The Schmidt Case

RE SCHMIDT AND CALGARY BOARD OF EDUCATION et al
Alberta Supreme Court, Appellate Division, Sinclair, Clement and Moir, JJ.A.
October 26, 1976

Civil rights - Discrimination because of religious beliefs - Statute permitting members of minority religion to send children to public school only on payment of fees - Whether discrimination because of religion - Individual's Rights Protection Act, 1972 (Alta.), c.2, s.3(b) - School Act, R.S.A. 1970, c. 329, ss. 53,142, 143.

Constitutional law - Separate schools - Effect of provincial legislation - Constitutional provisions enshrining right to separate schools - Provincial legislation prohibiting discrimination on basis of religion - Whether legislation applicable to prohibit charging of fees in respect of pupils of minority religion attending public schools - British North America Act, 1867, s. 93 - Alberta Act, 1905 (Can.), c.3, s. 17 - Individual's Rights Protection Act, 1972 (Alta.), c. 2, ss.1(2), 3(b).

Schools - Public and Separate - Statute providing for separate schools established by minority religion - Members of minority religion unable to send children to public school except on payment of fees - Whether discrimination because of religious beliefs - Individual's Rights Protection Act, 1972 (Alta.), c.2, s.3(b) - School Act, R.S.A. 1970, c.329, ss.53, 142, 143.

Schools Public and separate schools - Statute permitting establishment of separate school districts - Once established all members of minority religion resident in such districts - Statute prohibiting charging of fees to pupils of parents resident in district, but providing for fees where parents not resident - Whether members of minority religion resident in public school district - School Act, R.S.A. 1970, c. 329, ss.53,142, 143.

The existence of two systems of schools, a public and a separate system, is constitutionally enshrined in Alberta by s. 93 of the British North America Act, 1867, and by s. 17 of the Alberta Act, 1905(Can.), c. 3; R.S.C. 1970, App. II, p.317. Under the School Act, R.S.A. 1970, c329, the minority religion in any area (whether Protestant or Roman Catholic) may set up its own school system. Once they have done so all members of the minority religion in the area are resident in the separate school district so established by reason of s.53 of that Act and must send their children to the separate school. The effect of the section is that they cease to be resident in the public school district. A parent of the minority religion may send his children to the public school by applying to the board of a public school district (in which he is, by definition, not resident) and paying the required fees, under ss. 142 and 143 of the Act. The Individual's Rights Protection Act, 1972 (Alta.), c 2, cannot affect the validity of the constitutional provisions, and that is reflected in s. 1(2) of the Act which restricts its operation to legislation within the competence of the Alberta Legislature. Accordingly, s. 3 of the Act which prohibits discrimination because of, interalia, religious beliefs, is inapplicable where a person is a member of the minority religion but wishes to send his children to a public school and is charged a fee therefor.

Semble, the mere fact that a distinction is made based on religion is not necessarily discriminatory where the distinction is based on reasonable, justifiable and necessary grounds as in the case of dividing public and separate school supporters.

[A.-G. Can. v Lavell; Isaaac et al. v. Bedard (1973), 38 D.L.R. (3d) 481, [1974]S.C.R. 1349, 23, C.R.N.S. 197, 11, R.F.L. 333; A.-G. Can. et al. v. Canard et al. (1975), 52 D.L.R. (3d) 548, [1976] 1 S.C.R. 170, [1975] 3 W.W.R. 1, 4 N.R.91, refd to]

APPEAL from a judgment of Shannon, J., 57 D.L.R. (3d) 746, [1975] 6 W.W.R.279, allowing an appeal from a decision of a board of inquiry under the Individual's Rights Protection Act (Alta.) dismissing a complaint

W.E. Code, Q.C., for appellant.
W.L. Benkendort, for respondent.

The judgment of the Court was delivered by

MOIR, J.A.: - Adolf Schmidt is employed by Air Canada. He lived in Toronto with his wife and two children. Although both Schmidt and his wife are Roman Catholic they supported the public school system in Ontario and sent their children to the public school.

Air Canada transferred Schmidt to Calgary in the summer of 1974. At school opening Schmidt telephoned the Calgary Board of Education and asked where he could enrol his children. Schmidt was advised that he could enrol them only in the Catherine Nichol Gunn School. However, when he attended with the children, a teacher asked him his religion. When Schmidt replied that he was a Roman Catholic he was told the children had to attend the separate school.

