Essex County Roman Catholic Seperate School Board Re (1977), 17 O.R. (2d) 307 (H.C.J.)

  • Document:
  • Date: 2018

Re Essex County Roman Catholic Separate School Board and Porter et al.

16 O.R. (2d) 433

ONTARIO

ONTARIO

HIGH COURT OF JUSTICE

DIVISIONAL COURT

WEATHERSTON, RUTHERFORD AND STEELE, JJ.

17TH JUNE 1977.

 

 

Constitutional law — Legislative authority — Denominational schools — Separate school board dismissing teacher for contracting civil marriage — Board of Reference empowered by provincial legislation to reinstate teachers — Whether legislation valid — British North America Act, 1867, s. 93(1)

— Schools Administration Act, R.S.O. 1970, c. 424, s. 29(1).

 

Schools — Separate schools — Dismissal of teachers — School board dismissing teacher for contracting civil marriage

— Board of Reference empowered by provincial legislation to reinstate teachers — Whether legislation valid — British North America Act, 1867, s. 93(1) — Schools Administration Act, R.S.O. 1970, c. 424, s. 29(1).

 

Section 29(1) of the Schools Administration Act, R.S.O. 1970, c. 424 (now the Education Act, 1974 (Ont.), c. 109), gives power to a Board of Reference to direct the continuance of the contract of a teacher dismissed by a school board. By s. 93(1) of the British North America Act, 1867, a provincial Legislature may not affect prejudicially any right or privilege with respect to denominational schools. Two teachers were dismissed by a separate school board for contracting civil marriages. A Board of Reference ordered their contracts to be continued. On an application by the school board for judicial review, held, setting aside the decision of the Board of Reference, the provisions of the Schools Administration Act were ultra vires, since the right to dismiss for denominational reasons was “a right or privilege with respect to denominational schools” and the effect of the provision in the Schools Administration Act was to reduce it.

Per Steele, J., dissenting: There was nothing in the legislation to indicate that at the time of Confederation separate school trustees had any special legal rights with respect to their teachers. Consequently, the provincial legislation did not affect prejudicially any right protected by s. 93(1) of the British North America Act, 1867.

[Raymond v. School Trustees of Village of Cardinal (1887), 14 O.A.R.  562; Board of Trustees of Roman Catholic Separate Schools of Belleville v. Grainger et al. (1878), 25 Gr. 570; City of Winnipeg v. Barrett, [1892] A.C. 445; Ottawa Separate School Trustees v. Mackell (1916), 32 D.L.R. 1, [1917] A.C. 62; Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753, [1928] A.C. 363, [1928] 2 W.W.R. 641; affg [1927] S.C.R. 637, [1927] 4 D.L.R. 857; Board of Education for Moose Jaw School District No. 1 et al. v. A.-G. Sask. et al. (1973), 41 D.L.R. (3d) 732, [1974] 2 W.W.R. 27 [vard 57 D.L.R. (3d) 315, [1975] 6 W.W.R. 133], refd to]

APPLICATION for judicial review to set aside a decision of a Board of Reference under the Schools Administration Act.

 

G.  J. Smith, Q.C., for applicant.

William W. Markle, for respondents.

The relevant sections of the Schools Administration Act were as follows:

24(1) The dismissal of a teacher, or the termination of the contract of a teacher, by a board shall be by notice in writing, which shall state the reasons therefor, in accordance with the terms of the contract.

. . . . .

(3) Notwithstanding anything in this or any other Act, where a teacher is dismissed or the engagement of a teacher is terminated by the board or teacher, the teacher or board if not in agreement with the dismissal or termination may at any time within fifteen days after receiving the notice referred to in subsection 1 or 2, as the case may be, apply in writing by registered letter to the Minister for a Board of Reference, stating the disagreement.

. . . . .

28(1) The Board of Reference shall inquire into the matter in dispute and for such purpose the chairman has all the powers that may be conferred upon a commissioner under The Public Inquiries Act.

. . . . .

