Conseil scolaire francophone de la Colombie-Britannique Plaintiff v. His Majesty the King in Right of the Province of British Columbia, The Minister of Education and Child Care of the Province of, 2024 BCSC 205

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: The Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2024 BCSC 205 Date: 20240206 Docket: S2013627 Registry: Vancouver Between: Conseil scolaire francophone de la Colombie-Britannique Plaintiff And His Majesty the King in Right of the Province of British Columbia, The Minister of Education and Child Care of the Province of British Columbia and The Board of Education of School District No. 39 (Vancouver) Defendants In Chambers Before: The Honourable Mr. Justice Gomery Oral Reasons for Judgment Counsel for the Plaintiff: J. Klinck J.

Laxer M.C. Power P. Ravon Counsel for British Columbia A. Richards H. Cook Counsel for the Vancouver Board of Education: A. Grant R. McLennan L. McClanaghan Place and Dates of Hearing: Vancouver, B.C. January 17-18, 2024 Place and Date of Judgment: Vancouver, B.C. February 6, 2024 Introduction [ 1 ] This is constitutional litigation for the enforcement of minority language education rights conferred under s. 23 of the Canadian Charter of Rights and Freedoms .

It is brought by the Conseil, as the representative of French-speaking rightsholders in British Columbia, against the Province and the Vancouver Board of Education (the “VBE”). Before me now are two applications concerning the pleadings. They are the latest in a series of applications that have explored the application of established principles of pleading in the particular context of this challenging case. [ 2 ] The Conseil applies to strike portions of the VBE’s Third Amended Response to the Civil Claim, delivered in response to the Fourth Amended Notice of Civil Claim.

For convenience, I will refer to these pleadings as the Response and the NoCC. Commendably, through discussions that continued through the hearing of the application, what began as a far-ranging application is now confined to nine paragraphs in issue. [ 3 ] The Province applies for particulars of three subparagraphs of paragraph 339 of the NoCC, which forms part of the Conseil’s prayer for relief.

The Conseil’s application to strike [ 4 ] The Conseil’s application to strike follows on an application to strike portions of the Province’s amended response to the fourth amended notice of civil claim. I outlined and will not repeat much of the applicable legal framework at paras. 5 to 9 of my reasons deciding that application, indexed at 2023 BCSC 2296 . As in the other application, the Conseil claims that portions of the VBE’s Response are evasive.

An additional element on this application is an argument that parts of the VBE’s response fail to state a reasonable defence, contrary to Supreme Court Civil Rule 9-5(1)(a). [ 5 ] The Conseil’s objections to the VBE’s pleading fall into three buckets. By far the most substantial is an objection to paragraphs that address, or allegedly fail to address, the values underpinning s. 23 of the Charter or the rights and interests of s. 23 rightsholders. These are paragraphs 36, 63, 90, and 91 of

part 1 of the Response and paragraphs 21, 31 and 32 of

part 3. These paragraphs engage, in various ways, the balancing exercise required by Dor é v. Barreau du Québec, 2012 SCC 12 . [ 6 ] The other two buckets contain a single paragraph each. The Conseil maintains that paragraph 72 of

part 1 must be struck because it is evasive. It maintains that paragraph 18 of

part 3 fails to state a reasonable defence. [ 7 ] In what follows, I will address each of the paragraphs in issue without quoting them. When a transcript of these reasons is provided, the paragraphs in issue and the corresponding paragraphs in the NoCC will be attached as an appendix. Analysis Overview of the Dor é issue [ 8 ] Doré governs the judicial review of discretionary administrative decisions that engage the Charter . It is addressed in Conseil scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [ CSFTNO ], which involved s. 23 .

As explained in CSFTNO , Dor é establishes a framework for analysis that is engaged where administrative action directly infringes the rights protected by s. 23 or engages a value underpinning s. 23 . The Conseil maintains that actions and inactions on the part of the VBE fall to be evaluated under the Doré analytical framework. [ 9 ] The Doré analytical framework requires the reviewing court to examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them.

When the decision-maker gives precedence to the legislature’s intention over Charter protection in order to achieve statutory objectives, it must do so in a manner that is “proportionate to the resulting limitation on the Charter right”; CSFTNO at paragraph 69 . The standard of reasonableness here requires a robust analysis that works the same justificatory muscles as s. 1 of the Charter ; CSFTNO at paragraph 70 . The decision must be reasonable in the sense required in administrative law; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 .

