sources, such as tuition fees from non-residents and the rental, lease or sale of surplus properties.
13 With regard to education taxes, s. 257.106 of the new Education Act declares inoperative the previous ability of all school boards in the province to raise funds through local taxation. Pursuant to s. 257.7, property tax rates are still levied for school purposes and collected by municipalities. However, s. 257.12(1)(b) now empowers the Minister of Finance to make regulations “prescribing the tax rates for school purposes for the purposes of section 257.7”. The prescribed rate may vary among municipalities and properties within a municipality: see ss. 257.12(3) to (5). Residential taxpayers continue to designate their education taxes for either the public or separate system, meaning that the denominational tax base has not been altered by the EQIA.
14 Turning to education grants, we see that s. 234(1) of the new Education Act empowers the Lieutenant Governor in Council to “make regulations governing the making of grants for educational purposes from money appropriated by the Legislature”. Of particular constitutional importance, subss. (2) and (3) of s. 234 restrict the exercise of this power. These provisions read:
234. . . .
(2) Regulations made under subsection (1) shall ensure that the legislation and regulations governing education funding operate in a fair and non-discriminatory manner,
(a) as between English-language public boards and English-language Roman Catholic boards; and
(b) as between French-language public district school boards and French-language separate district school boards.
(3) Regulations made under subsection (1) shall ensure that the legislation and regulations governing education funding operate so as to respect the rights given by section 23 of the Canadian Charter of Rights and Freedoms .
15 It should be recalled that s. 23 of the Charter protects minority language education rights in Canada. See Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference Re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; and Arsenault‑Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1. The appellants have not raised any arguments with respect to the guarantees provided by s. 23 , and there has been no suggestion that the EQIA violates s. 23 . As a result, this appeal deals only with denominational rights under s. 93(1) of the Constitution Act, 1867 , and nothing stated herein is intended to affect s. 23 rights.
16 The guarantees provided in ss. 234(2) and (3) apply not only to grants made under s. 234(1), but also to revenue available to a school board from tax rates levied under Division B of Part IX of the Education Act (“Education Taxes”) and education development charges under Division E of Part IX of the Education Act (“Education Development Charges”): s. 234(14). Furthermore, s. 257.107 requires that a committee be struck to report by December 31, 2003 on whether “the legislation and regulations governing education funding meet the standard set out in subsection 234 (2) of the Education Act”.
17 The grants themselves consist of foundation grants, special purpose grants, and pupil accommodation grants. Foundation grants are allocated on a per-pupil basis and are intended to cover the basic cost of providing an educational program for one school year (see Kelsey, supra, at pp. 138-40). The per-pupil funding rate is the same for all school boards, although it is higher for secondary students than for elementary students. Special purpose grants are allocated for a wide range of particular needs, including special education, language needs, small or remote school needs, adult education, teacher compensation, transportation, administration and governance, early learning, and debt charges (see Kelsey, supra, at pp. 140-51). Pupil accommodation grants are essentially focussed on funding infrastructure needs, including school operation and renewal, new pupil places, and capital debt servicing. All grants are designated for either classroom or non-classroom spending. Funds designated for non-classroom spending can be re-allocated for classroom spending categories, but funds designated as classroom spending, as well as certain special purpose grants, cannot be re-assigned. The new funding model also determines the total annual funding a school board is to receive, thereby providing a ceiling on board expenditures for the year.
18 Division D of Part IX of the new Education Act provides for the supervision of school boards’ financial affairs by the provincial Ministry of Education and Training. Under s. 257.30(1), the Minister of Education and Training may direct an investigation of the financial affairs of a board if: (a) the board has a deficit for a fiscal year; (b) the board fails to pay certain debentures, debt instruments or interest due; (c) the board fails to pay any other debts or liabilities when due and the default is occasioned from financial difficulties affecting the board; or (d) if “the Minister has concerns about the board’s ability to meet its financial obligations”. The investigator reports to the Minister (s. 257.30(5)), but “may not recommend that control and charge over the administration of the affairs of the board be vested in the Ministry unless the investigation discloses evidence of financial default or probable financial default, of a deficit or a probable deficit or of serious financial mismanagement” (s. 257.30(6)). After reviewing the investigator’s report, the Minister may “give any directions to the board that he or she considers advisable” or may advise the Lieutenant Governor in Council to vest financial control of the board with the Ministry: s. 257.31. If the Lieutenant Governor in Council acts on this recommendation, the Minister assumes full control over the board: ss. 257.33 to 257.49.
19 This power is also subject to important limitations. Most significantly, the Minister cannot interfere with: “(a) the denominational aspects of a Roman Catholic board; (b) the denominational aspects of a Protestant separate school board; or (c) the linguistic or cultural aspects of a French-language district school board”: s. 257.52. Although the government has attempted to shield the exercise of the Minister’s Division D powers from judicial scrutiny by enacting a privative clause (s. 257.40), an exception is provided in s. 257.40(5) for the review of decisions impacting the guarantees in s. 257.52. A further limitation on the exercise of Division D powers is provided by s. 257.50, which requires the Lieutenant Governor in Council to revoke the Minister’s control over a board if “the Lieutenant Governor in Council is of the opinion that the affairs of a board no longer need to be administered under [Division D]” or if the board no longer has a deficit.
III. Judicial History
A. Ontario Court (General Division) (1998), 162 D.L.R. (4th) 257
20 In extensive and lucid reasons, Cumming J. held that the EQIA did not interfere with separate schools’ right to management and control. Although he concluded at p. 283 that “[i]nherent to the right of a separate school system is the right of management and control”, he also noted that the Scott Act imposed limitations upon the independent management of separate schools, primarily by subjecting separate schools to regulations imposed by a central education authority. Furthermore, s. 93(1) primarily protects denominational rights. Cumming J. therefore concluded at p. 286 that:
... there is not otherwise any evidence of any prejudicial effect on a denominational right because of the strictures upon the powers of management imposed by Bill 160. . . . The prescriptive elements of the new funding model will direct board spending to a considerable degree. However, there is nothing to suggest that Catholic boards will be prevented from taking denominational matters into account in all aspects of their operations, such as teacher hiring, curriculum, programs and in respect of capital facilities. [Emphasis in original.]
21 With regard to a right t