Décision

1.                 This is an application under article 661 C.C.P. seeking the provisional execution of certain portions of the April 20, 2021 judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice Marc-André Blanchard),[1] addressing the constitutionality of the Act respecting the laicity of the State (“Laicity Act” or “Act”).[2] Specifically, the applicants English Montreal School Board (“EMSB”), Mubeenah Mughal and Pietro Mercuri seek an order providing for the execution — pending the appeals filed by the Attorney General of Quebec, the Mouvement laïque québécois and Pour le droit des femmes du Québec — of orders to the effect that certain provisions of the Laicity Act amount to unjustifiable violations of section 23 of the Canadian Charter of Rights and Freedoms. Those orders were not suspended to give a period of time to the National Assembly to formulate amendments to the Act. Moreover, no order for provisional execution was sought at first instance.

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2.                 Quebec has a distinctive approach regarding the effect of judgments under appeal. As is the case in many civil law jurisdictions,[3] the general rule — set out in article 355 para. 1 C.C.P. — is that the filing of an appeal stays the execution of the impugned judgment. Provisional execution is addressed in article 661 para. 1 C.C.P., which states that an order to that effect can be made upon a showing that the filing of an appeal “is likely to cause serious or irreparable prejudice to one of the parties/risque de causer un préjudice sérieux ou irréparable à une partie”. Because it provides for an exception to the rule provided for in article 355 para. 1 C.C.P., article 661 para. 1 C.C.P. is interpreted and applied in a restrictive manner.[4]
3.                 To establish that it is likely to suffer serious or irreparable prejudice while an appeal is pending, the applying party cannot merely rely on vague, general or hypothetical assertions. It must allege and prove precise, clear and concrete facts supporting its claim.[5] Moreover, being deprived of the rights under the judgment as a result of the filing of an appeal cannot, in itself, constitute the prejudice which is alluded to in article 661 para. 1 C.C.P. The analysis must rather focus on the consequences of being deprived of those rights.[6]
4.                 Because the power to order provisional execution is a discretionary one, the applicant must further demonstrate that the order sought is warranted in the circumstances of the case. A key consideration here is the need to avoid significantly upsetting the balance between the appellant’s interest in pursuing the appeal and the respondent’s interest in benefitting from the impugned judgment.[7] While the judgment is presumed to be well-founded, the apparent strength of the appellant’s case remains relevant to the exercise of judicial discretion.[8]
5.                 Additional considerations come into play in cases involving challenges to the constitutionality of legislation, because the analysis must proceed on the assumption that the legislation at issue “is directed to the public good and serves a valid public purpose”.[9] As the Supreme Court noted in Harper, “[c]ourts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review”;[10] they will only do so in clear cases.[11] It is worth noting that this approach remains applicable even where a judge at first instance has held the legislation at issue to be unconstitutional.[12]
6.                 Lastly, it is worth noting that the standard applicable at the first stage of the analysis — is the filing of the appeal likely to cause serious or irreparable prejudice? — is no less stringent when Charter rights are in dispute. This point, which is conceded by the applicants,[13] is illustrated by the Court’s 2019 judgment refusing to stay certain provisions of the Laicity Act.[14] Although a stay of legislation and an order for provisional execution are different remedies, they are both subject to similar requirements regarding the need to prevent ongoing or future harm. In its 2019 judgment, the Court was unanimous in applying the relevant requirement rigorously, as is clear from the dissenting reasons of then Chief Justice Duval Hesler, who insisted on the need to prove a “well-defined harm”[15] before reproducing the following excerpt from a judgment rendered by Justice Sébastien Grammond:[16]

[136]  The burden of proving irreparable harm falls upon the party seeking an injunction. It has been difficult to describe the standard of proof, because the exercise is necessarily forward-looking and, as the Saskatchewan Court of Appeal noted, it “involves, and must involve, a weighing of risks rather than a weighing of certainties” (Mosaic Potash, at paragraph 58). In that exercise, one must take into account “both the likelihood of the harm occurring and its size or significance” (ibid, at paragraph 59). In reviewing assertions of irreparable harm, this Court has often used strong language that may be thought to amount to a requirement of certainty. However, such language is mainly used to impress on applicants the need to provide evidence that goes beyond mere speculation or hypotheses about future harm, in cases that fall well short of the mark. In a recent case, Justice David Stratas of the Federal Court of Appeal provides a useful review of the jurisprudence and summarizes the applicable test as follows: “The burden on a moving party seeking a stay is to adduce specific, particularized evidence establishing a likelihood of irreparable harm” (Canada (Attorney General) v Oshkosh Defense Canada Inc., 2018 FCA 102 at paragraph 30, emphasis mine).