In this context, reasonableness requires that the decision-maker have considered the relevant Charter right or value and have meaningfully addressed the Charter protections to reflect the impact that its decision may have on the concerned group or individual.

It is not sufficient to ask whether the decision falls within a range of reasonable outcomes; the court must consider whether there are other reasonable outcomes that would more fully protect the Charter right or value. [ 10 ] The VBE pleads the Doré framework in the alternative to its primary position that its conduct addressed in this action is not governed by s. 23 of the Charter .

Its core contention is that its obligation to consider Charter rights or values is limited by virtue of its place in the statutory scheme created by the Province under the School Act, R.S.B.C. 1996, c. 412 for the implementation of s. 23 rights. Paragraph 36 of the Response [ 11 ] Paragraph 112 of the NoCC addresses a 2019 decision by the trustees of the VBE to vote down a motion to initiate a public consultation with a view to closing a school, the Queen Elizabeth Annex, in order that it might be transferred to the Conseil. The Conseil pleads that the VBE made this decision “without considering

section 23 or its underpinning values”. The legal significance of the plea lies in the Conseil’s argument that the Dor é framework requires such consideration. [ 12 ] In paragraph 36 of the Response, the VBE denies paragraph 112 of the NoCC while acknowledging the 2019 decision. It affirmatively pleads that, in making the decision, the VBE trustees considered various matters including “the interests of

section 23 rightsholders”. [ 13 ] The Conseil submits that paragraph 36 is evasive because it does not address the substance of its matter. It submits that the VBE’s reference to the interests of s. 23 rightsholders is far broader and vaguer than its reference to s. 23 and its underpinning values because the latter are well-defined by CSFTNO as including “the preservation and development of minority-language communities” (at paragraph 80). It submits that the VBE’s plea fails to define what is in dispute. [ 14 ] The VBE disputes that its plea is evasive.

It submits that it has affirmatively pleaded the matters considered by the trustees and the rest is a matter for argument as to whether its decision was problematic, having regard to s. 23 of the Charter . [ 15 ] In my view, the only problem with paragraph 36 is that the listing of matters considered by the trustees is open-ended. It is a list of matters considered “amongst other things”. If those words were struck, then issue would be joined. The VBE would have pleaded those matters that it considered, and it would argue that the listed considerations were adequate in the circumstances.

The Conseil would contend that the list fell short of what the law outlined in CSFTNO requires. [ 16 ] Because the list is open-ended, paragraph 36 is plainly and obviously evasive and the issue is not well-defined. Either the words

“amongst other things” should be struck, or the entire paragraph should be struck with leave to amend. Paragraph 63 of the Response [ 17 ] Paragraph 221 of the NoCC pleads that the legislative framework in issue does not prohibit consideration of “other factors, including

section 23 of the Charter and its underpinning values” but English-language school boards such as the VBE take the position that they have no obligations in relation to s. 23 . [ 18 ] Paragraph 63 of the Response denies paragraph 221. The VBE affirmatively pleads that the legislative framework does not prohibit the consideration of “other factors, including

section 23 of the Charter ”. This is an acknowledgement of a proposition contained in paragraph 221. The Conseil attaches significance to the omission of an explicit reference to underpinning values, but I disagree. The lesson I take from CSFTNO is that, in law, consideration of s. 23 of the Charter engages consideration of its underpinning values. While they are not the same thing, the NoCC’s reference to “other factors” encompasses both, and it is open to the VBE to respond with equivalent generality. [ 19 ] Paragraph 63 goes on to plead affirmatively that the VBE does not have “direct

section 23 obligations” but has consistently acted in a manner that benefits s. 23 rightsholders. The Conseil submits that this plea is evasive because the VBE does not specify what underpinning Charter values it considers. It says that, because paragraph 63 does not reference Charter values, it is not in a position to demand particulars of them. [ 20 ] I do not see why the Conseil would be unable to explore the assertion in paragraph 63 that the VBE has acted in a manner that benefits s. 23 rightsholders, either on discovery or through a demand for particulars.

