Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 1999 CanLII 640 (SCC), [1999] 3 SCR 845

Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [1999] 3 S.C.R. 845

Public School Boards’ Association of Alberta, Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish Appellants

and

Board of Trustees of Calgary Board of Education No. 19 and Margaret Ward Lounds Appellants

v.

Her Majesty the Queen in right of Alberta, the Attorney General for Alberta and the Minister of Education Respondents

and

Alberta Catholic School Trustees’ Association, Board of Trustees of Lethbridge Roman Catholic Separate School District No. 9 and Dwayne Berlando Respondents

Indexed as: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General)

File No.: 26701.

1999: November 18.

Present: Binnie J.

motion to strike

Practice – Supreme Court of Canada – Motion to strike – Fresh evidence – Legislative and adjudicative facts – Motion to strike portions of appellants’ factum, record book and book of authorities partially successful – Extracts of appellants’ factum in Court of Appeal included in book of authorities forming part of proceedings to which reference can be made – Material constituting fresh evidence inappropriately included in book of authorities – No application to introduce fresh evidence filed – New material to be struck out from book of authorities – Affidavit included in leave application not forming part of record in court below and to be struck out from record book – References to new material and affidavit in appellants’ factum to be struck out – Appellants’ contention that challenged material, except Court of Appeal factum extract, constituting “legislative” rather than “adjudicative” facts rejected.

Cases Cited

Considered: Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086; referred to: Canada (Canadian Human Rights Commission) v. Taylor, 1987 CanLII 5390 (FCA), [1987] 3 F.C. 593.

Statutes and Regulations Cited

Alberta Act, S.C. 1905, c. 3, s. 17.

Constitution Act, 1867.

MOTION to strike portions of appellants’ factum, record book and book of authorities. Motion allowed in part.

Written submissions by Robert Maybank and Margaret Unsworth, for the respondents/applicants Her Majesty the Queen in right of Alberta, the Attorney General for Alberta and the Minister of Education.

Written submissions by Dale Gibson and Rangi J. Jeerakathil, for the appellants Public School Boards’ Association of Alberta, Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish, respondents on the motion.

The following is the order delivered by

1Binnie J. – The appeal in this case will require this Court to examine the appellants’ contention that the Constitution Act, 1867 guarantees “reasonable autonomy” to municipal institutions from provincial legislative action, and a claim that the “mirror equality” of public and separate schools said to be guaranteed by the Alberta Act, S.C. 1905, c. 3, s. 17, was violated in the legislative restructuring of the education system in Alberta in 1994.

2The respondents, represented by the Attorney General for Alberta, apply for an order striking out portions of the factum and book of authorities of the appellants, the Public School Boards’ Association of Alberta, the Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish. In large part, the appellants justify inclusion of the challenged material on the basis that it addresses “legislative fact” as distinguished from “adjudicative fact”, and therefore need not be proven in the ordinary way, but is subject to judicial notice. The relevant distinction is explained by Sopinka J. in Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086, at p. 1099:

These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, “Proof of Facts in Charter Litigation”, in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis’ words, “who did what, where, when, how, and with what motive or intent . . . .” Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, 1976 CanLII 16 (SCC), [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, 1984 CanLII 17 (SCC), [1984] 1 S.C.R. 297, per McIntyre J., at p. 318.

3Counsel for the appellants simply included most of the challenged material in their book of authorities, thereby bringing to mind the protest of Mahoney J.A. in Canada (Canadian Human Rights Commission) v. Taylor, 1987 CanLII 5390 (FCA), [1987] 3 F.C. 593 (C.A.), at p. 608, against “bootlegging evidence in the guise of authorities”.

4I will deal in turn with each category of material objected to.

5Firstly, the Attorney General for Alberta seeks to strike out extracts from the appellants’ Alberta Court of Appeal factum summarizing the historical evidence adduced at trial included at Tab 71 of the appellants’ book of authorities, and a portion of para. 27 of the appellants’ factum referring to such material. This aspect of the application is dismissed. The appellants’ factum in the court below is part of the record of the hearing of the appeal in that court and is therefore part of the proceedings to which reference can be made in the course of an appeal in this Court.

6Secondly, the Attorney General for Alberta seeks to strike out the affidavit of John Sewell sworn May 26, 1998, which was included in the appellants’ leave application, but is not part of the record in the court below. No application was made to have the affidavit entered as fresh evidence. The Sewell affidavit purports to review some “[t]hreats to the relative autonomy of local decision-making . . . particularly the forced restructuring of local institutions by provincial governments, and the downloading of costs by provincial governments onto local institutions”. Mr. Sewell discusses what he regards as examples of these practices in New Brunswick, Nova Scotia, Quebec, Ontario and Alberta. Mr. Sewell refers to conversations with unnamed officials and planners and “various Nova Scotians” and mentions undisclosed press clippings and the fears of “many [unidentified] municipal decision-makers” to support his thesis. In para. 13 of its factum, the appellants say the affidavit demonstrates that the “‘reasonable autonomy’ of municipal institutions is now threatened”. While this affidavit, despite its vagueness, was arguably relevant to the leave application where the issue was the importance of the issues raised by the proposed appeal, it is of no help on the appeal itself. Opinions based on conversations and undisclosed newspaper reports are not matters of which judicial notice can be taken. The Sewell affidavit is not properly part of the appeal case. Both the affidavit and references to the affidavit in para. 13 of the appellants’ factum should be struck out. With respect to para. 2 of the appellants’ factum, judicial notice may, of course, be taken of the various pieces of legislation referred to in the Sewell affidavit without resort to the affidavit itself.

7Thirdly, the Attorney General for Alberta seeks to strike out a letter dated August 10, 1999 with accompanying media release from the Calgary Roman Catholic Separate School District No. 1 and related statistics contained at Tabs 68 and 69 of the appellants’ book of authorities. This material constitutes fresh evidence and is not appropriately included in a book of authorities. If the appellants wish to adduce up-to-date statistical evidence on the appeal, then an appropriate “fresh evidence” application will have to be made. In default of a successful application, the material at Tabs 68 and 69 should be removed from the book of authorities, and the reference complained of in para. 105 of the appellants’ factum should be struck out.

8Fourthly, the Attorney General for Alberta objects to newspaper clippings contained at Tabs 64 and 65 of the book of authorities. The article at Tab 64 headed “Ballot box the remedy for school board ailments” by Barry Cooper and David Bercuson, published in the Calgary Herald on August 25, 1999, is an account of the dismissal of the Calgary Public School Board. The authors argue that the dismissal is a “blow against democracy” and sets “a dangerous precedent for Alberta and for the rest of the country”. The story and commentary do not constitute “legislative fact”. Tab 65, an article by Catherine Ford, dated August 25, 1999, in the Edmonton Journal, headed “People, not gov’t, should have dealt with school board” is to the same effect. In the absence of a fresh evidence application, the material at Tabs 64 and 65 should be removed from the book of authorities and reference thereto in para. 50 of the appellants’ factum should be struck out.