29(1) A Board of Reference shall direct the continuance of the contract or the discontinuance of the contract. [rep. & sub. 1972, c. 160, s. 4]

The form of contract prescribed by the Regulations, and which was entered into between the applicants and the respondents, contained the following paragraphs [Form 1]:

2.  This Agreement is subject to the Teacher’s continuing to hold qualifications in accordance with the Acts and regulations administered by the Minister.

3.  The Teacher agrees to be diligent and faithful in his duties during the period of his employment, and to perform such duties and teach such subjects as the Board may assign under the Acts and regulations administered by the Minister.

. . . . .

6. This Agreement may be terminated,

(a)    at any time by the mutual consent in writing of the Teacher and the Board; or

(b)    on the 31st day of December in any year of the Teacher’s employment by either party giving written notice to the other on or before the last preceding 30th day of November; or

(c)    on the 31st day of August in any year of the Teacher’s employment by either party giving written notice to the other on or before the last preceding 31st day of May.

. . . . .

9. This Agreement shall remain in force until terminated in accordance with any Act administered by the Minister or the regulations thereunder.

In witness whereof the Teacher has signed and the Board has affixed hereto its corporate seal attested by its proper officers in that behalf.

…….

(signature of Chairman of the Board)

…….

(signature of Secretary of the Board)

…….

(signature of Teacher)

The Act, therefore, recognizes the right of a school board to dismiss a teacher for cause, notwithstanding provisions in the contract for its termination on notice. In either case, the Board of Reference has power to direct the continuance of the contract. In this case, the Board of Reference did not recognize the distinction between “dismissal” and “termination of the contract” but treated the terms as synonymous. It said:

In these circumstances, the Board of Reference finds that a binding contract existed between the parties and that the Board could not unilaterally terminate the contract other than in accordance with the terms of the contract. This the Board did not do.

Accordingly, this Board of Reference reports to the minister and directs the continuance of the contract.

A dismissal is not something that occurs “in accordance with the terms of the contract”. It is either a repudiation of the contract of employment by the employer, or an acceptance by the employer of some breach of contract by the employee which is sufficient cause for dismissal.

On this application, the school board takes the position that its right to dismiss for denominational reasons, whether or not those reasons were a sufficient cause in law, is a right that existed at the time of Confederation, and is preserved by s. 93(1) of the British North America Act, 1867:

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:

It was provided by s. 7 of “An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools”, 1863 (Can.), c. 5, that the trustees of separate schools should 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”; and by s. 9 that they should “perform the same duties and be subject to the same penalties as Trustees of Common Schools; and teachers of Separate Schools shall be liable to the same obligations and penalties as teachers of Common Schools”.

Section 26 provided that the Roman Catholic Separate Schools should be subject to inspection by the Chief Superintendent of Education, and be subject also to regulations imposed from time to time by the Council of Public Instruction for Upper Canada.

By the Upper Canada Common School Act, 1859 (U.C.), c. 64, it was provided:

79. It shall be the duty of the Board of School Trustees of every City, Town and Village respectively, and they are hereby authorized:

. . . . .

(8) To determine … (b) the Teacher or Teachers to be employed; the terms of employing them; the amount of their remuneration, and the duties which they are to perform …

. . . . .

84. In case of any difference between Trustees and a Teacher in regard to his salary, the sum due to him, or any other matter in dispute between them, the same shall be submitted to arbitration, in which case:

. . . . .

(3) … such three Arbitrators or a majority of them shall finally decide the matter.

. . . . .

86.  The said Arbitrators, or any two of them, may issue their warrant to any person named therein, to enforce the collection of any moneys by them awarded to be paid, and the person named in such warrant shall have the same power and

authority to enforce the collection of the moneys mentioned in the said warrant, with all reasonable costs, by seizure and sale of the property of the party or corporation against whom the same has issued, as any Bailiff of a Division Court has in enforcing a judgment and execution issued out of such Court.

87.  No action shall be brought in any Court of Law or Equity, to enforce any claim or demand between Trustees and Teachers which can be referred to arbitration as aforesaid.

