DECISION 2016 NSUARB 115 M07258

NOVA SCOTIA UTILITY AND REVIEW BOARD

IN THE MATTER OF THE EDUCATION ACT

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IN THE MATTER OF AN APPLICATION by the CONSEIL SCOLAIRE ACADIEN PROVINCIAL to increase the number of school board members from 17 to 18; to increase the number of electoral districts from 9 to 10; and to amend the boundaries of the electoral districts

BEFORE:

APPLICANT:

HEARING DATE(S):

DECISION DATE:

DECISION:

Roland A. Deveau, Q.C., Vice Chair

CONSEIL SCOLAIRE ACADIEN PROVINCIALKenneth Gaudet, ChairJanine M. Saulnier, Director of Finance

May 9, 2016

June 30, 2016

Board approves the application.

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INTRODUCTION

[1] This is a Decision with respect to an application under the Education Act,

S.N.S. 1995-1996, c. 1 (“Act’), by the Conseil scolaire acadien provincial ("CSAP"), which

has applied to the Nova Scotia Utility and Review Board ("Board") to increase the number

of school board members from 17 to 18; to increase the number of electoral districts from

9 to 10; and to amend the boundaries of the electoral districts.

[2] There are presently 17 school board members elected from nine electoral

districts. The legislation specifically provides that, for the CSAP, the same number of

school board members need not be elected from each electoral district. In the Board’s

prior Decisions relating to the CSAP, the relative size of the Acadian and Francophone

communities across the Province has been reflected in the number of school board

members representing each of the respective regions.

[3] While student enrollment in all provincial schools has decreased by about

15,000 students between 2007 and 2015, student enrollment in CSAP schools has

increased 32.4% from 4,242 on September 30, 2007, to 5,429 on September 30, 2015.

The CSAP operates 22 schools across Nova Scotia. The Board heard evidence in this

hearing that student enrollment is expected to grow next year by 300 to 400 additional

students.

[4] The creation of the CSAP under the Education Act resulted from the

Province's commitment to providing the minority Acadian and Francophone communities

within Nova Scotia with an education in their own language as guaranteed by Section 23

of the Canadian Charter of Rights and Freedoms ("Charter1'). It is recognized that minority

language education is crucial to the preservation of the language and culture of these

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Acadian and Francophone communities. This right was highlighted by the Nova Scotia

Department of Education in Education Horizons - White Paper on Restructuring the

Education System which was released in February, 1995. In noting the significant role of

Francophone governance for these communities, the White Paper contained the following

commitment at page 16:

The Acadian and French language population in Nova Scotia has added and will continue to add, a unique cultural, historical and political perspective to Nova Scotia. The introduction of the Canadian Charter of Rights and Freedoms in 1982 formally recognized this contribution by guaranteeing minority linguistic rights. Nova Scotia is obligated to provide for these rights, by providing French and English Nova Scotians with equivalent education opportunities. These opportunities must reflect the unique experiences of both Acadian and French-language societies while providing the foundation for the continuation of their respective cultures in Nova Scotia.

[5] The result of this commitment was the creation of the CSAP with jurisdiction

throughout the Province and responsibility for the delivery and administration of all

French-first-language programs to the children of entitled parents pursuant to s. 11 of the

Education Act. The concept of "entitled parent" or "entitled person" is important in that

their children are entitled as of right under the Charter to a French language education as

well as the right to manage and administer their own education system. This differs from

French immersion programs for Anglophone students and parents whose mother tongue

is English. Such immersion programs are only a privilege that these parents may ask for

and are not a right guaranteed under the Charter.

[6] The right of "entitled parents" or "entitled persons" to manage and

administer their own education system was enunciated by the Supreme Court of Canada

in Mahe, Martel, Dube and Association d'Ecole Georges et Julia Bugnet v. Alberta (1990),

105 N.R. 321 and Reference Re Public Schools Act (Manitoba) (1993), 149 N.R. 241.

These principles were reaffirmed by the Supreme Court of Canada in Arsenault-Cameron

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v. Prince Edward Island, [2000] 1 S.C.R. 3 and in Doucet-Boudreau v. Nova Scotia

(Department of Education), [2003] 3 S.C.R. 3.

