The Courts of Nova Scotia, Doucet-Boudreau v. Nova Scotia (Attorney General), 2001 NSCA 104

Date: 20010626

Docket: CA 168059

NOVA SCOTIA COURT OF APPEAL

[Cite as: Doucet-Boudreau v. Nova Scotia (Attorney General), 2001 NSCA 104]

Freeman, Chipman and Flinn, JJ.A.

BETWEEN:

ATTORNEY GENERAL OF NOVA SCOTIA, representing

Her Majesty the Queen in Right of the Province of Nova Scotia

Appellant

- and -

GLENDA DOUCET-BOUDREAU, ALICE BOUDREAU, JOCELYN BOURBEAU, BERNADETTE CORMIER- MARCHAND, YOLANDE LEVERT and CYRILLE LeBLANC, in their name and in the name of all Nova Scotia parents who are entitled to the right, under Section 23 of the Canadian Charter of Rights and Freedoms, to have their children educated in the language of the minority, namely the French language, in publicly funded French language school facilities; and LA FEDERATION DES PARENTS ACADIENS DE LA NOUVELLE ECOSSE INC.

Respondents

- and -

LE CONSEIL SCOLAIRE ACADIEN PROVINCIAL

Respondent

- and -

COMMISSION NATIONALE DES PARENTS FRANCOPHONES

Intervenor

REASONS FOR JUDGMENT

Counsel: Alexander M. Cameron for the appellant

Joel Fichaud, Q.C. and Melanie S. Comstock for the respondent parents

Noella M. Martin and Alanna Robinson for the respondent Le Conceil Scolaire Acadien Provincial

Paul S. Rouleau and Subrata Bhattachariee for the intervenor

Appeal Heard: May 11, 2001

Judgment Delivered: June 26, 2001

Revised Decision: The text of the original judgement has been corrected incorporating the text of the erratum (released June 26, 2001).

THE COURT: The appeal is allowed per reasons for judgment of Flinn, J.A.; Chipman, J.A. concurring; and, Freeman, J.A. dissenting by separate reasons.

FLINN, J.A.:

[1] The issue which gives rise to this appeal is whether the trial judge, having made a final determination of the issue between the parties; namely, having determined that the respondents’ Charter rights were breached, having ordered a remedy for that breach, and having made an order as to costs, can extend his jurisdiction, and remain seized of the case, in order to be able to determine that there will be compliance with his order. Following his decision, and continuing after his order, the trial judge - without there being any fresh proceeding before him requesting relief - directed a government official, from time to time, to file affidavits setting forth the status of his department’s efforts to comply with the trial judge’s decision and order, to appear before the trial judge and be subjected to cross-examination on those affidavits, all so that the trial judge could make a determination that the government department in question was complying with his decision and order.

[2] I will, firstly, identify the parties to this appeal. The appellant the Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia is appearing on behalf of the provincial Department of Education. The individual respondents have been determined to be “entitled parents” under s. 23 of the Canadian Charter of Rights and Freedoms (Charter); that is, they are entitled to French language school instruction for their children. The respondent La Federation des Parents Acadiens de la Nouvelle Ecosse, Inc. is a Nova Scotia organization of entitled parents. I will refer to all these respondents as simply the respondents. The respondent Le Conseil Scolaire Acadien Provincial is a School Board created under the Nova Scotia Education Act to provide a French first language education program. I will refer to this respondent as CSAP. Commission Nationale des Parents Franophones has been given leave to intervene in the hearing of this appeal. It is a non-profit national organization composed of representatives of the minority French language parent associations in Canada where English is the dominant language. Its mandate is to support and represent its member associations in matters relating to the promotion and protection of French language education throughout Canada. I will refer to this party as the intervenor.

[3] Following the hearing of an application of the respondents in Supreme Court Chambers, Justice LeBlanc:

1. decided that the Department of Education of the Province of Nova Scotia had a constitutional duty to the respondents, under s. 23 of the Charter, to provide French homogenous programs in French homogeneous facilities in five regions of the Province;

2. decided that the Department of Education was in breach of that duty;

3. pursuant to the provisions of s. 24(1) of the Charter, remedied the Charter breach by ordering the Province to use its best efforts to provide such facilities by respective dates set out in his order.

[4] From my review of this matter, it is apparent that the reasons why the trial judge decided to impose a “best efforts” standard on the appellant were because the appellant was not denying its constitutional obligation to the respondents; and, further, that some effort had been made by the Department of Education to comply with that constitutional obligation, although not sufficient effort according to the trial judge.

[5] The trial judge may also have had in mind the cautionary words of Chief Justice Lamer, writing for the Supreme Court in Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839 at p. 851-852:

Another principle that is very important to bear in mind in the resolution of the questions is the fact that language rights are of a fundamentally different nature than the other rights protected by the Charter. Beetz J., speaking for a majority of the Court, made the following observation in Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549 (at p. 578):

Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle. Some of them, such as the one expressed in s. 7 of the Charter, are so broad as to call for frequent judicial determination.

Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter, remain nonetheless founded on political compromise.

This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause [page852] before they decide to act as instruments of change with respect to language rights. This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But, in my opinion, the courts should approach them with more restraint than they would in construing legal rights.

(Emphasis Added.)

[6] I wish to make it clear, at the outset of these reasons, what is not in issue in this appeal. The fact that the respondents have a Charter right to have their children educated in French, and that such right has been outstanding for some time, is not an issue in this appeal. Further, the s. 24 remedy which the trial judge ordered, requiring the Province to use its best efforts to provide French-speaking programs and facilities by respective dates set out in his order, is also not an issue in this appeal. The parties are, obviously, content with the manner in which the trial judge disposed of the merits of the case. None of the parties has appealed the merits of the trial judge’s decision.

[7] What is at issue in this appeal is the trial judge’s extension of his jurisdiction beyond the conclusion of proceedings. It arises in the following manner. At the conclusion of his decision in this matter, (in which the trial judge dealt with all of the issues between the parties) the trial judge said the following:

[245] The Applicants have requested that I should maintain jurisdiction. I agree to do so. I am scheduling a further appearance for Thursday, July 27, 2000 at 1:30 p.m., and at that time the Respondents will report on the status of their efforts.

