This is the English version of an article initially published in La référence, under the rerference EYB2025REP3853.
Summary
The authors comment on this judgment in which the Court of Appeal reaffirms the rights of Québec’s English linguistic minority to manage and control its educational institutions, invalidating the provisions of the Act to amend mainly the Education Act with regard to school organization and governance (“Bill 40”) that infringe these rights. The Court of Appeal stressed the importance of these rights to the development of the anglophone community and the protection of its linguistic and cultural interests.
INTRODUCTION
Section 93 of the Constitution Act, 1867 gave the provinces the exclusive power to legislate in relation to education and provided protections for religious minorities until 1997.1 Prior to the adoption of the Canadian Charter of Rights and Freedoms (the “Charter”) in 1982, the Constitution offered no protection to linguistic minorities as regards the language of instruction.2 In Québec, freedom of choice of the language of instruction was the norm until the 1970s.3 The Charter of the French language,4 which came into effect in 1977, imposed additional restrictions.5
Section 23 of the Charter was enacted to remedy the restrictions on access to education in the language of Québec’s English linguistic minority and the difficulties encountered by francophones outside Québec.6 In 1997, constitutional amendments allowed linguistic rather than denominational school boards to be created in Québec, enabling the English-speaking minority to manage and control its educational institutions.7
Enacted in 2020, Bill 40 transformed school boards into school service centres, changing their mission and governance.8 The new mission was to support educational institutions by procuring access to the goods and services required to provide students with quality educational services and see to their educational success. From that point on, the role of a school service centre’s board of directors was to provide oversight rather than direction. These role and mission changes were reflected in the composition of the board of directors, the abolition of remuneration for its members, and the transfer of responsibilities to the school service centre’s director general and employee committees. The changes also resulted in increased powers for the Minister.9
As a result, the introduction of Bill 40 quickly triggered opposition from the English linguistic minority on the grounds that it interfered with its s. 23 Charter rights.
In its decision in Procureur général du Québec v. Quebec English School Boards Association,10 the Court of Appeal reiterated the preventive and remedial nature of s. 23 of the Canadian Charter of Rights and Freedoms.
I– NATURE OF THE APPLICATION FOR LEAVE TO APPEAL
The Attorney General of Québec (“AGQ”) appealed against the Québec Superior Court judgment, which declared certain provisions of Bill 40 and the Education Act (“EA”) inoperative with respect to Québec’s English-language school boards because they unjustifiably infringed rights guaranteed to Québec’s minority language group by s. 23 of the Charter, which protects minority language education rights.11
II– COURT OF APPEAL JUDGMENT
The Court of Appeal found it imperative to address the entire dispute in light of the general scope of the linguistic minority’s rights of management and control over its educational facilities and of the identification of the holders of those rights.12 The Court of Appeal bore these parameters in mind in analyzing the provisions of Bill 40 that were found to infringe s. 23 of the Charter and the justification submitted under s. 1 of the Charter. The Court of Appeal then clarified the parameters of the government’s duty to consult with the linguistic minority in the course of the law-making process. Lastly, the Court addressed the applicable remedies.
A. Scope of the management and control rights and rights holders
The Court of Appeal confirmed that the management and control rights over minority language educational facilities were those defined in Mahe.13 These rights include managing expenditures, appointing administrative personnel, establishing programs of instruction, recruiting personnel, and making agreements for educational services. These rights confer exclusive authority over the use of funds allocated for instruction, the appointment and direction of administrative personnel, and the establishment of programs of instruction.14
The representatives chosen by the individuals forming part of the linguistic minority effectively exercise these management and control rights. These management and control rights are exclusive to representatives of the linguistic minority.15 “In Quebec, this linguistic minority includes, at a minimum, Canadian citizens: (a) whose first language learned and still understood is English (s. 23(1)(a) of the Charter); (b) who received their primary school instruction in Canada in English (s. 23(1)(b) of the Charter); or (c) of whom any child has received or is receiving primary or secondary school instruction in English in Canada (s. 23(2) of the Charter)”.16
With those parameters in mind, the Court then examined the Québec Superior Court justice’s finding that s. 23 of the Charter was infringed.17
B. Infringed rights under s. 23 of the Charter
The Court of Appeal examined the Bill 40 and EA provisions at issue and found that the English-language school boards’ management and control rights were infringed.
