Date: 19970416 No. 5003/96 Victoria Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) JOHN BACON McDONALD and ) JENNIFER DIANE CHAMAK ) ) PETITIONERS ) ) REASONS FOR JUDGMENT AND: ) ) OF THE HONOURABLE THE BOARD OF SCHOOL TRUSTEES, ) GREATER VICTORIA SCHOOL ) MR. JUSTICE DRAKE DISTRICT NO. 61 [properly ) known as "The Board of School ) Trustees of School District ) No. 61 (Greater Victoria)"] ) ) RESPONDENT ) J. K. Greenwood Counsel for the petitioners W. J. Harris and K. A. Arnold Counsel for the respondent Date and Place of Hearing April 2, 1997 Victoria, B. C. [1] Essentially this petition under the Judicial Review Procedure Act seeks a declaration as to the validity of the policy of the respondent whereby certain "fees" are charged to students attending public schools in the School District which it administers. [2] The two petitioners each have children enrolled in schools in School District 61. In common with other parents of students, they have been charged certain "fees" by the schools which their children attend. Whether or not these charges stem from a legitimate exercise of the statutory powers of the Trustees of the School District is the question before me; should I find -- and declare -- that charging fees as has been done here is an improper exercise of the respondent's powers, then I am asked to enjoin its so doing at present, and prohibit it from so doing in the future. [3] The Preamble to the School Act (1989) S.B.C. c. 61 has this to say: WHEREAS it is the goal of a democratic society to ensure that all its members receive an education that enables them to become personally fulfilled and publicly useful, thereby increasing the strength and contributions to the health and stability of that society; AND WHEREAS the purpose of the British Columbia school system is to enable all 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; THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: and thereafter follows the enactment with which I am concerned here. A preamble to a statute is not the statute itself (though in this case part of it appears in the definition section, s. 1) but simply expresses the general intention of the legislature and may be used as an aid to interpretation in certain circumstances. [4] That said, the section of the School Act under particular scrutiny here is s. 100, which reads: Fees and deposits 100.(1) A board shall provide free of charge to every student of school age resident in its school district and enrolled in an educational program in a school, (a) instruction in an educational program sufficient to meet the general requirements for graduation set out in the orders of the minister, (a.1)instruction in an educational program after the student has met the general requirements for graduation, and (b) educational resource materials necessary to participate in the educational program. (2) For the purposes of subsection (1) a student is resident in a school district if the student is ordinarily resident in the school district and the guardian of the person of the student is ordinarily resident in British Columbia. (3) Subject to subsection (1) and to the orders of the minister, a board may charge fees for goods and services provided by the board. (4) A board may require a deposit for educational resource materials provided to students and to children registered under Section 13. (5) If a board requires a deposit under subsection (4) it shall refund all or part of the deposit to the student or child on return of the educational resource materials. (6) A board shall publish a schedule of the fees to be charged and deposits required and shall make the schedule available to students and to children registered under section 13 and to the parents of those students and children before the beginning of the school year. (7) A board is not responsible to pay for any educational activity undertaken by a student that is not provided by the board. [5] Subsection (1)(a.1) does not apply in this instance, nor do those provisions relating to children registered under s. 13. It is agreed that the children of the petitioners', Angelina McDonald and Colin Chamak, are students under subsection (2), are "enrolled in an educational program" in their schools, and were charged "fees". In the course of their educational programs, it appears that they made use of what may well be educational resource materials. [6] The "fees" the Board charged to the petitioners are set out in the statements, or invoices, exhibited to their affidavits. Whether or not these charges, or any of them, are prohibited by s. 100(1) depends upon their nature and character, and to the determination of this question I now turn. [7] It is, in my opinion, undesirable to make broad statements in a case of this sort if such can be avoided. However, the essence of the disagreement between the parties is the question of the character of the charges; are they for "education resource materials" provided to students under s. 100(1)(b) or for "goods and services" under s. 100(3)? So I am obliged to make some definitions of a basic nature. [8] Mr. Greenwood argued that an educational program embraces more than simply the curriculum of courses leading to graduation: it should be held, he says, to include all learning activities including those of an extra-curricular nature. He cites the definition of "educational program" in s. 1 of the School Act. That term: means an organized set of learning activities that, in the opinion of ... 