(Emphasis added.)

[8] The order which the trial judge signed, in addition to setting out the s. 24 remedy which he ordered, provides:

7. The Court shall retain jurisdiction to hear reports from the Respondents respecting the Respondents’ compliance with this Order. The Respondents shall report to this Court on March 23, 2001 at 9:30 a.m., or on such other date as the Court may determine.

(Emphasis added.)

[9] The reference in the trial judge’s decision and order to “respondents” is to the Department of Education for the Province of Nova Scotia and CSAP.

[10] In other words, what is at issue in this appeal is not the s. 24(1) remedy which the trial judge ordered. Rather, it is the post-trial process which he initiated (at the request of counsel for the respondents) in respect of the enforcement of that remedy.

[11] In the original application which the respondents filed in this matter, the following is included in the relief which was requested:

This Court maintain its jurisdiction during any time period which could be allowed to the respondents to comply with any and all orders of this Court, so as to allow the applicants to return before this Court in the case of non-compliance by one or the other respondent in regard to any such orders (or any part of such orders).

[12] This claim is redundant. The court, meaning the Supreme Court of Nova Scotia, has the jurisdiction, in any event, to hear such an application by either of the parties. If the Province did not comply with the trial judge’s order, the respondents could make application to the Supreme Court of Nova Scotia, supported by appropriate affidavit evidence, for an order respecting such non-compliance. Likewise, if the Province determined that it was not possible to meet the deadlines imposed upon it by the trial judge’s order, and needed some additional time, it could make an application to the Supreme Court of Nova Scotia, supported by appropriate affidavit evidence, for such relief. There is no need for the Supreme Court of Nova Scotia to retain jurisdiction to hear such applications. Whether the trial judge could have retained this particular jurisdiction, himself, so that only he would hear such applications, is a question which I do not have to resolve here. That is not the basis upon which the trial judge purported to retain jurisdiction in this case.

[13] Counsel for the respondents, obviously, broadened his position in this regard before the hearing concluded. In his brief, filed at the conclusion of the evidence, counsel submitted that the court (meaning the trial judge) should maintain jurisdiction “to review compliance with its order,” as opposed to his initial position of retention of jurisdiction to permit a party to return to court in the event of non-compliance with the court’s order. Further, that “The court in its Order would state that it maintains jurisdiction, to avoid becoming functus officio.” The trial judge agreed, and his decision and order provide accordingly.

[14] It is instructive to review, briefly, what took place at the subsequent “reporting sessions” before the trial judge. I refer to these subsequent appearances before the trial judge as “reporting sessions” because that is what they were. They were not fresh proceedings instituted by the application of any party seeking relief. Three such sessions took place between the date of the trial judge’s decision (June 15, 2000) and the date of the order giving effect to that decision (December 14, 2000); namely, on July 27, 2000; August 9, 2000 and October 23, 2000. A fourth session was held on March 23, 2001. At least one further reporting session is to be held on August 10, 2001.

[15] Prior to each reporting session the trial judge directed the Province to file an affidavit from the appropriate official at the Department of Education setting out the department’s progress in complying with the trial judge’s decision. The trial judge permitted the respondents and CSAP to cross-examine the government official on his affidavits. He also permitted the respondents and CSAP to adduce evidence, including rebuttal evidence. All of this was done without any application seeking particular relief, and, therefore, there was nothing to define the parameters of the reporting session. Further, all this was done over the objections of counsel for the appellant claiming that the trial judge had no jurisdiction to conduct these reporting sessions, that the trial judge was functus officio, that there was no fresh proceeding before him, and that the trial judge was powerless to make any order without such fresh proceedings. The trial judge rejected the objections of counsel for the appellant. It was only at the most recent reporting session (March 23, 2001) that the trial judge appears to concede that he is powerless to make any order with respect to any matter arising out of these reporting sessions.

[16] From my review of these post-hearing reporting sessions it appeared to me as if the trial judge was acting as a “referee” over issues that were raised concerning, among other things, the type of construction of these school facilities, whether they would be new school facilities or the renovation of existing buildings, submissions with respect to other school facilities which were not part of the original application, and extending to such minute detail as, for example, the type of ventilation system which would be included in the school facilities. In conducting these reporting sessions, the trial judge was acting more in the capacity of an administrator than as a judge.

[17] Counsel for the respondents defends these reporting sessions, and the order of the trial judge, which, he says:

. . . retains the mildest possible jurisdiction - the suasive value of requiring the Province to file an Affidavit and subject its witnesses to cross-examination.

[18] I do not agree that directing the appellant’s official to file affidavits, and allowing the official to be cross-examined on those affidavits, is properly classified as retaining the “mildest possible jurisdiction.” In any event, counsel’s position sidesteps the issue. Quite apart from the fact that the trial judge might have retained only the “mildest possible jurisdiction”; quite apart from the “value” of the reporting sessions; and quite apart from the intentions of the trial judge (which I have no doubt were well meaning) the issue in this appeal is whether the trial judge can extend his jurisdiction beyond the conclusion of proceedings in order to conduct these post-hearing reporting sessions.

[19] Here, the trial judge had made a final determination of the issue between the parties. He had defined the respondents’ Charter rights. He had ordered a remedy under s. 24(1) of the Charter, and he had made an order with respect to costs. His order was not an interim order. He did not reserve judgment on any issue between the parties. However, he took it upon himself to retain jurisdiction in order to be able to determine that there would be compliance with his order. In the trial judge’s words, at one of the later reporting sessions, and in response to the challenge of counsel for the appellant as to the trial judge’s jurisdiction to continue to be seized with the case:

However, my direction was that the Respondents report on whether or not they were utilizing their best efforts and complying with the directive contained in my decision. This meant, fairly and unequivocally, that I would have the opportunity to determine if the Respondents were indeed making every or best efforts to

comply.

(Emphasis Added)

20) The Province challenges the jurisdiction of the trial judge to remain seized of this case as he did. The respondents support the trial judge’s authority to remain seized of the case on the basis of the wide-ranging authority which he has under s. 24(1) of the Charter in crafting a remedy for a Charter breach. If the respondents’ position was to be endorsed, it would have implications for any Charter remedy which a trial judge might order under s. 24(1), not only remedies related to the s. 23 rights of the respondents.