[Italics in the original; boldface added]

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7.                 I now consider whether the applicants have shown that the filing of the appeals is likely to cause serious or irreparable prejudice to the holders of the section 23 rights vindicated in the impugned judgment.
8.                 It is important to begin by clarifying the rights at issue. To do so, it is necessary to briefly discuss section 23 of the Charter as well as the relevant aspects of Blanchard J.’s judgment.
9.                 Section 23 grants a right to minority-language instruction to certain parents who form part of the French or English linguistic minority population of the province in which they reside. The scope of that right, which depends on the number of children whose parents hold section 23 rights, varies from a right to publicly-funded minority-language instruction (section 23(3)(a)) to a right to receive such instruction in publicly-funded minority-language educational facilities (section 23(3)(b)). The latter right, which is situated at the high end of what has been described as a “sliding scale”,[17] comprises a right of management and control that includes authority to make decisions relating to the recruitment and assignment of teachers and other personnel.[18]
10.            The applicants represent the interests of parents who form part of Quebec’s English minority population and who, unquestionably, have a right to publicly-funded minority-language educational facilities, as well as a right to manage and control such facilities. The dispute rather focusses on whether certain provisions of the Laicity Act infringe on that right of management and control.
11.            Blanchard J. found that it did. In reaching that conclusion, he began by recalling that, in Mahe, the Supreme Court had emphasized the importance of section 23 in light of “the vital role of education in preserving and encouraging linguistic and cultural vitality”,[19] while also holding that section 23(3)(b) gave relevant linguistic minorities an exclusive right of control over all aspects of minority education which pertain not only to linguistic concerns, but also to cultural ones.[20] Blanchard J. added that, in its recent decision in Conseil scolaire francophone de la Colombie‑Britannique,[21] the Supreme Court had stated that section 23 was intended to preserve both the language and the culture of Canada’s French and English minorities.
12.            Turning next to the evidence before him, Blanchard J. found that many of Quebec’s Anglophone school boards have adopted policies recognizing the importance of social, ethnic, cultural and religious diversity,[22] as well as the related importance of counting among its teaching and management staff persons who wear religious symbols.[23] This led him 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.[24] He then held that the relevant provisions of the Laicity Act breached section 23 of the Charter,[25] and he did so after having explained that the problem lay in the fact that those provisions would eventually lead to a systematic absence (“l’absence systématique”)[26] of religious-symbol-wearing teachers and management staff.[27] Lastly, Blanchard J. found that those Charter breaches could not be justified under section 1 thereof.[28]
13.            Coming back to the application for provisional execution before me, the key question, is whether the applicants are likely to suffer serious or irreparable prejudice as a result of the Act’s interference, while the appeals are pending, with that right to foster social, ethnic, cultural and religious diversity.
14.            While considering that question, it is important to keep in mind that the Act’s prohibition against wearing religious symbols in the exercise of professional functions does not apply to persons who, on March 27, 2019, were employed as principals, vice principals or teachers, and this for as long as they exercise the same function within the same school board.[29] Therefore, Quebec’s Anglophone school boards are not altogether prevented from employing principals, vice principals and teachers who wear religious symbols. What the Laicity Act prevents them from doing — and what they will be prevented from doing while the appeals are pending, unless provisional execution is ordered — is to recruit principals, vice principals and teachers who wear religious symbols, or to give different responsibilities to employees whose right to continue to wear such symbols was preserved by the Act’s grandfather clause.
15.            Turning now to the applicants’ claims, they first contend that the Laicity Act negates the school boards’ hiring and promotion policies while suppressing minority culture among their institutions.[30] That claim is an overstatement, at least in the context of the present application. While the Act undeniably interferes with the school board’s policies in some respects, the claim that such interference has led — or is likely to lead, in the near future — to the suppression of minority culture goes too far. The school boards’ objectives in relation to social, ethnic, cultural and religious diversity can still be furthered in many respects, including by the presence of teaching and management staff members who wear religious symbols and who benefit from the Act’s grandfather clause. Given the legal framework applicable to applications based on article 661 C.C.P., 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.
16.            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, who will be deprived of the full benefits of a pedagogical approach emphasizing the acceptance and celebration of religious diversity.[31] They support their claim by invoking a number of items of evidence that were adduced at trial and that point to the benefits of religious diversity among administrative and teaching staff, as well as the fact that no other party — not even the Attorney General — adduced any evidence to the contrary.
17.            However, even assuming that the evidence supports the findings made by Blanchard J., it sheds little light on the extent to which the perpetuation of that pedagogical approach will depend on recruitment or promotion decisions which the Laicity Act will prevent the Anglophone school boards from making while the appeals are pending. In my opinion, 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. It is particularly noteworthy that, as the record currently stands, it is very difficult to get a clear sense of the impact that the filing of the appeals is likely to have on the overall composition of the school boards’ teaching and management staff in the near future. Moreover, I agree with the Attorney General that the applicants’ claim is seriously weakened by the lack of evidence showing that the school boards’ diversity-focused pedagogical approach has been concretely and significantly compromised since June 2019, when the Laicity Act came into force.
18.            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.[32] Relying on sworn statements from Ann Watson[33] — who has held the position of Director of the Human Resources Department at the EMSB since January 2019 —, they emphasize the following facts:

• in Montreal, there are currently 60 teaching positions that are either unfilled or filled with persons without proper qualifications;
• the teacher shortage is particularly acute for French-speaking teacher positions (48 of the 60 positions);
• in recent years, many French-speaking candidates have been persons from North Africa or the Middle East who wear religious symbols (generally the hijab);
• the EMSB generally prefers to hire properly qualified candidates rather than candidates who either hold letters of tolerance (tolérances d’engagement) or are only qualified to teach other subject matters.

19.            I agree with the applicants that Ms. Watson’s sworn statements support those factual assertions. I also recognize, as a general proposition, that 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. As the Supreme Court emphasized in Ross v. New Brunswick School District No. 15, before quoting from Chief Justice Warren’s opinion in the landmark case of Brown v. Board of Education of Topeka,[34] “[w]hether one views it from an economic, social, cultural or civic point of view, the education of the young is critically important in our society”.[35]
20.            However, I find that the facts to which Ms. Watson attests 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.
21.            I arrive at this conclusion for the following reasons.
22.            To begin, Ms. Watson’s assertions are vague in two critical respects. First, she states that the pool of French-speaking candidates is usually comprised of “many” persons from North Africa or the Middle East who wear religious symbols. It is very difficult to determine from that statement that the application of the Laicity Act is likely to impact the pool of properly qualified French-speaking candidates in a significant, as opposed to a merely marginal, manner. Moreover, as I read them, Ms. Watson’s statements seem to assume that religious-symbol-wearing French-speaking teachers who usually form part of the pool of qualified candidates would only pursue employment opportunities if allowed to wear religious symbols while exercising their professional functions. Although the record shows that there are such candidates,[36] it does not provide a clear indication of the extent to which their situation is representative of all religious-symbol-wearing French-speaking candidates. In my view, it would be inappropriate to make categorical assumptions about those persons’ religious practices and preferences, given the inherently deeply personal nature of such matters.[37]
23.            Furthermore, the Attorney General has filed evidence tending to demonstrate that there are approximately 100 qualified French-speaking teachers who are potentially available to work in Quebec’s Anglophone public school system at the present time.[38] I see no basis upon which that evidence can be discarded. Nor do I see any basis to discard the Attorney General’s evidence tending to demonstrate that teachers who are granted letters of tolerance are, for the most part, university students or graduates who are keenly interested in the teaching profession and who benefit from a range of support and mentoring services geared towards the successful performance of their teaching duties.[39] In my opinion, these facts significantly weaken any inference to the effect that, unless provisional execution is ordered, the Anglophone school boards will likely have no choice but to recruit a significant number of French-speaking teachers who would be unable to perform their duties in a sufficiently satisfactory manner.
24.            The applicants make a fourth claim, which they asserted for the first time during the hearing on their application. That claim 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, in my opinion, 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.
25.            For these reasons — 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. be applied in a restrictive manner, both of which reflect Quebec’s distinctive approach regarding the effect of judgments under appeal —, I find that the applicants have not discharged their burden to show, through precise, clear and concrete facts, that the filing of the appeals is likely to cause serious or irreparable prejudice to the holders of the section 23 rights vindicated in the impugned judgment.
26.            This finding suffices to dispose of the application.

FOR THESE REASONS, THE UNDERSIGNED:

27.            DISMISSES the application for provisional execution, with legal costs.

[1] Hak c. Procureur général du Québec, 2021 QCCS 1466.

[2] CQLR c L-0.3.

[3] See e.g. John Anthony Jolowicz, “Introduction — Recourse Against Civil Judgments in the European Union: A Comparative Survey”, in John Anthony Jolowicz and Cornelis Hendrik (Remco) van Rhee (eds.), Recourse Against Judgments in the European Union, The Hague, Kluwer Law International, 1999, 1, p. 11: “As regards the availability of appeal to the (intermediate) appellate court, the common law principle is that there is no suspensive effect. First instance judgments are immediately enforceable unless a stay of execution is ordered. In the ‘civil law’ and Scandinavian countries, on the other hand, the traditional principle is to the opposite effect: in accordance with the so-called suspensive effect of the appeal, a judgment at first instance is not enforceable until the time for appealing has expired or, if an appeal is brought, until it has been disposed of”.

