A.G. (Que.) v. Greater Hull School Board, [1984] 2 S.C.R. 575

Attorney General of Quebec Appellant;

and

Greater Hull School Board, Lakeshore School Board, Lennoxville District School Board, the Greater Quebec School Board, the Protestant School Board of Greater Montreal, the School Trustees for the Municipality of Laurentienne, Quebec Association of Protestant School Boards Respondents;

and

Attorney General of Canada Mis en cause;

and

Attorney General of Newfoundland Intervener.

and between

Attorney General of Quebec Appellant;

and

Hubert Lavigne, Paul-émile Touchette, Maurice Archambault and Gilburt Healy Respondents;

and

Attorney General of Canada Mis en cause;

and

Attorney General of Newfoundland Intervener.

and between

Attorney General of Quebec Appellant;

and

Commission scolaire des Manoirs, Commission scolaire de Drummondville, Commission scolaire Jean Chapais, Commission scolaire Outaouais-Hull, les Syndics d'écoles pour la municipalité de Leeds-Sud and the Fédération des commissions scolaires catholiques du Québec Respondents;

and

Attorney General of Canada Mis en cause;

and

Attorney General of Newfoundland Intervener.

File No.: 18011.

1984: June 20, 21; 1984: December 20.

Present: Dickson C.J. and Ritchie* Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.

*Ritchie J. took no part in the judgment.

on appeal from the court of appeal for quebec

Constitutional law -- Education -- Constitutional guarantees -- Rights or privileges respecting denominational schools -- Act providing for a new system of school financing -- Whether provincial provisions intra vires -- Constitution Act, 1867, s. 93 -- Act respecting municipal taxation and providing amendments to certain legislation, 1979 (Que.), c. 72, ss. 339, 346, 353, 362, 366, 375, 382, 495, 498, 499, 500.

Respondents brought actions in the Superior Court to have ss. 339, 346, 353, 362, 366, 375, 382, 495, 498, 499 and 500 of the Act respecting municipal taxation and providing amendments to certain legislation (the Act) declared unconstitutional. The chief feature of these provisions is the creation of a new system of school financing based on government grants: taxation is now only a complementary method subject to new conditions. These provisions, which amend the Education Act, apply to all public schools in Quebec, whether denominational or not. They provide in essence: (1) that the Minister of Education must annually make budgetary rules determining the amount of expenses allowable for the grants to be paid to school boards; (2) that the school commissioners and trustees must levy taxes to provide for expenses not covered by government subsidies or grants; (3) that the assessment may not exceed 6 per cent of the net expense of the school board or 25 cents per hundred dollars of assessment; and (4) that in order to levy taxes in excess of these limits the school board must obtain the approval of the electors in a referendum. The Superior Court dismissed respondents' declaratory actions. By a majority judgment, the Court of Appeal reversed that judgment and held the sections in question ultra vires, null and void. This appeal is to determine whether the disputed legislative provisions prejudicially affect the rights and privileges protected by s. 93 of the Constitution Act, 1867.

Held: The appeal should be dismissed.

Per Dickson C.J. and Beetz, Estey, McIntyre, Chouinard and Wilson JJ.: The disputed provisions are ultra vires the Quebec legislature and must be set aside. Under section 93 of the Constitution, the provinces have exclusive jurisdiction to legislate with respect to education, but they cannot prejudicially affect a right or privilege affecting denominational schools enjoyed by a particular class of persons by law in effect at the time of the Union. In 1867, the right of Protestants and Roman Catholics to direct and control their own denominational schools was recognized by law. As regards financing, the law gave school commissioners and trustees the right to receive grants on a proportionate basis and the right to levy taxes from their respective electors within the limits of "their respective municipalities". These are rights relating to denominational schools and are protected by s. 93. By omitting to state that the grants must be distributed on a proportionate basis and by ordering, in a referendum, the power of certain school boards -- such as those of the Island of Montréal -- to decide on an expense requiring a tax to be subject to the will of electors not within their districts, the provincial legislature prejudicially affected rights guaranteed by s. 93 of the Constitution Act, 1867. The provisions form a whole, and if those which deal with how grants are made and which govern approval by the electors are set aside, the other provisions fall to the ground as well.

Per Lamer and Le Dain JJ.: At Confederation, the Roman Catholics and the Protestants enjoyed the right to have their denominational schools managed by school commissioners or trustees having the power to determine the necessary level of expenditure for the support of such schools and the concomitant power, in order to meet such expenditure, to impose taxes in supplement of other revenue without limitation of amount or the necessity of referral to the ratepayers. It is this right or power of local self government with respect to denominational schools which is protected by s. 93(1) of the Constitution Act, 1867. The school commissioners or trustees are not themselves a class of persons contemplated by s. 93(1) but they are the representatives of such a class for purposes of the management of denominational schools. By imposing the requirement of approval by referendum for taxation beyond the limits prescribed by the Act, the Quebec legislature prejudicially affected this right. Indeed, such a requirement renders the power to tax beyond the limit quite illusory and seriously undermines the power of school commissioners and trustees to provide for and manage denominational schools in the interest of a class of persons.

City of Winnipeg v. Barrett, [1892] A.C. 445; Brophy v. Attorney-General of Manitoba, [1895] A.C. 202; Ottawa Separate Schools Trustees v. Mackell, 1916 CanLII 418 (UK JCPC), [1917] A.C. 62; Ottawa Separate Schools Trustees v. Ottawa Corporation, 1916 CanLII 419 (UK JCPC), [1917] A.C. 76; Hirsch v. Protestant Board of School Commissioners of Montreal, 1928 CanLII 500 (UK JCPC), [1928] A.C. 200; 1926 CanLII 67 (SCC), [1926] S.C.R. 246; Roman Catholic Separate School Trustees for Tiny v. The King, 1928 CanLII 355 (UK JCPC), [1928] A.C. 363, referred to.

APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 370, reversing a judgment of the Superior Court, 1981 CanLII 2692 (QC CS), [1981] C.S. 337, 133 D.L.R. (3d) 666, declaring certain provisions of the Act respecting municipal taxation and providing amendments to certain legislation constitutional. Appeal dismissed.

Henri Brun, Georges Emery, Q.C., and Jean-K. Samson, for the appellant.

Colin K. Irving, Allan R. Hilton, Sandra J. Simpson and Nigel Campbell, for the respondents Greater Hull School Board et al.

Mario Du Mesnil and Roger Thibaudeau, Q.C., for the respondents Lavigne et al. and for the respondents Commission scolaire des Manoirs et al.

James L. Thistle and Deborah E. Fry, for the intervener.

English version of the judgment of Dickson C.J. and Beetz, Estey, McIntyre, Chouinard and Wilson JJ. delivered by

1. Chouinard J.--This appeal raises the following constitutional question:

Are sections 339, 346, 353, 362, 366, 375, 382, 495, 498, 499 and 500 of the Act respecting municipal taxation and providing amendments to certain legislation, L.Q. 1979, c. 72, ultra vires, inapplicable or inoperative in whole or in part in virtue of section 93 of the Constitution Act, 1867?

2. Section 93 is the section which gives the provincial legislatures exclusive jurisdiction over education. It also guarantees certain rights to classes of persons in respect of denominational schools and to both Protestant and Catholic dissentient schools. The subsections of that section which apply for the purposes of this appeal are:

3. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2) All the Powers, Privileges and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec:

Applicable Legislation

3. The disputed sections of the Act respecting municipal taxation and providing amendments to certain legislation, which I will call the "1979 Act", are all sections relating to school financing.

4. Respondents Hubert Lavigne et al. and Commission scolaire des Manoirs et al. stated in their submission that the fundamental purpose of the 1979 Act:

[TRANSLATION] ...is to remove all school boards from the real estate tax field, in order to give towns and other municipalities unimpeded real estate taxation powers.

5. No one disputed the following passage from the judgment of the trial judge, 1981 CanLII 2692 (QC CS), [1981] C.S. 337, at p. 347:

[TRANSLATION] The chief feature of this legislation is the provision of school financing through a system of grants: taxation is now only a complementary method subject to new conditions.

6. Section 339 of the 1979 Act introduced into the Education Act, R.S.Q., c. I-14, s. 15.1, which deals with grants to be paid to school boards and imposes on the Minister of Education a duty to annually make, after consultation, budgetary rules determining the amount of expenses allowable for such grants:

15.1 The Minister shall, each year after consultation with the school boards and regional boards, make and submit to the approval of the Conseil du trésor budgetary rules to determine the amount of expenses allowable for grants to be paid to school boards, to regional boards and to the Conseil scolaire de l'Île de Montréal.

The Minister must, in the budgetary rules contemplated in the first paragraph, provide for the payment of equalization grants to school boards, regional boards or the Conseil scolaire de l'Île de Montréal. These equalization grants shall be paid according to the difference between the standardized assessment of taxable property per student of a school board, of a regional board or of the Conseil scolaire de l'Île de Montréal, as the case may be, and that per student of the aggregate of the school boards, of the regional boards or of the Conseil scolaire de l'Île de Montréal, as the case may be, taking into account the size of the revenue from real estate taxes collected within the limits fixed by section 354.1 or 558.1.

7. Section 346 replaced s. 226 of the Education Act, and I quote the first paragraph of the new provision:

8. The school commissioners and trustees must levy taxes for the payment of expenses not otherwise provided for by government subsidies or grants and other revenue. These taxes shall be imposed on all taxable property of the whole school municipality in accordance with Part IV.

9. This new section contrasts with the old one, in which the first paragraph provided that school commissioners and trustees had a duty to levy taxes to maintain schools under their control. It can thus be seen that the new financing arrangements, instead of being based primarily on taxation as the old, are based on grants, and taxation has become a complementary method. Henceforth, commissioners and trustees shall impose a tax only "for the payment of expenses not otherwise provided for by government subsidies or grants and other revenue".

10. Section 353 of the 1979 Act enacts ss. 354.1, 354.2 and 354.3 of the Education Act, requiring school boards to submit for approval by the electors in a referendum any assessment which they intend to impose when the total amount of expenses required by that assessment exceeds 6 per cent of the net expense of the school board, or when the taxation rate exceeds 25 cents per hundred dollars of assessment. The first paragraph of s. 354.1 provides:

354.1 Where the total amount of expenses for the payment of which an assessment must be levied under section 226 exceeds six per cent of the net expense of the school board or regional board, or the taxation rate for that assessment exceeds 25 cents per hundred dollars of the standardized assessment of the taxable property included in the real estate base of the school board or regional board, that assessment shall be submitted to the approval of the electors in accordance with sections 396 and following.

10. It should be mentioned that under s. 354.3, when an assessment is approved by the electors that approval applies for three taxation years.

11. Section 362 enacts ss. 396 to 399.5 of the Education Act, defining the procedures of a referendum.

12. Section 366 replaces the old ss. 441 to 444 of the Education Act by the new ss. 441 to 443, conferring on regional school boards a taxing power analogous to that of school boards and subject to the same conditions.