[7] The terms "entitled parent" and "entitled person" are of great importance as

only entitled persons can vote in elections for the CSAP. These terms are defined in s. 3

of the Education Act:

3 (h) "entitled parent" means a parent who is a citizen of Canada and

(i) whose first language learned and still understood is French,

(ii) who received his or her primary school instruction in Canada in a French-first-language program, or

(iii) of whom any child has received or is receiving primary or secondary school instruction in Canada in a French-first-language program;

(i) "entitled person" means an entitled parent or a person who, not being an entitled parent, would be an entitled parent if the person were a parent;

[8] Pursuant to s. 13(2), entitled persons are free to choose to vote in either the

CSAP election or the appropriate regional school board election, but they cannot vote in

both. Entitled persons do not have to make their choice until the date of the election. As

noted in prior Board decisions, there is no clear indication as to exactly how many entitled

persons there are in the Province, nor how many of them will choose to vote in the CSAP

election. No "census" of entitled persons has ever been undertaken in the Province and

it is a difficult task to determine this figure in advance as such persons do not all reside in

Acadian or Francophone communities. Even if they do reside in such communities, they

may not necessarily have their children enrolled in the French-first-language programs.

Also, many CSAP elections have not been contested and the members have been

elected by acclamation.

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EVIDENCE

[9] The hearing was held on the CSAP’s videoconference system on May 9,

2016 and was conducted in French. The Board Member was located at the CSAP’s

Dartmouth office, while the CSAP representatives were located at the CSAP’s Head

Office in Meteghan River, Digby County.

[10] The Notice of Hearing was advertised in Le Courrier de la Nouvelle-Ecosse,

the Chronicle Herald and the Cape Breton Post. The Notice invited members of the public

to advise the Board of their written comments in advance of the hearing, or to notify the

Board if they wished to participate in the hearing. Two members of the public notified the

Board that they wished to participate on the videoconference from the Truro region. The

Board also received one letter opposing the application.

[11] The CSAP was represented at the hearing by its Chair, Kenneth Gaudet,

and by Janine M. Saulnier, Director of Finance. They were accompanied by Diane

Racette, Interim Superintendent, and Richard Landry, Branch Chairman, Evaluation

Committee. In his testimony, Mr. Gaudet confirmed the CSAP's request to increase the

number of school board members and electoral districts.

[12] In advance of its application, the CSAP conducted a public consultation and

invited comments from the public through various means, including the CSAP’s website,

Le Courrier de la Nouvelle-Ecosse, the Chronicle Herald, community radio, and Radio

Canada. Interested persons could provide written comments by December 4, 2015, or

appear in person at a public session on the CSAP’s videoconference system on

December 2,2015. The videoconference session was held in the CSAP’s 11 high schools

in the Province, located across all its existing nine electoral districts.

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[13] The CSAP received four emails from the public, and about 30 persons

participated in the videoconference of December 2nd. Most of the attendees were school

board members or CSAP staff. By the Board’s count from the documentation, only four

members of the public were present.

[14] During its public meeting, the CSAP received comments from only three

members of the public requesting a reduction or a change in the distribution of school

board members across the electoral districts.

[15] The CSAP approved the filing of this application to the Board at its meeting

on December 6, 2015.

[16] The existing electoral districts, along with the number of members in each

district, are shown in Table A:

[Remainder of page intentionally left blank]

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ElectoralDistrict

Numberof

Members

EstimatedEntitledPersons(Voters)

StudentPopulation

Estimated Entitled Persons

(Voters) Per Member

Variation from Avg Number of Voters per

Member # %

Argyle 3 5,900 779 1,967 -127 -6%

Clare 3 6,225 712 2,075 -19 -0.9%

Greenwood 1 2,100 166 2,100 6 0.2%

Halifax 3 11,090 1,421 3,697 1,603 77%

Antigonish 1 3,190 362 3,190 1,096 52%

Inverness 2 2,830 227 1,415 -679 -32%

Richmond 2 2,480 240 1,240 -854 -41%

Victoria Cape Breton

1 1,135 229 1,135 -959 -46%

South Shore 1 650 106 650 -1,444 -69%

Total estimated number of entitled persons (voters): 35,600Total number of members: 17Average number of voters per member: 2,094

[17] The Board received some comfort from testimony during prior public

hearings which confirmed that the number of students in each electoral district provided

a fair representation of the relative size of the electoral districts. There was no evidence

to the contrary tendered during the current application. In the Board's opinion, the number

of students in each electoral district continues to be evidence at the Board's disposal to

help it determine the relative size of the said districts.

