Bill 40 ruling ‘a triumph for English school boards,’ says SWLSB

Officials with the Sir Wilfrid Laurier School Board (SWLSB) issued a statement Thursday saying they are thrilled a Quebec Superior Court judge ruled that major elements of Bill 40, an act amending the province’s Education Act with respect to school organization and governance, are unconstitutional.

Bill 40, which was adopted in the National Assembly in the early hours of February 8, 2020 converted French school boards into school service centres, resulting in the abolition of Councils of Commissioners, replaced with board of directors.

The Quebec English School Boards Association had been awarded a stay of legislation in 2020, therefore making Bill 40 inapplicable to the nine English school boards until the case was heard on its merits.

Quebec Superior Court judge Sylvain Lussier’s extensive 125-page judgment found that many provisions of Bill 40 were unconstitutional and infringed upon section 23 the Canadian Charter of Rights and Freedoms, which safeguards minority language education rights.

“This is undeniably a victory for the English-speaking community of Québec. We are incredibly happy to see our rights to control and manage our schools acknowledged and honored,” said SWLSB chairperson Paolo Galati, while adding that although it had been a long journey, “the fight was undoubtedly worthwhile,” he said.

Taking into account decades of jurisprudence regarding minority language education rights in Quebec and the rest of Canada, the SWLSB declared the court’s ruling “a historic pronouncement of the importance of protecting the rights of linguistic minorities in the province.”

The board said the court’s ruling also highlighted the significance of safeguarding minority language education rights and preserving democratic representation in educational governance.

“We sincerely hope that the Quebec government will refrain from appealing the judgment so that we can continue with our mission and wholeheartedly focus on providing the best education for our students,” said Galati.

Among other things, these elements were declared unconstitutional by Quebec Superior Court:

  • Eligibility requirements to be elected as a member of the board of directors of an English-language school service centre, including the requirement for parent representatives to also sit on the governing board, the requirement for community representatives to meet certain profile requirements and run in the entire territory of the board, etc.;
  • The requirement that only parent representatives can become Chair or Vice-Chair;
  • The presence of unelected staff members on the Council of Commissioners;
  • The transfer of the Chair’s role as spokesperson to the Director General;
  • The exclusion of commissioners from the development of Commitment-to-Success Plans;
  • The establishment of budgetary measures that are sent directly from the Ministry to schools, by-passing the school board; and
  • The absence of a rightsholder requirement to vote in school board elections.
QESBA president Dan Lamoureux.

In a statement, QESBA president Dan Lamoureux said, “We still have to examine the judgment in detail, but we are extremely pleased that our rights have been recognized and respected with this decision. We truly hope that the Government will decide not to appeal this clear decision that is based on our rights to manage and control our schools. We will be meeting with our Board of Directors and stakeholders to discuss next steps.”

The QESBA said it was also successful in obtaining a favourable conclusion in the judgment that the provincial government has an obligation to take into account the needs and preoccupations of the English-speaking community, including by way of prior consultation on legislation. “The Court found that adequate consultation had not taken place on Bill 40,” the association said.

The association said the court firmly rejected the government’s argument that only parents with children presently in English schools are rightsholders pursuant to section 23 of the Canadian Charter. The QESBA said the ruling confirmed that rights holders also include “ceux qui ont le droit d’y inscrire leurs enfants, ou qui y ont fait inscrire leurs enfants d’âge scolaire, ou avaient le droit de le faire.“

The Quebec Community Groups Network (QCGN) applauded the outcome of the legal challenge.

“This is a significant victory not only for the English-speaking community of Quebec, but for official
language minority communities across Canada,” said QCGN president Eva Ludvig, while adding that
“education rights are vital because of the well-established link between education and cultural and
community vitality.”

Commenting on the possibility the government may decide to appeal the judgment, Ludvig said, the government “should do the responsible thing and not appeal today’s decision. The Court was clear that Quebec has an obligation to work with its English-speaking community when developing legislation. We have always been and remain open to effective consultation with the provincial government.”