Ontario Public School Boards' Asscociation v. Attorney General of Ontario

Ontario Public School Boards' Asscociation v. Attorney General of Ontario Collection Decisions of the Court of Appeal Date 1999-04-27 Docket numbers C30294, C30421, C30428 Judges McMurtry, Roy Subject Civil Decision Content DATE: 19990427 DOCKETS: C30294, C30421, C30428 COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., BROOKE, ABELLA, GOUDGE and BORINS JJ.A. BETWEEN: ) ) Janet E. Minor, Robert E. Charney ONTARIO ENGLISH CATHOLIC TEACHERS' ) and Michel Y. Hélie, for the ASSOCIATION, MARSHALL JARVIS, ) Attorney General of Ontario CLAIRE ROSS and ANNEMARIE ROSS ) ) Respondents ) Paul J. J. Cavalluzzo, for Ontario (Applicants) ) Catholic Teachers' Association, ) Marshall Jarvis, Claire Ross and - and - ) Annemarie Ross ) ATTORNEY GENERAL OF ONTARIO ) Peter Lauwers and John C.Murray, ) for Ontario Catholic School Trustees' Appellant ) Association (Respondent) ) ) John C. Murray and Paul S. Rouleau, - and - ) for Association franco-ontarienne des ) conseils scolaires catholiques ONTARIO CATHOLIC SCHOOL TRUSTEES' ) ASSOCIATION and ASSOCIATION FRANCO-) Brian A. Kelsey, Q.C., Eric K. Gillespie, ONTARIENNE DES CONSEILS SCOLAIRES ) Michael A. Hines and Elizabeth Shilton, CATHOLIQUES ) for Ontario Public School Boards' ) Association Interveners ) (Interveners) ) Michael A. Hines, for Upper Grand ) District School Board ) AND BETWEEN: ) Brian A. Kelsey, Q.C. and Eric K. ) Gillespie, for The Toronto District ONTARIO PUBLIC SCHOOL BOARDS' ) School Board ASSOCIATION, UPPER GRAND DISTRICT ) SCHOOL BOARD, THE TORONTO DISTRICT ) Maurice A. Green and Susan M. Ursel, SCHOOL BOARD, ONTARIO SECONDARY ) for Ontario Secondary School SCHOOL TEACHERS' FEDERATION, ) Teachers' Federation ELEMENTARY TEACHERS' FEDERATION ) OF ONTARIO, ELIZABETH SANDALS, ) Elizabeth J. Shilton, for Elementary JOLEENE KEMP, DAVID EDWARDS, ) Teachers' Federation of Ontario and ROBERT CHURCHILL ) ) Michael A. Hines, Respondents ) for Elizabeth Sandals (Applicants) ) ) Michael A. Hines, - and - ) for Joleene Kemp ) ATTORNEY GENERAL OF ONTARIO ) Maurice A. Green and Susan M. Ursel, ) for David Edwards Appellant ) (Respondent) ) Maurice A. Green and Susan M. Ursel, ) for Robert Churchill - and - ) ) John C. Murray and Paul S. Rouleau, ASSOCIATION DES CONSEILLERS(ÈRES) ) for Association des conseillers(ères) DES ÉCOLES PUBLIQUES DE L'ONTARIO ) des écoles publiques de l'Ontario and ANNIE KIDDER ) ) Michael A. Hines, Interveners ) for Annie Kidder (Interveners) ) ) Brian A. Kelsey, Q.C. and Eric K. ) Gillespie, for Metro Toronto School ) Board ) ) Elizabeth Shilton, for Federation of ) Women Teachers' Association of ) Ontario ) ) Heard: November 16, 17, 18 and 19, ) 1998 On appeal from the judgment of Peter Cumming J. without a jury dated July 22, 1998 BY THE COURT: INTRODUCTION [1] The Education Quality Improvement Act, S.O. 1997, Cc. 31 (the "EQIA") received royal assent on December 8, 1997. It amended in various respects the Education Act, R.S.O. 1990, c. E.2 and in doing so, it brought about fundamental changes in the governance and funding of education in Ontario. In the court below, the EQIA was referred to as "Bill 160", in reference to its original enactment. [2] In this appeal we are asked to find that several parts of the EQIA are, for various reasons, unconstitutional. These challenges, which we will deal with in turn, are as follows: 1. In rendering inoperative the right of separate school boards to tax their supporters with respect to separate schools, the EQIA violates s. 93(1) of the Constitution Act, 1867. 2. By limiting the budgeting and spending powers of separate school boards and by providing for supervision by the Minister of Education of separate school boards in financial difficulty, the EQIA also violates s. 93(1). 3. The EQIA adversely affects the rights and powers of public school boards in the same way and thereby violates the s. 93 rights of those boards. 4. In rendering inoperative the school board right to tax, the EQIA is in violation of constitutional convention. 5. The EQIA is ultra vires insofar as it permits the Minister of Finance to impose school taxes by regulation. [3] These issues were the subject of two applications heard together before the Honourable Mr. Justice Cumming. His reasons for judgment were released on July 22, 1998, and are reported at 162 D.L.R. (4th) 257 (Ont. Ct. (Gen. Div.)). [4] Save for the first issue, that of the right to tax, the other constitutional challenges all failed at first instance. In disposing of the first issue, Cumming J. declared the EQIA (and the Education Act as amended by the EQIA) unconstitutional insofar as it removes or affects the right or privilege to tax from the Roman Catholic community with respect to their its denominational schools. He suspended the operation of this order for seventeen months to enable the provincial government to restore the right to tax to denominational schools by the year 2000. [5] In this court the parties divided themselves into two groups. [6] Those seeking to uphold the legislation were led by the Attorney General of Ontario. He was supported by the Ontario Catholic School Trustees Association ("OCSTA") representing twenty-nine English language separate school boards. Also supporting the Attorney General were the Association franco- ontarienne des conseils scolaires catholiques ("AFOCSC") representing French language separate school trustees and the Association des conseillers(ères) des écoles publiques de l'Ontario ("ACEPO") representing trustees of the four French language public school boards in Ontario. [7] Those challenging the legislation were led by the Ontario English Catholic Teachers' Association ("OECTA") which represents some 32,000 separate school teachers in Ontario. OECTA was supported by Marshall Jarvis and Claire Ross, two separate school teachers, and by Annemarie Ross, a separate school supporter. [8] The second major challenger of the legislation was the Ontario Public School Boards' Association ("OPSBA") representing over ninety public school boards in Ontario. It was joined by the Upper Grand District School Board and the Toronto District School Board. In the same group were the Ontario Secondary School Teachers' Federation ("OSSTF") representing some 35,000 secondary school teachers in the public school system, the Elementary Teachers' Federation of Ontario ("ETFO") representing elementary school teachers in the public school system, Robert Churchill and Elizabeth Sandals as public school supporters, David Edwards and Joleene Kemp as separate school supporters, and Annie Kidder as the spokesperson of People for Education, representing parents from both public and separate schools in Ontario. [9] With this introduction we now move to the issues raised on this appeal. We will address them in turn and, in each case, will refer to the relevant facts and legislative history necessary for our discussion of that issue. [10] Before doing so, however, it is important to underline that our task is to address the legal issues presented to us. The EQIA undoubtedly provides the context for much important policy debate and public discussion. It is not for us to participate in that debate or, indeed, to comment on those matters. Our task is to address the legal questions before us and to that we now turn. THE RIGHT TO TAX [11] The EQIA added s. 257.106 to the Education Act. That section renders inoperative the right to tax held by public and separate school boards. Cumming J. held that the removal of the taxation power from separate boards violated the guarantee provided by s. 93(1) of the Constitution Act, 1867. The Attorney General and those supporting him appeal from this finding. [12] Section 93(1) reads as follows: In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:— (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union: [13] The essence of the decision under appeal at the instance of the Attorney General is captured in the following passage found at p. 299 of the judgment below: There are five certainties. First, there is a denominational right of Roman Catholics in Ontario to a separate school system. Second, adequate financing is a necessary means to the real achievement of that separate school system. Third, the language of s. 7 of the Scott Act in conferring the right to tax locally is clear and express in providing an independent means to the Roman Catholic community to achieve the realization of their separate school system. Fourth, the language of s. 93(1) protects the rights and privileges "with respect to Denominational Schools" accorded by the law, including s. 7 of the Scott Act, at Confederation. Fifth, the right to tax locally, recognized by s. 7 of the Scott Act, is repealed by Bill 160. Constitutional rights are constitutional rights. In the absence of a constitutional amendment, the province cannot lawfuly impinge upon such rights. [14] The analysis of this issue must begin with a consideration of s. 93(1) and the jurisprudential approach to it that has evolved through its much litigated history. [15] The section represents one of the great compromises which made Confederation possible. It accords to the provinces legislative jurisdiction over education, but provides clear protection to the denominational educational rights of the religious minorities in both Canada East and Canada West. In the new Ontario, this minority was the Roman Catholic community. [16] In Reference Re an Act to Amend the Education Act (Ontario) (1987), 40 D.L.R. (4th) 18 at 44 (S.C.C.) at 44, Wilson J. described the challenge facing the court as that of breathing life into this compromise. She went on to say this at p. 58: Section 93(1) should, in my view, be interpreted in a way which implements its clear purpose which was to provide a firm protection for Roman Catholic education in the province of Ontario and Protestant education in the province of Quebec. And again, at p. 59: This conclusion, it seems to me, is fully consistent with the clear purpose of s. 93, namely that the denominational minority's interest in a separate but suitable education for its children be protected into the future. [17] The importance of taking a purposive approach was underlined by Iacobucci J. in the recent case of Ontario Homebuilders' Assn. v. York Region Board of Education (1996), 137 D.L.R. (4th) 449 at 489 (S.C.C.) at 489 when he cautioned that a formalistic interpretation of s. 93(1) may not, in fact, protect the substance of the guarantee contained therein. [18] Without a purposive approach there is a risk that the delicate compromise embodied in s. 93 could become a historical straitjacket for both the provincial power to legislate about education on the one hand, and the denominational guarantee of separate schools on the other. [19] Speaking of the provincial jurisdiction over education, Viscount Cave L.C. put it this way in the famous passage in Hirsch v. Protestant Board School Com'rs of Montreal et al., [1928] 1 D.L.R. 1041 at 1052 (J.C.P.C.) at 1052: While s. 93 of the Act of 1867 protects every right or privilege with respect to denominational schools which any class of persons may have had by law at the Union, it does not purport to stereotype the educational system of the Province as then existing. On the contrary, it expressly authorizes the provincial Legislature to make laws in regard to education subject only to the provisions of the section; and it is difficult to see how the Legislature can effectively exercise the power so entrusted to it unless it is to have a large measure of freedom to meet new circumstances and needs as they arise. [20] Referring to the denominational guarantee, Beetz J. in Greater Montreal Protestant School Board v. Attorney General of Quebec (1989), 57 D.L.R. (4th) 521 at 536 (S.C.C.) at 536 said this: It is true that the rights or privileges under ordinary law to which s. 93(1) refers have been frozen at Confederation. But just like the basic provincial power which, as Viscount Cave explained, was not "stereotyped" at the Union, the exception to that power has also matured over time through judicial interpretation. The approach courts have taken to the interpretation of the expression "with respect to Denominational Schools" in cases such as Hull, [Attorney General of Quebec v. Greater Hull School Board et al. (1984), 15 D.L.R. (4th) 651 (S.C.C.)], which I will discuss below, demonstrates that the law in force "at the Union" cannot on its own set the content of the constitutional right in s. 93(1). [21] Hence, it is clear that only a purposive approach can move this great compromise of Confederation across the ages to preserve for today the delicate balance of interests that is s. 93. [22] Where legislation is challenged as violating the constitutional guarantee of s. 93, the test to be applied was first elaborated by Chouinard J. in Attorney General of Quebec v. Greater Hull School Board et al., supra at p. 657. There must be a right or privilege affecting a denominational school enjoyed by a particular class of person by a law, in effect at the time of the Union and which is prejudicially affected by the challenged legislation. [23] In Greater Montreal Protestant School Board, supra at p. 545, Beetz