Minister was not 'fettering' her discretion nor unreasonable when she dismissed their application
The Court of Appeal for the Northwest Territories has ruled that the territory’s Minister of Education, Culture and Employment did not fetter her discretion in rejecting the applications of families who did not have constitutional right to send their children to minority language schools.
In A.B. v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8, the appellant Minister dismissed the applications of respondent families, finding they did not qualify under Section 23 of the Canadian Charter of Rights and Freedoms as possessing the constitutional right to such education. On judicial review, the trial judge concluded that the appellant had fettered her discretion in dismissing the applications and that the reasons for their dismissal were unreasonable. He referred the applications back to the appellant for reconsideration.
The Court’s panel included Justices Frans Slatter, Patricia Rowbotham and Michelle Crighton, with reasons written by Justice Slatter.
In writing for the majority, Slatter discounted the trial judge’s conclusion that the appellant had “fettered” her discretion in rejecting the application of respondents. The fettering argument is premised on “whether the decision maker has an obligation as required by statute or other legally binding provisions to exercise discretion.” In this case, there was none, Slatter said.
In Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25,  2 S.C.R. 282, the Supreme Court of Canada held that while governments have the constitutional obligation to provide minority language education to those enumerated, they do have the discretion to extend these rights to those who are otherwise unqualified. The Minister adopted the Ministerial Directive: Enrolment of Students in French First Language Education Programs (2016) which allowed admission of the children of certain non-rights holders to attend such schools. While there is no challenge to its validity, this Directive could have been implemented under the Minister’s plenary power under the Education Act, said Slatter.
Respondents in this case were not qualified under Section 23 of the Charter, nor the Directive, and thus, applied to be admitted under the appellant’s residual discretion. However, the appellant does not have a legally enforceable obligation to exercise this discretion, said Slatter, and the fact that a Directive was issued does not change that. Since there is no obligation compelling the appellant to exercise discretion, there can be no fettering of discretion.
It was likewise an error for the trial judge to conclude that the appellant’s decision-making process was unreasonable, said Slatter. There was no indication that the appellant considered irrelevant factors or failed to consider relevant factors in her decision. On the contrary, the respondents recognized that the appellant considered the contribution of these students to the community, their proficiency in French, and their best interests, the Court said. It is the appellant, and not the reviewing court that determines the relevance and weight of these factors.
“A decision is not rendered unreasonable merely because the reviewing court disagrees with the weight given to the various factors,” said Slatter.