In saying this, I offer no opinion as to which avenue is more appropriate. [ 21 ] In that light, I do not think it is plain and obvious that paragraph 63 should be struck as an evasive pleading. The factual issue is adequately defined. Paragraph 90 of the Response [ 22 ] Paragraph 284 of the NoCC pleads that the VBE makes decisions without considering the prejudice that may be caused to s. 23 parents and children. Paragraph 90 of the Response denies paragraph 284.

The VBE pleads that it often makes decisions considering the interests of s. 23 parents and children. [ 23 ] The Conseil submits that paragraph 90 is evasive because it does not address the question of prejudice, only interests, which is a less securely focused concept.

It references CFSTNO at paragraph 72, where Coté J., speaking for the court, emphasized that the Dor é analysis requires action that minimally impairs protected rights and stated: In cases where the reviewing court finds that “there was an option or avenue reasonably open to the decision-maker that would reduce the impact on the protected right while still permitting him or her to sufficiently further the relevant . . . objectives”, the administrative decision will be unreasonable (para. 81 (emphasis in original)).

This is a necessary consequence of the robust analysis required by Doré . [ 24 ] The VBE responds that the plea in paragraph 284 is so wide-ranging as to defy focused analysis. It sought particulars of the decision in issue and was met with a response that the Conseil was referring to all VBE decisions that could have had an effect on s 23 parents and children since the creation of the Conseil. [ 25 ] Considering the generality of the allegation and response, I do not think it is plain and obvious that paragraph 90 should be struck.

The dispute is both unfocused, because it concerns a very wide range of decisions made by the VBE, and muted, because consideration of interests necessarily entails consideration of prejudice, and by pleading that it considers the interests of rightsholders, the VBE asserts that it considers prejudice to them, as alleged by the Conseil. I doubt that it will advance the determination of the issues on discovery or at trial to require greater specificity from the VBE in response to the Conseil’s plea at paragraph 284.

Paragraph 91 of the Response [ 26 ] Paragraph 285 of the NoCC pleads that the VBE makes decisions without taking into account the values that underpin s. 23 Charter rights. At paragraph 91 of the Response, the VBE denies paragraph 285 and affirmatively pleads that it takes decisions that are in the best interests of its constituents “while also taking into account the interests of

section 23 parents and children”. [ 27 ] The Conseil submits that paragraph 91 is evasive in that it fails to address s. 23 Charter rights, which are not commensurate with the interests of s. 23 rightsholders. It submits that the VBE’s plea avoids rather than defining the issue to be decided. The VBE submits that its plea is adequate in the circumstances. [ 28 ] I agree with the Conseil that the plea at paragraph 91 is plainly and obviously evasive. Having denied paragraph 285 of the NoCC, it is incumbent on the VBE to identify the point in issue by an affirmative plea at an appropriate level of generality.

CSFNTO establishes that the values underpinning s. 23 and the interests of s. 23 rightsholders are not equivalent. The VBE’s plea must address, if only in general terms, the values underpinning s. 23. Paragraphs 21, 31 and 32 of

part 3 of the Response [ 29 ] In paragraphs 21, 31 and 32 of

part 3 of the Response, the VBE pleads the Doré framework and that it has “proportionately balanced Charter guarantees in light of the statutory objectives of the School Act ”. The Conseil maintains that the plea does not state a reasonable defence because the defence is not supported by the necessary pleading of facts. The Conseil further submits that the VBE’s

defence is misconceived because, as a public body, it cannot avoid responsibility for the implementation of Charter protections inrespect of authorities assigned to it, citing Godbout v. City of Longueil, (SCC) at paras. 48 and 51, Conseil scolaireFransaskois de Zénon Park v. Saskatchewan, at paragraph 16 (Sask QB), and Greater Vancouver TransportationAuthority v. Canadian Federation of students – British Columbia Component, 2009 SCC 31 [GVTA] at paragraph 22. [30] In my view, it is not plain and obvious that the VBE’s legal argument pleaded in paragraphs 21, 31 and 32 of the Response isbound to fail.

It is supported by a pleading of material facts, because I have declined to strike the factual pleading at paragraphs 63 and90 of

part 1 and I assume that paragraphs 36 and 91 will be amended as necessary. As to the legal issue, none of the cases cited by theConseil is on all fours with this case or unequivocally rejects the VBE’s argument. Godbout and GVTA did not involve s. 23 rights, ands. 23 is unique in the Charter by virtue of the positive burden it imposes on governments. [31] The authorities make it clear that the power to strike claims must not be used to stultify the law by shutting down arguable claimsthat have not yet been legally recognized. In R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42, Chief Justice McLachlin gave judgmentfor the court and stated at paragraph 21: … The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminarymotions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yetrecognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospectthat the claim will succeed.

