English school board in Montreal launches legal challenge to Quebec French-language law

The province's controversial French-language reform law already has its first legal challenge less than two weeks after it was passed in the Quebec legislature.

The English Montreal School Board (EMSB), Quebec's largest English-language school board covering more than 44,000 students, filed an application in Superior Court calling for a judicial review of Bill 96.

In its application, EMSB Chair Joe Ortona argues the law violates the Canadian Constitution by infringing on the right to equal access to the law in Canada's both official languages. It also argues that provisions of Bill 96 violate the rights to "management and control of minority language education exercised by the English Montreal School Board" under Section 23 of the Charter of Rights and Freedoms.

"Decisions pertaining to the use of the language of the minority, and other languages by and within a minority language school board, go to the heart of the protection conferred by s. 23 of the Charter," Ortona argued in the document.

"Minority language school boards have the exclusive authority to make such decisions, including the right to create and maintain an environment in which staff, students, families and community members can interact and thrive in the language of the minority."

Ortona's legal challenge was filed June 1, the same day the bill received Royal Assent and became law. He said in his application that the sections under attack from the language reform law are not subject to the notwithstanding clause, a rare legal tool used by the ruling CAQ government to shield Bill 96 from Charter challenges. 

According to leading Montreal constitutional lawyer Julius Grey, Quebec's use of the notwithstanding clause is "an admission they know it's unconstitutional and they just don't care."

Ortona argues that provisions in the bill that require English-language school boards to use French or both official languages in written communications "infringe the right to management and control over the language of communications within English language school boards."

His application also calls into the question the requirement for certain bodies to erect signs and posters in French, or French and another language, with the French text "predominating." It also argues that the mandate of the province's language watchdog, the Office québécois de la langue française (OQLF), to monitor the use of French within English-language school boards is a violation of the Charter, as is the requirement for providing a French translation of court documents for a fee since "the law imposes additional burdens on such litigants."

In an interview with CTV News, he said he expects the legal fight to be lengthy and could end up in the Supreme Court of Canada. The school board is turning to a surplus of $70 million to be partly used for the legal battle. Ortona said no classroom resources are being used for the legal endeavour. 

"We're doing this, it's because we're confident we have a case and we're confident we're going to win on the merits," he said Monday, adding that "our record shows we haven't brought frivolous lawsuits thus far."

"There are some injustices here that hurt our board, hurt the community's right to manage and control, and we're going to want to rectify that.

Bill 96, an update to Quebec's original French-language charter (Bill 101), was passed by the National Assembly on May 24. Its passing codifies French as the official and common language in Quebec, bringing sweeping reforms to the use of French in Quebec in many sectors of society, including the justice system, education, employment, and others.

OTHER LEGAL CHALLENGE ON THE HORIZON

The Sir Wilfrid Laurier School Board confirmed last week that it was opposed to Bill 96 and would support the EMSB in its legal challenge, which is not going to be the last.

Grey is among a group of Montreal-area lawyers that intends to launch a legal challenge of its own in court, likely in the next week or two, he said Monday.

One of the central parts of the argument is the Quebec government's preemptive use of the notwithstanding clause for Bill 96, much like the CAQ did for Bill 21, the law that prohibited the wearing of religious symbols, such as hijabs, by people in the public sector while working.

"The idea that a government should use the notwithstanding clause in advance whenever a policy is important to them is the antithesis of the Charter," Grey said.

"They didn't use the notwithstanding clause when they had the decrees for COVID. Ottawa didn't use the notwithstanding clause when they had the [Emergencies Act]. It is only for the English language or other languages — or for veils and turbans — that Quebec thinks it has to use the clause."

He, too, believes the court battle on Bill 96 will be a long one and said that Indigeonus groups and advocates for immigrants are joining the cause to argue the province's new language reform law is invalid.

Simon Jolin-Barrette, the minister responsible for the French language in Quebec, and Premier François Legault have previously said the bill is necessary to prevent the decline of French in the province.

With files from CTV News Montreal's Iman Kassam