It is quite clear that the trustees of separate schools had the power to dismiss for cause: see Raymond v. School Trustees of Village of Cardinal (1887), 14 O.A.R. 562. And, even if the provisions for arbitration applied to separate schools, the arbitrators had power only to make money awards, not to order the reinstatement of a teacher who had been wrongfully dismissed. The trustees, therefore, had the right to dismiss for denominational reasons, and, if sufficient cause could not be established, they were liable only to the usual damages in lieu of notice. It is argued that this right of dismissal, for denominational reasons, is a right or privilege which was preserved by s. 93 of the British North America Act, 1867 and which has been prejudicially affected by the powers granted to a Board of Reference.

It was not intended by s. 93(1) of the British North America Act, 1867 to preclude all legislation as to denominational schools: Board of Trustees of Roman Catholic Separate Schools of Belleville v. Grainger et al. (1878), 25 Gr. 570. The difficulty in all cases has been to determine whether the legislation prejudicially affected a right or privilege which was protected by the subsection. It was decided by the Privy Council in City of Winnipeg v. Barrett, [1892] A.C. 445, that it must be a legal right or privilege, and not some practice, instruction, or privilege of a voluntary character which at the date of the passing of the Act might be in operation. Moreover, it had to be a right or privilege attached to denominational teaching; and the language in which education was to be given was not such a right or privilege: Ottawa Separate School Trustees v. Mackell (1916), 32 D.L.R. 1, [1917] A.C. 62. On the same day, the Privy Council held that those same trustees represented a section of the class of persons who were within the protection of s. 93, and a provincial statute which empowered the Minister of Education to appoint a Commission, and to vest in it all or any of the powers vested by statute in the board of trustees, necessarily operated to their prejudice, and was therefore ultra vires.

In Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753, [1928] A.C. 363, [1928] 2 W.W.R. 641, the plaintiffs unsuccessfully attacked legislation which altered the basis of distribution of legislative grants which had existed in 1867. Lord Haldane said, at pp. 769-71 D.L.R., pp. 385-7 A.C.:

The provincial legislature is supreme in matters of education, excepting so far as s. 93 of the B.N.A. Act restricts its authority. Subsection 1 preserves as they stood any rights and the privileges given in relation to denominational schools by law in 1867. The question, therefore, is whether the Province could then as the law stood so control the courses of study and the general range and quality of the text books used, as to enable the educational authorities of the Province to prescribe the gradation of the separate school and the stages in which instruction should be given in it. Examination of the statutes and of the history of the subject have satisfied their Lordships that, while a settlement was come to in 1863 with both Roman Catholics and Protestants, a settlement which in so far as it remained unaltered at Confederation, must be strictly maintained, the Province showed in the wording of the successive earlier statutes the intention to preserve for the rest the power to mould the educational system in the interests of the public at large, as distinguished from any section of it, however important. This consideration does not relieve a Court of Law from the obligation to confine itself strictly to the meaning of the words which define the legal rights, but it must be borne in mind in the interpretation of the language relating to regulation.

The examination of the series of statutes relating to education from 1807 onwards has led their Lordships to the view that the Province did provide for the regulation, in the full sense, of its common or public schools. It is not necessary to repeat the citations which have already been made. It is sufficient, for showing what regulation means, to refer to s. 6 of the Act of 1816, (c. 36) which delegated to the trustees of the common schools the power to make rules and regulations for their good government, the condition of the schools to be reported to the Board of Education, with the branches taught, the state of education, the number of the scholars, and things that might benefit the schools directed by the trustees. The Board was to have power to superintend these common schools and to make reports to the Governor, which should be laid before the legislature. This policy was maintained through the Acts which followed. In 1841 a superintendent of education for the Province was appointed to visit the schools and apportion the monies voted. Common school commissioners were set up for the various districts, with instructions to regulate for each school the course of study to be followed in it, and to establish general rules for the conduct of the school, to be communicated to the teachers. There were also to be appointed by the Governor boards of examiners (half to be Protestant and half to be Roman Catholic) to examine persons recommended as teachers, and to regulate for each school separately the course of study to be followed, the books to be used, and the general rules for the conduct of the schools. The Act of 1841, (c. 18) enabled, indeed, dissentient inhabitants to call for separate common schools and to appoint their own trustees, but these schools were to be subject to the “visitation, conditions, rules and obligations” and liabilities of ordinary common schools. This provision was repeated in the Act relating to common schools of 1843 (s. 56), and in the Act of 1846 (s. 33). In the Act of 1850 it is expressly provided (s. 19) that the separate schools are to be under the same regulations as to the persons for whom the school is permitted to be established as common schools generally, and by s. 9 of the Separate Schools Act of 1863 it is provided that the trustees of separate schools are to perform the same duties and be subject to the same penalties as the trustees of common schools. Section 26 subjects these schools to such inspection as the chief superintendent may direct, and also to such regulation as the council of public instruction may impose.

