Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15

The Ontario English Catholic Teachers’ Association, Marshall Jarvis, Claire Ross and Annemarie Ross Appellants

v.

The Attorney General for Ontario Respondent

and between

The Ontario Public School Boards’ Association, the Toronto District School Board, the Ontario Secondary School Teachers’ Federation, the Elementary Teachers’ Federation of Ontario, Joleene Kemp, David Edwards and Robert Churchill Appellants

v.

The Attorney General for Ontario Respondent

and

The Attorney General of Quebec, the Attorney General of Manitoba, the Attorney General of British Columbia, the Attorney General for Alberta, the Ontario Catholic School Trustees’ Association, the Association franco-ontarienne des conseils scolaires catholiques, the Association des conseillers(ères) des écoles publiques de l’Ontario, the Alberta Catholic School Trustees’ Association, the Board of Lethbridge Roman Catholic Separate School District No. 9, Dwayne Berlando, the Boards of Education of the Regina School Division No. 4, Saskatchewan Rivers School Division No. 119, Swift Current School Division No. 94, Weyburn School Division No. 97, Yorkton School Division No. 93, Moose Jaw School Division No. 1, Saskatoon School Division No. 13, Estevan School Division No. 95, the Public School Boards’ Association of Alberta, the Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish Interveners

Indexed as: Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General)

Neutral citation: 2001 SCC 15.

File No.: 27363.

2000: November 8; 2001: March 8.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Education ‑‑ Funding -- School boards -- Right to financial management and control -- Right to tax – Provincial legislation creating new governance and funding model for all school boards in Ontario ‑‑ Legislation authorizing Minister of Finance to make regulations prescribing tax rates for school purposes -- Legislation also providing for supervision of school boards’ financial affairs by Minister of Education and Training and for take over of a board’s financial control under certain conditions -- Whether legislation prejudicially affecting any protected denominational rights guaranteed by s. 93 of Constitution Act, 1867 – Education Act, R.S.O. 1990, c. E.2, Divisions B, D and F – Education Quality Improvement Act, 1997, S.O. 1997, c. 31.

Constitutional law ‑‑ Conventions -- Education ‑‑ Funding -- Public school boards ‑‑ Property taxes -- Provincial legislation creating new governance and funding model for all school boards in Ontario -- Whether constitutional convention protects design of public school system -- Whether constitutional convention protects right to levy or determine property taxes – Education Act, R.S.O. 1990, c. E.2, Divisions B, D and F -- Education Quality Improvement Act, 1997, S.O. 1997, c. 31.

Constitutional law – Delegation -- Taxation – Education – Provincial legislation authorizing Minister of Finance to make regulations prescribing tax rates for school purposes – Whether guarantee of no taxation without representation infringed -- Whether delegation constitutional – Constitution Act, 1867, s. 53 – Education Act, R.S.O. 1990, c. E.2, s. 257.12(1)(b) – Education Quality Improvement Act, 1997, S.O. 1997, c. 31.

The 1997 Education Quality Improvement Act (“EQIA”) amended the Ontario Education Act and created a new governance and funding model for all school boards in the province, in part to address a disparity of revenues between boards by allocating funds on a per-pupil basis. The EQIA removed the ability of school boards to set property tax rates for education and centralized taxation power in the hands of the Minister of Finance. The new model limits the power of boards to control their budgets and expenditures but guarantees local control over denominational expenditures. The denominational tax base has not been altered because residential taxpayers continue to designate their education taxes for either the public or the separate school system. School boards derive revenue from property taxes collected by municipalities, provincial grants, development charges, and some other limited sources, but the power to make regulations prescribing tax rates for school purposes is vested in the Minister of Finance. The Lieutenant Governor in Council has a restricted power to make regulations governing grants. Grants may consist of foundation grants allocated to all boards at a per-pupil rate to cover the basic cost of an educational program, special purpose grants allocated for particular needs, and pupil accommodation grants for infrastructure. Grants are designated as classroom or non-classroom spending with some restrictions on how the types of grants may be used. Total annual funding of a board is subject to a ceiling. The Ministry of Education and Training may investigate the financial affairs of a board if the board has a fiscal year deficit, or fails to make certain payments, or if the Minister has concerns about the board’s ability to meet financial obligations. An investigator may recommend to the Minister that the Ministry take administrative control of a board. The Minister cannot interfere with the denominational aspects of a separate school board nor with the linguistic or cultural aspects of a French-language board. The Lieutenant Governor in Council may revoke the Ministry’s control over a board.

In Ontario, denominational education rights provided by law in 1867 are protected by s. 93(1) of the Constitution Act, 1867. Both groups of appellants argue that the new funding and governance model violates s. 93(1) because it interferes with claimed rights to local control over property taxation for education purposes and to local control over school finances and management. The second group of appellants further argues that the EQIA violates a constitutional convention that has developed regarding such matters, and that the delegation of control over the setting of education tax rates to the Minister of Finance violates ss. 53 and 54 of the Constitution Act, 1867. The first group of appellants succeeded at trial in establishing that separate school boards have a right to local taxation and that the right had been violated but this holding was reversed on appeal. All other claims failed both at trial and before the Court of Appeal.

Held: The appeal should be dismissed. The new school funding and governance scheme is constitutional.

Under s. 93 of the Constitution Act, 1867, the province has exclusive jurisdiction to legislate with respect to education, but it cannot prejudicially affect a right or privilege affecting denominational schools enjoyed by a particular class of person by law in effect at the time of Confederation. The animating principles of s. 93 are religious freedom and equitable treatment. The aspects approach is used to determine whether a right claimed is protected by s. 93. This approach recognizes that provinces may alter their education systems but prevents an expansion of the original purpose of s. 93. The rights guaranteed by s. 93 do not replicate the law of 1867 verbatim.

The EQIA does not prejudicially affect the right of separate schools to financial management and control. In Ontario, at the time of Confederation, the Scott Act gave separate school trustees the same powers and duties as common school trustees. These duties and powers, however, were subject to a broad power of regulation by the Chief Superintendent of Education for Upper Canada and the Council of Public Instruction for Upper Canada. The province’s regulatory power has long been enforced by the courts and the fact that it may have gone unexercised is irrelevant. The aspects approach to the guarantees of s. 93(1) allows Ontario to manage its denominational education system as it sees fit, so long as it does not prejudicially affect a denominational right or privilege or a non-denominational aspect necessary to deliver denominational elements of education. The EQIA affects only secular aspects of education and does not interfere with aspects of financial management and control necessary to provide denominational elements of education. It applies to all schools alike and impartially. As well, the power to take financial control of a board is not prejudicial interference with a right to financial management and control. The protections provided by ss. 257.52(1) and 257.40(5) of the amended Education Act meet the requirements of s. 93(1). Section 257.52(1) specifically forbids the Minister from interfering with the denominational aspects of a Roman Catholic school board, and whether such an interference has occurred can be reviewed by the courts, pursuant to s. 257.40(5). It should be noted also that provincial supervision of a school board cannot be for an indefinite period of time.

The EQIA does not prejudicially affect the right of separate schools to fair and equitable funding. The Scott Act explicitly conferred on separate boards a legal right to tax their supporters and local taxation was the dominant component of education funding in Ontario until the enactment of the EQIA. The right to tax, however, is not automatically protected by s. 93(1) simply because it existed in 1867. The ability to tax supporters is not a right or privilege “with respect to Denominational Schools” and s. 93(1) only protects the right to funding, not the specific mechanism through which funding is delivered. The Scott Act established local taxation and provincial grants as two funding mechanisms. The province is generally free to alter the funding allocation between these sources as it sees fit, provided that the source relied on delivers sufficient funds to operate a denominational education system equivalent to the public education system. Under the EQIA, local taxation remains, but the Minister of Finance now sets the applicable tax rates throughout the province. Provincial education grants are used to equalize education funding between school boards. The evidence indicates that the new model will benefit denominational boards. The new model treats separate schools in a like manner as public schools and imports a standard for fair and equitable funding. It also guarantees that minority language rights protected under s. 23 of the Canadian Charter of Rights and Freedoms will be respected by education funding in Ontario.

Since separate school boards have neither a right to independent taxation nor an absolute right to management or control, no such rights could possibly exist for public school boards. Subject to limited protection in s. 93 of the Constitution Act, 1867, they have no constitutional status. The Scott Act and the Common Schools Act use the public system as a benchmark for the rights of separate boards but s. 93(1) does not protect the design of the public school system. In addition, no constitutional convention protects the design of the public system or a right of school boards to levy and determine property taxes. Constitutional conventions relate to principles of responsible government, not to how a power is exercised. They ensure that the legal framework of the Constitution will operate in accordance with generally accepted principles, but there is no generally accepted principle in Canada as to the design of the public education system. Every province has a different design and Ontario’s use of a particular design for an extended period of time reflects consistency in public policy. It does not announce the arrival of a new principle of responsible government. The recognition of a constitutional convention would be inconsistent with the plenary power over education given to the provinces by s. 93.

The EQIA meets the guarantee of “no taxation without representation” provided in s. 53 of the Constitution Act, 1867. A delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. If the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. The EQIA clearly and unambiguously authorizes taxation within the enabling statute. It expressly authorizes the Minister of Finance to prescribe tax rates for school purposes. The delegation of the setting of the rate takes place within a detailed statutory framework that sets out the structure of the tax, the tax base, and the principles for its imposition. Property taxes for education purposes are intra vires the province. The delegation, therefore, is constitutional. Section 54 of the Constitution Act, 1867 was not relied upon nor is it relevant.

Cases Cited

Referred to: Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148; 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 School Commissioners of Montreal, 1928 CanLII 500 (UK JCPC), [1928] A.C. 200; Roman Catholic Separate School Trustees v. The King, 1928 CanLII 355 (UK JCPC), [1928] A.C. 363; Attorney General of Quebec v. Greater Hull School Board, 1984 CanLII 29 (SCC), [1984] 2 S.C.R. 575; Greater Montreal Protestant School Board v. Quebec (Attorney General), 1989 CanLII 125 (SCC), [1989] 1 S.C.R. 377; Reference Re Education Act (Que.), 1993 CanLII 100 (SCC), [1993] 2 S.C.R. 511; Ontario Home Builders’ Association v. York Region Board of Education, 1996 CanLII 164 (SCC), [1996] 2 S.C.R. 929; Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45; Waldman v. Canada, 7 IHRR 368 (2000); Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342; Reference Re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 CanLII 119 (SCC), [1993] 1 S.C.R. 839; Arsenault‑Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1; Re Ottawa Separate Schools (1917), 1917 CanLII 584 (ON CA), 41 O.L.R. 259; Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), 1997 CanLII 12352 (ON SC), 151 D.L.R. (4th) 346; Eurig Estate (Re), 1998 CanLII 801 (SCC), [1998] 2 S.C.R. 565; Ottawa Separate School Trustees v. City of Ottawa (1915), 1915 CanLII 495 (ON SC), 34 O.L.R. 624; Reference Re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753; Reference Re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217; Reference Re Objection by Quebec to a Resolution to Amend the Constitution, 1982 CanLII 219 (SCC), [1982] 2 S.C.R. 793; Reference Re Agricultural Products Marketing Act, 1978 CanLII 10 (SCC), [1978] 2 S.C.R. 1198; Westbank First Nation v. British Columbia Hydro and Power Authority, 1999 CanLII 655 (SCC), [1999] 3 S.C.R. 134; Executors of Will of Hon. Patrick Burns, deceased v. Minister of National Revenue, 1946 CanLII 49 (SCC), [1947] S.C.R. 132; Attorney-General v. Wilts United Dairies (1921), 37 T.L.R. 884, aff’d (1922), 91 L.J.K.B. 897; Gruen Watch Co. of Canada Ltd. v. Attorney-General of Canada, 1950 CanLII 77 (ON SC), [1950] O.R. 429; Bulova Watch Co. v. Attorney-General of Canada, 1951 CanLII 70 (ON CA), [1951] O.R. 360; The King v. National Fish Co., 1931 CanLII 726 (CA EXC), [1931] Ex. C.R. 75; Hodge v. The Queen (1883), 9 App. Cas. 117.

