By Ruby Pratka
Local Journalism Initiative
Quebec’s English-language school boards and education advocates are in a celebratory mood after the Quebec Court of Appeal ruled in their favour in a long-running court battle with the provincial government.
In February 2020, the Legault government passed Bill 40, which replaced elected school boards with service centres overseen by government-appointed directors general and unelected volunteer boards. At the time, the bill’s backers argued that it would increase the efficiency of governance in the educational system and remove the need for costly school board elections that relatively few people bothered to vote in. The Quebec English School Boards Association (QESBA) and its member boards, however, saw an attempt to remove English-speaking communities’ control over minority-language education as laid out in the Charter of Rights and Freedoms. Several months after the bill passed, a court suspended its application to English-language school boards while a legal challenge, brought by QESBA, Montreal’s Lester B. Pearson School Board and a concerned parent, made its way through the courts. In August 2023, Superior Court Judge Sylvain Lussier struck down large parts of the law as it applied to English boards, in line with QESBA’s argument that the law unjustifiably limited the charter rights of official language minority communities. In September of that year, the government appealed the ruling.
In a ruling handed down April 3, appeals court judges Robert M. Mainville, Christine Baudouin and Judith Harvie essentially upheld Lussier’s conclusion, finding large parts of the bill inoperative with respect to English-language boards. The judges found that the school board governance scheme set out in Bill 40, infringed on the community’s right to control its education system and disincentivized parents and community members from getting involved. The community is “entitled to independent school boards that must, at a minimum, allow minority language representatives to exercise exclusive authority relating to minority-language education and facilities,” they wrote, in a ruling that extensively cited previous rulings involving francophone school districts in other parts of Canada. “The Court cannot accept the argument that the linguistic minority is represented through the staff hired by a service centre.” They also found that Bill 40 “radically alters existing structures…in response to political imperatives specific to the French-speaking majority” and the government failed to show, in its appeal, how the new system would help schools obtain educational objectives.
QESBA president Joe Ortona said the school boards “could not have asked for a better ruling.”
“We have been functioning since 2020 as if Bill 40 did not exist, and we plan to continue functioning that way, since the provisions we challenged continue not to apply for us,” he said. “We have local elected representatives who are accountable to the English-speaking community and that is how it should be. Our Section 23 rights matter.”
Eva Ludvig is the president of the Quebec Community Groups Network (QCGN), which was granted intervenor status in the case. “The QCGN had reminded the court that although Quebec has broad authority over education, that authority is not limitless,” she said in a statement on the day of the ruling. “If a law interferes with minority-language rights, the burden is on the province to justify it… and that is a high bar to meet. This is why today’s ruling is such a landmark win for our community.”
English Parents’ Committee Association president Katherine Korakakis said the ruling was a “historic victory, not just for parents, but for every member of our community who believes in shaping our children’s future.” Eastern Townships School Board chairperson Michael Murray said the ruling was “very satisfying,” particularly because it imposed a broad definition of the English-speaking community.
He added that the five-year-long legal battle “has been a huge distraction from our primary mission, which is to educate anglophone youth – the energy and the money we have spent to arrive at the same place where we were before the government began imposing Bill 40. The government is within its rights to make changes where the majority community wants and supports them, but the minority community has protected rights, meaning it should not apply ipso facto to us.”
The Quebec government has 60 days to decide whether to ask the Supreme Court of Canada for leave to appeal. Murray and Ortona said they hoped the government would decide to meet with school board representatives to plan a way forward instead of appealing. “The two-speed system which has been in place since Bill 40 has been working pretty well,” Murray said. “That would be a starting point for discussions … it would be an enormous relief for us to have this succession of legal battles terminated so we can get back to the basics of operating our schools.”
The Quebec government has 60 days from the date of the ruling to apply for leave to appeal to the Supreme Court of Canada. A spokesperson for the Ministry of Justice declined to comment on the ruling “out of respect for the judicial process.”