Mark Clifford Power

Five non-rights holder parents applied to the Minister to exercise discretion to admit their children to a French first language education program in the Northwest Territories, with the support of the francophone school board.

The Minister denied each application, finding the parents did not meet the categories established in the ministerial directive.

The SCC held that the Minister was required not only to consider s. 23 of the Charter but to conduct a proportionate balancing of the values underlying that provision — including preservation and development of the minority language community — against the government's interests.

Applying the Doré framework, the Court found the decisions unreasonable because the Minister gave disproportionate weight to consistency and cost, and insufficient weight to pedagogical requirements and the remedial purpose of s. 23.

The appeal was allowed and the Court of Appeal orders set aside.

The appellant mother was awarded primary residence of the children at trial and permitted to relocate approximately ten hours from the respondent father's residence.

The father successfully appealed to the British Columbia Court of Appeal, which admitted post-trial financial evidence under a test distinct from Palmer and used it to overturn the relocation order.

The Supreme Court of Canada allowed the appeal, holding that the Palmer test governs all additional evidence tendered on appeal for the purpose of reviewing the decision below, whether the evidence relates to events before or after trial.

The new evidence failed the Palmer due diligence criterion because it could have been available at trial with reasonable diligence, and its admission was not in the interests of justice given the availability of legislative variation procedures.

The trial judge's relocation analysis under Gordon v. Goertz was free from reviewable error, and the Court of Appeal wrongly intervened in the absence of a palpable and overriding error.

The appellants, the sole French-language school board in British Columbia and associated parents' federation and individual rights holders, brought a constitutional challenge alleging systemic underfunding of minority language education and inadequate facilities in numerous communities, contrary to s. 23 of the Canadian Charter of Rights and Freedoms.

The majority clarified the sliding-scale framework for situating the number of minority language students so as to determine the level of educational services warranted, introducing a province-wide comparative presumption of pedagogical and cost appropriateness when majority language schools of comparable size exist elsewhere in the province.

The majority further held that substantive equivalence — not proportionality — is the applicable standard for assessing the quality of the educational experience throughout the sliding scale, and that infringements of s. 23 are subject to a particularly stringent justification standard under s. 1, such that the fair and rational allocation of public funds does not constitute a pressing and substantial objective.

The Court held that Mackin immunity from Charter damages does not extend to government policies infringing s. 23, and restored the trial judge's award of $6 million for the transportation funding freeze and ordered $1.1 million in additional damages for the Annual Facilities Grant Rural Factor breach.

Brown and Rowe JJ. dissented in part, rejecting the province-wide presumption as inconsistent with settled jurisprudence and as compressing the middle of the sliding scale, though agreeing on substantive equivalence, the invalidity of a purely financial s. 1 objective, and the appropriateness of Charter damages in the s. 23 context.

Two traffic-offence appellants argued Alberta had a constitutional obligation to enact, print, and publish legislation in both French and English based on the 1867 Address and 1870 constitutional instruments.

A majority held no entrenched constitutional guarantee of legislative bilingualism applied to Alberta through those texts, rejected related fiduciary-duty arguments, and dismissed both appeals.

The Court answered the constitutional questions in Alberta's favour while awarding the appellants party-and-party costs in this Court and below.

The appeal addressed the test for substantive equivalence under s. 23 of the Canadian Charter of Rights and Freedoms in minority language education.

The court held equivalence must be assessed holistically from the perspective of rights holders, including facilities, programming, and travel burdens, rather than formal cost parity.

The court restored a declaration that the minority-language educational experience was not equivalent to nearby majority-language alternatives, while leaving responsibility and remedy issues to later phases.

The court also upheld phased proceedings and restored special costs for the successful public interest litigants.

The appellants sought to file French-language exhibits attached to affidavits in constitutional litigation concerning minority-language education rights.

The majority held that British Columbia law required civil court proceedings, including exhibits relied on for their content, to be in English unless impracticable, and that this framework displaced residual inherent jurisdiction to admit untranslated French documents.

The Court further held that the 1731 English statute was received into provincial law and had not been displaced for this issue.

The dissent would have recognized continued inherent jurisdiction absent clear legislative ouster and remitted the matter for discretionary determination.

The appeal was dismissed, with costs awarded to the appellants.

The Court of Appeal previously dismissed the appellant's appeal regarding child custody and the language of instruction, and requested written submissions on costs.

The appellant argued he was successful on the critical issue of the importance of the children's language of instruction, despite the appeal being dismissed due to the children having remained in French immersion for three additional years.

The respondent argued she was entirely successful and sought $25,000 in partial indemnity costs.

The court applied the usual rule that the successful party is entitled to costs, but reduced the respondent's award to $20,000 on a partial indemnity basis to reflect the appellant's partial success in demonstrating an error by the trial judge.

The appellant father appealed a trial decision granting sole custody of the parties' three children to the respondent mother.

The father argued the trial judge erred by failing to consider ordering the children to attend a homogeneous French-language school as a condition of custody.

The Court of Appeal found that the trial judge did err in failing to consider such a condition, as the language of education is an important factor in the children's best interests.

However, the Court declined to order a change of schools on appeal, concluding that given the passage of time, it would no longer be in the children's best interests to disrupt their current education in a French immersion program.