Schmidt then attended at the Calgary Board of Education office. He was advised that he must pay non-resident fees for each of the children or alternatively sign a paper to the effect that he was not a Roman Catholic before the children could be accepted in the public school system. Schmidt arranged to pay the tuition monthly and as a result the children are attending a public school operated by the appellant board.

Thereafter Mr. Schmidt attended at the office of the Alberta Human Rights Commission. He filed a complaint alleging that the appellant Board committed an unlawful act relating to "accommodation, services or facilities customarily available to the public" because of "religious beliefs". The particulars given are "alleged contravention of s. 3(b) of The Individual's Rights Protection Act, in that because I am a Roman Catholic, I have been told to pay $436.00 a year tuition fees for my two children, or denounce my faith, in order for the children to attend public school".

The complaint went to an investigating officer who was unable to settle the matter. Then it went to a board of inquiry who held that the complaint had not been established. From there by way of hearing de novo the matter was heard by Shannon, J. He held that so long as the complainant Schmidt paid his taxes to the public school board he could not be charged tuition for his children as non-residents.

Before Alberta became a Province there was a statutory right in the Northwest Territories for a minority (be it Roman Catholic or Protestant) to set up their own school system. This right is based upon differences in religion and nothing else in so far as the minority rights are concerned. It is enshrined in our law by reasons of s. 93 of the British North America Act, 1867, and by s. 17 of the Alberta Act, 1905 (Can.), c.3; R.S.C. 1970, App. II, p. 317, which read as follows:

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 North-west 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."

The scheme of the separate school system is that the minority religion may set up their own school system. Once they do so the majority belongs to the public school system and the minority to the system they have established. The procedure has remained substantially the same for the past 75 or more years. Today the effect of this Act is set out in s. 53 of the School Act, R.S.A. 1970, c. 329:

53. After the establishment of a separate school district, a person residing within the boundaries of the separate school district who is of the faith of those who established that district, whether Protestant or Roman Catholic, is a resident of the separate school district and a separate school supporter and is not a resident of the public school district or a public school supporter.

The clear meaning of this section is that where the Roman Catholic minority have established a separate school district then all members of the minority religion are excluded as public school supporters and are not resident in the public school district. There is no machinery for getting out so long as you are of the religious faith of the minority who have acted to establish the separate school district. The children of such parents must attend that separate school as directed by the board of that school.

In my opinion ss 142 and 143 of the School Act also deal with this problem. These sections read as follows:

142(1) A parent of a pupil may apply to the board of a district or division in which he is not a resident for the admission of his child as a pupil to a school controlled by the board.

(2) Where there is sufficient accommodation in a school and if the parent agrees to pay the fees authorized by this Act, the board shall admit the pupil to its school.

143(1) No tuition fees shall be charged by a board for the attendance in its school of a pupil whose parent is a resident of the district or division.

(2) A board may charge tuition fees for any pupil whose parent is not a resident of the district or division but the fee shall not exceed the amount of the net average local cost per pupil of maintaining the program in which the pupil is enrolled.

Here it is said that Schmidt is paying his taxes to the public school board and thereby becomes a resident of that district. Residence is defined in s. 153. The scheme for dividing up the revenue is contained in s. 59 of the School Act. However, the payment of taxes do not effect a change in residence of the taxpayer. There is simply no way under the provisions of the Act, short of the oath, to remove a taxpayer from the separate school to the public school system. The fact that Schmidt is paying his taxes to the public school board must be by error in law as I can find no authority for it. In my opinion it cannot effect Schmidt's residence.

Section 143 (1) provides that no tuition fees shall be charged to a pupil "whose parent is a resident of the district or division". I note that this has nothing whatever to do with where the "resident" pays his taxes, if any, or at all. The fact is that applying the statutory test of s. 53 Mr. Schmidt is not a resident and therefore s. 143(1) cannot assist us in my opinion.

If the question of where the taxes are paid is not determinative of the issue then we must determine if the sections of the School Act are "discriminatory" and therefore inoperative, because of the provisions of the Individual's Rights Protection Act 1972 (Alta.), c. 2 Section 1 of that Act provides:

1(1) Unless it is expressly declared by an act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorized or requires the doing of anything prohibited by this Act.

