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School Board Powers Only as Broad as Province Delegates – Including Charter Minority Language Educational Rights in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General)
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May 19, 2015
By Kiersten Amos, Former Lawyer at McInnes Cooper
On May 14, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedoms’ guarantee of minority language educational rights doesn’t give a school board the unilateral power to admit students to a French Language School other than those who are “eligible” under the relevant provincial legislation.
The SCC’s decision is notable because it’s the second within one month on the Charter’s section 23 guarantee of minority language educational rights. To read about the first one, Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, read McInnes Cooper’s: Can You Measure Equality? SCC Puts Substance Into Minority Language Educational Rights.
Practically, however, this decision is less about the Charter guarantee of minority language educational rights, and more about the breadth of a school board’s powers. The decision confirms that a school board’s powers, including in relation to minority language educational rights, are only as broad as what the province or territory delegates to it. So if a board, provincial government, parent or anyone else wants to know what powers a school board does – or doesn’t – have, the provincial law is the place to look.
In this case, the Yukon government administers its public schools directly with school councils. Yukon’s only school board is responsible for one French-language school. The regulations expressly define which students are “eligible” for admission into that school. A key issue was whether section 23 of the Charter gives the board the unilateral power to admit students other than those whom the regulation defines as “eligible”. The SCC said no:
Charter Right. Section 23 of the Charter gives certain Canadian citizens the right to have their children receive education in the province or territory’s minority language at government expense. The provinces and territories have the constitutional authority to make laws relating to education. The Charter sets a minimum so any laws must comply with it – but they can offer greater protections.
Delegation. Provinces and territories are responsible for education and can delegate the function of setting admission criteria for children of parents who don’t have rights under Charter section 23 to a school board. But the Yukon regulation doesn’t delegate this function to the school board and without that delegation, the school board doesn’t have the power to unilaterally set different admission criteria.
Still More to Come. As in its last decision on Charter section 23, this decision doesn’t necessarily end this case. The SCC was clear that the board can still claim that Yukon breached Charter section 23 – including with its approach to admissions. The SCC referred the case back to the trial court to determine this issue.
Read the SCC’s decision in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General, 2015 SCC 25 here.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Education Law Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2015. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
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