User:David King/Schmidt decision

The Schmidt Decision (Alberta)

Schmidt vs. the Calgary Board of Education, et al Alberta Supreme Court, Appellate Division, Sinclair, Clement and Moir, JJ.A. October 26, 1976

This judicial decision is the basis for the legal requirement, in Alberta, that, where a separate school jurisdiction exists (they do not exist throughout Alberta), members of the minority faith that established the separate school jurisdiction must be considered and treated as residents, electors, and ratepayers of the separate school jurisdiction. This decision was handed down prior to the enactment of the Canadian Charter of Rights and Freedoms. This decision was never appealed to the Supreme Court of Canada, so it is not ultimately determinative of the issue.

The applicant, Mr. Schmidt, was Roman Catholic, and the father of two young (school-aged) children. The parents had earlier lived in Ontario, where they had enrolled their daughters in a public school, although a Roman Catholic school was available to them. In Ontario, members of the minority faith have the option of being residents, electors, and ratepayers of the public school system.

Mr. Schmidt's employer transferred him to Calgary, where he sought to enroll his children in the public school system (as he had done in Ontario). Staff of the Calgary Board of Education advised Mr. Schmidt that he must either pay a non-resident tuition fee for each child or first enroll his children in the separate school system and negotiate with that system to have them transfer the children to the public school system (the Calgary Board of Education) and pay tuition. Mr. Schmidt objected to this process, on the basis that the parents of the children should have the direct opportunity to enroll their children in the public school system. (Mr. Schmidt, although a Roman Catholic, supported public school education and preferred to have his daughters educated in a public school.)

Mr. Schmidt lodged a complaint with the Alberta Human Rights Commission. A Board of Inquiry, organized pursuant to the Individual Rights Protection Act, 1972 (Alberta), found against him, and upheld the proposition that, in Alberta, wherever a separate school jurisdiction exists, members of the minority faith that established the separate school jurisdiction must be considered and treated as residents, electors, and ratepayers of the separate school jurisdiction. The Board of Inquiry concluded that Mr. Schmidt would have to enroll his children with the Calgary Roman Catholic Separate School District and ask the Separate School District to enter into a tuition agreement with the Calgary Board of Education so that it (CBE) would enroll his child.

Mr. Schmidt appealed the decision of the Board of Inquiry, by commencing an action before the Court of Queen's Bench, Alberta. The Court of Queen's Bench found in his favour, overturning the decision of the Board of Inquiry.

The Calgary Board of Education appealed, and the decision of the Court of Queen's Bench was overturned on appeal to the Alberta Supreme Court, Appellate Division.

This is a civil rights case, pre-Charter of Rights and Freedoms. The key question is whether there was an illegal expression of discrimination on the basis of religious beliefs, contrary to the Alberta Individual Rights Protection Act, 1972 (Individual's Rights Protection Act, 1972 (Alta.), c.2, s.3(b) - School Act, R.S.A. 1970, c. 329, ss. 53,142, 143).

It is also a constitutional law case, relating to the provisions that enshrine the rights of those who choose to establish and operate separate schools in Alberta. (British North America Act, 1867, s. 93 - Alberta Act, 1905 (Can.), c.3, s. 17 - Individual's Rights Protection Act, 1972 (Alta.), c. 2, ss.1(2), 3(b))

Mr. Justice Moir, speaking for the Supreme Court of Alberta (now the Alberta Court of Appeal), said, among other things:

"The scheme of the separate school system is that the minority religion may set up their own school system. Once they do so the majority belongs to the public school system and the minority to the system they have established. The procedure has remained substantially the same for the past 75 or more years. Today the effect of this Act is set out in s. 53 of the School Act, R.S.A. 1970, c. 329:

53. After the establishment of a separate school district, a person residing within the boundaries of the separate school district who is of the faith of those who established that district, whether Protestant or Roman Catholic, is a resident of the separate school district and a separate school supporter and is not a resident of the public school district or a public school supporter.

The clear meaning of this section is that where the Roman Catholic minority have established a separate school district then all members of the minority religion are excluded as public school supporters and are not resident in the public school district. There is no machinery for getting out so long as you are of the religious faith of the minority who have acted to establish the separate school district. The children of such parents must attend that separate school as directed by the board of that school."

Mr. Justice Moir also wrote:

"it is said that Schmidt is paying his taxes to the public school board and thereby becomes a resident of that district. Residence is defined in s. 153. The scheme for dividing up the revenue is contained in s. 59 of the School Act. However, the payment of taxes do not effect a change in residence of the taxpayer. There is simply no way under the provisions of the Act, short of the oath, to remove a taxpayer from the separate school to the public school system. The fact that Schmidt is paying his taxes to the public school board must be by error in law as I can find no authority for it. In my opinion it cannot effect Schmidt's residence."

...

"I do not intend to trace the history of the separate school legislation in Alberta. That has been done in a scholarly manner by Wilbur F. Bowker, Q.C., as chairman of the board of inquiry. It is sufficient to say that I agree with him that religion or religious beliefs are the very basis upon which the two school systems were developed. As soon as the minority opted out of the public school system (be it Protestant or Roman Catholic) it was necessary to ask "Are you a Roman Catholic or a Protestant?" Although the information may be obtained more subtly the answer works the division.

"The scheme of public and separate schools as it existed in 1901 - protected as it is by s. 17 of the Alberta Act - is the separate and public school system we have today. The existence of two systems is guaranteed to the minority. The majority of the minority have the right to compel the entire minority to join the separate school division. That is the situation as it was in 1901, and in 1905 and the way it is in Calgary today. In my opinion there is no legislative authority in Alberta to abolish that scheme and therefore s-s (2) of s. 1 has no application as it only applies to legislation "in force in Alberta at the commencement of this act that is subject to be repealed, abolished or altered by the Legislature of Alberta".

"The effect of s. 53 of the School Act is to determine that Mr. Schmidt is a resident of the separate school system. As a result, he is not a resident of the public school division...

"In order to have two separate school systems it is necessary to have a legislative method of dividing or separating the minority from the majority. That method is and always has been religion. It was held by the Supreme Court of Canada in A.-G. Can. v. Lavell; Isaac et al. v Bedard (1973), 38 D.L.R. (3d) 481, [1974] S.C.R. 1349, 23 C.R.N.S. 197, and in A.-G.Can. et al. v. Canard et al. (1975), 52 D.L.R. (3d) 548, [1976] 1 S.C.R. 170, 4 N.R. 91, it is essential to legislation dealing with "Indians" that Parliament be able to define the class to which the legislation is to apply. Likewise if separate schools are to be permitted a mechanism for separating the group had to be found.

"The method chosen was religion. That method existed before Alberta became a Province and is thereby specifically approved of by s 17 of the Alberta Act. It is elementary to say that the provisions of a statute of Alberta are incapable of affecting the validity of the British North America Act, 1867, or of the Alberta Act. The scheme having been approved of by the Imperial Parliament, the Parliament of Canada, as well by the Legislature of Alberta, is binding. In my opinion it cannot be held to be inoperative by reason of the Individual's Rights Protection Act."