13. Sections 375 and 382 make amendments to Part IX of the Education Act, titled "Education in the Island of Montréal". They enact ss. 558.1 to 558.4 and 567 to 567.4, requiring the council in the Island of Montréal to submit for approval by the electors any surtax exceeding the limits indicated--the same as those provided for school boards in the remainder of the province area--and defining procedures for a referendum. It should be noted here that, for the Island of Montréal, a general budget is prepared by the council based on budgets from school boards and its own expenses, and this budget is not effective until approved by the Minister of Education. The council has alone the power to levy taxes (s. 566 which is not in issue). If it becomes necessary to impose a surtax which must be submitted to the electors for approval, all the electors on the Island of Montréal may vote. I will return to this point below.

14. Section 495 of the 1979 Act provides:

15. No school board or regional board may exercise a taxation power except within the limits provided by this act, notwithstanding any general law or special act or any charter conferring such power upon it.

16. Finally, sections 498, 499 and 500 are transitional provisions designed to allow the new sections on taxation to be implemented.

Conditions for Application of s. 93 Guarantees

16. There is no disagreement between the parties as to the conditions under which the s. 93 guarantees of the Constitution Act, 1867 will apply, as stated by the trial judge at p. 342 of his judgment:

[TRANSLATION] 2. In order to claim the protection of this section, the following conditions must of necessity be met:

(a) there must be a right or privilege affecting a denominational school;

(b) enjoyed by a particular class of persons;

(c) by law;

(d) in effect at the time of the Union;

(e) and which is prejudicially affected.

17. It is also well established that, in 1867, all the common schools in Montréal and Québec were denominational. Outside those two cities, dissentient schools were denominational but common schools were not.

18. The propositions I have just stated proceed from decisions of the Privy Council, in particular the following cases: City of Winnipeg v. Barrett, [1892] A.C. 445; Brophy v. Attorney-General of Manitoba, [1895] A.C. 202; Ottawa Separate Schools Trustees v. Mackell, 1916 CanLII 418 (UK JCPC), [1917] A.C. 62; Ottawa Separate Schools Trustees v. Ottawa Corporation, 1916 CanLII 419 (UK JCPC), [1917] A.C. 76; Hirsch v. Protestant Board of School Commissioners of Montreal, 1928 CanLII 500 (UK JCPC), [1928] A.C. 200; Roman Catholic Separate School Trustees for Tiny v. The King, 1928 CanLII 355 (UK JCPC), [1928] A.C. 363.

Judgments of the Superior Court and the Court of Appeal

19. The Superior Court judgment dismissed the declaratory actions of respondents.

20. By a majority judgment, the Court of Appeal, [1983] C.A. 370, reversed the trial judgment and held the sections in question ultra vires, null and void.

Appellant's First Argument

21. The Attorney General submitted, as his first argument, that the measures introduced by the 1979 Act are not at variance with s. 93, because they do not apply to the object of that section, which is denominational schools. He submitted:

[TRANSLATION] This measure does not affect the guarantee in s. 93(1) of the Constitution Act, 1867. Its real object is the way in which a taxing power is exercised, whereas the object of the 93(1) guarantee is denominational schooling. This is the first argument on which our appeal is based.

He went on to say:

[TRANSLATION] The provisions in question [...] do not affect the guarantee in s. 93(1) of the Constitution Act, for the simple reason that their object has no connection with the object of s. 93(1).

Further, he stated:

[TRANSLATION] The disputed provisions [...] actually apply to the way in which a taxing power is exercised. They provide that the province's school commissioners must obtain the approval of their electors before they can tax beyond a given financing level.

The provisions of s. 93(1) of the Constitution Act, 1867 are concerned with denominational schools. Their object is to protect certain denominational schools against anything threatening their denominational status.

22. Without discussing the argument submitted in support of this claim in detail, I consider that it cannot be allowed. Denominational status does not exist in a vacuum.

23. Section 93 guarantees the rights and privileges relating to denominational schools.

24. In Hirsch in this Court, 1926 CanLII 67 (SCC), [1926] S.C.R. 246, Anglin C.J., who was not overruled by the Privy Council on this point, wrote at p. 269:

From what has been said it is apparent that we would regard legislation designed to impair the right of Protestants, as a class of persons in the province of Quebec, to the exclusive control, financial and pedagogic, of their schools, as ultra vires of the provincial legislature.

25. In Tiny the Privy Council wrote at p. 375:

Unless the legislatures of Ontario and Quebec were debarred from prejudicially affecting the rights and privileges which the religious minorities possessed in regard to their denominational schools in regard to maintenance and support, the protection given by the section would be illusory.

26. In their analysis of Les problèmes constitutionnels posés par la restructuration scolaire de l'île de Montréal, Québec, Department of Education, 1972, at p. 22, the writers F. Chevrette, H. Marx and A. Tremblay, based on precedent and in the context of effective protection, wrote:

[TRANSLATION] It is clear that the spirit of s. 93 seeks to guarantee the denominational status of education as that status existed in 1867, that is, in relation to education provided in dissentient schools in the province and in the schools of Montréal and Québec. In this regard, the ultimate aim of the section is a religious one, and that aim was undoubtedly given constitutional form. The question remains whether only that aim was so treated, or whether certain concrete means of achieving it were as well, namely a number of powers and administrative devices to ensure that the denominational status of education would be respected and maintained in practice. There is also no doubt of the answer to this question: constitutional form was also given to a number of means of achieving the result, and the wording of s. 93 itself seems clear in this regard, since it speaks of any "Right or Privilege with respect to Denominational Schools" rather than referring merely to "denominational schools".

It should be noted that in themselves, and viewed in isolation, these means are not necessarily religious in nature, for they may include financial powers, the power to hire teachers and so on; however, such means should still be related to the denominational status of education and connected directly with maintaining it.