Statutes and Regulations Cited

Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64, ss. 27, 79, 106(1), (7), (9), (10), (11), (12), (13), (17), 103 to 113, 114 to 125.

Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5, ss. 7, 20, 26.

Administration of Justice Act, R.S.O. 1990, c. A.6.

Alberta Act, S.C. 1905, c. 3, s. 17 [reprinted in R.S.C. 1985, App. II, No. 20].

Bill of Rights (1688).

Canadian Charter of Rights and Freedoms, ss. 23, 29.

Constitution Act, R.S.B.C. 1979, c. 62.

Constitution Act, 1867, preamble, ss. 53, 54, 90, 92(2), 93, 93A.

Constitution Act, 1982, s. 45.

Constitution Amendment, 1997 (Québec), SI/97-141.

Constitution Amendment, 1998 (Newfoundland Act), SI/98-25.

Education Act, R.S.O. 1990, c. E.2 [am. 1997, c. 31], ss. 234(1), (2), (3), (14), Division B, 257.7, 257.12(1)(b), (3) to (5), 257.19, Part IX Division D, 257.30(1), (5), (6), 257.31, 257.33 to 257.49, 257.50, 257.52, Division E, Division F, 257.106, 257.107.

Education Quality Improvement Act, 1997, S.O. 1997, c. 31.

Manitoba Act, 1870, S.C. 1870, c. 3, s. 22 [reprinted in R.S.C. 1985, App. II, No. 8].

Saskatchewan Act, S.C. 1905, c. 42, s. 17 [reprinted in R.S.C. 1985, App. II, No. 21].

Authors Cited

Kelsey, Brian A. An Educator’s Guide to Funding and Governance. Aurora, Ont.: Aurora Professional Press, 1999.

Small, Joan. “Money Bills and the Use of the Royal Recommendation in Canada: Practice versus Principle?” (1995), 27 Ottawa L. Rev. 33.

APPEAL from a judgment of the Ontario Court of Appeal (1999), 1999 CanLII 2953 (ON CA), 44 O.R. (3d) 7, 120 O.A.C. 116, 172 D.L.R. (4th) 193, dismissing appeals by the appellants and allowing an appeal by the respondent from a judgment of Cumming J. (1998), 1998 CanLII 14922 (ON SC), 162 D.L.R. (4th) 257, [1998] O.J. No. 2939 (QL), declaring the Education Quality Improvement Act, 1997 unconstitutional in part and declaring the Education Act of no force and effect in part. Appeal dismissed.

Paul J. J. Cavalluzzo and Fay C. Faraday, for the appellants the Ontario English Catholic Teachers’ Association, Marshall Jarvis, Claire Ross and Annemarie Ross.

Brian A. Kelsey, Q.C., Maurice A. Green, Michael A. Hines and Elizabeth J. Shilton, for the appellants the Ontario Public School Boards’ Association, the Toronto District School Board, the Ontario Secondary School Teachers’ Federation, the Elementary Teachers’ Federation of Ontario, Joleene Kemp, David Edwards and Robert Churchill.

Janet E. Minor, Robert E. Charney, and Michel Y. Hélie, for the respondent.

Monique Rousseau, for the intervener the Attorney General of Quebec.

Eugene B. Szach and Denis Guénette, for the intervener the Attorney General of Manitoba.

Timothy Leadem, for the intervener the Attorney General of British Columbia.

Robert C. Maybank, for the intervener the Attorney General for Alberta.

Peter D. Lauwers, for the intervener the Ontario Catholic School Trustees’ Association.

Paul S. Rouleau, for the interveners the Association franco-ontarienne des conseils scolaires catholiques and the Association des conseillers(ères) des écoles publiques de l’Ontario.

James E. Redmond, Q.C., and K. P. Feehan, for the interveners the Alberta Catholic School Trustees’ Association, the Board of Lethbridge Roman Catholic Separate School District No. 9 and Dwayne Berlando.

Robert G. Richards, Q.C., for the interveners the Boards of Education of Regina School Division No. 4, Saskatchewan Rivers School Division No. 119, Swift Current School Division No. 94, Weyburn School Division No. 97, Yorkton School Division No. 93, Moose Jaw School Division No. 1, Saskatoon School Division No. 13, and Estevan School Division No. 95.

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

The judgment of the Court was delivered by

Judgment

[1] Iacobucci J. -- In many countries, education issues are matters of public policy, to be decided by democratic debate. In Canada, we are in the rather unusual position of having certain education rights constitutionally entrenched in s. 93 of the Constitution Act, 1867. This state of affairs is the product of our history, stemming from what this Court has referred to as “a solemn pact resulting from the bargaining which made Confederation possible”: Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, at p. 1173, per Wilson J.

[2] This appeal again raises the scope and content of the rights protected under s. 93 in light of recent legislation passed by the legislature of Ontario. Before dealing with the issues in this appeal, it may be helpful to put this case in a wider context.

I. Background

A. General

[3] Section 93 of the Constitution Act, 1867 gives effect to the historic compromise that was reached regarding education in Canada. It confers on the provincial legislatures the plenary power to enact laws in relation to education, subject to the rights of denominational schools. Denominational education rights are protected primarily by s. 93(1), the provision at issue in this appeal. Section 93(1) reads:

93. 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:

When the Canadian Charter of Rights and Freedoms was drafted in the early 1980s, the rights protected by s. 93 were specifically preserved. Section 29 of the Charter reads:

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

[4] Section 93 applies directly to Ontario, Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia. However, only Ontario had denominational education rights conferred “by law” at the relevant time, and so the guarantees provided by s. 93(1) are of no importance in Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia. A modified version of s. 93 applies to the western provinces of Manitoba, Saskatchewan and Alberta: s. 22 of the Manitoba Act, 1870, S.C. 1870, c. 3; s. 17 of the Saskatchewan Act, S.C. 1905, c. 42, and s. 17 of the Alberta Act, S.C. 1905, c. 3. As a result of recent constitutional amendments, Quebec and Newfoundland have new constitutional frameworks for education rights. Quebec has removed the protection of denominational education rights altogether, by amending the Constitution so that ss. 93(1) through (4) no longer apply to Quebec: Constitution Amendment, 1997 (Québec), SI/97-141; s. 93A of the Constitution Act, 1867. Newfoundland no longer has denominational schools, but instead guarantees the provision of courses in religion that are not specific to a religious denomination and guarantees that religious observances shall be permitted in a public school where requested by parents: Constitution Amendment, 1998 (Newfoundland Act), SI/98-25.

[5] The rights protected by s. 93, or its equivalent in certain provinces, have been the source of considerable litigation throughout our country’s history, both domestically and, more recently, internationally. See, e.g., City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.); Brophy v. Attorney-General of Manitoba, [1895] A.C. 202 (P.C.); Ottawa Separate Schools Trustees v. Mackell, 1916 CanLII 418 (UK JCPC), [1917] A.C. 62 (P.C.); Ottawa Separate Schools Trustees v. Ottawa Corporation, 1916 CanLII 419 (UK JCPC), [1917] A.C. 76 (P.C.); Hirsch v. Protestant School Commissioners of Montreal, 1928 CanLII 500 (UK JCPC), [1928] A.C. 200 (P.C.); Roman Catholic Separate School Trustees v. The King, 1928 CanLII 355 (UK JCPC), [1928] A.C. 363 (P.C.); Attorney General of Quebec v. Greater Hull School Board, 1984 CanLII 29 (SCC), [1984] 2 S.C.R. 575; Reference Re Bill 30, supra; Greater Montreal Protestant School Board v. Quebec (Attorney General), 1989 CanLII 125 (SCC), [1989] 1 S.C.R. 377 (“G.M.P.S.B.”); Reference Re Education Act (Que.), 1993 CanLII 100 (SCC), [1993] 2 S.C.R. 511 (“Quebec Education Reference”); Ontario Home Builders’ Association v. York Region Board of Education, 1996 CanLII 164 (SCC), [1996] 2 S.C.R. 929; Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45, (“Alberta Public Schools”); and, Waldman v. Canada, 7 IHRR 368 (2000).

B. The Background of this Appeal

[6] In 1997, the Ontario government, represented on this appeal by the respondent Attorney General for Ontario, passed Bill 160, the Education Quality Improvement Act, 1997, S.O. 1997, c. 31 (“EQIA”). The EQIA amended the Education Act, R.S.O. 1990, c. E.2, to create a new governance and funding model for all school boards in Ontario, including both public and separate (denominational) boards. To address a disparity of revenues between school boards, both between urban and rural boards and between separate and public boards, the EQIA allocates funds on a per-pupil basis. It also removes the ability of school boards to set property tax rates for education purposes, and centralizes this taxation power in the hands of the Minister of Finance. At the same time, the EQIA limits the power of school boards to control their budgets and expenditures, although it guarantees local control over denominational expenditures. Finally, the EQIA allows the Minister of Education and Training to take control of a school board temporarily if financial problems arise, again subject to certain protections, which are set out below.

[7] Two challenges to the constitutionality of the EQIA were initiated in the Ontario Court (General Division) and were heard together. One challenge was brought by separate school supporters through the Ontario English Catholic Teachers’ Association group of appellants (“OECTA appellants”), the other by public school supporters through the Ontario Public School Boards’ Association group of appellants (“OPSBA appellants”). The OECTA represents over 30,000 separate school teachers in the province, while the OPSBA represents over 90 Ontario public school boards. Other organizations in the OPSBA group of appellants are the Ontario Secondary School Teachers’ Federation, representing over 35,000 public secondary school teachers in the province, the Elementary Teachers’ Federation of Ontario, representing over 60,000 public elementary school teachers and education workers, and the Toronto District School Board.

