2024 BCSC 205

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: The Conseil scolaire francophone de la Colombie-

Britannique v. British Columbia,
2024 BCSC 205
2024 BCSC 205 (CanLII)

Date: 20240206
Docket: S2013627
Registry: Vancouver
Between:
Conseil scolaire francophone de la Colombie-Britannique
Plaintiff
And
His Majesty the King in Right of the Province of British Columbia, The Minister
of Education and Child Care of the Province of British Columbia and The
Board of Education of School District No. 39 (Vancouver)
Defendants
In Chambers
Before: The Honourable Mr. Justice Gomery
Oral Reasons for Judgment
Counsel for the Plaintiff: J. Klinck

J. Laxer
M.C. Power
P. Ravon
Counsel for British Columbia A. Richards

H. Cook
Counsel for the Vancouver Board of A. Grant

Education: R. McLennan
L. McClanaghan
Place and Dates of Hearing: Vancouver, B.C.

January 17-18, 2024
Place and Date of Judgment: Vancouver, B.C.
February 6, 2024
The Conseil scolaire francophone de la Colombie-Britannique v. British Columbia Page 2
Introduction
[1] This is constitutional litigation for the enforcement of minority language

education rights conferred under s. 23 of the Canadian Charter of Rights and
Freedoms. It is brought by the Conseil, as the representative of French-speaking

rightsholders in British Columbia, against the Province and the Vancouver Board of
Education (the “VBE”). Before me now are two applications concerning the
pleadings. They are the latest in a series of applications that have explored the
application of established principles of pleading in the particular context of this
challenging case.
[2] The Conseil applies to strike portions of the VBE’s Third Amended Response
to the Civil Claim, delivered in response to the Fourth Amended Notice of Civil
Claim. For convenience, I will refer to these pleadings as the Response and the
NoCC. Commendably, through discussions that continued through the hearing of
the application, what began as a far-ranging application is now confined to nine
paragraphs in issue.
[3] The Province applies for particulars of three subparagraphs of paragraph 339
of the NoCC, which forms part of the Conseil’s prayer for relief.
The Conseil’s application to strike
[4] The Conseil’s application to strike follows on an application to strike portions

of the Province’s amended response to the fourth amended notice of civil claim. I
outlined and will not repeat much of the applicable legal framework at paras. 5 to 9
of my reasons deciding that application, indexed at 2023 BCSC 2296. As in the
other application, the Conseil claims that portions of the VBE’s Response are
evasive. An additional element on this application is an argument that parts of the
VBE’s response fail to state a reasonable defence, contrary to Supreme Court Civil
Rule 9-5(1)(a).
[5] The Conseil’s objections to the VBE’s pleading fall into three buckets. By far
the most substantial is an objection to paragraphs that address, or allegedly fail to
address, the values underpinning s. 23 of the Charter or the rights and interests of
s. 23 rightsholders. These are paragraphs 36, 63, 90, and 91 of part 1 of the
Response and paragraphs 21, 31 and 32 of part 3. These paragraphs engage, in
various ways, the balancing exercise required by Doré v. Barreau du Québec, 2012

SCC 12.
[6] The other two buckets contain a single paragraph each. The Conseil
maintains that paragraph 72 of part 1 must be struck because it is evasive. It
maintains that paragraph 18 of part 3 fails to state a reasonable defence.
[7] In what follows, I will address each of the paragraphs in issue without quoting
them. When a transcript of these reasons is provided, the paragraphs in issue and
the corresponding paragraphs in the NoCC will be attached as an appendix.
Analysis
Overview of the Doré issue
[8] Doré governs the judicial review of discretionary administrative decisions that
engage the Charter. It is addressed in Conseil scolaire francophone des Territoires
du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023
SCC 31 [CSFTNO], which involved s. 23. As explained in CSFTNO, Doré
establishes a framework for analysis that is engaged where administrative action
directly infringes the rights protected by s. 23 or engages a value underpinning s. 23.
The Conseil maintains that actions and inactions on the part of the VBE fall to be
evaluated under the Doré analytical framework.
[9] The Doré analytical framework requires the reviewing court to examine the
decision maker’s reasoning process to assess whether, given the relevant factual
and legal constraints, the decision reflects a proportionate balancing of Charter
rights or the values underlying them. When the decision-maker gives precedence to
the legislature’s intention over Charter protection in order to achieve statutory
objectives, it must do so in a manner that is “proportionate to the resulting limitation
on the Charter right”; CSFTNO at paragraph 69. The standard of reasonableness
here requires a robust analysis that works the same justificatory muscles as s. 1 of
the Charter; CSFTNO at paragraph 70. The decision must be reasonable in the
sense required in administrative law; Canada (Minister of Citizenship and
Immigration) v. Vavilov, 2019 SCC 65. In this context, reasonableness requires that