27. Denominational status applies in its context, and though some legislation which does not prejudicially affect a right or privilege conferred by law at the time of the Union is conceivable, other legislation will have such an effect.

28. The legislature is not divested of the power to legislate in respect of the schools referred to in s. 93. In Barrett, the Privy Council wrote at p. 459:

With the policy of the Act of 1890 their Lordships are not concerned. But they cannot help observing that, if the views of the respondents were to prevail, it would be extremely difficult for the provincial legislature, which has been entrusted with the exclusive power of making laws relating to education to provide for the educational wants of the more sparsely inhabited districts of a country almost as large as Great Britain, and that the powers of the legislature, which on the face of the Act appear so large, would be limited to the useful but somewhat humble office of making regulations for the sanitary conditions of school-houses, imposing rates for the support of denominational schools, enforcing the compulsory attendance of scholars, and matters of that sort.

29. Similarly, in Hirsch it wrote at p. 215:

While s. 93 of the Act of 1867 protects every right or privilege with respect to denominational schools which any class of persons may have had by law at the Union, it does not purport to stereotype the educational system of the Province as then existing. On the contrary, it expressly authorizes the Provincial Legislature to make laws in regard to education subject only to the provisions of the section; and it is difficult to see how the Legislature can effectively exercise the power so entrusted to it unless it is to have a large measure of freedom to meet new circumstances and needs as they arise.

30. However, a statute adopted for the purpose of suspending some commissioners and replacing them with others for an indefinite period, unless the first complied with a regulation regarding the language of instruction, has been held unconstitutional: see Ottawa Separate Schools Trustees v. Ottawa Corporation, supra.

31. Accordingly, the question is what rights the law conferred on school boards and trustees of corporations at the time of the Union, in particular over financing, grants and taxation. It will then be necessary to determine whether the disputed provisions prejudicially affect these rights.

The Law in 1867

32. The law in Quebec at the time of the Union was c. 15 of the Consolidated Statutes for Lower Canada, 1861, titled the Act respecting Provincial Aid for Superior Education,--and Normal and Common Schools (the "1861 Act"). Under this Act, two systems of education existed, one for the cities of Montréal and Québec and the other for the remainder of the province (ss. 27 et seq. and ss. 128 et seq. of the 1861 Act).

33. In Montréal and Québec common schools existed open to all children between the ages of five and sixteen. These schools were directed and controlled by two groups of commissioners, one Catholic and the other Protestant. All these schools were denominational.

34. The commissioners were not elected but appointed by the Municipal Council.

35. In Hirsch, supra, the Court observed at p. 212:

The Roman Catholics in Montreal or Quebec formed a class of persons who had the right and privilege of having their schools controlled and managed by Commissioners of that religious persuasion and their teachers examined by Examiners of the same persuasion; and like privileges belonged to the Protestants of each city with regard to the schools controlled by the Protestant Board of Commissioners.

36. Outside Montréal and Québec there were common schools in each municipality, which were also directed and controlled by school commissioners. These were elected. According to the Privy Council decision in Hirsch, supra, these schools were non-denominational.

37. In these municipalities the members of a minority religious group had the right to create one or more dissentient schools directed and controlled by trustees elected by them. These dissentient schools were denominational.

38. The right of Protestants and Catholics to direct and control their own denominational schools was therefore recognized by law at the time of the Union.

39. The financing came from three sources: government grants, taxes and school fees. It is not necessary to deal with the fees for the purposes of this appeal.

40. A common schools fund existed, and school commissioners and trustees were entitled to receive a proportionate share of this.

41. Section 24(1) provided:

42. It shall be the duty of the Superintendent of Education--

43. To receive from the Receiver General all sums of money appropriate for Common School purposes, and to distribute the same among the School Commissioners and Trustees of the respective Municipalities, according to law, and in proportion to the population of the same, as ascertained by the then last Census;

44. With regard to the trustees of dissentient schools, s. 55(2) provided:

45. Such Trustees shall have the same powers and be subject to the same duties as School Commissioners, but for the management of those Schools only which shall be under their control; and such dissentient inhabitants may, by the intervention of the Trustees, establish, in the manner provided with regard to other Schools, one or more Schools, which shall be subject to the same provisions, duties and supervision, and they shall be entitled to receive from the Superintendent or from the School Commissioners, a sum out of the general or local School Fund, proportionate to the dissentient population they represent;

46. Reference should also be made to s. 57(3), which for the same trustees and the same dissentient schools, established a proportionality on the basis not of population but of the number of children attending the schools:

47. The said Trustees shall be a Corporation for the purposes of their own dissentient Schools and School Districts, and shall be entitled to receive, from the Superintendent of Education, shares of the General School Fund, bearing the same proportion to the whole sums allotted from time to time to such Municipality as the number of children attending such Dissentient Schools bears to the entire number of children attending School in such Municipality at the same time, and a similar share of the building fund;

48. The commissioners and trustees had a duty to levy taxes in an amount equal to the grants received from the common schools fund. They further had the power to levy any additional sum. This is indicated in ss. 73 and 74:

49. It shall be the duty of the School Commissioners and of the Trustees of Dissentient Schools, in their respective Municipalities, to cause to be levied by assessment and rate, in each Municipality, a sum equal to that allowed out of the Common School Fund (for such Municipality,) and to report their proceedings in this respect to the Superintendent of Education; and to enable them to receive from the said Superintendent their share of the Common School Fund, they must furnish him with a declaration from their Secretary-Treasurer, that he has actually and bonâ fide received, or that he has placed in the hands of the School Commissioners or Trustees for the purposes of this Act, a sum equal to the said share accruing to such Commissioners or Trustees.

