Nunavut Tunngavik Incorporated et. al. v. The Commissioner of Nunavut et. al., 2023 NUCJ 5

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Nunavut Tunngavik Incorporated et. al. v. The Commissioner of Nunavut et. al., 2023 NUCJ 5 Date: 20230302 Docket: 08-21-463 Registry: Iqaluit Plaintiff(s): Nunavut Tunngavik Incorporated, Bernice Tujjaaqtuqaq Clarke, and Lily Anne Maniapik -and- Defendant(s): The Commissioner of Nunavut as represented by the Government of Nunavut and the Government of Nunavut as represented by the Attorney General ______________________________________________________________ Before: The Honourable Mr.

Justice Paul Bychok Counsel (Plaintiffs): Counsel (Defendants): T. Dickson; A. Laskin; J. Black M. Faille; G. Regimbald; K. Brown Location Heard: Date Heard: Iqaluit, Nunavut August 2, 2022 Matters: Application to strike and dismiss action REASONS FOR DECISION (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This action concerns the provision of Inuit language instruction in Nunavut’s public schools system. [ 2 ] The Plaintiffs, who are the Respondents on this application, started an action against the Defendants on October 13, 2021.

On January 28, 2022, the Plaintiffs amended their claim. The Plaintiffs assert that the 2019 amendments to the Education Act [1] and Inuit Language Protection Act [2] [the 2019 Amendments] violate the rights of Inuit which they say are enshrined by section 15 (1) of the

Canadian Charter of Rights and Freedoms . [3] The Plaintiffs seek various remedies from the Court including an order requiring the Government of Nunavut, within five years of the order, to provide fully bilingual education (in Inuktitut and English or French) from kindergarten to grade twelve. [ 3 ] The Defendants, who are the Applicants on this application, have applied to this Court to strike, or dismiss, the action saying it is plain and obvious that the claim discloses no reasonable cause of action. [ 4 ] For clarity’s sake, I shall refer to the parties hereafter as the Applicants and the Respondents. [ 5 ] The parties provided detailed oral and written submissions, and I reserved my decision.

These are my reasons for judgment. II.

BACKGROUND [ 6 ] With Division and the creation of Nunavut, education became the responsibility of the Nunavut Legislature. [4] Section 23 (1) of the Education Act stated then and now that: Every student shall be given a bilingual education and the languages of instruction shall be the Inuit Language and either English or French as determined by a district education authority with respect to the schools under its jurisdiction. [ 7 ] In its first Education Act , the Legislature enacted a framework which called for the provision by July 1, 2019 of fully bilingual instruction in all its schools from kindergarten to grade twelve. [5] By 2019, however, bilingual education had only been implemented from kindergarten to grade three. [ 8 ] In 2019, the Legislature amended the Education Act to re-address the issue. [6] The

Schedule to the Act now provides for a phased in delivery over 20 years of what is termed “Inuit Language Arts.” [7] “Inuit Language Arts” is defined in the

Schedule as “a class or course that is focused on teaching the Inuit Language.” The Government is now obligated to provide bilingual education – as they have defined it in the

Schedule to the Act - by July 1, 2039 for all students from kindergarten to grade 12. [8] III. THE APPLICABLE LAW A. Nunavut Rules of Court i. Applications to strike an action [ 9 ] The Applicants apply to strike the action pursuant to section 129 (1) (a) (

i) of the Rules of Court. [9] This

section provides that the Court may, at any stage of the proceedings, strike out or amend a pleading which “discloses no cause of action or defence.” This

section mirrors the process found in other Canadian jurisdictions. [ 10 ] The test which this Court must apply in deciding the issue was stated by the Supreme Court of Canada in Atlantic Lottery Corp. Inc. v Babstock in the following terms:

… whether it is plain and obvious, assuming the facts pleaded to be true, that each of the plaintiff’s pleaded claims disclose no reasonable cause of action. Stated simply, if a claim has no reasonable prospect of success it should not be allowed to proceed to trial. [10] [ 11 ] The rationale behind the ‘plain and obvious’ test is a sound one. Public resources are not infinite, and limited court resources should not be squandered on actions which are frivolous or destined to failure. At the same time, however, courts must be careful not to dismiss an action merely because the claim is a novel one.

As we shall see in a moment, the reach of Charter section 15 (1) itself since its inception has been extended by the Supreme Court of Canada. Thus, in cases where the law is unsettled, and it is not plain and obvious that the claim will fail, the claim must be permitted to go to trial. [11] B. The Canadian Charter of Rights and Freedoms i.

