Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold.                                In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: B.C. Violated French Education Rights

Lawyer Susan Kootnekoff discusses British Columbia’s only French language school board

Conseil scolaire francophone v B.C.: Part 1

In 2010, British Columbia’s only French language school board, a francophone association and three parents sued the province of British Columbia. They claimed that the province was violating their rights to a French language education under section 23(1) of the Canadian Charter of Rights and Freedoms by underfunding minority language education.

The trial judge awarded them $6 million for lack of transportation to French language schools.

The British Columbia Court of Appeal set aside that award.

Last week, in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, the Supreme Court of Canada reinstated the trial judge’s $6 million award. It also added another $1.1 million for delays in a provincial facilities upgrades grant. The appellants were awarded costs at all levels of courts.

Section 23(1) of the Charter recognizes the right to receive primary and secondary education in English or French, where the numbers of children so warrants. The Court’s decision discusses in some detail how to determine if numbers warrant.

The purpose underlying section 23(1) is to assist French speaking Canadians to maintain their language and culture, and afford them a degree of protection against assimilation.

But Charter rights and freedoms are not absolute. They can be limited to protect other rights or important national values. Any such limit must be justified under section 1 of the Charter.

Under section 1, Charter rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

To demonstrably justify a reasonable limit of a Charter right, the state must show that the objective of the proposed measure is pressing and substantial, and that the means by which the measure is achieved are proportionate. At that stage, further analysis occurs to determine proportionality.

Financial Constraints did not Justify Infringing s. 23

British Columbia argued that limited government budgets justified infringing section 23(1).

The majority of the Supreme Court of Canada was not persuaded. It stated:

The mission of a government is to manage a limited budget in order to address needs that are, for their part, unlimited. This is not a pressing and substantial objective that can justify an infringement of rights and freedoms. Treating this role as such an objective would lead society down a slippery slope and would risk watering down the scope of the Charter.

This passage is significant and may have broader implications in Charter cases generally.

No Immunity from Charter Damages for Government Policies

The decision is also significant for its award of $7.1 million in Charter damages. Up until 2010, Charter damages were largely a curiosity. In the past decade, however, courts have shown a willingness to award them, though they are not to be presumed.

Just 10 years ago, in Vancouver (City) v Ward, the Supreme Court of Canada set out a four-part test to be met before awarding Charter damages:

  1. the claimant must establish a breach of a Charter right;
  2. the claimant must show that damages would serve to compensate, vindicate the right, or deter future breaches;
  3. the state may raise defences to show that damages are inappropriate or unjust; and
  4. The amount of damages is quantified.

In the third step, governments may seek immunity from Charter damages, based on Mackin v New Brunswick. That case held that a government will not generally be liable for damages arising from enforcing a law that is later found to be unconstitutional. This immunity does not apply to conduct that is “clearly wrong, in bad faith or an abuse of power.”

In Conseil, the Court clarified that generally this immunity protects government only from laws later found to be unconstitutional, and does not extend to unconstitutional policies. One reason for this is that laws are created through a “transparent public process that is central to the democratic process.” This includes debate, consultation, and revisions. Policies are less transparent and do not undergo such a process.

In Summary

The Court stated that children of rights holders in the Kelowna area and rights holders living in the catchment area of École Entre‑lacs in Penticton are “entitled to an educational experience that is substantively equivalent to the experience at nearby majority language schools.” For Penticton this means a new elementary and middle school with space for approximately 175 students.

This decision is a welcome development not only for francophones in B.C. and across Canada, but also for those whose Charter rights or freedoms are infringed by public bodies.

Next week, we will look at some implications of this decision.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

If you would like to reach us, we may be reached through our website, at www.inspirelaw.ca.

To report a typo, email:
newstips@kelownacapnews.com
.


@KelownaCapNews
newstips@kelownacapnews.com

Like us on Facebook and follow us on Twitter.

Columnist

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Each spring, the Okanagan Fest-of-Ale is held in Penticton. This year, as a result of the COVID-19 pandemic, the festival will not be held. However, beer is still available. How much do you know about this beverage? (pxfuel.com)
QUIZ: How much do you really know about beer?

