III. Minority Language Education Rights
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Solski v. Quebec (cont.)
The Quebec Superior Court rejected the proposition that rights under subsection 23(2) should apply only to the children of parents who were identifiable as members of minority official language communities, be they French or English. In this regard the Court referred to and approved of a similar ruling by the Ontario Court of Appeal in Abbey (reviewed above). It concluded that the absence of any distinction in subsection 23(2) based on the mother tongue of parents or children should be taken to mean that none was intended.
While the Superior Court recognized that subsection 23(2) covered the case of families who moved from one province to another, it concluded that such examples were not exhaustive of the subsection’s meaning and scope.51 In the case at bar, the Court felt that it was the actual fact of currently receiving instruction in English (in a private school and hence legally) that brought the request of the parents within the scope of subsection 23(2). The review of a child’s educational history as a whole to determine the proportion of his or her schooling in one language or another was therefore irrelevant to the application of the clear terms of subsection 23(2). The latter does not incorporate any duration standard that must be met before children become eligible for instruction in the minority official language. The limiting phrase “major part” was therefore in conflict with subsection 23(2).
The Superior Court took note of the problem posed by English language private schools (not subject to the admission criteria set out in the Charter of the French Language) being used as means to achieve access to publicly funded English schools in the province (by means of a transfer after one year). However, this alleged loophole did not arise from the absence of any duration standard in subsection 23(2) but from the exemption made in favour of private schools under Quebec law. In effect, those with sufficient financial means are accorded freedom of choice in the language of instruction of their children.
The solution to the problem, if indeed there was a problem, did not lie with a restrictive interpretation of the clear meaning of subsection 23(2) of the Charter. Indeed, the Court pointed out that the use of the limiting phrase “major part” was not so much one possible interpretation of subsection 23(2) as it was a redefinition of the very categories of persons to whom rights were accorded thereunder. In light of this, the attempted recourse to section 1 of the Canadian Charter to justify the restriction as a reasonable limit demonstrably justified in a free and democratic society was rejected. In effect, only a constitutional amendment could redefine the beneficiaries of minority language education rights under section 23.
4. Minority Language School Boards: Language of Operations
The administrative obligations of minority language school boards may very well include matters not directly related to their internal operations or the delivery of educational programs. For example, a minority language school board may have management responsibilities that require it to enter into collective bargaining with unions whose membership extends far beyond the immediate employees of the board. While the internal administrative language of a minority board will naturally be the minority language of the schools and educational programs over which it has authority, bargaining agents for its teaching staff (or other employees) may be affiliated with province-wide unions that operate in the majority language. What language then should be used in the process of collective bargaining? Indeed, in what language should the ultimate collective agreement be written?
The Nova Scotia Teachers Union (NSTU) v. Le Conseil scolaire acadien provincial (CSAP)
These issues have been raised in an arbitration process in Nova Scotia involving the Conseil scolaire acadien provincial.52 As previously mentioned, the Conseil scolaire acadien was created in 1996 and given province-wide jurisdiction over the delivery and management of French language educational programs and schools. The Education Act of the province provides that the general working language of the Conseil scolaire acadien (and all schools under its jurisdiction) is French. However, the Act also provides that “where the circumstances warrant the use of English” the Conseil shall use it in the given context.53 In the course of its first collective bargaining exercise, the Conseil scholaire acadien requested that the bargaining agent, the Nova Scotia Teachers Union (NSTU), use French throughout the process, as well as in the preparation and finalization of the collective agreement. The NSTU objected to this demand, and the issue was eventually brought forward to an arbitration board for its decision.
In reviewing the legal requirements that might have a bearing on the issues that separated the NSTU and the Conseil scolaire acadien, the arbitration board observed that either party is free to nominate whomever it wishes to represent it on the board. As a result, nominees may in fact be unilingual in either English or French, or bilingual. The same is true with respect to the negotiators who will represent the parties at the negotiating table. Since the law governing these matters is silent with respect to the use of language, in both the negotiating process and in hearings before the board, the potential for practical difficulties will always be present. While the realities of the Conseil scolaire acadien justified the use of French in the bargaining process and in the collective agreement itself, the board found that there was nothing in law that required the use of French exclusively. By the same token, there was nothing in the law that required the exclusive use of English.
