Provincial legislation is ultra vires if it creates a power to indefinitely and totally withdraw the rights and privileges of a class of persons protected by constitutional guarantees regarding denominational schools, as the existence of such power itself constitutes a prejudice.

Lord Buckmaster, L.C.:-

The question raised in these consolidated appeals is whether Sec. 3 of 5 Geo. 5, c. 45 (1915) Ontario is valid and within the competency of the provincial Legislature. The appellants contend that this section prejudicially affects certain rights and privileges with respect to denominational schools reserved under provision 1 of S. 93 of the British North America Act 1867.

The preamble of the Act of 1915 recites that an action was then pending in the Supreme Court of Ontario between R. Mackell and others and the appellants. This action has now been finally decided adversely to the appellants. Their Lordships see no reason to anticipate that this judgment will not be accepted and obeyed. There is a further recital that the appellants have failed to open the schools under their charge at the time appointed by law, and to provide or pay qualified teachers for the said schools, and have threatened at different times to close the said schools and to dismiss the qualified teachers duly engaged for the same. So far as this appeal is concerned the accuracy of these recitals was not questioned by the counsel for the appellants. Sec. 1 of the Act does not come into question in this appeal; S. 2 is a declaration of the duties of the appellants. Sec. 3 is as follows :-

"if, in the opinion of the Minister of Education, the said board fails to comply with any of the provisions of the Act, he shall have power with the approval of the Lieutenant Governor in Council (a) To appoint a Commission of not less than three nor more than seven persons. (6) To vest in and confer upon any Commission so appointed all or any of the powers possessed by the board under statute or otherwise, including the right to deal with and administer the rights, properties, and assets of the board, and all such other powers as he may think proper and expedient to carry out the object and intent of this Act. (c) To suspend or withdraw all or any part of the rights, powers, and privileges of the board, and whenever he may think desirable to restore the whole or any part of the same, and to revest the same in the board, (d) To make such use or disposition of any legislative grant that would be payable to the said board on the warrant of any inspector for the use of the said schools, or any of them, as the Minister may in writing direct." The acting Minister of Education expressed the opinion that the trustees had failed and were failing to comply with the provisions of the Act, and submitted the appointment of a Commission for the approval of the Lieutenant-Governor in Council. The respondent Commission was duly appointed under an Order in Council on 25th July 1915.

The powers conferred on the Minister of Education in Sub-Ss. (b) and (c) of S. 3 are expressed in very wide terms. At the instance of the Minister, with the approval of the Lieutenant-Governor in Council, all or any part of the rights, powers and privileges of the appellant board may be suspended or withdrawn without limitation in time and only subject to restoration at the discretion of the Minister. The powers withdrawn from the appellant board may be vested and conferred upon an appointed Commission, a nominated body, in the selection of which the rate-paying supporters of the Roman Catholic separate schools have no voice. There is no exception to the universality of the extent to which all the rights, powers, and privileges of the appellant board may be suspended or withdrawn and vested in and conferred upon this nominated body. Is this legislation consistent with provision 1 of Sec. 93 of the British North America Act, 1867? Sec. 93 enacts that "in and for each province the Legislature may exclusively make laws in relation to education, subject and according to" certain specified provisions. This section has been recently under the consideration of their Lordships in the case of the appellant board against R. Mackell and others A.I.R. 1916 P.C. 185 — 1917 A.C. 62 — (1917) 86 L.J. P.C. 6