[4] See: CTI Capital valeurs mobilières inc. c. Nassif, 2020 QCCA 197 (judge alone), para. 11, as well as the cases cited at footnote 7; Aliments Ultima inc. c. Vergers Leahy inc., 2021 QCCA 239 (judge alone), para. 6.

[5] Lebeuf c. Groupe SNC-Lavalin inc., 1995 CanLII 5310 (judge alone), paras. 8-9. Gendreau J.A.’s analysis remains relevant under the 2016 Code of Civil Procedure; see e.g.: Friedrich v. Friedrich, 2016 QCCA 2011 (judge alone), paras. 6-7. See also: Droit de la famille — 172312, 2017 QCCA 1554 (judge alone), para. 23; Droit de la famille — 21903, 2021 QCCA 837 (judge alone), para. 6.

[6] See Société Nationale d’assurance inc./Les Clairvoyants, compagnie d’assurance générale c. Gaz Métropolitain inc., [2001] R.R.A. 757 (C.S.), p. 764, 2001 CanLII 25493, para. 50 (“[l]e préjudice sérieux doit être autre chose que d’avoir à subir un appel, sans quoi l’exécution provisoire ne serait pas une mesure exceptionnelle, mais bien la règle généraleˮ), cited with approval in Imperial Tobacco Canada Ltd. v. Conseil québécois sur le tabac et la santé, 2015 QCCA 1224, para. 31.

[7] Lebeuf c. Groupe SNC-Lavalin inc., 1995 CanLII 5310 (judge alone), para. 8.

[8] Ibid.

[9] Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764, 2000 SCC 57, para. 9.

[10] Ibid.

[11] Ibid. See also Procureur général du Québec c. Quebec English School Board Association, 2020 QCCA 1171, para. 11.

[12] See e.g.: Procureure générale du Québec c. Solski, J.E. 2001-400 (C.A.), 2001 CanLII 5956 (judge alone); Québec (Procureur général) c. H.N., 2007 QCCA 1136 (judge alone), para. 7; Canada v. Canadian Council for Refugees, 2008 FCA 40 (judge alone), para. 34; Bedford v. Canada (Attorney General), 2010 ONCA 814 (judge alone), paras. 67 and 68.

[13] Who accept that the framework set out in the leading case of Lebeuf c. Groupe SNC-Lavalin inc., 1995 CanLII 5310 (judge alone) is applicable in the present case.

[14] Hak c. Procureure générale du Québec, 2019 QCCA 2145.

[15] Id., para. 67. Duval Hesler, C.J. cited, in support of that proposition, Fédération des coopératives funéraires du Québec c. Bureau de normalisation du Québec, J.E. 2010-153 (C.A.), 2009 QCCA 2445 (judge alone), para. 17, and Montréal (Ville de) c. Lours, J.E. 2016-2133 (C.A.), 2016 QCCA 1931, para. 20.

[16] British Columbia (Attorney General) v. Alberta (Attorney General), 2019 FC 1195 (reversed in appeal, albeit on other grounds: 2021 FCA 84).

[17] A concept that the Supreme Court recently revisited in Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13. See, in particular, the discussion at paras. 21 et seq.

[18] Mahe v. Alberta, [1990] 1 S.C.R. 342, p. 377.

[19] Id., p. 350.

[20] Id., pp. 375-376.

[21] Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13.

[22] Hak c. Procureur général du Québec, 2021 QCCS 1466, paras. 983 et seq.

[23] Id., paras. 989 et seq.

[24] Id., para. 993.

[25] Id., para. 1003.

[26] Id., para. 994.

[27] See also paras. 998-1002.

[28] Id., paras. 1004 et seq.

[29] Section 31(5) of the Laicity Act.

[30] Application for provisional execution of judgment, para. 17.

[31] Id., para. 18.

[32] Id., para. 19.

[33] Exhibits P-11 and P-22.

[34] 347 U.S. 483 (1954), p. 493: “Today, education is perhaps the most important function of state and local governments. […] It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

[35] [1996] 1 S.C.R. 825, p. 873.

[36] See e.g. exhibit P-9. See also exhibit P-11, para. 3, where Ms. Watson states that, since March 2019, six applicants were denied teaching positions by the EMSB solely because they wear religious symbols.

[37] See e.g. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47, para. 39 (“[i]n essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith”), as well as para. 42, where the Supreme Court emphasized the “personal or subjective conception of freedom of religion, one that is integrally linked with an individual’s self-definition and fulfilment and is a function of personal autonomy and choice”.

[38] Sworn statement of George Lemieux dated August 27, 2021.

[39] Sworn statement of Éric Bergeron dated August 27, 2021.