The approach must be generous and err on the side of permitting a novel but arguable claim to proceed totrial. [Emphasis added.] [32] I think it is not beyond argument that some incidents of the constitutional burden imposed by s. 23 of the Charter may remainwith the Province, notwithstanding its delegation of administrative powers and responsibilities to the VBE under the School Act.

JusticeKyle rejected a similar argument in Conseil scolaire Fransaskois de Zénon Park, but that was in the context of a legislative scheme thatcontemplated the vesting of facilities belonging to the English-language board in the French-language board established for thevindication of s. 23 rights. The scheme of the School Act is quite different. Paragraph 72 of

part 1 of the Response [33] Paragraph 231 of the NoCC pleads that, in relation to a prospective school at the Olympic Village site in Vancouver, the Ministerof Education offered to assist the VBE in securing the site and to fund the construction of the school. Paragraph 72 of

part 1 of theResponse denies paragraph. 231. It admits the offer of assistance to secure the site, though it adds that it secured the site through directnegotiations with the city, apparently without assistance. It affirmatively pleads that, although there are ongoing negotiations, theMinister of Education has not yet provided funding for a school. [34] The Conseil submits that the VBE’s affirmative plea is evasive, because it does not address the question of whether an offer offunding was made by the Minister.

It simply states that funding has not yet been provided. [35] The VBE submits that it has addressed the point of substance as to the existence of an offer by pleading, at paragraph 32, astatement by the Minister of Education referring to contributions to be made by the Ministry for a new school at Olympic Village, and atparagraph 34, that “there was discussion that the VBE Olympic Village school project was supported”. [36] I agree with the VBE that the substance of the Conseil’s pleading at paragraph. 231 is adequately addressed by its affirmativepleas at paras. 32, 34 and 72 of

part 1 of the Response. Paragraph. 72 should not be struck. Paragraph 18 of

part 3 of the Response [37] At paragraph 18 of

part 3 of the Response, the VBE pleads that it does not have statutory authority conferred on it by theProvince to address the Conseil’s claims under s. 23 of the Charter. The Conseil submits, first, that this plea is unsupported by pleadedmaterial facts and, second, that the plea is inconsistent with pleadings and particulars in which the VBE states that it has acted in amanner to facilitate the implementation of s. 23. [38] The first submission is not convincing. The VBE pleads that it operates under the aegis of the School Act.

The plea inparagraph 18 must be understood as asserting that the VBE’s authority under the School Act is limited such that it is not authorized toaddress the Conseil’s claims. Whether or not it is correct, this is a coherent legal proposition. Governmental authority may be limited inthe absence of an express legislative prohibition. The limitation may derive from the absence of a statutory power, as in Roncarelli v.Duplessis, (SCC). The question is one of statutory

interpretation. No further material facts need be pleaded. [39] There is more substance to the second submission, because the VBE could not coherently maintain both that it lacked authority tofacilitate the implementation of s. 23 and that it had done so. It could assert one of these positions as an alternative to the other, butparagraph 18 is not framed as a plea in the alternative. [40] However, the claim is wide-ranging and paragraph 18 is a response to all of it.

It is possible to interpret the plea at paragraph 18as addressing some of the Conseil’s allegations, and the pleas that the VBE has facilitated the implementation of s. 23 as addressingothers. In that light, the charge of inconsistency or incoherency falls away. I think that paragraph 18 could have been more carefullydrafted, but it is not plain and obvious that it fails to state a reasonable defence, as maintained by the Conseil. Conclusion concerning the Conseil’s application

