Background
The Conseil scolaire francophone de la Colombie-Britannique appealed orders made after a 117-day trial concerning the implementation of French-language educational rights under s. 23 of the Canadian Charter of Rights and Freedoms. The trial record comprised approximately 77,000 pages of exhibits and 11,000 pages of transcript. The appeal challenges, among other matters, the allocation of responsibility among the Province, the Vancouver school board, and the Conseil, as well as remedies, leases, delays, and costs.
After preparing their factums, the parties reduced the proposed joint appeal book to nearly 40,000 pages. The Province and the Vancouver school board asked the Court’s Registrar to exclude exhibits that were not cited in the Conseil’s factum, had previously been identified as removable, or were unnecessary to decide the appeal.
The Court’s Holding
Registrar Outerbridge partly granted the respondents’ applications. He held that an appeal book may include evidence not expressly cited in a factum, but only where it was before the court below and is necessary to resolve the issues raised on appeal. The possibility that oral argument may develop unexpectedly permits some latitude, but does not justify an appeal book so large that the Court cannot meaningfully review it.
The Registrar directed the Conseil to make its best efforts to remove exhibits concerning Rose-des-Vents remaining at the Oakridge site, overcrowding and facilities at Jules-Verne, the decision not to pursue part of the Prince of Wales site, the Capilano University lease in Squamish, and the communities of Fernie, Kimberley, Nelson, and Rossland. He also ordered removal of an Alberta superintendent’s affidavit and directed another review of records dealing exclusively with expropriation. Other challenged categories—including evidence about substantive equivalence, enrolment methodology, the Heather Lands, historical capital planning, and several communities tied to alleged delays—could remain. Because success was mixed, each party was ordered to bear its own costs.
Key Takeaways
- An appeal book should contain only material that was before the court below and is necessary to decide the issues actually advanced on appeal.
- Evidence need not be cited expressly in a factum to qualify for inclusion, but the exception is limited and must remain connected to the stated grounds of appeal.
- Numerous alleged errors and unclear treatment of the applicable standards of review can make it substantially harder to determine what evidence is necessary.
Why It Matters
The decision provides practical guidance for managing exceptionally large appellate records. Even in complex constitutional litigation, the importance of the underlying rights does not displace counsel’s obligation to focus the record on evidence the appellate court can realistically use.
For litigants, the ruling also underscores the connection between a clearly framed factum and the permissible contents of an appeal book: the grounds of appeal must identify the case to be met, while the record must be tailored to those grounds rather than preserved as general insurance against every possible development.