[8] Both groups of appellants argue that the new funding and governance model violates s. 93(1) of the Constitution Act, 1867 because it interferes with claimed rights to local control over property taxation for education purposes and to local control over school finances and management. The OPSBA appellants further argue that the EQIA violates a constitutional convention that has developed regarding such matters, and that the delegation of control over the setting of education tax rates to the Minister of Finance violates ss. 53 and 54 of the Constitution Act, 1867. These sections require, in part, that bills imposing a tax must originate in the House of Commons, and they apply to provincial legislatures by virtue of s. 90 of the Constitution Act, 1867.

[9] The Catholic community in Ontario is apparently divided as to the constitutional validity of the EQIA. The intervener Ontario Catholic School Trustees’ Association (“OCSTA”) represents 29 English-language separate school boards in the province. The intervener Association franco-ontarienne des conseils scolaires catholiques represents French-language separate school trustees. Both of these interveners support the respondent’s position that the EQIA is constitutionally valid. While there are also differences amongst public school supporters on this issue, the only non-governmental intervener supporting the respondent is the Association des conseillers(ères) des écoles publiques de l’Ontario, representing French-language public school trustees in Ontario.

[10] The OECTA appellants succeeded at trial in establishing a right of separate school boards to local taxation for education purposes, and in establishing that this right had been violated by the EQIA. However, this holding was reversed on appeal. All other claims failed both at trial and before the Ontario Court of Appeal.

II. An Overview of Relevant Constitutional and Legislative Provisions

[11] Section 93(1) of the Constitution Act, 1867 protects only those denominational education rights provided by law as of 1867. In Ontario, these rights were primarily conferred by An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools, S. Prov. C. 1863, 26 Vict., c. 5 (“Scott Act”), the last statute pertaining to separate schools enacted in Ontario prior to Confederation, and An Act respecting Common Schools in Upper Canada, C.S.U.C. 1859, c. 64 (“Common Schools Act”). Section 7 of the Scott Act empowered separate school trustees to tax their supporters and gave separate school trustees the same powers as public school trustees:

7. The Trustees of Separate Schools forming a body corporate under this Act, shall have the power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools, and shall have all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools.

Section 20 entitled separate schools to a share of provincial education grants:

20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities, according to the average number of pupils attending such school during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township.

Section 26 subjected separate schools to provincial regulation:

26. The Roman Catholic Separate Schools, (with their Registers), shall be subject to such inspection, as may be directed from time to time, by the Chief Superintendent of Education, and shall be subject also, to such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada.

The relevant provisions of the Common Schools Act affirmed that school boards and municipal governments had the ability, and indeed were required, to raise funds for education purposes through local taxation at the time of Confederation: ss. 27(10), 79(12), 123 and 124. Trustees were also given considerable scope to manage the local education system: ss. 27 and 79. However, the Common Schools Act also established two central education authorities and set out their powers: the Chief Superintendent of Education for Upper Canada (ss. 103 to 113) and the Council of Public Instruction for Upper Canada (ss. 114 to 25). The provisions of the Common Schools Act will be examined in greater detail below.

[12] The amendments made to Ontario’s Education Act by the EQIA are lengthy and complex. I will refer only to those sections necessary to understand the central issues of this appeal. Part IX of the new Education Act is entitled “Finance” and contains most of the contested provisions. The new funding model provides five sources from which school boards can derive revenue (see Brian A. Kelsey, An Educator’s Guide to Funding and Governance (1999), at p. 118):

(i) residential property tax revenue from their own school supporters;

(ii) business property tax revenue shared between coterminous boards on the basis of student enrolment;

(iii) provincial grants, which equalize board disparities in revenues;

(iv) education development charges; and

(v) other sources, such as tuition fees from non-residents and the rental, lease or sale of surplus properties.

[13] With regard to education taxes, s. 257.106 of the new Education Act declares inoperative the previous ability of all school boards in the province to raise funds through local taxation. Pursuant to s. 257.7, property tax rates are still levied for school purposes and collected by municipalities. However, s. 257.12(1)(b) now empowers the Minister of Finance to make regulations “prescribing the tax rates for school purposes for the purposes of section 257.7”. The prescribed rate may vary among municipalities and properties within a municipality: see ss. 257.12(3) to (5). Residential taxpayers continue to designate their education taxes for either the public or separate system, meaning that the denominational tax base has not been altered by the EQIA.

[14] Turning to education grants, we see that s. 234(1) of the new Education Act empowers the Lieutenant Governor in Council to “make regulations governing the making of grants for educational purposes from money appropriated by the Legislature”. Of particular constitutional importance, subss. (2) and (3) of s. 234 restrict the exercise of this power. These provisions read:

234. . . .

(2) Regulations made under subsection (1) shall ensure that the legislation and regulations governing education funding operate in a fair and non-discriminatory manner,

(a) as between English-language public boards and English-language Roman Catholic boards; and

(b) as between French-language public district school boards and French-language separate district school boards.

(3) Regulations made under subsection (1) shall ensure that the legislation and regulations governing education funding operate so as to respect the rights given by section 23 of the Canadian Charter of Rights and Freedoms.

[15] It should be recalled that s. 23 of the Charter protects minority language education rights in Canada. See Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342; Reference Re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 CanLII 119 (SCC), [1993] 1 S.C.R. 839; and Arsenault‑Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1. The appellants have not raised any arguments with respect to the guarantees provided by s. 23, and there has been no suggestion that the EQIA violates s. 23. As a result, this appeal deals only with denominational rights under s. 93(1) of the Constitution Act, 1867, and nothing stated herein is intended to affect s. 23 rights.

[16] The guarantees provided in ss. 234(2) and (3) apply not only to grants made under s. 234(1), but also to revenue available to a school board from tax rates levied under Division B of Part IX of the Education Act (“Education Taxes”) and education development charges under Division E of Part IX of the Education Act (“Education Development Charges”): s. 234(14). Furthermore, s. 257.107 requires that a committee be struck to report by December 31, 2003 on whether “the legislation and regulations governing education funding meet the standard set out in subsection 234 (2) of the Education Act”.

[17] The grants themselves consist of foundation grants, special purpose grants, and pupil accommodation grants. Foundation grants are allocated on a per-pupil basis and are intended to cover the basic cost of providing an educational program for one school year (see Kelsey, supra, at pp. 138-40). The per-pupil funding rate is the same for all school boards, although it is higher for secondary students than for elementary students. Special purpose grants are allocated for a wide range of particular needs, including special education, language needs, small or remote school needs, adult education, teacher compensation, transportation, administration and governance, early learning, and debt charges (see Kelsey, supra, at pp. 140-51). Pupil accommodation grants are essentially focussed on funding infrastructure needs, including school operation and renewal, new pupil places, and capital debt servicing. All grants are designated for either classroom or non-classroom spending. Funds designated for non-classroom spending can be re-allocated for classroom spending categories, but funds designated as classroom spending, as well as certain special purpose grants, cannot be re-assigned. The new funding model also determines the total annual funding a school board is to receive, thereby providing a ceiling on board expenditures for the year.

[18] Division D of Part IX of the new Education Act provides for the supervision of school boards’ financial affairs by the provincial Ministry of Education and Training. Under s. 257.30(1), the Minister of Education and Training may direct an investigation of the financial affairs of a board if: (a) the board has a deficit for a fiscal year; (b) the board fails to pay certain debentures, debt instruments or interest due; (c) the board fails to pay any other debts or liabilities when due and the default is occasioned from financial difficulties affecting the board; or (d) if “the Minister has concerns about the board’s ability to meet its financial obligations”. The investigator reports to the Minister (s. 257.30(5)), but “may not recommend that control and charge over the administration of the affairs of the board be vested in the Ministry unless the investigation discloses evidence of financial default or probable financial default, of a deficit or a probable deficit or of serious financial mismanagement” (s. 257.30(6)). After reviewing the investigator’s report, the Minister may “give any directions to the board that he or she considers advisable” or may advise the Lieutenant Governor in Council to vest financial control of the board with the Ministry: s. 257.31. If the Lieutenant Governor in Council acts on this recommendation, the Minister assumes full control over the board: ss. 257.33 to 257.49.

[19] This power is also subject to important limitations. Most significantly, the Minister cannot interfere with: “(a) the denominational aspects of a Roman Catholic board; (b) the denominational aspects of a Protestant separate school board; or (c) the linguistic or cultural aspects of a French-language district school board”: s. 257.52. Although the government has attempted to shield the exercise of the Minister’s Division D powers from judicial scrutiny by enacting a privative clause (s. 257.40), an exception is provided in s. 257.40(5) for the review of decisions impacting the guarantees in s. 257.52. A further limitation on the exercise of Division D powers is provided by s. 257.50, which requires the Lieutenant Governor in Council to revoke the Minister’s control over a board if “the Lieutenant Governor in Council is of the opinion that the affairs of a board no longer need to be administered under [Division D]” or if the board no longer has a deficit.

III. Judicial History

A. Ontario Court (General Division) (1998), [1998 CanLII 14922 (ON SC)](https://www.canlii.org/en/on/onsc/doc/1998/1998canlii14922/1998canlii14922.html), 162 D.L.R. (4th) 257

[20] In extensive and lucid reasons, Cumming J. held that the EQIA did not interfere with separate schools’ right to management and control. Although he concluded at p. 283 that “[i]nherent to the right of a separate school system is the right of management and control”, he also noted that the Scott Act imposed limitations upon the independent management of separate schools, primarily by subjecting separate schools to regulations imposed by a central education authority. Furthermore, s. 93(1) primarily protects denominational rights. Cumming J. therefore concluded at p. 286 that:

... there is not otherwise any evidence of any prejudicial effect on a denominational right because of the strictures upon the powers of management imposed by Bill 160. . . . The prescriptive elements of the new funding model will direct board spending to a considerable degree. However, there is nothing to suggest that Catholic boards will be prevented from taking denominational matters into account in all aspects of their operations, such as teacher hiring, curriculum, programs and in respect of capital facilities. [Emphasis in original.]

[21] With regard to a right to tax, Cumming J. held that s. 7 of the Scott Act guaranteed separate school boards the right to levy taxes upon separate school supporters to meet expenditure needs. He concluded at p. 297 that the particular form of such a tax is not essential, but that “the independent right to finance by raising money by the taxation of separate school supporters . . . is critical to the prime objective of guaranteeing the autonomy of a separate, denominational school system” (emphasis in original). In his opinion, the EQIA, although respecting the right to proportional funding as guaranteed by s. 20 of the Scott Act, violates the right to independent financing as guaranteed by s. 7. While the new funding model may presently benefit denominational schools, Cumming J. concluded at p. 298 that it was unconstitutional because it “makes the Roman Catholic community hostage to the provincial government as to the extent of financing of the separate school system” (emphasis in original). In his view, Catholics in the province are constitutionally guaranteed the right to finance a Catholic education system from within their own community. He therefore declared the EQIA to be of no force and effect insofar as it interferes with this right.

