May 2019 Charity & NFP Law Update
On April 29, 2019, the Alberta Court of Appeal (the “Court”) released its decision in PT v Alberta, upholding the Court of Queen’s Bench of Alberta’s dismissal on June 27, 2018, of two interim injunction applications in relation to a constitutional challenge with respect to the Alberta School Act (the “Act”). Specifically, the appellants, who consist of parents, private schools (including faith-based schools), and school boards, sought a stay of the “notification limitation provisions” (“NLP”) as well as the “attestation requirement provisions” (“ARP”) in the Act, which, if such a stay was granted with respect to the ARP, would prohibit the Minister of Education from defunding or de-accrediting schools for non-compliance with the Act.
By way of context, the Act was amended by Bill 10 in 2015, and then by Bill 24 in 2017, to empower voluntary student organizations with a focus on vulnerable minorities such as LGBTQ+ students. Specifically, enhanced protections were introduced in Bill 24, such as the NLP, which prohibits exposing a student’s involvement in ‘gay-straight alliances’ and ‘queer-straight alliances’ (“GSAs”) to their parents or peers under section 16.1 of the Act. Further, the ARP under section 45.1 of the Act requires private schools, which in Alberta must submit annual declarations to the Minister in order to receive funding and accreditation, to attest their compliance with the Act when making such declarations. The appellants argued that compliance with such provisions was contrary to their constitutional rights under the Canadian Charter of Rights and Freedoms – namely the right to freedom, expression and association (section 2) as well as the right to life, liberty and security of a person (section 7). Accordingly, the appellants raised a constitutional challenge, together with applications for an interim injunction to delay the legal effects of Bill 24 until the constitutional challenge was decided. Both applications of interim injunctions were denied in the Court of Queen’s Bench by the chambers judge (the “Judge”).
The Court held that the Judge had not erred in declining to grant an injunction regarding the NLP, as the Judge had reasonably found that the appellants did not establish irreparable harm (which is one component of a three-part test for granting injunctions) due to a failure to provide “credible evidence to prove that sexually explicit material has been disseminated in a GSA.” Further, the Court found the Judge had reasonably concluded that the benefits of GSAs, which were shown to “result in positive effects for the LGBTQ+ and other students”, constituted the “presumed good of the legislation” and, accordingly, the Court declined to interfere with such decision.
The majority of the Court also found that the Judge had not erred in declining to grant injunctive relief with respect to the ARP. The majority recognized that the appellants had demonstrated “that there is now a real and non-speculative risk that at least some appellant schools will lose funding” due to a Ministerial Order stating that funding for 2019-2020 would be withheld in the event that a school did not comply with said ARP. However, the majority also found the evidence demonstrating the benefits of the GSAs with respect to “protecting the safety and privacy interests of individual children” to be “more compelling than the new evidence of schools’ termination of funding for non-compliance with the legislation.” As such, the Court also declined to interfere with the Judge’s decision on this issue.
Although the dismissal of appeals with respect to these injunctions may not be a welcome decision to many faith-based schools in Alberta and parents of students at these schools, the Court clarified that its decision does not affect the main action itself, i.e. the constitutional validity question with respect to the Act. As such, faith-based schools should continue to monitor the developments in this case, which has been expedited by the Court.