1995 Alberta Court of Queen's Bench Decision

MEMORANDUM OF DECISION
OF
THE HONOURABLE MR. JUSTICE V.W.M. SMITH
November 28, 1995

While every effort has been taken to ensure the accuracy of this document, please keep in mind that we are not responsible for any errors or emissions herein. If you do find an error we would be greatful if you would contact us so that we can make the correction.

IN THE COURT OF QUEEN'S BENCH OF ALBERTA
JUDICIAL DISTRICT OF EDMONTON
IN THE MATTER OF THE SCHOOL AMENDMENT ACT, 1994 BEING BILL 19
AND
IN THE MATTER OF THE SCHOOL ACT, 1988, c S-3.1, AS AMENDED

ACTION NO. 9401-12053

ALBERTA SCHOOL BOARDS ASSOCIATION OF ALBERTA,
PUBLIC SCHOOL BOARDS' ASSOCIATION OF ALBERTA,
THE BOARD OF TRUSTEES OF CALGARY BOARD OF EDUCATION NO. 19,
MARGARET WARD LOUNDS, ALBERTA CATHOLIC SCHOOL TRUSTEES' ASSOCIATION,
THE BOARD OF TRUSTEES OF LETHBRIDGE ROMAN CATHOLIC SEPARATE
SCHOOL DISTRICT NO. 9 AND DWAYNE BERLANDO

ACTION NO. 9403-12272

THE PUBLIC SCHOOL BOARDS' ASSOCIATION OF ALBERTA,
THE BOARD OF TRUSTEES OF THE EDMONTON SCHOOL DISTRICT NO. 7
AND CATHRYN STARING PARRISH

- and -
THE ATTORNEY GENERAL OF ALBERTA, THE GOVERNMENT OF ALBERTA
AND THE MINISTER OF EDUCATION

1. THE ISSUES

In 1994, amendments were made to the School Act, S.A. 1988, c.S-3.1 (the "School Act") which affected schooling in this province in a number of ways. The Plaintiffs challenge the validity of many of the amendments which appear in both the School Amendment Act, 1994, S.A. 1994, C29 (the "Amendment Act") and the Government Organization Act, S.A. 1994, c.G-8.5 (the "Organization Act")

The Plaintiffs have organized their complaints into three specific arguments and a Charter challenge. The first argument is that the impugned provisions contravene the constitutionally protected right to reasonable autonomy of local government institutions, including local school boards. Specifically, the Plaintiffs submit that school boards enjoy the constitutional right to autonomy in four areas: local democratic election; recruitment and direction of senior staff; program and management and fiscal control. The Defendants argue that local government institutions do not enjoy any constitutional guarantee of autonomy and that further, school boards do not possess the rights clamed. This argument will be referred to as the "autonomy issue".

The Plaintiffs submit that to restrict autonomy would violate the parents' and ratepayers' rights under s.2(b) and s.7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, (the "Charter").

The second argument will be referred to as the "non-discrimination issue". This argument deals with the right of public school boards to requisition taxes at the local level. Under the Amendment Act, this right is removed. Instead, municipalities pay into the Alberta School Foundation Fund (the "ASFF:") an amount calculated with reference to mill rates established by the provincial government. The funds are then distributed by the province to the various school boards.

The amendments allow separate school boards to opt out of the ASFF and to requisition taxes locally. Opted-out boards can receive a top-up from the ASFF to bring their revenues up to the level of the provincial average of all boards. If a separate board raises an amount through local requisition in excess of the provincial average of all boards, the excess is payable to the ASFF.

The Plaintiffs submit that s.17(2) of the Alberta Act, S.C. 1905, 4-5 Edw. VII, c.3, (the "Alberta Act"), prohibits the provincial government from discriminating between public and separate schools in the appropriation or distribution of monies. Insofar as the Amendment Act allows the separate boards, but not the public boards, to opt out of the ASFF and requisition taxes locally, the Plaintiffs submit that the Amendment Act violates s.17(2).

The Defendants submit that s.17(2) does not apply to taxes but only to government grants. Further, they submit that as the section only requires that funds be distributed fairly and does not apply to how the funds are raised, it is irrelevant whether a school receives its money through the ASFF or through direct taxation as long as there is no discrimination in the distribution of the monies.

The third and final argument is the "mirror equality" argument. The Plaintiffs assert that, per s.17(1) of the Alberta Act, separate schools enjoy all the rights, powers, privileges and liabilities of public schools. Further, separate schools were intended to "mirror" the situation of public schools in terms of governance and funding. The Plaintiffs argue that for separate schools to mirror public schools, so too must public schools mirror separate schools.

The Plaintiffs allege that separate schools enjoy the right to tax their supporters directly and the right to spend those taxes in any way they choose without interference or "enveloping" by the provincial government. Therefore, the Plaintiffs argue that under the principle of mirror equality, public school boards must enjoy the same rights; the impugned legislation is invalid as it violates s.17(1).

In response, the Defendants submit that s.17(1) does not apply to public school boards. Further, they challenge the existence of the separate school boards' rights alleged by the Plaintiffs. The Plaintiffs submit that the three arguments are not arguments in the alternative. Rather, they submit that the arguments are to be considered cumulatively.

II. THE QUESTIONS

Q1. Do local government institutions, (including local school boards), have a constitutional right to reasonable autonomy? Does the legislation affecting autonomy violate the Charter rights of the parents and ratepayers?

Q2. Does the impugned legislation contravene the "non-discrimination" provisions set out in s.17(2) of the Alberta Act?

Q3. Does S.17(1) of the Alberta Act contain a guarantee of "mirror equality" between public and separate school boards? If so, is the impugned legislative invalid for violating that guarantee?

III. THE SHORT ANSWERS

A1. Local government institutions, including school boards, do not have a constitutional right to the reasonable autonomy claimed by the Plaintiffs The allegation of Charter infringement is not proven.

A2. The impugned legislation does not contravene the "non discrimination" provisions of s.17(2) of the Alberta Act.

A3. Section 17(s) of the Alberta Act does contain a guarantee of "mirror equality" between public and separate school boards and the impugned legislation is invalid for violating that guarantee.

IV. DISCUSSION

A. THE REASONABLE AUTONOMY ISSUE

The Plaintiffs claim that the amendments to the School Act contained in the Amendment Act and the Organization Act contravene a constitutional guarantee of reasonable autonomy for local government institutions, including local school boards. Specifically, the Plaintiffs claim a constitutional right of autonomy to elect local representatives who are not subject to removal by central government, to raise revenue by taxation or otherwise as the boards see fit, to be free from constraints by other governments on decisions with primarily local consequences and to be free to recruit, select, appoint, direct, evaluate and discharge their chief executive officer without constraint.