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; ... [9] While there is some logic in his position, for this definition is extremely wide, repeating as it does part of the Preamble, one must keep in mind that 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). Other learning activities, though certainly contributing to the education of a student, must be considered as optional and outside the essential curriculum. [10] "Instruction in an educational program", then, means everything that is done by the teacher for his or her class during school hours. If such instruction includes such things as field trips and other illustrative "hands on" experiences, then any expense involved cannot fall upon the student. [11] The term "educational resource materials" is not defined in the School Act as "educational program" is. A school board may, under s. 103(2)(b) subject to the orders of the Minister [of Education] approve educational resource materials and other supplies and services for use by students. [12] The Minister is empowered to do a great many things by s. 182 of the School Act. Among these is, by subsection (2), the power to make orders for the purpose of carrying out any of the Minister's powers, duties or functions under this Act and, without restriction, may make orders (e) governing educational resource materials in support of educational programs. [13] In the exercise of this power, the Minister has made an "Educational Program Guide Order" (No. 165/93, amended from time to time) in which appears, in s. 3, the criteria to be observed by school boards in selecting educational resource materials for use in their schools. I have looked at such criteria and lists as appear in the evidence, but in vain for any compendious definition of "educational resource materials." [14] I can only say that the Minister (wisely, in my view) in his order has left the question of what constitutes educational resource materials to the good sense of school boards, which are required only to select such in accordance with the wide criteria established by the Minister in his order. [15] As a matter of common sense, such materials would be those which are fungible, that is to say, goods which are consumed in the course of instruction in educational programs: obvious examples of these materials are the reagents used in chemistry classes, the wood used in carpentry classes, the food used in cookery classes and the materials used in other domestic economy classes: materials used in the teaching of science and arts and crafts, in general, within the curriculum of educational programs which lead to graduation. [16] Since such courses are to be offered free of charge, it follows that the materials consumed in them must themselves be free of charge, as indeed is required by s. 100(1)(b) of the School Act. From the point of view of black letter law, these materials cease to be the property of the School Board once they are furnished to the students in the course of their instruction. [17] What happens to the products which the students make in the course of their instruction? Usually such are taken home by the students: and they are charged for the materials which they have transformed, or consumed. [18] The respondent's submission seems to be that what results from educational manufacture becomes "goods and services" under s. 100(3) once the manufacturing process is complete. I am unable to agree. Not only is subsection (3) subject to subsection (1) (free education), but the educational resource materials have been consumed, as such, transformed into something else and have ceased to be the property of the School Board. It must be a matter of indifference (of a fiscal nature) on the part of all concerned as to what happens to what is consumed in the classroom. [19] There should be, then, no charge for the materials used in educational programs. The fact that the student may make something from these resource materials is immaterial. She or he can deal with such items in any way she or he likes. [20] Angelina McDonald was charged, for the 1996/7 school year, as follows: Fee item 1. Textbook fee 10.00 2. Yearbook 25.00 3. Activity 16.00 Art 11 6.00 Tourism 11 25.00 82.00 [21] The first three items were called "School Fees" and the latter two "Class Fees". [22] The "textbook fee" is not a fee at all, but a refundable deposit; as such it is proper. [23] The "Yearbook" and "Activity" fees are not related specifically to classroom instruction. They are for extra- curricular matters, and as such are proper as being "goods and services". [24] Fees for the two classes, Art and Tourism, go toward the provision of instructional materials, and so are not proper. [25] Colin Chamak was charged an activity fee; and for a school annual: which are proper charges. He was also charged for materials in Art and Woodworking classes, which are not proper charges. [26] Much material was filed and argument had regarding the forgiving of fees and charges in certain circumstances. With this I am not concerned: I agree with Mr. Greenwood that it is the propriety of making these charges which alone is the issue. [27] There will, then, be a declaration that the "Class Fees" respecting school courses in which the children of the petitioners -- Angelina McDonald and Colin Chamak -- were enrolled are for "educational resource materials" and so are to be provided free of charge. The practice of levying such charges is enjoined, and prohibited in the future. [28] In the case of charges for yearbooks and other activity charges, being items not actually part of the school curriculum in the educational program, these are proper charges. [29] The petitioners are entitled to their costs, one set for both, to be assessed under Scale 3. "M.L.T. Drake, J." The Honourable Mr. Justice Drake