the decision-maker have considered the relevant Charter right or value and have
meaningfully addressed the Charter protections to reflect the impact that its decision
may have on the concerned group or individual. It is not sufficient to ask whether
the decision falls within a range of reasonable outcomes; the court must consider
whether there are other reasonable outcomes that would more fully protect the
Charter right or value.
[10] The VBE pleads the Doré framework in the alternative to its primary position
that its conduct addressed in this action is not governed by s. 23 of the Charter. Its
core contention is that its obligation to consider Charter rights or values is limited by
virtue of its place in the statutory scheme created by the Province under the School
Act, R.S.B.C. 1996, c. 412 for the implementation of s. 23 rights.
Paragraph 36 of the Response
[11] Paragraph 112 of the NoCC addresses a 2019 decision by the trustees of the
VBE to vote down a motion to initiate a public consultation with a view to closing a
school, the Queen Elizabeth Annex, in order that it might be transferred to the
Conseil. The Conseil pleads that the VBE made this decision “without considering
section 23 or its underpinning values”. The legal significance of the plea lies in the
Conseil’s argument that the Doré framework requires such consideration.
[12] In paragraph 36 of the Response, the VBE denies paragraph 112 of the
NoCC while acknowledging the 2019 decision. It affirmatively pleads that, in making
the decision, the VBE trustees considered various matters including “the interests of
section 23 rightsholders”.
[13] The Conseil submits that paragraph 36 is evasive because it does not
address the substance of its matter. It submits that the VBE’s reference to the
interests of s. 23 rightsholders is far broader and vaguer than its reference to s. 23
and its underpinning values because the latter are well-defined by CSFTNO as
including “the preservation and development of minority-language communities” (at
paragraph 80). It submits that the VBE’s plea fails to define what is in dispute.
[14] The VBE disputes that its plea is evasive. It submits that it has affirmatively

pleaded the matters considered by the trustees and the rest is a matter for argument
as to whether its decision was problematic, having regard to s. 23 of the Charter.
[15] In my view, the only problem with paragraph 36 is that the listing of matters
considered by the trustees is open-ended. It is a list of matters considered “amongst
other things”. If those words were struck, then issue would be joined. The VBE
would have pleaded those matters that it considered, and it would argue that the
listed considerations were adequate in the circumstances. The Conseil would
contend that the list fell short of what the law outlined in CSFTNO requires.
[16] Because the list is open-ended, paragraph 36 is plainly and obviously evasive
and the issue is not well-defined. Either the words “amongst other things” should be
struck, or the entire paragraph should be struck with leave to amend.
[17] Paragraph 221 of the NoCC pleads that the legislative framework in issue
does not prohibit consideration of “other factors, including section 23 of the Charter
and its underpinning values” but English-language school boards such as the VBE
take the position that they have no obligations in relation to s. 23.
[18] Paragraph 63 of the Response denies paragraph 221. The VBE affirmatively
pleads that the legislative framework does not prohibit the consideration of “other
factors, including section 23 of the Charter”. This is an acknowledgement of a
proposition contained in paragraph 221. The Conseil attaches significance to the
omission of an explicit reference to underpinning values, but I disagree. The lesson
I take from CSFTNO is that, in law, consideration of s. 23 of the Charter engages
consideration of its underpinning values. While they are not the same thing, the
NoCC’s reference to “other factors” encompasses both, and it is open to the VBE to
respond with equivalent generality.
[19] Paragraph 63 goes on to plead affirmatively that the VBE does not have
“direct section 23 obligations” but has consistently acted in a manner that benefits