J. provided a significant refinement to the approach which the court is to apply in determining whether a right is protected by s. 93. The court must first distinguish between the denominational and the non-denominational aspects of denominational schools, and then further distinguish between those non-denominational aspects which are necessary to give effect to denominational guarantees and those which are not. A right that is a non-denominational aspect of denominational schools is protected only insofar as it is necessary to give effect to denominational guarantees. [24] The right at stake here is the right of separate school boards to tax separate school supporters for education purposes. This right was clearly provided for at Confederation by s. 7 of the Act to restore to Roman Catholics in Upper Canada certain rights in respect to Separate Schools (1863), 26 Vic. C. 5. This Act, known as the Scott Act, provided the following in s. 7: 7. The Trustees of Separate Schools forming a body corporate under this Act, shall have the power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools, and shall have all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools. [25] The companion to s. 7 was s. 20 of the Scott Act which reads as follows: 20. Every Separate School shall be entitled to a share in the fund annually granted by the Legislature of this Province for the support of Common Schools, and shall be entitled also to a share in all other public grants, investments and allotments for Common School purposes now made or hereafter to be made by the Province or the Municipal authorities, according to the average number of pupils attending such school during the twelve next preceding months, or during the number of months which may have elapsed from the establishment of a new Separate School, as compared with the whole average number of pupils attending School in the same City, Town, Village or Township. [26] Together these two sections provided the means of financing separate schools at the time of Confederation. This financing regime was created in the context of the general purpose of the Scott Act as set out in its preamble: WHEREAS it is just and proper to restore to Roman Catholics in Upper Canada certain rights which they formerly enjoyed in respect to separate Schools, and to bring the provisions of the Law respecting Separate Schools more in harmony with the provisions of the Law respecting Common Schools…. [27] Accordingly, the context in which s. 93(1) was written was one where funding for both separate and public schools in Ontario came from a combination of local taxes as set by the particular school board and provincial grants. Complete provincial responsibility for the financing of education was simply outside the experience of the founders of Confederation. [28] The record in this matter contains much history of the financing of education in Ontario since 1867. It is sufficient to say that this history shows that the relative importance of local taxes compared to provincial grants in funding education has waxed and waned over the years. Two problems, though, have remained relatively constant for separate schools in Ontario. First, the assessment base per pupil provided by separate school supporters has generally been poorer than the assessment base available to public schools so that at the same tax rate, less funding per pupil is provided from local taxes to separate school boards than to their counterparts in the public system. Second, because local taxpayers can switch their support from the separate school to the public school, separate school boards have generally been constrained from imposing a higher tax rate than that imposed by their counterpart public boards for fear of taxpayer migration. [29] Cumming J. set out his finding in this respect as follows at p. 275: Another aspect of the complex funding dilemmas has been that the fiscal autonomy of separate boards has been somewhat illusory in reality. As a practical matter, a separate school board was limited in the mill rate it could impose by that set by the coterminous public board. Experience has shown that a separate board cannot tax at a higher rate than the coterminous public school board or the separate school board will lose some of its supporters to the public school system, and its tax base will erode. Therefore, in reality, the separate boards have been captive to the taxing decisions of their coterminous public school boards. [30] The EQIA introduced an entirely new approach to the raising of funds for education and to the expenditure of those funds. As to the former, the right to tax held by both public boards and separate boards is made inoperative. Local taxes remain a source of funding, although much less important. The provincial Minister of Finance sets the local tax rate to be paid by both public school supporters and separate school supporters. The balance of the funding is provided from provincial funds. [31] The EQIA, in s. 234(2), requires that education funding will be distributed fairly and without discrimination as between public boards and separate boards. Funding equivalence with public schools is, therefore, statutorily guaranteed to separate schools. [32] Moreover, there can be no argument raised that under the EQIA the overall level of funding provided to separate boards is reduced to a level that is inadequate to ensure the continued viability of the separate system. Indeed, at pp. 297-298 of his reasons for judgment Cumming J. had this to say: The rights guaranteed by s. 93(1) include the right to proportional sharing by separate schools in provincial government funding for education. Bill 160 meets this obligation. As well, the Government has brought a greater quantitative amount of funding to the overall separate school system through the redistribution scheme inherent to Bill 160. In this sense, Bill 160 enhances the separate school system at this point in time by providing more monies to it. [33] Set in this context, then, the debate is whether the right of separate boards to tax their supporters is constitutionally protected by s. 93(1). The appellant Attorney General's position, stripped to its essentials, is that what is protected by s. 93 is not the right to tax but funding of the separate school system necessary to provide its students with the constitutional guarantee of equality of educational opportunity. Since the EQIA supports and does not undermine this objective it does not violate s. 93. [34] While OCSTA supports this position, it also argues for constitutional protection of the assessment base provided by the supporters of the separate system as insurance against a day when locally imposed taxes might be necessitated to preserve the separate system in the face of a removal of provincial funding. Since the EQIA provides for provincially imposed taxes to be levied on separate school supporters, this assessment base is preserved by the challenged legislation. [35] On the other hand, OECTA and those supporting its position argue that Cumming J. was correct in finding the right to tax to be constitutionally protected. They say that binding jurisprudence dictates this result and that the right to tax is necessary to assure the autonomy of the separate school system which is at the heart of the constitutional guarantee. ANALYSIS [36] It is appropriate to begin the analysis by turning to the jurisprudence that is said to constitutionally guarantee the right to tax. [37] The principal decision relied on by the respondents is Attorney General of Quebec v. Greater Hull School Board et al, supra. The context of this decision was the province of Quebec education system, whereunder which both Catholic and Protestant schools in Montreal and Quebec City are accorded s. 93 protection. The case concerned provincial legislation passed in 1979 in Quebec that made significant changes to the financing of denominational education in that province. [38] One of the legislated changes that was challenged in the litigation was the change made to the power of local school boards to tax their supporters for educational purposes. The 1979 legislation introduced the requirement that the power to impose taxes above a specified level be subjected to approval by referendum. However, the legislation did not limit the voters in the referendum to the supporters of the particular school board. This aspect of the legislation was found by the Supreme Court of Canada to violate the s. 93 guarantee. Speaking for the majority, Chouinard J. put his conclusion this way at p. 668: Under the 1861 Act, school commissioners and trustees had the power to levy taxes "in their respective municipalities". Catholic and Protestant commissioners in Montreal and Quebec and the trustees of dissentient schools had the power to levy such taxes on their Catholic or Protestant populations, as the case might be. It is a prejudicial invasion of the rights and privileges of classes of persons encompassed by s. 93 to subject the exercise of the power of a school board to decide on an expense requiring a tax, to the approval of all electors in the Island of Montreal, whatever school board they belong to and whatever their religious affiliation. [39] It was argued that this constitutes a finding that the right of denominational school boards to tax their supporters is constitutionally guaranteed by s. 93 in all circumstances. However, a closer reading of the case indicates that this is not correct. [40] Chouinard J.'s concern was not simply that the right to tax was tampered with. Rather, he was troubled by the way in which it was limited. The defect in the 1979 legislation was that it subjected the right to tax the denominational community to the control of those outside that community. That was the prejudicial effect of the challenged amendments. In other words, Chouinard J.'s judgment does not support the conclusion that there is a constitutionally guaranteed local right to tax simpliciter. Rather, it establishes that where there is to be a local right to set the tax to be paid by denominational supporters, s. 93 requires that that right it be exercised by the denominational community itself, free of control from outsiders. [41] This reading of Greater Hull is consistent with the Supreme Court of Canada decision in Reference re Education Act (Quebec) (1993), 105 D.L.R. (4th) 266. There, Gonthier J., speaking for the full court, referred at 285-286 to Greater Hull as establishing that the right of commissioners and trustees to levy taxes within the boundaries of their respective municipalities is a right protected by s. 93(1). [42] That he was referring, not to the right to tax simpliciter, but rather to the right to exercise the power to tax free from control of those outside the boundaries of the denominational community is made clear by his later discussion at pp. 321-322. There, he was considering the constitutionality of certain provisions in Bill 107 that transferred the local school taxing power for the entire island of Montreal to the Conseil scolaire de l'île de Montréal. This transfer created the possibility that a dissentient school board that was newly created on the island of Montreal, but outside the City of Montreal, would not have the right to tax which it would have had in 1867. Gonthier J. found that this did not violate the s. 93 guarantee and that Bill 107 met the requirements laid down in Greater Hull. He put it this way at pp. 321-322: A problem would arise in the event a dissentient school were created outside the territory of the City of Montreal, either as the result of a reduction in the territory of the denominational boards in Montreal or otherwise. In such a situation, a dissentient school could then be created on the island of Montreal and, under Bill 107, it would be subject to the authority of the Conseil, while, as I have just said, it would "ordinarily" have the right to collect its taxes itself. It is not certain that this would have a prejudicial effect. One may also take a broad view of the guarantees offered by the Constitution, as does René Hurtubise, "La confessionnalité de notre système scolaire et les garanties constitutionnelles" (1962), 65 R. du N. 167. According to that author, and I share his view, fundamentally what matters is having the financial and physical resources to operate school boards. The taxing power is only one possible means of attaining this end. If it can be done otherwise, such as by an equal, or at least appropriate and equitable, allocating of financing sources, it is hard to speak of a prejudicial effect. [43] Thus, the fundamental necessity in financing denominational education is having the financial and physical resources to operate the separate school system. [44] This theme conclusion is reinforced by Reference re an Act to Amend the Education Act (Ontario), supra. There, Wilson J. found that the constitutionally guaranteed right to a separate school system includes secondary school as well as elementary school. At p. 59 she says stated in reference to this right of the Roman Catholic community to have their children receive instruction at the secondary school level: It is clear that if the foregoing right was to be meaningful an adequate level of funding was required to support it. This court held unanimously in A.