1998 Alberta Court of Appeal Decision

Issue 2: Did the trial judge err in deciding that school boards do not have a constitutionally guaranteed right to reasonable autonomy either as a matter of law or convention?

[38] PSBAA claims that the Constitution implicitly guarantees reasonable autonomy to municipal institutions, including school boards, either by operation of law under the Constitution Act, 1867 or the Canadian Charter of Rights and Freedoms, or by convention. It does not contend that municipalities are a third order of government, nor that they have full autonomy. Nor does it deny that school boards are the creatures of and subordinate to the province, nor that the province has the exclusive power to create or dismantle school boards. Neither does it challenge the regionalization of school districts. Rather it only alleges that its reasonable autonomy regarding local fiscal control through taxing powers and local program and management control has been violated. PSBAA acknowledges that this argument is novel, although recently, similar arguments have been rejected in Ontario.

[39] While the discrimination argument only attacks the funding scheme, this argument challenges a broader range of issues. At trial, PSBAA said that reasonable autonomy has been violated in respect of loss of local control of senior staff, selection of political representatives, program and management, and fiscal matters. As a result of further amendments to the School Act subsequent to trial, PSBAA has withdrawn the allegation concerning the loss of control over the selection of political representatives. However, PSBAA continues to maintain that the ability of school boards to control program and management has been undermined by the new legislation which makes superintendents, principals and school councils directly responsible to the Minister of Education. More emphatically, it says local fiscal control has been abrogated through the abolishment of the power to requisition local taxes, by restrictions on borrowing powers, and by the stringent Framework conditions regarding the allocation of spending. It seeks a declaration that school boards, as well as other forms of local government, have limited reasonable autonomy in areas exclusively of local concern, which includes a guarantee for parents of a minimum level of local democratic participation in the control and management of the schools in which their children are taught.

[40] The Government maintains that such a declaration would place a constitutional strait-jacket on the ability of the province to respond to the educational needs of a modern and changing society by adopting more efficient and effective means of delivering educational services. It says that a response to concerns of fiscal equity and increased demands on modern schooling which could not have been visualized in 1867, should not be restricted by adherence to the institutional framework of school systems developed 130 years ago.

[41] The theory of the reasonable autonomy argument is that our system of government is based upon an ancient historical national and local alliance under which both a central body, or bodies, and local communities exercise independent and distinct control. The inherent struggle for control and balance of power in such an alliance is said to be fundamental to the whole of our democratic scheme, and rooted in universal human rights.

(a) Does the Constitution provide an implicit legal guarantee of reasonable autonomy!

[42] The question is whether the role of local government in that alliance was protected under the Constitution Act, 1867. The answer is said to depend upon the degree of local autonomy exercised by municipal institutions, and in particular by school boards, at the time of Confederation in 1867.

[43] Within the limits of its fundamental nature, the Constitution is adaptable and does not articulate the full extent of its operating principles. The full scope of its legal norms is to be found in the vast array of judicial interpretations of its explicit provisions through a variety of interpretive aids. Thus, PSBAA contends that although the Constitution does not explicitly guarantee autonomy to school boards, it may nonetheless be judicially interpreted to implicitly do so. Reliance for that argument is placed upon an interpretation of the terms "municipal institutions" in s. 92(8) and "education" in s. 93 of the Constitution.

[44] Such an interpretation would require this Court to find both that municipal institutions are implicitly guaranteed reasonable autonomy, and that school boards are municipal institutions within the meaning of s. 92(8). PSBAA argues that this interpretation finds strong support in historical evidence adduced at trial concerning British roots, American influence, and Upper Canada and western Canadian antecedents. It contends that historical evidence concerning the development of education in the Atlantic provinces, and which is relied upon by the Government, is irrelevant to this appeal because it was not before the trial judge.

[45] The history of the development of school governance was a matter of considerable dispute at trial. Experts called by PSBAA found strong evidence of a high degree of autonomy in local school boards prior to Confederation, and that it was this model that the Framers of the Constitution had in mind. Further, PSBAA asserts that this level of autonomy remained substantially in effect in 1905, and followed a pattern of incremental change until the passage of the impugned legislation. Government witnesses disputed that conclusion and testified that there never has been strong central control over education. What seems clear, is that at the time of Confederation, the question of local versus central control of education was highly controversial.