Section 15 [ 12 ] Whether or not the Defendants succeed in their application to strike depends entirely on the ambit of

section 15 of the Charter , which reads: 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular , without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Section (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Emphasis added] [ 13 ] I have highlighted that the nine types of discrimination explicitly prohibited by the Charter are not exclusive. ii.

Interpretive framework [ 14 ] Parliament expressly declined to limit the reach of Charter section 15 (1) . Stated another way, Parliament left open the possibility that there may well be other analogous types of discrimination which offend the Charter . This interpretive reality was recognised early in the seminal case of Andrews v Law Society of British Columbia . [12] As we shall see, the Supreme Court of Canada has identified five other analogous grounds of Charter -prohibited discrimination. [ 15 ] In Andrews , the Supreme Court of Canada provided the framework within which

section 15 equality rights are to be interpreted: The enumerated grounds in section 15 (1) are not exclusive, and the limits, if any, on grounds of discrimination which may be established in future cases await definition … Both the enumerated grounds themselves and other possible grounds of discrimination recognized under s. 15(1) must be interpreted in a broad and generous manner, reflecting the fact that they are constitutional provisions not easily repealed or amended but intended to provide a “continuing framework for the legitimate exercise of governmental power” and, at the same time, for “the unremitting protection” of equality rights.” [13] [ 16 ] In Ontario (Attorney General) v G , [14] the Supreme Court of Canada set out a two-part test for trial judges to apply in determining whether an impugned law infringes Charter section 15 (1) : 1.

Does the law, either on its face or in its impact, create a distinction based on enumerated or analogous grounds? 2. Does the law impose a burden or deny a benefit in a way that reinforces, perpetuates, or exacerbates disadvantage, including

historical disadvantage? [Hereinafter the “ Ontario test.”] iii. Analogous grounds [ 17 ] Since the Charter came into force, the Supreme Court of Canada has found five grounds of discrimination to be analogous to the grounds listed in section 15 (1) and subject, therefore, to Charter remedy: 1. Non-citizenship; [15] 2. Marital status; [16] 3. Sexual orientation; [17] 4. Aboriginality – whether affected by residence; [18] and 5. Persons found not criminally responsible in relation to the national sex offender registry scheme. [19] IV. THE PARTIES’ POSITIONS ON THE APPLICATION A.

The Applicants [ 18 ] The Applicants assert several fundamental propositions: • The Plaintiff’s claim, though framed as “seeking to vindicate racial or ethnic equality,” is in fact an assertion of linguistic education rights. [20] • Charter sections 16 - 23 comprise “a complete code” respecting language rights, which “is incompatible with the reading into the Charter of the parallel set of implied language rights” sought by the Plaintiffs. [21]

Section 15 cannot be used as a “back door to enhance language rights beyond what is specifically provided elsewhere in the Charter [sic].” [22] This fact provides a “complete” and “definitive answer” to the Plaintiffs’ claim. [23] • “Constitutional authority in relation to education, as well as the preservation, use and promotion of Inuit languages, lies within the exclusive purview of the Nunavut Legislative Assembly.” [24] • The flaws in the Plaintiffs’ claim cannot be rectified by amendment to the pleadings. [25] [ 19 ] The Applicants ask the Court to strike the Respondents’ claim against them on the basis that it is plain and obvious that the claim discloses no reasonable cause of action.

B. The Respondents i. Allegations of fact

[ 20 ] The Respondents assert that their claim is grounded on the crucial and factual inter-connectedness between language and racial identity: • “By removing the requirement for public education to be delivered primarily in the Inuit language … and by delaying the stripped-down requirement for one Inuit language class,” the 2019 Amendments shall result in multiple adverse impacts on Inuit including language and cultural loss, “the ability for Inuit students to learn effectively,” and “diminish(ed) Inuit self-worth and self esteem.” [26] • Inuit have “historically suffered disadvantage, including through efforts to undermine the Inuit language.” • This historical, cultural, economic, and social political disadvantage continues today. • The positive relationship between language of instruction and educational attainment is undermined by the 2019 Amendments and will lead to a disproportionate impact on Inuit. [27] [ 21 ] For the purposes of this application, the law requires that I accept these factual representations as true. ii.

The claim proper [ 22 ] As to the claim, the Respondents assert several fundamental propositions: • The failure to provide Inuit language education from kindergarten to grade 12 until July 1, 2039 “discriminate against Inuit” and “will reinforce, perpetuate, and exacerbate the decline in the Inuit language.” [28] • The Inuit Language Protection Act enjoys “quasi-constitutional status in law. • Courts must exercise “particular caution before Striking Novel Claims [sic].” [29] • The claim falls within the legal framework of section 15(1). • The 2019 Amendments violate the norms of substantive equality. • In essence, the Respondents claim that the 2019 Amendments create adverse effects discrimination on Inuit based on race and ethnicity. [ 23 ] Consequently, the Respondents have asked the Court to dismiss the application and to permit the case to go to trial.