-G. Que. v. Greater Hull School Board (1984), 15 D.L.R. (4th) 651, [1984] 2 S.C.R. 575, 28 M.P.L.R. 146, that the right of dissentient schools in Quebec to a proportionate share of government funding was a right protected by s. 93 of the Constitution Act, 1867. Likewise, in my view, the right of separate schools in Ontario. They were entitled to the proportionate funding provided for in s. 20 of the Scott Act. This conclusion, it seems to me, is fully consistent with the clear purpose of s. 93, namely that the denominational minority's interest in a separate but suitable education for its children be protected into the future. [45] The theme holding is picked up again reaffirmed in Ontario Homebuilders' Association, supra. That case focussed on the right of denominational schools found in s. 20 of the Scott Act to share in provincial education grants rather than the right of denominational school boards to tax their supporters. Nevertheless, at p. 490 Iacobucci J. spoke of the constitutional baseline provided by s. 93(1) in the following terms: While the notion of proportionality contained in s. 20 of the Scott Act is a constitutional right embodied in s. 93(1), the substantive purpose of this notion must be borne in mind: the achievement of an educational system that distributes provincial funds in a fair and non-discriminatory manner to common and separate schools alike. This is the substantive guarantee offered by s. 93(1). [46] The conclusion, therefore, is that the jurisprudence does not support the proposition that s. 93(1) guarantees to denominational school boards the right to tax simpliciter. The constitutional protection is not so narrowly focussed. Rather, s. 93(1) guarantees to the separate school community financial resources distributed in a fair and non-discriminatory manner in such a way as to manifest the purpose of the section,; namely, in Wilson J.'s eloquent phrase, that the denominational minority's interest in a separate but suitable education for its children be protected into the future. [47] This conclusion drawn from the jurisprudence is firmly grounded in principle. The right of separate school boards to tax their supporters for separate school purposes is a right affecting denominational schools enjoyed by the Roman Catholic community by law at Confederation. This right to tax is clearly a non-denominational aspect of denominational schools. However, to attract the protection of s. 93(1) it must be a right which is necessary to give effect to denominational guarantees. It is this criterion which cannot be met. [48] The right to tax is simply a particular method of funding denominational education. There is nothing denominational about the right to tax, nor does it serve denominational ends that other ways of funding the separate system would not. It is the existence of funding, not the specific method used to provide it, that ensures the survival of the separate school system and permits those responsible for it to make the expenditure decisions that are required to ensure its denominational character. For these objectives to be achieved there is no need that the funding be provided by way of taxes imposed by separate school boards on their supporters. [49] If there is funding the separate school system can continue to exist and can continue to provide education with a denominational character, with or without the right to tax. It is the funding, not the right to tax, that is the necessity. [50] Moreover, we do not agree that the right to tax is constitutionally guaranteed because it protects the financial autonomy of the separate school system. [51] First, the right to tax has historically not given the separate system financial autonomy. Its poorer assessment base and the risk of taxpayer migration away from the system have always placed very significant practical constraints on the power of separate school boards to tax their supporters. The right to tax has never provided separate school boards with more than limited financial autonomy. [52] Second, even if the right to tax could be said to give a certain measure of financial autonomy to the separate system, that is not necessary to protect the constitutional guarantee. What is necessary is that there be funding for the separate system sufficient to continue to deliver separate but suitable education for Roman Catholic children. [53] This constitutionally protected right is not as tightly drawn as the right to tax. Hence, it permits the province considerable flexibility in legislating in relation to education so as to meet new circumstances and needs as they arise. The delicate balance of s. 93(1) is thus preserved. [54] Our conclusion, therefore, is that the EQIA does not violate s. 93(1) insofar as it renders inoperative the right to tax. That right is not constitutionally protected. Moreover, the legislation does not prejudicially affect the right to funding that is guaranteed by s. 93(1). It provides greater funding to separate schools than that previously available and it ensures that funding for education is distributed equitably to separate schools and public schools alike. It respects the constitutional guarantee of s. 93(1). [55] We have found that there is a constitutionally guaranteed right to funding which the EQIA does not diminish. It is, therefore, unnecessary to address the argument of OCSTA that this constitutional protection extends to protect the denominational assessment base. OCSTA acknowledges that the EQIA preserves that base and cannot, therefore, be said to prejudicially affect it. This constitutional issue is best left to be resolved in a context in which the legislation puts that assessment base at risk. [56] In the result, the appeal on this issue must be allowed, the declarations of unconstitutionality must be set aside, and the applications in this respect must be dismissed. THE RIGHT OF FINANCIAL MANAGEMENT [57] In the challenge to the EQIA, OECTA, and those in like interest, say that the legislation violates the constitutionally protected right of financial management held by separate school boards over separate schools in two respects. First, the EQIA imposes a regulatory regime on both public school boards and separate school boards that places certain limits on their ability to make spending decisions. Second, Division D of the EQIA (s. 257.30 to s. 257.52) provides for supervision by the Minister of Education of separate school boards in financial difficulty. [58] The essence of OECTA's argument is that in both respects the EQIA violates s. 93(1) of the Constitution Act because it prejudicially affects the constitutional right of the Roman Catholic community to separate management and control of its denominational schools by imposing restrictions on the autonomy of separate school boards to make spending decisions. [59] Cumming J. found that in neither respect did the EQIA violate s. 93(1). First, he concluded that there was no evidence of any prejudicial effect on a denominational right because of the restrictions on the power of financial management imposed by the EQIA. Second, he found that Division D of the EQIA set out defined and assessable standards both for the imposition and removal of the vesting order by which the Minister of Education takes over supervision of a separate school board in financial difficulty. He concluded that the legislation meets the requirement of s. 93(1). [60] For the reasons that follow, we agree with these conclusions. We will deal in turn with these two challenges made to the EQIA. LIMITATIONS ON SPENDING AUTONOMY [61] As we have described, s. 93(1) represents a delicate balance between the province's right to legislate in respect of education and the constitutional protection accorded to separate schools. The application of s. 93(1) must be done purposively. It requires that there be a right or privilege affecting a denominational school enjoyed by a particular class of persons by law at Confederation and which is prejudicially affected by the challenged legislation. The protection of s. 93(1) extends to denominational aspects of denominational schools, as well as non- denominational aspects, necessary to give effect to denominational guarantees. [62] The analysis of OECTA's argument on this issue must begin with an examination of the spending power held by separate school boards by law at Confederation. That s. 93(1) protects only rights and privileges held by law was established by Wilson J. in Reference Re an Act to Amend the Education Act (Ontario), supra at p. 45: It must be remembered, however, that s. 93(1) only protects rights and privileges guaranteed by law. Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave. Whether various bodies or officials were in fact exercising the powers statutorily conferred upon them is irrelevant to our inquiry. [63] By s. 7 of the Scott Act separate school trustees were given the same powers as public school trustees. To reiterate, s. 7 reads as follows: 7. The Trustees of Separate Schools forming a body corporate under this Act, shall have the power to impose, levy and collect School rates or subscriptions, upon and from persons sending children to, or subscribing towards the support of such Schools, and shall have all the powers in respect of Separate Schools, that the Trustees of Common Schools have and possess under the provisions of the Act relating to Common Schools. [64] The spending power of public school trustees (or common school trustees as they were known at Confederation) is found in An Act respecting Common Schools in Upper Canada, 22 Vict., c. 64 (known as the Common Schools Act of 1859), particularly in ss. 27 and 79. Broadly speaking, that legislation gave trustees the power to make expenditures for school purposes including expenditures for maintaining school buildings, purchasing equipment and paying teachers' salaries. The relevant parts of ss. 27 and 79 read as follows: 27. It shall be the duty of the Trustees of each school section, and they are hereby empowered: . . . 10. To provide for the salaries of Teachers and all other expenses of the School, in such manner as may be desired by a majority of the freeholders and householders of such section, at the annual school meeting, or at a special meeting called for that purpose, and to employ all lawful means, to collect the sums required for such salaries and other expenses; and should the sums thus provided be insufficient to defray all the expenses of such school, the Trustees may assess and cause to be collected an additional rate, in order to pay the balance of the Teacher's salary and other expenses of such school; 79. It shall be the duty of the Board of School Trustees of every City, Town and Village respectively, and they are hereby authorized: . . . 5. To manage or dispose of such property, and all moneys or income for Common School purposes; [65] However, in 1867 neither public nor separate school boards had unconstrained autonomy in spending decisions. While s. 20 of the Scott Act gave separate schools the right to an equitable share of provincial grants for education, ss. 123 and 124 of the Common Schools Act made it clear that both public and separate schools were required to spend these funds wholly on teachers' salaries. Sections 123 and 124 read as follows: 123. The sum of money apportioned annually by the Chief Superintendent of Education to each County, Township, City, Town or Village, in aid of Common Schools therein respectively, shall be payable on or before the first day of July, in each year, to the Treasurer of each County, City, Town and Village, in such way as the Governor in Council from time to time directs, and such sum, together with at least an equal sum raised annually by local assessment, shall constitute and be called the Common School Fund of such County, Township, City, Town or Village; and no part of the Salaries of the Chief or Local Superintendents, nor of any other persons except Teachers employed or of any expenses incurred in the execution of this Act, shall be paid out of the said Common School Fund, but such Fund shall wholly and without diminution, be expended in the payment of Teachers' Salaries as herein provided. 