EMSB latest Bill 96 appeal wins, after judge upholds ruling

The English Montreal School Board (EMSB) has successfully won two appeals after a judge upheld a Quebec Superior Court decision regarding Bill 96 on May 31.

Court of Appeal Justice Geneviève Marcotte rejected a challenge by the CAQ government to a Quebec Superior Court decision that provided EMSB with a partial stay of provisions of Bill 96 and the Charter of the French Language in April.

According to a press release, that ruling also benefited other English language boards and the Quebec English School Boards Association (QESBA).

“The fact that the Charter of the French Language requires English school boards to communicate exclusively in French when interacting with other English-speaking community organizations, including the QESBA and the English Parents’ Committee Association of Quebec, never made any sense,” said EMSB Chair Joe Ortona.

The EMSB’s requests to appeal the Superior Court decision that declared English language school boards to be “school service centres” was granted and will be heard by the Court of Appeal once the Superior Court has ruled on all EMSB challenges.

“The court of appeal has had to tell them English language school boards have the right to preserve the English language. It’s clear cut. It’s in the Constitution. They’ve got to get with the times,” said Ortona. 

“The government, of course, was wrongheaded in deciding to appeal. So this decision makes it very clear that English language school boards are an English institution and they have the right to work and communicate in English.” 

Ortona said he is pleased to see the injunction remain in place.

“We are English school boards, not school service centres like the French sector. Even the Office québécois de la langue française and the Attorney General of Quebec’s lawyer acknowledged that there were legal inaccuracies in the judge’s analysis on the question,” said Ortona.

Seven English school boards, as well as the QESBA, have joined EMSB’s court challenge.

“I think it’s important. I think it’s necessary. And it’s necessary in terms of injunctions, which I seem to know a little bit about injunctive provisions. It’s necessary to have a stay because the prejudice, the biggest prejudice would be on the EMSB if they had to start communicating in French with everybody who, even though both parties speak English,” said Geneviève Grey, a Montreal lawyer at Grey Casgrain.

“I think the EMSB needs to retain a certain amount of control. It’s a political school board. I mean, it’s very political, these school boards can be very political, but I think there’s more of a democratic process within the school boards themselves.” 

The EMSB is challenging Bill 96 because they claim it violates the English-speaking community’s right to manage and control its educational institutions under section 23 of the Canadian Charter of Rights and Freedoms.

In the April ruling, the Superior Court had concluded that the term “school service centres” in Bill 96 applied to English-language school boards. However, English-language school boards are not subject to Bill 40 and therefore are not school service centres.

Bill 40, An Act to amend mainly the Education Act with regard to school organization and governance, would have transformed English language school boards into English-language school service centres.

The nine boards were granted a stay from Bill 40 in 2020, which was confirmed by three judges of the Court of Appeal. Last August the Superior Court declared various provisions of the legislation unconstitutional and an appeal on the merits will likely be heard in 2025.

Ortona explained that although the court system may be a lengthy process, the partial stay is an important development.

“Let me be clear: the EMSB continues to embrace the French language, having pioneered the French immersion program. Winning a stay is an important development, to avoid suffering irreparable harm while we wait,” said Ortona.

“The courts are demonstrating once again that, you know, we’re not coming out of left field here. We’re making reasonable arguments. We’re winning in court almost every single time. If you’re keeping score, it’s like seven one now for the EMSB and the English school boards. So we’ll get a decision when we get a decision. And I’m confident that we’ll be successful there.” 

The English Montreal School Board is the largest English publicly funded school board in Quebec.