[18] The proposed electoral districts, along with the number of members in each

district, are shown in Table B:

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ElectoralDistrict

Numberof

Members

EstimatedEntitledPersons(Voters)

StudentPopulation

Estimated Entitled Persons

(Voters) Per Member

Variation from Avg Number of Voters per

Member # %

Argyle 3 5,900 778 1,967 -11 -1%

Clare 3 6,225 585 2,075 97 5%

Greenwood 1 2,100 198 2,100 122 6%

Halifax 3 11,090 2,327 3,697 1,719 87%

Truro 1 1,595 338 1,595 -383 -19%

Antigonish 1 1,595 282 1,595 -383 -19%

Inverness 2 2,830 168 1,415 -563 -28%

Richmond 2 2,480 250 1,240 -738 -37%

Victoria Cape Breton

1 1,135 262 1,135 -843 -43%

South Shore 1 650 241 650 -1,328 -67%

Total estimated number of entitled persons (voters): 35,600Total number of members: 18Average number of voters per member: 1,978

[19] In support of the application, Mr. Gaudet stated that the role performed by

CSAP members is different than the role of school board members generally:

...It is very important to recognize the Conseil scolaire’s cultural mandate. The members of the Conseil scolaire...of the Conseil scolaire acadien provincial...are a little different from what you would see at an ordinary school board. The...our members are associated...they represent the community in the school. There are several organizations in each region, ... whether it be school councils, cultural councils, art councils, the Acadian Federation, and so on, that have to do with the school, with the result that our members are very, very busy... representing the community and all the things that take place. As a result, it’s important to respect the regional perspective, but also the provincial perspective, because we are a provincial school board, that represents many people across all the regions... [translation]

[Sound file 8:38 to 9:45]

[20] Two persons from Truro took part in the videoconference to support the

CSAP’s application with regards to the creation of a new electoral district for Truro and

the surrounding region (i.e., by dividing the Antigonish district into two districts).

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[21] Jerome Breau is a parent with two children in the CSAP school system. He

noted that Truro is currently in the Antigonish electoral district and that it is very difficult

for the current school board member in Pomquet, located near Antigonish about 125 km

away, to deal with the issues surrounding the Truro school. He testified that Truro has

different issues to address than Pomquet. He also noted that the Truro school is growing

quickly, with enrolment expected to grow from 362 to 564 in future years, further limiting

the school board member’s resources to represent both Antigonish and Truro.

[22] Juliana Barnard also supported the application. She noted that dividing the

region into separate Truro and Antigonish electoral districts would be consistent with the

representation of these communities in the Federation Acadienne de la Nouvelle-Ecosse.

[23] The Board received one letter of comment as a result of its Notice of

Hearing. Robert Fougere, a former school board member from 2004 to 2010 from the

Arichat region in Richmond County, indicated that the number of school board members

should be reduced, not increased. He noted that governance is now a topic discussed

everywhere, including in municipalities. In his opinion, the CSAP should be aiming

towards a more efficient and less costly structure, ensuring that scarce resources are

directed to the classroom. Mr. Fougere was also disappointed that the CSAP had

undertaken its consultation process late in the cycle, when they had eight years since the

last review to carry out a more comprehensive and deliberate process.

[24] In response, Ms. Saulnier of the CSAP noted that it makes efficient use of

its financial resources, including the use of its videoconference system by the CSAP

board and various committees. She stated this keeps costs low compared to other school

boards.

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ANALYSIS AND FINDINGS

[25] Section 42(1) of the Act states that a school board must have not less than

eight nor more than eighteen members.

[26] Section 13(5) provides, however, that in relation to the CSAP:

13(5) Commencing with the first election of the members of the Conseil acadien,

(a) the Province shall be divided into eight electoral districts or such greater number of districts as the Utility and Review Board determines;

(b) the boundaries of the electoral districts shall be as determined by the Utility and Review Board; and

(c) the same number of members need not be elected from each electoraldistrict. [Emphasis added]

[27] Section 44 of the Act sets out the Board's powers and the matters which it

shall consider in determining the number and boundaries of electoral districts and reads

as follows:

44 (1) In determining the number and boundaries of electoral districts, the Utility andReview Board shall make such decision as in its opinion is just, and is not restricted to the proposal advanced by a school board in its application.

(2) The Utility and Review Board may reject an application and require a school board to re-apply within such time as the Utility and Review Board directs, and may give such directions for the re-application as the circumstances of the case dictate.

(3) In determining the number and boundaries of electoral districts, the Utility and Review Board shall give consideration to

(a) subject to subsection 13(6), ensuring as nearly as practical equal numbers of electors in each electoral district;

(b) population density;

(c) distribution of the school-age population;

(d) the principal language of instruction of the school board and language of instruction of the school population in areas of the district; and

(e) any other relevant matter that in the opinion of the Utility and Review Board affects the necessity, expediency or justice of the order sought.

