2006 BCSC 1415 Young v. British Columbia (Minister of Education)

Before: The Honourable Mr. Justice Johnston

Reasons for Judgment

Counsel for the Petitioner:	W.A. Pearce, Q.C.
Counsel for the Respondents:	D. Roberts
Date and Place of Trial/Hearing:	20060821-20060822
	Victoria, B.C.

[1] The petitioner seeks declaratory relief affecting fees chargeable by school boards to students.

[2] The petitioner claims that school boards around British Columbia are charging students fees for things like the wood needed for projects in woodworking classes, or for rental of instruments that students need for school music classes, or for school field trips. The petitioner says the boards are doing this because they understand that they are authorized to do so by School Board Fees Order 125/90. This Order has been made by the Minister of Education exercising power conferred by s. 168(2)(j) of the School Act, R.S.B.C. 1996, c. 412. The petitioner says that School Board Fees Order 125/90, when read literally, appears to permit schools and school boards to charge the fees to which the petitioner objects. The petitioner says these fees are unlawful because they are contrary to s. 82(1) of the School Act. For this reason, the petitioner argues that certain portions of School Board Fees Order 125/90 are beyond the powers of the Minister of Education to make, and should be struck down.

[3] The first declaration sought is that ss. 3, 4(a), 4(c), 5 and 6 of the School Board Fees Order 125/90, made by the Minister of Education pursuant to s. 168(2)(j) of the School Act, are beyond the power of the Minister of Education to make.

[4] In the alternative, the petitioner asks the court to strike the words "subject to sections 4 and 5" from s. 3 of the School Board Fees Order 125/90 as beyond the power of the Minister of Education.

[5] In the further alternative, the petitioner seeks a declaration that the School Board Fees Order 125/90 does not empower a school board to charge fees for materials or equipment which are necessary to meet learning outcomes or assessment requirements of an educational program provided by a board and, further, that the School Board Fees Order 125/90 does not empower a school board to charge for expenses of a field trip which constitutes instruction in an educational program.

[6] The respondents object that much of the affidavit evidence tendered by the petitioner, as well as exhibits to the affidavits, are inadmissible.

[7] As to the merits of the petition, the respondents argue that, when read properly, the portions of the School Board Fees Order challenged in this proceeding are proper, and, insofar as the regulations and fees order are concerned, the regulations are within the powers delegated to the Lieutenant Governor in Council, and the School Board Fees Order is made within the power delegated by the School Act to the Minister of Education.

ADMISSIBILITY OF EVIDENCE

[8] The petitioner swears in his affidavit that school boards are charging fees for things that the School Act requires to be free of charge. His assertions are supported by documents exhibited to the affidavit, and two supporting affidavits from others. The documents relied on are schedules of fees charged by 13 school districts. These were provided to the petitioner by those districts in response to requests made under s. 5 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165. The respondents challenge the admissibility of most of the assertions in the body of the affidavit, as well as the fee schedules exhibited to it.

[9] The challenge to the evidence sworn in the affidavit is based partly on the argumentative nature of much of the petitioner's affidavit, partly on the relevance of what was sworn, and partly on the basis that much of at least the petitioner's affidavit is his opinion on matters in issue.

[10] I reserved decision on these objections until all of the argument had been made, and indicated that I would rule on the admissibility of the petitioner's affidavit in these reasons. After reviewing the affidavits and exhibits, I have concluded that there is substantial merit in the respondents’ objections.

[11] I rule that paragraphs 1, 2 and 3 of the petitioner's affidavit are statements of fact within his knowledge and are admissible.

[12] Paragraph 4, as a statement of the reason the petitioner is bringing these proceedings, I find admissible although it is not, truly speaking, evidence.

[13] Paragraphs 5, 6, 7, 12, 13, 15, 18, 19, 20, 21, 25, 26, 27, 31, 32, 33, 35, 36 and 37 of the petitioner's affidavit sworn June 21, 2006 are inadmissible as advocacy by the petitioner, or his opinion, or both.

[14] Paragraph 8 is admissible except for the petitioner's description of the feelings of the people named.

[15] Paragraph 9 is inadmissible as argument, except for the last two sentences which are statements of fact and admissible.

[16] The first two sentences of paragraph 10 are admissible as a statement of the petitioner's observations or experiences as a Victoria school trustee. The balance of the paragraph is inadmissible as hearsay, irrelevant (the hopes and expectations of the petitioner), or argumentative.

[17] The first sentence of paragraph 11 is admissible. The balance is inadmissible as argument.