124. No County, City, Town or Village shall be entitled to a share of the Legislative School Grant without raising by assessment a sum at least equal (clear of all charges for collection) to the share of the said School Grant apportioned to it; and should the Municipal Corporation of any County, City, Town or Village, raise in any one year a less sum than that apportioned to it out of the Legislative School Grant, the Chief Superintendent of education shall deduct a sum equal to the deficiency, from the apportionment to such County, City, Town or Village, in the following year. [66] A further important legal constraint on the spending power of separate school boards at Confederation was the regulatory authority of the provincial office of the Council of Public Instruction. Section 114 of the Common Schools Act created the Council of Public Instruction as an agency for the province. By s. 119(4) the Council was empowered to make such regulations as it deemed expedient for the organization, government and discipline of common schools. Section 26 of the Scott Act made separate schools subject to such regulatory authority as the Common Schools Act did in respect of public schools. Section 26 of the Scott Act reads as follows: 26. The Roman Catholic Separate Schools, (with their Registers), shall be subject to such inspection, as may be directed from time to time, by the Chief Superintendent of Education, and shall be subject also, to such regulations, as may be imposed, from time to time, by the Council of Public Instruction for Upper Canada. [67] In Reference Re an Act to Amend the Education Act (Ontario), supra Wilson J. made clear that the regulatory authority of the Council was not unfettered and could not be used to frustrate the very legislative scheme under which the authority was conferred. It could not nullify the separate school trustees' power under the Scott Act to provide a secondary level of instruction in their schools if they deemed it appropriate. [68] Two years later, in Greater Montreal Protestant School Board, supra Wilson J., in concurring reasons, described the other side of the coin, namely the extent of the Council's regulatory authority in the context of the s. 93(1) analysis. The issue in that case concerned the extent to which of the protection provided by s. 93(1) protects the right of denominational trustees to control by denominational trustees of the separate school curriculum. [69] At p. 554 of that judgment she concluded that while separate schools enjoyed a substantial measure of control over the curriculum as a factual matter at the time of Union, the s. 93(1) protection accorded was limited because "… the Province of Ontario had by law the overriding authority to restrict that control if it so desired, provided that in doing so it did not undermine the denominational character of the separate schools". [70] This overriding provincial regulatory authority thus limited the constitutional protection accorded to control over curriculum by denominational schools to that control necessary to secure the denominational character of the separate schools. [71] This reasoning applies equally to the right of separate school boards to make spending decisions. At Confederation the Council had the overriding regulatory authority to restrict expenditure decisions provided that in doing so the denominational character of the separate schools was not undermined. Hence, even if the provincial office of the Council did not in fact exercise its regulatory authority over separate boards' spending decisions in 1867, the existence of this authority limits the scope of the constitutional protection accorded by s. 93(1) to spending decisions necessary to secure the denominational character of the separate schools. [72] It is next necessary to examine the constraints on the spending decisions of separate school trustees that are imposed by the EQIA. Section 234 of the Act empowers the Lieutenant Governor in Council to make regulations governing the making of grants for educational purposes from money appropriated by the legislature. Ontario Reg. 287/98, passed pursuant to this authority, sets out the new funding model for public and separate schools in Ontario. Each school board receives an annual foundation grant made up of ten components. It also receives annually specialized grants including a pupil accommodation grant, a phase-in adjustment, and nine special purposes grants, one being for special education and another being for school administration. These various categories of funding are defined by the model as either "classroom spending" or "non-classroom spending". [73] The model imposes specific restrictions on spending by school boards. First, funds cannot be shifted from "classroom spending" to "non-classroom spending", although the reverse is permitted. Second, special education grants may not be spent on other costs. Third, certain parts of the pupil accommodation grant may be used only for construction expenditures. Fourth, the school board administration grant cannot be supplemented from any other grant. Finally, the model determines the total funding which each board will receive each year, thereby providing a ceiling on board expenditures for that year. [74] It is these constraints that OECTA contends prejudicially affect the right of separate school boards to the spending autonomy that is said to be constitutionally protected by s. 93(1). For the following reasons this contention must fail. [75] First, none of the constraints created under the EQIA prejudicially affects powers over spending held by separate school boards in 1867 that were protected by s. 93(1). Because of the existence in 1867 of the overriding provincial regulatory authority, such spending powers are limited to those necessary to secure the denominational character of school boards. The EQIA restrictions apply equally to public and separate school boards so as to limit the spending power of trustees of both school systems in relation to matters that are entirely non- denominational. For example, public school boards and separate school boards alike are prohibited from making non-classroom expenditures from funds designated for classroom expenditures. There is nothing in the record that would permit the conclusion that this limitation affects in any way the spending necessary to secure the denominational character of separate schools. The same is true of the other spending restrictions imposed under the EQIA. There is no suggestion that any of these limits prevent separate school boards from hiring Roman Catholic teachers or chaplains, from providing space for chapels, or from designing and delivering denominational aspects of the curriculum. [76] Second, the s. 93 analysis propounded by Beetz J. in Greater Montreal Protestant School Board, supra yields the same conclusion. There is nothing in the record to suggest that limitations on the spending powers of separate school boards prejudicially affect any right or privilege of these boards which is necessary to give effect to denominational guarantees. The spending limits simply do not appear to damage the continuing viability of the separate school system, or its ability to provide suitable education with a denominational character. [77] We therefore agree with Cumming J. who rejected OECTA's argument in this respect at p. 286: This submission is rejected. Leaving aside the issue of the right to tax locally and the possible consequences of the denial of the right, there is not otherwise any evidence of any prejudicial effect on a denominational right because of the strictures upon the powers of management imposed by Bill 160. Within the constraints of the spending envelopes for all school boards under Bill 160, the separate school boards retain full managerial discretion. The prescriptive elements of the new funding model will direct board spending to a considerable degree. However, there is nothing to suggest that Catholic boards will be prevented from taking denominational matters into account in all aspects of their operations, such as teacher hiring, curriculum, programs and in respect of capital facilities. [Emphasis added.] [78] Third, we disagree with the submission of OECTA that these limitations are unconstitutional because they constitute a restriction on the full spending autonomy of separate school boards which is argued to be necessarily inherent in the constitutional right to have a separate school system. There can, of course, be no doubt that s. 93(1) guarantees the denominational minority a separate system in which to educate their children. That guarantee does not, however, stretch to the kind of complete autonomy contended for by OECTA – an autonomy, as we have described, which did not exist by law in 1867 and which is not necessary to protect the constitutional value. Moreover, just because there must be a separate denominational school system does not necessarily mean that separate school boards must have full spending autonomy. On the contrary, the history of separate schools, both before and after Confederation, reveals that the system has remained distinct and viable without such autonomy. [79] We therefore conclude that Cumming J. was correct in finding that the EQIA does not impose unconstitutional limits on the spending rights of separate school boards. PROVINCIAL SUPERVISION OF SEPARATE SCHOOL BOARDS [80] Division D of the EQIA lays out a detailed scheme providing for provincial supervision of the affairs of a school board that has experienced certain defined financial difficulties. These provisions replace those of the Municipal Affairs Act, R.S.O. 1990, c. M. 46 which empower the province to take supervisory authority over a municipality or school board once certain pre- conditions, as spelled out in that legislation, have arisen. [81] Division D is triggered where a school board has a deficit in a fiscal year (something prohibited by the EQIA), fails to pay its debts when due, or otherwise conducts itself so that the Minister of Education has concerns about its ability to meet its financial obligations. In any of these circumstances, the Minister may direct an investigation of the board's financial affairs. [82] Where the investigation report recommends provincial supervision due to financial default, deficit, or serious financial mismanagement, the Lieutenant Governor in Council may make an order vesting in the Ministry the administration of the affairs of the board. Likewise, where after receiving the investigation report the Minister has issued a direction to the board that in his opinion has not been complied with, the same result is mandated. [83] Section 257.50 provides that once the Lieutenant Governor in Council is of the opinion that the affairs of the board no longer need provincial supervision, or once the board ceases to have a deficit for a fiscal year, the vesting order must be revoked. [84] At first instance, and on appeal, both sides argued that the resolution of this issue depended upon the applicability of the relevant jurisprudence, particularly Ottawa Separate School Trustees v. City of Ottawa (1916), 32 D.LR. 10 (J.C.P.C.) and Re Ottawa Separate Schools (1917), 40 D.L.R. 465 (O.S.C. App. Div.). [85] Cumming J. concluded that Division D of the EQIA did not impinge on the constitutional guarantee accorded to separate schools by s. 93(1). He put it this way at pp. 305-306 of his reasons: Because Division D meets the concerns identified in Ottawa Separate School Trustees and Re Ottawa Separate Schools, it is, on its face, constitutionally valid. There are defined and assessable standards, both for the imposition and removal of a vesting order. That is all that is necessary to meet the requirement of s. 93(1). [86] In Ottawa Separate School Trustees, supra, the Privy Council struck down provincial legislation which, in essence, permitted a provincial commission to take over the affairs of a school board whenever the Minister was of the opinion that the board had failed to comply with any of the provisions of the Education Act. The legislation permitted this provincial supervision to continue until the Minister thought it was desirable to restore to the board its authority. [87] The central concern of the Privy Council was the indefinite nature of this suspending power. This concern was expressed as follows at p. 13: The case before their Lordships is not that of a mere interference with a right or privilege, but of a provision which enables it to be withdrawn in toto for an indefinite time. Their Lordships have no doubt that the power so given would be exercised with wisdom and moderation, but it is the creation of the power and not its exercise that is subject to objection, and the objection would not be removed even though the powers conferred were never exercised at all. To give authority to withdraw a right or privilege under these conditions necessarily operates to the prejudice of the class of person affected by the withdrawal. [88] Following this decision the Ontario legislature enacted replacement legislation which more precisely defined the circumstances under which the province could assume the authority of a school board and when that authority had to be returned to the board. In Re Ontario Separate Schools, supra this legislation was found not to violate the s. 93(1) guarantee. [89] In his book, Constitutional Law of Canada, (Toronto: Carswell, 1992) 3rd. ed., at p. 54 Professor Peter Hogg offers this explanation of these two cases, with which we agree: In the Court's view, it was the indefinite and discretionary nature of the suspending power in the first statute which made it bad. The more limited suspending power in the second statute was good. A provision calculated only to secure the observance of the law by separate school trustees was not inconsistent with the trustees' power of management, because that power should not be treated as enabling the trustees to conduct their schools in defiance of the law. [90] When this jurisprudence is applied to Division D of the EQIA, it is clear that the present legislation does not leave the removal of the authority of a board to the unlimited discretion of the Minister. Nor can that supervision run for an indefinite