Specifically with respect to s. 212 of Bill 40 and s. 15 of the Act respecting school elections to elect certain members of the boards of directors of English-language school service centres (the “New Act”), which deal with the right to vote and the election of candidates in minority language school elections, the Court of Appeal stated that s. 15 of the New Act “infringes the rights guaranteed by s. 23 of the Charter solely in that it allows an individual who is not part of Québec’s linguistic minority to vote in school elections within the English-language school system”.18
As for the composition of the board of directors and the method for selecting its members established by ss. 50, 196, 208 and 216 of Bill 40, the Court of Appeal confirmed that they restrict the rights guaranteed to the linguistic minority under s. 23(3)(b) of the Charter.19
With regard to abolishing board members’ remuneration as set out in s. 66 of Bill 40, the Court of Appeal confirmed that this abolishment, together with the other eligibility requirements for parent members and community representatives, significantly restrict the pool of potential candidates for these positions, and therefore, the ability of the linguistic minority to choose its representatives who will actually exercise the management and control rights arising under s. 23(3)(b) of the Charter.20
The Court of Appeal also confirmed that the eligibility restrictions for the positions of chair and vice-chair set out in s. 52 of Bill 40 infringe the management and control rights arising from s. 23 of the Charter.21
As for the role of spokesperson now entrusted to the director general under s. 93 of Bill 40 and the amendment to s. 155 EA, the Court of Appeal confirmed that withdrawing the role of spokesperson from a linguistic minority representative and entrusting it to an employee hired for a specific function infringes the management and control rights of the linguistic minority set out under s. 23(3)(b) of the Charter.22
The creation of the commitment-to-student-success committee under s. 91 of Bill 40 and its mandate limiting the board of directrors’s role in developing and approving the commitment-to-success plan is considered by the Court of Appeal to infringe s. 23 of the Charter.23
The Court of Appeal is of the opinion that the dedicated or protected funding measures set out in s. 473.1 EA, and the resulting limitations on the flexibility of school boards in the use of their funds, infringe the minority’s management rights, by removing control over the use of funds for instruction and educational facilities.24
C. Justification of these infringements under s. 1 of the Charter
The Court of Appeal emphasized that an infringement of s. 23 of the Charter is especially difficult to justify and that any derogation must “be analyzed and justified on the basis of a very stringent standard”.25 To date, the Supreme Court of Canada has never found that an infringement of s. 23 of the Charter was justified.26 While the AGQ alleged that the main objective of Bill 40 is to review school governance to bring the decision-making process closer to students and give parents a greater role, the Court of Appeal noted that these objectives are overly general and do not specifically meet the English linguistic minority’s needs. It ruled that the AGQ’s arguments failed to satisfy the first step of the analysis, as they failed to show that the infringing measures are in pursuit of a pressing and substantial objective. The AGQ’s stated objectives were overly vague and failed to justify significant infringements of the management and control rights guaranteed by s. 23 of the Charter.27
Accordingly, the Court of Appeal rejected the justification of the infringements under s. 1 of the Charter.