[19] I agree with the submission of the appellant on this appeal. Having decided the issue between the parties (leaving no issue in reserve) and having issued his order, including provision for costs, the trial judge has no jurisdiction to remain seized of the case - direct the parties to appear before him, indefinitely - in order to be able to determine that the government department in question is complying with his decision and order. The fact that the trial judge retained this jurisdiction in connection with the enforcement of a remedy which he had ordered under s. 24(1) of the Charter has no effect on this conclusion.

[20] The following are my reasons for coming to this conclusion.

[21] Firstly, there is no dispute here that the principle of functus officio is well entrenched in Canadian law. Further, s. 33 of the Judicature Act fixes original jurisdiction in the Supreme Court of Nova Scotia to “hear, determine and dispose of” a proceeding. Section 34 of the Judicature Act limits that jurisdiction by requiring reserve judgments to be rendered “not later than six months from the date of reserving judgment.” Appellate jurisdiction is vested in the court of appeal by s. 38 of the Judicature Act. There is no provision in the Judicature Act which authorizes a trial judge who has decided the matter between the parties, and has issued an order with respect thereto, to retain any further jurisdiction in the case in order to be able to determine that there will be compliance with his order, and to that end to direct a party to file affidavits with him setting forth the status of that party’s efforts to comply with his decision and order.

[22] The effect of the common law principle of functus officio and the provisions of the Judicature Act make it clear that the trial judge, having rendered his decision on the issue that was before him, and having issued an order giving effect to that decision, has no further jurisdiction with respect to the parties, save whatever jurisdiction he may have, as a judge of the Supreme Court of Nova Scotia, to hear a further application by one or more of the parties with respect to a matter that might arise as a result of his decision and order.

[23] The respondents and the intervenor take the position on this appeal - as did the trial judge - that the trial judge’s authority for retaining jurisdiction comes from his wide ranging authority to craft a remedy under s. 24(1) of the Charter.

[24] Counsel for CSAP takes the position, which was not advanced by counsel for the respondents or counsel for the intervenor, that the trial judge has not yet made a final decision on the issues between the parties. As a result, there can be no concern with respect to the trial judge retaining jurisdiction until that final decision has been made.

[25] I will deal firstly with the position of counsel for CSAP. I reject the submission that the trial judge has not reached a final decision on the issues before him. In my view, nothing could be more clear. There is nothing further for the trial judge to decide on the issue that was before him. The respondents made an application for a declaration as to their s. 23 Charter rights, and for a remedy to enforce those rights. The trial judge rendered a decision dealing with the issues that were put before him. He made an order, including an order for costs. He did not reserve judgment on any issue between the parties. Further, the trial judge himself, when dealing with the submission of counsel for the appellant, (at the first reporting session) that the trial judge had no jurisdiction to conduct the reporting sessions, clearly decided that his authority for retaining jurisdiction was on the basis of his broad powers to order a remedy under s. 24(1) of the Charter. The trial judge did not, at any time during these reporting sessions, indicate that there was any issue between the parties remaining to be decided, nor did he give any indication that his decision and order was anything but final.

[26] I also reject the position advanced by counsel for the respondents and counsel for the intervenor on this appeal; namely that the principle of functus officio does not apply in this case because the trial judge has broad powers to craft a remedy under s. 24(1) of the Charter; and as counsel for the respondents puts it “the Charter trumps the Judicature Act.” I would not agree that the provisions of the Judicature Act of Nova Scotia are ignored simply because this case involves a Charter remedy.

[27] In R. v. Mills, [1986] 1 S.C.R. 863 the Supreme Court decided that a court presiding over a preliminary inquiry was not a court of competent jurisdiction within the meaning of the Charter. Writing for the majority, Justice McIntyre recognized that the jurisdiction of the various courts in Canada is fixed by the legislatures of the various Provinces and by the Parliament of Canada. They create the jurisdictional boundaries in order to restrain the courts by confining their actions to their allotted spheres. There is an absence of jurisdictional provisions and directions in the Charter, and there is no need for special procedures and rules to give the Charter full and adequate effect. Justice McIntyre’s full remarks in this regard are as follows at p. 952-53:

To begin with, it must be recognized that the jurisdiction of the various courts of Canada is fixed by the Legislatures of the various provinces and by the Parliament of Canada. It is not for the judges to assign jurisdiction in respect of any matters to one court or another. This is wholly beyond the judicial reach. In fact, the jurisdictional boundaries created by Parliament and the Legislatures are for the very purpose of restraining the courts by confining their actions to their allotted spheres. In s. 24(1) of the Charter the right has been given, upon the alleged infringement or denial of a Charter right, to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Charter has made no attempt to fix or limit the jurisdiction to hear such applications. It merely gives a right to apply in a court which has jurisdiction. It will be seen as well that it prescribes no remedy but leaves it to the court to find what is appropriate and just in the circumstances.

The questions then arise as to which of the courts are courts of competent jurisdiction within the meaning of s. 24(1) of the Charter and what is the nature of the remedy or remedies which may be given. In attacking these problems, that of jurisdiction and that of remedy, the courts are embarking on a novel exercise. There is little, if any, assistance to be found in decided cases. The task of the court will simply be to fit the application into the existing jurisdictional scheme of the courts in an effort to provide a direct remedy, as contemplated in s. 24(1). It is important, in my view, that this be borne in mind. The absence of jurisdictional provisions and directions in the Charter confirms the view that the Charter was not intended to turn the Canadian legal system upside down. What is required rather is that it be fitted into the existing scheme of Canadian legal procedure. There is no need for special procedures and rules to give it full and adequate effect.

(Emphasis Added)

[28] Counsel for the respondents and counsel for the intervenor cite cases which they submit support the authority of the trial judge to retain the jurisdiction which he did in this case in order to be able to determine that the government department in question was complying with his decision and order. I will review the cases which were cited to the court.

[29] In Re Manitoba Language Rights, [1985] 1 S.C.R. 721 the Supreme Court of Canada did not, as counsel for the respondents suggests, retain jurisdiction “to review translation into French.” In its decision ordering the Manitoba legislature to provide a French language version of its statutes, the Supreme Court indicated that it did not have sufficient evidence before it to establish a minimum time line within which the translations were to be done. The court agreed to establish a minimum period within which the translations were to be done at a special hearing upon the application of either the Attorney General of Canada or the Attorney General of Manitoba.