The Plaintiffs claim that in 1867 and in 1905 when the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3 (the "Constitution") and the Alberta Act were respectively first enacted, local government institutions and school boards exercised a high degree of local democratic autonomy on behalf of the voters, ratepayers and others they represented. Furthermore, they claim that the terms of the Amendment Act and the Organization Act contravene a constitutional guarantee of reasonable autonomy for local government institutions, including school boards. They seek a declaration that there is implicit in the constitution of Canada, particularly in the term "municipal institutions" as used in s.92(8) of the Constitution, a law or convention of the constitution guaranteeing and requiring preservation of, and respect for, reasonable autonomy of local government institutions including local school boards, in Canada.

The Defendants take the position that there is no constitutionally protected right to reasonable autonomy for municipal institutions including school boards, either in law or by convention. In order to resolve this issue, one must consider the status of municipal institutions.

The Plaintiffs submit that the phrase "local government institutions" incorporates municipal institutions such as school boards and multi-function municipal governments. As such, the following analysis will rely on jurisprudence and materials that deal with both types of municipal institutions.

In considering whether the rights claimed exist, it is necessary to look more closely at the status of municipal institutions generally. If municipal institutions are merely creatures of the Legislature who enjoy only those powers delegated by the province, it follows that the province is entitled to withdraw those powers. However, if municipal institutions have inherent powers, independent of those granted by the Legislature, the Legislature has no authority to do so. There are two recognized approaches to characterizing municipal institutions: the "traditional" approach, and the "dual character" approach. These will be analyzed in turn.

Of the two, there is far more authority for the "traditional" approach. This approach describes municipal institutions merely as creatures of provincial legislatures, lacking constitutional status and having only the powers granted them by statute. Their powers are subject to abolition or repeal by the province.

S.M. Makuch, Canadian Municipal and Planning Law,
(Toronto: Carswell, 1983) at 114 indicates:

"Canadian municipalities have no status of their own, no inherent jurisdiction, and even no right to exist except by virtue of provincial fiat. There was no municipal representation or involvement in the formulation of the British North America Act. Indeed the only reference to municipalities in that Act is a provision placing them under provincial jurisdiction."

More recently, D.P. Jones & A.S. de Villars, Principles of Administrative Law, 2d ed. (Toronto: Carswell, 1994) at 26, footnote 22 noted:

"Any government, whether federal or provincial (including municipal governments, which derive their authority from provincial legislation)..." [emphasis added]

The "traditional" approach has been adopted by Canadian Courts. In R. v. Greenbaum (1993), 100 D.L.R. (4th) 183 at 1992 (S.C.C.), the Court noted:

"Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute."

And, in Shell Canada Products Ltd.. v. Vancouver (City) (1994), 20 M.P.L.R. (2d) 1 at 18 (S.C.C.), Sopinka J. noted:

"As creatures of statute, however, municipalities must stay within the powers conferred on them by the provincial legislature."

He then noted, with approval, the decision of R. v. Greenbaum, supra, and cited the above noted quotation from that case.

This Court specifically applied the "traditional" approach to Alberta's School Act in Jonson v. Board of Education of Ponoka County #3 (1988), 88 A.R. 31 (Q.B.) [hereinafter Jonson]. At p.53, Murray J. held:

"The School Act does not create an autonomous entity, rather many of the functions which the Board is empowered to do are reviewable and its actions are in the main controlled by government. This is illustrated in many parts of the School Act. The Minister of Education must approve the person who is to be the Boards' Superintendent of Schools. .... One can hardly say that the Board is master in its own house when dealing with its teaching and supervisory and administrative staff."

It should not be forgotten that, as is pointed out by Makuch, supra, municipal institutions have no constitutional status; neither municipal institutions generally, nor school boards specifically are granted distinct powers under the Constitution. As stated by J. L'Heureux, "Municipalities and the Division of Powers", in R. Simeon, ed., Intergovernmental Relations (Toronto: U. of T. Press, 1985) at 191):

"The Canadian Constitution guarantees neither the existence of municipal institutions nor the autonomy of municipalities."

This position was adopted in Atkins v. Calgary (City) (1994), 16 Alta. L.R. (3d) 429 at 437 (Q.B.) where Forsyth J. quoted with approval the comments of Rogers on The Law of Canadian Municipal Corporations, 2nd ed., vol. 1 at 11:

"Municipalities, though a distinct level of government for some purposes, lack constitutional status and are merely creatures of the Legislature, with no existence independent of the Legislature or government of the province."

Further, s.92(8) of the Constitution gives the provinces jurisdiction over municipal institutions and s.93 gives them exclusive jurisdiction over education. Thus, as municipal institutions operating in the educational sphere, the Plaintiff school boards are only entitled to such autonomy as is delegated by the provinces.

Powers held by municipal institutions were discussed in Mills and M.G. Mills Professional Corporation v. City of Edmonton and Edmonton Telephones, [1988] 1 W.W.R. 454 at 459 (Alta. Q.B.) [hereinafter Mills], where Berger J. referred to Ottawa Electric Light Co. v. Ottawa (1906), 12 O.L.R. 290 at 299 (C.A.):

"The rule of construction to be followed is, I think, correctly set forth in Dillon on Municipal Corporations, 4th ed., sec. 89, where he says: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others, first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied": a summary of the rule not at variance, I think, with the cases referred to in the judgment of the learned Chancellor as I understand them." [emphasis added]

Obviously, determination of the powers granted in "express words" can be made simply with reference to the relevant legislation. Those powers "necessarily or fairly implied in or incident to" the express powers can be ascertained in a likewise fashion. Given that the Plaintiffs are concerned with autonomy that has been taken away by amendments to the School Act, in most cases the appropriate legislation to consider is the 1988 School Act.

"Objects and purposes" of school boards need to be ascertained in order to determine which powers are "essential to the declared objects and purposes of the corporation...." It is probably sufficient to take these from the preamble of the 1988 School Act.

"WHEREAS the best educational interests of the student are the paramount considerations in the exercise of any authority under this Act; and

WHEREAS parents have a right and a responsibility to make decisions respecting the education of their children; and

WHEREAS there is one publicly funded system of education in Alberta whose primary mandate is to provide education programs to students through its two dimensions, the public schools and the separate schools; and

WHEREAS the education community in making decisions should consider the diverse nature and heritage of society in Alberta within the context of its common values and beliefs."

Thus, having set out some parameters, I will not turn to a consideration of whether school boards have the powers claimed by the Plaintiffs in light of the Mills, supra, test.

In their submissions, the Plaintiffs concede that the amendments do not interfere with the election of school boards. However, their concern is with the creation of compulsory school councils. Specifically, the Plaintiffs assert that as s. 17(9)(a) of the Amendment Act allows members to be appointed by the provincial government, and as school councils have powers that overlap those of school boards, the amendments indirectly remove from local citizens the democratic right to decide who should run the local schools on their behalf.

