Bill 40 challenge reaches
Quebec Court of Appeal
CAQ’s plans to replace English school boards with government-controlled service centres
By Irwin Rapoport
February 5, 2025
Last week, the Quebec Court of Appeal quietly heard a pivotal case for the English community and its elected school boards. The hearing centred on the appeal of the Quebec Superior Court ruling on Bill 40, which had confirmed that the CAQ government’s attempt to transform constitutionally protected English school boards into education service centres was beyond its powers. Three judges presided over the appeal: Christine Baudouin, Judith Harvie, and Robert Mainville. Their ruling is expected in the coming months.
The controversial Bill 40 became law in 2020. While the province’s French school boards lacked constitutional safeguards and were swiftly converted, the English boards remained intact due to their protected status. The transformation of French school boards saw the immediate removal of elected commissioners who had previously managed and controlled these institutions through councils chosen by everyone registered on the French school boards voter list. True to expectations, the newly formed service centres now operate under the direct oversight of the Ministry of Education.
While the province’s French school boards lacked constitutional safeguards and were swiftly converted, the English boards remained intact due to their protected status.
To the community’s relief, after the law was passed, the Quebec English School Boards Association (QESBA) secured a pause on converting the English boards until the courts could examine the legislation. This is the only reason the boards continue to operate and why English school board elections took place last November. Two Gazette articles on the recent legal round provide some excellent background on how we got here:
Quebec says education minister would not control English schools under Bill 40 reform
In his August 2023 ruling, spanning 125 pages, Superior Court Justice Sylvain Lussier struck down numerous clauses of Bill 40. He emphasized how these provisions infringed upon the English community’s rights to manage and control their school boards, as protected by Section 23 of the Canadian Charter of Rights and Freedoms. This section is rooted in the safeguarding of minority language community education systems, originally established under Section 93 of the British North America Act—a provision that Sir Alexander Tilloch Galt fought tirelessly to secure. At Confederation, Section 93 shielded English school boards in the newly formed province of Quebec, as well as French boards in Ontario and the Maritimes.
‘Limiting, directly or indirectly, as [Bill 40] does, the right of representatives to stand for school elections restricts the right of the minority to the management and control of its educational institutions.’
– Superior Court Justice Sylvain Lussier ruling on Bill 40
Justice Lussier’s decision highlighted several crucial aspects:
“The vision of the majority is imposed on the minority as to who can represent it, whereas, for more than 200 years, all members of the community have been eligible to deal with school management.”
“Limiting, directly or indirectly, as (Bill 40) does, the right of representatives to stand for school elections restricts the right of the minority to the management and control of its educational institutions.”
“The sum of the restrictions and requirements formulated in (Bill 40) leads to the conclusion that the English-speaking community will lose control and management of its institutions to the benefit of either the ministry or a small group of people who will have the time and, above all, the means to deal with school governance, while those who are currently interested in it will be discouraged or even prevented from continuing to serve.”
The Gazette highlighted new arguments presented by the government’s lawyer, Samuel Chayer, which centers on the idea that the English community has no reason to be alarmed, arguing that parents whose children attend English schools “would have significant control over decision-making if the Legault government’s plan to replace English school boards with school service centres moves forward.” This stance seems aimed at easing worries within the anglophone community about losing control over their educational institutions, despite the proposed structural changes in Bill 40.
On Monday, Chayer boldly told the justices that school service centres would hold the reins when it comes to organizing educational services, not the minister. With a straight face, he claimed the education minister’s role would be more akin to a “supervisor” offering guidance on management practices, rather than a decision-maker. Chayer insisted the minister wouldn’t be calling the shots on school matters or managing budgets and human resources.
The Gazette drew attention to these eyebrow-raising arguments, which seem to downplay the extent of governmental control in the proposed system.
“ Chayer said the planned school board reform would change governance rules, but he argued that service centres’ powers would be similar to current school boards. Service centres would control educational services, services to the community, human resources and school transportation, for example, he said.”
“ Chayer argued Section 23 pertains specifically to parents, rejecting English school boards’ contention that it applies to the entire English-speaking community.”