It is this principle and purpose which appear to their Lordships to be dominant through the statutes, and the language used in the sections just quoted has brought this Committee to the conclusion that the power of regulation must be interpreted in a wider sense than that given to it in the judgment of the Chief Justice of Canada. They are not at one with him in thinking that separate school trustees could give secondary education in their schools otherwise than by the permission, express or implied, of the council of public instruction. The separate school was only a special form of common school, and the council could in the case of each determine the courses to be pursued and the extent of the education to be imparted. A full power of regulation, such as the purpose of the statutes quoted renders appropriate, is what suggests itself, and this is the natural outcome of a scheme which never appears to have really varied. Such expressions as “organization,” “government,” “discipline,” and “classification,” do, in their Lordships’ interpretation of them, imply a real control of the separate schools.

It is, I think, clear from these authorities that the right or privilege preserved by s. 93 must be a right or privilege which, if lost, would impair the integrity of the separate schools. For counsel to argue that boards of trustees of

separate schools had the power to dismiss without cause, and to pay damages in lieu of notice, and that that is such a right or privilege, is to state the matter too broadly. The Legislature surely has the power to give to teachers in separate schools the same security of tenure as teachers in public schools enjoy. But it seems to me that there may be cases where a teacher in a separate school, although not guilty of conduct sufficient in law to justify dismissal for cause, may, by his conduct or teaching, make his continued employment on the teaching staff intolerable. In the Tiny case, [1927] S.C.R 637 at p. 656, [1927] 4 D.L.R. 857 at p. 860, Anglin, C.J.C., said:

The idea that the denominational school is to be differentiated from the common schools purely by the character of its religious exercise or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training.

This difference in concept was recognized by MacPherson, J., in Board of Education for Moose Jaw School District No. 1 et al. v.    A.-G. Sask. et al. (1973), 41 D.L.R. (3d) 732, [1974] 2 W.W.R. 27 [varied 57 D.L.R. (3d) 315, [1975] 6 W.W.R. 133]. He held to be invalid a provision for binding arbitration in the Teacher Collective Bargaining Act, 1973 (Sask.), c. 112, because it involved one of the rights and privileges of a separate school board elsewhere preserved to it, namely, the regulation of the selection of teachers, the administrative and instructional duties of teachers, or the nature or quality of an instructional programme, including religious instruction.

Section 29 of the Schools Administration Act, now s. 238(1) of the Education Act, 1974, gives to a Board of Reference the power only to direct a continuance or a discontinuance of a contract. If there is not sufficient cause for dismissal, it must direct a continuance of the contract, notwithstanding that the teaching or conduct of the teacher is incompatible with his continued employment as a teacher in his school. This, I think is an infringement on a right preserved by s. 93, and it must therefore be held that it is ultra vires the Legislature to empower a Board of Reference to direct the continuance of a teacher’s contract in cases when the teacher has been dismissed for reasons which have a denominational validity and value to justify termination of his employment, even though not of sufficient cause in law. The direction of the Board of Reference is therefore set aside, but this order is without prejudice to any rights the respondents may have at law.