[22] Cumming J. rejected the remaining arguments of the appellants. He held that the supervisory powers conferred on the Minister by Division D of the new Education Act meet the requirements set out in Ottawa Separate Schools Trustees v. Ottawa Corporation, supra, and in Re Ottawa Separate Schools (1917), 1917 CanLII 584 (ON CA), 41 O.L.R. 259 (S.C., App. Div.), namely that there “are defined and assessable standards, both for the imposition and removal of a vesting order” (p. 306). He rejected the argument that a right to tax must also exist for public school supporters, on the grounds that s. 93 does not guarantee “mirror equality” between the two education systems. He agreed with Campbell J. in Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), 1997 CanLII 12352 (ON SC), 151 D.L.R. (4th) 346 (Ont. Ct. (Gen. Div.)) that Adler, supra, a leading case on this issue, “is a shield to protect the public school system against Charter challenges . . . not a sword to win denominational rights for public schools” (p. 309). Cumming J. also held that there is no constitutional convention protecting the design of the public education system in Ontario and that, even if there was, a constitutional convention cannot be used to invalidate express legislation. Lastly, Cumming J. concluded that the EQIA does not violate ss. 53 and 54 of the Constitution Act, 1867 as these provisions require only that the delegation of a taxing power be express, a condition met by the legislation.

B. Ontario Court of Appeal (1999), [1999 CanLII 2953 (ON CA)](https://www.canlii.org/en/on/onca/doc/1999/1999canlii2953/1999canlii2953.html), 44 O.R. (3d) 7

[23] In reasons for judgment authored by the court, McMurtry C.J.O., Brooke, Abella, Goudge and Borins JJ.A. dismissed the appellants’ appeal, but allowed the respondent’s appeal regarding the right of separate school boards to tax their supporters. Employing the aspects analysis to the guarantees of s. 93(1), as reviewed by this Court in G.M.P.S.B., supra, the Court of Appeal held at p. 21 that the “right to tax is clearly a non-denominational aspect of denominational schools . . . nor does it serve denominational ends that other ways of funding the separate system would not”. The court also noted that, historically, the right to tax did not provide more than limited financial autonomy to separate school boards. As the EQIA provides greater funding to Catholic schools than they enjoyed before, it cannot be said to prejudice their rights under s. 93. The court therefore concluded that s. 93(1) guarantees only the funding of denominational schools, not a right of separate school boards to tax their supporters, and reversed the learned trial judge on this point.

[24] The court rejected all of the other grounds of appeal. It denied an independent right to management and control, as “in 1867 neither public nor separate school boards had unconstrained autonomy in spending decisions” (p. 24). Since the new funding model limits the spending power of trustees only in relation to matters that are entirely non-denominational, the court held that the EQIA had no prejudicial effect on the rights guaranteed by s. 93(1). Largely for the reasons given by Cumming J., the court agreed that the Division D supervisory powers given to the Minister of Education and Training were constitutional, noting at p. 30 that these powers are “sufficiently defined and precise” and therefore do not have a prejudicial effect. Having rejected the OECTA appellants’ claim to a right to tax and a right of independent management and control, the court held that no such rights could possibly exist for public school boards. It also rejected the OPSBA appellants’ argument regarding a constitutional convention in this area, for the reasons given by Cumming J.

[25] Lastly, the court held that the delegation of the setting of property tax rates for education purposes to the Minister of Finance did not contravene s. 53 of the Constitution Act, 1867. Unlike Cumming J., the court had the benefit of the decision of this Court in Eurig Estate (Re), 1998 CanLII 801 (SCC), [1998] 2 S.C.R. 565, in reaching its decision. The court held that, although the tax is not imposed until the Minister fixes the applicable rates, it nevertheless meets the requirement set out by the majority in Eurig, at para. 28, that “all provincial bills for the imposition of any tax must originate in the legislature”. As the Minister is not imposing a tax ab initio when setting the rates, but is instead imposing a tax as authorized by legislation, the court concluded that the requirements of s. 53 were met by the EQIA.

IV. Issues

[26] The following constitutional questions were stated by this Court when leave to appeal was granted on October 14, 1999:

1. Do Part IX Division B, Part IX Division F, and, in particular, ss. 257.7, 257.12, 257.19 and 257.106 of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, prejudicially affect rights held under s. 93(1) of the Constitution Act, 1867?

2. Do ss. 231, 232 and 234 of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, and the education Funding Formula enacted pursuant to s. 234 of the Education Act and presently embodied in O.Reg. 287/98 and O.Reg. 214/99, prejudicially affect rights held under s. 93(1) of the Constitution Act, 1867?

3. Does Part IX, Division D of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, prejudicially affect rights held under s. 93(1) of the Constitution Act, 1867?

4. If the answer to questions 1, 2 or 3 is in the affirmative with respect to Roman Catholic separate school rights, are those provisions, or any of them, also invalid with respect to public school supporters and public school boards, by virtue of either s. 93 of the Constitution Act, 1867, or constitutional convention?

5. Does s. 257.12(1)(b) of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, contravene the preamble, s. 53, or s. 54 of the Constitution Act, 1867?

[27] In answering these questions, I wish to begin by reviewing briefly the jurisprudence on the rights protected under s. 93. Having done this, I will then discuss the issues of financial management and control, the right to tax, the rights of public school boards, and the delegation of taxation powers.

V. Analysis

A. The Protections of Section 93

[28] The original purpose of s. 93 was to give the provinces plenary jurisdiction over education while protecting the religious education of the Protestant minority in Quebec and the Catholic minority outside Quebec. As the Lord Chancellor stated in Brophy, supra, at p. 214, these minority communities

regarded it as essential that the education of their children should be in accordance with the teaching of their Church, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed, but could only be secured in schools conducted under the influence and guidance of the authorities of their Church.

The animating principles were, and are, religious freedom and equitable treatment. A detailed history of s. 93, as well as the relevant pre-Confederation education legislation in Ontario, is set out by Wilson J. in Reference Re Bill 30, supra, at pp. 1168-87.

[29] The plenary power over education given to the provinces by the opening words of s. 93 has been interpreted broadly by the courts: see, e.g., City of Winnipeg, supra, at p. 456, and Alberta Public Schools, supra, at paras. 35-37. But the plenary power is not absolute. It must be exercised within the limits imposed by subss. (1), (3) and (4) of s. 93 of the Constitution Act, 1867 (s. 93(2) is no longer of importance, as it applied only to Quebec and is now inapplicable as a result of s. 93A of the Constitution Act, 1867). The Lord Chancellor summarized the scope of the plenary power in Brophy, supra, at pp. 221-22:

The power conferred is not absolute, but limited. It is exerciseable only “subject and according to the following provisions.” The sub-sections which follow, therefore, whatever be their true construction, define the conditions under which alone the Provincial Legislature may legislate in relation to education, and indicate the limitations imposed on, and the exceptions from, their power of exclusive legislation. Their right to legislate is not indeed, properly speaking, exclusive, for in the case specified in sub-sect. 3 the Parliament of Canada is authorized to legislate on the same subject.

[30] To engage the protections of s. 93(1), the following factors must be established (as referred to by Chouinard J. in Greater Hull, supra, at p. 582):

[translation]

(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.

In addition, as will be discussed below, the right prejudicially affected must be one relating to denominational education, or those non-denominational aspects necessary to deliver the denominational elements of education: see G.M.P.S.B., supra, at p. 411.

[31] It has long been settled that Roman Catholics in Ontario constitute a “class of persons” within the meaning of s. 93(1): Ottawa Separate Schools Trustees v. Mackell, supra, at p. 69. The starting point in analysing a s. 93(1) claim is therefore to determine whether the right or privilege being claimed was in fact provided by law in the province at the applicable date. Although this approach involves analysing a “snapshot” of the law as it stood in 1867 (the relevant date in Ontario), the education system of a province is not frozen in time. In Ottawa Separate School Trustees v. City of Ottawa (1915), 1915 CanLII 495 (ON SC), 34 O.L.R. 624 (H.C. Div.), at p. 630, Meredith C.J.C.P. stated that separate schools must not be “left forever in the educational wilderness of the enactments in force in 1867”. Instead, “[t]he machinery may be altered, the educational methods may be changed, from time to time, to keep pace with advanced educational systems”. In Hirsch, supra, the Privy Council shared this view. Viscount Cave L.C. wrote, at p. 215, that s. 93

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.

Similarly, this Court noted in Ontario Home Builders’, supra, at para. 73, that s. 93(1) does not turn the legislative provisions with regard to denominational education in force in 1867 into Procrustean obligations, with which our present education system must be rigidly forced to conform.

[32] Instead, this Court employs “a purposive approach to s. 93”: see the Reference Re Bill 30, supra, at p. 1175, per Wilson J. Such an approach gives provincial legislatures the flexibility to use the plenary power granted to them in s. 93 to alter their education systems. At the same time, the jurisprudence reveals that care has been exercised to avoid using the purposive approach to expand the original purpose of s. 93. Beetz J., for a majority of this Court in G.M.P.S.B., supra, at p. 401, rejected an approach to s. 93(1) that would “improperly amplify the provision’s purpose” and thereby transform s. 93(1) into “a blanket affirmation of freedom of religion or freedom of conscience”. Using the properly confined purposive approach, Beetz J. concluded, at p. 402, that “the law in force ‘at the Union’ cannot on its own set the content of the constitutional right in s. 93(1)”. In other words, the rights guaranteed by s. 93(1) do not replicate the law word-for-word as it stood in 1867. It is the broader purpose of the laws in force which continues to be protected. Therefore, s. 93(1) should be viewed as protecting the denominational aspects of education, as well as those non-denominational aspects necessary to deliver the denominational elements. As Beetz J. stated in G.M.P.S.B., at p. 411:

In other words, constitutional protection “with respect to Denominational Schools” has both denominational and non-denominational components.

This approach is commonly referred to as the “aspects analysis” or the “aspects approach”.

[33] Dickson C.J. summarized the aspects approach in Mahe, supra, at p. 382:

[Subsection 93(1)] protects powers over denominational aspects of education and those non‑denominational aspects which are related to denominational concerns which were enjoyed at the time of Confederation. The phrase does not support the protection of powers enjoyed in respect of non‑denominational aspects of education except in so far as is necessary to give effect to denominational concerns. [Emphasis deleted.]

The aspects approach is not new. It was employed by the Privy Council as early as 1917. In Ottawa Separate Schools Trustees v. Mackell, supra, at p. 71, Lord Buckmaster L.C. stated (with regard to language rights, which were not then constitutionally protected):

The schools must be conducted in accordance with the regulations, and their Lordships can find nothing in the statute to take away from the authority that had power to issue regulations the power of directing in what language education is to be given. If, therefore, the trustees of the common schools would be bound to obey a regulation which directed that education should, subject to certain restrictions, be given in either English or French, the trustees of the separate schools would also be bound to obey a regulation of the same character affecting their school, provided that it does not interfere with a right or privilege reserved under the Act of 1867, i.e., a right or privilege attached to denominational teaching. [Emphasis added.]