[30] In the case of La Societe des Acadiens du Nouveau-Brunswick Inc. v. Minority Language School Board No. 50 (1983), 51 N.B.R. (2d) 219 two Francophone organizations objected to the Minority Language School Board’s practice with respect to the provision of separate French and English school systems, and brought an action for a declaration that the practice was illegal, and for an injunction to restrain it. The decision of Chief Justice Richard, in refraining from making a decision on the issue of the injunction for a period of six months, clearly demonstrates the difference between that case and the case before this court. Chief Justice Richard said:

. . . the court will refrain from deciding this issue for a period of six months. The beginning of the school year in August-September 1983 will undoubtedly determine the need to consider such a measure. If indeed it does become necessary, the court, not having decided the issue, will be available to hear the parties and their counsel on this matter, upon Notice of Motion to this effect

within the time prescribed by the Rules of Court.

(Emphasis Added.)

In the matter before this court the trial judge left no issue undecided. Further, the post-hearing reporting sessions were not as the result of any new application.

[31] In the case of Marchand v. Simcoe County Board of Education et al. (1986), 29 D.L.R. (4^th) 596 the plaintiff brought an action against the defendant Board of Education and the Crown, on behalf of himself and others, in which he sought a declaration that he and those whom he represents have a right under s. 23 of the Charter to have the children receive secondary school instruction in the French language in French language educational facilities. The court granted a declaration in favour of the plaintiffs setting forth their rights. Further, the court granted a declaration that the Province was under a duty to insure that such French language secondary school facilities were provided, including provision of adequate funding for that purpose. And further the court issued a mandatory order requiring the defendant Board to provide the facilities. There is no reference in the court’s judgment to retention of jurisdiction by the trial judge. Approximately one and a half years later, the School Board made an application to the Ontario High Court of Justice, which was heard by the same judge who conducted the previous proceedings (See Marchand v. Simcoe County Board of Education et al. (No. 2) (1987), 44 D.L.R. (4^th) 171). The Board requested an order that the French language education facilities which it proposed were in compliance with the mandatory order issued by the court one year and a half previously. The court agreed. The Marchand case has no bearing on the matter presently before this court.

[32] Counsel for the respondents also cites the case of Lavoie v. Nova Scotia (Attorney-General) (1988), 47 D.L. R. (4^th) 586. In his factum counsel states:

Justice Hallett (p.593) ordered the defendants to “report” to the court on their efforts to comply with the court’s directions under s. 23 of the Charter.

That statement by counsel for the respondents is, technically, accurate. However, in the context of citing this case as authority for the jurisdiction which the trial judge purported to exercise in the matter before this court, it is misleading. In Lavoie Justice Hallett was considering an application for an order under s. 23 of the Charter requiring the defendant School Board to provide instruction in a facility for French language education. In Lavoie, Justice Hallett decided:

However, the evidence is inconclusive on the question of whether the numbers warrant the provision of a minority language educational facility in which to teach the children of Canadian citizens in the district, who are entitled to minority language instruction for their children.

And further:

Without knowing the numbers who will actually enrol in such a facility, the court cannot determine, not only whether the facility is warranted, but also determine the degree of control over the programme that the minority linguistic group should be entitled; that could range from the complete control exercised by a board to the mere power to make recommendations to a board that is exercised by the traditional trustees of a public school.

[33] Rather than simply dismissing the application, Justice Hallett decided to order the Board to hold a registration in order to determine how many children would enroll in such a program at such a facility and to report the results of that registration to the court on or before April 30, 1988. No decision on the merits of the application had been made by Justice Hallett at the time he made the order in question. Lavoie has no application here.

[34] Counsel for the respondents also cites the case of British Columbia (Association des parents francophones) v. British Columbia (1996), 139 D.L.R. (4^th) at 356. Counsel for respondents says in his factum “the court retained jurisdiction to consider whether the Province complied with the court’s order under s. 23.” The court did no such thing. In this case the Province of British Columbia had published the Francophone Education Regulations pursuant to the provincial Schools Act of British Columbia. The regulation purported to create a Francophone Education Authority with exclusive jurisdiction to provide s. 23 education to eligible children in the Vancouver Lower Mainland and Greater Victoria Regions. On an application by the plaintiff association and Francophone parents, the court declared the regulation to be ultra vires. However, the court decided that the declaration of ultra vires should take effect upon the enactment of legislation by the Legislative Assembly of British Columbia giving effect to s. 23 of the Charter. The only reference in the court’s decision to retention of jurisdiction, is in the final paragraph of the judgment in which the trial judge states:

While I express confidence that matters will be resolved at an early date, I will retain jurisdiction in this matter should difficulties arise in that regard.

[35] There is no record of the parties to this application ever appearing before the trial judge on that application, for any purpose. Two years later, in 1998, after the Province had enacted legislation pursuant to the previous decision of the British Columbia Supreme Court various parents and two groups representing the educational interest of Francophones in the Province started a second action for a declaration that the new legislation did not meet the Province’s obligations under s. 23 of the Charter. The trial judge who heard the second action was the same trial judge who heard the initial matter in 1996. He denied the application for declarations with respect to three matters, and ordered a declaration with respect to a fourth matter, namely that a proper dispute resolution process be put in place by the Province. In the second paragraph of his judgment (1999), 167 D.L.R. (4^th) 534 at p. 537 the trial judge states:

This is the second action brought by the plaintiffs on the issue of s. 23 Francophone education in British Columbia.

Clearly, counsel is wrong when he submits that on the first action the trial judge retained jurisdiction “to consider whether the Province complied with the court’s order under s. 23.”

[36] In summary, not one of the cases cited by the respondents’ counsel deals with an issue which is even remotely similar to the issue before this court; and not one of those cases provides any authority for the trial judge to have proceeded as he did following his decision. In the final analysis, no authority has been presented to this court which supports the post-hearing reporting sessions conducted by the trial judge.

