Relevant Legislation and Case Law | Local Democracy and Reasonable Local Autonomy for Public Schools | 1998 Alberta Court of Appeal Decision | 1995 Alberta Court of Queen's Bench Decision | The Schmidt Case | The Bakker Case | The Jacobi Case | The PSBAA et al. vs The Attorney General of Alberta

Relevant Legislation and Case Law

Relevant legislation which establishes the constitutional framework for public school education in Alberta includes:

• section 10 of the Northwest Territories Act,1870 (see s. 10)
• Chapter 29 of the Ordinances of the Northwest Territories, 1901 (the School Ordinance) (see Ch. 29)
• section 17 of the Alberta Act, 1905 (see s.17)
• (part of) the Constitution Act, 1867 (see s. 93)
• (part of) the Constitution Act, 1982 (see s. 29, 38, 39, 40, 41, 43, 45)

None of the above is provincial legislation, so none of it can be changed by the Legislative Assembly of Alberta. (The constitutional convention is that the Alberta Act would be amended by the Parliament of Canada at the request of the Legislative Assembly of Alberta, provided there is no "spill-over" to the constitution of another province or Canada.)

Many provincial laws affect public education and are widely available to the public, including:

• The Government Organization Act
• The School Act
• The Teaching Profession Act
• The Northland School Division Act
• The Local Authorities Election Act

These are not on our website. They can all be accessed on the website of the Alberta Queen's Printer.

Depending upon the issue, it is also important to be aware of the contents of labour legislation, human rights legislation, occupational health and safety legislation, etc., in order to understand the delivery of educational opportunities in Alberta.

Provincial legislation often empowers the Lieutenant-Governor-in-Council (the provincial Cabinet) or the Minister to make Orders (regulations) which elaborate upon the provisions of the legislation. In order to have a complete understanding of the law, it is necessary to be aware of the regulations.

The law (statutes and regulations) often empower public servants (the Deputy Minister of Education and others) to establish structures and procedures by which to give effect to the intention of the law. In order to have a complete understanding of the law it is necessary to be aware of the administrative requirements of the Department or of other employees of the provincial government and the Legislative Assembly (for example, the Auditor-General).

Case Law

Sometimes court decisions become part of the body of law that governs public education. Some of the cases which are important to public school education in Alberta are summarized below.

Established cases

The Schmidt case (text of decision)
Members of the religious minority, where a separate school jurisdiction exists, must be considered as residents of the separate school jurisdiction. They cannot choose to be residents of the public school system. People who are not members of the religious minority cannot be residents of the separate school system.

The Bakker case (narrative description)
A person resident in either a public or a separate school jurisdiction, where both exist, may "move" from one jurisdiction to the other by changing his/her declaration about faith, but "residence" is only considered to be taken up in the current system from the date the declaration is changed.

The Jacobi case (narrative description)
The Minister is not obliged to establish a new separate school district where the apparent reason for being – of the separate school district – is unrelated to the protection of dissentient religious minority rights.

The Public School Boards' Association of Alberta, et al vs the Attorney-General of Alberta

The PSBAA argued for a constitutional assurance, in the form of a decision by the Supreme Court of Canada, that public school boards are part of the whole system of democracy in Canada; that certain essential characteristics of public school education are protected by the Constitution; and, that some of the 1994 and 1995 amendments to the School Act, (Alberta) must be overturned.

The particular 1994 (and 1995) amendments which the PSBAA challenged involved two separate issues:

1. reasonable local autonomy; and,
2. fair treatment for public school boards compared to separate school boards in the operation of the Alberta School Foundation Fund (the A.S.F.F.).

The Government argued that the case was frivolous and vexatious, and applied to have the proceedings stopped before judgement. Madame Justice Veit denied the Government's application (read her decision ) and in her decision made this comment: "The government(‘s)… position is that the provincial government can do what it likes with all the agglomerations of people within their province. It could, if it wished, eliminate at a stroke the city council of Calgary and run the citv of Calgary from Edmonton. The government says that it would probably not make such an order, for political reasons, but asserts that it could abolish Calgary City Council if it wanted to."

Mr. Justice Smith, of the Court of Queen's Bench found in favour of the Association on the matter of allowing public school boards to opt out of the Alberta School Foundation Fund, on the same terms and conditions as are available to separate school boards. He rejected our claims for reasonable local autonomy. Read his decision.

The Alberta Court of Appeal upheld Mr. Justice Smith's decision against our claims for reasonable local autonomy, and overturned his decision granting public school boards the right to opt out of the A.S.F.F. Read the decision of the Court of Appeal.

The Supreme Court of Canada unamimously upheld the decision of the Alberta Court of Appeal. Read the decision of the Supreme Court of Canada.

Last Revised: September 12, 2008