An examination of the relevant legislation reveals that the Plaintiffs' concerns are unfounded. Beginning with the School Act:

"17(5) The board shall make rules respecting the establishment of a school council, the election of members and the dissolution of the school council"

"17(9) The Minister may make regulations
(a) respecting the election or appointment of the members of a school council and the term or other conditions of election or appointment and the dissolution of a school council."

Not withstanding s.17(9)(a), I would point out s.17(2) of the Amendment Act which reads:

"17(2) The majority of the members of a school council shall be parents of students enrolled in the school."

It is clear from this provision, the substance of which did not change with the amendment, that statutorily the power over running schools remains in the hands of the citizens. As such, autonomy in this area has not been affected by the amendments.

"The Minister of Education must approve the person who is to be the Board's Superintendent of Schools. ... One can hardly say that the Board is master in its own house when dealing with its teaching and supervisory and administrative staff."

Here Murray J. was dealing with s.72(1) of the School Act, R.S.A. 1980, c.S-3 which read:

(i) the prior approval of the Minister, and
(ii) the regulations of the Minister,

a Superintendent of Schools and in his contract of employment include a statement of his position as executive officer of the board." [emphasis added]

In the 1988 School Act, amendments were made to the section concerning the superintendent:

"94(1) Subject to the regulations, a board shall, unless exempted by the Minister, appoint a superintendent of schools, who shall be the chief executive officer of the board and shall notify the Minister of the appointment forthwith.

95 The Minister may make regulations governing the qualifications of superintendents of schools." [emphasis added]

"94(1) Subject to Regulations, a board shall appoint an individual superintendent of schools for a period of not more than 3 years with the prior approval in writing of the Minister. [emphasis added]

(4) The superintendent shall supervise the operation of schools and the provision of education programs in the district or division, including but not limited to the following:

(b) ensuring that students have opportunity in the district or division to meet the standards of education set by the Minister;

(5) The superintendent shall report to the Minister with respect to the matters referred to in subsection (4)(a) to (d) at least once a year as required by the Minister.

94.1(1) A board shall not enter into a contract of employment or a contract renewing a contract of employment with an individual who is appointed as a superintendent under this section unless the contract includes a maximum term of not more than 3 years with no option to renew or extend the contract at the end of the term if the individual is not reappointed under this section.

(2) Not less than 3 months before a contract referred to in subsection (1) ends, a board may give notice to the Minister of its intention to reappoint the superintendent with the prior approval of the Minister.

(3) A reappointment of a superintendent shall be for a period of not more than 3 years.

(4) The Minister may approve or refuse to approve a reappointment under subsection (2), in any form the Minister considers appropriate, not more than one month after the Minister is notified under subsection (2).

(5) If the Minister refuses to approve a reappointment under subsection (2), the Minister shall give the board reasons in writing for the refusal.

(6) If the Minister refuses to approve a reappointment under subsection (2), the board shall appoint another individual as superintendent of schools in accordance with section 94".

It is apparent, as pointed out by Murray J. in Jonson, supra, that the autonomy of school boards in this area was restricted prior to the enactment of the impugned amendments. As such, the amendments only continue a pattern of restricted autonomy with respect to the recruitment and direction of staff; they do not take away any autonomy.

Taxation: The Plaintiff school boards claim that the power to raise revenue by taxation or otherwise is "implied in or incident to" the powers expressly granted them in the School Act. However, in Montreal Light, Heat & Power Consolidated v. The City of Westmount, (1926) S.C.R. 515 at 519, Anglin C.J.C. for the Court emphasized that with respect to the issue of taxation by school boards, such must be expressly authorized by the relevant legislation.

"To the valid imposition of a municipal or school tax there are always two requisites - statutory power to impose the tax and the due exercise of such power by the municipality or school corporation, as the case may be. Both the existence of the power and its efficient exercise must be clearly established, the taxpayer being entitled to the construction most beneficial to him in the case of reasonable doubt." [emphasis added]

Taxation by school boards is covered under s.64(1) of the School Act and while the section expressly addresses taxation by school boards, it expressly does not give the power to tax to school boards:

"164(1) Notwithstanding anything in this Part the Minister may, by order, authorize a board to levy and collect taxes with respect to its whole area." [emphasis added]

Spending: The Plaintiffs submit that the province's "Framework for Funding" document contains numerous restrictions and arbitrary limitations. They cite as an example the fact that expenditures on instructional support services provided by central administration (curriculum development, teacher in-service, psychological and achievement testing, guidance and counselling, and media and library services) will be restricted to 1.6% of the "Instruction Block, Plant Operations and Maintenance, and Student Transportation" funding in 1995-96, 1.2% in 1996-97 and 0.8% in 1997-98.

In considering the Plaintiffs' submissions on this point, it important, firstly, to keep in mind that the Framework for Funding document is one aspect of the move to full provincial funding of education, triggered by concerns over fiscal equity. The Framework for Funding document ensures that all Alberta students will have access to a quality education no matter where they live in the province. The Framework for Funding document is also consistent with the development of funding schemes in other provinces. Setting a "cap" on administrative costs in education is consistent with other government fiscal initiatives.

Secondly, it must be noted that while the restrictions limit the total amount of money that can be spent in a given area, within each area the restrictions do not direct how those monies are to be spent Within the limit of the "cap", it is for individual school boards to decide how funds should be allocated.

Based on the foregoing, it cannot be concluded that the impugned amendments violate the fiscal autonomy of school boards in this province.

The Plaintiffs argue that the impugned legislation impairs the ability of school boards to implement educational policies and manage their schools by preventing the boards from developing, acquiring and offering courses of study or instructional materials if the boards' actions are incompatible with ministerial goals and standards. The evidence of the Defendants, which I accept, is that it was not until the 1970 Alberta School Act that school boards were allowed to create courses of study or instructional materials and that, even then, ministerial approval in writing was required. Further, while the 1988 School Act allowed school boards to develop curriculum or obtain instructional resources, the course, program or instruction material was still subject to ministerial approval.

The Plaintiffs also express concern about giving school councils the capacity to make and implement policies in the school with respect to programs, expenditures, educational standards and school management. This issue was indirectly addressed above under "regarding election of local representatives".

The Plaintiffs' final concern in this area is that the Amendment Act infringes on the autonomy of school boards by requiring that they obtain prior approval to carry out any school building project or to dispose of school property. Approval is required whether or not the school board has funds of its own, in the former instance, and whether or not the board would have been able to dispose of school property without approval prior to the enactment of the impugned legislation, in the latter.

Obviously the requirement of prior approval does not violate a school boards' autonomy where the board requires financial assistance with a building project. The need for fiscal accountability should be readily understandable. However, the real concern over autonomy is that approval is required even where the school board can fully fund the project or where, prior to the Amendment Act, the board would have been allowed to dispose of school property without requiring approval.

The Defendants argue that it is relatively rare for a school board to be able to build a school from locally raised revenues or for a board to be in the position where, prior to the Amendment Act, it would have been able to sell unneeded buildings or lands without approval. On the first point specifically, the Defendants argue that given the infrequency with which this situation has arisen, the requirement for approval is a minor restriction which is amply justified by the advantages of the full provincial funding scheme.