[34] Understandably, not all legislation in relation to education will interfere with the guarantees of s. 93. As Chouinard J. stated in Greater Hull, supra, at p. 585:

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.

Legislation dealing with education has been held to be intra vires in a number of cases: see, e.g., City of Winnipeg, supra; Ottawa Separate Schools Trustees v. Mackell, supra; Reference Re Bill 30, supra; G.M.P.S.B., supra; Quebec Education Reference, supra; and Alberta Public Schools, supra. The courts have also long been careful to separate policy matters from legal issues. In City of Winnipeg, for instance, Lord Macnaghten stated, at p. 459: “With the policy of the Act of 1890 their Lordships are not concerned.” See also Brophy, supra, at p. 226, and Hirsch, supra, at p. 216. On the other hand, s. 93 is absolute in its protection of denominational education rights, and legislation has been held to be ultra vires which interferes with those rights: see, e.g., Ottawa Separate Schools Trustees v. Ottawa Corporation, supra, and Greater Hull, supra.

B. The Claimed Right to Financial Management and Control

[35] Applying these principles to the instant case, we must begin by examining whether there was a right or privilege entitling denominational schools in Ontario to local control over taxation or to financial management and control at the time of Confederation. Section 7 of the Scott Act gave separate school trustees “all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools”. Section 27 of the Common Schools Act set out the duties and powers of trustees in township school sections, while s. 79 did the same for trustees in cities, towns and villages.

[36] These included the power or duty to acquire and hold property (ss. 27(3) and 79(4)), “manage or dispose of such property, and all moneys or income for Common School purposes” (s. 79(5)), build and repair schools (ss. 27(4) and 79(7)), employ teachers and set their salaries (ss. 27(8) and 79(8)), levy and collect property taxes for education purposes, or to apply to the municipal government to have the municipality do so (ss. 27(12) and 79(12)), permit all local residents between the ages of five and 21 to attend a school, subject to good behaviour and the payment of the fees or rates required to be paid on their behalf (ss. 27(16) and 79(18)), visit schools and ensure compliance with the authorized regulations (ss. 27(17) and 79(16)), supply the textbooks authorized by the Council of Public Instruction (ss. 27(18) and 79(15)), establish a library and appoint a librarian (ss. 27(19) and 79(15)), and report to constituents (ss. 27(21) and 79(16)), to the applicable superintendent (ss. 27(23) and 79(17)) or to the municipality (s. 79(11)).

[37] These duties and powers, however, were subject to a broad power of regulation by the Chief Superintendent of Education for Upper Canada and the Council of Public Instruction for Upper Canada. Section 26 of the Scott Act made the separate schools subject to inspection by the Chief Superintendent and to “such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada”. The Common Schools Act established both the office of the Chief Superintendent and the institution of the Council of Public Instruction, and set out their duties and powers. The Chief Superintendent was given the duty or power to apportion the annual provincial education grant (s. 106(1)), ensure provincial funds were properly spent (s. 106(7)), appoint school inspectors (s. 106(9)), recommend textbooks to the Council of Public Instruction for approval (ss. 106(10) and (13)), promote the establishment of school libraries (s. 106(11)), disseminate education information, including information regarding the design of schools (s. 106(12)), and report to the Governor on education finances in the province and on “suggestions for improving the Common Schools and the Common School laws, and promoting education generally as he may deem useful and expedient” (s. 106(17)). The Council of Public Instruction consisted of not more than nine members appointed by the Governor. Section 119(4) of the Common Schools Act gave the Council the sweeping power to make regulations “for the organization, government and discipline of Common Schools, for the classification of Schools and Teachers, and for School Libraries throughout Upper Canada”.

[38] This provincial power of regulation has long been recognized by the courts. As Dickson C.J. stated in Mahe, supra, at pp. 382-83:

The transfer of the powers in respect of management and control thus amounts to the regulation of a non‑denominational aspect of education, namely, the language of instruction, a form of regulation which the courts have long held to be valid: see Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202; Ottawa Roman Catholic Separate Schools Trustees v. Mackell, 1916 CanLII 418 (UK JCPC), [1917] A.C. 62; and Ottawa Roman Catholic Separate Schools Trustees v. Quebec Bank, 1919 CanLII 429 (UK JCPC), [1920] A.C. 230. I note that this conclusion was also reached by the Ontario Court of Appeal in Reference Re Education Act of Ontario [(1984), 1984 CanLII 1832 (ON CA), 10 D.L.R. (4th) 491]. That court stated that the provinces enjoy a “full power of regulation”, adding on p. 538, that “[s]o long as the legislation regulates education and does not threaten the existence of the separate schools or interfere with their denominational character it is valid”. [Emphasis in original.]

Similarly, the provincial power of regulation was recognized by Wilson J. in Reference Re Bill 30, supra, at p. 1195, and G.M.P.S.B., supra, at pp. 385-86. The fact that the power of regulation may have gone unexercised is irrelevant. It is the fact that it existed which is critical, and which results in the province having a broad power of regulation today. As Wilson J. stated in her concurring reasons in G.M.P.S.B., at p. 386:

The trustees’ power was not absolute and, even although no regulations had in fact been passed in Ontario in relation to the curriculum by the time of Union, the overriding regulatory authority of the province was there by law. [Emphasis in original.]

The aspects approach to the guarantees of s. 93(1) therefore allows Ontario to manage its denominational education system as it sees fit, so long as it does not prejudicially affect a denominational right or privilege or a non-denominational right necessary to deliver the denominational elements of education.

[39] The issue that arises therefore is whether the EQIA interferes with a right or privilege attached to denominational schools, either a denominational aspect directly or an aspect of education necessary to deliver the protected denominational elements. Dealing first with the claimed right to financial management and control, I agree with the courts below that the EQIA does not interfere with those aspects of financial management and control that are necessary to provide the denominational elements of education in the province. Like the Circular of Instructions at issue in Ottawa Separate Schools Trustees v. Mackell, supra, the EQIA “applies to public schools and separate schools alike and impartially . . . there is nothing whatever to indicate that it is intended to have any application . . . to anything but secular teaching” (p. 73). The right to manage was specifically claimed by the Ottawa separate school trustees in Ottawa Separate Schools Trustees v. Mackell and was rejected, in relation to non-denominational aspects, by the Privy Council. Lord Buckmaster L.C. concluded that “the right to manage must be subject to the regulations under which all the schools must be carried on” (p. 74).

[40] The EQIA does not interfere with denominational aspects of education, either directly or indirectly. Roman Catholic school boards remain free to hire Roman Catholic teachers and chaplains, construct chapels, and tailor curricula to reflect Catholic values. The EQIA affects only secular aspects of education, such as class-size, teacher preparation time, teacher and trustee salaries, adult education, and computers in the classroom.

[41] The respondent relied on a number of expert opinions to this effect, including those of John Sabo, Associate-Director of Corporate Services and Treasurer of the York Catholic District School Board, Patrick Daly, past president of the OCSTA, and Nancy Naylor, representative of the Ontario Ministry of Education and Training. Upon cross-examination, one of the OECTA appellants’ expert witnesses, Claire Ross, General Secretary of the OECTA, did not refute this conclusion:

Q. So they are able to hire teachers?

A. They can hire in terms of the allocation. Yes.

Q. And they can go through the promotion process that they have in the past of picking the most appropriate teacher to promote?

A. Yes.

Q. Okay. And that they are still able as a matter of authority under Bill 160 to develop curriculum documents and adapt them for new Catholic schools?

A. Yes.

Q. And they still have the authority, in terms of the Education Act itself and in terms of the funding model, to employ chaplains if they so wish to spend their money in that way?

A. Provided provision can be found within the rigidity of the funding model, the answer is yes.

[42] The intervener OCSTA, representing the English language Catholic school boards in Ontario, agrees that the EQIA does not prejudicially affect denominational aspects of education. In the OCSTA’s written submissions to this Court, it states:

There would be a denominational challenge from OCSTA if, for example, there were provisions in the funding model that prevented separate boards from making expenditure decisions that are required to ensure their denominational character, such as employment decisions, adapting secular curricula, creating denominational courses of study, providing religious instruction, or siting schools in locations accessible to the right holders. These are all traditionally understood to be at the core of Catholic denominational rights, but do not form an exhaustive list.

There is nothing in Bill 160 that interferes with the right of Catholic boards to manage and control their schools, as the Scott Act requires with its repeated references to management.

[43] Like the courts below, I agree with this conclusion. The EQIA affects only secular aspects of education, and does not prejudicially affect denominational aspects of education or any non-denominational aspects required to deliver the protected denominational elements. In this respect, it is constitutional. As Meredith C.J.C.P. stated in Ottawa Separate School Trustees v. City of Ottawa, supra, at p. 630, “[e]ducational methods and machinery may and must change, but separation, and equal rights regarding public schools, must remain as long as provincial public schools last”. The EQIA brings change to the financial management and control of separate schools in Ontario, but it treats all school boards equally and preserves the denominational aspects of separate schools.

[44] I also find constitutional the Division D provisions that, under certain conditions, empower the Minister of Education and Training to take over the financial control of a school board. Similar legislation was successfully challenged in Ottawa Separate Schools Trustees v. Ottawa Corporation, supra. However, the legislation held to be ultra vires in that case allowed the Lieutenant Governor in Council to take over all of the powers of a school board for an indefinite period of time. Lord Buckmaster L.C. struck down the legislation because of the sweeping, open-ended nature of the interference with rights protected by s. 93(1) (at p. 81):

The case before their Lordships is not that of a mere interference with a right or privilege, but of a provision which enables it to be withdrawn in toto for an indefinite time. Their Lordships have no doubt that the power so given would be exercised with wisdom and moderation, but it is the creation of the power and not its exercise that is subject to objection, and the objection would not be removed even though the powers conferred were never exercised at all.

[45] The Ontario government responded by passing new legislation, which was held to be constitutional by the Ontario Supreme Court, Appellate Division in Re Ottawa Separate Schools, supra. Meredith C.J.O. distinguished the new legislation from the failed legislation on the following grounds: (1) control over a board could be vested in a provincial body only under certain circumstances and had to be revested by the Minister of Education once it appeared that the schools would be conducted by the Board according to law; and (2) any dispute over whether the criteria for vesting or revesting had been met was to be resolved on summary application to the courts. He held that those safeguards were sufficient to meet the requirements of s. 93(1).