50. The School Commissioners or Trustees of Dissentient Schools may cause to be levied by assessment and rate, such additional sum beyond that which they are directed to levy by the next preceding section as they think it necessary to raise for the support of the Schools under their control; and this provision extends to the Cities of Quebec and Montreal.

51. Under section 131, school commissions in Montréal and Québec were also entitled to receive a share of the common schools fund; however, they did not impose a tax corresponding to the grants made to them. Instead, the treasurer of the city was required, from the funds held by him, to "pay to the respective Boards of School Commissioners of such City, and in proportion to the population of the religious persuasion represented by such Boards respectively, a sum equal in amount to that apportioned to such City out of the Common School Fund [...]".

52. However, as provided in s. 74 cited above, Montréal and Québec commissioners had the power to levy "such additional sum [. . .] as they think it necessary to raise for the support of the Schools under their control".

53. Those, then, were the rights of the school commissioners and trustees over financing, grants and taxation which respondents alleged were prejudicially affected by the 1979 Act.

Issue

48. Based on the submissions of the parties, and the judgments of the Court of Appeal and the Superior Court, I may summarize the objections made by respondents to this statute as follows:

49. they no longer have the right to determine the level of their expenses themselves: it is the Minister of Education who in his sole discretion, after merely consulting with school commissioners, sets the level of the expenses which can be covered by grants;

50. the Act does not provide for grants as of right;

51. the right to grants being made on a proportional basis has been abolished;

52. the power to tax beyond the given ceiling is limited, if not completely abolished for all practical purposes, because of the requirement that the approval of the electors be obtained by referendum.

53. The first objection contains two propositions which need to be treated separately. It is true that the level of expenses which will be covered by grants is set by the Minister of Education in his sole discretion, after merely consulting with school boards. It is the Minister who determines the total amount allocated, which he submits to the Conseil du trésor for approval, and expenditure of which will eventually be authorized by the legislature. The Court was not shown that the situation under the 1861 Act was different. That Act is silent as to how the common schools fund was to be made up, and one has to conclude that it was fixed by the government and voted on by the legislature.

54. On the other hand, what the Minister fixes in his budgetary rules is the amount of the expenses which will be eligible for grants, not the amount of the expenses of school boards and trustees. The latter are free to set their expenses at the level they consider necessary, but they will have to impose taxes for any amount exceeding the grants. I will of course return to the question of the taxing power. This first objection is without foundation.

55. The second objection is also invalid, in my opinion. The 1979 Act does not use the same language as the 1861 Act. The latter imposed on the Superintendent of Education a duty to distribute (s. 24(1)) and conferred on commissioners and trustees a right to receive their share (ss. 55(2); 57(3); 131; 133). However, when s. 15.1 of the Education Act says that the Minister shall make budgetary rules to determine the amount of expenses allowable for grants to be paid to school boards, to regional boards and to the Conseil de l'île de Montréal, this includes them all and means that grants must be paid to them.

56. Respondents' third objection must be upheld. As we have seen, the relevant sections of the 1861 Act all spoke of proportionality. In sections 24(1), 55(2) and 131 the proportion is based on population, while in s. 57(3) it is based on the number of children attending school. Given the existence of these provisions, it is difficult to determine which should prevail. F. Chevrette, H. Marx and A. Tremblay, in their study cited above, appear to adopt the latter position when, discussing dissentient schools, they cite s. 57(3). At page 44 of their study, they write:

[TRANSLATION] The 1861 Lower Canada statute gave the trustees of dissentient schools a right to a share in public funds proportional to the number of students attending those schools in relation to the total number of students in a given school municipality.

53. This position seems more plausible in light of, for example, s. 90 of the 1861 Act, which makes it a condition of receiving a grant that a school is attended by at least fifteen children. This establishes a connection between the grant and attendance.

54. In any case, I do not think that this point is conclusive. Proportionality is more significant. Whether on the basis of total population or that of school attendance, the principle of a fair and non-discriminatory distribution is recognized.

55. The Act respecting grants to school boards, R.S.Q., c. S-36, which provides for grants to be made for special purposes such as the costs of administration and maintenance and payment of teaching personnel, fixes such grants on a basis of so much per student.

56. I do not doubt that the legislator intended that the Minister's budgetary rules should be based on proportionality, and the grants are established on a proportional basis, as was indicated at the hearing. However, while the 1861 Act provided this expressly, it is not stated by s. 15.1 of the Education Act. In my opinion, it is a right conferred by law at the time of the Union, which is protected by s. 93 of the Constitution Act, 1867.

57. The fourth objection relates essentially to the referendum. While the 1861 Act authorized all school commissions, including those of Montréal and Québec, to levy any additional sum (s. 74), under the 1979 Act a school board may still levy any amount which it considers necessary, but beyond the ceiling indicated above the tax required must be submitted to the electors for approval in a referendum.

58. This duty to hold a referendum is challenged on three grounds.

(a) There was no such condition in 1867 limiting the taxing power of commissioners and trustees. The mere fact of imposing it has the effect of prejudicially affecting their power.

(b) The procedure is so cumbersome and costly, apart from the risk that the electors may well be unwilling to approve a surtax affecting them, that in practice it would be almost unrealistic to think of using it, and this accordingly constitutes an impediment to the taxing power.

(c) Any elector would be entitled to vote in such a referendum, whether or not his religious affiliation is that of the school board in question.

