The appellants in the case argue BC should do more to provide francophone schooling in the province
The British Columbia Court of Appeal has declined to grant the province’s French language school board permission to file a 120-page factum when appealing a decision involving the educational rights of francophones, despite a massive trial record that includes 77,000 pages of exhibits and 11,000 pages of transcript.
Instead, the court ordered a 60-page allowance in a decision in The Conseil scolaire francophone de la Colombie-Britannique v. British Columbia on Monday, noting that it gave the school board a similar page allowance in a separate but related case that yielded one of the longest court decisions in the BC Supreme Court’s history.
The Conseil scolaire francophone de la Colombie‑Britannique, which BC established to provide publicly-funded francophone schooling in the province, sued the province and Vancouver’s school board in December 2020.
In its lawsuit, the Conseil alleged the defendants had failed to fulfill their obligations to create more Francophone schools across BC, despite a June 2020 decision by the Supreme Court of Canada. That high court decision – which stemmed from another lawsuit the Conseil had filed against BC years earlier – affirmed that s. 23 of the Canadian Charter of Rights and Freedoms cannot be interpreted too narrowly. S. 23 guarantees students’ right to attend school in either French or English, no matter where they’re located in Canada.
Last May, the BC Supreme Court issued a ruling in the December 2020 case, following a 117-day trial, siding with the Conseil on several issues. This included ordering the province to enact legislation that allows for the expropriation of private property so the Conseil can provide francophone schooling; ordering that certain BC school sites be transferred to the Conseil; and requiring the Vancouver school board to consider the importance of minority French language education – and not merely the interests of English language students – when the Conseil asks it to transfer school sites that are surplus to their needs or under-utilized.
However, the trial court also declined to have other school sites transferred to the Conseil or to order BC to approve funding for the construction of French-language schools in certain communities.
The Conseil told the BC Court of Appeal that it had 63 separate grounds for appealing the trial court’s May order, including those alleging that the trial court used the wrong legal standards, ordered inappropriate remedies, and conducted the trial incorrectly. The French language school board argued that the complexity and novelty of the issues it planned to raise in its appeal justified a 120-page factum, which is four times the usual page length allowed by the court.
The BC Court of Appeal acknowledged that the trial record in the case was “sizeable.” However, the appellate court also pointed out that the trial record in the Conseil’s earlier lawsuit against the province – the one that led to the Supreme Court of Canada’s 2020 decision – had a similarly-sized trial record. In that earlier case, the trial court had noted that its nearly 1,600-page decision was “one of the longest – if not the longest – in this court’s history.”
When that case eventually came before the BC Court of Appeal in 2018, the Conseil had only been given a 60-page allowance for its factum.
The BC Court of Appeal said on Monday that it was not “convinced that the appellant should be permitted four times the usual length, granting a page count for an appeal focused on remedies that is double the length of the factum that earlier sought to establish the rights at issue.”
The appellate court noted that allowing extra pages is an “exceptional remedy.” It also agreed with the province and school board that the Conseil’s appeal is distinct from other historical cases where longer factum page lengths were warranted.
Arthur Grant, a partner at Harris & Company who represents the Vancouver school board, told Canadian Lawyer he is pleased by the BC Court of Appeal’s decision and agreed that 60 pages is sufficient.
Counsel for the Conseil declined to comment on the decision.
A spokesperson for BC’s Ministry of Infrastructure, one of the provincial defendants in the case, said the province is reviewing the decision and looks forward to working with the Conseil to support francophone education throughout BC.