s. 23 rightsholders. The Conseil submits that this plea is evasive because the VBE
does not specify what underpinning Charter values it considers. It says that,
because paragraph 63 does not reference Charter values, it is not in a position to
demand particulars of them.
[20] I do not see why the Conseil would be unable to explore the assertion in
paragraph 63 that the VBE has acted in a manner that benefits s. 23 rightsholders,
either on discovery or through a demand for particulars. In saying this, I offer no
opinion as to which avenue is more appropriate.
[21] In that light, I do not think it is plain and obvious that paragraph 63 should be
struck as an evasive pleading. The factual issue is adequately defined.
[22] Paragraph 284 of the NoCC pleads that the VBE makes decisions without
considering the prejudice that may be caused to s. 23 parents and children.
Paragraph 90 of the Response denies paragraph 284. The VBE pleads that it often
makes decisions considering the interests of s. 23 parents and children.
[23] The Conseil submits that paragraph 90 is evasive because it does not
address the question of prejudice, only interests, which is a less securely focused
concept. It references CFSTNO at paragraph 72, where Coté J., speaking for the
court, emphasized that the Doré analysis requires action that minimally impairs
protected rights and stated:
In cases where the reviewing court finds that “there was an option or avenue
reasonably open to the decision-maker that would reduce the impact on the
protected right while still permitting him or her to sufficiently further the
relevant . . . objectives”, the administrative decision will be unreasonable
(para. 81 (emphasis in original)). This is a necessary consequence of the
robust analysis required by Doré.
[24] The VBE responds that the plea in paragraph 284 is so wide-ranging as to
defy focused analysis. It sought particulars of the decision in issue and was met
with a response that the Conseil was referring to all VBE decisions that could have
had an effect on s 23 parents and children since the creation of the Conseil.

[25] Considering the generality of the allegation and response, I do not think it is
plain and obvious that paragraph 90 should be struck. The dispute is both
unfocused, because it concerns a very wide range of decisions made by the VBE,
and muted, because consideration of interests necessarily entails consideration of
prejudice, and by pleading that it considers the interests of rightsholders, the VBE
asserts that it considers prejudice to them, as alleged by the Conseil. I doubt that it
will advance the determination of the issues on discovery or at trial to require greater
specificity from the VBE in response to the Conseil’s plea at paragraph 284.
[26] Paragraph 285 of the NoCC pleads that the VBE makes decisions without
taking into account the values that underpin s. 23 Charter rights. At paragraph 91 of
the Response, the VBE denies paragraph 285 and affirmatively pleads that it takes
decisions that are in the best interests of its constituents “while also taking into
account the interests of section 23 parents and children”.
[27] The Conseil submits that paragraph 91 is evasive in that it fails to address
s. 23 Charter rights, which are not commensurate with the interests of s. 23
rightsholders. It submits that the VBE’s plea avoids rather than defining the issue to
be decided. The VBE submits that its plea is adequate in the circumstances.
[28] I agree with the Conseil that the plea at paragraph 91 is plainly and obviously
evasive. Having denied paragraph 285 of the NoCC, it is incumbent on the VBE to
identify the point in issue by an affirmative plea at an appropriate level of generality.
CSFNTO establishes that the values underpinning s. 23 and the interests of s. 23
rightsholders are not equivalent. The VBE’s plea must address, if only in general
terms, the values underpinning s. 23.
Paragraphs 21, 31 and 32 of part 3 of the Response
[29] In paragraphs 21, 31 and 32 of part 3 of the Response, the VBE pleads the
Doré framework and that it has “proportionately balanced Charter guarantees in light
of the statutory objectives of the School Act”. The Conseil maintains that the plea