The appeal was dismissed.

In an administrative law appeal, the appellant municipality challenged a referral decision by a provincial human rights commission to appoint a board of inquiry regarding alleged discriminatory school-funding arrangements affecting a minority-language school community.

The Court held that referral decisions at this preliminary screening stage are reviewable on reasonableness, with strong judicial restraint against premature intervention in ongoing administrative processes.

The Court clarified that older jurisdictional framing tied to preliminary questions should no longer govern this context.

Applying the proper standard, the commission had a reasonable basis in law and on the evidence to refer the novel and complex complaints for inquiry.

The respondent in a family law appeal brought a motion for security for costs and an adjournment.

The appellant, who had been denied joint custody at trial, appealed primarily on the basis that the trial judge failed to properly consider his section 23 Charter rights regarding French language education for the children.

The appellant had declared bankruptcy shortly after the trial, avoiding a significant costs award.

The Court of Appeal found that while the appeal was not frivolous, it had a very low prospect of success.

Given the appellant's conduct, bankruptcy, and the low prospect of success, the court ordered the appellant to post $15,000 in security for costs and granted a short adjournment of the appeal.

The applicant sought judicial review of an interlocutory decision by the Law Society Hearing Panel dismissing her motion for a permanent stay of disciplinary proceedings.

She alleged procedural fairness violations because the panel considered public documents not entered in evidence, and raised language rights issues regarding the delayed translation of the reasons.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative process.

The court held that both the procedural fairness and language rights issues should be raised before the Law Society Appeal Panel after a final decision.

The applicant sought judicial review of an interlocutory decision by the Law Society Hearing Panel refusing to permanently stay disciplinary proceedings against her.

She alleged breaches of procedural fairness and language rights, noting the Panel released its reasons in English and provided a French translation six weeks later despite the hearing being in French.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative process.

The Court held that the applicant could raise both the procedural fairness and language rights issues before the Law Society Appeal Panel at the conclusion of the proceedings.

The applicant sought costs for an original motion before Justice Maranger and for a judicial review application before the Divisional Court.

The Law Society opposed the request, noting the applicant had mixed success as she did not obtain the permanent stay she sought.

The court agreed the applicant's success was mixed, as it merely maintained the interim stay pending an appeal before the Law Society Appeal Panel.

The court awarded the applicant $5,000 in costs for the motion before Justice Maranger, but declined to award costs for the judicial review.

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.

The respondent, an Ontario police constable, travelled to New York City after September 11, 2001, to assist with search and rescue efforts.

The appellant newspaper published articles alleging he misrepresented himself to authorities and interfered with rescue operations.

The respondent sued for defamation.

At trial, the appellants pleaded qualified privilege but not the English defence of responsible journalism.

The jury found for the respondent.

The Court of Appeal recognized a new responsible journalism defence but denied the appellants its protection because they had not pleaded it at trial.

The Supreme Court of Canada allowed the appeal and ordered a new trial, holding that the appellants should have the opportunity to avail themselves of the newly recognized defence of responsible communication on matters of public interest.

The appellants filed a complaint alleging that Industry Canada failed to provide community economic development services in French of equal quality to those provided in English in the Huronia region.

The Commissioner of Official Languages found a breach of the Official Languages Act.

By the time the appellants applied for a court remedy under s. 77 of the Act, Industry Canada had taken corrective measures.

The Federal Court of Appeal held that while there was an initial breach, no remedy other than costs was appropriate because the remaining deficiencies related to program content rather than linguistic access, which fell outside Part IV of the Act.

The Supreme Court of Canada dismissed the appeal, agreeing that the remaining issues were beyond the scope of Part IV, though it clarified that substantive equality may sometimes require services with distinct content depending on the nature of the program.

The appellants brought actions seeking a declaration that the RCMP, when acting as a provincial police force in New Brunswick under an agreement between the federal and provincial governments, is bound by the language obligations imposed on New Brunswick institutions by s. 20(2) of the Charter.

The Federal Court of Appeal held that the RCMP was only bound by federal language obligations.

The Supreme Court of Canada allowed the appeal, holding that because RCMP members are designated as provincial peace officers and perform the role of an institution of the New Brunswick government, they must comply with s. 20(2) of the Charter and provide services in both official languages.

The appellant brought an application in French against the respondent municipality.

The municipality presented its pleadings in English.

The appellant objected, arguing that section 22 of the Official Languages Act required the municipality, as an 'institution', to adopt the official language chosen by the other party in civil proceedings.

The Supreme Court of Canada held that the definition of 'institution' in the Act does not include municipalities, and therefore the municipality was not obliged to use the appellant's chosen language.

The Court also held that the obligation under section 22 does not extend to translating evidence or case law.

The applicants sought to quash the Minister's decision to close the Land Registry Office in Welland, a designated area under the French Language Services Act, and relocate its services to St. Catharines.

They argued the decision violated the Act and the constitutional principle of respect for and protection of minorities.

The Divisional Court dismissed the application, finding that the Act requires the provision of services to a designated area but does not prohibit relocating the office outside the area, provided the services remain available.

The court also dismissed as premature a related application by a seniors' residence seeking to administer its own waiting list for subsidized housing to preserve its francophone character.