On the second point, they submit that the right of a school board to sell unneeded lands was not one universally recognized in school legislation in the Confederating provinces.

Based on the foregoing, I cannot find that the impugned legislation violates school boards' autonomy in the areas of program and management.

The view that municipalities only have the powers given them by the province and that provincial governments can abolish or alter those powers has been adopted by the Supreme Court of Canada. In Lynch v. Canada N.-W. Land Co., ([1891] 19 S.C.R. 204 at 209 Ritchie C.J.C. quotes, with approval, Field J. in Meriwether v. Garrett, 102 U.S.R. 472 at 511:

"Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies and repeated by text-writers."

Academic support also exists for this position. D. Gibson, "The Constitutional Position of Local Government in Canada" (1980) 11 Man. Law J. 1 indicates, at 9:

"With the exception of a few that can tract their authority back to pre-Confederation statutes or chargers, all municipal corporations in Canada owe their existence to legislation of the senior orders of government, and without exception their existence and powers are subject to abolition or alteration by such legislation." [emphasis added]

"Since provincial legislatures have exclusive jurisdiction over them, they can ascribe more or less importance and more or less autonomy to their municipalities. They can increase or decrease municipalities' powers and they can modify their territorial boundaries as they see fit.

Legally, a provincial legislature could even completely eliminate municipal institutions in its province. In Brandon v. Municipal Commissioner for Manitoba, Admason, J. states: "It is not obligatory on the province to have municipalities and municipal institutions, and had such institutions never been brought into being all their powers would be in the provincial Government". However, politically speaking, it seems unthinkable for a provincial legislature to abolish its municipal institutions completely."

The second approach to characterizing municipal institutions posits that such institutions have a "dual character". On one hand, they are creatures of the provincial government with delegated powers (the "traditional" approach); on the other hand, they have inherent powers with respect to local needs.

In the latter respect, municipal institutions are not subject to the direction and control of the province and as such their powers cannot be withdrawn by the province.

This approach was set out by the Ontario Divisional Court in Nettleton v. Town of Prescott (1908), 16 O>L>R> 538 at 545, affirmed at (1910), 2 O.L.R. 561 (C.A.) which held:

"[On one hand] the municipal body may exercise its corporate powers for the benefit of the inhabitants in their local and particular interests or [on the other hand], it may act with delegated powers for the benefit of the community at large, and in the performance of a public service intrusted to it as a convenient method of exercising some of the functions of general government." [emphasis added]

The "dual character" approach was more recently considered by the Alberta Court of Appeal in Medicine Ht v. A.G. Canada (1985), 37 Alta. L.R. (2d) 208 [hereinafter Medicine Hat]. Per Prowse J.A. at 214:

"In The Law of Canadian Municipal Corporations, 2nd ed. (1971), vol 1, by Ian Rogers, Q.C., the author states at pp. 6-7:

"It has been judicially observed that "municipal government as it exists in Canada is of a dual or composite character" . . .

When the corporation is the agent of the province in executing general provincial laws within its territory, it can be said to be acting in its governmental aspect. On the other hand, when it is performing the duties of regulating the conduct and supplying the wants of the population in its geographical area by local laws, it is acting in its municipal aspect. In the latter aspect, it is, in a sense, a private corporation; in the former aspect, it is a branch of the state." [italics added]

The Plaintiffs claim that a school board has autonomy over local election, to recruit and direct staff, over fiscal control and over program and management. The question that must be answered is whether, in these activities, school boards are acting in their municipal aspect or as agent for the government.

In Medicine Ht, supra, the relevant legislation was the Municipal Government Act, R.S.A. 1980, c. M026. At p.215, the Court set out a test to determine the capacity in which a municipality acts:

"The opening words of the section - "the council may" - make it clear that in the exercise of its discretion the council may embark upon the activities here in issue. It is not required to do so by the province. It does so "in the best interests of [its] citizens", that is, in the best interests of the inhabitants of that locality and not for the reasons set out under provincial laws of general application . . . . In carrying on these operations it is not subject to the direction and control of the province. . . . In short, in acting as it did, it was not acting in its governmental capacity as an agent of the Crown but rather in its governmental capacity as an agent of the Crown but rather in its capacity as a private corporation for the benefit of the residents of the city." [emphasis added]

Thus, a possible test is based on the wording of the relevant legislation. Permissive provisions, making use of the word "may", indicate that the municipality is able to utilize its discretion in a given area. As such, the municipal institution does not act as an agent of the province. However, when "shall" is used in the legislation, discretion is taken from the municipality. As such, the municipality simply acts as an agent, doing whatever the province dictates.

In the School Act, most of the sections relevant to the claims of the Plaintiffs use directive ("shall") language. In addition to the provisions discussed above, other "shall" provisions affect school boards:

"14(1) A board that operates 1 or more schools shall designate a number of teachers as principals.

28(1) A board shall provide to each of its resident students an education program consistent with the requirements of this Act and the regulations.

44(1) A board must
(a) establish policies respecting the provision of educational services and programs;

74(1) Unless otherwise authorized under this Act, a board shall employ as a teacher only an individual who holds a certificate of qualification as a teacher issued under the Department of Education Act.

Permissive language is used largely in reference to internal matters of school management, for instance banking arrangements, investments, rules for internal procedure and meetings, etc.:

"52 The board may make rules governing its internal procedure and its meetings.

97 In addition to the employees referred to in section 94 and 96, the board may employ other non-teaching employees that the board considers necessary for its operation.

167(1) A board may borrow to meet current expenditures if the borrowings are required to be repaid by August 31 of the fiscal year in which they are borrowed." [emphasis added]

(a) subject to section 25, develop and offer courses, programs or instructional materials for use in programs or in schools;

(b) subject to section 17, provide for parental and community involvement in schools;

(a) prescribe courses of study, including the amount of instruction time, and authorize education programs and instructional materials for use in schools.

(b) approve any course, education program or instructional material that is submitted to the Minister by a board or another operator of a school for use in schools;

17(1) Parents of students attending a school may establish a school council for that school."

Thus, in most areas other than those dealing with internal matters of school management, the legislative wording is either directive ("the school board shall") or hybrid ("the school board may, subject to the Minister's approval"). Applying the test out of Medicine Hat, supra leads, then, to the conclusion that school boards act as agents of the province in matters of local election, recruitment and direction of staff, taxation and spending and programs and management.

As agents of the province, school boards depend on the province for their existence and their powers. As is recognized in the foregoing case law, powers given by the provincial government can also be taken away by the provincial government. Therefore, the "dual character" test cannot assist the Plaintiffs in their case.