[37] Therefore, while it is true that courts of competent jurisdiction have broad and wide ranging powers to fashion appropriate remedies under s. 24(1) of the Charter - and have even been encouraged to be creative in so doing - the Charter does not extend the jurisdiction of these courts from a procedural point of view (see Mills supra). Ordering a remedy is one thing. Providing for its enforcement is quite another thing.

[38] I have found no authority in this country which permits a trial judge to extend his or her jurisdiction beyond the conclusion of proceedings as was done in this case.

[39] As Justice McIntyre said in Mills:

There is no need for special procedures and rules to give [the Charter] its full and adequate effect.

[40] In Re Blackwoods Beverages Ltd. v. The Queen (1984), 15 D.L.R. (4^th) 231 (leave to appeal to the S.C.C. refused), Monnin, C.J.M. spoke for the majority of the Manitoba Court of Appeal, in saying this at p. 237:

I open my remarks with the statement that the Charter was not intended to disturb what is and was a well-organized legal system nor to cause its paralysis. The Charter is the supreme law of the country, it must be applied and given the most liberal and free interpretation but it must do so within the existing trial system. It creates new rights and these rights must have immediate and full effect. But the ordinary trial procedure of information, preliminary hearing, committal, trial and appeals at various levels of appellate jurisdiction must not be disturbed. On the contrary, that hierarchy must be respected for the proper, efficient and speedy administration of justice. Otherwise, we will have nothing but a series of jumping jack-in-the-box effects, of up and down from trial level to appellate level with no specific and exact procedure to follow.

[41] There is one further point. I am loathe to open to the door, even slightly, to American jurisprudence on the enforcement of mandatory injunctions. The experience in the United States, of “hands on” judicial intervention into the administrative and legislative branches of government, has found little favour in this country.

[42] In a pre-Charter address to the Law Society of Upper Canada, 1981, Justice Estey, then of the Supreme Court of Canada, referring to this American jurisprudence, said that it “leaves lawyers breathless.” He said further:

This line of remedy is wholly foreign to us, so far, and I would suggest that no amount of prodding by our law schools, professors, and commentators will bring this kind of litigation through the doors of our court-rooms.

See The Law of Remedies - an Overview, Law Society of Upper Canada, Special Lectures, 1981, Justice W.Z. Estey at p. 18-19.

[43] In 1990, Justice McLachlin, as she then was, in her Weir Memorial Lecture (The Charter: A New Role for the Judiciary, 29 Alta. L.Rev. 540) said the following concerning the American experience in this regard at p. 553:

The verdict on the results of judicial administration, is, to put it at its highest, mixed, suggesting it is not an alternative lightly to be embraced in this country.

[44] Justice McLachlin then referred to the problems created in the United States as a result of judicial intervention in the enforcement of court orders. She proceeded to review why it is unlikely that in this country such problems would be encountered. She said at p. 553:

The question is whether in Canada we can avoid these pitfalls. It is my view that we can. We have in Canada the beginnings of a tradition of cooperation instead of conflict, which, if we can follow it, promises a more harmonious relationship between the judiciary and other branches of government than that which has historically prevailed in the United States.

[45] As to the factors which make “the beginnings of a tradition of cooperation” in this country, instead of conflict, Justice McLachlin refers to two things at p. 554 and 555:

Judicial intervention may also be seen as more legitimate in Canada since it was Parliament and the Legislatures themselves which granted the Court its powers by virtue of ss. 52. 24(1) and some of the rights provisions. Unlike the situation in the United States where the courts “took” the power. Canadian courts were granted the power by the Legislatures. Legislatures in Canada can hardly profess to be surprised when courts perform the very functions which they themselves have conferred on them.

. . .

The second point is that the political/judicial climate in Canada - the way the legislative and judicial branches view each other - may be different in Canada than in the United States. While the American model reveals a pattern of conflict and a tug-of-war battle for control between the legislative, executive and judicial branches, Canadian history reveals a tradition of judicial restraint and judicial/legislative co-operation.

And further:

Canadian judges have traditionally exercised judicial restraint and normally answer only the question directly before them. Broad sweeping directives have not been part of our judicial history. This is not likely to change because of the enactment of the Charter.

[46] Justice McLachlin goes on to demonstrate that “this type of cooperation has continued under the Charter;” and illustrates at p. 558:

. . . how the Court and the Legislature, each acting within the bounds of its proper constitutional responsibilities and each accepting its different constitutional responsibility, can efficaciously resolve a difficult issue.

[47] Justice McLachlin’s conclusion is as follows at p. 558 and 559:

It is too soon to postulate that Canadian Legislatures as a matter of constitutional convention will always respond to judicial decisions striking down legislation by moving promptly to correct the deficiency. But the record to date augurs well.

And further:

There can be no doubt that the Charter poses new and unprecedented problems for the courts, not only in the area of judicial decision-making, but in fashioning remedies which will at once be effective and respectful of the powers of other branches of government. We can follow the route of confrontation, which has so often prevailed in the United States. Or we can continue down the road of mutual deference and cooperation between the judiciary and the legislatures upon which we seem to have embarked, however tentatively. As for me, my hope lies with the latter.

[48] Justice McLachlin’s conclusion is particularly appropriate in this case. We do not have a history in this country (and certainly not in this Province), since the enactment of the Charter, of occasions when the administrative or legislative branches of government have refused to comply with court ordered remedies under the Charter. Courts, therefore, may, and should, assume that government will comply with Charter remedies which the courts order. The continuous post-trial intervention by the trial judge, in this case, into the area of the administrative branch of government is both unnecessary and unwarranted. It is unnecessary for two reasons:

1) There is no evidence that government would not comply with the trial judge’s decision and order; nor is there any complaint by the respondents that government is not so complying; and

2) If government did not comply with the trial judge’s decision and order, there exists a procedure whereby the respondents may make an application to court to enforce compliance.

[49] The intrusion is unwarranted both because it is unnecessary and because it is the very kind of intervention that could lead to an impairment of the harmonious relations between the judicial and other branches of government which we presently enjoy in this country, and to which Justice McLachlin made reference.

[50] For these reasons this court should not endorse the enforcement process undertaken by the trial judge in this case.