does not state a reasonable defence because the defence is not supported by the
necessary pleading of facts. The Conseil further submits that the VBE’s defence is
misconceived because, as a public body, it cannot avoid responsibility for the
implementation of Charter protections in respect of authorities assigned to it, citing
Godbout v. City of Longueil, 1997 CanLII 335 (SCC) at paras. 48 and 51, Conseil
scolaire Fransaskois de Zénon Park v. Saskatchewan, 1998 CanLII 13468 at
paragraph 16 (Sask QB), and Greater Vancouver Transportation Authority v.
Canadian Federation of students – British Columbia Component, 2009 SCC 31
[GVTA] at paragraph 22.
[30] In my view, it is not plain and obvious that the VBE’s legal argument pleaded
in paragraphs 21, 31 and 32 of the Response is bound to fail. It is supported by a
pleading of material facts, because I have declined to strike the factual pleading at
paragraphs 63 and 90 of part 1 and I assume that paragraphs 36 and 91 will be
amended as necessary. As to the legal issue, none of the cases cited by the
Conseil is on all fours with this case or unequivocally rejects the VBE’s argument.
Godbout and GVTA did not involve s. 23 rights, and s. 23 is unique in the Charter by
virtue of the positive burden it imposes on governments.
[31] The authorities make it clear that the power to strike claims must not be used
to stultify the law by shutting down arguable claims that have not yet been legally
recognized. In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Chief Justice
McLachlin gave judgment for the court and stated at paragraph 21:
… The history of our law reveals that often new developments in the law first
surface on motions to strike or similar preliminary motions, like the one at
issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not
determinative that the law has not yet recognized the particular claim. The
court must rather ask whether, assuming the facts pleaded are true, there is a
reasonable prospect that the claim will succeed. The approach must be
generous and err on the side of permitting a novel but arguable claim to
proceed to trial.
[Emphasis added.]
[32] I think it is not beyond argument that some incidents of the constitutional

burden imposed by s. 23 of the Charter may remain with the Province,
notwithstanding its delegation of administrative powers and responsibilities to the
VBE under the School Act. Justice Kyle rejected a similar argument in Conseil
scolaire Fransaskois de Zénon Park, but that was in the context of a legislative
scheme that contemplated the vesting of facilities belonging to the English-language
board in the French-language board established for the vindication of s. 23 rights.
The scheme of the School Act is quite different.
Paragraph 72 of part 1 of the Response
[33] Paragraph 231 of the NoCC pleads that, in relation to a prospective school at
the Olympic Village site in Vancouver, the Minister of Education offered to assist the
VBE in securing the site and to fund the construction of the school. Paragraph 72 of
part 1 of the Response denies paragraph. 231. It admits the offer of assistance to
secure the site, though it adds that it secured the site through direct negotiations
with the city, apparently without assistance. It affirmatively pleads that, although
there are ongoing negotiations, the Minister of Education has not yet provided
funding for a school.
[34] The Conseil submits that the VBE’s affirmative plea is evasive, because it
does not address the question of whether an offer of funding was made by the
Minister. It simply states that funding has not yet been provided.
[35] The VBE submits that it has addressed the point of substance as to the
existence of an offer by pleading, at paragraph 32, a statement by the Minister of
Education referring to contributions to be made by the Ministry for a new school at
Olympic Village, and at paragraph 34, that “there was discussion that the VBE
Olympic Village school project was supported”.
[36] I agree with the VBE that the substance of the Conseil’s pleading at
paragraph. 231 is adequately addressed by its affirmative pleas at paras. 32, 34 and
72 of part 1 of the Response. Paragraph. 72 should not be struck.
Paragraph 18 of part 3 of the Response

[37] At paragraph 18 of part 3 of the Response, the VBE pleads that it does not
have statutory authority conferred on it by the Province to address the Conseil’s
claims under s. 23 of the Charter. The Conseil submits, first, that this plea is
unsupported by pleaded material facts and, second, that the plea is inconsistent with
pleadings and particulars in which the VBE states that it has acted in a manner to
facilitate the implementation of s. 23.
[38] The first submission is not convincing. The VBE pleads that it operates under
the aegis of the School Act. The plea in paragraph 18 must be understood as
asserting that the VBE’s authority under the School Act is limited such that it is not
authorized to address the Conseil’s claims. Whether or not it is correct, this is a
coherent legal proposition. Governmental authority may be limited in the absence of
an express legislative prohibition. The limitation may derive from the absence of a
statutory power, as in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC). The question
is one of statutory interpretation. No further material facts need be pleaded.
[39] There is more substance to the second submission, because the VBE could
not coherently maintain both that it lacked authority to facilitate the implementation of
s. 23 and that it had done so. It could assert one of these positions as an alternative
to the other, but paragraph 18 is not framed as a plea in the alternative.
[40] However, the claim is wide-ranging and paragraph 18 is a response to all of it.
It is possible to interpret the plea at paragraph 18 as addressing some of the
Conseil’s allegations, and the pleas that the VBE has facilitated the implementation
of s. 23 as addressing others. In that light, the charge of inconsistency or
incoherency falls away. I think that paragraph 18 could have been more carefully
drafted, but it is not plain and obvious that it fails to state a reasonable defence, as
maintained by the Conseil.
Conclusion concerning the Conseil’s application
[41] To summarize, I conclude that an order is required in respect of paragraphs