(2) In this Act, "law of Alberta' means an Act of the Legislature of Alberta enacted before or after the commencement of this Act, any order, rule or regulation made thereunder, and any law in force in Alberta at the commencement of this Act that is subject to be repealed, abolished or altered by the Legislature of Alberta.

I do not intend to trace the history of the separate school legislation in Alberta. That has been done in a scholarly manner by Wilbur F. Bowker, Q.C., as chairman of the board of inquiry. It is sufficient to say that I agree with him that religion or religious beliefs are the very basis upon which the two school systems were developed. As soon as the minority opted out of the public school system (be it Protestant or Roman Catholic) it was necessary to ask "Are you a Roman Catholic or a Protestant?" Although the information may be obtained more subtly the answer works the division.

The scheme of public and separate schools as it existed in 1901 - protected as it is by s. 17 of the Alberta Act - is the separate and public school system we have today. The existence of two systems is guaranteed to the minority. The majority of the minority have the right to compel the entire minority to join the separate school division. That is the situation as it was in 1901, and in 1905 and the way it is in Calgary today. In my opinion there is no legislative authority in Alberta to abolish that scheme and therefore s-s (2) of s. 1 has no application as it only applies to legislation "in force in Alberta the commencement of this act that is subject to be repealed, abolished or altered by the Legislature of Alberta".

The effect of s. 53 of the School Act is to determine that Mr. Schmidt is a resident of the separate school system. As a result, he is not a resident of the public school division. It therefore follows that ss 142 and 143 apply unless they are inoperative because of the provisions of s. 3 of the Individual's Rights Protection Act which reads as follows:

3. No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall

(b)discriminate against any person or class of persons with respect to any accommodation, services or facilities customarily available to the public,

because of the race, religious beliefs, colour, sex, ancestry or place of origin of that person or class of persons or of any other person or class of persons.

In order to have two separate school systems it is necessary to have a legislative method of dividing or separating the minority from the majority. That method is and always has been religion. It was held by the Supreme Court of Canada in A.-G. Can. v. Lavell; Isaac et al. v Bedard (1973), 38 D.L.R. (3d) 481, [1974] S.C.R. 1349, 23 C.R.N.S. 197, and in A.-G.Can. et al. v. Canard et al. (1975), 52 D.L.R. (3d) 548, [1976] 1 S.C.R. 170, 4 N.R. 91, it is essential to legislation dealing with "Indians" that Parliament be able to define the class to which the legislation is to apply. Likewise if separate schools are to be permitted a mechanism for separating the group had to be found.

The method chosen was religion. That method existed before Alberta became a Province and is thereby specifically approved of by s 17 of the Alberta Act. It is elementary to say that the provisions of a statute of Alberta are incapable of affecting the validity of the British North America Act, 1867, or of the Alberta Act. The scheme having been approved of by the Imperial Parliament, the Parliament of Canada, as well by the Legislature of Alberta, is binding. In my opinion it cannot be held to be inoperative by reason of the Individual's Rights Protection Act.

It is sufficient to say that the charging of fees to non-residents has been a feature of the education ordinances and statutes of what is now the Province of Alberta for almost 100 years. The effect of the separate school legislation is to provide that residence is determined by religion where the boundary of the two school districts - the public and the separate - are identical. That is the situation in Calgary. As a result the charging of fees to non-residents is not a violation of s 3 of the Individual's Rights Protection Act. Indeed the whole scheme of the public and separate school systems authorizes and depends upon such a distinction.

In reaching this conclusion I do not find it necessary to deal with the question of whether or not the facilities of the Calgary Board of Education are "customarily available to the public". Neither do I find it necessary to deal with Mr. Robert Baron's, Q.C., very carefully reasoned opinion that the mere fact that a distinction is made based upon religion is not necessarily discrimination where there are reasonable, justifiable and necessary grounds for such a distinction. Certainly the existence of such should not insult nor affront anyone as Mr. Barron put it. It seems to me that there may be much merit in that reasoning.

In the result, I would vacate the order of Shannon, J., and substitute the finding that Mr. Schmidt's complaint is not justified. Accordingly, I would allow the appeal. In the circumstances I am of the view it is not a proper case for costs and therefore I would not allow costs to the successful appellant, the Calgary Board of Education.
Appeal Allowed