[51] I would, therefore, allow this appeal. I would order that § 245 of the trial judge’s decision entitled “Retaining Jurisdiction” is of no force and effect. I would strike out § 7 from the operative paragraphs of the trial judge’s order, as well as any subsequent directives of the trial judge directing the parties to appear before him pursuant to § 7 of his order.

[52] The respondents recovered their costs of the hearing of this matter before the trial judge on a solicitor and client basis. No costs were awarded to CSAP.

[53] The appellant has requested its costs of this appeal but is not requesting those costs on a solicitor and client basis. The intervenor has not requested, nor is it entitled to, costs. Under all of these circumstances, I would order the respondents to pay to the appellant its costs of this appeal which I would fix at

$3,000.00 plus disbursements.

Flinn, J.A.

Concurred in:

Chipman, J.A.

FREEMAN, J.A. (Dissenting):

[54] This appeal is from an order of the Supreme Court of Nova Scotia directing the Nova Scotia Department of Education and Le Conseil Scolaire Acadien Provincial to provide homogenous French programs and homogenous facilities at the secondary school level out of public funds in Cheticamp, Ile Madame, Clare, Argyle and Kingston/Greenwood.

[55] The only issue is whether the trial judge was justified in retaining continuing control over implementation of his order, which was granted pursuant to s. 23 the Canadian Charter of Rights and Freedoms.

[56] After a series of hearings, Justice Arthur LeBlanc determined that the respondents, representative individual parents and their representative body, La Federation des Parents Acadiens de la Nouvelle Ecosse, Inc., met the criteria of s. 23 and were entitled to have their children educated in homogenous French programs and/or homogenous French facilities.

[57] Justice LeBlanc ordered that the appellant, the Attorney General of Nova Scotia, and the respondent, Le Conseil Scolaire Acadien Provincial, use their best efforts in complying with his order. The Province, acting through the Department of Education, provides school facilities and the Conseil, the School Board established to provide education in French in Nova Scotia, is responsible for the programs. Justice LeBlanc’s order provided for the following:

1. In Kingston/Greenwood, the entitled parents under Section 23 have a right to a homogenous French program from grades Primary to 12 and the entitled parents have a right to a homogenous French facility for grades Primary to 12 by September 2000.

2. In Cheticamp, the entitled parents under Section 23 have a right to a homogenous French secondary program in a homogenous French facility by September 2000.

3. In Ile Madame - Arichat (Petit de Grat), the Respondent CSAP shall use its best efforts to provide a homogenous French program for grades 9 through 12 by September 2000 and the Respondent Department of Education shall use its best efforts (a) to provide a homogenous French facility (on an interim basis) for grades 9 through 12 by September 2000 and (b) to provide a permanent homogenous French facility by January 2001.

4. In Argyle, the Respondent CSAP shall use its best efforts to provide a homogenous French program for grades Primary through 12 by September 2000 and the Respondent Department of Education shall provide a homogenous French facility for grades Primary through 12 by September 2001.

5. In Clare, the Respondent CSAP shall provide a homogenous French program for grades Primary through 12 by September 2000 and the Respondent Department of Education shall take immediate steps to provide homogenous French facilities for grades Primary through 12 by September 2001.

6. The Respondents shall use their best efforts to comply with this Order.

[58] Section 23 of the Charter guarantees such programs and facilities as legal rights of qualifying minority language parents where, as here, they are warranted by the number of students to be served. (See Mahe v. Alberta, [1990] 1 S.C.R. 342.) Paragraphs 1 to 6 inclusive of the order were not appealed, nor were the factual findings that the Acadien and Francophone parents represented by the individual parents and the Federation were entitled to the rights which Justice LeBlanc pronounced.

[59] Only § 7 providing for retention of jurisdiction and imposing a duty to report have been appealed. Justice LeBlanc claimed authority for this provision under s. 24(1) of the Charter, which provides:

Anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[60] The reference to “the court” appears to have been interpreted by Justice LeBlanc, and the parties, as a reference to himself rather than to the Supreme Court of Nova Scotia, which as the court of first instance, and undeniably a court of competent jurisdiction, did not require a special reservation of jurisdiction. It was included for the sensible reason that it would facilitate implementation of the order if the parties returned before Justice LeBlanc, who was thoroughly conversant with the issues, rather than another judge who would have to be brought up to speed. This would expedite implementation of the order in a variety of ways, not least of which being provision of a means of mediating disputes inevitable in carrying out the complex requirements of the order.

[61] The appellant states the issue as follows:

1. Did the learned trial judge err in purporting to “retain jurisdiction” over proceedings that had concluded?

[62] The appellant submitted that in creating remedies pursuant to s. 24(1) the trial judge was not authorized to make orders enlarging his jurisdiction, which came to an end when proceedings were concluded by a final order. Both sides relied on passages from Mills v. R. (1986), 29 D.L.R. (4^th) 161 which remains the leading case on the interpretation of s. 24(1). The appellant cited the judgment of McIntyre, J. at pp.171-172:

To begin with, it must be recognized that the jurisdiction of the various courts of Canada is fixed by the Legislatures of the various provinces and by the Parliament of Canada. It is not for the judges to assign jurisdiction in respect of any matters to one court or another. This is wholly beyond the judicial reach. In fact, the jurisdictional boundaries created by Parliament and the Legislatures are for the very purpose of restraining the courts by confining their actions to their allotted spheres. In s. 24(1) of the Charter the right has been given, upon the alleged infringement or denial of a Charter right, to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The Charter has made no attempt to fix or limit the jurisdiction to hear such applications. It merely gives a right to apply in a court which has jurisdiction. It will be seen as well that it prescribes no remedy but leaves it to the court to find what is appropriate and just in the circumstances.

The questions then arise as to which of the courts are courts of competent jurisdiction within the meaning of s. 24(1) of the Charter and what is the nature of the remedy or remedies which may be given. In attacking these problems, that of jurisdiction and that of remedy, the courts are embarking on a novel exercise. There is little, if any, assistance to be found in decided cases. The task of the court will simply be to fit the application into the existing jurisdictional scheme of the courts in an effort to provide a direct remedy, as contemplated in s. 24(1). It is important, in my view, that this be borne in mind. The absence of jurisdictional provisions and directions in the Charter confirms the view that the Charter was not intended to turn the Canadian legal system upside down. What is required rather is that it be fitted into the existing scheme of Canadian legal procedure. There is no need for special procedures and rules to give it full and adequate effect.