D. Government’s duty to consult in the course of the law-making process
The Court of Appeal found that the trial judge erred in imposing a duty to consult on the legislature in the course of the law-making process. The Court of Appeal is of the view that s. 23 of the Charter imposes no constitutional duty on the legislature to consult with representatives of the linguistic minority before enacting legislation with respect to education, and emphasizes that this is so because of the principles of the separation of powers and parliamentary sovereignty.28 However, the Court of Appeal noted that the enactment of a statute that is incompatible with the rights of the linguistic minority may be invalidated by the courts in accordance with the requirements of s. 23 of the Charter.29
E. Remedies
The Court of Appeal considered that no exceptional circumstances have been established that could justify ordering to hold a dialogue under court supervision, considering that the legislature had no constitutional duty to consult with Québec’s English linguistic minority.30 Regarding the suspension of the legislative provisions that are inextricably linked to the provisions declared unconstitutional, the Court of Appeal is of the opinion that it is more prudent to follow jurisprudential teachings in this area and to declare the legislative provisions in question inoperative.31 Lastly, the Court of Appeal considered the order to extend the stay of application of Bill 40 until the expiry of the time limit for an appeal to be appropriate in the circumstances and qualified it as a precautionary measure.32
III– AUTHORS’ COMMENTS
This judgment restated the preventive and remedial nature of s. 23 of the Charter, which “is meant to ensure, in each of the provinces and territories, the protection and development of the two official languages and the cultures they embrace”33 and its special nature, which imposes positive obligations on the state.34
This judgment also reiterates that s. 23 of the Charter lays down a comprehensive code that establishes the scope of minority language educational rights35 and finds that in that sense, the duty to consult in relation to minority language educational rights must flow from s. 23 of the Charter itself36 and not be interpreted in light of the duty to consult with Aboriginal peoples arising from s. 35 of the Constitution Act, 1982 or the right of workers to collectively bargain their working conditions stemming from the freedom of association guaranteed by s. 2(d) of the Charter.37
It is noteworthy, moreover, that the Court of Appeal appears to draw a line between the interpretation of s. 23 of the Charter whereby “the legislature has no constitutional duty to consult minority language representatives regarding the enactment of legislation in relation to education”38,and an interpretation of s. 23 of the Charter that would take into account the constitutional duty to consult with Aboriginal peoples under s. 35 of the Constitution Act, 1982 and the right of workers to collectively bargain their working conditions under s. 2(d) of the Charter.
CONCLUSION
The Court of Appeal partially accepted the AGQ’s arguments and modified a number of the trial judge’s findings. It rejected the trial judge’s approach of ordering a “dialogue” under court supervision to correct the infringements of s. 23 of the Charter. The Court of Appeal emphasized that there is no constitutional duty to consult prior to the enactment of legislation in relation to education, even if such consultation may be politically desirable.39
The Court of Appeal replaced the suspension of the provisions of Bill 40 with a declaration of inoperability in respect of these measures.40 The stay of application of Bill 40 is maintained until the expiry of the time limit for appealing the judgment.
1 Judgment, para. 5.
2 Judgment, para. 6.
3 Judgment, para. 7.
4 CQLR c. C-11.
5 Judgment, para. 9.
6 Judgment, para. 10.
7 Judgment, paras. 23, 24.
8 Judgment, paras. 27–30.
9 Judgment, paras. 29–36.
10 EYB 2025-566756, 2025 QCCA 383.
11 Judgment, para. 1.
12 Judgment, para. 92.
13 Judgment, para. 117.
14 Judgment, para. 132, Mahe v. Alberta, [1990] 1 S.C.R. 342, EYB 1990-66930.
15 Judgment, para. 143.
16 Judgment, para. 133.
17 Judgment, para. 134.
18 Judgment, para. 146.
19 Judgment, para. 148.
20 Judgment, para. 179.
21 Judgment, para. 180.
22 Judgment, para. 187.
23 Judgment, paras. 188–194.
24 Judgment, paras. 195–208.
25 Judgment, para. 210; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678 EYB 2020-354441, para.
26 Judgment, paras. 209, 210.
27 Judgment, paras. 217–223.
28 Judgment, paras. 226–227.
29 Judgment, para. 229.
30 Judgment, paras. 249–255.
31 Judgment, para. 265.
32 Judgment, paras. 273–274.
33 Judgment, para. 109.
34 Judgment, para. 112.
35 Judgment, para. 230.
36 Judgment, para. 234.
37 Judgment, para. 231.
38 Judgment, para. 229.
39 Judgment, paras. 249–254.
40 Judgment, paras. 263, 265, 271–272.