The applicants are entitled to their costs. RUTHERFORD, J., concurs with WEATHERSTON, J.

At the time of the reference to the Board of Reference, the applicable legislation was the Schools Administration Act, as amended, but it was agreed by all counsel that the wording of the Education Act, 1974, is identical and for ease of reference I will refer to the latter statute.

The respondents were both employed by the applicant under the terms of a standard form of permanent teacher’s contract. This type of contract is provided for under the provisions of s.

224(2) of the Education Act, 1974 and is to be in the form prescribed by the Regulations [R.R.O. 1970, Reg. 208]. The parties agree that the contracts in question were authorized by the Act and the Regulations. Each contract provides for the employment of the teacher and spells out the term of employment, the remuneration and that the teacher is to be qualified in accordance with the Acts and Regulations. In addition, the contract provides as follows [Form 1]:

3. The Teacher agrees to be diligent and faithful in his duties during the period of his employment, and to perform such duties and teach such subjects as the Board may assign under the acts and regulations administered by the Minister.

. . . . .

6. This Agreement may be terminated,

(a)    at any time by the mutual consent in writing of the Teacher and the Board; or

(b)    on the 31st day of December in any year of the Teacher’s employment by either party giving written notice to the other on or before the last preceding 30th day of November; or

(c)    on the 31st day of August in any year of the Teacher’s employment by either party giving written notice to the other on or before the last preceding 31st day of May.

. . . . .

9. This Agreement shall remain in force until terminated in accordance with any Act administered by the Minister or the regulations thereunder.

Each of the respondents entered into civil marriages and identical resolutions were passed by the applicant, one of which is as follows:

Moved by Messrs. Godo and Seguin THAT

WHEREAS a Roman Catholic Separate School Board has the right under the British North America Act to select, employ or dismiss otherwise qualified teachers in accordance with the denominational requirements of such school, and

WHEREAS Mrs. Susan Porter, by entering into a civil marriage has publicly and seriously infringed upon such requirements,

THEREFORE BE IT RESOLVED THAT in virtue of the said right of The Essex County Roman Catholic Separate School Board, the said Mrs. Susan Porter be hereby declared disqualified for employment as a teacher by this separate school board within its jurisdiction and consequently dismissed.

CARRIED

Notice of these resolutions were immediately communicated to the respondents and their pay was discontinued on that date. Further, the respondents were advised that their employment had been terminated. On its face, this action by the applicant is clearly not in conformity with the provisions of para. 6 of the Permanent Teacher’s Contract, above referred to.

Reference also should be made to s. 233 of the Education Act, 1974 as follows:

233(1) The dismissal of a teacher, or the termination of the contract of a teacher, by a board shall be by notice in writing, which shall state the reasons therefor, in accordance with the terms of the contract.

(2)  Where a teacher is employed by a board, the termination of the contract by the teacher shall be by notice in writing in accordance with the terms of the contract.

(3)  Where a teacher is dismissed or the contract of a teacher is terminated by the board or the teacher, the teacher or board if not in agreement with the dismissal or termination may at any time within twenty-one days after receiving the notice referred to in subsection 1 or 2, as the case may be, apply in writing by registered letter to the Minister for a Board of Reference, stating the disagreement.

Reference is also made to s. 228 of the Education Act, 1974 as follows:

228. Notwithstanding the other provisions of this Part and notwithstanding anything in the contract between the board and the teacher, where a permanent or probationary teacher is employed by a board and a matter arises that in the opinion of the Minister adversely affects the welfare of the school in which the teacher is employed,

(a)    the board or the teacher may, with the consent of the Minister, give the other party thirty days written notice of termination, and the contract is terminated at the expiration of thirty days from the date the notice is given; or

(b)    the board may, with the consent of the Minister, give the teacher written notice of immediate termination together with one-tenth of the teacher’s yearly salary in addition to the amount to which he would otherwise be entitled, and the contract thereupon is terminated.

Applications were made by the respondents for a board of reference and the appropriate Board of Reference was established under the provisions of the Act. The authority of the Board of Reference is set out in s. 238 of the Education Act, 1974, which is as follows:

238(1) A Board of Reference shall direct the continuance of the contract or the discontinuance of the contract.

