Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2022 BCSC 540
[1] This lawsuit is the fourth episode in constitutional litigation that has been intermittently underway since 1996. The plaintiff (the “Conseil”) asserts a continuing violation of rights to French-language instruction and facilities guaranteed by s. 23 of the Canadian Charter of Rights and Freedoms. It relies in particular on the decision of Russell J. of this Court in Conseil-scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2016 BCSC 1764 [Conseil Scolaire 2016]. Justice Russell’s order was varied in the Supreme Court of Canada (at 2020 SCC 13) [Conseil Scolaire 2020], but the Conseil specifically pleads and relies upon only three paragraphs of that order that were not appealed. The government of British Columbia (“BC”) was and is a defendant.
[2] The Conseil’s principal complaint is that BC has failed to effectively comply with Russell J.’s order to give effect to its rights, as determined by the Court. It says that the Vancouver Board of Education (the “VBE”), which was not a party in the earlier proceedings, is also bound by s. 23 of the Charterand shares responsibility for BC’s failure to remedy breaches of s. 23.
[3] BC applies for an order striking portions of Part 1 of the notice of civil claim. The VBE supports the application. It is important to emphasize at the outset that the application concerns only Part 1, which is supposed to set out a concise statement of the material facts alleged by the plaintiff.
[4] The defendants say that Part 1 of the Conseil’s notice of civil claim as presently drafted is not a proper pleading because much of it does not satisfy the requirements of Supreme Court Civil Rules [Rules] 3-1 and 3-7. Specifically, they complain that it contains argument, evidence, legal conclusions, and extensive quotations that are not themselves material facts. They ask me to order that the entire notice of civil claim be rewritten because, as BC’s counsel puts it, the substance of the application is an objection to the approach to the pleading taken by the Conseil.
[5] The Conseil opposes the application. Following delivery of the notice of application, the Conseil took some of the defendants’ complaints into account in amending the notice of civil claim. It says that, with the amendments, its pleading is proper and appropriate in this constitutional case. In what follows, when I quote from the amended notice of civil claim, I will omit the black-lining that identifies the amendments.
[109] While I have found that the amended notice of civil claim includes many paragraphs that should be struck, I do not think it is so generally deficient that I should strike the entire pleading and direct the Conseil to try again.
[110] I come to this conclusion with considerable hesitation because I suspect that removal of the paragraphs I have ordered be struck may not resolve the fundamental ambiguity as to the factual scope of the claim noted above in these reasons at paragraphs [25] to [30], a question bearing on the scope of discovery and the issues to be resolved at trial. Is the Conseil relying upon other parts of the orders of Russell J. or the Supreme Court of Canada than the paragraphs it has specifically pleaded? Does it intend to lead evidence concerning the state of French-language education in British Columbia beyond the confines of Vancouver, west of Main Street? I leave it to counsel to consider these questions and how they might be resolved.