[46] In my opinion, the EQIA provides greater protection to denominational rights than the legislation upheld in Re Ottawa Separate Schools, supra. Section 257.52(1) of the new Education Act specifically forbids the Minister from interfering with the denominational aspects of a Roman Catholic school board. Whether such an interference has occurred can be reviewed by the courts, pursuant to s. 257.40(5). As will be examined below, a province is free to deal with public school boards as it sees fit. The constitutional concern with financial supervision only relates to separate school boards, and then only in relation to the denominational aspects of those boards. The protection provided by s. 257.52(1) is sufficient on its own to meet the requirements of s. 93(1) of the Constitution Act, 1867. Unlike Ottawa Separate School Trustees v. City of Ottawa, supra, the EQIA does not interfere with all the powers of a denominational school board, but only with the non-denominational powers of a school board. If the Minister interferes in any way with the denominational aspects of a separate school, even if the interference results from the exercise of a non-denominational power, an interested party can ask the courts to remedy the interference. The protections provided by ss. 257.52(1) and 257.40(5) therefore result in Division D of the new Education Act meeting the requirements of s. 93(1).

[47] I also note that provincial supervision of a school board cannot be for an indefinite period of time. The Minister’s control over a board must be revoked when the board no longer has a deficit, or when the Lieutenant Governor in Council is of the opinion that control should be restored to the board (s. 257.50). Although this provision is not strictly necessary to ensure the constitutionality of the Division D powers, given the wide protection granted by s. 257.52(1), it is another safeguard that is in place. For all of these reasons, I conclude that the OECTA appellants’ claims with regard to prejudicial interference with a right to financial management and control must fail.

C. The Claimed Right to Tax

[48] It is beyond question that Roman Catholic school boards in Ontario had the legal right to tax their supporters in 1867. Section 7 of the Scott Act explicitly conferred this right. It states, in part, that separate school trustees “shall have the power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools”. The political reality at the time was that education could only be paid for out of funds raised locally, and so all school boards in the province were given the power to tax their supporters. As the Court of Appeal noted, at p. 16, “[c]omplete provincial responsibility for the financing of education was simply outside the experience of the founders of Confederation”. Local funds were supplemented by provincial grants, but moneys raised through local taxation remained the dominant component of education funding in the province up until the enactment of the EQIA in 1997.

[49] However, the fact that the right to tax existed in 1867 does not mean that it is automatically protected by s. 93(1). Section 93(1) only protects rights or privileges “with respect to Denominational Schools”. This threshold requirement to access the protections of s. 93(1) is the genesis of the aspects approach, which has long been applied by the courts. The aspects approach to s. 93(1) requires that the right in question be related to a denominational aspect of education, or to a non-denominational aspect necessary to deliver the protected denominational elements. I agree with the Court of Appeal that the authority to tax supporters is not a right or privilege “with respect to Denominational Schools”. Section 93(1) protects the right to funding for denominational education, not the specific mechanism through which that funding is delivered. As Gonthier J. stated in the Quebec Education Reference, supra, at p. 590:

. . . fundamentally what matters is having the financial and physical resources to operate school boards. The taxing power is only one possible means of attaining this end. If it can be done otherwise, such as by an equal, or at least appropriate and equitable, allocation of financing sources, it is hard to speak of a prejudicial effect.

[50] The Scott Act includes two funding mechanisms for denominational schools in Ontario: local taxation (s. 7) and provincial grants (s. 20). The province is generally free to alter the funding allocation between these sources as it sees fit, provided that the source relied on provides sufficient funds to operate a denominational education system which is equivalent to the public education system in place at the time. The animating principle is equality of educational opportunity. I need not decide the constitutionality of removing the local tax base altogether, as the EQIA does not attempt to do so. While it removes the ability of school boards to set the rate that is to be applied to raise funds through local taxation, it does not remove the funding mechanism of property taxation.

[51] Provincial education grants have long been used to supplement funds raised through local taxation in an attempt to achieve equality in Ontario’s education system. I agree with the Ontario Court of Appeal’s observations, at p. 21, that such grants were necessary because of the practical limitations separate school boards faced in raising funds through local taxation:

[The separate school system’s] poorer assessment base and the risk of taxpayer migration away from the system have always placed very significant practical constraints on the power of separate school boards to tax their supporters. The right to tax has never provided separate school boards with more than limited financial autonomy.

[52] Section 20 of the Scott Act requires that provincial education grants be distributed on a fair and equitable basis between the public and separate school systems. This Court canvassed the protections provided by s. 20 of the Scott Act, as constitutionally entrenched through s. 93(1) of the Constitution Act, 1867, in Reference Re Bill 30, supra, and in Ontario Home Builders’, supra. In the Reference Re Bill 30, Wilson J. stated, at pp. 1195-96:

It is clear that if the foregoing right [to provide denominational education at a secondary level of instruction] was to be meaningful an adequate level of funding was required to support it. This Court held unanimously in Attorney General of Quebec v. Greater Hull School Board, 1984 CanLII 29 (SCC), [1984] 2 S.C.R. 575, that the right of dissentient schools in Quebec to a proportionate share of government funding was a right protected by s. 93 of the Constitution Act, 1867. Likewise, in my view, the right of separate schools in Ontario. They were entitled to the proportionate funding provided for in s. 20 of the Scott Act. This conclusion, it seems to me, is fully consistent with the clear purpose of s. 93, namely that the denominational minority’s interest in a separate but suitable education for its children be protected into the future.

In Ontario Home Builders’, at para. 73, our Court affirmed this view:

... when one reviews the history and purpose of s. 93(1), the principle of proportionality can be seen for what it really is, namely, the means to a constitutional end which is equality of educational opportunity. Moreover, as I have noted above, the entire system of provincial grants in Ontario has not been based on actual proportionality since early in the century. The departure from strict, formalistic proportionality was made because it had led to a serious inequality of educational opportunity. While the notion of proportionality contained in s. 20 of the Scott Act is a constitutional right embodied in s. 93(1), the substantive purpose of this notion must be borne in mind: the achievement of an educational system that distributes provincial funds in a fair and non‑discriminatory manner to common and separate schools alike. This is the substantive guarantee offered by s. 93(1). As the Court per Gonthier J. stated in Reference re Education Act (Que.), 1993 CanLII 100 (SCC), [1993] 2 S.C.R. 511, at p. 567:

When we speak of equality, this must be understood in the sense of equivalence and not that of strict quantitative identity, as Chouinard J. noted in Greater Hull, supra, at p. 591:

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. [Emphasis added by Gonthier J.]

[53] The EQIA enacts a mixed system of funding in Ontario. Local taxation remains, but the Minister of Finance now sets the applicable tax rates throughout the province. Provincial education grants are used to equalize education funding between school boards. There is no evidence that this new funding model has a prejudicial affect on the right of Roman Catholics in Ontario to fair and equitable funding of their school system. As Lord Buckmaster L.C. pointed out in Ottawa Separate Schools Trustees v. Ottawa Corporation, supra, at p. 81, “an interference with a legal right or privilege may not in all cases imply that such right or privilege has been prejudicially affected”. The evidence is that the new funding model will enrich the separate school system in Ontario as it is intended to have a redistributive effect. Obviously, it is not the role of this Court to comment on this policy decision. The role of this Court is to determine if the legislation implementing the new education policy in Ontario prejudicially affects any protected denominational rights.

[54] As Meredith C.J.C.P. stated in Ottawa Separate School Trustees v. City of Ottawa, supra, at p. 630:

The right and privilege which the Separate Schools Act conferred when the Imperial enactment became law, and which the Separate Schools Acts have ever since conferred, and still confers, was and is a right to separation, to separate public schools of the like character, and maintained in the like manner, as the general public schools.

The new funding model enacted by the EQIA treats separate schools in a “like manner” as public schools. In fact, all schools in the province are now treated equally under uniform legislation. Section 234(2) of the Education Act specifically imports the standard for fair and equitable funding of separate schools set out by this Court in Reference Re Bill 30, supra, and Ontario Home Builders’, supra. Section 257.107 requires a committee to be established in 2003 to investigate whether the criteria set out in s. 234(2) have indeed been met. Furthermore, interested parties are free to seek a remedy in the courts if there is evidence that the guarantees provided in s. 234(2) are not being met. At the same time, as was explored in relation to the claimed right to financial management and control, the EQIA preserves the “separateness” of separate schools.

[55] Section 234(3) of the new Education Act also guarantees that minority education rights protected by s. 23 of the Charter will be respected by education funding in Ontario. In Mahe, supra, Dickson C.J. explored the content of the protections offered by s. 23. Writing for the Court, at pp. 375-76, he employed an aspects approach similar to that employed in relation to the guarantees of s. 93(1):

Perhaps the most important point to stress is that completely separate school boards are not necessarily the best means of fulfilling the purpose of s. 23. What is essential, however, to satisfy that purpose is that the minority language group have control over those aspects of education which pertain to or have an effect upon their language and culture. This degree of control can be achieved to a substantial extent by guaranteeing representation of the minority on a shared school board and by giving these representatives exclusive control over all of the aspects of minority education which pertain to linguistic and cultural concerns.

To give but one example, the right to tax (which would accompany the creation of an independent school district), is not, in my view, essential to satisfy the concerns of s. 23 with linguistic and cultural security. Section 23 guarantees that minority schools shall receive public funds, but it is not necessary that the funds be derived through a separate tax base provided adequate funding is otherwise assured. Similar observations can be made in respect of other features of separate school districts.

Where there are alternative ways of satisfying the requirements, the public authorities may choose the means of fulfilling their duties.

Section 93(1) of the Constitution Act, 1867 offers guarantees of the same nature as the guarantees provided by s. 23 of the Charter, but for denominational aspects of education instead of linguistic and cultural aspects. So long as separate schools are funded in a manner that is fair and equitable as compared to their public school counterparts, the underlying legislation will not violate s. 93(1).

[56] There is no evidence before this Court that the EQIA does not fund separate schools in a fair and equitable manner. It specifically mandates fair and equitable treatment with regard to the distribution of provincial education grants, which are used to equalize funding after funds raised through property taxation are taken into account. The evidence is that separate schools have actually seen their funding increase under the new funding model. As the intervener OCSTA states in their factum, the new funding model produces “the cherished result of equitable per pupil funding”. The EQIA therefore does not prejudicially affect the right of separate schools to fair and equitable funding as guaranteed by s. 93(1) of the Constitution Act, 1867 through the operation of ss. 7 and 20 of the Scott Act.

D. The Rights of Public School Boards

[57] Having found that separate school boards in Ontario have neither a right to independent taxation nor an absolute right to independent management and control, one can conclude that public school boards in the province also do not have such rights. Subject to s. 93, public school boards as an institution have no constitutional status.

[58] Campbell J. correctly stated the law in this regard in Ontario Public School Boards’ Assn., supra, at p. 361:

Municipal governments and special purpose municipal institutions such as school boards are creatures of the provincial government. Subject to the constitutional limits in s. 93 of the Constitution Act, 1867 these institutions have no constitutional status or independent autonomy and the province has absolute and unfettered legal power to do with them as it wills.

See also Alberta Public Schools, supra, at paras. 33 and 34.