[63] Counsel for the respondent parents pointed out that Mills turned on the finding that a preliminary inquiry judge in a criminal matter was not a court of competent jurisdiction. In the present case the Supreme Court of Nova was accepted without challenge as a court of competent jurisdiction. These respondents then quoted from p. 181 of Justice McIntyre’s decision in Mills:

What remedies are available when an application under s. 24(1) of the Charter succeeds? Section 24(1) again is silent on the question. It merely provides that the appellant may obtain such remedy as the court considers “appropriate and just in the circumstances.” It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion. No court may say, for example, that a stay of proceedings will always be appropriate in a given type of case. Although there will be cases where a trial judge may well conclude that a stay would be the appropriate remedy, the circumstances will be infinitely variable from case to case and the remedy will vary with the circumstances.

(Emphasis Added)

[64] The appellant’s argument appears to consist of two parts: 1) There is no jurisdiction to retain jurisdiction; and 2) Even if there is jurisdiction, retaining jurisdiction should be avoided as an undesirable practice.

[65] The first branch is based on the common law concept of functus officio, under which a court cannot reopen a final decision. The appellant quotes Sopinka, J. in Chandler v. Alberta Association of Archietcts (1989), 62 D.L.R. (4^th) 577 (S.C.C.) at p. 595:

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in Re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division.

[66] The judgment of Martland, J. in Grillas v. Minister of Manpower and Immigration (1971), 23 D.L.R. (3d) 1 S.C.C. at p. 10 was to similar effect.

[67] The appellant argues that:

The division of jurisdiction between courts of first instance and appellate courts that underlies these decisions, is found in Nova Scotia’s Judicature Act. Section 33 of that statute fixes original jurisdiction in the Supreme Court to “hear, determine and dispose of” proceedings, and s. 34 limits that jurisdiction by requiring reserved judgments to be rendered “not later than six months from the day of reserving judgment.” Appellate jurisdiction is vested in the Court of Appeal by s. 38.

Accordingly, it seems quite clear that absent constitutional considerations, the trial judge had no authority to “retain jurisdiction” of the matter before him. He was functus. When he rendered his judgment, his jurisdiction was exhausted. He could not rehear the matter, in whole or in part. He could not continue hearings in respect of the subject matter of the litigation, or matters relevant to it or arising out of it. By virtue of the Judicature Act, his jurisdiction was at an end, and it was not within the trial judge’s power to extend it.

[68] The appellant’s argument that the trial judge was functus officio turns on its submission that his decision was a final judgment that concluded the proceedings. That is by no means clear. There are two elements to the uncontested portion of the judgment, a declaration of the s. 23 minority language rights defined to fit the specifics of the Nova Scotia communities, and a gently-phrased mandatory injunction requiring the best efforts of the Province and the Conseil to give effect to those rights. This creative blending of declaratory and injunctive relief with a means of mediation appears to me to be of the very essence of the kind of remedy courts are encouraged to seek pursuant to s. 24(1) to give life to Charter rights. The mandatory injunction element suggests a requirement for a degree of continuing supervision, and the judgment cannot be said to be final, nor the judge functus, until that requirement has been fulfilled. Courts have traditionally avoided granting mandatory injunctions not for lack of jurisdiction, but for policy reasons related to the onerous duties they involve. In my view Justice LeBlanc was entitled to keep his judgment from becoming final, and to remain seized with jurisdiction, by the simple expedient of declaring that he was doing so. If this imparted qualities of an interim order to the preceding provisions, it would not be remarkable. While in my view Justice LeBlanc’s retention of jurisdiction does not involve employing s. 24(1) to create jurisdiction that would not have existed but for the Charter, such jurisdiction would be rarely invoked outside the Charter context.

[69] This point is reinforced in a citation quoted by the appellant: Sharpe in Injunctions and Specific Performance, Looseleaf (Aurora: Canada Law Book, 1992):

It is often said that where the obligation of the defendant requires performance of an ongoing or complex nature, the court will not grant an injunction, thereby undertaking the task of supervision.

The difficulty of supervision and the court’s reluctance to make an order which will require further judicial direction or intervention is a familiar theme, especially in mandatory injunction cases. (p. 1-10).

[70] Having satisfied myself that the trial judge could retain jurisdiction without resort to the Charter, I do not find it necessary to adopt the respondents’ answer to this branch of the appellant’s argument, that the Charter, which by s. 52(1) is “the supreme law of Canada”, trumps the Judicature Act. I agree with the respondents that the issue is not whether the trial judge had the power to rule as he did, but whether retaining jurisdiction to hear reports was appropriate in all the circumstances.

[71] The appellant goes on to cite from various sources in the literature and jurisprudence comments urging judicial restraint in accepting ongoing supervisory roles. The appellant states:

Clearly, a party subject to a mandatory order may be compelled by the beneficiary of the order to return to court if the beneficiary finds compliance with the order to be wanting. In a sense, this could be characterized as the court exercising a “supervisory jurisdiction”. But in reality it is no different in principle than the court ensuring compliance with any of the orders it may make; a party aggrieved by non-compliance with an order may apply to court for its enforcement.

The very same might be said of the remedial authority vested in the courts under s. 24(1) of the Charter. If courts under s. 24(1) can issue mandatory orders, such as the requirement in this case to “use best efforts” to make facilities available, then aggrieved persons may make appropriate application to ensure compliance with such an order.

[72] An application back to a court to enforce an order, however, is a fresh proceeding deriving fresh jurisdiction from the application and possibly, but not necessarily, before a different judge. In the present case Justice LeBlanc, whose thorough judgment discloses a deep appreciation of the issues and the legal principles involved, obviously held the view that having the parties report to himself personally was part of the remedy he considered appropriate and just in the circumstances. In the innovative manner encouraged by s. 24(1) the impugned provision of Justice LeBlanc’s order attaches a mechanism for mediation to the declaratory and injunctive relief, as noted above. It appears to be a pragmatic approach to getting the job done expeditiously. Requiring fresh applications by the parties each time one of the respondents appeared not to be using its best efforts could have dragged matters out interminably.