36 and 91 of part 1 of the Response. At paragraph 36, the words “amongst other
things” should be struck, unless the VBE chooses instead to have the entire

paragraph struck with leave to amend. Paragraph 91 should be struck, with leave to
amend. The other paragraphs of the Response addressed in these reasons need
not be struck. The order may require the amendment of the paragraphs the VBE has
agreed to revise, in discussions between counsel.
The Province’s application for particulars
[42] The prayer for relief in part 2 of the NoCC sets out 40 distinct orders and
declarations sought against the Province and the Minister of Education, 8 orders and
declarations sought against the VBE, and, at paragraph 339, 5 orders sought
against the Province, Minister of Education, and the VBE.
[43] There is no issue concerning the orders sought in paragraph 339(a) and (b).
They refer to the School Act, two ministerial orders, and ministerial and VBE policies
and procedures (collectively, the “Instruments”). Subparagraph (a) seeks a
declaration that none of the Instruments precludes the VBE from complying with its
obligations under s. 23 of the Charter. Subparagraph (b) seeks a declaration that
none of the Instruments precludes the VBE from considering the values
underpinning s. 23 in its decisions whether to close, declare surplus, and dispose of
any underutilized or surplus sites and facilities.
[44] The Province seeks particulars of subparas. (c), (d) and (e).
Legal framework
[45] Rule 3-7(18) and (19) provide for the inclusion in a pleading or a
supplementary document of such particulars as are necessary. Particulars need
only be pleaded to the extent that they are known at the date of pleading, but may
be supplemented as additional information becomes known; R 3-7(20). An opposing
party may demand further particulars and seek an order that they be provided;
R 3-7(22) and (23). The assessment of whether they should be ordered is

discretionary; Steelhead LNG Limited Partnership v. Arc Resources Ltd., 2022
BCCA 128 at paras. 24-25. The discretion is broad and informed by the
circumstances. As stated by Fitzpatrick J. in British Columbia (Director of Civil

Forfeiture) v. PacNet Services Ltd., 2018 BCSC 2251 at paragraph 23 and affirmed
by Willcock J.A., speaking for the Court of Appeal in Steelhead at paragraph 26:
The overarching consideration in applying the Cansulex principles is to

ensure the integrity of the justice system is upheld: Powell v. 349131 B.C.
Ltd., [1992] B.C.J. No. 1088 (S.C.) at para. 61. This integrity is best protected
when litigation is allowed to proceed in a fair manner toward a just resolution
between the parties.
[46] Historically, pleadings were largely limited to allegations of fact, and the law
relating to the provision of particulars developed in that light. Both sides reference a
list of matters to be considered in the exercise of the court’s discretion from
Cansulex Ltd. v. Perry, [1982] BCJ No. 369 (CA) at paragraph 15. The list focuses
attention on the role of particulars in circumscribing the factual inquiry that occurs at
trial.
[47] The particulars sought on this application would not circumscribe the factual
inquiry defined by the pleading in part 1 of the NoCC and responses to civil claim.
The Conseil accepts that particulars of the prayer for relief in part 2 can nevertheless
be ordered.
[48] In my opinion, in this context as in the more familiar context where particulars
of factual allegations are sought, the essential question is whether an order for
particulars that would confine or focus the relief sought is necessary in order that the
litigation may “proceed in a fair manner toward a just resolution”.
The demand for particulars of subparas. 339(d) and (e)
[49] Subparagraphs (d) and (e) are relief sought by the Conseil in any event, and
not in the alternative.
[50] Subparagraph (d) references the Instruments and seeks a declaration that, to
the extent that they impose requirements that impede the timely implementation of
s. 23 of the Charter, they infringe s. 23 in a manner not justified by s. 1 of the
Charter. The Province asks that the Conseil identify what there is in any such

