Minority Language Schools Don’t Have to Be Perfect: NWT v Association des parents ayants droit de Yellowknife
Minority language rights were at the centre of a recent case heard by the Northwest Territories Court of Appeal (“NWTCA”), with the court ruling that equality does not mean perfect schooling conditions. The court, in Northwest Territories (Attorney General) v Association des parents ayants droit de Yellowknife, 2015 NWTCA 2, set aside a lower court ruling and affirmed that minority language education rights set out in s. 23 of the Charter are not automatically granted.
This Yellowknife case is one of two recent language rights rulings to come from the court. The companion case, Northwest Territories (Attorney General) v Commission Scolaire Francophone, Territoires du Nord-Ouest, 2015 NWTCA 1, focused on the scope of the government’s discretion regarding admission to a French language school in Hay River. It also focused on s. 23 of the Charter, which sets out minority language education rights, and details who is entitled to those rights in subsections (1) and (2). Subsection (3) narrows the scope of the rights set out in (1) and (2) by linking the right to an adequate number of children to warrant the publicly funded minority language instruction. In the Hay River case, the NWTCA also set aside the trial judge’s order for building additional facilities, citing reasons set out in this case.
This case focused on the facilities and capacity of École Allain St-Cyr, a dedicated French language school built in Yellowknife in 1999. The plaintiffs (the respondents on appeal) included an association of parents claiming rights under s. 23 of the Charter. In 2005, the plaintiffs brought an action against the minority language school board claiming that the school’s facilities fell below the minimum standard required and were therefore unconstitutional.
They then sought a pretrial partial summary judgment asking for interim relief. The judgment granted partial relief, ordering the addition of two portable classrooms. After this ruling, the parties negotiated an agreement that the defendants would build two permanent classrooms (“Phase 1”) and would prepare plans for future expansion (“Phase 2”). The action was suspended, but after the Phase 1 work was completed, the plaintiffs reactivated the action.
A trial was held to resolve the dispute. The school board declined to participate, leaving the Northwest Territories Attorney General as the defendant. The judge accepted key points of the respondents’ claim. She held that the Commission was entitled to admit non-right holders under s. 23 to boost the numbers of minority language students, that the facility should be expanded through new construction to a capacity of 250 students and that sharing facilities with another nearby underused English language school was not constitutionally acceptable. The Attorney General appealed on all grounds. The respondents cross-appealed on a finding by the trial judge that daycare and pre-kindergarten education are not protected under s. 23.
The key legal issues of this case were as follows:
- what standard of review the appellate court should apply to the trial judge’s findings; and
- whether the minority language school in Yellowknife meets the minimum constitutional standards.
Justice Slatter, writing for the majority, found that there were numerous errors in the trial judge’s findings. He took issue with, among other things, the way that the trial judge had arrived at the numbers to justify granting an expansion of facilities at the school, noting that “[f]act findings based on a mistaken view of the underlying legal test are vulnerable to review” (para 37). The majority decided that appropriate standard of review was correctness.
In its review, the majority found that the trial judge had been incorrect in determining the scope of those entitled to rights under s. 23. It noted that there werer other errors, including taking pre-trial behaviour of the appellants into account when weighing evidence. This approach inappropriately affected her findings of fact: “The trial judge effectively lost sight of the onus of proving certain facts because of activity or inactivity outside the litigation” (para 49).
Justice Slatter found that the trial judge’s analysis of what constituted numbers that warranted the public funding of the minority language education rights was based on incorrect conclusions. The trial judge had allowed that some people who did not in fact have s. 23 rights could be included in the analysis, effectively skewing the factual findings about the school’s required capacity. As well, she based her decision on what would be desirable, which was the legal test. “The Charter does not create a right to perfect schools, only equality” (para 77).
In her dissent, Justice Rowbotham agreed with the majority’s decision that the cross-appeal should be dismissed. She disagreed that trial judge erred in her finding of facts related to s. 23 analysis or in her application of the legal test. She agreed that the trial judge erred in including non-right holders in the numbers analysis, but found that this error did not have a significant effect on the final outcome. She did not regard the other findings as errors. “In my view, her findings of fact are entitled to deference” (para 191).
This decision underscores the important role that trial judges play. They must find facts, accurately apply legal tests and principles and articulate all of their reasons clearly in their judgments. One of Justice Slatter’s critiques of the trial judge’s decision was that it was not clear. “There is no discrete section of the reasons setting out the ‘findings of fact’; summarizing the evidence is not the same thing as finding facts” (para 13).
Whether judgments are appealed or not, a clear articulation of the analysis behind legal reasoning and fact finding is important to the legal system as a whole. It helps counsel understand why judgments were made, it helps the legal community see what reasoning prevailed and, critically, it helps protect the rule of law by showing clearly that the decision was arrived at fairly and was not arbitrary.