[73] One of the points made most forcibly in the evidence was that assimilation of French minority students in the English-speaking majority was proceeding at an alarming rate in Nova Scotia. Delay could actually have deprived parents of their s. 23 rights, if as a result of assimilation the number of students available for the homogenous programs and facilities fell below the “numbers warranted” provision in s. 23 discussed in Mahe.

[74] Justice LeBlanc traced French language education in Nova Scotia from colonial days, noting that it was severely set back for nearly 100 years when a system of non-denominational English language schools was established by law in 1864. In a 1991 report the Office of the Commissioner of Official Languages stated that in 1986, four years after enactment of the Charter, only 3,655 minority language students were being instructed in French. This represented only 34.8 per cent of the enrolment eligible under s. 23 of the Charter. Until 1997 s. 23 requirements were not included in planning new school construction. Amendments were made to the Education Act in 1996 to improve French language instruction. The Conseil was established as an elected province-wide School Board with 16 members, the schools named in the order were designated to provide first language instruction in French. The Conseil introduced a transition plan by which schools offering mixed French and English programs would be offering homogenous programs by September, 2000.

[75] While the evidence showed both the respondents, the Department of Education and the Conseil, were well-disposed toward providing the minority language rights Justice LeBlanc defined in his order, progress was lagging and indeed, had been unsatisfactory, during the entire 15 year period between the introduction of the Charter in 1982 and 1997. Both respondents could point to problems and reasons for their delays: the Province was still undergoing financial difficulties and had been in crisis during part of the period, and the Conseil was dealing with divided opinions in some of the communities as to the desirability of s. 23 schools and programs. The application before Justice LeBlanc resulted from the frustration of Acadien and Francophone parents watching the assimilation of their children in a manner contrary to the core Canadian values expressed in the Charter.

[76] It would appear that the appellant’s main complaint was that the reporting process seemed formless and unfocused, without clearly defined issues. Compared with a well-conducted court proceeding on an application, that is undoubtedly true. Justice LeBlanc presided over a series of meetings at which it seemed all of the problems, which can beset major and multiple building and renovation projects, were identified in the affidavit evidence. There were some unavoidable delays, necessary substitutions, major changes in the use and availability of facilities and their components, even of building sites. Justice LeBlanc made no orders but he presided as the parties worked out compromises. It was mediation on an impressive scale, and it appears to have succeeded. Most deadlines have been met. The final school building required to fulfil the order is under renovation in Clare but because of the need for a further consultation process the commencement of work was delayed and completion is not expected until December, 2001.

[77] By the last meeting, in March, 2001, there had been sufficient progress that it became an issue whether there should be any more reporting sessions.

[78] Counsel for the appellant stated:

As to whether or not there ought to be a further hearing, My Friends have suggested that things have changed, and the only changes, I would suggest, Your Lordship, have been changes to reflect the department’s compliance with Your Lordship’s decision.

[79] Justice LeBlanc considered that only one more meeting would be necessary, and scheduled it for August, 2001. This demonstrates that the period for which jurisdiction was retained was appropriate to the objective of ensuring that reasonable deadlines be met.

[80] In Mahe Dickson, C.J.C. stated at p. 365:

. . . The provision [s. 23] provides for a novel form of legal right, quite different from the type of legal rights which courts have traditionally dealt with. Both its genesis and its form are evidence of the unusual nature of s. 23. Section 23 confers upon a group a right which places positive obligations on government to alter or develop major institutional structures. Careful interpretation of such a section is wise: however, this does not mean that courts should not “breathe life” into the expressed purpose of the section, or avoid implementing the possibl[e] novel remedies needed to achieve that purpose.

[81] In Education Rights of Provincial Official Language Minorities, Carswell, 2^nd ed., (1989) Michel Bastarache (as he then was) wrote at p. 704:

The power of the courts to force school boards to provide specific services is unassailable. It is also necessary. Professor Sharpe makes the point as follows:

In dealing with minority language education rights and equality rights in particular, the courts will be asked to mandate affirmative measures. This will require the provision of certain services and facilities and the positive repair of past wrongs. . . . Orders of this kind do involve the courts in a continuing relationship with the concerned parties and institutions.

Although some courts have proved highly obstinate, others have agreed to issue injunctions and to maintain their jurisdiction for as long as is needed to ensure their decisions are executed. This approach is very promising. As Professor Gibson has written:

As the importance of injunctive relief increases in particular situations, the reluctance of courts to undertake supervisory responsibility decreases. Few legal matters are as important as compliance by governmental authorities with constitutionally entrenched safeguards.

[82] In my view Justice LeBlanc drew upon his familiarity with the facts and the attitudes of the parties before him to craft an exemplary remedy combining, as I have noted above, elements of declaratory and injunctive relief together with machinery for mediation. If he had misread the degree of co-operation he could expect from the players, there was a risk of failure. The order only called for the best efforts of the respondents, and retention of jurisdiction was meant to head off the potential for an enforcement nightmare. The stakes were high but his order got the job done, virtually on time, with a minimum of inconvenience or unnecessary cost. It was a well-balanced remedy, mild and unobtrusive but effective. To be sure, it required a good deal of supervisory involvement on his part, a role judges have been traditionally reluctant to assume. By providing it, Justice LeBlanc remedied a deprivation of important Charter rights that had been festering for almost two decades. In my view the court of appeal should not interfere.

[83] I agree that courts must apply great caution in crafting remedies such as the present one, for the danger of oppressive judicial intervention is very real. But Justice LeBlanc’s order was self-limiting in time to construction deadlines that were not seriously disputed by the parties, and the only burden imposed on the appellants, in addition to carrying out their Charter obligations, was the duty to report. Justice LeBlanc’s order was therefore proportionate to the task at hand and reflected balance and restraint in a Charter context. The objectives of the order were met. If they had not been, and serious deficiencies in performance had been disclosed at the reporting sessions, it might have been necessary to consider whether Justice LeBlanc would have had jurisdiction to issue further orders on his own motion, or whether he could do so only in response to applications by the parties.

[84] I would dismiss the appeal with costs to the respondent calculated according to the formula in Justice LeBlanc’s order, and not to exceed 40 per cent of the costs at trial.

Freeman, J.A.