[46] The trial judge did not make express findings regarding the historical evidence, nor did he express an opinion on the credibility of the numerous expert witnesses. Instead, what he did was to apply both the "traditional approach", and the "dual character" approach in characterizing municipal institutions. He concluded that those institutions, including school boards, are only creatures of the legislatures, and their existence and powers are dependent upon the province, and not upon any constitutional status. Hence, he found that the impugned legislation does not violate school boards' autonomy with respect to fiscal control, program and management. That process involved an examination of the jurisprudence and legislation, rather than a review of the "historical fact" which PSBAA now urges upon us.

[47] While we endorse the concept of implicit constitutional norms, those norms must be grounded in the natural limits of the language of the Constitution, and accepted constitutional principles respecting the scheme of federalism. In our view, neither that language nor any constitutional principle supports the notion of an entrenched reasonable autonomy for school boards, with the exception of the express and limited protection given to separate schools by virtue of s. 93 of the Constitution Act, 1867 and various provincial constitutions.

[48] Municipal institutions are diverse in respect of their historical development, the nature of their governance, and the extent of their jurisdiction. The historical development and philosophy of school board governance is qualitatively different from other forms of municipal government. Hence, even assuming, without deciding, that some municipal institutions have some degree of autonomy which the provinces cannot override or limit, it does not follow that school boards would. And in any event, academic and judicial authorities have consistently adopted the view that neither the legal status nor the powers of municipal institutions are constitutionally guaranteed, and that they are provincial statutory bodies with only those powers conferred upon them by the legislatures: Ste.-Rose-du-Nord (Paroisse) v. Quebec (1994), 119 D.L.R. (4th) 723 at 739 (Que. C.A.). It was conceded that there are no precedents to the contrary. Section 92(8) of the Constitution Act, 1867 authorizes a province to create municipal governments and delegate to them certain powers. But it does not entrench those creations, or restrict the province's right to change them.

[49] That interpretation is supported by the recent decision of Borins J. in Borough of East York v. Attorney General of Ontario (1997), 34 O.R. (3d) 789 ("Toronto Megacity") in which he held that provincial legislation providing for the re-structuring of Metro Toronto was consistent with the supervisory authority of the province over municipal institutions. In his view, there was simply no constitutional impediment to the Legislature making changes to municipal institutions. That interpretation was endorsed on appeal: (10 October 1997), Toronto C27925 (Ont. C.A.). It was also reinforced in Ontario Public School Boards' Association v. Attorney General of Ontario (1997), 151 D.L.R. (4th) 346 ("Fewer School Boards"). The fact that those structural changes were transitional only does not negate or reflect any limitations on the provincial jurisdiction to make more permanent alterations to those structures. The transitional factor in the Fewer School Boards case was relevant only to the assessment of interference with denominational control, and not to the issue of reasonable autonomy.

[50] That interpretation is also borne out by the repeated failure of efforts to introduce constitutional protection for municipal institutions, including as recently as 1982 when the Constitution was amended. Indeed, it is difficult to conceive how such protection could reasonably be adopted for the tremendous diversity of municipal institutions which are ill-defined and undoubtedly number in many thousands.

[51] The allegation of PSBAA that the Framers of the Constitution had in mind a model of educational structure typified by a high degree of local control is unsubstantiated. Though s. 93 was contentious at the time of Confederation, the final compromise assigned the provinces exclusive jurisdiction to legislate in relation to education, subject only to the limitation of a guarantee of denominational rights. Moreover, both the Privy Council and the Supreme Court have cautioned that the guarantee of denominational rights must not be interpreted in a way that would prevent provinces from effectively exercising that jurisdiction: Reference Re Education Act (Quebec), [1993] 2 S.C.R. 511 at 529-32; Reference Re Bill 30 , An Act to amend the Education A ct (Ont.), [ 1 987] 1 S. C. R. 1 148 at 1173-75.

[52] Confederation established provincial rather than federal legislative jurisdiction respecting education in 1867. That was the defining moment when provinces were provided with the legal basis for the centralization of school governance. But subsequent restrictions on that provincial authority vary from province to province, and must be determined in accordance with the unique constitutional arrangements which later brought those provinces into Confederation. We adopt the view of the Government that recognition of an implicit right of school boards to "reasonable autonomy" since 1867 would disrupt and override the political compromise reached on the separate school issue in Alberta, and would be clearly inconsistent with the express terms and history of s. 17(l). In our view, the appropriate date to consider the extent of constitutionally entrenched rights of school boards in Alberta must be 1905.