The Plaintiffs request a declaration that reasonable autonomy is implicit in the guarantee of freedom of expression in s.2(b) of the Charter. They submit that the Amendment Act radically reduced the autonomy of local school boards in Alberta and, consequently infringed sections 2(b) and 7 of the Charter by encroaching seriously on the fundamental expressive freedom and on the liberty of parents to participate, politically and in other ways, in the design and implementation of programs and facilities for the education of their children, as well as on the liberty and freedom of all Albertans.

The Plaintiffs have the onus of proving a breach of the Charter on a balance of probabilities. Here, no evidence was offered that the parents or local ratepayers suffered reduced accessibility to elected representatives as a result of the impugned provisions of the act. Further, no evidence was adduced that parents suffered lost opportunities to convey values or view to their children.

The Plaintiffs' argument of reasonable autonomy must fail as it is apparent, using the traditional approach to classification, that school boards possess only those powers delegated to them by the province. Upon considering the relevant legislative provisions in light of the statutory construction of Mills, supra, it becomes clear that there exists no "express" guarantee of autonomy as claimed by the Plaintiffs.

Further, the autonomy claimed cannot be "necessarily or fairly implied in or incident to" the powers expressly granted by the legislation. Finally, it does not appear to be the case that the autonomy alleged by the Plaintiffs is "essential to the declared objects and purposes" of school boards. To use the words of Berger J. in Mills, supra at 462: "While it may be convenient, it is not indispensable.

The dual character approach is equally unhelpful in assisting the Plaintiffs in their claim. Using the Medicine Hat, supra test leads to the conclusion that school boards act as agents of the province in matters of local election, recruitment and direction of staff, taxation and spending and programs and management. As agents of the province, school boards depend on the province for their existence and their powers; powers given by the provincial government can also be taken away by the provincial government.

Finally, there is evidentiary basis for the Plaintiffs' claim of a Charter breach. Infringement has not been proven.

In summary, I should add that the Plaintiffs base their arguments on the premise that the impugned legislation somehow violates the mechanics of school board structures that were in place in the near and distant past. In my view, those structures were designed and created in response to the needs and expectations of societies that existed in those areas. Those structures were not engraved in stone.

The fast-changing society that we live in today dictates that the province, which has the legislative authority, must not be inhibited from stepping in, where necessary, and dealing with serious structural problems in the financing and delivery of educational services.

B. THE NON-DISCRIMINATION ISSUE

The Plaintiffs claim that insofar as public school boards are affected, the impugned legislation contravenes the explicit guarantee in s.17(2) of the Alberta Act that there shall be no discrimination against "schools of any class" in the "appropriation by the Legislature or distribution by the government of the province of any moneys for the support of schools".

"17 Section 93 of The British North America Act, 1867, shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph: -

(2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29 or any Act passed in amendment thereof, or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 2'."

Section 17(2) applies only to legislative grants from general revenue, not to revenues derived from property assessments. This is borne out by both case law and legislative history. As such, in order for s.17(2) to be engaged, inequality or discrimination, must arise from distribution of legislative grants. If there is no inequality in this distribution, s.17(2) is not offended, even if there is discrimination in the distribution of other monies.

Turning first to an examination of case law, s.17 was analyzed by the Supreme Court of Canada in Reference Re s.17 of the Alberta Act, [1927] S.C.R. 364. Newcombe J., for the Court, indicated that the non-discrimination aspect of s.17 applied to legislative grants; he gave no indication that this aspect applied to property taxes. At p.373:

"It was to perpetuate under the Union the rights and privileges with respect to separate schools, or with respect to religious instruction in the public or separate schools, and to avoid discrimination in the appropriation and distribution of the legislative grants for education . . . that s.17 of the Alberta Act was enacted. . . . " [emphasis added]

That "grant" does not include property taxes was made clear by Stevenson J., as he then was, in Calgary Board of Education v. Attorney General for Alberta et al. (1979), 28 A.R. 366 at 374 (Q.B.) [hereinafter Calgary Board] where he drew a distinction between property taxes and grants:

"In board terms subsection (1) permits the establishment of the schools and assures that the minority can at least tax themselves in order to sustain the institutions. As far as government grants are concerned the legislation prohibits discrimination." [emphasis added]

And, at 378, "s.17(1) is directed towards property assessment support and s. 17(2) towards the support of the boards in other ways". [emphasis added]

This case was affirmed by the Alberta Court of Appeal, Re Calgary Board of Education v. Attorney General for Alberta et al. (1981), 122 D.L.R. 93d) 359. At 361, McDermid J.A. adopted the lower court judgment, being "in complete agreement with it". An application for leave to appeal to the Supreme Court of Canada was dismissed.

Turning now to the legislative history of s. 17(2), there are four things to note. First is that a reading of the parliamentary debates on this legislation (and its sister legislation in Saskatchewan) indicates that s.17(2) covers grants only, not property taxes. In Hansard, House of Commons Debates (24 March 1905) at 3107 and 3109, Clifford Sifton is recorded as saying that while subsection (1) established separate schools, it was under subsection (2) that they were "entitled to receive their share of the legislative grant" [emphasis added]

Second to consider is that s. 17(2) could easily have referred to property taxes, as did s.17(1) (see below), but does not. Section 17(1) includes reference to chapters 29 and 30 of the Northwest Territories Ordinances of 1901, the latter relating to property taxes (the "School Assessment Ordinance"). In contrast, s.17(2) only refers to chapter 29. From this, it can be inferred that s.17(2), unlike s.17(1), was never intended to refer to property taxes. Instead, it was intended only to prohibit discrimination in the distribution of government grants.

The third point to note is that with the enactment of the School Assessment Ordinance in 1901, separate schools were discriminated against in terms of access to property taxes. The discrimination arose out of the requirement that separate boards obtain declarations from individuals in order to have property assessable for separate school purposes; public boards were subject to no such requirement and were, in fact, the "default" choice. The practical result of this difference in treatment was that separate boards had access to lower amounts of property assessment base per student and lower revenue derived from that lower base than did public school boards.

Given that this "discrimination" continued through the draft discussions of s. 17(2) and persisted even after the enactment of the section, it can be inferred that the non-discrimination aspect of s.17(2) was not intended to apply to revenues derived from property taxes but was intended to apply only to legislative grants.

Finally, it should be noted that amendments to the Ordinances after the enactment of s.17 support the position that s.17(2) only applies to grants, not to property taxes. The School Grants Ordinance (NWT) 1901, c. 31 was repealed and replaced by the School Grants Act,S.A. 1913, c. 15. Section 3 of that act was worded so as to dovetail with the non-discrimination requirement of s.17á2):

"Provided, however, that where a separate school district has been established within the area of a public school district, such public and separate school districts shall for the purpose of classification under this clause be deemed to be one district only, but in apportioning the grant payable to the public and separate schools respectively there shall be no discrimination." [emphasis added].

