Schmidt v Calgary Board of Education (Alberta Supreme Court, Appellate Division, Sinclair, Clement and Moir, JJ.A. October 26, 1976) is the basis for the legal requirement in Alberta that, where a separate school jurisdiction exists (they exist in only some of Alberta), members of the minority faith that established the separate school jurisdiction must be considered and treated as residents, electors, and ratepayers of the separate school jurisdiction. This decision was handed down prior to the enactment of the Charter of Rights and Freedoms, and it has not been appealed to the Supreme Court of Canada so it is not ultimately determinative of the issue.
Schmidt is a civil rights case, pre-Canadian Charter of Rights and Freedoms. The key question is whether there was an illegal expression of discrimination on the basis of religious beliefs, contrary to the Alberta Individual Rights Protection Act, 1972 (Individual's Rights Protection Act, 1972 (Alta.), c.2, s.3(b) - School Act, R.S.A. 1970, c. 329, ss. 53,142, 143).
It is also a constitutional law case, relating to the provisions that enshrine the rights of those who choose to establish and operate separate schools in Alberta. (British North America Act, 1867, s. 93 - Alberta Act, 1905 (Can.), c.3, s. 17 - Individual's Rights Protection Act, 1972 (Alta.), c. 2, ss.1(2), 3(b))
The applicant, Mr. Schmidt, was Roman Catholic, and the father of two young (school-aged) children. The parents had earlier lived in Ontario, where they had enrolled their daughters in a public school, although a Roman Catholic school was available to them. In Ontario, members of the minority faith have the option of being residents, electors, and ratepayers of the public school system.
Mr. Schmidt's employer transferred him to Calgary, where he sought to enroll his children in the public school system (as he had done in Ontario). Staff of the Calgary Board of Education advised Mr. Schmidt that he must either pay a non-resident tuition fee for each child or first enroll his children in the separate school system and negotiate with that system to have them transfer the children to the public school system (the Calgary Board of Education) and pay tuition. Mr. Schmidt objected to this process, on the basis that the parents of the children should have the direct opportunity to enroll their children in the public school system. (Mr. Schmidt, although a Roman Catholic, supported public school education and preferred to have his daughters educated in a public school.)
Mr. Schmidt lodged a complaint with the Alberta Human Rights Commission. A Board of Inquiry, organized pursuant to the Individual Rights Protection Act, 1972 (Alberta), found against him and upheld the proposition that, in Alberta, wherever a separate school jurisdiction exists, members of the minority faith that established the separate school jurisdiction must be considered and treated as residents, electors, and ratepayers of the separate school jurisdiction. The Board of Inquiry concluded that Mr. Schmidt would have to enroll his children with the Calgary Roman Catholic Separate School District and ask the Separate School District to enter into a tuition agreement with the Calgary Board of Education so that it (CBE) would enroll his child.
Mr. Schmidt appealed the decision of the Board of Inquiry, by commencing an action before the Court of Queen's Bench, Alberta. The Court of Queen's Bench found in his favour, overturning the decision of the Board of Inquiry.
The Calgary Board of Education appealed, and the decision of the Court of Queen's Bench was overturned on appeal to the Alberta Supreme Court, Appellate Division.
Mr. Justice Moir, speaking for the Alberta Supreme Court, Appellate Division (now the Alberta Court of Appeal), made several findings. Primary among these are:
The text of the full decision is available in most Canadian legal databases; however, a free and openly accessible copy of the decision is available on the website of the Public School Boards' Association of Alberta.