time. The imposition of a vesting order first requires a serious financial situation – a board which has incurred a deficit (something that is unlawful under this legislation), defaults on its debts, or raises ministerial concerns about its ability to meet its financial obligations. It also requires an investigation that recommends vesting, or results in ministerial directions that in the Minister's view are not followed. Finally, the vesting order is subject to automatic termination either when the Lieutenant Governor in Council is of the opinion it is no longer necessary, or when the board ceases to run a deficit in a fiscal year. [91] The conditions for a vesting order and the provisions for its termination are designed to ensure compliance with the EQIA. They do not provide an unconstrained provincial discretion to suspend indefinitely the powers of the separate school board. Rather, they are sufficiently defined and precise that they cannot be said to prejudicially affect the right of separate school trustees to financially manage their schools. Division D of the EQIA, therefore, does not violate s. 93(1) of the Constitution Act. [92] In the result, these two aspects of the challenge to the EQIA both fail. In neither respect does this legislation prejudicially affect the constitutionally protected right of financial management held by separate school boards for separate schools. The appeal by OECTA from Cumming J. on this issue must be dismissed. THE RIGHTS AND POWERS OF PUBLIC SCHOOL BOARDS AND s. 93(1) OF THE CONSTITUTION ACT, 1867 [93] In their challenge to the EQIA, the OPSBA appellants argue that the legislation violates s. 93(1) of the Constitution Act, 1867 because it adversely affects the rights and powers of public school boards to raise revenue and to make budgetary and expenditure decisions. According to these appellants, s. 93(1) implicitly incorporates the principle of equal treatment of the separate and public school systems. They assert that s. 93(1) guarantees to public school boards, like the separate school boards, the right to raise revenue through local taxation and to control budget and expenditures. They further contend that the EQIA contravenes s. 93(1) by eliminating the right of public school boards to levy taxes and by imposing constraints on the budgetary and expenditure decisions of public school trustees. [94] Having concluded that s. 93(1) does not guarantee to separate school boards the right to raise revenue through local taxation and, further, that it does not guarantee unconstrained autonomy over expenditure decisions, it follows that the rights asserted in favour of the public school system do not exist. Accordingly, the argument that the EQIA contravenes s. 93(1) in respect of public schools also fails. It is unnecessary to address the submission that s. 93(1) extends to public schools the same constitutional protection that it does to separate schools. THE DOCTRINE OF CONSTITUTIONAL CONVENTION [95] OPSBA advanced the alternative argument that if the EQIA provisions removing the power of school boards to determine and levy property tax rates are found not to contravene s. 93(1) of the Constitution Act, then these provisions nonetheless contravene the doctrine of constitutional convention. According to OPSBA, a constitutional convention arises in regard to the right of school boards to levy and determine property taxes because such a right was a fundamental term of Confederation and, therefore, cannot be unilaterally altered by the provincial government. [96] Constitutional conventions are rules of the Constitution that are not legally enforceable. These rules prescribe the way in which legal powers are to be exercised. Constitutional conventions are generally regarded as politically, but not legally binding. [97] The Supreme Court described constitutional conventions as follows in Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 at 880-81: The conventional rules of the constitution present one striking peculiarity. In contradistinction to the laws of the constitution, they are not enforced by the courts. One main reason for this situation is that, unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves. Nor are they in the nature of statutory commands which it is the function and duty of the courts to obey and enforce. Furthermore, to enforce them would mean to administer some formal sanction when they are breached. But the legal system from which they are distinct does not contemplate formal sanctions for their breach. Perhaps the main reason why conventional rules cannot be enforced by the courts is that they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules. The conflict is not of a type which would entail the commission of any illegality. It results from the fact that legal rules create wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all. [98] The view that conventions are not to be enforced by the courts was reinforced in Reference Re Succession of Quebec, [1998] 2 S.C.R. 217 at 270: The respective roles of the courts and political actors in discharging the constitutional obligations we have identified follows ineluctably from the foregoing observations. In the Patriation Reference, a distinction was drawn between the law of the Constitution, which, generally speaking, will be enforced by the courts, and other constitutional rules, such as the conventions of the Constitution, which carry only political sanctions. [99] Cumming J. dismissed the constitutional convention argument with brief reasons. He concluded that while conventions may be “part” of the Constitution, they are not a justiciable part. He observed that regardless of whether or not there is in fact a constitutional convention, it cannot be applied so as to strike down or overrule a clear and specific law. He further noted that at p. 322: “[w]hatever the application of conventions, it seems extremely unlikely that any such putative convention as the one proposed by the applicants could exist. For such a convention to exist, it would be an expansion of an explicitly defined right in s. 93, in the face of another explicitly defined capacity, the province’s power to legislate in this field.” [100] We agree with Cumming J.'s conclusion that the constitutional convention argument advanced by OPSBA cannot succeed and adopt his reasons for that conclusion. Accordingly, this challenge to the legislation also fails. DELEGATION OF THE POWER TO PRESCRIBE THE RATE OF TAX [101] We will now consider the final issue raised by the OPSBA appellants, namely whether the EQIA is ultra vires insofar as it permits the Minister of Finance to impose school taxes by regulation. [102] Before Cumming J., the appellants presented the issue as follows: Is Bill 160 unconstitutional in conferring upon the Minister of Finance power [to make regulations] with respect to taxation, including the power to determine the amount thereof free from legislative scrutiny, debate and approval, without the submission of a "Money Bill", thus constituting "taxation without representation", contrary to sections 53 and 54 and the Preamble of the Constitution Act, 1867? [103] Cumming J. found that Bill 160 does not contravene ss. 53 and 54 of the Constitution Act, 1867. [104] Before Cumming J., and before this court, the appellants advanced an alternative position. Although we were asked to consider this issue only if we find found that the delegation to the Minister of the power to set the tax rate is not unconstitutional, it was dealt with by Cumming J. before he considered the constitutionality of the delegation. In his reasons for judgment, he described the issue, which was issue 5 before him,, which was issue 5 before him, in this way at p.323: Are the provisions of Bill 160, which confer on the executive branch of government legislative powers with respect to education, unconstitutional in that they violate and undermine the "rule of law" and the principle of effective representation through responsible taxation? [105] Central to the appellants' position on this issue was the submission that the power delegated to the Minister of Finance in s. 257.12(1)(b) of the Education Act, as amended by the EQIA, to prescribe the tax rates is completely unfettered, contrary to the rule of law and the principle of effective representation through responsible government. In addition, the appellants submitted that this power is impermissibly vague. The appellants' submissions were rejected by Cumming J. THE LEGISLATIVE FRAMEWORK [106] Section 257.106 of the amended Education Act renders "inoperative" the powers of all school boards to determine, levy, and collect property taxes for school purposes found in Division C of the Act, which is entitled "Taxes Set by Boards". In Division C, the powers granted by s.257.16(1) and s.257.19(1) are the taxing powers. Section 257.16(1) states: 257.16(1) For the purpose of raising money for its purposes, a board may determine, levy and collect rates on assessment for real property that is rateable for the board's purposes as provided in section 257.17. Section 257.19(1) gives a board that levies or collects rates for school purposes, inter alia, the same powers to collect the rates that a municipality has in respect of the collection of rates for municipal purposes. For municipal purposes, a rate is the equivalent of a tax. It is a sum assessed, or made payable, by a municipal authority in respect of the occupation of property in proportion to its value (pro rata, hence "rate"). [107] It is significant to observe that the taxing powers delegated to a board of education are both broad and explicit. A board is given the powers to determine and levy a rate. This means that it can decide the amount of the rate based on the assessment value of property and compel the property owner or tenant to pay that rate by means of a tax. In addition, a board is given the power to collect the rate. Section 257.26(1) imposes requirements on a board in its determination of rates on different classes of property, and s. 257.26(2) enables a board to determine different rates for a municipality, a part of a municipality, territory without municipal organization or part of a territory without municipal organization. However, the legislation places no limits, or controls, on the tax rate that a school board can set. [108] Under the Education ActAs a result of the EQIA, Division C has been replaced by Division B, entitled "Education Taxes". It is the position of counsel for the Attorney General that the legislature has established the education tax in s. 257.6(1) and s. 257.7(1) which read as follows: 257.6(1) Except as otherwise provided under this or any other Act, real property that is liable to assessment and taxation under the Assessment Act is taxable for school purposes. 257.7(1) Subject to the regulations, the following shall in each year levy and collect the tax rates prescribed under section 257.12 for school purposes on the property indicated: 1. Every municipality, on residential property and business property in the municipality, including territory without municipal organization that is deemed under section 56 or subsection 58.1(2) to be attached to the municipality, taxable for school purposes, according to the last returned assessment roll. 2. Every English-language public district school board the area of jurisdiction of which includes territory without municipal organization that is not deemed under section 56 or subsection 58.1(2) to be attached to a municipality, on the residential property and business property in that territory taxable for school purposes, according to the last returned assessment roll. 3. Every district school area board the area of jurisdiction of which includes territory without municipal organization that is not deemed under section 56 or subsection 58.1(2) to be attached to a municipality, on the residential property and business property in that territory taxable for school purposes, according to the last returned assessment roll. Section 257.10(1) gives a board the same powers as s. 257.19(1) in Division C, to which reference has been made, and imposes upon boards the collection of the taxes. [109] Section 257.12(1)(b), which the appellants submit is unconstitutional, states: 257.12(1) The Minister of Finance may make regulations, (b) prescribing the tax rates for school purposes for the purposes of section 257.7. Under s.257.12(3), the Minister of Finance is empowered to make regulations, inter alia, prescribing different tax rates for different municipalities, different parts of a municipality and different classes of property. On July 7, 1998, the Minister, by O. Reg. 400/98, prescribed 0.46 per cent of the assessed value of residential property as the tax rate for school purposes for the purposes of s. 257.7 of the Act. [110] At this point, it is helpful to compare the taxing powers under Division C, which have been rendered temporarily inoperative, with the taxing powers that have replaced them in Division B. The basic difference between the powers under Division C and those under Division B is in respect to the determination of the tax rate. Formerly, it was the school boards which had this power, subject to the requirements of s. 257.26. Under