It should be also be noted that there were no such non-discrimination amendments to the School Ordinance or the School Assessment Ordinance. This supports the position that it was only grants, not property taxes that were subject to the non-discrimination aspect of s.17(2).

Thus, to the extent that the Plaintiffs' concerns are centred on access to and distribution of property taxes, s.17(2) is not engaged.

Even if s.17(2) was engaged by inequality in the distribution of property taxes, the wording of the section only requires that the distribution be fair; it does not address the means by which the monies are raised. Thus, it can be inferred that it matters not whether the taxes and other monies are raised directly by the individual school boards or indirectly through the government as long as the distribution of the monies is fair.

This position is supported by case law. In Regina School District No. 4 Trustees v. Gratton Separate School Trustees (1915), 50 S.C.R. 489 [hereinafter Gratton] Fitzpatrick C.J.C. discussed the objective of s.17(2):

"the intention of Parliament was to secure to all the schools, whether public or separate, their fair share in the appropriation and distribution of any moneys for the support of schools, which in practice they had always received . . . . " [emphasis added]

While the Chief Justice was in dissent, in the result, he was the only member of the Court to consider s.17(2), so was not in the dissent on that point.

The judgment of Fitzpatrick C.J.C. was adopted by Stevenson J. in Calgary Board, supra, which affirmed by the Alberta Court of Appeal, supra, application for leave to appeal to the Supreme Court of Canada dismissed

Still looking at the wording of s.172(2), it may be of some assistance to consider how the Constitution's s.93 has been interpreted. The Supreme Court of Canada held in Mahe v. Alberta (1990), 68 D.L.R. (4th) 69 at 97 that "the jurisprudence S.93(1) of the Constitution Act, 1867 is relevant in interpreting s.17 of the Alberta Act". While the Court in that case was referring specifically to s.17(1), so jurisprudence on s.93 may not be as persuasive when applied to s.17(2), the general approach of the Supreme Court of Canada concerning s.93 should not be ignored.

Reference re: Education Act (Que.) (1993), 105 D.L.R. (4th) 166 (SC.C.) [hereinafter Quebec] illustrates this general approach. At p.286, the Supreme Court of Canada held that s.93 guarantees "the right to dissent itself, not the form of the institutions which have made it possible to exercise that right". [emphasis added] The Court continued.

"The framers of the Constitution were wise enough not to determine finally the form of institutions, as it is those very institutions which must be capable of change in order to adapt to the varying social and economic conditions of society."

In a similar fashion s.17(2) guarantees the right to be treated fairly in the distribution of funds. It does not set out the mechanisms through which this right is to be realized and the funds distributed, nor does it describe the means or methods by which the funds shall be raised. As with s.93 of the Constitution, s.(2) identifies only the basic right, allowing the mechanisms to be determined in accordance with societal conditions.

Given the foregoing, to interpret s.17(2) as being concerned not with the means and methods by which funds are raised but only with fairness in their distribution is consistent with the general approach of the Supreme Court of Canada to s.93 of the Constitution.

In Quebec, supra, at 278, the Supreme Court of Canada also emphasized the importance of allowing the provincial legislatures the freedom to respond to changing conditions: "Imposing too many limits on provincial legislatures would prevent them from exercisingtheir jurisdiction over education effectively". The court referred to an earlier decision, Hirsch v. Protestant Board of School Commissioners of Montreal, [1926] S.C.R.246 affirmed by the Privy Council at [10028] 1 D.L.R. 1041 (J.C.P.C.). Viscount Cave L.C. stated, at p.1052:

"[s.93] does not purport to stereotype the educational system of the Province as then existing. On the contrary, it expressly authorizes the provincial Legislature to make laws in regard to education subject only to the provisions of the section; and it is difficult to see how the Legislature can effectively exercise the power so entrusted to it unless it is to have a large measure of freedom to meet new circumstances and needs as they arise."

The final point parallels an issue raised earlier. Separate schools, compared to public schools, have always been discriminated against in terms of access to property taxes, being subject to onerous requirements not placed on public schools. This discrimination continued while s.17(2) was being drafted and persisted even after it was enacted. As such, s.17(20 could not have been intended to apply to the means in which funds were raised. It must be that it was intended to focus only on the fair distribution of funds once raised.

Thus, it appears that s.17(2) is not offended by the fact that separate schools are allowed access to property taxes directly while public schools only have indirect access through the ASFF, as long as the over all distribution is "fair".

In defining "discrimination", reference should not be made to "discrimination" as it appears in s.15 of the Charter. This was made clear by the Supreme Court of Canada in Greater Montreal P.S.B. vs. Quebec (1989), 57 D.L.R. (4th) 521 at 535 where the Court considered s.93 of the Constitution:

"[A]s a constitutional text, s.93(1) may deserve a "purposive" interpretation but, in so doing, courts must not improperly amplify the provision's purpose. . . . The entrenched right of specified classes of persons in a province to enjoy publicly-sponsored denominational schools. . . . should not be construed as a Charter human right or freedom or, to use the expression of Professor Peter Hogg, a "small bill of rights for the protection of minority religious groups."

Since the Charter cannot assist in defining "discrimination", it is appropriate to turn to case law on the subject. In Calgary Board, supra, Stevenson J. considered the meaning of "discrimination". He began by referring back to the decision of Fitzpatrick C.J.C. in Gratton, supra, at 598 where the object of s.17 was held to be "to secure to all the schools, whether public or separate, their fair share in the appropriation and distribution of any moneys for the support of schools". Stevenson J. said, at p.374:

"As far as government grants are concerned the legislation prohibits discrimination. . . . I agree with the applicant that subsection (2) is designed to ensure fairness." [emphasis added]

Stevenson J. found at p.378 that the impugned legislation provided for a per capita distribution of funds. Finding this, and "Having in mind what Chief Justice Fitzpatrick said about the purpose of s.17 [he was] unable to conclude that the system [was] not equitable." He continued at p.379: "a per pupil distribution tax monies has the appearance of being fair".

As stated previously, the Alberta Court of Appeal affirmed the decision of Stevenson J., being in complete agreement with it; application for leave to appeal to the Supreme Court of Canada was dismissed.

The "fair share" test was also used in Quebec, supra. Here the Supreme Court of Canada was required to determine the constitutionality of the impugned legislation which transferred, from a municipality to a public corporation (composed of a majority of members appointed by representatives of school boards and a few representatives of parents appointed by the government), authority to distribute the proceeds of taxation. Specifically, the Court considered whether this change "prejudicially affected" the rights and privileges protected by ss.93(1) and (2) of the Constitution.

The Court held, at p.322, that as each board was guaranteed "fair and proportional access to school taxes" the impugned legislation did not offend the constitutional provisions.