59. The principle of a referendum itself is not in my view such as to constitute an infringement of the taxing right, making the legislation unconstitutional. There is no limit on the taxing right. It is only that the legislator has thought it proper to confer a supervisory power on persons who, in fact, are members of the class of persons whose rights are protected. I adopt the following passage from the reasons of Vallerand J.A., dissenting in the Court of Appeal (at p. 385):

[TRANSLATION] It is true that beyond certain taxing limits the impugned legislation provides for recourse to a referendum, and that appellants argued that this is such a serious obstacle that for all practical purposes it constitutes an impediment. I cannot share their anxiety. In fact, I have the impression that the alleged constitutional guarantees are being claimed for representatives and mandataries against their electors and mandators, who are the sole beneficiaries of those guarantees.

60. In a very comprehensive study, De la notion de droit collectif et de son application en matière scolaire au Québec, September 1984, prepared for the Centre de recherche en droit public, Faculté de droit, Université de Montréal, its director, Professor Pierre Carignan, comments on the Court of Appeal's decision.

61. He asks himself the following question at p. 130:

[TRANSLATION] Did the Quebec National Assembly, by reducing the taxing power of school boards, prejudicially affect a right enjoyed by a particular class of persons by law at the time of the Union with respect to denominational schools?

At pages 131-32 he writes:

[TRANSLATION] There are various aspects of the question above stated. For the purposes of this study, its interest lies in the fact that, in answering it, the collective nature of the constitutionally entrenched rights has to be kept in mind. With this in mind Trotier J., of the Superior Court, gave a negative answer. So did Vallerand J.A. in the Court of Appeal, but his brothers Malouf and Kaufman JJ.A. opted for the affirmative. In his reasons, Malouf J.A. recognized that the rights at issue were collective in nature. He considered that commissioners and trustees represent classes of persons. Having said that, however, he appears to have reasoned as if they were the real beneficiaries of the constitutional protection. The reduction in the latter's taxing powers led him to conclude that the disputed provisions were unconstitutional. In the case of Kaufman J.A., it seems even clearer that he regarded the constitutional protection as pertaining to the boards themselves, even as capable of being maintained against the electors. In his view, the requirement of approval by the electors infringed on the constitutionally entrenched rights of the commissioners and trustees.

There is then this conclusive passage, at pp. 132-33:

[TRANSLATION] This position is, to say the least, surprising. The constitutional protection exists for the benefit of religious communities. More specifically, it benefits Roman Catholics and Protestants in the cities of Montréal and Québec and dissentients outside those cities. Accordingly, commissioners and trustees are only the representatives of the real beneficiaries. Moreover, if one refuses to lift the veil of legal entity and regards the school boards as the ultimate holders of the taxing right, since the latter do not constitute a class of persons they are not in a position to invoke the constitutional protection.

62. The judges in the majority on the Court of Appeal did not specifically rule on respondents' second ground of challenge to the referendum, namely the cumbersome and costly nature of the procedure and the small likelihood of its success. The trial judge, who heard the evidence presented by respondents in this regard and not rebutted, wrote the following at p. 350 of his judgment:

[TRANSLATION] The cost will undoubtedly be high, and it will be a source of inconvenience to school administrators, but the National Assembly probably considered that greater democratization of relations between governors and governed justified this.

Although the effect of the provisions in these sections is to reduce administrative autonomy, they do not in our opinion constitute the "prejudicial effect" referred to in s. 93. The fiscal field (grants and taxation) remains the same: the taxing right has not been abolished, but its exercise is entrenched in a procedure which the sovereign power has a right to impose.

63. The trial judge noted that the referendum would be a source of inconvenience, but he nevertheless concluded that such a constraint did not prejudicially affect the rights guaranteed to respondents. Not all interferences will make legislation constitutionally invalid.

64. In Ottawa Separate Schools Trustees v. Ottawa Corporation, supra, it states at p. 81:

It is possible that an interference with a legal right or privilege may not in all cases imply that such right or privilege has been prejudicially affected.

65. In Tiny, supra, there is the following passage at p. 389:

It is indeed true that power to regulate merely does not imply a power to abolish. But the controversy with which this Board has to deal on the present occasion is a long way from abolition. It may be that the new laws will hamper the freedom of the Roman Catholics in their denominational schools. They may conceivably be or have been subjected to injustice of a kind that they can submit to the Governor-General in Council, and through him to the Parliament of Canada. But they are still left with separate schools, which are none the less actual because the liberty of giving secondary and higher education in them may be abridged by regulation.

66. The school boards retain the power of taxing without limit, subject to the requirement that they submit the tax to a referendum in certain cases, but it was not shown that this was impractical and constituted a denial of the right.

67. The same cannot be said of the third ground of challenge to the referendum, namely that in some cases any elector would be entitled to vote, whether or not he was of the religious affiliation of the school board in question.

68. At page 349, the trial judge wrote:

[TRANSLATION] Furthermore, all electors would be entitled to vote in such a referendum. For the meaning of the word "elector", reference is made to s. 82 of the Education Act:

(1) to be at least 18 years of age and a Canadian citizen;

(2) to be domiciled in the school municipality or to be the owner of real estate or of a building and to be entered as such on the valuation roll; and

(3) not to be affected by any legal incapacity other than minority.

Thus, Bill 57 would give the right to vote to persons who are not property owners and do not pay taxes. Some electors might even be of a religious affiliation other than the school board which had ordered such a referendum to be held.

69. The trial judge disposed of this argument as follows, at p. 350:

[TRANSLATION] Moreover, the argument of plaintiffs regarding the persons allegedly entitled to vote in the referendum has to be qualified. They omitted to cite s. 83 of the Education Act, which is none other than the old s. 56(3) of the 1861 Act, and which contains a limitation on the electoral qualification made by s. 82 cited above:

83. In any municipality in which there are school trustees, no dissentient may vote at the election of school commissioners and only dissentients may vote at the election of school trustees.