V. ISSUES [ 24 ] There is one issue for me to decide which I phrase as a question: 1. Is it plain and obvious that the Respondents have no reasonable cause of action against the Applicants?

VI. ANALYSIS A. Is it plain and obvious that the Respondents have no reasonable cause of actionagainst the Applicants? [25] The Respondents have invoked Charter section 15 (1) saying the 2019 Amendments discriminate against Inuit; and I note thatCharter section 15(1) lists race and ethnic origin as two of the explicitly prohibited forms of discrimination. The Applicants, on the otherhand, assert that the claim pertains to language rights. In whichever manner one characterises the claim, I must examine the potentialambit of Charter section 15 (1) in relation to Inuit language education in Nunavut.

Before I do so, it is significant to my analysis that theApplicants acknowledge: … it is notable that the Supreme Court of Canada has not definitively ruled on the potential application of s. 15 to language, and some courts and commentators have posited that the proverbial “door” may remain open to such a claim.[30] i.

Gosselin (Tutor of) v Quebec (Attorney General) [31] [26] In Gosselin, the Supreme Court of Canada spoke to the possibility of language being an analogous ground under section 15 (1): Section 15 (1) of the Canadian Charter does not expressly enumerate language as a prohibited ground of discrimination.

However, weagree with the observations of the Saskatchewan Court of Appeal in Reference re Use of French in Criminal Proceedings inSaskatchewan (1987), (SK CA), 36 C.C.C. (3d) 353, at p. 373, that: Nor, in our view, does the presence in the Charter of the language provisions of ss. 16 to 20, or the deletion from an earlier draft ofs. 15(1) of the word “language”, have the effect necessarily of excluding from the reach of s. 15 the form of distinction at issue in thiscase.[32] [27] In my view, the Supreme Court of Canada has left the door open, arguably, for the Respondents to assert that the provision of Inuitlanguage education from kindergarten to grade 12 is an analogous ground protected against discrimination by Charter section 15 (1). [28] Consequently, I now look to the Ontario test for guidance. ii.

Do the 2019 Amendments, either on their face or in its impact, create a distinctionbased on enumerated or analogous grounds? [29] The 2019 Amendments limit the provision of bilingual education to one Inuktut course and delays its full implementation for 20 years. Inuit children form the vast majority of the public school population in Nunavut.[33] Taken at face value, the 2019 Amendmentsapplies explicitly to, and will have a direct impact upon, Inuit children and their ability to study in their mother tongue or the language oftheir immediate ancestors. iii.

Do the 2019 Amendments impose a burden or deny a benefit in a way that

reinforces, perpetuates, or exacerbates disadvantage, including historical disadvantage? [ 30 ] For the purposes of this application, I must accept as true the Respondents’ factual assertion that the unavailability of Inuktitut instruction from grades four to twelve: … will reinforce, perpetuate, and exacerbate the decline in the Inuit Language [sic], which will in turn cause a host of serious, discriminatory impacts on the Plaintiffs and Inuit students more broadly.

Those discriminatory impacts include: (1) causing Inuit students’ loss of the Inuit Language [sic] and accordingly, connection to Inuit culture, and (2) reducing Inuit students’ ability to learn effectively, thereby limiting their educational attainment and employment potential, which leads to associated impacts such as loss of self-esteem and confidence. [34] [ 31 ] Clearly, it is arguable that the 2019 Amendments may impose a burden upon, or deny benefits to, Inuit. They do so on two levels. First, the 2019 Amendments may contribute to Inuit youth losing their language and their connection to Inuit culture.

Just as importantly, the effect of the 2019 Amendments may be to perpetuate the undeniable historical disadvantages experienced by Inuit from colonialism. iv. Conclusion [ 32 ] In my view, the law has yet to be settled whether language in some circumstances may be an analogous ground under Charter section 15 (1) . It is not plain and obvious that the Respondents’ claim would fail, however it is characterised. The action must proceed to trial. VII. JUDGEMENT A.

Decision [ 33 ] I dismiss the application to strike, and I order the Applicants to file their Statement of Defence within 30 business days of this decision. B. Costs [ 34 ] Costs shall be in the cause. Dated at the City of Iqaluit this 2 nd day of March 2023 ___________________

Justice P. Bychok Nunavut Court of Justice