Put your knowledge to the test with this short quiz

The West Kelowna Warriors beat the Vernon Vipers 3-2 in BCHL action Friday, April 16, 2021. (Lisa Mazurek Photography)
West Kelowna goaltender stymies Vernon Vipers for 3-2 win

The Warriors were outshot 44-23 Friday night, but it didn’t bother Johnny Derrick

A group of youth in Kelowna's Knox Mountain Park are suspected as having violated the B.C. Wildlife Act by harassing a pair of nesting bald eagles with a drone Friday, April 16, 2021. (Conservation Officer Service photo)
Nesting bald eagles harassed by youth-piloted drone in Kelowna

Conservation Officers are hoping to hear from anyone who witnessed the Knox Mountain incident

Ben Klick is a country music singer living in Kelowna, B.C. (Contributed)
Kelowna’s Ben Klick partnering with local country music stations for annual virtual music festival fundraiser

The third annual Music Fest MS will come in the form of a Youtube livestream on May 30

Photo: pixabay.com
Kelowna’s Kitsch Wines hosting Earth Day garbage pickup challenge

“Take a walk through your favourite greenway or park to pick up trash, get your wetsuit on and clean up the lake or get in a boat and fish for trash”

Flow Academy is located at 1511 Sutherland Avenue in Kelowna. (Michael Rodriguez - Capital News)
Black Press Media Weekly Roundup: Top headlines this week

Here’s a quick roundup of the stories that made headlines across the Okanagan, from April 11 to 16

This is what’s left of a truck that caught fire at Pyramid Provincial Park off Highway 97 near Summerland Saturday night. (Monique Tamminga Western News)
Photo Gallery: Truck gutted by fire at popular Okanagan park, trees saved

Just a metal shell of what once was a pick up truck is left at the scene

A syringe is loaded with COVID-19 vaccine at a vaccination clinic run by Vancouver Coastal Health, in Richmond, B.C., Saturday, April 10, 2021. THE CANADIAN PRESS/Jonathan Hayward
B.C. to open up COVID vaccine registration to all B.C. residents 18+ in April

Registration does not equate to being able to book an appointment

(Black Press file photo).
Multiple stabbings at Vancouver Island bush party

Three youths hospitalized after an assault in Comox

A GoFundMe page has been launched for a Vernon man whose BX orchard property home off Pleasant Valley Road near Stickle Road was totally destroyed in a fire Saturday, April 17. (Brendan Shykora - Morning Star)
Fundraising campaign launched for Okanagan man who lost home to fire

A GoFundMe page has been started by family; Vernon man taken to hospital with injuries from fire

Selina Robinson is shown in Coquitlam, B.C., on Friday November 17, 2017. British Columbia’s finance minister says her professional training as a family therapist helped her develop the New Democrat government’s first budget during the COVID-19 pandemic, which she will table Tuesday. THE CANADIAN PRESS/Darryl Dyck
B.C. finance minister to table historic pandemic-challenged deficit budget

Budget aims to take care of people during pandemic while preparing for post-COVID-19 recovery, Robinson said

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Lord Tweedsmuir’s Tremmel States-Jones jumps a player and the goal line to score a touchdown against the Kelowna Owls in 2019. The face of high school football, along with a majority of other high school sports, could significantly change if a new governance proposal is passed at the B.C. School Sports AGM May 1. (Malin Jordan)
Power struggle: New governance model proposed for B.C. high school sports

Most commissions are against the new model, but B.C. School Sports (BCSS) and its board is in favour

Armaan Dhaliwal hands a cheque for $500 to Shuswap Hospital Foundation president Angie Spencer as his proud grandparents Gordie and Nancy Dhaliwal watch on Friday, April 16. (Jim Elliot/Salmon Arm Observer)
Salmon Arm boy’s samosa sales benefit hospital foundation

Armaan Dhaliwal was able to give the Shuswap Hospital Foundation a $500 donation

Most Read