The same will be true for the referendum, and the same limitation is provided for. The new s. 567 confirms this:

When a tax is submitted to the approval of the electors, the vote shall be taken in accordance with sections 567.1 to 567.4 and sections 83 to 88, 90 to 143, 537 and 538 apply, mutatis mutandis, when the vote is held.

70. Before examining this reasoning by the trial judge, one point should be made. The judge referred only to s. 567, which applies to the Island of Montréal. It should be noted that the situation is no different in the remainder of the Province. Section 396 of the Education Act, enacted by s. 362 of the 1979 Act, is to the same effect as s. 567, and provides inter alia that when a tax is submitted to the approval of the electors s. 83 regarding dissentients applies.

71. The reason given by the trial judge is a valid one in the case of dissentients, who will be the only ones entitled to vote in a referendum affecting their schools; but it does not solve the problem as regards Catholic and Protestant school boards.

72. To take an example, an Island of Montréal school board might decide on an expenditure making it necessary to impose a tax exceeding the ceiling. The Island of Montréal has a single budget, including the budgets of all school boards (s. 519 of the Education Act). In the case of a referendum, the electoral list is prepared for the whole Island of Montréal (s. 567.1). Section 567.3 provides:

567.3 The following shall be printed on the ballot papers:

Do you approve the levy of a tax at the rate of (x) cents per hundred dollars of the standardized assessment of the taxable property of the island of Montreal?

NOTE: That rate corresponds to (y) per cent of the net expenses of the Conseil scolaire de l'île de Montréal for the school year (insert here the taxation year).

73. This means that the increase in tax occasioned by a particular school board is subject to approval by all the electors in the Island of Montréal. It follows that the school board in question may have its decision rejected or approved by the vote of electors who are not subject to its administration. This in my opinion is a prejudicial invasion of the powers guaranteed by s. 93 of the Constitution Act, 1867. Under the 1861 Act, school commissioners and trustees had the power to levy taxes "in their respective municipalities". Catholic and Protestant commissioners in Montréal and Québec and the trustees of dissentient schools had the power to levy such taxes on their Catholic or Protestant populations, as the case might be. It is a prejudicial invasion of the rights and privileges of classes of persons encompassed by s. 93 to subject the exercise of the power of a school board to decide on an expense requiring a tax, to the approval of all electors in the Island of Montréal, whatever school board they belong to and whatever their religious affiliation.

74. For this reason, the provisions regarding the referendum must be held ultra vires and void.

Appellant's Alternative Argument

75. The Attorney General submitted the following alternative argument:

[TRANSLATION] If the impugned provisions [. . .] were unconstitutional, this could only be the case with respect to Catholics and Protestants exercising the right of dissent, and those in the territories of Québec and Montréal in 1867, with respect to elementary schools.

76. As a result, he argued, if some or all of the provisions of the 1979 Act were to be held contrary to s. 93, the unconstitutionality should take the form of making those provisions inapplicable or inoperative, not invalid.

77. In my opinion, it is not necessary for the purposes of this appeal to determine whether the provisions of s. 93 apply, in respect of Québec and Montréal, only at the level of elementary education and in the territories of those two cities, as they existed in 1867. If this were in fact true, how could the confusion ever be sorted out? On this point I agree with counsel for respondents Greater Hull School Board et al., who wrote in their submission:

In these circumstances, if the legislation offends against the provisions of Section 93, but only in respect of certain levels of schools or geographic areas, it would be for the National Assembly to decide whether, given the scope and intent of the legislation, it should be re-enacted in some more limited form.

Conclusion

78. Because the disputed provisions omit to state that the grants must be distributed on a proportionate basis, and because in a referendum the will of a school board may be subject to the will of electors not within their districts, I conclude that these provisions must be found to be ultra vires and void. The provisions form a whole, and if those which deal with how grants are made and which govern approval by the electors are set aside, the other provisions fall as well.

79. To the constitutional question I would answer: ss. 339, 346, 353, 362, 366, 375, 382, 495, 498, 499 and 500 of the Act respecting municipal taxation and providing amendments to certain legislation, 1979 (Que.), c. 72, are ultra vires and void in whole.

80. I would dismiss the appeal with costs.

The reasons of Lamer and Le Dain JJ. were delivered by

81. Le Dain J.--I agree with the reasons for judgment of Mr. Justice Chouinard except for his conclusion concerning the validity of the requirement of referendum, apart from the question of who is eligible to vote. In my opinion, the requirement of approval by referendum for taxation in excess of 6 per cent of net expenditure or 25 cents per one hundred dollars of valuation prescribed in ss. 353 and 375 of the Act respecting municipal taxation and providing amendments to certain legislation, 1979 (Que.), c. 72 (the "Act of 1979"), prejudicially affects, within the meaning of s. 93(1) of the Constitution Act, 1867, the right which the classes of persons in question had by law at Confederation to provide by taxation for the support of denominational schools.

82. Under the provisions of An Act respecting Provincial Aid for Superior Education,--and Normal and Common Schools, C.S.L.C. 1861, c. 15 (the "Act of 1861"), and in particular ss. 73 and 74 thereof, the classes of persons in question enjoyed the right to have their denominational schools managed by school commissioners or trustees having the power to determine the necessary level of expenditure for the support of such schools and the concomitant power, in order to meet such expenditure, to impose taxes in supplement of other revenue without limitation of amount or the necessity of referral to the ratepayers. It is this right or power of local self government with respect to denominational schools which, in my opinion, is protected by s. 93(1) of the Constitution Act, 1867, and is prejudicially affected by the requirement of approval by referendum.

