1.3 French immersion programs in New Brunswick

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Small & Ryan v. New Brunswick (Minister of Education)56

In this case, the Court of Queenís Bench of New Brunswick was called upon to consider whether the language rights enshrined in the Charter ensure the protection of French immersion programs in the province of New Brunswick, as well as the applicability of the principles of natural justice and procedural fairness.

On March 14, 2008, the Minister of Education of New Brunswick announced the controversial decision to phase out the Early French Immersion (EFI) program for Anglophone elementary students beginning with Grade 1 in September 2008. The Ministerís decision followed a review of the French second-language programming for the province, the results of which were released to the public on February 27, 2008. When commissioners had been appointed in July 2007 to conduct the review, their terms of reference anticipated a response to their report by the government and the Minister of Education within two months, suggesting that the results of the review would eventually be the subject of public debate before the beginning of the upcoming school year. Also in July, the Minister himself had told the media that there would be time to "allow for a full debate." On February 29, 2008, the Friday before the March break school vacation, members of the public had been invited to submit their views and comments before any decisions were made by the government. However, the news release issued by the government inviting the public to comment made no mention of the Ministerís intention to eliminate the EFI program. Two weeks following the invitation to the public to take part in the debate, the Minister of Education decided to implement the commissionersí recommendations and cut the EFI program in its entirety.

The applicants, Anglophone parents of children registered to begin the EFI program in September 2008, challenged the Ministerís decision: first, arguing that the decision infringed their rights under sections 16 (Official Languages), 16.1 (English and French Linguistic Communities in New Brunswick) and 23 (Minority Language Educational Rights) of the Charter; and second, that the Ministerís decision was contrary to the common law principles of natural justice and procedural fairness.

A. The Charter challenge

With little or no analysis, the Court rejected the applicantsí Charter arguments. Citing the Supreme Court of Canadaís most recent pronouncements concerning section 23 of the Charter, that "it would be contrary to the purpose of the provision to equate immersion with minority language education,"57 McLellan J. found that EFI for Anglophones, the linguistic majority of the province of New Brunswick, is not protected by the minority-language education rights provision of the Charter. In regards to the applicantsí arguments under sections 16 and 16.1 of the Charter, he simply stated "I am not convinced that the general words regarding bilingualism and linguistic communities [...] provide any legal basis to challenge the decision of Minister of Education regarding Early French Immersion."58

B. The common law challenge

As parents of children registered to begin the EFI program in the upcoming school year, the applicants argued that they had legitimate expectations that the EFI program would not be cancelled before they had a reasonable opportunity to make representations.

In rendering his decision, McLellan J. highlighted the importance of fairness by public decision makers when affecting the rights, privileges and interests of individuals. Citing the Supreme Court of Canada decision in Baker,59 the Court reminded "that the Ďcircumstancesí affecting procedural fairness take into account the promises or regular practices of administrative decision makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights."60 [Emphasis in original]

McLellan J. concluded that the Ministerís decision to cut the EFI program was in contravention of his own representation that the decision process would "allow for a full debate," and that the applicant parents had a reasonable and legitimate expectation that the program would not be cut without a real opportunity for them to be heard by the Minister. Furthermore, the circumstances in which the public was invited to comment did not satisfy the requirements of the promised consultation. As such, McLellan J. found that the Ministerís decision was unfair and unreasonable, and remitted the matter back to the Minister for reconsideration "in accordance with the principles of fairness after an appropriate opportunity for interested citizens and organized groups to be heard."61

Following the Courtís decision and public consultations, the government announced modifications to the French immersion program on August 5, 2008.

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