[18] Paragraph 14 is inadmissible except for the second and third sentences which are statements of the petitioner's observations as a school trustee. The balance is thinly disguised hearsay or, in the case of the first sentence, argument.

[19] From paragraph 16, I accept as admissible the second sentence, as based on Mr. Young’s experience in Victoria. The first sentence is inadmissible as argument, and the rest of the paragraph inadmissible as it seems to be a broad conclusion or summary without the basis having been revealed.

[20] The first sentence of paragraph 17 is admissible as it is based on the petitioner's experiences as a school trustee. The balance is inadmissible because it is argument.

[21] Paragraphs 22 and 23 are admissible.

[22] I rule the first three sentences of paragraph 24 admissible as a summary of the contents of documentary exhibits that I find are admissible for reasons that will follow. The balance is argument and inadmissible.

[23] I admit paragraphs 28, 29 (except for the last sentence where an inadmissible assumption is stated), and 30 of the affidavit as a summary of the documentary evidence and the deponent's survey of the documentary evidence.

[24] I accept as admissible the first two sentences of paragraph 34 as a statement of the petitioner's personal history.

[25] With respect to the documents exhibited to the petitioner's affidavit, I accept as admissible the responses of the school boards who provided copies of their schedules of fees charged pursuant to the School Board Fees Order. These documents, it seems to me, are admissible for two reasons: because school boards are required to publish these fee schedules by s. 82(6) of the School Act as they are public books or documents admissible under s. 29(1) of the Evidence Act, R.S.B.C. 1996, c. 124; and they are the records of a corporation admissible under s. 28 of the Evidence Act (s. 65(1) of the School Act constitutes the trustees of each school district as a corporation).

[26] The respondents argue that these documents are irrelevant because they are not probative of whether the impugned portions of the School Board Fees Order are within the power of the Minister of Education to make. The issue framed by the petition is whether the impugned portions of the School Board Fees Order are within the Minister’s power to make, not how various school boards are interpreting or applying them. The respondents argue that, while the documentary exhibits show the practices of 13 school boards, they say nothing about the power of the Minister to make the School Board Fees Order, nor do they assist in its interpretation. As well, the respondents point out that only 14 boards replied, out of 60 school districts in the province. The petitioner has exhibited fee schedules for 13 of the boards that replied because the fourteenth, School District #92 (Nisga’a), replied that it does not charge fees or deposits.

[27] I find that there is some relevance in evidence of how school boards are interpreting and applying the impugned portions of the School Board Fees Order. The relevance is that, if school boards are charging for things the Minister did not intend to be authorized by the School Board Fees Order, and are publishing those charges as required, one might reasonably expect the Minister to point out to the offending school boards the error of their ways. The absence of such a correction by the Minister might be construed as approbation by the Minister of the interpretation by the school boards of the impugned portions of the School Board Fees Order. That in turn might lend support for the interpretation of ambiguous language. The clarity of the various fee schedules as well as the relatively small sample goes to the weight that might be attached to the fee schedules.

[28] The affidavits of Mr. Gaiptman and Mr. Conrod are admitted insofar as they describe matters within the knowledge of each – that is, what are the practices of the school board for which they work – Greater Victoria School District. Where Mr. Gaiptman purports to describe the practices of other school boards, his evidence is inadmissible as hearsay.

[29] I have ruled much of the affidavit evidence inadmissible as hearsay. In each case I have concluded that the petitioner has not shown the necessity of receiving the evidence as hearsay. As well, there has been no real attempt to demonstrate the reliability of such evidence, beyond vague assertions that, for example, either Mr. Young or Mr. Gaiptman know that what they assert is true based on their long experience. If that is meant to suggest that the knowledge has come to each through a process of osmosis, it does little to demonstrate that the source of the knowledge is sufficiently reliable to be safely admitted. Otherwise, there has been no attempt to assert that either has been informed of the facts asserted by a named person, whose reliability can be weighed by me, nor has the source of the asserted facts been sufficiently identified that the reliability of the deponent’s assertion of the facts can be evaluated.

ANALYSIS

[30] The analysis of the legal issues must bear in mind that school boards are not parties to this petition, they have had no opportunity to put forward evidence they feel might be relevant to the issues, and no school board has had the opportunity to make submissions on the issues. Although the basis of the petitioner’s arguments is that school boards are charging for things they ought not to charge for, this is advanced only as a basis to attack the School Board Fees Order, and the power of the Minister to make it. The petitioner does not seek any relief against any school board.