83. I would agree that school commissioners or trustees are not themselves a class of persons contemplated by s. 93(1) of the Constitution Act, 1867, but they are the representatives of such a class for purposes of the management of denominational schools, and the rights of the class in respect of such management at Confederation are necessarily to be determined by reference to the powers of management conferred by law on school commissioners and trustees, through whom the class exercises its rights. It is for this reason that it is customary to refer, as in the reasons for judgment of the majority in the Quebec Court of Appeal, to the rights or powers of the school commissioners or trustees themselves in considering the rights of a class of persons under s. 93(1). See Ottawa Separate Schools Trustees v. Ottawa Corporation, 1916 CanLII 419 (UK JCPC), [1917] A.C. 76, at pp. 80-81.

84. I would also agree that the rights contemplated by s. 93(1) of the Constitution Act, 1867, may be characterized as "collective rights", as suggested by Professor Carignan in his study, De la notion de droit collectif et de son application en matière scolaire au Québec, which is referred to by Mr. Justice Chouinard, although such characterization does not necessarily by itself yield obvious answers to the issues that arise under this provision of the Constitution. What the characterization does suggest, however, is that it is the interests of the class of persons or community as a whole in denominational education that is to be looked at and not the interests of the individual ratepayer. While the requirement of approval by referendum for taxation beyond severely limited amount may be said to enlarge the democratic rights of the individual member of the class and to be a measure for the protection of his or her pocketbook, it is a measure or requirement which, because of its cost and uncertainty of outcome as indicated in the evidence, is prejudicial to the effective management of denominational schools in the interests of the class as a whole. In some cases the cost of holding a referendum could largely offset the additional revenue to be derived from the proposed taxes. The requirement of a referendum seriously undermines the responsibility of school commissioners or trustees for determination of the necessary level of expenditure for the schools under their jurisdiction by putting beyond their effective control the necessary power of taxation to meet such expenditure. Indeed, I agree with the conclusion that the requirement of approval by referendum renders the power to tax beyond the limit prescribed quite illusory. What is in issue here is not the theoretical scope of the democratic rights of a class of persons, viewed in the abstract, but the effective power of school commissioners and trustees to provide for and manage denominational schools in the interests of the class.

85. The learned trial judge was of the view that by the application of s. 93(2) of the Constitution Act, 1867, and the legislation in Upper Canada respecting separate schools at Confederation, the apparently unlimited and unqualified power of taxation conferred by s. 74 of the Act of 1861 in Quebec was in fact qualified by a right of direct participation or consultation possessed by ratepayers which could be analogized to the requirement of approval by referendum laid down by the Act of 1979. With great respect, I am unable to agree with this conclusion. My own conclusion on this question may be briefly indicated. Section 93(2) of the Constitution Act, 1867, extends to the "Dissentient Schools" in Quebec, whether Roman Catholic or Protestant, all the "Powers, Privileges and Duties" which were conferred or imposed by law at Confederation on Roman Catholic "Separate Schools and School Trustees" (a further indication in the Constitution that the rights of the class are to be determined by reference to the rights or powers of school trustees). Section 7 of An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, 1863 (Can.), 26 Vict., c. 5 (the "Act of 1863"), conferred on the trustees of separate schools an unqualified power to provide for such schools by school rates or subscriptions and provided further that they should have, in respect of separate schools, all the "powers" possessed by the trustees of common schools under the Act relating to common schools. Section 27(10) of An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64 (the "Act of 1859"), imposed a "duty" on the trustees of common schools to provide for the salaries of teachers and all other expenses of the schools "in such manner as may be desired by a majority of the freeholders and householders...at the annual school meeting, or at a special meeting called for that purpose". It was apparently the words quoted that led the learned trial judge in the present case to conclude that the power to tax conferred by s. 74 of the Act of 1861 in Quebec was in fact qualified by the right of the members of the class to vote upon proposed taxation at an annual or special meeting. Section 27(10) of the Act of 1859 respecting common schools in Upper Canada went on, however, to confer on the trustees of common schools (and by operation of s. 7 of the Act of 1863 respecting separate schools, on the trustees of the latter) an unqualified power to "assess and cause to be collected an additional rate, in order to pay the balance of the Teacher's salary and other expenses of such school". It is this power, and not the "duty" referred to earlier, that in my opinion was made applicable to the trustees of separate schools by the reference in s. 7 of the Act of 1863 to the "powers" of the trustees of common schools. In any event, the words "in such manner as may be desired by a majority of the freeholders and householders" do not qualify the power to supplement revenue by taxation, but would appear rather to refer to determination of the forms or modes of raising revenue (subscription, fees or taxes) to be adopted for the support of the schools. Cf. Brophy v. Attorney-General of Manitoba, [1895] A.C. 202, at p. 224. It is the power in s. 27(10) of the Act of 1859 respecting common schools to levy an "additional rate" which corresponds to the power conferred by s. 74 of the Act of 1861 in Quebec to raise an "additional sum" by taxation. It follows, in my opinion, that s. 93(2) of the Constitution Act, 1867, did not have the effect of qualifying the power to tax conferred by the Act of 1861 by imposing a duty upon school commissioners and trustees to obtain the prior approval of the ratepayers for proposed taxation.

86. For these reasons and for the reasons of Mr. Justice Chouinard, with the exception expressed herein, I would dispose of the appeal as proposed by him.

Appeal dismissed with costs.

Solicitors for the appellant: Henri Brun, Georges Emery and Jean-K. Samson, Ste-Foy.

Solicitors for the respondents Greater Hull School Board et al.: Clarkson, Tétrault, Montréal.

Solicitors for the respondents Lavigne et al. and the respondents Commission scolaire des Manoirs et al.: Mario Du Mesnil, Montréal; Roger Thibaudeau, Québec.

Solicitor for the intervener: Ronald G. Penney, St. John's.