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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Constitutional Law CHARTER OF RIGHTS Sections 73(2) and (3) of Charter of the French Language (Que.) inconsistent with language rights guaranteed by s. 23 of Canadian Charter of Rights and Freedoms and not justified under s. 1 Section 23(2) of Canadian Charter of Rights and Freedoms provides that Canadian citizens of whom any child is receiving or has received instruction in language of linguistic minority may have all children receive primary and secondary school instruction in same language. In principle, An Act to amend the Charter of the French lan- guage (Que.) ("CFL"), provides that French is common official language of instruction in Que- bec elementary and secondary schools. Children who have received or are receiving major part of instruction in English in Canada, however, may receive instruction in English in pub- lic or subsidized private school in Quebec pursuant to s. 73 of CFL. Parents whose children not entitled to instruction in minor- ity language in Quebec began enrolling children in unsubsi- dized private schools ("UPSs") for short periods in order to obtain eligibility to attend pub- licly funded English schools. In response, paras. 2 and 3 added to s. 73 in 2002 and state that periods of attendance at UPSs or instruction received pursuant to special authorization to be disregarded when determining eligibility to receive instruction in publicly funded English- language school system. N.'s parents enrolled children for short periods in UPSs offering instruction in English and then sought eligibility for children for instruction in English in public or subsidized private schools. Ministere de l'Education du Quebec denied all requests. B.'s daughter declared eligible for in- struction in minority language public school system pursuant to special authorization but B. un- able to obtain certificate of eligi- bility for minority-language in- struction in public or subsidized private school for son on basis of instruction being received by daughter due to s. 73(3) of CFL. Administrative Tribunal of Quebec and Superior Court dismissed parents' proceedings seeking declaration that 2002 CFL amendments unconstitu- tional. Court of Appeal reversed decisions, finding that s. 73(2) and (3) of CFL unconstitu- tional because inconsistent with language rights guaranteed by s. 23 of Canadian Charter. Appeal and cross-appeal to Supreme Court of Canada dismissed. Purpose of s. 23(2) of Canadian Charter to provide continuity of minority language education rights, to ensure family unity and to accommodate mobility within Canada but no distinc- tion made between instruction that is public and instruction that is private, whether subsi- dized or unsubsidized. In Solski (Tutor of) v. Quebec (Attorney General), (2005), 250 D.L.R. (4th) 421, 138 A.C.W.S. (3d) 56 (S.C.C.), it was determined that for child to have access to public and subsidized private schools in minority language, "major part" of instruction child received be in that language. Qualitative assessment of child's situation required and short period of attendance at minor- ity language school clearly not indicative of genuine commit- ment and could not on its own be sufficient to obtain status of rights holder under Canadian Charter. Purpose of s. 73 of CFL to implement constitu- tional guarantees provided for in s. 23 of Canadian Charter with respect to minority educational rights. Under s. 73 children of Canadian citizen have right to receive instruction in language of English-speaking minority if at least one of children received or is receiving instruction in English anywhere in Canada, provided that instruction con- stitutes major part of instruction received. Sections 73(2) and (3) provide that instruction received in UPS or pursuant to special authorization must be disre- garded. Inability to assess child's educational pathway in entirety in determining extent of educa- tional language rights has effect of truncating child's reality by creating fictitious educational pathway that cannot serve as ba- sis for proper application of con- stitutional guarantees. Omitting entire portion of educational pathway makes it impossible to conduct global analysis required by Solski. Sections 73(2) and (3) of CFL therefore limit respon- dents' rights in both appeals. Limit not justified under s. 1 of Canadian Charter. Contested measures excessive in relation to objectives being pursued and do not meet standard of minimal impairment. November 30, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 1(800) 565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. N. (H.) v. Quebec (Ministre de l'Education); B. (T.) v. Quebec (Ministre de l'Education) (Oct. 22, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ., File No. 32229; 32319) Decisions at 177 A.C.W.S. (3d) 686 and 166 A.C.W.S. (3d) 665 were affirmed. Order No. 009/295/055 (48 pp.). FEDERAL COURT OF APPEAL Communications Law GENERAL Decision of CRTC had rational relationship to statutory objectives of ensuring provision of reliable and affordable telecommunications Parties could not agree on terms of Municipal Access Agreement. Respondent would not agree to become member of Alberta One-Call Corporation. Respon- dent insisted on using in-house notification program. CRTC granted respondent permission to construct transmission lines on highways in Wheatland