(2) The chairman of a Board of Reference shall, within seven days after,

(a)    the application for the Board of Reference is withdrawn; or

(b)    the matter in dispute has been settled by the parties to the Board of Reference; or

(c)    the completion of the hearing and the receipt of any written submissions required by him, report to the Minister and the parties the disposition of the application.

The Board of Reference held a hearing at which the applicant disputed the jurisdiction of the Board on the grounds that the applicant had powers reserved to it under the provisions of s. 93 of the British North America Act, 1867, that went beyond the terms of the written contract and that the Board should not proceed. The Board did proceed stating that it had no power to determine a question of law and therefore was proceeding under the provisions of the Education Act, 1974. As a result, it directed the continuance of the contracts.

The applicant takes no serious dispute to this decision in the event that this Court should find that the Board had jurisdiction. The objection is that the Board was without jurisdiction because of the special rights and privileges of Roman Catholic Separate Schools preserved under s. 93 of the British North America Act, 1867. It is convenient to set out the whole of s. 93 of that Act as follows:

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:

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

(3)  Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education:

(4)  In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

Section 93(1) clearly refers to rights or privileges with respect to denominational schools which any class of persons have by law. I am of the opinion that at the time of Union Roman Catholic Separate Schools were denominational schools and the trustees of such schools were a class of persons and I am also of the opinion that the school teachers of such schools were also a class of persons: Ottawa Separate School Trustees v. Mackell (1916), 32 D.L.R. 1, [1917] A.C. 62. This leaves, therefore, the question of what were the rights or privileges that the school board and the teachers had at the time of union and whether any such rights are prejudicially affected.

In Ontario or Upper Canada, at the time of union, the applicable legislation was the Upper Canada Common School Act, 1859 (U.C.), c. 64, and “An Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools”, 1863 (Can.) (2nd Sess.), c. 5. The Separate Schools Act makes numerous references to the Upper Canada Common School Act and it is therefore more appropriate to deal with the powers under the Upper Canada Common School Act and then look to whatever special rights or privileges there might be in law to the separate schools.

Section 79 of the Upper Canada Common School Act gave power to boards of school trustees to determine the teacher or teachers to be employed, the terms of their employment, the amount of their remuneration and the duties which they are to perform. Section 82 provided that it was the duty of every teacher of a common school to teach diligently and faithfully all the branches required to be taught in the school according to the terms of his engagement with the trustees and according to the provisions of the Act. Section 84 provided that if there was any difference between the trustees and a teacher in regard to a salary, the sum due to him, or any other matter in dispute between them, the same should be submitted to arbitration.

Arbitration provisions were set out providing for a three-man board of arbitration and that a majority thereof should finally decide the matter.

The Act further provided for the appointment of a Council of Public Instruction by the Government whose duties were to make such Regulations from time to time as it deemed expedient for the organization, government and discipline of common schools, for the classification of schools and teachers and for school libraries throughout Upper Canada.

At that time, there was provision under “An Act respecting Separate Schools”, 1859 (Can.), c. 65, for the establishment of separate schools in any community, either for Roman Catholics or for Protestants or for coloured people. Under the provisions of s. 6 and other sections, it was contemplated that no Protestant separate school should be allowed except where the teacher of the common school was a Roman Catholic. There was no converse provision that there could not be a Roman Catholic separate school unless the teacher of the common school was a Protestant. Under the Separate Schools Act of 1859 it was specifically provided that the trustees of the Catholic separate schools had the same power in respect to separate schools as the trustees of common schools had under the provisions of the Upper Canada Common School Act. They also had power under s. 28 to grant certificates of qualification to teachers of separate schools under their management.

