1998 Alberta Court of Appeal Decision

Issue 4: Did the trial judge err in finding that the impugned provisions violate mirror equality rights?

[110] The trial judge accepted the mirror equality argument, but held it was unnecessary to decide whether separate boards had the right to levy support and an unfettered right to expend those funds. He found that while s. 17(l) did not protect rights for public school boards per se, "the history of the legislation and jurisprudence ... indicates that separate and public school boards are to be treated 'the same' " (at p. 49). He concluded that the legislation was invalid to the extent that it did not allow public boards to opt out of the ASFF. The remedy he granted was the right to opt out. No remedy was granted to establish a tax base or to requisition local ratepayers. The Government appeals this decision.

[111] ACSTA takes no position on whether the trial judge was correct in holding that public boards have a right of mirror equality. But it again says that it would be inappropriate to determine the content of separate school rights when the case concerns a claim of constitutional rights of public schools. Because of our conclusions on the mirror equality issue, we have not seen the need to address the content of separate school rights.

[ 112] On its face, s. 17(l) has application only to separate schools and their supporters. It has been held that it does not guarantee all legal rights and privileges found in education legislation at the time of Confederation. Rather, it merely restricts provinces from passing laws which prejudicially affect rights regarding denominational aspects of schools or anything incidental thereto: Greater Montreal Protestant School Board v. Quebec (A.G.),