Division B, that power has been delegated to the Minister of Finance. However, like the school boards' powers to fix rates under Division C, no limitation, or controls, are placed on the tax rate which the Minister can set by regulation. Thus, the province, by means of the power delegated to the Minister, fixes the tax rates, while the school boards are required to collect the school taxes. THE CONSTITUTIONAL PROVISIONS [111] Sections 53 and 54 of the Constitution Act, 1867 state: 53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons. 54. It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address or Bill is proposed. Sections 53 and 54 are made applicable to the provinces by s.90 of the Constitution Act, 1867. REASONS OF CUMMING J. [112] Before he commenced his analysis, Cumming J. set out the positions of the appellants and the respondents, who were the applicants and the respondents on the application, at pp.327-328: The applicants contend that section 257.12(1)(b) of the Education Act is unconstitutional in that it empowers the Minister of Finance to determine and impose the amount of taxes without reference to the Legislature, contrary to ss.53 and 54 of the Constitution Act, 1867. The applicants submit that the effect of ss.53 and 54 is to require that money bills be submitted to the Legislature for approval, that any revenue raising measure is a money bill, and consequently, it is constitutionally impermissible to allow the Minister of Finance to set tax rates through regulation. The respondents submit that a clear statutory delegation of taxing power is not precluded by the constitutional principle that taxation may be imposed only by an Act of the Legislature or Parliament. They further submit that the constitutional principle merely prohibits the imposition of a tax in the complete absence of statutory support for the tax, and that where a statute clearly authorizes a subordinate body to impose a tax by regulation, then the constitutional principle requiring statutory support for a tax is satisfied. [Emphasis added] [113] In considering this issue, Cumming J. incorporated his analysis of the power of a provincial legislature to delegate its powers, which was central to his disposition of issue 5. In that portion of his reasons, on the authority of Hodge v. The Queen (1883), 9 A.C. 117 (P.C.), Re Gray (1918), 42 D.L.R. 1 (S.C.C.) and Reference Re Regulations (Chemicals) Under War Measures Act, [1943] 1 D.L.R. 248 (S.C.C.), he concluded that the legislature may lawfully delegate the powers granted to it under s. 92 of the Constitution Act, 1867. As Cumming J. stated at p. 324: "Hodge is the foundation for a wide power of delegation". [114] Cumming J. then considered the application of ss. 53 and 54 of the Constitution Act, 1867 to the power delegated to the Minister of Finance under s.257.12(1)(b) to make regulations "prescribing the tax rates for school purposes for the purposes of section 257.7" of the Education Act. He observed that there has been no case which has decided whether ss. 53 and 54 preclude Parliament, or a legislature, from delegating its power to impose a tax. After reference to The King v. National Fish Co., [1931] Ex.C.R. 75, the Chemicals Reference, supra, and Reference re Canada Assistance Plan (B.C.) (1991), 83 D.L.R. (4th) 297 (S.C.C.), Cumming J. concluded at p. 331: What comment there is appears to range from at least requiring an explicit provision for delegation of a taxation [power], or, more restrictively, suggests such delegation is not possible within the scope of ss.53 and 54. [115] Cumming J. devoted considerable thought to the suggestion that the delegation of a taxation power results in an implied, or implicit, repeal of ss. 53 and 54 of the Constitution Act, 1867, thereby removing any constitutional obstacle preventing such delegation. As this issue was not pursued before us, there is no need to examine Cumming J.'s analysis. However, we do note that he rejected this suggestion at p. 335 of his reasons, agreeing with the opinion of Professor Hogg that the "presence of ss. 53 and 54 in a constitutional document must mean something, even if they are not entrenched". [116] Because we feel it is necessary to provide the appropriate context for our analysis of whether the powers delegated to the Minister of Finance by s. 257.12(1)(b) are constitutionally precluded by ss. 53 and 54 of the Constitution Act, 1867, a substantial portion of Cumming J.'s analysis will be reproduced. However, before doing so, it is, in our view, necessary to reiterate, the narrow scope of the power delegated to the Minister. The power delegated to the Minister is not to create a school tax. Rather, the delegated power is to fix the tax rate in respect of the school tax created by the legislature by ss. 257.6(1) and 257.7(1). In our view, the limited nature of this delegated power is very important when one reads Cumming J.'s analysis, as well as the authorities whichthat we will consider. [117] Cumming J. began his analysis of the effect of ss. 53 and 54 on the power of delegation relating to taxation by referring to competing views on the subject. On the one hand, he considered the view of J. M. Keyes, Executive Legislation: Delegated Law Making by the Executive Branch, (Toronto, : Butterworths, 1992) at 44, that as long as the enabling provision has undergone legislative scrutiny, a delegation of taxation power is acceptable. On the other hand, he considered the view of The Royal Commission Inquiry into Civil Rights (the "McRuer Commission"), (Toronto: Queen's Printer, 1968) Vol. 1, at 353, which opposed the delegation of taxation powers without reference to ss. 53 and 54. This position was supported by R. Dussault and L. Borgeat, Administrative Law, A Treatise, (Toronto: Carswell, 2nd ed., 1985) 2nd. ed., Vvol. 1, at 446-447, who, in support of their view, stated: Indeed, it is essential for the Legislature to be very vigilant in order to keep intact, and in the hands of Parliament, control over a power which may so directly affect the property of citizens. [118] Cumming J. concluded his analysis as follows at pp.335- 337: These are, of course, merely submissions as to what the authors recommend should be a government's approach to this issue. The submissions are not binding, but they do suggest that at a theoretical level, it may be unwise to dismiss ss.53 and 54 as mere procedural steps. These arguments lead me to the conclusion that it is necessary to acknowledge the existence of ss.53 and 54, and that they have some impact and effect, albeit limited. While heed should be paid to the existence of ss.53 and 54, their nature and history suggest that their requirements are sufficiently satisfied when the delegation of the taxing power, in a bill approved by the legislature, is clear and explicit, as it is in the present case. This conclusion is consistent with the case law on these sections, discussed above. Also, reinforcing this conclusion is the submission of the respondents that if the legislature could not delegate the power to tax, then municipalities and school boards could themselves have no power to tax, since their powers in this regard have historically been delegated to them by the legislature. I am in agreement with this submission. No case law was tendered to the Court suggesting that school boards and municipalities could not validly exercise a taxing power. Moreover, a brief review of the law of municipalities gives no indication that there is anything in the least bit questionable about a municipality - a delegate - exercising a taxing power. The fact that the power of municipalities to tax does not appear to have been challenged may not, on its own, be determinative. It is, however, worthy of some weight, given the extensive jurisprudence in regard to municipalities. More importantly, it is consistent with the other case law dealing with ss.53 and 54, which suggest clear and explicit delegation of the taxing power is sufficient to satisfy those sections. The submission of the applicants that Bill 160 constitutes a contravention of ss.53 and 54 of the Constitution Act, 1867 is rejected. To satisfy the requirements of ss.53 and 54 the delegation of the taxing power must be express. Such is the case here, and consequently, the applicants must fail on this ground. [Emphasis added] [119] Thus, it was the opinion of Cumming J. that the requirements of ss. 53 and 54 have been met because the delegation of "the taxing power" to the Minister of Finance by s.257.12(1)(b) is clear and express, is contained in legislation which has received the scrutiny and approval of the legislature, and conforms with the historic provincial delegation of taxing powers to municipalities and school boards. [120] It is the alternative position of the appellants that if the court finds that the delegation of powers to the Minister of Finance by s. 257.12(1)(b) is not unconstitutional on the ground that it is contrary to ss. 53 and 54 of the Constitution Act, 1867, the court should find that the delegation is unconstitutional because being completely unfettered, the power to fix tax rates violates and undermines the "rule of law" and the principle of effective representation through responsible taxation, and, in any event, is impermissibly vague. [121] Cumming J. did not deal with the appellants' position that the power delegated to the Minister of Finance to fix tax rates for school purposes is unconstitutional because it is unfettered, in the sense that the enabling legislation provides the Minister with no guidelines, or cap, on the rate of tax he can fix by way of regulation. He limited himself to the consideration of the scope of the legislature to delegate its assigned powers and to whether s. 257.12(1)(b) is impermissibly vague within the meaning of the test established by the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society (1992), 139 N.R. 241 at 227-278. [122] As we have noted in paragraph 113 12, Cumming J. was satisfied that a provincial legislature may lawfully delegate the powers granted to it by the Constitution Act, 1867. This proposition is so well-established that it does not constitute an issue in this appeal. [123] Measuring s. 257.12(1)(b), and other sections of the Education Act which the appellants attacked on the ground of impermissible vagueness, against the Nova Scotia Pharmaceutical Society test, Cumming J. had no difficulty in concluding that s. 257.12(1)(b) is not unconstitutionally vague. He expressed his reasons for this conclusion as follows at pp.326-327: By way of an example of vagueness, the applicants point to the provision in s.257.12(1)(b), allowing the Minister of Finance to "prescribe the tax rates for school purposes, for the purpose of section 257.7". Section 257.7 in turn sets out the various bodies, such as municipalities, which are to collect the taxes according to the designated rates. With respect, I do not see how this fails to provide "an adequate basis for legal debate". The object of the taxes is identified, school purposes, as is the body or bodies tasked with their collection. Given its context within the Education Act, the meaning of school purposes is also readily ascertainable; being expenditures connected with schooling, such as the trustee honoraria provided for in s.191. While one can appreciate the applicants' references to the rule of law, and to the possibility that the regulation-making powers entrusted to the government by Bill 160 are indeed very extensive, the statutory provisions fulfill the necessary procedural requirements, which is all this Court may assess. The objects of the sections authorizing regulations are ascertainable, and there is accordingly a basis for legal debate. THE ISSUES [124] For the purposes of this appeal, the appellants have, in effect, combined the issues considered by Cumming J. as issues 5 and 6 into three issues which focus on the application of ss. 53 and 54 of the Constitution Act, 1867 to s. 257.12(1)(b) of the Education Act. The appellants have stated the issues in this way: 1. The Court erred in law in failing to fully recognize that the constitutional principle of responsible government and rule of law, required that there be "no taxation without representation" as reified in Sections 53 and 54 of the Constitution Act 1867. 2. The Court erred in law in failing to find that the Bill of Rights 1688, and Sections 53 and 54 of the Constitution Act 1867, must be interpreted as only permitting the imposition of taxation upon the citizen after a specific level of taxation has been debated and approved by a duly elected Legislature, or other democratic institution, such as school boards. 