Bill 205 upheld by Alberta Court of Appeal

On May 1, 2006, the Alberta Court of Appeal upheld the constitutionality of the amendments to the Local Authorities Election Act ("Bill 205"), which have the effect of precluding school board employees from seeking election to any school board in Alberta while employed by a school board. The Alberta Teachers' Association Provincial Executive Council has directed the ATA to seek leave to appeal to the Supreme Court of Canada.

Bill 205 was challenged on the basis that it violated the freedom of expression and the right to equality found in the Charter. The trial judge at the Court of Queen's Bench of Alberta who heard the constitutional challenge held that Bill 205 breached the freedom of expression provided in the Charter. The trial judge did not make a finding with respect to the right to equality.

The case was then appealed to the Alberta Court of Appeal. The Court of Appeal agreed with the position advanced by the Province of Alberta and thus overturned the position of the trial judge. There was no Charter violation.

According to the Court of Appeal, seeking office as a school board trustee is a form of political expression. However, seeking election as a school board trustee in Alberta is not a constitutionally protected fundamental freedom because the freedom of expression under the Charter does not include the right to a particular means of expression. According to the Court of Appeal, whether to have school board elections and, if so, who can run in those elections, is purely a matter of legislative policy for the Province of Alberta. The Province of Alberta has exclusive legislative authority over schools in the province, including the power to legislate in relation to school boards. In exercising that power, the Province of Alberta selects, as a matter of legislative policy, the school governance system, its composition and the method for choosing its representatives. The system chosen need take no particular form as long as it is consistent with constitutional requirements.

The Court of Appeal rejected the equality arguments advanced. The Court rejected the argument that teaching is an immutable characteristic changeable only at an unacceptable cost to personal identity. The Court of Appeal recognized that teachers are highly trained, skilled professionals who enjoy societal recognition and respect. Their training and skill should facilitate employment mobility. The Court of Appeal found that the exclusion of school board employees (in this case teachers) from seeking election to a school board does not affect their dignity or suggest that they deserve less respect.

What does this case mean?

If leave is granted by the Supreme Court of Canada to hear this case, Canada's top court will decide as to the constitutional validity of Bill 205. In the meantime, we wait to hear whether an application will be made to the Court to stay (suspend) operation of the decision on a temporary basis. A stay could have important implications for those school board employees who currently also hold office as a school board trustee. It is our understanding that there are at most six individuals who currently hold both positions in Alberta. A stay of proceedings might allow them to continue serving in both capacities without having to leave one or the other.