[31] The fee schedules that have been admitted into evidence show that some schools and school boards are charging students fees for such things as: musical instruments, supplies for woodworking courses, field trips, supplies for cooking and sewing courses, and the like. The petitioner argues that the School Board Fees Order appears to permit these charges. He says that the classes or courses to which the fees attach are part of students’ graduation requirements, in that successful completion will add to the credits required to graduate. The petitioner says that fact alone makes the charging of fees contrary to s. 82 of the School Act. To the extent that these fees appear to be authorized by portions of the School Board Fees Order, the petitioner argues that those portions are beyond the power of the Minister to make.

[32] In construing the legislative framework integral to these issues, I accept that subordinate legislation, whether by regulation or ministerial order, is not permitted to contradict or derogate from the statute or regulation from which it derives its authority. If authority for that proposition is needed, it can be found in Belanger v. Canada (1916), 54 S.C.R. 265 at 276. If subordinate legislation, whether in a regulation or, as in this case the School Board Fees Order, is ambiguous, it should be read so as to be consistent with superior legislation (Belanger, supra, at 280; s. 41 of the Interpretation Act, R.S.B.C. 1996, c. 238).

[33] I start with s. 82(1) of the School Act. It requires a school board to provide free of charge to every student of school age resident in British Columbia who is enrolled in an educational program in a school operated by the board:

82 (1) (a) instruction in an educational program sufficient to meet general requirements for graduation, ...

and

[34] Some of the words and phrases used in the statute are defined in the statute, some are defined by regulation.

[35] "Educational program" is defined in the statute to mean:

... an organized set of learning activities that, in the opinion of

(a) the board, in the case of learning activities provided by the board,

…

is designed to enable learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy;

[36] This phrase, defined in the same way by the then current version of the School Act, was held by Drake J. to be limited so as to require free instruction leading to graduation in McDonald v. Greater Victoria District No. 61, [1997] B.C.J. No. 1007 (S.C.) (QL).

[37] The expanded phrase "instruction in an educational program" has been defined by the School Regulation, B.C. Reg. 265/89, passed pursuant to the School Act, to mean:

... the communication of information or knowledge to students, who are in attendance and under supervision, sufficient to meet the learning outcomes or assessment requirements of an educational program provided by a board;

[38] The Lieutenant Governor in Council has the power to define terms used in the statute conferred by s. 175(2)(f) of the School Act:

175 (2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

...

(f) defining any expression that is used but not defined in this Act; ...

[39] Without the benefit of the interpretation of the phrase “educational program” by Drake J. in McDonald, some difficulty might arise from the dissimilarities in the usage of the phrase in the two definitions. They are dissimilar because the definition of “educational program” in the statute speaks to realization of a student’s potential, and the acquisition of skills and attitudes that would benefit society, whereas the definition of “instruction in an educational program” set out in the regulation has a more narrow focus, dealing as it does with the conveyance of the knowledge or learning necessary for a student to pass examinations or fulfill course requirements established by a school board.

[40] Drake J. resolved the potential difficulty by arriving at an interpretation of the phrase “educational program”, as defined in the statute, which predicted quite accurately the definition subsequently put forward in the regulation, in a way that resolved potential inconsistency.

[41] In my view the definition of the phrase "instruction in an educational program", although originating in subordinate regulation, is not inconsistent when the definition of "educational program" is read into the opening portion of s. 82 as follows:

82 (1) A board must provide free of charge to every student of school age resident in British Columbia and enrolled in … an organized set of learning activities that, in the opinion of, … (a) the board, …is designed to enable learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy ...

in a school operated by the board, [my emphasis]

This can then be logically followed by inserting the expanded definition of “instruction in an educational program” from the regulations into subsection (a) of s. 82(1) as follows:

82 (1) (a) the communication of information or knowledge to students, who are in attendance and under supervision, sufficient to meet the learning outcomes or assessment requirements of an educational program provided by a board; ... sufficient to meet the general requirements for graduation, ... [my emphasis]

[42] It seems to me that taking the more general definition of "educational program" from the statute, and following it with the more specific “instruction in an educational program”, which is aimed at achieving successful graduation of the student, provides a logically coherent and internally consistent interpretation of s. 82(1). Such an interpretation would also be consistent with the decision of Drake J. in McDonald, and with the response of government to that decision, in the form of regulations creating the definitions set out above.

