It is no secret that emotions run high in the context of litigation. The BC Supreme Court in the recent case of Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2025 BCSC 962 provided several critical comments regarding the adversarial and aggressive correspondence exchanged between the parties involved.

Background

In 2020, before the Supreme Court of Canada, the Conseil scolaire francophone de la Colombie-Britannique (CSF) obtained entitlements to francophone schooling in certain communities. The SCC also addressed the province of BC’s (Province) obligation to fund and otherwise assist the CSF in its efforts to establish francophone schools pursuant to section 23 of the Canadian Charter of Rights and Freedoms, which pertains to minority language educational rights. 

Nearly five years later, the CSF challenged the Province and the Vancouver Board of Education (VBE) before the BC Supreme Court, as the necessary francophone schools were still not established despite the entitlements declared by the SCC. The CSF claimed that the Province and the VBE failed to fulfill their constitutional obligations pursuant to s. 23 and sought further remedies.

Key Rulings

A Partial Victory for CSF

The court ruled partially in favour of CSF, recognizing that the absence of a power to expropriate private property for the provision of francophone schooling hindered the timely implementation of s. 23.

Legislative Changes Ordered

The court ordered the Province to enact legislation within six months to enable the expropriation of private property so that the CSF could provide francophone schooling as required under s. 23.

Responsibilities for the VBE

The court emphasized that the VBE must consider and proportionately balance the importance of minority language education, especially regarding CSF’s requests for underutilized or surplus sites and facilities.

Disclosure of Budget Information

The court ordered the Province to disclose to the CSF certain budget information.

Criticisms Regarding the Parties’ Written Exchanges

When discussing the parties’ approach in their letters to one another, Justice Gomery provided several noteworthy criticisms.

Justice Gomery referred to the correspondence from the CSF to the defendants as “positioning letters,” which was first described by Justice Russell in Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2016 BCSC 1764. Justice Russell stated that the positioning letters unnecessarily exacerbated the parties’ dealings due to their adversarial, legalistic, and aggressive tone, and that they included lengthy and often self-serving renditions of certain events.

Similarly, Justice Gomery determined that the histories delineated in the positioning letters contained embellished and misstated facts, putting the CSF in a more favourable light. As a result, Justice Gomery stated that he did not give any weight to the contents of the positioning letters and solely relied on them to confirm that the CSF had placed a request and to pinpoint when it did so.

Justice Gomery also noted that the CSF continued to send positioning letters and that it was unclear what they intended to accomplish, other than a repeated reminder that “we will see you in court.”¹ The court viewed the positioning letters as an attempt to advance an argumentative, partial, and unpersuasive narrative which hindered collaboration among the parties which was necessary to implement the francophone schooling that rightsholders are entitled to.

Finally, Justice Gomery reprimanded the CSF for maximizing rather than minimizing its differences with the defendants and also criticized the VBE for responding to the CSF’s correspondence in the same manner.

Conclusion / Practical Takeaway

This decision serves as a cautionary tale and important lesson with regards to refraining from engaging in a “war of words”² as courts will reprimand parties for impeding effective collaboration and making meaningful progress towards resolving the legal issues at hand.