In contrast to the "fair share" test in Re City of Montreal and Arcade Amusements Inc. et al.(1985), 18 O.L.R. (4th) 161 at 198 (S.C.C.), the Court suggested that discrimination only requires "difference" in treatment. The Court quoted, with approval, a treatise by Rene Dussault and Louis Borgeat:

"In R. ex rel. St-Jean v. Knott, [1944] O.W.N. 432, at 435, Rose J. of the High Court of Ontario stated clearly that unreasonableness should not be confused with discrimination: 'It is argued that the ground upon which by-laws are declared invalid for discrimination is that discrimination is unreasonable; and that it follows that the elimination of unreasonableness as a ground for declaring the invalidity of by-laws eliminates discrimination also. I do not agree'."

Further support for the "difference" test is found in Town of Scarborough v. Bondi (1959), 18 D.L.R. (2d) 161 at 166 (S.C.C.):

"The classic definition of discrimination in the Province of Ontario is that of Middleton J. In Forst v. Toronto (1923), 54 O.L.R. 256 at pp.278-9: "When the municipality is given the right to regulate, I think that all it can do is to pass general regulations affecting all who come within the ambit of the municipal legislation. It cannot itself discriminate, and give permission to one and refuse it to another."

However, as both of these cases dealt with municipal by-laws, they can be distinguished on their facts.

Thus, the test of "discrimination" that should be applied by the Court in the case at bar is whether the result of the legislation is "fair", not whether it treats public and separate school boards differently.

In the case at bar, the impugned provisions of the Amendment Act provide for a distribution of revenues from property assessment base on an equal amount per student basis and provide access to grant payments by separate and public boards on identical conditions. It thus appears that they result in the fair treatment of public and private school boards and so do not violate s.17(2) of the Alberta Act.

However, the impugned provisions of the Organization Act are more problematic. The legislation allows the Lieutenant-Governor-in-Council to make regulations that could result in discrimination insofar as they allow discretion in various areas. Discretion is to be used in deciding who is eligible for a grant (ss. 13(D) and (e)), in waiving eligibility criteria (s.13(g)). Furthermore, the legislation allows the regulations made under s. 13(2) of the act to be specific or general.

In Roman Catholic Separate Schools for Ottawa v. Ottawa Corporation, [1917] A.C. 76, the Privy Council had to consider the validity of a piece of legislation that deprived separate school supporters of the right to elect trustees. The impugned legislation involved a similar type of discretion as that outlined above; it allowed the Minister, with the approval of the Lieutenant-Governor-in-Council, to withdraw the rights of the school board, such rights to be restored only at the discretion of the Minister. Lord Buckmaster L.C. at p.81 spoke for the Court:

"The case before their Lordships is not that of a mere interference with a right or privilege, but of a provision which enables it to be withdrawn in toto for an indefinite time. Their Lordships have no doubt that the power so given would be exercised with wisdom and moderation, but it is the creation of the power and not its exercise that is subject to objection, and the objection would not be removed even though the powers conferred were never exercised at all." [emphasis added]

The statutory power to make regulations was considered more recently by the Supreme Court of Canada in Re: An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1149. The purpose of the impugned legislation was to implement a policy of full funding for Roman Catholic separate high schools in Ontario which effectively added to the rights and privileges of Roman Catholic separate school supporters under s.93 of the Constitution. Wilson J. held at p.1191:

"It is, however, well established today that a statutory power to make regulations is not unfettered. It is constrained by the policies and objectives inherent in the enabling statute. A power to regulate is not a power to prohibit., It cannot be used to frustrate the very legislative scheme under which the power is conferred." [emphasis added]

A similar approach was applied in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. Here, an adjudicator appointed by the Minister of Labour pursuant to a provision of the Canada Labour Code made an order in favour of an employee based on a provision of the Code. The employer unsuccessfully challenged the order to the Federal Court of Appeal.

Leave to the Supreme Court of Canada was granted with the Court to consider whether the adjudicator had the power to make the order under the provisions of the Code. At p.1078, Lamer J., dissenting in part, considered whether the impugned provisions violated the Charter:

"As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter unless, of course, that power is expressly conferred or necessarily implied. . . .Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so." [emphasis added]

While this case differs from the case at bar in that it looked at application of the Charter whereas the instant case does not, the reasoning can be applied to the case at bar.

Given these two cases, how is s.13 of the Organization Act to be interpreted, recognizing that it cannot be used to make regulations that will frustrate s.17(2)? Based on the foregoing, the argument is that s.13 of the Organization Act presupposes that the Lieutenant-Governor-in-Council can only make regulations authorizing the Minister to exercise discretion in the enumerated areas to the extent that such discretion be exercised within the limits set out by s.17 of the Alberta Act. Put another way, the Minister is only authorized to exercise discretion to the extent that in the exercise of the discretion there "be no discrimination against schools of any class described in the said chapter 29".

As such, the argument follows, the legislation does not violate the Alberta Act. The Minister would have no jurisdiction to exercise discretion in a manner that contravened s.17(2). If the Minister makes a decision that contravenes s.17(2), then the remedy lies in the area of administrative law.

Based on this argument, the impugned provisions of the Organization Act do not violate the Alberta Act as they only authorize regulations to be made and discretion to be exercised in accordance with the requirements of s.17(2).

The impugned provisions do not violate s.17(2) for a number of reasons. The first point to note is that a strong case can be made, relying on both case law and legislative history, that s.17(2) applied only to legislative grants, not to revenues derived from property taxes. As such, s.17(2) is not even engaged by the amendments to the School Act.

Further, reading s. 17(2) indicates that its focus is on the distribution of funds only. The Legislature did not concern itself with the means and methods by which the funds would be raised. As such, there is no violation of s.17(2) by virtue of the fact that the money distributed is composed of ASFF property taxes, grant money and separate school taxes. Section 17(2) only requires that the distribution of the funds to be fair, which appears to be the case.

Finally, the law in Alberta is that the test for "discrimination" set out in s.17(2) is the "fair share" test. The mere fact that public and separate school boards may be treated differently under the impugned provisions of the Amendment Act does not offend s.17(2) as long as the distribution of funds between the boards is "fair". A per capita distribution, per Calgary Board, supra, has the appearance of being fair.

Concerning the impugned provisions of the Organization Act, they shall be interpreted to allow regulations to be made and ministerial discretion to be exercised only to the extent that the provisions of s.17(2) are satisfied.

The Plaintiffs claim that separate schools possess all the rights, powers and privileges and are subject to the same liabilities and method of government as public schools and that they were intended to mirror the situation of public schools so far as governance and funding is concerned. In this way, they are a "mirror image" of public schools. Of necessity then, the Plaintiffs claim that the public schools must be a "mirror image" of private schools in these areas. In that impugned legislation destroys this "mirror image", it is invalid.

"17. Section 93 of The British North America Act, 1867, shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph: -

(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the Northwest Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances."

