Application seeking provisional execution. Dismissed.
The applicants seek the provisional execution of certain portions of the judgment rendered April 20, 2021, by the Superior Court, to the effect that certain provisions of the Act respecting the laicity of the State (CQLR, c. L-0.3) amount to unjustifiable violations of s. 23 of the Canadian Charter of Rights and Freedoms (R.S.C., 1985, App. II, No. 44, Schedule B, Part I). The trial judge held that many of Quebec’s Anglophone school boards have adopted policies recognizing the importance of social, ethnic, cultural, and religious diversity, as well as the related importance of counting among its teaching and management staff persons who wear religious symbols. This conclusion led the trial judge to articulate the relevant constitutional right as one to foster such diversity through means that include the recruitment and promotion of religious-symbol-wearing employees.
According to the applicants, the Act respecting the laicity of the State negates the hiring and promotion policies of the Anglophone school boards while suppressing minority cultures within their institutions. That claim is an overstatement, at least in the context of the present application. It cannot be simply assumed that the Act’s partial interference with the school boards’ hiring and promotion policies is likely to have a significant detrimental impact on the latter’s social, ethnic, cultural and religious diversity while the appeals are pending.
The applicants’ second claim is that the Laicity Act will seriously harm the integration and educational success of students, notably their ethnic and religious minority students. One cannot assume that the Act’s partial interference — during that period — with the Anglophone school boards’ ability either to recruit principals, vice principals and teachers, or to give different responsibilities to current employees, will compromise that diversity-focused pedagogical approach in a way that will significantly impact the integration and educational success of students.
The applicants’ third claim is that the inability to offer teaching positions to candidates who wear religious symbols is problematic in light of the teacher shortage currently faced by at least some Anglophone school boards. As a general proposition, a measure that interferes with a school board’s or service centre’s ability to fill vacant positions with properly qualified teachers is inherently detrimental to the public interest. However, I find that the facts adduced are not sufficiently precise, clear and concrete to support an inference that the application of the Laicity Act while the appeals are pending is likely to have a significant impact on the EMSB’s ability to fill vacant positions with properly qualified candidates
The fourth claim in support of the application seeking provisional execution emphasizes the Laicity Act’s general impact not only on the culture of openness and tolerance that is so important to the Anglophone school boards, but also on the latter’s core identity and values. However, the applicants have not demonstrated that the prejudice alleged in relation to that claim was sufficiently precise, clear and concrete to justify the order sought.
Thus, and bearing in mind the exceptional nature of an order for provisional execution as well as the requirement that article 661 para. 1 C.C.P. (CQLR, c. C-25.01) be applied in a restrictive manner, both of which reflect Quebec’s distinctive approach regarding the effect of judgments under appeal — the applicants have not discharged their burden to show that the filing of the appeals is likely to cause serious or irreparable prejudice to the holders of the s. 23 rights vindicated in the impugned judgment.
Text of the decision: http://citoyens.soquij.qc.ca