sub- ject to conditions. Appeal was dismissed. CRTC's reasons for deciding to adjudicate Al- berta One-Call issue satisfied standard. Decision did not fall outside range of possible out- comes. Decision had rational relationship to statutory ob- jectives of ensuring provision of reliable and affordable tele- communications. Wheatland (County) v. Shaw Cablesystems Ltd. (Oct. 13, 2009, F.C.A., Evans, Layden- Stevenson and Trudel JJ.A., File No. A-544-08) Order No. 009/293/006 (26 pp.). Labour Relations JUDICIAL REVIEW Appellants not barred by s. 208(2) of Public Service Labour Relations Act (Can.) from presenting grievance under s. 208(1) This was appeal from applica- tions judge's decision denying appellants' applications for ju- dicial review. Appellants were employees of respondent CRA. Respondent C.M. was also em- ployee of CRA. C.M. was grant- ed leaves of absence. C.M.'s position was permanently filled during absence but C.M. was granted preferred status and was appointed to team leader position without competition on basis of preferred status. Ap- pellants grieved appointment of www.lawtimesnews.com C.M.. Grievance was dismissed. Decision-maker determined that appellants were barred by s. 208(2) of Public Service Labour Relations Act (Can.) ("PSLRA"), from presenting grievance under s. 208(1) because CRA's staffing program dealt with subject mat- ter of grievance. On application for judicial review applications judge held that decision-maker correctly concluded that she had no jurisdiction under s. 208(1) of PSLRA to determine griev- ance because CRA's staffing program provided recourse for grievances of this type. Appeal allowed. Appellants were not barred by text of s. 208(2) from presenting grievance under s. 208(1). Specific administrative recourse only barred employee from presenting grievance un- der s. 208(1) if it was available to employee presenting griev- ance. Appellants had no re- course under staffing program with respect C.M.'s appoint- ment because only employees with preferred status may seek recourse when person with preferred status was appointed. Section 54 of Canada Revenue Agency Act ("CRAA"), did not automatically exclude committed griev- ance from s. 208(1) when staff- ing program dealt with subject matter of grievance. Decision- maker reviewable error in deciding that s. 208(2) barred appellants from present- ing grievance under s. 208(1). Decision-maker's decision was unreasonable. Johal v. Canada (Revenue Agen- cy) (Sep. 25, 2009, F.C.A., Noel, Nadon and Evans JJ.A., File No. A-25-09) Decision at 174 A.C.W.S. (3d) 729 was reversed. Order No. 009/280/074 (20 pp.). FEDERAL COURT Administrative Law FREEDOM OF INFORMATION At time of hearing applicant did not have genuine and continuing claim of refusal to access Applicant sought information from respondent. Respondent was deemed to have refused dis- closure of all records requested by applicant because respondent did not respond within to access requests within 30 days. All of requests were now responded to. Applicant sought order enjoin- ing respondent to disclose infor- mation requested. Application for judicial review was dismissed. Court exercised discretion to hear application notwithstand- ing mootness. Applicant raised issues of interest to other poten- tial litigants that were never ad- dressed by courts before. Court had no jurisdiction to entertain application because applicant was not refused what applicant was seeking from respondent. Applicant could not apply to court while respondent was still within time frame set by com- missioner. It could not be said at time of hearing applicant had genuine and continuing claim of refusal to access. Court had no jurisdiction to make declara- tory judgment reprimanding behaviour of institution. Statham v. Canadian Broadcast- ing Corp. (Oct. 13, 2009, F.C., de Montigny J., File No. T-782- 08) Order No. 009/293/014 (32 pp.). Constitutional Law PREROGATIVE RIGHTS Prime Minister did not violate s. 56.1 of Canada Elections Act in dissolving Parliament and setting election date This was application for judi- cial review of Prime Minister of Canada's decision to advise Governor General of Canada to dissolve 39th Parliament and set election date of October 14, 2008. Section 56.1 of Canada Elections Act provided for sys- tem of fixed election dates for Canada. Prime Minster made decision to advise Governor General to dissolve 39th Parlia- ment and set election date of October 14, 2008 in accordance with conventional power. Appli- cation dismissed. Prime Minis- ter's advisory power was not, in and of itself, reviewable because it did not affect rights or legiti- mate expectations of individual. However, prerogative powers must be exercised in accordance with law and applicants asked whether s. 56.1 was violated. Federal court had jurisdiction over limited issue pursuant to s. 18.1(4)(f) of Federal Courts Act (Can.), which gave court pow- er to review if decision-maker acted contrary to law, which was what applicants asserted. Applicants failed to establish ex- istence of convention that lim- ited Prime Minister's discretion to advise Governor General. Three-question test failed be- cause there were no precedents from relevant actors, namely, Prime Minister and Governor General. Use of explicit agree- ment method failed because intention of political actors had not been explicit. Section 56.1

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