(4) The Utility and Review Board shall, in setting the numbers and boundaries of electoral districts, have regard to the existing boundaries of polling districts and wards.

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[28] In addition to the factors enumerated in s. 44 of the Act, the Board must

also consider the provisions of s. 13 which relate specifically to the CSAP. Section 13(5)

mandates that the Province be divided into no less than eight electoral districts and that

the same number of members need not be elected from each electoral district. Of

particular significance is s.13(6) which provides that effective representation of the

Acadian and Francophone communities within the Province shall be considered of greater

importance than parity of voting:

13 (6) In determining the boundaries of the electoral districts and the number ofmembers to be elected from each, the Utility and Review Board shall give consideration to effective representation of the Acadian and francophone communities in the Province and effective representation shall be considered of greater importance than parity of voting. [Emphasis added]

[29] A review of past municipal polling district and school board electoral district

decisions shows that the primary consideration in such reviews has been voter equality.

However, this factor must be given secondary importance to the primary consideration

enumerated in s. 13(6) of the Act. In emphasizing the need to achieve relative parity of

voting power the Board has been influenced by recent court cases and provincial

legislation, including the decision of the Supreme Court of Canada in Reference re

Electoral Boundaries Commission Act (1991), 81 D.L.R. (4th) 16 [also referred to as the

Carter decision], which dealt with provincial electoral boundaries created by statute in the

Province of Saskatchewan.

[30] The Board has previously determined that a variation of ±10% is the

appropriate guideline to use in reviewing the number and boundaries of the municipal

polling districts and school board electoral districts. Section 44(3)(a) of the Education Act

directs the Board to give consideration to "ensuring as nearly as practical equal numbers

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of electors in each electoral district". This is subject, of course, to the primary

consideration described in s. 13(6) of the Act with respect to the present application.

[31] The Board does not consider itself absolutely bound by the ±10%. The

Board notes that the Supreme Court of Canada, in Carter, accepted a variation of 50%

for the northern ridings in the Province of Saskatchewan. Thus, the Board infers that a

variation in excess of ±10% is permissible depending upon the circumstances of any

individual case, including those that apply to the CSAP’s application.

[32] The Board recognizes that there are several differences between an

electoral district for the election of a school board member and a polling district in a rural

municipality for the election of a municipal councillor. The Education Act requires that

every school board have between eight and eighteen members while the Municipal

Government Act does not specify any minimum or maximum number of councillors. In

most instances a school board member represents more voters than does a municipal

councillor in the same general area. While reasonable departures from this guideline may

be justified in a few instances, the Board is of the opinion that for the most part the other

factors enumerated in s. 44(3) can be adequately recognized and accommodated within

the guideline with respect to applications made for the regional school boards. However,

in considering this application of the CSAP, the Board must give primary importance to

the effective representation of the Acadian and Francophone communities within the

Province as mandated by s. 13(6) of the Education Act.

[33] Section 44(4) of the Education Act requires the Board to have regard to

existing boundaries of polling districts and wards. To do otherwise could lead to voter

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confusion and may increase the cost of elections for the CSAP or the regional school

boards. The present application is consistent with s. 44(4).

[34] The Board must now consider the proposed boundaries contained in the

application, as well as determine the number of members per electoral district. The CSAP

has applied to increase the number of school board members, namely, 18 members

distributed across 10 electoral districts, as described in Table B of this Decision. The

Board notes from the evidence that the CSAP is satisfied with this present structure, which

is only slightly modified to add the Truro district. The Board approves the number of

electoral districts and the number of members as proposed in the application, as well as

the distribution of members among the electoral districts.

[35] In this regard, the Board is also mindful of the reasons set out in its prior

decisions dated July 10, 1997 (NSUARB-SB-96-07), August 3, 2000 (NSUARB-SB-99-

04), and July 15, 2008 (NSUARB-SB-07-04), establishing the number of school board

members and their distribution among the electoral districts. The addition of an electoral

district for Truro and the surrounding region is consistent with the Board’s findings in those

prior Decisions.

[36] Table B shows, for each electoral district, the variation from the average

numbers of voters per member. The current application contains four electoral districts

where the calculated variation exceeds ±30% (up to 87% in one instance). The Board

notes this is an improvement from 2008 when there were six districts in excess of ±30%.

Although parity of voting is not the primary factor in this particular application, it is a

consideration which the Board cannot ignore. Based on the paramount directive

contained in s. 13(6), however, the Board finds that these electoral districts are justified

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in order to ensure the effective representation of the Acadian and Francophone

communities.

