Jean Robert

Bill 40 ruling a victory for English school boards

Ruby Pratka, Local Journalism Initiative reporter

editor@qctonline.com

Quebec’s English-language school boards are celebrating a major victory after the Quebec Court of Appeal largely upheld an earlier Superior Court ruling on the English- speaking community’s right to oversee its own school system as guaranteed in the Charter of Rights and Freedoms.

In practice, advocates say, the ruling means Bill 40 – the reform passed by the Coalition Avenir Québec (CAQ) government in 2020 which replaced elected school boards with government-run service centres overseen by unelected volunteer boards with limited power – cannot be applied to English school boards. English boards, they say, will continue to function as they have since 1998, when language-based school boards replaced sectarian ones.

“We’ve been functioning as if Bill 40 didn’t exist, and we plan to continue functioning that way,” said Joe Ortona, president of the Quebec English School Boards Association (QESBA), which brought the case along with Montreal’s Lester B. Pearson School Board and a concerned parent.

When Bill 40 was being debated, its backers argued that it would increase efficiency and remove the need for costly school board elections that relatively few people vote in. However, QESBA and its member boards saw an attempt to deprive Quebec’s English- speaking communities of their charter right to control their education system. Several months after the bill passed, a court suspended its application to English-language school boards while the case progressed. 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 limited the Charter rights of official language minority communities. In September of that year, the government appealed the ruling.

On April 3, the Court of Appeal essentially upheld Lussier’s original verdict. Judges Robert M. Mainville, Christine Baudouin and Judith Harvie found that the school governance scheme set out in Bill 40 infringed on the community’s right to control its education system and disincentivized parent and community involvement. 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 jurisprudence involving francophone school districts in English Canada. “The court cannot accept the argument that the linguistic minority is represented through the staff hired by a service centre.”

“This is more than we could have hoped for,” Jean Robert, chair of the Central Québec School Board (CQSB) Council of Commissioners, told the QCT. “The major thing is that the ruling recognizes that Bill 40 was infringing on our rights under the Charter, which is the basis of all our arguments.”

“We have local elected representatives who are account- able to the English-speaking community, and that is how it should be,” Ortona said in an interview. “It means the community has a voice, because elected representatives [on] boards managed and controlled by commissioners are accountable to the community, rather than accountable to the minister elected by all Quebecers. Now, we get to cater to the will of the community when it comes to management. The French sector doesn’t have that.”

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. “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.”

Katherine Korakakis, president of the English Parents’ Committee Association, said the parents’ group was “thrilled” with the “historic victory.” She called the deci- sion “a powerful reminder that our voices matter, and our right to govern our schools is non- negotiable.”

“We will be able to choose our own destiny, and the population will have the opportunity to choose their commissioners and their chairperson,” Robert said. “It will continue what we believe is a very successful way of governing our school system. … We can move ahead knowing the courts have clearly decided we have that right protected.”

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.”

Ortona and Robert said they hoped the government would not appeal, and would instead use the ruling as the basis for a new working relationship with English school boards. “We want to sit down with the government and say, ‘Let’s accept it and move on and see what’s best for the students,’” said Robert. “They may decide otherwise, but we are hopeful that [because] the decision was so clear, the government will accept it and we can work together.”