[59] The constitutional limits in s. 93 of the Constitution Act, 1867 protect the public school system to only a very limited extent. As was stated by a majority of this Court in Adler, supra, at para. 41:

. . . the public school system is an integral part of the s. 93 scheme. When the province funds public schools, it is, in the words of Wilson J. in Reference Re Bill 30, at p. 1198, legislating “pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”. A closer examination of s. 93, in particular s. 93(1), as it applies to the province of Ontario, will help to illustrate that the public school system is impliedly, but nonetheless clearly, contemplated by the terms of that section.

[60] The Scott Act uses the publicly funded, non-denominational education system as a benchmark for the education rights of Roman Catholics in the province. As the majority also pointed out in Adler, supra, at para. 43, the preamble of the Scott Act is clear on this issue:

WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools . . . . [Emphasis added.]

Similarly, both ss. 7 and 20 of the Scott Act define the rights and privileges of separate schools in terms of the rights and privileges of the province’s public schools. Section 120 of the Common Schools Act does the same. As a result, Wilson J. concluded in the Reference Re Bill 30, supra, at p. 1193, that:

The security afforded the Roman Catholic minority through the tying of funding for its schools to a proportion of the funding for the common schools was in the certainty that the Legislature would never cut off funding for the common schools.

This conclusion was again endorsed by this Court in Adler, supra, at para. 45. Section 93(1) guarantees separate schools in Ontario the right to fair and equitable treatment vis-à-vis their public school counterparts, as well as to control over the denominational aspects of their education programs and those non-denominational aspects necessary to effectuate the denominational elements.

[61] But s. 93 provides no constitutional protection for the design of the public school system. The Constitution gives the provincial government the plenary power over education in the province, and it is free to exercise this power however it sees fit in relation to the public school system. As the majority stated in Adler, supra, at para. 48:

One thing should, however, be made clear. The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by s. 93(1).

[62] A similar claim to a “sphere of reasonable autonomy” for public school boards was made by a number of Alberta public school boards in Alberta Public Schools, supra. This Court unanimously rejected their claim. Major J. concluded, at para. 35, that “educational institutions are malleable and subject to legislative reform”. He relied on the following passage from Gonthier J. in the Quebec Education Reference, supra, at pp. 541-42:

What s. 93 of the Constitution guarantees . . . is the right to dissent itself, not the form of the institutions which have made it possible to exercise that right since 1867. This means, for example, that while the right of dissent obviously includes the means and framework in which it is exercised, the latter are not in themselves constitutionally guaranteed. The framers of the Constitution were wise enough not to determine finally the form of institutions, as it is those very institutions which must be capable of change in order to adapt to the varying social and economic conditions of society. Moreover, as we shall see, the institutions have been altered by the legislature many times since 1867.

While Gonthier J. was concerned with dissentient schools, I agree with Major J.’s statement in Alberta Public Schools that the conclusion is equally applicable to public schools. Major J. held, at para. 37, that the acceptance of a right of reasonable autonomy for public school boards is inconsistent with, and would impair, the plenary power given to the provinces over education by the opening words of s. 93. I adopt his reasoning in the present appeal.

[63] I also reject the argument that a constitutional convention has arisen regarding the design of the public education system in Ontario. The OPSBA appellants correctly concede that such a convention could not be used to invalidate express legislation. In Reference Re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753 ( “Patriation Reference”), the majority of this Court stated, at p. 880:

The conventional rules of the constitution present one striking peculiarity. In contradistinction to the laws of the constitution, they are not enforced by the courts. One reason for this situation is that, unlike common law rules, conventions are not judge‑made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves. Nor are they in the nature of statutory commands which it is the function and duty of the courts to obey and enforce. Furthermore, to enforce them would mean to administer some formal sanction when they are breached. But the legal system from which they are distinct does not contemplate formal sanctions for their breach.

Instead, the remedy for breach of a constitutional convention must be found outside the courts, if a remedy is to be found at all (Patriation Reference, at pp. 881-83):

The remedy lies with some other institutions of government; furthermore it is not a formal remedy and it may be administered with less certainty or regularity than it would be by a court.

This conflict between convention and law which prevents the courts from enforcing conventions also prevents conventions from crystallizing into laws, unless it be by statutory adoption.

It is because the sanctions of convention rest with institutions of government other than courts, such as the Governor General or the Lieutenant Governor, or the Houses of Parliament, or with public opinion and ultimately, with the electorate, that it is generally said that they are political.

[64] The law in this respect was recently affirmed by this Court in Reference Re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 98:

The respective roles of the courts and political actors in discharging the constitutional obligations we have identified follows ineluctably from the foregoing observations. In the Patriation Reference, a distinction was drawn between the law of the Constitution, which, generally speaking, will be enforced by the courts, and other constitutional rules, such as the conventions of the Constitution, which carry only political sanctions.

[65] The OPSBA appellants nevertheless seek a declaration that a constitutional convention exists regarding the right of school boards in Ontario to levy and determine property taxes for education purposes, presumably so that they could then seek a remedy for a violation of this convention in the appropriate forum. I cannot agree that such a convention exists. Constitutional conventions relate to the principles of responsible government, not to how a particular power, which is clearly within a provincial government’s jurisdiction, is to be exercised. The nature of constitutional conventions was reviewed by this Court in Patriation Reference, supra, at pp. 878 and 880:

It was apparently Dicey who, in the first edition of his Law of the Constitution, in 1885, called them the “conventions of the constitution”, (see W. S. Holdsworth, “The Conventions of the Eighteenth Century Constitution” (1932), 17 Iowa Law Rev. 161), an expression which quickly became current. What Dicey described under these terms are the principles and rules of responsible government, several of which are stated above and which regulate the relations between the Crown, the prime minister, the cabinet and the two Houses of Parliament. These rules developed in Great Britain by way of custom and precedent during the nineteenth century and were exported to such British colonies as were granted self‑government.

The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period. For example, the constitutional value which is the pivot of the conventions stated above and relating to responsible government is the democratic principle: the powers of the state must be exercised in accordance with the wishes of the electorate; and the constitutional value or principle which anchors the conventions regulating the relationship between the members of the Commonwealth is the independence of the former British colonies.

Similarly, in the Reference Re Objection by Quebec to a Resolution to Amend the Constitution, 1982 CanLII 219 (SCC), [1982] 2 S.C.R. 793, at p. 803, this Court stated that the “main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with generally accepted principles”. There is no generally accepted principle in Canada as to the design of the public education system. Quite the opposite is true, for every province has designed its public school system in a different way. Furthermore, the fact that one province has used a particular design for an extended period of time reflects consistency in public policy. It does not announce the arrival of a new principle of responsible government.

[66] Even if this were the type of issue over which a constitutional convention could develop, which I believe it is not, there is no evidence of such a convention developing in Ontario. This Court recently rejected a similar constitutional convention argument with regard to the design of the Alberta public education system in Alberta Public Schools, supra, at paras. 38-41. Major J. noted that the education system in Alberta has always had “a significant degree of centralized control” (para. 40). As illustrated in the review of the powers of the Chief Superintendent of Education for Upper Canada and the Council of Public Instruction for Upper Canada above, Ontario has similarly always had a significant degree of centralized control over its education system. I adopt Major J.’s conclusion in Alberta Public Schools, at para. 41, that the recognition of a constitutional convention in this area would be inconsistent with the plenary power over education given to the provinces in s. 93. For all of these reasons, the constitutional convention argument fails.

E. Delegation of Taxation

[67] The OPSBA appellants argue that the power granted to the Minister of Finance under s. 257.12(1)(b) of the new Education Act to determine property tax rates for education purposes is unconstitutional. Specifically, they submit that this provision violates the preamble, ss. 53 and 54 of the Constitution Act, 1867, the relevant portions of which read:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom . . . .

53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

54. It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

Sections 53 and 54 apply to provincial legislatures by virtue of s. 90 of the Constitution Act, 1867:

90. The following Provisions of this Act respecting the Parliament of Canada, namely, ‑‑ the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, ‑‑ shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re‑enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada.

[68] Sections 53 and 54 can be amended by Parliament or by provincial legislatures. As Pigeon J. stated for the majority in Reference Re Agricultural Products Marketing Act, 1978 CanLII 10 (SCC), [1978] 2 S.C.R. 1198, at p. 1291, “ss. 53 and 54 are not entrenched provisions of the constitution, they are clearly within those parts which the Parliament of Canada is empowered to amend by s. 91(1)”. Although the amending provisions of the Constitution were altered when the Constitution was patriated in 1982, ss. 53 and 54 continue to be unentrenched provisions of the Constitution. By virtue of s. 45 of the Constitution Act, 1982, the legislature of each province retains the exclusive discretion to make laws amending the constitution of the province: see Eurig, supra, at para. 35. The intervener Attorney General of British Columbia points out that British Columbia has removed s. 53 from its constitution: Constitution Act, R.S.B.C. 1979, c. 62.

[69] Nevertheless, ss. 53 and 54 continue to apply to the Ontario legislature. Furthermore, the OPSBA appellants submit that the preamble of the Constitution, by stating that the Canadian Constitution will be “similar in Principle to that of the United Kingdom”, has imported the Principle of “no taxation without representation” to Canadian law. This principle was established in the United Kingdom by the 1688 Bill of Rights:

That levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament for longer time or in other manner than the same is or shall be granted is Illegal.

[70] I accept that there is a constitutional guarantee of “no taxation without representation” in Canada. However, I conclude that the requirements of this guarantee have been met by the EQIA. Before I explain my reasoning, I wish to point out that s. 54 of the Constitution Act, 1867 is not relevant to this issue. Joan Small correctly states the function of s. 54 in “Money Bills and the Use of the Royal Recommendation in Canada: Practice versus Principle?” (1995), 27 Ottawa L. Rev. 33, at pp. 35 and 40:

Section 54 requires a royal recommendation for any “Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost”.

Section 54 is directed to the House of Commons alone. It states that, in effect, an appropriation must first be recommended to the House of Commons by the message of the Governor General in the session in which the bill is introduced. The appropriation is of one of two things: any part of the public revenue, or any tax or impost. The section has nothing to do with the actual imposition or levying of any tax or impost.

This view was endorsed by Major J. for the majority in Eurig, supra, at para. 37, where he concluded that “s. 54 concerns the appropriation of taxes, and not the imposition of taxes”. The case at bar, like Eurig, is concerned with whether the imposition of a tax is constitutional. It has not been argued that the government of Ontario failed to meet the requirements of s. 54 when it appropriated public funds for education grants.

[71] In my opinion, the fundamental democratic principle of “no taxation without representation” is guaranteed by s. 53 of the Constitution Act, 1867. As Major J. stated for the majority in Eurig, supra, at para. 30:

[Section 53] codifies the principle of no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature. My interpretation of s. 53 does not prohibit Parliament or the legislatures from vesting any control over the details and mechanism of taxation in statutory delegates such as the Lieutenant Governor in Council. Rather, it prohibits not only the Senate, but also any other body other than the directly elected legislature, from imposing a tax on its own accord.

