Gallant government overruled in closing francophone school

The Gallant government has been rapped on the knuckles for pre-empting a New Brunswick school board's decision-making process for closing a small rural school.

Court of Queen's Bench Justice Zoel Dionne says in his May 17 decision that then-education minister Serge Rousselle did not have the power to close École Saint-Paul in 2016.

Rousselle made the decision while the Francophone South district education council was hoping to commission a study on the minority-language impact of the shutdown.

The law "does not give the minister any power to decide on a school closure," Dionne writes. "It only gives him the power to either consent or refuse to consent to an education council that has made a closure decision."

The judge doesn't rule on the underlying constitutional questions on minority-language rights.

But he says the council's request for a study of that issue meant it had not reached a final decision for Rousselle to act on.

Dionne doesn't order the school reopened but says the education minister and the education council must "turn back the clock" to May 2015, before the viability review began.

Marc Henrie, one of the Saint-Paul residents who took the case to court, said the ruling was what he expected.

"We would have liked it to come sooner, but at the end of the day I think the decision that was made was the one that we were not just hoping for, but waiting for," he said.

The kindergarten to Grade 8 school closed after Rousselle's decision. Henrie says because the district recommendation was based on the poor condition of the 1951 structure, the community will lobby for a new school rather than a reopening.

"The school board told us at a meeting that for them, it was feasible to have a school in Saint-Paul, but not that school."

There was no comment Tuesday from the Francophone South district. A spokesperson for the Department of Education said officials are "reviewing and considering next steps" and could not comment beyond that.

Ruling questions closure policy

Dionne's decision also calls into question the provincial government's Policy 409, which lays out a process for school closures.

Under the policy, a minister of education can't close a school unilaterally. Districts must hold a series of public consultations before deciding whether it's viable to keep the school open. The minister of education then accepts or rejects the recommendation.

In 2015, Rousselle added a new "trigger" to the policy that requires a district to study any school with enrolment of fewer than 100 students.

Dionne asks if that change is "is a tool for imposing on education councils … a list of schools that should be closed and ... a way of effecting these closures."

"What is the court to make of a minister, who doesn't have the power to decide to close a school, presenting to education councils a 'policy' that, if followed by the councils, will probably lead the minister to all the decisions and recommendations on school closures he could envisage if he had the power?"

The ruling says when the Francophone South council revisits its Saint-Paul decision, it should treat the policy as "a simple source of ministerial 'suggestions'" that doesn't bind it to make a specific decision.

Council wanted linguistic study

The district education council held the consultations required by Policy 409 and voted Feb. 2, 2016 that keeping the school open was "not viable."

Because Saint-Paul is in a rural area far from other francophone schools and some students might have to switch to English schools, the district asked the minister to ensure the closure would not violate Section 23 of the Charter of Rights and Freedoms, which guarantees minority-language education rights.

Eight weeks later, with no decision from Rousselle, the DEC went further, voting to commission a sociolinguistic study of how the closure would affect the students' language rights.

Henrie says because many families in Saint-Paul are mixed English-French households, the school was essential to helping children maintain their French.

The council asked that the closure be postponed by a year while the study was done. Instead, Rousselle accepted the education council's recommendation and announced the closure of the school.

He told the council he didn't consider the request for a sociolinguistic study as a condition for closing the school and felt his department and the council already had all the information needed on that issue.

Judge says no final decision

Dionne ruled Rousselle was going beyond his powers because the law doesn't allow him to to close a school without a "clear, unequivocal and definitive decision" by a council.

Given the request for a study, "that's the opposite of what happened here," Dionne wrote.

He also suggested that the council never would have studied the school if not for the new 100-student trigger Rousselle added in 2015.

The judge noted École Saint-Paul had 64 students in 2015 but its enrolment was forecast to increase gradually by 2020.

Far-reaching implications

Henrie said the judge's questioning of Policy 409 could have far-reaching implications for other school closures.

The new 409 threshold "automatically forces the school boards to study these schools and gives an opinion on should they stay or go," and in minority-language schools, that could violate Section 23 rights, he said.

In September 2016, the New Brunswick Court of Appeal upheld Rousselle's power to close schools in response to a district education council recommendation. Parents of children at Brown's Flat Elementary and Lorne Middle schools fought the closures.

A Court of Queen's Bench judge had blocked the closure, but the appeal court quashed that decision.

"Judges must leave standing policy decisions taken by elected representatives," Chief Justice Ernest Drapeau said in the decision.

Dionne's ruling notes that decision but says the request for a linguistic study makes the Saint-Paul case different.

Rousselle "should have let the council do its analysis and make its decisions, and only if the minister received a firm, unequivocal and definitive school closure decision would he have the right to do his own analysis and decide how to exercise his power to consent or not consent," he said.