[ 41 ] To summarize, I conclude that an order is required in respect of paragraphs 36 and 91 of

part 1 of the Response. At paragraph 36, the words “amongst other things” should be struck, unless the VBE chooses instead to have the entire paragraph struck with leave to amend. Paragraph 91 should be struck, with leave to amend. The other paragraphs of the Response addressed in these reasons need not be struck. The order may require the amendment of the paragraphs the VBE has agreed to revise, in discussions between counsel. The Province’s application for particulars [ 42 ] The prayer for relief in

part 2 of the NoCC sets out 40 distinct orders and declarations sought against the Province and the Minister of Education, 8 orders and declarations sought against the VBE, and, at paragraph 339, 5 orders sought against the Province, Minister of Education, and the VBE. [ 43 ] There is no issue concerning the orders sought in paragraph 339(

a) and (b). They refer to the School Act , two ministerial orders, and ministerial and VBE policies and procedures (collectively, the “Instruments”). Subparagraph (

a) seeks a declaration that none of the Instruments precludes the VBE from complying with its obligations under s. 23 of the Charter . Subparagraph (

b) seeks a declaration that none of the Instruments precludes the VBE from considering the values underpinning s. 23 in its decisions whether to close, declare surplus, and dispose of any underutilized or surplus sites and facilities. [ 44 ] The Province seeks particulars of subparas. (c), (

d) and (e). Legal framework [ 45 ] Rule 3-7(18) and (19) provide for the inclusion in a pleading or a supplementary document of such particulars as are necessary. Particulars need only be pleaded to the extent that they are known at the date of pleading, but may be supplemented as additional information becomes known; R 3-7(20). An opposing party may demand further particulars and seek an order that they be provided; R 3-7(22) and (23). The assessment of whether they should be ordered is discretionary; Steelhead LNG Limited Partnership v. Arc Resources Ltd., 2022 BCCA 128 at paras. 24-25 .

The discretion is broad and informed by the circumstances. As stated by Fitzpatrick J. in British Columbia (Director of Civil Forfeiture) v. PacNet Services Ltd., 2018 BCSC 2251 at paragraph 23 and affirmed by Willcock J.A., speaking for the Court of Appeal in Steelhead at paragraph 26: The overarching consideration in applying the Cansulex principles is to ensure the integrity of the justice system is upheld: Powell v. 349131 B.C. Ltd. , [1992] B.C.J. No. 1088 (S.C.) at para. 61 .

This integrity is best protected when litigation is allowed to proceed in a fair manner toward a just resolution between the parties. [ 46 ] Historically, pleadings were largely limited to allegations of fact, and the law relating to the provision of particulars developed in that light. Both sides reference a list of matters to be considered in the exercise of the court’s discretion from Cansulex Ltd. v. Perry, [1982] BCJ No. 369 (CA) at paragraph 15 .

The list focuses attention on the role of particulars in circumscribing the factual inquiry that occurs at trial. [ 47 ] The particulars sought on this application would not circumscribe the factual inquiry defined by the pleading in

part 1 of the NoCC and responses to civil claim. The Conseil accepts that particulars of the prayer for relief in

part 2 can nevertheless be ordered. [ 48 ] In my opinion, in this context as in the more familiar context where particulars of factual allegations are sought, the essential question is whether an order for particulars that would confine or focus the relief sought is necessary in order that the litigation may “proceed in a fair manner toward a just resolution”. The demand for particulars of subparas. 339(

d) and (e) [ 49 ] Subparagraphs (

d) and (

e) are relief sought by the Conseil in any event, and not in the alternative. [ 50 ] Subparagraph (

d) references the Instruments and seeks a declaration that, to the extent that they impose requirements that impede the timely implementation of s. 23 of the Charter , they infringe s. 23 in a manner not justified by s. 1 of the Charter . The Province asks that the Conseil identify what there is in any such Instrument that imposes requirements that impede timely implementation. [ 51 ] Subparagraph (

e) refers generally to “other requirements (unrelated to health or safety considerations)” that impede the timely implementation of s. 23 of the Charter , and seeks a declaration that such other requirements infringe s. 23 in a manner not justified by s. 1 .

The Province asks that the Conseil identify the other requirements, specify what government actors imposed them, and state whether they impede timely implementation on their own or by virtue of the manner of their implementation. [ 52 ] The Province says that it needs the particulars sought in order to plead the factual elements of a responsive plea of justification under s. 1 of the Charter . The Conseil accepts that it should provide the information sought, when it is in a position to do so. It says that it will be able to do so when it obtains information it is seeking from the VBE on discovery.