This view was affirmed in Westbank First Nation v. British Columbia Hydro and Power Authority, 1999 CanLII 655 (SCC), [1999] 3 S.C.R. 134. Writing for the Court, Gonthier J. stated, at para. 19:

...the Canadian Constitution (through the operation of s. 53 of the Constitution Act, 1867) demands that there should be no taxation without representation. In other words, individuals being taxed in a democracy have the right to have their elected representatives debate whether their money should be appropriated, and determine how it should be spent.

[72] I need not comment on whether the preamble of the Constitution Act, 1867 also protects this principle, as s. 53 continues to apply to Ontario. Whether the preamble may be relied on to import the principle of no taxation without representation into jurisdictions that have repealed s. 53 is best decided in a case directly raising that question.

[73] The issue is therefore whether the principle of no taxation without representation is respected by the EQIA. In Eurig, supra, the requirements necessary to satisfy this principle were left open. Major J. stated, at para. 36:

The Ontario legislature did not delegate to the Lieutenant Governor in Council the authority to impose a tax. Therefore whether it could constitutionally do so does not need to be addressed.

See also para. 39. With the EQIA, the Ontario legislature has delegated the authority to impose a tax. I agree with the Ontario Court of Appeal that a tax is not imposed until the rate is set. Along with the tax base and time unit, the tax rate is a defining feature of a tax. This must be the case, for if the rate is zero, there is no tax. As the Court of Appeal stated, at p. 41:

... an element, or component, of the exercise of the power to tax is the establishment of the amount, or rate, of the tax, not only to enable the taxpayer to know the extent of his or her obligation, but to enable the taxing authority to determine the anticipated amount of tax revenue it will obtain.

See Executors of Will of Hon. Patrick Burns, deceased v. Minister of National Revenue, 1946 CanLII 49 (SCC), [1947] S.C.R. 132, at p. 155, per Estey J. (dissenting in part); rev’d in part 1950 CanLII 258 (UK JCPC), [1950] A.C. 213, at p. 226, where the Privy Council agreed with Estey J.’s dissenting view that “without a rate or determinable amount there can be no impost”.

[74] The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. The democratic principle is thereby preserved in two ways. First, the legislation expressly delegating the imposition of a tax must be approved by the legislature. Second, the government enacting the delegating legislation remains ultimately accountable to the electorate at the next general election.

[75] This view accords with the majority position in Eurig, supra. Major J. stated, at paras. 31-32:

In our system of responsible government, the Lieutenant Governor in Council cannot impose a new tax ab initio without the authorization of the legislature. As Audette J. succinctly stated in The King v. National Fish Co., 1931 CanLII 726 (CA EXC), [1931] Ex. C.R. 75, at p. 83, “[t]he Governor in Council has no power, proprio vigore, to impose taxes unless under authority specifically delegated to it by Statute. The power of taxation is exclusively in Parliament.”

The basic purpose of s. 53 is to constitutionalize the principle that taxation powers cannot arise incidentally in delegated legislation. In so doing, it ensures parliamentary control over, and accountability for, taxation.

Major J. later referred to this, at para. 40, as the “constitutional requirement for a clear and unambiguous authorization of taxation within the enabling statute”. The EQIA meets this requirement, as s. 257.12(1)(b) of the new Education Act expressly authorizes the Minister of Finance to prescribe the tax rates for school purposes. When the Minister sets the applicable rates, a tax is not imposed ab initio, but is imposed pursuant to a specific legislative grant of authority. Furthermore, the delegation of the setting of the rate takes place within a detailed statutory framework, setting out the structure of the tax, the tax base, and the principles for its imposition.

[76] As Bastarache J. pointed out in Eurig, supra, at para. 55:

The provincial legislature is entitled to delegate taxing powers to its subordinate bodies, including the Lieutenant Governor in Council (Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at pp. 131‑33; Shannon v. Lower Mainland Dairy Products Board, 1938 CanLII 250 (UK JCPC), [1938] A.C. 708 (P.C.), at p. 722; Irving Oil Ltd. v. Provincial Secretary of New Brunswick, 1980 CanLII 176 (SCC), [1980] 1 S.C.R. 787).

This Court divided in Eurig not over whether this was a correct statement of the law (as the majority felt it was premature to comment on the issue), but over whether s. 5 of Ontario’s Administration of Justice Act, R.S.O. 1990, c. A.6, expressly authorized a delegation of taxation. Both the majority opinion and the concurring opinion of Binnie J. concluded that it did not, while the dissenting opinion of Bastarache J. concluded that it did. In this case, however, the delegation of the taxing power by the EQIA is clear and unambiguous.

[77] There is long-standing legal authority for the view that the test for constitutional delegation of the taxation power is the use of clear and unambiguous language. In Attorney-General v. Wilts United Dairies, Ltd. (1921), 37 L.T.R. 884 (C.A.), at p. 885, aff’d (1922), 91 L.J.K.B. 897 (H.L.), Scrutton L.J. stated:

It is conceivable that Parliament, which may pass legislation requiring the subject to pay money to the Crown, may also delegate its powers of imposing such payments to the Executive, but in my view the clearest words should be required before the Courts hold that such an unusual delegation has taken place. As Chief Justice Wilde said in Gosling v. Veley, 12 Q.B., at p. 407 : “The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate or toll, except upon clear and distinct legal authority, established by those who seek to impose the burthen, has been so often the subject of legal decision that it may be deemed a legal axiom, and requires no authority to be cited in support of it.” [Emphasis added.]

This case was relied on in Gruen Watch Co. of Canada Ltd. v. Attorney-General of Canada, 1950 CanLII 77 (ON SC), [1950] O.R. 429 (H.C.), at p. 438, affirmed on this point in Bulova Watch Co. v. Attorney-General of Canada, 1951 CanLII 70 (ON CA), [1951] O.R. 360 (C.A.), where McRuer C.J.H.C. stated:

It is for the legislative body to decide in every case what power is to be delegated to any administrative body, and in each case the administrative tribunal is confined to the express authority delegated to it and to the authority that may arise by necessary implication. In no case is the exercise of the delegated authority more carefully scrutinized than in the case where it is claimed that it gives a right to impose any financial burden on the subject.

The same principles apply to the delegation of powers to the executive. As previously referred to in paras. 75 and 76, see The King v. National Fish Co., 1931 CanLII 726 (CA EXC), [1931] Ex. C.R. 75, at p. 83, and Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at pp. 131‑33.

[78] These principles explain how Parliament and the provincial legislatures are able to delegate taxing authority to municipalities, school boards and Aboriginal band councils. Westbank First Nation, supra, provides but one example of the constitutional delegation of such a taxing power, at para. 36:

The impugned charges are imposed under the authority of the legislature and levied by a public body. The by‑laws are imposed pursuant to the power conferred by s. 83 of the Indian Act. The taxes are levied by the Band Council, under its conferred authority, and are approved by the Minister of Indian Affairs and Northern Development.

[79] As this passage implies, a tax imposed through the delegation of the taxing authority must also be intra vires, for a legislature cannot delegate a power it does not have. In the case of provincial legislatures, this primarily means that the delegated tax must be a direct tax, given that s. 92(2) of the Constitution Act, 1867 assigns to the provinces only the power of “Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes”. Property taxes for education purposes are a direct tax, and so are intra vires the province. The delegation of the taxing authority in the EQIA is therefore constitutional. The delegation has been effected using express and unambiguous words, and the tax that the Minister has been delegated the authority to impose is intra vires the province.

VI. Conclusion

[80] Section 93(1) of the Constitution Act, 1867 guarantees denominational school boards in Ontario the right to fair and equitable funding, and to control over the denominational aspects of their education program, as well as those non-denominational aspects necessary to deliver the denominational elements. Although s. 93(1) uses the public school system in Ontario as a comparator for separate school funding, it does not guarantee any particular elements of the design of the public school system. The EQIA respects the s. 93 guarantees. The new funding model established by the EQIA treats Roman Catholic schools in the province fairly and equitably. Furthermore, the EQIA does not interfere with the denominational aspects, or those non-denominational aspects necessary to deliver the denominational aspects, of the province’s denominational school system.

[81] For the foregoing reasons, I would dismiss the appeal and answer the constitutional questions as follows:

1. Do Part IX Division B, Part IX Division F, and, in particular, ss. 257.7, 257.12, 257.19 and 257.106 of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, prejudicially affect rights held under s. 93(1) of the Constitution Act, 1867?

The answer is no.

2. Do ss. 231, 232 and 234 of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, and the education Funding Formula enacted pursuant to s. 234 of the Education Act and presently embodied in O.Reg. 287/98 and O.Reg. 214/99, prejudicially affect rights held under s. 93(1) of the Constitution Act, 1867?

The answer is no.

3. Does Part IX, Division D of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, prejudicially affect rights held under s. 93(1) of the Constitution Act, 1867?

The answer is no.

4. If the answer to questions 1, 2 or 3 is in the affirmative with respect to Roman Catholic separate school rights, are those provisions, or any of them, also invalid with respect to public school supporters and public school boards, by virtue of either s. 93 of the Constitution Act, 1867, or constitutional convention?

The answer is no.

5. Does s. 257.12(1)(b) of the Education Act, R.S.O. 1990, c. E.2, as amended by the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, contravene the preamble, s. 53, or s. 54 of the Constitution Act, 1867?

The answer is no.

Appeal dismissed.

Solicitors for the appellants the Ontario English Catholic Teachers’ Association, Marshall Jarvis, Claire Ross and Annemarie Ross: Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto.

Solicitors for the appellants the Ontario Public School Boards’ Association, the Toronto District School Board, the Ontario Secondary School Teachers’ Federation, the Elementary Teachers’ Federation of Ontario, Joleene Kemp, David Edwards and Robert Churchill: Hicks Morley Hamilton Stewart Storie, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Sainte-Foy.

Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.

Solicitor for the intervener the Attorney General for Alberta: The Department of Justice, Edmonton.

Solicitors for the intervener the Ontario Catholic School Trustees’ Association: Miller Thomson, Toronto.

Solicitors for the interveners the Association franco-ontarienne des conseils scolaires catholiques and the Association des conseillers(ères) des écoles publiques de l’Ontario: Heenan Blaikie, Toronto.

Solicitors for the interveners the Alberta Catholic School Trustees’ Association, the Board of Lethbridge Roman Catholic Separate School District No. 9 and Dwayne Berlando: Fraser Milner Casgrain, Edmonton.

Solicitors for the interveners the Boards of Education of Regina School Division No. 4, Saskatchewan Rivers School Division No. 119, Swift Current School Division No. 94, Weyburn School Division No. 97, Yorkton School Division No. 93, Moose Jaw School Division No. 1, Saskatoon School Division No. 13, and Estevan School Division No. 95: MacPherson Leslie & Tyerman, Regina.

Solicitors for the interveners the Public School Boards’ Association of Alberta, the Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish: Dale Gibson Associates, Edmonton.