The Gallant government is appealing a court ruling that said it was not allowed to close a francophone school near Moncton, without giving the local district education council more time to study the move.
Justice Zoël Dionne made "errors in interpretation, and in the application of legal principles, and in pertinent facts" when he quashed the 2016 closure of École Saint-Paul, says the province's notice, filed with the New Brunswick Court of Appeal.
Dionne ruled last month that then-Education Minister Serge Rousselle did not have the power to close the school before the Francophone South district education council could conduct a sociolinguistic study.
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The council had followed Policy 409's requirements for public consultations and decided the school was not viable.
The council then decided to study whether the closure might affect student and parent rights under Section 23 of the Charter of Rights and Freedoms, which guarantees minority-language education.
Anglophone school only option
Parents in the rural area north of Moncton were arguing that if the school closed, the only other school close enough for their children was an English school.
Dionne wrote that this meant the district education council had not reached a final decision.
He said Policy 409 only gives the minister the power to approve or reject a council's "clear, unequivocal and definitive decision" to close a school.
The council has already said it will not appeal Dionne's decision.
The province says in its filing that conducting a sociolinguistic study is not a constitutional obligation.
Lobbying for a replacement school
Dionne didn't order the reopening of the school, which closed in 2016. Parents in Saint-Paul are now lobbying for a replacement school.
Dionne's May 17 ruling also raised broader questions about Policy 409, which requires three community consultations before a final decision, which then goes to the minister for acceptance or rejection.
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."
The province's appeal notice says Dionne "inferred" specific meanings and goals in Policy 409 and imputed "particular intentions" to Rousselle, despite no claim to that effect in the original court challenge and despite no evidence.
There's no date yet for when the Court of Appeal might hear the case.
In September 2016, the Appeal Court upheld Rousselle's power to close schools in response to a recommendation of a district education council in Anglophone South. 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.