Minority Language Educational Rights

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This script is based on Abbey v. Essex County Board of Education. This video portrays a general focus of the case and is not intended as a full account. For an actual account of the decision, read Abbey v. Essex County Board of Education (1999), 42 O.R. (3d) 481 (Eng.) (C.A.) on appeal from (1997) [1997] O.J. No. 2397 (Gen. Div) found at the Resources tab.

Abbey v. Essex County Board of Education

As Canadians, we take for granted the fact that we have the right to go to school. In fact, it's in our Charter of Rights and Freedoms. Susan Abbey thought this too, but when she later wanted to enrol her children in a French first language school, she came across a world of trouble. You see, Mrs. Abbey's first language was English and this became the major deciding factor in where her children were to go to school.

In 1989, Mrs. Abbey enrolled her oldest son into a French first language school with the Essex County Roman Catholic Separate School Board without much difficulty. She had applied to the admissions committee of that school board which had approved her son's enrolment.

When the family moved to London the next year, Mrs. Abbey was able to enrol her two other children in a French first language elementary school. The London Board of Education had accepted the decision of the previous admissions committee. All three children received their education in a French first language school for the time they lived in London.

She thought all was in order when they came back to Essex County six years later. However, this time, her children were denied access to the French program. The problem was that since Mrs. Abbey was English-speaking, her children had to attend an English language school or at least, follow a French-Immersion program.

One significant issue was the question of taxes. Abbey was already paying taxes for education, but because she was English speaking, and not French speaking, the taxes went to the English-public school board. When she enrolled her children in a French school, her taxes could not be directed to the board where her children would be educated, nor would the English public school board pay tuition for her children. She had to pay a hefty tuition.

She did not want to send her children to an English school, so the Essex County Board of Education had recommended a French immersion elementary school. Her children struggled there, because they had spent their education years in an all French environment - this new environment was mostly English.

Mrs. Abbey wrote to the Director of Education of the Essex County School Board asking that her children be allowed to attend the French Language School. She believed that this was her right under section 23 of the Charter of Rights and Freedoms.

Section 23 of the Canadian Charter of Rights and Freedoms clearly states that "citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language". And Mrs. Abbey knew that this applied to her children also.

Mrs. Abbey wrote to Ontario's Minister of Education who agreed with her. Regardless of the fact that the Ontario Minister of Education accepted Mrs. Abbey's argument, the Essex County Board of Education felt that Mrs. Abbey did not qualify under this section and would not pay the tuition for her children to attend a French language school in the separate school board.

Mrs. Abbey did not believe this to be fair. She took the case first to the Ontario Divisional Court where she lost. Undeterred she brought her case forward to the Ontario Court of Appeal. She believed that it was her children's right to continue attending school in the same language. If the eldest sibling was allowed to go, then all the children should be able to follow him.

The Court of Appeal agreed with Mrs. Abbey. Section 23 of the Canadian Charter of Rights and Freedoms was clarified. It is the child's right to continue their education in French if any sibling had received French language education. The Essex County Public School Board was required to pay the tuition.

The Ontario Court of Appeal returned to the meaning of subsection 23(2). The Court stated that a distinct right existed consistent with the basic purpose of section 23: "Even though the overriding purpose of s. 23 is the protection of the language and culture of the linguistic minority through education, this does not preclude interpreting s. 23(2) according to its plain meaning, even if this means that the rights accrue to persons who are not members of the linguistic minority. The more fluency there is in Canada's official languages, the more opportunity there is for minority language groups to flourish in the community."

The Court's ruling has clarified the rights of persons who are not originally part of a linguistic minority but have acquired these rights. As Justice Louis Lebel quoted: "Section 23, given its national character needs to be interpreted in a uniform manner from province to province, while not completely disregarding the unique historical context of each province." (from Solski c. Québec (Procureure généerale), [2005] SCC 14, [2005] 1 S.C.R. 201, 2005 CarswellQue 761, 2005 CarswellQue 762 (S.C.C.) paras. 20-21.)


Disclaimer - The resources presented in this learning tool, the Charter in the Classroom: Students, Teachers and Rights (CC: STAR) are included only to assist in the study of the Canadian Charter of Rights and Freedoms. They do not necessarily represent an endorsement of a position or issue, opinion or view of its contributors, the University of Ontario Institute of Technology, Inukshuk Wireless, the Ontario Justice Education Network, the Canadian Civil Liberties Education Trust or any of the people, organizations, or institutions affiliated with it.