It anticipates being able to respond within two weeks of receipt of the VBE’s further amended response, answers to requests 172 to 181 left outstanding during the examination of the VBE’s representative, David Green, and responses to the same requests to be put on an examination of the Province’s representative, Mr. Bertrand, that will have taken place between January 29 and February 1. [ 53 ] I am satisfied that an order for particulars of subparas. (

d) and (

e) is necessary in the circumstances. It will focus the relief sought in order that the litigation may proceed in a fair way toward a just resolution. It would not be right to require the Conseil to provide the particulars before it is in possession of the information it needs to formulate them, and the timetable proposed by the Conseil is reasonable.

The demand for particulars of subparagraph 339(c) [ 54 ] The issue in respect of the particulars sought of subparagraph (

c) is more difficult because this subparagraph seeks relief in the alternative to the relief sought in subparagraph (a). It refers to the Instruments and seeks a declaration that, to the extent that they preclude the VBE from complying with its obligations under s. 23 , they infringe s. 23 in a manner not justified by s. 1 of the Charter and are therefore of no force and effect.

In respect of each of the Instruments, the Province asks that the Conseil identify what it is in the Instrument that precludes the VBE from considering its alleged s. 23 obligations. [ 55 ] The obvious difficulty is that the allegation that the Conseil is being asked to particularize engages contentions that are not its own. It is the VBE, not the Conseil, that maintains that it is precluded from complying with s. 23 obligations by something in the Instruments.

The Conseil’s case is that the VBE is not precluded. [ 56 ] As already discussed, the VBE’s position that it is precluded is a position in the alternative to its primary positions that it does not owe s. 23 obligations, or has complied with whatever obligations it may owe. [ 57 ] While it is obviously desirable that the Province be in a position to plead justification under s. 1 with particularity, and it needs the particulars sought to do so, it is not clear that the information required can be obtained prior to trial. The relief sought in the alternative in subparagraph (

c) rests on a series of contingencies. Fortunately, as a practical matter, it is unlikely that the justificatory considerations relied upon by the Province in respect of the declaration claimed at (

c) would differ significantly from those invoked in respect of the relief claimed at (a), (b), (

d) and (e), all of which will be pleaded before trial. [ 58 ] In the circumstances, I do not think an order for particulars of the alternative prayer for relief at paragraph 339(

c) is necessary to secure the just and fair resolution of this case. The relief available is essentially a matter for legal argument based on findings that can only occur at the conclusion of the trial. The playing field is level; no party is at a disadvantage in forecasting how the argument will unfold. I do not think there is real practical benefit to be obtained by requiring the Conseil to enumerate all the various possibilities it can foresee, which is all an order for particulars would accomplish. Conclusion concerning the Province’s application [ 59 ] For these reasons, the Province’s application for particulars of subparagraph 339(

c) is dismissed and its application for particulars of subparagraphs (

d) and (

e) is allowed on the basis that the particulars are to be provided within 14 days following the provision of the VBE’s further amended response to civil claim, answers to requests 172 to 181 left outstanding during the examination of Mr. Green, and responses to the same requests during the examination of Mr. Bertrand. “Gomery J.” Appendix Fourth Amended Notice of Civil Claim (4 th ANOCC”) filed July 28, 2023 VBE’s Third Amended Response to the Civil Claim, filed November 30, 2023

Part 1

Part 1 [112] Without considering

section 23 or its underpinning values, the VBE trustees voted down a motion that the VBE initiate a public consultation on the closure of QEA. 36. The VBE denies the facts as set out in paragraph 112 of the FANOCC. The VBE says that in October 2019, the VBE Board of Trustees voted against initiating public consultation regarding the school closure of QEA at that time. In making the decision not to initiate public consultation of QEA on October 28, 2019, the VBE Board of Trustees considered, amongst other things, the interests of its own constituents, the interests of

section 23 rightsholders, the potential long term implications of a school closure for QEA, the need for a completed Long Range Facilities Plan, the messages of the Mayor of Vancouver and the Minister of Education and input from senior VBE management. [203] English-language school boards operating in a number of these communities have surplus and/or underutilized sites and/or facilities, which would meet the Conseil’s needs. 57. The VBE denies the facts as set out in paragraph 203 of the FANOCC. The VBE says that the CSF has entered into four leases with the VBE in underutilized sites and/or facilities that the VBE closed.

