MONTREAL – The provincial Court of Appeal has overturned a lower-court ruling that would have granted 10 private-school students at least temporary permission to continue studies at English-language schools for which they are otherwise ineligible under Quebec’s language law.
The students in question have attended English private schools throughout their primary school years and were seeking to continue their education at the same institutions.
Three years ago they were denied permission to do so because while the primary grades at the schools they attended are not subsidized by public funds, the secondary grades are subsidized. They were denied under provisions of Bill 104, the 2002 law that closed a loophole in the language law that allowed otherwise ineligible students to switch to subsidized or public English schools after spending at least year at an unsubsidized private school.
They appealed to the province’s administrative tribunal, but were denied a hearing because Bill 104 was being contested before the Supreme Court of Canada at the time. The high court struck down Bill 104 as unconstitutional late last October, but suspended its judgment to give the Quebec government time to reconsider its policy and draft a new law.
This spring the government introduced a new bill that extends the period of time required to be spent at a non-subsidized school and would require those seeking admission to subsidized or public schools who don’t meet the basic language law requirement of having a parent who attended English elementary school in Canada to undergo a case-by-case evaluation as to their eligibility.
The students’ parents went to court to seek leave for their children to continue at the schools they had attended, at least until they could be evaluated under the criteria of the new legislation, Bill 103, expected to come into force by Oct. 22.
Their lawyer, Frédéric Massé, argued denying the children leave to continue their education at the schools they had attended was prejudicial. At least for the time being, he argued, their fundamental Charter rights were being infringed after Bill 104 was struck down, even though application of the judgment had been temporarily suspended.
A Quebec Superior Court ruling Thursday came down in their favour, but the provincial government immediately appealed.
After a hearing on Friday, Appeal Court Judge Pierre J. Dalphond ruled Saturday in favour of the government’s lawyers’ contention that the suspension of the Bill 104 judgment means the law remains in effect until the suspension deadline. Granting the students an exemption could open the door to a flood of similar requests that would be against the public interest, the lawyer argued.
In his ruling, Dalphond said the suspension was intended to avoid such requests prior to the deadline and that the prejudice the students would face in changing schools was not grave, but only relative since “tens of thousands of Quebec children go without grave difficulty from a primary to a secondary school each year.”
He also noted that at the time the parents enrolled the children in the schools, they should have been aware that the prevailing law would have prevented them from continuing to the secondary level at the same institutions. He noted that they still have an option to send their children to one of two unsubsidized secondary schools in the Montreal area.
Dalphond also ruled that it is not in the public interest to open the door to other such requests because it could create serious problems for the education system on the eve of a new school year. He said it could also complicate the legislative debate on the new law currently before the National Assembly. “It is clear that the public interest here prevails over prejudices alleged by the parents involved.”
In the wake of the appeal ruling, Massé said he is consulting with his clients about what to do next and expressed disappointment with the ruling, saying it failed to fully address the issue of whether the students’ fundamental rights have been infringed.
“I think the judge failed to recognize that our clients had a right to English schooling,” he said in an interview. “He basically put the debate as simply one of having to change schools, but it goes beyond that. In the end it really boiled down to the fact that if it wasn’t suspended hundreds of kids could have done the same thing, something I don’t find so offensive.
“More important, parents should be allowed to exercise their constitutional rights.”
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