[43] Section 82 (1)(c) requires a school board to provide free of charge to every student of school age resident in British Columbia and enrolled in an educational program in a school operated by the board “… educational resource materials necessary to participate in the educational program.”

[44] That, too, is mandatory.

[45] In McDonald Drake J. held that the phrase “educational resource materials”, which at that time was not defined in either statute or regulation, included goods which are “… consumed in the course of instruction in educational programs …”, such as wood used in carpentry courses, food in cooking courses, and materials used in the teaching of science and arts courses. He held that those goods must be provided free of charge because they were used in the teaching of educational programs leading to graduation.

[46] This phrase has been defined by regulation since the decision in McDonald. B.C. Reg. 265/89, s. 1(2) provides:

"educational resource materials" means

(a) information, represented or stored in a variety of media and formats, that is used for instruction in an educational program including, without limitation, the materials referred to in section 3 of Ministerial Order 333/99, the Educational Program Guide Order, and

(b) materials and equipment necessary to meet the learning outcomes or assessment requirements of an educational program provided by a board

but does not include

(c) paper, writing tools, calculators other than graphical calculators, student planners, exercise books, computer diskettes and other school supplies and equipment for a student’s individual use, and

(d) appropriate personal clothing for school activities such as gym strip, footwear, outerwear and personal safety equipment;

[47] The items listed in subsection (c) are, with some variation, repeated in s. 4(b) of the School Board Fees Order. The petitioner specifically does not challenge the exclusion of the items listed there or in subsection (c), above.

[48] The balance of the definition of “educational resource materials” in School Regulation 265/89, s. 1(2), is consistent with both the decision in McDonald and the requirement of s. 82(1). When the definition (bearing in mind the exceptions, above) is read into s. 82(1)(c), it requires a school board to supply, free of charge, any materials or equipment necessary for a student to complete the educational programs leading to graduation.

[49] School boards are entitled to charge some fees. For example, s. 82(3) of the School Act provides:

Subject to subsections (1) and (2.1) and to the orders of the minister, a board may charge fees for goods and services provided by the board.

The phrase “goods and services” is defined in the School Regulation to include:

(a) materials and equipment of a nature, or of a quality or quantity, beyond that which is necessary to meet the required learning outcomes or assessment requirements of an educational program provided by a board,

(b) [not in issue]

(d) the payment of expenses in respect of field trips or special events including expenses for transportation, accommodation, meals, entrance fees and equipment rentals;

[50] The School Board Fees Order, in those portions to which objection is taken, reads as follows:

Fees for school age students

3. Subject to sections 4 and 5, a board shall not charge fees for goods and services provided by the board to students of school age resident in the school district without which the student could not meet required learning outcomes or assessment requirements of an educational program provided by the board.

4. A board may charge fees to school age students resident in the school district for

(a) materials used in goods that are intended for the student to take home for personal use or as a gift;

(b) ... [not challenged by petitioner]

5. A board shall not charge fees in respect of field trips or special events except for expenses, including transportation, accommodation, meals, entrance fees and equipment rental.

6. A board must not charge fees for goods and services under sections 4 and 5 except where the board has established policies and procedures to facilitate participation in activities by school age students resident in the school district who would otherwise be excluded due to financial hardship.

[51] The petitioner argues that s. 3 above cannot be subject to ss. 4 and 5 because that would be inconsistent with s. 82(1) of the Act. I agree. Section 82(3), which permits fees to be charged for some goods and services, is subject to s. 82(1). If the phrase "subject to sections 4 and 5" is intended to enable a school board to charge fees for materials that are necessary to enable a student to participate in a course leading to graduation, it offends s. 82(1) in my view.

[52] I do not read ss. 3, 4 (a) and (c) of the School Board Fees Order in that way. In my view, they say, and are intended to say, that school boards are entitled to charge fees only for materials used that are surplus to what would be necessary for the student to meet the expected outcomes in a course requiring consumption of materials. Similarly, they are intended to say that school boards may only charge fees for use of a musical instrument beyond that which would reasonably be required for a student in a music course that is part of the educational program leading to graduation.

[53] So, for example, if a student enrols in a music course, and requires, for successful completion of that course, a musical instrument for class and home practice, s. 82(1) of the Act does not permit a school board to charge rental fees for this instrument. The combination of s. 3, with or without the redundant and impermissible opening phrase, and s. 4(c) does not change or purport to change what appears to me to be a clear interpretation of these portions of the School Board Fees Order.

