Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2023 BCSC 1281
[16] The dispute that lies at the heart of this case was foreshadowed by Chief Justice Wagner in his reasons giving judgment for the majority in the Supreme Court of Canada in the earlier litigation. He was rejecting an argument advanced by the Conseil that it should not be required to prioritize its capital projects, thereby obliging the Conseil to accept that some infringements of s. 23 will persist longer than others. He held that it is incumbent on the Conseil to engage with the Province, and he anticipated a debate, to be resolved on a case by case basis, as to what must be done, and how quickly, to bring into existence the dedicated French-language schools required by the declarations. The Chief Justice stated:
[140] In my view, the prioritization required by the Province does not infringe the right of management guaranteed by s. 23 of the Charter. On the contrary, the Province is furthering the exercise of that right in asking the CSF to indicate where funds should be invested on a priority basis.
[141] The real question instead relates to the timeframe for a remedy. In other words, the appellants are asking this: How much time does the Province have to remedy the infringements of s. 23? This will have to be addressed on a case‑by‑case basis. The Province’s ability to pay and the CSF’s ability to manage multiple projects will have to be taken into account.
[142] The infringements must nonetheless be remedied in a timely fashion. This requirement is in keeping with the unique and distinct nature of s. 23. Section 23 rights are particularly vulnerable to foot‑dragging by public authorities because of the “numbers warrant” requirement in that section. The force of assimilation is such that the number of children of rights holders could fall irreversibly below the number needed to warrant the provision of services in a linguistic minority community while the authorities delay fulfilling their constitutional obligations (Doucet‑Boudreau, at para. 29). As this Court recently noted, “there is a critical need both for vigilant implementation of s. 23 rights, and for timely compliance in remedying violations” (Rose‑des‑vents, at para. 28).
[Emphasis added.]
[17] The Province submits that the paragraph in issue on this application is material to the earlier litigation and perhaps to future litigation, but not to this action, because its subject-matter is projections of demand for French-language instruction in some of the places with which this action is concerned. Paragraph 48.2 does not directly refer to the projections accepted in the earlier litigation, but points in the direction of a comparison of them with actual experience in Vancouver, Abbotsford, Victoria (West) and Whistler. The Province submits that the comparison could only be material in an action seeking new or different declarations of entitlement.
[18] The Conseil disagrees. It maintains that paragraph 48.2 addresses facts that will or may be relevant to the court’s determination of the relief to which the Conseil is entitled.
[19] I agree with the Conseil. While the question of entitlement is settled, at least for the time being, I do not think it is plain and obvious that the lived experience of the demand for French-language instruction since 2010, and a comparison of that experience to the projections accepted by the court in 2016, may not be material to the court’s assessment of what was and is required of the Province in the fulfilment of its constitutional obligation, and what orders should be made at this time.
[20] What s. 23 requires of the Province and the Conseil is not a purely academic or intellectual exercise. It requires discussion, setting priorities, and implementation of capital planning decisions. It is at least arguable that these discussions and decisions should be informed by experience on an ongoing basis. Representatives of the Conseil and the Province in planning and establishing new French-language schools would not ignore new information about changing needs. Why should such information not be presented to the court for its consideration in addressing whether a remedy is required and what it might be?
[21] I need not decide this point on this application. It is enough that the Conseil has an arguable position to advance, based on the factual allegations it wishes to plead in the proposed paragraph 48.2. It is not plain and obvious that these facts, if proven, will not assist the court to a fair and just determination of the Conseil’s claim for a constitutional remedy. In the context of this case, they are material.
