Supreme Court of Canada rules ". . . substantive equivalence of the educational experience" the new test

"L’école élémentaire Rose‑des‑vents (“RDV”) is the only publicly‑funded French‑language elementary school for children living west of Main Street in the city of Vancouver. The school is overcrowded and enrollment is growing. RDV is small and the classrooms are significantly smaller than those in other schools. Some have no windows and only three classrooms meet the recommended size for classrooms. The library is very small, the washrooms are inadequate and there is no available flexible space in the school. Roughly 85 per cent of students attending RDV are transported to school by bus and over two‑thirds of those have bus trips of more than 30 minutes per trip. By contrast, the English‑language schools in RDV’s catchment area are larger, with larger classrooms, larger and better playing fields, and more spacious libraries. Most students attending English‑language schools in the area live within one kilometre of their schools.

In 2010, parents of children attending RDV challenged their school board and the provincial government, seeking a declaration that the educational services made available to their children were not equivalent to those of the English‑language schools in the area and that their minority language education rights under s. 23 of the Charter had been breached. They requested that the legal proceedings be phased so that they could obtain a declaration while leaving the question of responsibility for the alleged inadequacies to a later phase, if necessary. Their hope was that obtaining a declaration would be sufficient to obtain a favourable government response.

The petition judge accepted the request to phase the proceedings, deciding to first assess only whether the children of rights holders were being provided with instruction and facilities equivalent to majority language schools, as guaranteed under s. 23 of the Charter . Prior to undertaking this initial phase of the proceedings, the judge struck certain parts of the province’s pleadings on the grounds that they were not relevant to that phase. At the conclusion of the first phase of the proceedings, the judge issued a declaration that the parents are not being provided the minority language educational facilities guaranteed to them by s. 23 of the Charter. He did not assign responsibility for the failure to meet the constitutional standard. The Court of Appeal allowed the appeal brought by the province. It set aside both the order striking some of the province’s pleadings, and the declaration."

Association des parents de l’école Rose-des-vents v. British Columbia (Education), the S.C.C. held (7:0) the appeal is allowed and the petition judge’s declaration reinstated; the award of special costs issued by the petition judge is restored; the matter remitted to the B.C.S.C. for the next phase of the petition, if necessary; special costs awarded to the appellants for the appeal.

Justice Karakatsanis wrote as follows (at paras.1-4, 38-39, 41, 79-81):

"This appeal reflects a new generation of issues for minority language education rights. When is the quality of a minority language school education equivalent to that of the majority language schools? What factors go into determining equivalence?

…They engage s. 23 of the Canadian Charter of Rights and Freedoms , the minority language education provision that guarantees minority language rights holders the right to have their children receive primary and secondary school instruction in English or French. While this Court has considered this Charter right on several occasions over the past 30 years, the present appeal illustrates the evolution of minority language education disputes since the adoption of the Charter : rather than focusing on a group’s initial entitlement to a given level of minority language educational services, this appeal asks how a court may determine whether a group is, in fact, receiving its entitlement.

It is well established that where the number of children of minority language rights holders warrants the highest level of services envisioned by s. 23, those rights holders are entitled to instruction and educational facilities equivalent in quality to that provided to the official language majority of the province or territory. This Court’s past jurisprudence has recognized that, because of the remedial nature of s. 23 rights, equality may mean something different than formal equality. It requires substantive equality. In this appeal, we are called upon to give guidance on how to measure this equivalence. We are also asked to determine the significance of a finding of lack of equivalence, and whether it amounts to a breach of s. 23 of the Charter .

In this case, the parents of children attending a French-language elementary school challenged their school board and the provincial government, and sought a declaration that the educational services were not equivalent to those of the English-language schools in the area. In my view, they were entitled to that declaration. As a result, I would allow the appeal and restore the declaration of the petition judge.

…considerations apply when comparing equivalence between minority and majority language schools. The quality of instruction and the quality of facilities may both be strong indicators of equivalence, and are properly considered together.

Thus, the comparative exercise is contextual and holistic, accounting for not only physical facilities, but also quality of instruction, educational outcomes, extracurricular activities, and travel times, to name a few factors. Such an approach is similar to the way parents make decisions regarding their children’s education. Of course, the extent to which any given factor will represent a live issue in assessing equivalence will be dictated by the circumstances of each case. The relevant factors are considered together in assessing whether the overall educational experience is inferior in a way that could discourage rights holders from enrolling their children in a minority language school.


Ultimately, the focus of the assessment is the substantive equivalence of the educational experience. If, on balance, the experience is equivalent, the requirements of s. 23 will be met.

Some or all of the Province’s struck pleadings may be relevant to a subsequent phase of the litigation. However, based on the judge’s organization of the proceedings, they do not assist in the first phase at issue in this appeal. Of course, his decision is without prejudice to any motions on the part of one or more of the parties to amend their pleadings at subsequent phases of the litigation.

For the same reasons, it was not inappropriate for the judge to deny the Province’s adjournment request to adduce new evidence during the first phase of proceedings. The additional evidence that the Province sought to adduce was largely irrelevant to the questions at issue in the first phase, and the judge concluded that the prejudice likely to be created by the delay outweighed the marginal relevance of the evidence.

Given the lack of relevance of the pleadings struck, the Court of Appeal erred in setting aside the order striking the pleadings, and in setting aside the judge’s declaration."

Note: This is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.