[54] In the same way, if a student enrols in a course such as woodworking, home economics or art, as part of his or her educational program leading to graduation, the school board must provide, free of charge, the materials necessary for successful completion of the course. If at the end of the class the student wishes to purchase the work he or she has completed, that is a different matter, and the purchase may be negotiated. If, however, the school or the teacher wishes the student to take the completed project home, in order to avoid the cost of disposal falling on the school, the student may not be charged a fee.

[55] The petitioner argues that s. 5 of the School Board Fees Order, dealing with field trips, is beyond the power of the Minister to order. Whether that is so must depend on the nature and purpose of the field trip. Although field trips can be classified as “instruction in an educational program” because they are part of “an organized set of learning activities” and constitute the “communication of information or knowledge to students”, a school board is only obliged to provide instruction free of charge that is “sufficient to meet the general requirements for graduation”. As Drake J. said in McDonald at para. 9:

… there has to be some limit to an educational program: in my opinion, that limit is reached where a School Board provides instruction leading to graduation under s. 100(1)(a) [now s. 82(1)(a)]. Other learning activities, though certainly contributing to the education of a student, must be considered as optional and outside the essential curriculum.

[56] If a field trip is necessary, in the sense that a student will have more difficulty successfully completing the course that gives rise to the field trip, or if a student’s attendance on the field trip is mandatory, then it must be free of charge to the student. If, on the other hand, the field trip is an enhancement on the class or course, not necessary for its successful completion, and attendance is optional, the school may attempt to recover expenses from the students who choose to attend.

[57] The difficulty with s. 5 of the School Board Fees Order as presently worded is that this is not made clear. I think it becomes clearer if the words “subject to sections 4 and 5” are removed from s. 3.

[58] To the extent that the petitioner’s claims are based on an interpretation of the fee schedules he has received from some school districts that would suggest the school districts are charging fees for materials or instruments contrary to this plain meaning of the statute, regulations and ministerial order, I am not able to agree.

[59] I have looked at the fee schedules exhibited to the petitioner’s affidavit. While there are some portions of some of the fee schedules that are open to interpretation that would not comply with the Act, I am not prepared to resolve ambiguity in the various fee schedules so as to conclude that the boards involved are charging impermissible fees.

[60] No school boards are parties to this action. I will not infer that any of them are acting contrary to law, even inadvertently. Any suggestion that any school board is charging fees not permitted by the Act should be explored in an action supported by admissible evidence, and with the necessary parties before the court.

[61] As I agree that the phrase "subject to sections 4 and 5" is unenforceable as contrary to the plain wording of the statute, the section is to be read as if that phrase does not appear. That should resolve any potential ambiguity arising out of s. 5 of the School Board Fees Order.

[62] In summary, a school board is not permitted to charge students fees for any materials, or for musical instruments, that are required for students to successfully complete a course leading to graduation. Similarly, any portion of a course that occurs outside the classroom or school, and which the teacher considers necessary for "… the communication of information or knowledge to students … sufficient to meet the learning outcomes or assessment requirements of an educational program provided by a board;" must be free to the student. Field trips, or other extracurricular outings or events, not considered by the teacher or the school to be so necessary, should be purely voluntary and a school board may charge fees. As some fees can be properly charged under ss. 4 and 5, the provisions of s. 6 are not only permissible as within the authority of the Minister to order, but to be commended.

[63] I dismiss the application to declare ss. 3, 4(a), (c), 5 and 6 ultra vires and of no force and effect.

[64] I declare that s. 3 shall be read as if the introductory phrase “Subject to sections 4 and 5” does not appear in it.

[65] The petitioner seeks two declarations in the alternative to his other claims: first, that school boards may not charge for "materials and equipment which are necessary to meet the learning outcomes or assessment requirements of an educational program provided by a board"; and, second, a declaration that "a board may not charge for expenses of a field trip which constitutes instruction in an educational program".

[66] These claims trouble me because they ask the court to decide what may or may not be done by school boards when they have not been parties to the action, were not before the court, and have had no opportunity in this proceeding to lead evidence or to make submissions. To obtain such declaratory relief, the petitioner should have joined in this petition the school boards he complains about, and given them an opportunity to respond. I do not think it either wise or proper to go any further than I have already gone in these reasons.

[67] The alternate relief claimed in paragraphs (i) and (ii) in the petition is dismissed.

[68] Costs may be spoken to if necessary.

“R.T.C. Johnston, J.”
The Honourable Mr. Justice R.T.C. Johnston

Citation:	*Young v. British Columbia (Minister of Education),*
	2006 BCSC 1415