3. The Court erred in law in finding that a totally unrestricted power to establish property taxes could be delegated by the Legislature to the Minister of Finance, unencumbered by any debate and control by the Legislature, and without strictures or justiciable standards of any kind. [125] In addressing these issues it is helpful to elucidate the core questions which they raise. [126] The Education Act EQIA does not delegate to the Minister the decision whether a person is to pay an education tax. This decision has been made by the legislature. The real issue is whether the legislature, in addition to establishing tax liability, must also fix the amount of the liability, or whether it can lawfully delegate this power to the Minister. To resolve this issue, the court must determine what is involved in the exercise of the power to impose a tax. [127] The issue can be further refined in this way. The question is whether the act of the Minister in fixing the tax rate is purely administrative in effecting the policy of the legislature that an education tax is to be paid, or whether, in fixing the tax rate, he is performing an act that only the legislature is constitutionally empowered to perform. In other words, does the delegation of the power to fix tax rates constitute an "abdication" or "abandonment" by the legislature of a portion of its exclusive power to impose a direct tax granted by s. 92(2) as contended by the appellants. [128] The resolution of this issue requires the court to answer these questions: given the acknowledged wide power of the legislature to lawfully delegate its s. 92 powers established by Hodge v. The Queen, is there an exception in the case of the power to legislate in respect to taxation as a result of ss. 53 and 54 of the Constitution Act, 1867? If there is an exception, is it in respect to both the creation of the tax and the fixing of the amount of the tax? Or, can the legislature create the tax, and constitutionally delegate the power to fix the amount of the tax? If so, to create a constitutionally valid delegation of the power to fix the amount of the tax must the legislature create guidelines to which its delegate must adhere in fixing the amount of the tax? The last question raises the "unconstitutionally vague" argument which Cumming J. decided in favour of the respondents. ANALYSIS The Imposition of a Tax [129] In our view, the starting point is the determination of what constitutes the exercise of the legislative power to impose a tax. [130] Although it may appear trite to define the terms "impose" and "tax", it is helpful to do so. In Merriam-Webster's Collegiate Dictionary, (Merriam-Webster Inc., 1993) 3rd. ed. at pp.ages 583 and 1208 respectively, these terms are defined as follows: Impose - to establish or apply by authority. Tax - a charge of money...imposed by authority on persons or property for public purposes. [131] Under s. 92(2) of the Constitution Act, 1867, the provinces were given the power to make laws with respect to direct taxation. The authorities are sparse with respect to what constitutes the exercise of the legislative power to impose a tax. In our view, the power to impose a tax consists of the intention to legislate in respect to all acts necessarily included in the creation of the tax, as well as all acts consequent to its creation, such as the purpose of the tax and its nature, the tax base, the class of persons required to pay it, the rate of the tax or the formula to enable the taxpayer to calculate the amount of the tax, and the means for the collection of the tax. [132] It follows that an element, or component, of the exercise of the power to tax is the establishment of the amount, or rate, of the tax, not only to enable the taxpayer to know the extent of his or her obligation, but to enable the taxing authority to determine the anticipated amount of tax revenue it will obtain. Support for this proposition can be found in the decision of the Supreme Court of Canada in Burns v. Minister of National Revenue, [1946] 4 D.L.R. 805 at 824, per Estey J; revd. in part [1950] 2 D.L.R. 529 (J.C.P.C.). In this case the Supreme Court was required to consider the imposition of an income tax on an estate or trust by s. 11(4)(a) of the Income War Tax Act, R.S.C. 1927, c.97, which provision failed to specify the rate at which the tax was to be paid. In dissenting reasons, Estey J. was of the opinion that the failure of Parliament to specify the tax rate meant that no tax was ever imposed. This view was adopted by Lord Greene for the Privy Council on appeal. Subsequently, s.11(4)(a) was amended to cure the deficiency. Burns, therefore, compels the conclusion that the imposition of a tax is not complete until the rate of the tax is set. See, also, Vestey v. I.R.C. (Nos. 1 and 2), [1979] 3 All E.R. 976 at 984 (H.L.), per Lord Wilberforce. [133] It follows that a tax is imposed only when the elements discussed in paragraph 30 131 have been satisfied by legislation. For the purpose of this appeal, it can be said that a tax is not created until the rate of tax is imposed. Therefore, as ss. 257.6(1) and 257.7(1) of the Education Act, which the Attorney General relies on as establishing the education tax, do not specify a rate of tax, they cannot be said to impose an education tax. The imposition of the tax is not complete until the amount of the tax is established. Section 257.12(1)(b) leaves the establishment of the tax rate to the Minister of Finance, to whom the power to prescribe the tax rate has been delegated. [134] Having determined what constitutes the exercise of the legislative power to impose a tax, it is necessary to determine whether the legislature must exercise each element of the power by way of primary legislation, or whether it may delegate the exercise of one, or more, of the elements to some person or body. In the context of this appeal, the issue is whether ss. 53 and 54 of the Constitution Act, 1867, preclude the delegation of the power to fix the rate of the tax to the Minister of Finance. Sections 53 and 54 of the Constitution Act, 1867 [135] As we have discussed, it is well-established by the authorities that the legislature may lawfully delegate the powers granted to it under s. 92 of the Constitution Act, 1867. However, the appellants contend that an exception to this broad power of delegation is created by ss. 53 and 54 of the Constitution Act, 1867, which, they submit preclude the legislature from delegating any part of its s. 92(2) power to enact laws imposing direct taxation. Although ss. 53 and 54 have received some judicial attention and academic comment, they had not been interpreted and applied at the time the application was heard. However, subsequent to the decision of Cumming J., ss.53 and 54 featured prominently in the reasons of Major J., and other members of the Supreme Court of Canada, in Re Eurig Estate (Re) (1998), 165 D.L.R. (4th) 1. [136] In Eurig, the validity of a regulation enacted pursuant to s. 5 of the Administration of Justice Act, R.S.O. 1990, c. A.6, which imposed an ad valorem fee for grants of letters probate, was attacked on the ground that it was ultra vires s. 5 of the Act, and, because it was a tax, it violated ss. 53 and 54 of the Constitution Act, 1867. Major J., on behalf of a majority of the Supreme Court, concluded that the fee was a tax, and, as such, its implementation violated s. 53 of the Constitution Act, 1867. He also held that the regulation was ultra vires, because s. 5 of the Administration of Justice Act authorized only the imposition of fees, not of taxes. [137] Major J. began his analysis of s. 53 of the Constitution Act, 1867, at p.13 by concluding that it required that "all provincial bills for the imposition of any tax must originate in the legislature". [138] Major J. then discussed the rationale underlying s. 53 at pp.13-14: In my view, the rationale underlying s.53 is somewhat broader. The provision codifies the principle of no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature. My interpretation of s.53 does not prohibit Parliament or the legislatures from vesting any control over the details and mechanism of taxation in statutory delegates such as the Lieutenant Governor in Council. Rather, it prohibits not only the Senate, but also any other body other than the directly elected legislature, from imposing a tax on its own accord. In our system of responsible government, the Lieutenant Governor in Council cannot impose a new tax ab initio without the authorization of the legislature. As Audette J. succinctly stated in The King v. National Fish Co., [1931] Ex. C.R.75 at p.83, "[t]he Governor in Council has no power, proprio vigore, to impose taxes unless under authority specifically delegated to it by Statute. The power of taxation is exclusively in Parliament." The basic purpose of s.53 is to constitutionalize the principle that taxation powers cannot arise incidentally in delegated legislation. In so doing, it ensures parliamentary control over, and accountability for, taxation. As E.A. Driedger stated in "Money Bills and the Senate" (1968), 3 Ottawa L. Rev. 25, at p.41: Through the centuries, the principle was maintained that taxation required representation and consent. The only body in Canada that meets this test is the Commons. The elected representatives of the people sit in the Commons, and not in the Senate, and, consistently with history and tradition, they may well insist that they alone have the right to decide to the last cent what money is to be granted and what taxes are to be imposed. [139] Major J. went on to add at p.14: "Section 53 is a constitutional imperative that is enforceable by the courts." He noted, however, that by virtue of s. 45 of the Constitution Act, 1867, the legislature of each province retains the discretion to exclusively make laws amending the constitution of the province. [140] Major J., therefore, concluded that the regulation that imposed the probate tax was unconstitutional because it violated s. 53 which requires that bills for imposing any tax originate in the legislature. His reasons for this conclusion, at p.15, read as follows: Nothing in the Administration of Justice Act purports to amend the constitutional requirement for imposing tax legislation set out in s.53. The Ontario legislature did not delegate to the Lieutenant Governor in Council the authority to impose a tax. Therefore whether it could constitutionally do so does not need to be addressed. The only power conferred by s. 5 of the Act was to make regulations regarding the payment of fees, not the imposition of taxes. Yet the probate fees in this instance are in substance a tax imposed by the Lieutenant Governor in Council without having originated in the legislature. While the legislature of Ontario may well be competent to establish probate taxes under the terms of the Administration of Justice Act, s. 53 requires that they do so explicitly. Since s. 53 was not expressly amended, the province was obliged to abide by its terms. Its failure to do so renders the probate tax imposed under O. Reg. 802/94 (previously O. Reg. 293/92) unconstitutional. The unconstitutionality of the impugned legislation is an important reminder of the fact that the imposition of a tax has both political and legal dimensions which require the legislature to act carefully if the tax is to be successfully implemented. [141] Major J. also found that s. 54 of the Constitution Act, 1867, had no application to the circumstances of Eurig, as it concerns the appropriation of taxes, and not the imposition of taxes. For the same reason, s. 54 is not relevant to this appeal. Nor is Major J.'s analysis of whether the probate levy was authorized by s. 5 of the Administration of Justice Act. [142] It is helpful to examine the reasons of Major J. in respect to what they say, and do not say, about s. 53 of the Constitution Act, 1867 in relation to the appellants' position that delegating to the Minister of Finance the power to prescribe the tax rates for school purposes is unconstitutional because it does not comply with s. 53. [143] In Eurig the probate tax was imposed by regulation made by the Lieutenant Governor in Council on its own accord. Measured against the elements of the imposition of a tax discussed in paragraph 30131, each element of the tax was contained in the regulation. This offended s. 53 because, as Major J. held, s. 53 precludes "any other body other than the directly elected legislature from imposing a tax on its own accord". Because the regulation actually imposed the tax, it was not saved by the type of delegation Major J. said was permissible under s. 53 - "control over the details and mechanism of taxation". In other words, it is permissible under s. 53 to delegate to administrative officers, and other bodies, duties with respect to taxation that are merely advisory, ministerial or administrative in nature. [144] Major J. was of the opinion that "the Lieutenant Governor in Council cannot impose a new tax ab initio without the authorization of the legislature". If we are to accept that Major J. subscribes to the converse of this proposition, it means a new tax can be imposed by the Lieutenant Governor in Council with the authorization of the legislation. Applied to this appeal, it follows that having established the education tax the legislature could delegate to the Minister the power to prescribe the tax rates without running afoul of s. 53. However, Major J. later concluded that because the legislature did not delegate the authority to the Lieutenant Governor to impose a probate tax, it was unnecessary to address whether it could constitutionally delegate its total responsibility to impose a tax. With great respect to Major J., it would appear that he did address this issue at least implicitly, in the passage quoted from his reasons