The Court found that section 73(2) was constitutional when “
properly interpreted.” It stated that the requirement set out in section 73(2) of the Charter of the French Language must involve a qualitative rather than a strict quantitative assessment of the child’s educational experience. The Court thus found that if a “
significant part” (although not necessarily the majority) of a child’s elementary or secondary education in Canada has been in English, the child is entitled to continue to receive instruction in that language. This is in accordance with section 23(2) of the Canadian Charter of Rights and Freedoms, whose purpose is to protect and preserve the minority-language community and to provide for continuity of language instruction.
A similar approach was taken by the Ontario Court of Appeal in Abbey v Essex County Board of Education, (1999) 42 O.R. (3rd) 481.