The case was appealed to the Court of Appeal which held that the lower court judge had misapplied the test for granting an injunction. While the Court Appeal overturned the lower court ruling in relation to the relief sought, it ordered that the injunction was to remain in place until the end of the school year. Prior to the beginning of the next school term,the matter was settled in favour of the child. A settlement agreement which required that Nathalie be integrated was approved by court order.
Profincial/Territorial Responsibility
The Supreme Court of Canada has not had the opportunity to rule on the question of whether there is a constitutional right for all children to attend school in their neighhourhood in a regular class. The court has, however, stressed the importance of the State providing an education to its citizens. The constitution has continually made education the exclusive jurisdiction of the provinces. It can be argued that, where the provincial/territorial government has undertaken through legislation to provide an education, that education must be provided without discrimination to meet the constitutional standard imposed on provinces and territories by s.15.
Legislation typically enables the education minister to delegate responsibility for the day-to-day education and administration to school board officials. In addition to holding school hoards accountable for the practice of segregating children with mental disabilities, some parents have made simultaneous claims against ministers of education who have the ultimate statutory duty.
The recent settlement of the Charter challenge in Ontario, Hysert v. Carleton Board of Education et al., demonstrates the importance of asserting a shared responsibility with the provincial or territorial government. The case was settled just prior to trial when the attorney general advised counsel for the school board that the government intended to amend its statement of defence.