Instrument that imposes requirements that impede timely implementation.
[51] Subparagraph (e) refers generally to “other requirements (unrelated to health

or safety considerations)” that impede the timely implementation of s. 23 of the
Charter, and seeks a declaration that such other requirements infringe s. 23 in a
manner not justified by s. 1. The Province asks that the Conseil identify the other
requirements, specify what government actors imposed them, and state whether
they impede timely implementation on their own or by virtue of the manner of their
implementation.
[52] The Province says that it needs the particulars sought in order to plead the
factual elements of a responsive plea of justification under s. 1 of the Charter. The
Conseil accepts that it should provide the information sought, when it is in a position
to do so. It says that it will be able to do so when it obtains information it is seeking
from the VBE on discovery. It anticipates being able to respond within two weeks of
receipt of the VBE’s further amended response, answers to requests 172 to 181 left
outstanding during the examination of the VBE’s representative, David Green, and
responses to the same requests to be put on an examination of the Province’s
representative, Mr. Bertrand, that will have taken place between January 29 and
February 1.
[53] I am satisfied that an order for particulars of subparas. (d) and (e) is
necessary in the circumstances. It will focus the relief sought in order that the
litigation may proceed in a fair way toward a just resolution. It would not be right to
require the Conseil to provide the particulars before it is in possession of the
information it needs to formulate them, and the timetable proposed by the Conseil is
reasonable.
The demand for particulars of subparagraph 339(c)
[54] The issue in respect of the particulars sought of subparagraph (c) is more
difficult because this subparagraph seeks relief in the alternative to the relief sought
in subparagraph (a). It refers to the Instruments and seeks a declaration that, to the

extent that they preclude the VBE from complying with its obligations under s. 23,
they infringe s. 23 in a manner not justified by s. 1 of the Charter and are therefore of
no force and effect. In respect of each of the Instruments, the Province asks that the
Conseil identify what it is in the Instrument that precludes the VBE from considering
its alleged s. 23 obligations.
[55] The obvious difficulty is that the allegation that the Conseil is being asked to
particularize engages contentions that are not its own. It is the VBE, not the Conseil,
that maintains that it is precluded from complying with s. 23 obligations by something
in the Instruments. The Conseil’s case is that the VBE is not precluded.
[56] As already discussed, the VBE’s position that it is precluded is a position in

the alternative to its primary positions that it does not owe s. 23 obligations, or has
complied with whatever obligations it may owe.
[57] While it is obviously desirable that the Province be in a position to plead

justification under s. 1 with particularity, and it needs the particulars sought to do so,
it is not clear that the information required can be obtained prior to trial. The relief
sought in the alternative in subparagraph (c) rests on a series of contingencies.
Fortunately, as a practical matter, it is unlikely that the justificatory considerations
relied upon by the Province in respect of the declaration claimed at (c) would differ
significantly from those invoked in respect of the relief claimed at (a), (b), (d) and (e),
all of which will be pleaded before trial.
[58] In the circumstances, I do not think an order for particulars of the alternative
prayer for relief at paragraph 339(c) is necessary to secure the just and fair
resolution of this case. The relief available is essentially a matter for legal argument
based on findings that can only occur at the conclusion of the trial. The playing field
is level; no party is at a disadvantage in forecasting how the argument will unfold. I
do not think there is real practical benefit to be obtained by requiring the Conseil to
enumerate all the various possibilities it can foresee, which is all an order for
particulars would accomplish.
Conclusion concerning the Province’s application

[59] For these reasons, the Province’s application for particulars of
subparagraph 339(c) is dismissed and its application for particulars of
subparagraphs (d) and (e) is allowed on the basis that the particulars are to be
provided within 14 days following the provision of the VBE’s further amended
response to civil claim, answers to requests 172 to 181 left outstanding during the
examination of Mr. Green, and responses to the same requests during the
examination of Mr. Bertrand.
“Gomery J.”
Appendix
Fourth Amended Notice of Civil Claim VBE’s Third Amended Response to the
Civil Claim, filed November 30, 2023