All of the provisions of the Separate Schools Act of 1859 relating to Roman Catholic separate schools were repealed by an Act, passed in 1863, to restore to Roman Catholics in Upper Canada certain rights with respect to separate schools, which Act is referred to as the Separate Schools Act of 1863. The preamble to this Act is as follows:

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: Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada enacts as follows:

Under s. 7 of this Act the trustees of separate schools were granted all the powers in respect of separate schools that the trustees of common schools had under the provisions of the Upper Canada Common School Act. Section 9 provided that the teachers were liable to the same obligations and penalties as teachers of common schools. Section 13 provided that the teachers of separate schools were subject to the same examinations and received their certificates of qualifications in the same manner as the common school teachers generally. Under s. 26, the Roman Catholic separate schools were made subject to such inspection as may be directed from time to time by the chief superintendent of education and were subject also to such Regulations as may be imposed from time to time by the Council of Public Instruction for Upper Canada. It is noted that this is the same council that is referred to under the Upper Canada Common School Act.

Nowhere can I find anything which specifically reserves any special rights to the trustees of a separate school with respect to their teachers’ employment over and above whatever rights there were to the trustees of a common school.

In Ontario, to be a right or privilege that is protected under s. 93(1) of the British North America Act, 1867, it must be one that a class of persons had “by law” at the time of union. In City of Winnipeg v. Barrett, [1892] A.C. 445 at pp. 453 and 454-5, Lord Macnaghten, in considering s. 22 of the Manitoba Act, 1870, which provided for the protection of rights or privileges held by a class of persons “by law or practice” stated as follows:

What then was the state of things when Manitoba was admitted to the Union? On this point there is no dispute. It is agreed that there was no law or regulation or ordinance with respect to education in force at the time. There were, therefore, no rights or privileges with respect to denominational schools existing by law. The practice which prevailed in Manitoba before the Union is also a matter on which all parties are agreed. The statement on the subject by Archbishop Tache, the Roman Catholic Archbishop of St. Boniface, who has given evidence in Barrett’s case, has been accepted as accurate and complete.

. . . . .

Now, if the state of things which the archbishop describes as existing before the Union had been a system established by law, what would have been the rights and privileges of the Roman Catholics with respect to denominational schools? They would have had by law the right to establish schools at their own expense, to maintain their schools by school fees or voluntary contributions, and to conduct them in accordance with their own religious tenets. Every other religious body, which was engaged in a similar work at the time of the Union, would have had precisely the same right with respect to their denominational schools. Possibly this right, if it had been defined or recognised by positive enactment, might have had attached to it as a necessary or appropriate incident the right of exemption from any contribution under any circumstances to schools of a different denomination. But, in their Lordships’ opinion, it would be going much too far to hold that the establishment of a national system of education upon an unsectarian basis is so inconsistent with the right to set up and maintain denominational schools that the two things cannot exist together, or that the existence of the one necessarily implies or involves immunity from taxation for the purpose of the other. It has been objected that if the rights of Roman Catholics, and of other religious bodies, in respect of their denominational schools, are to be so strictly measured and limited by the practice which actually prevailed at the time of the Union, they will be reduced to the condition of a “natural right” which “does not want any legislation to protect it.” Such a right, it was said, cannot be called a privilege in any proper sense of the word. If that be so the only result is that the protection which the Act purports to extend to rights and privileges existing “by practice” has no more operation than the protection which it purports to afford to rights and privileges existing “by law.” It can hardly be contended that, in order to give a substantial operation and effect to a saving clause expressed in general terms, it is incumbent upon the Court to discover privileges which are not apparent of themselves, or to ascribe distinctive and peculiar features to rights which seem to be of such a common type as not to deserve special notice or require special protection.