That s.17(1) Alberta Act does not apply to public school boards was made clear by Stevenson J. in Calgary Board, supra, at 371-372. He adopted the approach of Stuart J.A. in Rex ex rel Brooks v. Ulmer, [1923] 1 D.L.R. 304, 19 Alta. L.R. 12 where Stuart J.A. said, "It is only the rights and privileges in respect to separate schools as given by the Ordinances of 1901, chs. 29 and 30 whatever they were, which are protected and preserved". [emphasis added]

Also at p.374, Stevenson J. infers that s. 17(1) protects the rights of separate schools only:

"In broad terms subsection (1) permits the establishment of the schools and assures that the minority can at least tax themselves in order to sustain the institutions." [emphasis added]

"if [the impugned legislation] detracts from the rights previously enjoyed by the public board, those are not protected by s.17(1)."

The Alberta Court of Appeal affirmed the decision of Stevenson J., being in complete agreement with it.

Notwithstanding that s.17(1) does not protect rights of public school boards, consideration of the legislative debates prior to the enactment of s.17(1) indicates that public and separate schools were intended to have the same rights and privileges. As reported in Hansard on March 24, 1905 at p.3103:

"where there is a public school, the minority, Protestant or Roman Catholic, may organize a separate school; but every separate school is subject absolutely to all the foregoing provisions, and is in every sense of the term a public school. If the Protestants are in the minority in a district, their school is called a separate school; if the Catholics are in the minority in a district, their school is called a separate school; but both are public schools. They are absolutely similar save for one distinction: where the trustees are Protestant, there is Protestant teaching from half-past three to four, and where the trustees are Roman Catholic there is Roman Catholic teaching from half-past three to four. That is absolutely the only distinction between these schools." [emphasis added]

"[s.17(2)] is an interference only to the extent of requiring that when a separate school absolutely and entirely complies with the law and then comes before the educational authorities and says: Having complied with the law, being, in every sense of the word a public school, but called a separate school only because we happen to be less in number than the people who organized the public school, we asked to be paid this money in proportion to the efficiency we can show we possess under the educational statutes which you have seen fit to pass." [emphasis added]

Stevenson J. in Calgary Board, supra, at 374, concluded that s. 17(1) is "protective legislation", guaranteeing "certain rights to the minority residents and the boards established by them". In this, he adopted the conclusion of Stuart J.A. in Brooks v. Ulmer, supra, and of the majority of the Supreme Court of Canada in Gratton, supra.

From whom is protection required? Protection is required from the majority who would, otherwise, have the power, through elected officials, to take away the rights of the minority. Section 17(1) was designed to protect separate schools from this eventuality and to ensure that they would have the same rights as public schools.

Thus, if separate and public schools are the same, and if separate schools are to have the same rights and privileges as public schools, it follows logically that public schools must have the same rights and privileges as separate schools. This is the crux of the "mirror equality" argument. It should be noted that while it is principally grounded in s.17(1), there is some overlap with the "non-discrimination" provisions of s.17(2).

On the basis of the mirror equality argument, I conclude that the impugned legislation is invalid insofar as it allows separate boards but not public boards to opt out of the ASFF. As such, it is unnecessary for me to discuss whether separate boards enjoy the right to directly levy taxes on their supporters as well as the right to spend those taxes in any way they choose without interference or "enveloping" by the provincial government.

While s.17(1) explicitly protects only the rights of separate school supporters, the mirror equality argument is compelling, logical and supported by case law. Separate boards have the right to opt out of the ASFF; so, too, must public boards. The impugned legislation is invalid to the degree that it does not allow this. Given this conclusion, it is unnecessary for me to consider the issues of taxation by separate boards and "enveloping".

While the Plaintiffs' first two arguments ("reasonable autonomy" and "non-discrimination") must fail, their final argument ("mirror equality") succeeds. This success is based not on s.17(1) of the Alberta Act, which protects only the rights of separate school supporters, but on the history of the legislation and jurisprudence that indicates that separate and public school boards are to be treated "the same". The mirror equality argument is compelling, logical and supported by case law.

To the extent that the impugned legislation allows only separate boards, not public boards, to opt out of the ASFF, it is invalid. The question of whether separate school boards enjoy the right to tax their supporters directly and to be free from "enveloping" by the provincial government needs not be answered.

In my view, it is inappropriate to attempt to solve the discrepancy between the rights of the public and separate boards by reducing the rights of the latter such that neither public nor separate boards would be allowed to opt out of the ASFF. Indeed, given that separate boards may have the right to tax their supporters directly, such an action could be constitutionally invalid.

Instead, it is appropriate to bring the rights of the public school boards up to the level of those enjoyed by the separate boards by allowing public boards also to opt out of the ASFF and requisition taxes locally if they so desire.

I am grateful to counsel for their thorough submissions. Counsel may speak to costs.

Dated in the City of Edmonton
in the Province of Alberta
this 28th day of November, 1995

for The Public School Boards' Association of Alberta, The Board of Trustees of the Edmonton School DistrictNo. 7, and Cathryn Staring Parrish

for Alberta School Boards Association of Alberta; Public School Boards' Association of Alberta, The Board of Trustees of Calgary Board of Education No. 19 and Margaret Ward Lounds

for Alberta Catholic School Trustees' Association, The Board of Trustees of Lethbridge Roman Catholic Separate District No. 9 and Dwayne Berlando

Robert C. Maybank, Lorne H. Merryweather and Ms. Margaret Unsworth; for the Attorney General of Alberta, The Government of Alberta, Her Majesty The Queen in Right of Alberta and The Minister of Education.

IN THE COURT OF QUEEN'S BENCH OF ALBERTA
JUDICIAL DISTRICT OF EDMONTON

IN THE MATTER OF
THE SCHOOL AMENDMENT ACT, 1994 BEING BILL 19
AND IN THE MATTER OF THE SCHOOL ACT,
S.A. 1988, C.S-3.1, AS AMENDED
ACTION NO. 9401-12053

ALBERTA SCHOOL BOARDS ASSOCIATION OF ALBERTA,
PUBLIC SCHOOL BOARDS' ASSOCIATION OF ALBERTA
THE BOARD OF TRUSTEES OF CALGARY
BOARD OF EDUCATION NO. 19,
MARGARET WARD LOUNDS,
ALBERTA CATHOLIC SCHOOL TRUSTEES' ASSOCIATION,
THE BOARD OF TRUSTEES OF LETHBRIDGE ROMAN CATHOLIC SEPARATE SCHOOL DISTRICT NO. 9 AND DWAYNE BERLANDO

ACTION NO. 9403-12272
THE PUBLIC SCHOOL BOARDS' ASSOCIATION OF ALBERTA, THE BOARD OF TRUSTEES OF THE EDMONTON SCHOOL DISTRICT NO. 7
AND CATHRYN STARING PARRISH

-and-
THE ATTORNEY GENERAL OF ALBERTA, THE GOVERNMENT OF ALBERTA AND THE MINISTER OF EDUCATION

MEMORANDUM OF DECISION
OF
THE HONOURABLE
MR. JUSTICE V.W.M. SMITH