(4th ANOCC”) filed July 28, 2023
Part 1 Part 1
[112] Without considering section 23 or its 36. The VBE denies the facts as set out in
underpinning values, the VBE trustees voted paragraph 112 of the FANOCC. The VBE
down a motion that the VBE initiate a public says that in October 2019, the VBE Board
consultation on the closure of QEA. of Trustees voted against initiating public
consultation regarding the school closure of
QEA at that time. In making the decision not
to initiate public consultation of QEA on
October 28, 2019, the VBE Board of
Trustees considered, amongst other things,
the interests of its own constituents, the
interests of section 23 rightsholders, the
potential long term implications of a school
closure for QEA, the need for a completed
Long Range Facilities Plan, the messages
of the Mayor of Vancouver and the Minister
of Education and input from senior VBE
management.
[203] English-language school boards 57. The VBE denies the facts as set out in
operating in a number of these communities paragraph 203 of the FANOCC. The VBE
have surplus and/or underutilized sites and/or says that the CSF has entered into four
facilities, which would meet the Conseil’s leases with the VBE in underutilized sites
needs. and/or facilities that the VBE closed.
[221] The legislative framework does not 63. The VBE denies the facts as set out in
prohibit the consideration of other factors, paragraph 221 of the FANOCC. The VBE
including section 23 of the Charter and its says that the legislative framework does not
underpinning values, however, as set out prohibit the consideration of other factors,
below, English-language school boards take including section 23 of the Charter. The
the position that they have no obligations in VBE says that it does not have direct
relation to section 23. section 23 obligations but that it has
consistently acted in a manner and
continues to act in a manner that benefits

section 23 rightsholders.
[231] In relation to the QEA site, the Minister of 72. The VBE denies the facts as set out
Education offered to assist the VBE in paragraph 231 of the FANOCC. The VBE

securing the Olympic Village site and to fund admits that the Minister of Education offered
the construction of a VBE facility. to assist the VBE in securing a Olympic
Village site, but says that the VBE entered
into negotiations directly with the City of
Vancouver to secure a 99-year lease for an
Olympic Village school site. VBE also says
that although there are ongoing
discussions, the Minister of Education has
not yet provided the VBE with the funding
needed for a school.
[284] The VBE makes decisions without 90. The VBE denies the facts as set out in
considering the prejudice that may be caused paragraph 284 of the FANOCC. The VBE
to section 23 parents and children. says that the VBE often makes decisions
considering the interests of section 23
parents and children.
[285] The VBE makes decisions without taking 91. The VBE denies the facts as set out in
into account the Charter values which paragraph 285 of the FANOCC. The VBE
underpin section 23 Charter rights. says that the VBE’s constituents are the
non-section 23 rightsholders in Vancouver
but that the VBE has consistently made
decisions that are in the best interest of the
VBE constituents while also taking into
account the interests of section 23 parents
and children.
Part 2
[339] The Counseil seeks the following

declarations in relation to the Province, the
Minister of Education, and the VBE:
a. A declaration that the School Act,

Ministerial Order M193/08, Disposal of
Land or Improvements Order,
Ministerial Order 194/08. School
Opening and Closure Order, policies
and procedures for school closure

established by the Minister, VBE Policy
14, School Closure, and Policy 20,
Disposal of Land or Improvements, do
not preclude the VBE from complying
with its obligations under section 23 of

the Charter;
b. A declaration that the School Act,

Ministerial Order M193/08, Disposal of
Land or Improvements Order,
Ministerial Order 194/08, School
Opening and Closure Order, policies
and procedures for school closure
established by the Minister, VBE Policy
14, School Closure, and Policy 20,
Disposal of Land or Improvements do
not preclude the VBE from considering
the values underpinning section 23 of
the Charter in its decisions about
whether to close, declare surplus and
dispose of any underutilized or surplus
sites and facilities;
c. In the alternative to [339] a., a

declaration that any provisions of the
School Act, Ministerial Order M193/08,
Disposal of Land or Improvements
Order, Ministerial Order 194/08,
School Opening and Closure Order,
any policies and procedures for school
closure established by the Minister,
VBE Policy 14, School Closure and
Policy 20, Disposal of Land or
Improvements, to the extent that they
preclude the VBE from complying with
its obligations under section 23 of the
Charter, infringe section 23 in a
manner not justified by section 1, and
are therefore of no force or effect;
d. A declaration that Ministerial Order

M193/08, Disposal of Land or
Improvements Order, Ministerial Order
194/08, School Opening and Closure
Order, any policies and procedures for
school closure established by the