[53] An example is seen in the provisions of the 1892 Ordinance in which, unlike Ontario, the power to appoint superintendents and inspectors was given to the central authority ensuring it clear jurisdiction over all aspects of schooling in the North-West Territories consistent with the philosophy of educational governance of Egerton Ryerson, F.W.G. Haultain, and David Goggin, the principal architects of the educational structure ultimately adopted in Alberta. That jurisdiction was further consolidated in Chapter 29 of the 1901 North-west Territories Ordinances, and was extant when Alberta entered Confederation in 1905. Section 4 of that Ordinance states that "The department shall have the control and management of all ... public and separate schools. . . " and regulations prescribed under it provided that on official visits to schools in his inspectorate, inspectors were the "supreme authority".

[54] In the absence of explicit findings of the trial judge in this regard, we endorse the opinions of the Government experts, McDonald and Fleming, on the history of education in Alberta. They establish that the provincial jurisdictional model contemplated in 1867 involved central provincial control for the purpose of promoting national unity and social equality in vast territories with diverse populations and uncertain economic prospects. That control does not preclude local participation in decision making, of which there is much evidence, for example, with regard to the selection of teachers and maintenance of schools. There is no doubt that the exercise of central control was and continues to be very much influenced by the interest of local authorities, and that it was and continues to be successfully exercised through exhortation rather than coercion. However, the opportunity to participate in that process was granted by the province and it does not equate to, nor was it converted into, nor did it evolve into, an autonomous, constitutionally entrenched power.

[55] Further, we see no error in the trial judge's conclusion that the impugned legislation only continues a pattern of restricted autonomy with respect to the recruitment and direction of staff. The historical record confirms the conclusion that the appointment of superintendents was under provincial control, and that the duties of principals and teachers were the subjects of regulatory control, thereby ensuring that centrally established standards of education were followed. As well, since any authority granted to local boards to develop curriculum has been subject to Ministerial approval, there could be no violation of their autonomy in that respect.

[56] The alleged violation of local fiscal control focussed principally on provisions of the School Act which deny public boards the right to requisition except for a 3 % special levy, require Ministerial approval for borrowing, and place conditions on grants. The trial judge rejected that allegation on the grounds that the new funding scheme was designed to achieve fiscal equality, was consistent with other provincial initiatives, and that though the scheme limits amounts of spending within particular areas, it does not direct how monies are to be spent within those areas. We too reject that allegation, but for different reasons.

[57] In its Statement of Claim, PSBAA seeks a declaration of invalidity of ss. 157.1(8) and 159.1(4) of the School Act. As a result, it appears that PSBAA seeks an unrestricted right to requisition without the need to obtain ratepayers' support. Yet, historically no such right has been established. It is evident that ordinances from 1884 until 1905 prescribed caps on mill rates by which the province effectively controlled the method and amount of local funding available to school boards. It is that,control, rather than the amendments themselves, which undermines any claim of autonomy to requisition, or at the very least would render any such right hollow from the time Alberta entered Confederation. Since conditions on the payment of grants and controls on borrowing were also patently evident in the 1901 Ordinances, autonomy has not been established in respect of either.

[58] That reasoning is substantiated in part by the conclusion of this Court in Capital Reserves, supra. We acknowledge that the court in that case was not required to consider the constitutional validity of the legislation authorizing the Framework. Nonetheless, in our view, the decision is of some significance to the reasonable autonomy issue. In particular, the reasons of the chambers judge in that case recognized that, even before the 1994 amendments, there was an 'elaborate procedure for the Board to utilize in order to fund capital expenditures by way of debenture financing'. His observations on the issue are inconsistent with PSBAA's contention that the 1994 amendments stripped school boards of a pre-existing, high level of autonomy. We note that the Court of Appeal did not disagree with the reasons of the chambers judge.

[59] We add that we see nothing in the Supreme Court of Canada's decision in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island etc. (1997), 150 D.L.R. (4th) 577, that would lend any support to PSBAA's position. In that case, the majority looked to the preamble of the Constitution Act, 1867 to extend the concept of judicial independence beyond the express terms of the constitutional text. In our view, a concept of reasonable autonomy cannot he implied through the use of t he, preamble nor any other constitutional provision.

