1.2 The scope of the right to management and control in the Northwest Territories

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The following three rulings are part of a much broader dispute before the Supreme Court of the Northwest Territories52 in which the plaintiffs, including the Commission scolaire francophone des Territoires du Nord-Ouest, initiated legal proceedings on May 29, 2008, to compel the Northwest Territories government to considerably expand École Boréale in Hay River. According to the plaintiffs, the services currently available do not result in equal treatment of the school’s students when compared to what is available to students attending English-language schools. The extent and scope of the obligations imposed on the defendants by section 23 of the Charter is at the heart of the dispute.

Commission Scolaire Francophone, Territoires du Nord-Ouest et al v. Attorney General of the Northwest Territories53

Due to a lack of space and access to certain services at École Boréale in Hay River, the plaintiffs sought an order forcing the government of the Northwest Territories to take immediate measures to address the problems faced by the school. The motion was heard by the Court on July 9, 2008.

The school board’s admission policy allows the children of French-speaking immigrants, children of Francophone descent and other children who attend a French pre-kindergarten program to attend its schools, even if their parents are not rights holders under section 23. The government argued that the lack of space, if there is one, results from the fact that too many children of parents who are not rights holders under section 23 of the Charter attend the school, and that the school board has the responsibility of using the existing space for the children of rights holders. The school board argued that section 23 gives minority-language school boards the right to manage their own schools, which includes the right to determine who is admissible to their schools.

The Court found that the scope of the school board’s right to management and the extent of the government’s powers was a serious issue to be tried, and that irreparable harm would be suffered by the plaintiffs if their application was not granted. Thus, the Court gave reason to the school board, forcing the government to take interim measures, including the use of three classrooms in a nearby school, to address the problems faced by École Boréale before the beginning of the 2008–2009 school year.

Commission Scolaire Francophone, Territoires du Nord-Ouest et al v. Attorney General of the Northwest Territories (No. 2)54

On July 7, 2008, the Minister of Education of the Northwest Territories issued a directive limiting access to the two schools overseen by the school board to the children of parents who are rights holders under section 23. On August 21, 2008, the school board seized the Court again, this time seeking an order suspending the directive issued by the Minister of Education. The Court did not grant the order sought by the school board. It did however allow the school board to amend its original claim to include a challenge of the issued directive.

Commission Scolaire Francophone, Territoires du Nord-Ouest et al v. Attorney General of the Northwest Territories (No. 3)55

In this motion, also heard on August 21, 2008, the government of the Northwest Territories asked the Court to modify the original order compelling the government to take interim measures. The government claimed that it had been taken by surprise by the Court’s order, and submitted evidence demonstrating that it was not possible to liberate three classrooms, as was directed by the Court, without significantly disrupting the nearby school’s learning program and displacing a part of its student population. Despite this, the government argued that the Court should still favour a solution that used existing infrastructure, and suggested that several schools be used to provide the needed classrooms. For its part, the school board argued that it was not reasonable to force École Boréale to operate on three or four different campuses.

Convinced that the use of existing infrastructure was no longer an appropriate solution, the Court hesitantly modified the interim order to require the defendant to provide the needed space in a nearby highrise, unless another venue could be found more quickly and at a lesser cost. If those solutions became unavailable or inappropriate, the Court stated that the only remaining solution would be for the government to provide the school with portable classrooms, as expensive as that solution might be.

At the time of writing this report, the ongoing dispute between the school board and the government of the Northwest Territories regarding section 23 and the right to management and control has yet to be decided on the merits.



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