“He noted that under Bill 40, English and French school systems would continue to be separate, and parents on the English side would be elected to school governing boards and service centre boards of directors.”
In reality, the education minister has frequently meddled in service centre management. Numerous media reports back this up, including:
Baisse du nombre d’élèves Plusieurs projets d’écoles à Montréal « mis sur pause » – La Presse
(Declining student numbers | Several school projects in Montreal “put on hold”) – La Presse
Centres de services scolaires: Drainville promet plus d’imputabilité et de transparency – TVA Nouvelles
(School Service Centres: Drainville promises more accountability and transparency) – TVA Nouvelles
Centres de services scolaires Legault défend le pouvoir de dégommer les DG – La Presse
(School Service Centres | Legault defends the power to take out the GMs) – La Presse
This discrepancy between Chayer’s claims and the reported reality highlights the ongoing debate about the true extent of governmental control in the proposed educational system. It underscores the concerns of those who fear that replacing school boards with service centres could lead to increased centralization and reduced local autonomy in education management.
QESBA President Joe Ortona, speaking to The Gazette, laid out the school board’s position, pointing out that Bill 40 would “greatly alter governance,” and “severely restrict the rights of the English community to manage and control our schools.”
‘[School service centres would] essentially be governed by the ministry and the administrators. The boards would essentially just be there symbolically – to rubber-stamp decisions.’
– QESBA President Joe Ortona
Currently, anyone on the English school board voters list can run for school commissioner. Bill 40 would limit this right to parents already elected to a school governing board. Ortona argues this undermines a key democratic principle: that any voter should be able to run. He notes that community representative candidates must now show expertise in specific areas like governance or finance.
Ortona warns that Bill 40 would shift power from school boards to the education minister. He fears ministers could overrule service centre decisions, violating Section 23 rights. The boards would become symbolic, merely rubber-stamping decisions made by the ministry and administrators. Ortona criticizes Premier Legault’s approach, saying he aims to weaken English school board autonomy. He claims Legault dislikes elected local representatives opposing his policies.
Ortona’s English Montreal School Board has challenged Bills 21, 96, and 23, which give ministers more power over service centres. He argues that elected commissioners have legitimacy as community representatives, and the government wants to prevent them from standing up against ministerial overreach or fighting rights-violating laws in court.
‘I can’t imagine the Supreme Court overturning its prior rulings that have safeguarded French minority language school boards from unconstitutional legislation.’
In a previous article, What you need to know about the Bill 40 court case, I explained the core legal arguments protecting minority language community school boards. It is comprehensive and contains links for news reports, jurisprudence, and the constitutional bulwarks we rely on.
I’m confident the Court of Appeal justices will uphold the Lussier ruling, and that the Bill 40 case will likely reach the Supreme Court. Our safeguard lies in the constitution and jurisprudence set by Canada’s highest court. It’s hard to imagine the Supreme Court overturning its previous rulings that have protected French minority language school boards from unconstitutional legislation.
The law and Constitution are on our side. I encourage readers to delve into the rich history of English school boards in Quebec. It’s a success story of quality education provided to hundreds of thousands of students since the early 1800s.
Before Bill 101 restricted freedom of choice in education language, parents could opt for English or French public schools. In 1973/74, over 250,000 students attended English public schools. Today, about 100,000 students are spread across nine boards. The system has evolved, developing outstanding programs and services, thanks to dedicated teachers, principals, administrators, guidance counsellors, educational experts, librarians, school commissioners, and parent volunteers at both school and board levels.
Many of us are grateful beneficiaries of this legacy. I attended Merton and Hampstead Elementary Schools in the 1970s and West Hill High School (now Royal Vale) from 1977 to 1981. These Protestant School Board of Greater Montreal schools were at their peak in excellence and innovation. We remember the PSBGM being among North America’s top ten public school boards.
Let us honour this legacy by rallying to defend our school boards as an English community.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the opinions of WestmountMag.ca or its publishers.
Feature image: ESMB School Board administration building, courtesy of the ESMB
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Irwin Rapoport is a freelance journalist with a bachelor’s degree in history and political science from Concordia University.
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