[60] Thus, the contention that school boards have constitutionally protected reasonable autonomy in respect of local control of senior staff, program and management and fiscal matters, which has been violated by the impugned legislation, has not been established.

(b) Does the Charter protect reasonable autonomy of school boards?

[61] If reasonable autonomy for school boards is not included in the pre 1982 Constitution, PSBAA argued before us that it is protected by the Canadian Charter of Rights and Freedoms as both "freedom of expression" under s. 2(b) and "liberty" under s. 7. This argument alleges that the impugned legislation diminishes parents' freedom of political expression and liberty to participate fully in the political process. Support for that position is said to be found by analogy with jurisprudence concerning minority language education rights under s. 23 of the Charter. It is suggested that a purposive analysis of separate school rights under s. 17(l) of the Alberta Act should lead us to conclude that they include an implicit right of management and control.

[62] The argument that freedom of expression is adversely affected through the transfer of political responsibility from the local to the provincial level was effectively rejected by Borins J. in Toronto Megacity. He held at p. 17 that there is nothing in s. 2(b) that guarantees or elevates to a constitutional status the number of members on a municipal council relative to the number of electors. On appeal, the court rejected the argument on the basis that there was an absence of any evidence showing that the new structure would reduce democratic access to the municipal decision-making process. Moreover, there was some question as to whether the ratios under the new legislation represented a notable reduction from the status quo.

[63] In the case before us, the trial judge did not deal with the substance of this issue. Rather, he rejected the Charter argument in the absence of any evidence to show impairment of that freedom or liberty. Indeed, there was some evidence that parents will have a more enhanced role under the new scheme. This is not a case in which the legislation on its face conveys either an express or implicit Charter breach, and thus evidence of impairment is essential. Because no evidence has been introduced establishing such effect, we also decline to deal with it.

(c) Is there an implicit conventional guarantee of reasonable autonomy?

[64] The trial judge did not address this issue.

[65] It is conceded that conventions are not enforceable in law. What PSBAA seeks is merely a declaration that such a convention exists and has been violated.

[66] PSBAA takes the position that even if the legislation does not violate constitutional law, it most certainly violates a long-standing convention affording school boards and other municipal bodies reasonable local autonomy. Reliance is placed on Reference Re Amendment of the Constitution, [1981] 1 S.C.R. 753 at 884-886 in which the Supreme Court of Canada established that it is a legitimate function of the court to declare the existence of constitutional conventions. The three part test to determine whether such a convention exists involves an examination of the precedents, the belief in the binding nature of those precedents, and the rationale for those precedents.

[67] The precedents for local autonomy are said to begin with the Magna Carta and involve locally selected authorities (democratic elections originating in the 19th century) financed by local taxation, with substantial local fiscal and management control. Without deciding the issue with respect to other municipal institutions, the same cannot be said of school boards which originated only in the 19th century, and whose history and nature is unique. The controversy at the time of Confederation surrounding the degree of autonomy they should enjoy within Confederation belies the notion that an historical precedent had already been established, and rebuffs the argument that those responsible had any belief in the binding nature of any such precedent. Nor has PSBAA established that school boards exercised a consistently high level of autonomy from 1867 to 1994, as alleged. Moreover, we have no doubt that a declaration confirming the existence of such a convention would seriously undermine the ability of the province to redress regional disparities and promote equity in the administration of education.

[68] The convention argument was also rejected by Borins J. in Toronto Megacity, supra, and by Campbell J. in Fewer School Boards, supra, on the grounds that there is no remedy for a breach of convention. In addition, Campbell J. held that constitutional conventions cannot be used to "amend the settled content of an explicit constitutional right like the denominational school rights expressly secured by s. 93(l). " (At 362.) PSBAA tries to distinguish both cases on grounds that it is not seeking to either enforce the convention or amend any explicit constitutional right or power. But in our view the nature of the remedy sought in this case does not obviate the basic principle that, whatever other application they might have, conventions should not be used in any manner to override explicit constitutional guarantees.

[69] In summary, we dismiss the appeal concerning the claim of reasonable autonomy and decline to declare that there is, in law or convention, a guarantee of reasonable autonomy for school boards.

1998 Alberta Court of Appeal Decision

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