in the first sentence of this paragraph. [145] In our view, iIt is important to observe that the issue which Major J. declined to address was the narrow question of whether s. 53 precludes the legislature from delegating to a subordinate authority the total power to impose a tax - be it a probate tax or an education tax, or any other tax. Given the facts of Eurig, it was unnecessary for him to consider the issue that arises in this appeal - the delegation of one component of the power to impose a tax. [146] In our view, however, this issue was considered in the reasons of two of the judges who disagreed with Major J. in his application of s. 53 of the Constitution Act, 1867. Their reasons are instructive in respect to the issue we must decide. [147] Bastarache J., writing on behalf of himself and Gonthier J., was of the opinion that s. 53 has no significance at the provincial level. In a passage that is relevant to the issue before this court, he stated at p. 20: Even if s. 53 of the Constitution Act, 1867 continues to apply to the provinces, the fact that the legislature has authorized the executive to prescribe fees in the form of a tax does not violate s. 53 of the Constitution Act, 1867. The tax in the form of probate fees is imposed by s. 5 of the Administration of Justice Act. This Act was introduced in the Legislative Assembly of Ontario and therefore cannot violate s. 53 of the Constitution Act, 1867. All that the Legislature has done is delegate to the Lieutenant Governor in Council the authority to provide for the details of the tax through regulation. The provincial legislature is entitled to delegate taxing powers to its subordinate bodies, including the Lieutenant Governor in Council (Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.) at pp.131-33; Shannon v. Lower Mainland Dairy Products Board, [1938] A.C. 708 at p.722, [1938] 4 D.L.R. 81 (P.C.); Irving Oil Ltd. v. Provincial Secretary of New Brunswick, [1980] 1 S.C.R. 787, 109 D.L.R. (3d) 513). [148] Although Binnie J., writing on behalf of himself and McLachlin J., agreed with the disposition of the appeal proposed by Major J., he did not agree that the probate tax imposed by the regulation was unconstitutional by virtue of non-compliance with s. 53. His short reason for rejecting Major J.'s application of s. 53 was that it requires that money bills originate in the House of Commons, and the regulation that imposed the probate tax is not a "bill". He elaborated at p. 23: My colleague advances the proposition in para. 32 that: The basic purpose of s.53 is to constitutionalize the principle that taxation powers cannot arise incidentally in delegated legislation. [Emphasis added.] Again, in para. 40, he argues that s. 53 "constitutionally mandates the court to strictly construct enabling legislation". In my view, respectfully, this analysis reads the word "bills" out of the section, and takes the section out of the context of the series of sections of which it forms a part. Section 53 addresses a state of affairs prior to any "legislation" coming into existence. It is explicitly related to legislative procedure and there is nothing that I can see in its text to justify concluding that its "basic purpose" is the constitutional entrenchment of a principle of "strict construction" of legislation, delegated or otherwise. Regardless of the attraction of my colleague's broad rationale of promoting "parliamentary control over, and accountability for, taxation" (para. 32), I do not think the Court can facilitate achievement of the objective by rewriting s. 53. As the Court recently affirmed in Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385, implicit principles can and should be used to expound the Constitution, but they cannot alter the thrust of its explicit text. [149] In beginning this analysis, at p. 22 Binnie J. made the following observation which, in our view, is helpful in resolving the issue presented by this appeal: The legislative power of the province is sovereign except as limited by the Constitution itself, including limitations flowing from the federal-provincial division of powers, and the Canadian Charter of Rights and Freedoms. In the absence of a constitutional prohibition, the legislature has power to authorize a tax structure of its own choosing, and for which it will be politically accountable, including a tax to be prescribed by the Lieutenant Governor in Council. I do not construe s.53 of the Constitution Act, 1867 as constituting such a prohibition. [150] In our view, it is appropriate to We conclude from the observations of Bastarache J. and Binnie J. that the constitutional imperative of s. 53 has been satisfied when the bill creating the tax has been introduced in the legislature. When this has occurred, in the opinion of Bastarache J., a provincial legislature does not contravene s. 53 by delegating to a subordinate person, or body, the authority to provide for the details of the tax through regulation. In the opinion of Binnie J., provided that the tax arises out of a statute originating in the legislature, a province has the power to authorize a tax structure of its own choosing, including a tax to be prescribed by the Lieutenant Governor in Council. Indeed, Major J. endorsed this view in the passage from his reasons reproduced in paragraph 138, where he opined that if a tax bill originates with the legislature, s. 53 of the Constitution Act, 1867, permits the legislature to vest "control over the details and mechanism of taxation" in a statutory delegate. [151] In our view, tThe reasoning of Bastarache J. and Binnie J. is persuasive, and, in the absence of any express consideration of this specific issue by the majority of the Supreme Court, we are not prevented from applying their reasons. [152] In this appeal, the tax bill – the amendments to the Education Act effected by the EQIA - originated with the legislature. Sections 257.6 and 257.7 created the education tax. Section 257.12(1)(b) delegated to the Minister of Finance the responsibility of prescribing the tax rate by regulation, which has been done in O. Reg. 400/98. The views expressed by all members of the Supreme Court are that s. 53 of the Constitution Act, 1867, does not preclude the legislature from delegating the authority to provide for the details of a tax through regulation. In Merriam-Webster's Collegiate Dictionary, supra, at p. 315, two of the meanings of "detail" are "extended treatment of or attention to particular items" and "a part of a whole". It follows, applying our analysis of the exercise of the legislative power to impose a tax, that the amount of the tax, or tax rate, is a detail, or component, of the tax. Accordingly, the delegation contained in s. 257.12(1)(b) is not unconstitutional and is in compliance complies with s. 53 of the Constitution Act, 1867. [153] As Major J. pointed out, by requiring that tax bills originate in the legislature, s. 53 preserves immediate political accountability for taxation decisions and allows the voters to influence these tax decisions by access to their elected representatives. Section 257.12(1)(b) of the Education Act does not detract from that purpose. The legislature remains accountable to, and under the control of, the voters. The legislature does not avoid its taxing responsibilities by allowing the Minister of Finance to use his specialized knowledge and expertise to determine the amount of revenue required to operate the school system in accordance with the elaborate guidelines concerning the operation of the school system contained in Part IX, Division B of the Act. It is to be assumed the Minister is familiar with the costs of operating the school system. Although s. 257.12(1)(b) does not contain guidelines which the Minister is required to consider in determining the costs of the school system, they are contained elsewhere in the legislation and we must assume that the Minister has taken them into consideration in establishing the tax rate. [154] In the result, we agree with Cumming J. that s. 53 does not preclude the delegation of the power to fix the amount of the school tax. However, in doing so, we are not to be taken as agreeing with his analysis which, it would appear, focused on the effect of s. 53 on the delegation of the total taxing powers of the legislature, rather than a component of it. In particular, in light of Major J.'s opinion in Eurig, at p.14, that "section 53 is a constitutional imperative that is enforceable by the courts", we cannot agree with Cumming J.'s characterization of s. 53. As well, it is unnecessary for us to consider whether he is correct in his observations concerning the historic delegation of taxing powers to municipalities and school boards. [155] Counsel for the appellants and the respondent made reference to a number of authorities and treatises in support of their respective positions, which the court has reviewed. For the most part, we have not referred to them in our reasons because, in our view, it is unnecessary to do so based on the reasons expressed by Major J., Bastarache J. and Binnie J. in Eurig which resolve the issue. Is s. 257.12(1)(b) of the Education Act Unconstitutionally Vague? [156] The appellants submitted that if the court did not declare s. 257.12(1)(b) to be an unconstitutional delegation of the province's taxing power, the court should find that the section offends the Constitution Act, 1867, and is of no force or effect, because the Education Act "fails to provide any principles or guidelines to limit the absolute discretion of the Minister to set tax rates". It was their position that s. 257.12(1)(b) "provides absolutely no guidelines as to how, or on what basis, the Minister of Finance may establish levels of taxation". [157] As we have pointed out, Cumming J. held that s. 257.12(1)(b) was not impermissibly vague within the meaning of the test in R. v. Nova Scotia Pharmaceutical Society, supra. In our view, he was correct. We need not engage in a great deal of discussion on this issue as it is essentially answered in our analysis of s. 53 of the Constitution Act, 1867. [158] If we were to consider s. 257.12(1)(b) standing alone, and in the abstract, there might be merit to the appellants' submission. However, s. 257.12(1)(b) must be considered in the context of the Education Act, in particular, in the context of those provisions of the Act that provide guidance to the Minister in fixing the tax rate. In our view, s. 257.7(1) of the Act clearly provides that, subject to the regulations, municipalities and others "shall in each year levy and collect the tax rates prescribed under s. 257.12". Section 257.12(1)(b) provides that the Minister of Finance may make regulations "prescribing the tax rates for school purposes for the purpose of s. 257.7". Similarly, clear language is found in the provisions of the Act permitting regulations to "prescribe different tax rates" for different municipalities, different parts of a municipality, and different classes of property. The statutory language could not be clearer in requiring, under s. 257.7, the levying and collecting of taxes, and permitting, under s. 257.12, the prescribing of tax rates by regulation. We agree with the analysis and opinion of Cumming J. which is reproduced in paragraph 22123 of these reasons. [159] The imposition of the school tax was not an "exercise in arbitrary state action" as counsel for the appellants argued. As we have said, the tax bill originated in the legislature as required by s. 53 of the Constitution Act, 1867, and does not constitute a delegation, or abdication, by the legislature of the totality of its taxing power to the Minister of Finance. [160] For the reasons we have stated, we are unable to give effect to any of the appellants' submissions concerning the issue of the constitutionality of the delegation of the taxing power. We conclude, therefore, that s. 257.12(1)(b) of the Education Act is not an unconstitutional delegation of the province's taxing power. CONCLUSION [161] The Attorney General's appeal from Cumming J.'s decision declaring the EQIA and the Education Act, as amended by the EQIA, of no force and effect insofar as it removes the right to tax from the Roman Catholic community is allowed. OECTA's appeal from Cumming J.'s decision that the EQIA, as well as the funding model prescribed by O. Reg. 287/98, do not violate s. 93(1) of the Constitution Act, 1867 is dismissed. OPSBA's appeal from Cumming J.'s determination that the EQIA does not violate the s. 93(1) rights of public schools is also dismissed, as is the appeal from the lower court's decision that the EQIA is not invalidated on the basis of the doctrine of constitutional convention. Finally, OPSBA's appeal from Cumming J.'s holding that the EQIA is not an impermissible delegation to the Minister of Finance of the power to impose school taxes by regulation is also dismissed. [162] We have had the benefit of both a thorough presentation of these appeals and a full and able argument by all counsel who were involved. We thank them for this assistance. There will be no order as to costs. (signed) "Roy McMurtry CJO" (signed) "John W. Brooke JA." (signed) "R S Abella JA" (signed) "S T Goudge JA" (signed) "S. Borins J.A." RELEASED: April 27, 1999