Even if there had been a practice by the trustees of Roman Catholic separate schools at the time of union to dismiss teachers that entered into civil marriages (and it may be that there was limited or no authority for civil marriages at that time) or married outside the Roman Catholic Church, I am of the opinion that there was no such right or privilege in law. In this respect there may well be a difference between the law of Manitoba and the law of Ontario. In Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753, [1928] A.C. 363, [1928] 2 W.W.R. 641, s. 93 of the British

North America Act, 1867 was further considered in respect to the control retained by Ontario over Roman Catholic separate schools. At p. 769 D.L.R., pp. 385-6 A.C., Viscount Haldane stated as follows:

The provincial legislature is supreme in matters of education, excepting so far as s. 93 of the B.N.A. Act restricts its authority. Subsection 1 preserves as they stood any rights and the privileges given in relation to denominational schools by law in 1867. The question, therefore, is whether the Province could then as the law stood so control the courses of study and the general range and quality of the text books used, as to enable the educational authorities of the Province to prescribe the gradation of the separate school and the stages in which instruction should be given in it. Examination of the statutes and of the history of the subject have satisfied their Lordships that, while a settlement was come to in 1863 with both Roman Catholics and Protestants, a settlement which in so far as it remained unaltered at Confederation, must be strictly maintained, the Province showed in the wording of the successive earlier statutes the intention to preserve for the rest the power to mould the educational system in the interests of the public at large, as distinguished from any section of it, however important. This consideration does not relieve a Court of Law from the obligation to confine itself strictly to the meaning of the words which define the legal rights, but it must be borne in mind in the interpretation of the language relating to regulation.

Further, at pp. 770-1 D.L.R., pp. 387-8 A.C., he stated as follows:

It is this principle and purpose which appear to their Lordships to be dominant through the statutes, and the language used in the sections just quoted has brought this Committee to the conclusion that the power of regulation must be interpreted in a wider sense than that given to it in the judgment of the Chief Justice of Canada. They are not at one with him in thinking that separate school trustees could give secondary education in their schools otherwise than by the permission, express or implied, of the council of public instruction. The separate school was only a special form of common school, and the council could in the case of each determine the courses to be pursued and the extent of the education to be imparted. A full power of regulation, such as the purpose of the statutes quoted renders appropriate, is what suggests itself, and this is the natural outcome of a scheme which never appears to have really varied. Such expressions as “organization,” “government,” “discipline,” and “classification,” do, in their Lordships’ interpretation of them, imply a real control of the separate schools. The duty of the Judicial Committee is simply to interpret the words used. It may be that even if the contention of the appellants as to the scope of s. 93(1) of the B.N.A. Act is shut out, there will remain to them a remedy of a wholly different kind in the shape of an appeal under s-s. 3 to the Governor-General in Council in an administrative capacity. That question does not arise in this appeal and is in no way prejudiced by the conclusion to which their Lordships have come.

On behalf of the applicant, Mr. Smith argued that there are two sets of employment standards that apply between the trustees of a separate school and a teacher of such school; one set being the same as those applicable to a public school and governed by the Education Act, 1974, including the right to appoint an arbitrator, the other being a separate set of standards relating to denominational matters. If this is so, then the arbitrator may well have been correct in holding that under the authority appointing him he had no power to deal with anything but the contract and that being so he could do nothing else than direct the continuance of the contract. If this is so, there is no right in this Court to judicially review the matter or to say that the arbitrator acted outside his jurisdiction, because the facts that he dealt with are clearly under the Education Act, 1974, its Regulations and the contract. Continuing on this theory, the fact that the teacher was told that she was dismissed, was not assigned further duties and was not paid from the date of the resolution, would be a separate item for which the teacher could sue for wages. I do not believe that Mr. Smith’s proposition can stand. There are not two sets of standards, because I am of the opinion that there were no rights or privileges in law applicable to this application that were reserved to the trustees of separate schools under s. 93 of the British North America Act, 1867. The trustees of the separate schools had the same rights and privileges in law with respect to their teachers as the trustees of the common schools and no more.

The right to dismiss for any matter that adversely affects the welfare of the school is dealt with under s. 228 of the Education Act, 1974, and is subject to the favourable opinion of the Minister. It is not a matter reserved exclusively to trustees of separate schools.

I am therefore of the opinion that the provisions of ss. 233 and 238 of the Education Act, 1974, are applicable to the issues involved and that they are not contrary to s. 93 of the British North America Act, 1867. I am of the opinion that the Referee acted within his legislative authority. The application should be dismissed with costs.

 

Application granted.