[221] The legislative framework does not prohibit the consideration of other factors, including

section 23 of the Charter and its underpinning values, however, as set out below, English-language school boards take the position that they have no obligations in relation to

section 23. 63. The VBE denies the facts as set out in paragraph 221 of the FANOCC. The VBE says that the legislative framework does not prohibit the consideration of other factors, including

section 23 of the Charter . The VBE says that it does not have direct

section 23 obligations but that it has consistently acted in a manner and continues to act in a manner that benefits

section 23 rightsholders. [231] In relation to the QEA site, the Minister of Education offered to assist the VBE in securing the Olympic Village site and to fund the construction of a VBE facility. 72. The VBE denies the facts as set out paragraph 231 of the FANOCC. The VBE admits that the Minister of Education offered to assist the VBE in securing a Olympic Village site, but says that the VBE entered into negotiations directly with the City of Vancouver to secure a 99-year lease for an Olympic Village school site.

VBE also says that although there are ongoing discussions, the Minister of Education has not yet provided the VBE with the funding needed for a school. [284] The VBE makes decisions without considering the prejudice that may be caused to

section 23 parents and children. 90. The VBE denies the facts as set out in paragraph 284 of the FANOCC. The VBE says that the VBE often makes decisions considering the interests of

section 23 parents and children. [285] The VBE makes decisions without taking into account the Charter values which underpin

section 23 Charter rights. 91. The VBE denies the facts as set out in paragraph 285 of the FANOCC. The VBE says that the VBE’s constituents are the non-

section 23 rightsholders in Vancouver but that the VBE has consistently made decisions that are in the best interest of the VBE constituents while also taking into account the interests of

section 23 parents and children.

Part 2

[339] The Counseil seeks the following declarations in relation to the Province, the Minister of Education, and the VBE: a . A declaration that the School Act , Ministerial Order M193/08, Disposal of Land or Improvements Order, Ministerial Order 194/08. School Opening and Closure Order, policies and procedures for school closure established by the Minister, VBE Policy 14, School Closure , and Policy 20, Disposal of Land or Improvements , do not preclude the VBE from complying with its obligations under

section 23 of the Charter ; b . A declaration that the School Act , Ministerial Order M193/08, Disposal of Land or Improvements Order , Ministerial Order 194/08, School Opening and Closure Order , policies and procedures for school closure established by the Minister, VBE Policy 14, School Closure , and Policy 20, Disposal of Land or Improvements do not preclude the VBE from considering the values underpinning

section 23 of the Charter in its decisions about whether to close, declare surplus and dispose of any underutilized or surplus sites and facilities; c . In the alternative to [339] a., a declaration that any provisions of the School Act , Ministerial Order M193/08, Disposal of Land or Improvements Order , Ministerial Order 194/08, School Opening and Closure Order , any policies and procedures for school closure established by the Minister, VBE Policy 14, School Closure and Policy 20, Disposal of Land or Improvements , to the extent that they preclude the VBE from complying with its obligations under

section 23 of the Charter , infringe

section 23 in a manner not justified by

section 1 , and are therefore of no force or effect; d . A declaration that Ministerial Order M193/08, Disposal of Land or Improvements Order , Ministerial Order 194/08, School Opening and Closure Order , any policies and procedures for school closure established by the Minister, VBE Policy 14, School Closure , and VBE Policy 20, Disposal of Land or Improvements , to the extent that they impose requirements that impede the timely implementation of

section 23 of the Charter , infringe

section 23 in a manner not justified by

section 1 of the Charter , and are therefore of no force or effect; and e . A declaration that the imposition of other requirements (unrelated to health or safety considerations) that impede the timely implementation of

section 23 of the Charter , infringes

section 23 in a manner not justified by

section 1 of the Charter

Part 3 18. Moreover, the VBE does not have the statutory authority as conferred on it by the Province to address the claims or rights of the CSF under s. 23 of the Charter . 21. In the alternative, if

section 23 of the Charter is applicable to the VBE, the proportionate balancing analysis articulated by the Supreme Court of Canada as the Doré/Loyola framework applies to the administrative decisions made by the VBE. 31. The Doré/Loyola framework requires that where a discretionary administrative decision engages the protections enumerated in the Charter , both the Charter ’s guarantees and the foundational values they reflect, the decision- maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives. 32.

If any of the VBE’s actions, the listed sections of the School Act , or the above referenced Ministerial Orders do infringe s. 23 of the Charter , which is expressly denied, the VBE has proportionately balanced Charter guarantees in light of the statutory objectives of the School Act .