[37] The evidence presented during the 1997 public hearings unanimously

supported the eight electoral districts proposed in that application. It was clear from that

evidence that those eight proposed electoral districts were fairly representative of the

eight Acadian and Francophone communities situated across Nova Scotia at that time.

One criterion used in the establishment of these electoral districts was to ensure that each

region having an Acadian or Francophone school would be designated its own electoral

district.

[38] A number of witnesses at the 1997 hearings, and subsequent hearings,

emphasized the significance of preserving each of these eight communities, regardless

of their size, in that this would help to ensure the preservation and future expansion of all

Acadian and Francophone communities within the province. The South Shore district

was added in 2000. In its 2008 Decision, the Board stated:

... Particular mention was made throughout those hearings regarding the relatively small Acadian community of Pomquet which had shown extreme perseverance in surviving through the years and avoiding assimilation by surrounding English speaking communities. Witnesses suggested this as an excellent example justifying the creation of some small electoral districts in order to protect existing Acadian or Francophone communities, even where the size of such electoral districts clearly exceeded the accepted ±25% variance then used by the Board as an appropriate guideline. Similar evidence was presented in support of the creation of an electoral district for the South Shore region of Nova Scotia in 2000.

[Board Decision, 2008 NSUARB 78, para. 35]

[39] The evidence in the 2008 application confirmed that the creation of electoral

districts for regions such as Pomquet (the district of Antigonish) and Bridgewater (the

South Shore district) was necessary for the protection and growth of Acadian and

Francophone communities in those areas. Since 1997, student enrolment in the

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Antigonish district has grown from 207 to 620 at present. Similarly, the South Shore

district has grown from 41 to 241 students from 2000 to the present.

carefully considered the issue of ensuring effective representation of the Acadian and

Francophone communities in the Province, as required under s. 13(6) of the Education

Act. The Board determines that there will be 18 school board members and 10 electoral

districts, as described in the application.

members; the electoral districts of Inverness and Richmond will each elect two members

and the electoral districts of Antigonish, Greenwood, South Shore, Truro and Victoria-

Cape Breton will each elect one member. The members in those districts with more than

one member will be elected "at large". The electoral districts are outlined in the attached

Schedule "A".

[42] An Order will issue accordingly.

[40] For the above reasons, the Board approves the application. The Board has

[41] The electoral districts of Argyle, Clare and Halifax will each elect three

DATED at Halifax, Nova Scotia, this .302 day of June, 2016.

Roland A. Deveau

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Schedule “A”

CONSEIL SCOLAIRE ACADIEN PROVINCIAL Electoral Districts/2016

Electoral District of Argyle is comprised of the Municipality of the District of Argyle, the Municipality of the District of Yarmouth, the Town of Yarmouth, the Municipality of the District of Barrington, the Town of Clarke's Harbour, the Municipality of the District of Shelburne, the Town of Shelburne and the Town of Lockeport.

Electoral District of Clare is comprised of the Municipality of the District of Clare, the Municipality of the District of Digby and the Town of Digby.

Electoral District of Halifax is comprised of the Halifax Regional Municipality.

Electoral District of Inverness is comprised of the Municipality of the County of Inverness.

Electoral District of Richmond is comprised of the Municipality of the County of Richmond and the Town of Port Hawkesbury.

Electoral District of Antigonish is comprised of the Municipality of the County of Antigonish, the Municipality of the District of Guysborough, the Municipality of the District of St. Mary's, the Municipality of the County of Pictou, the Municipality of the District of East Hants and the Towns of Antigonish, Mulgrave, Pictou, New Glasgow, Stellarton, Westville and Trenton.

Electoral District of Greenwood is comprised of the Municipality of the County of Annapolis, the Municipality of the County of Kings, the Municipality of the District of West Hants and the Towns of Windsor, Hantsport, Wolfville, Kentville, Berwick, Middleton, Bridgetown, and Annapolis Royal.

Electoral District of Victoria-Cape Breton is comprised of the Municipality of the County of Victoria and the Cape Breton Regional Municipality.

Electoral District of South Shore is comprised of the Region of Queens Municipality, the Municipality of the District of Lunenburg, the Municipality of the District of Chester, and the Towns of Lunenburg, Bridgewater and Mahone Bay.

Electoral District of Truro is compromised of the Municipality of the County of Colchester, the Municipality of the County of Cumberland, and the Towns of Truro, Amherst, Oxford and Stewiacke.

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