Minister, VBE Policy 14, School
Closure, and VBE Policy 20, Disposal
of Land or Improvements, to the extent
that they impose requirements that
impede the timely implementation of

section 23 of the Charter, infringe
section 23 in a manner not justified by
section 1 of the Charter, and are
therefore of no force or effect; and
e. A declaration that the imposition of
other requirements (unrelated to health
or safety considerations) that impede
the timely implementation of section 23
of the Charter, infringes section 23 in a
manner not justified by section 1 of the
Charter
Part 3
18. Moreover, the VBE does not have the

statutory authority as conferred on it by the
Province to address the claims or rights of
the CSF under s. 23 of the Charter.
21. In the alternative, if section 23 of the

Charter is applicable to the VBE, the
proportionate balancing analysis
articulated by the Supreme Court of
Canada as the Doré/Loyola framework
applies to the administrative decisions
made by the VBE.
31. The Doré/Loyola framework requires

that where a discretionary administrative
decision engages the protections
enumerated in the Charter, both the
Charter’s guarantees and the foundational
values they reflect, the decision-maker is
required to proportionately balance the
Charter protections to ensure that they are
limited no more than is necessary given
the applicable statutory objectives.
32. If any of the VBE’s actions, the listed

sections of the School Act, or the above
referenced Ministerial Orders do infringe
s. 23 of the Charter, which is expressly
denied, the VBE has proportionately
balanced Charter guarantees in light of the

statutory objectives of the School Act.

2024 BCSC 205

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2024 BCSC 205

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: The Conseil scolaire francophone de la Colombie-

2024 BCSC 205 (CanLII)

Before: The Honourable Mr. Justice Gomery

Oral Reasons for Judgment

Counsel for the Plaintiff: J. Klinck

Counsel for British Columbia A. Richards

Counsel for the Vancouver Board of A. Grant

Place and Dates of Hearing: Vancouver, B.C.

[1] This is constitutional litigation for the enforcement of minority language

2024 BCSC 205 (CanLII)

The Conseil’s application to strike

[4] The Conseil’s application to strike follows on an application to strike portions

2024 BCSC 205 (CanLII)

Overview of the Doré issue

2024 BCSC 205 (CanLII)

Paragraph 36 of the Response

2024 BCSC 205 (CanLII)

Paragraph 63 of the Response

2024 BCSC 205 (CanLII)

Paragraph 90 of the Response

2024 BCSC 205 (CanLII)

Paragraph 91 of the Response

Paragraphs 21, 31 and 32 of part 3 of the Response

2024 BCSC 205 (CanLII)

2024 BCSC 205 (CanLII)

Paragraph 72 of part 1 of the Response

Paragraph 18 of part 3 of the Response

2024 BCSC 205 (CanLII)

Conclusion concerning the Conseil’s application

[41] To summarize, I conclude that an order is required in respect of paragraphs

2024 BCSC 205 (CanLII)

The Province’s application for particulars

R 3-7(22) and (23). The assessment of whether they should be ordered is

2024 BCSC 205 (CanLII)

The overarching consideration in applying the Cansulex principles is to

The demand for particulars of subparas. 339(d) and (e)

2024 BCSC 205 (CanLII)

[51] Subparagraph (e) refers generally to “other requirements (unrelated to health

The demand for particulars of subparagraph 339(c)

2024 BCSC 205 (CanLII)

[56] As already discussed, the VBE’s position that it is precluded is a position in

[57] While it is obviously desirable that the Province be in a position to plead

Conclusion concerning the Province’s application

2024 BCSC 205 (CanLII)

2024 BCSC 205 (CanLII)

continues to act in a manner that benefits

2024 BCSC 205 (CanLII)

[339] The Counseil seeks the following

a. A declaration that the School Act,

and procedures for school closure

2024 BCSC 205 (CanLII)

b. A declaration that the School Act,

c. In the alternative to [339] a., a

d. A declaration that Ministerial Order

school closure established by the

2024 BCSC 205 (CanLII)

18. Moreover, the VBE does not have the

21. In the alternative, if section 23 of the

31. The Doré/Loyola framework requires

32. If any of the VBE’s actions, the listed

2024 BCSC 205 (CanLII)

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