English universities could challenge Legault government's tuition hike in court: lawyers

“They’re basically trying to eliminate English, and I think that’s illegal. I think that’s discriminatory,” lawyer Julius Grey said.

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Two lawyers with long histories of challenging Quebec language laws say English universities would be on solid ground if they took the Legault government to court over the tuition hike and French proficiency requirements announced this week.

Julius Grey and Michael Bergman have been involved in multiple constitutional challenges of Quebec language laws over decades. Each is currently leading separate legal fights against Bill 96, Premier François Legault’s wide-ranging expansion of rules promoting the French language.

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This week, Higher Education Minister Pascale Déry announced details of an effort to increase funding for French universities and reduce the number of non-French-speakers in Quebec post-secondary institutions.

The province is hiking tuition for students from the rest of Canada by 33 per cent and imposing new French proficiency requirements for all university students not from Quebec. Concordia and McGill say the plan will devastate their finances and enrolment; Bishop’s is being given a partial exemption.

McGill and Concordia say they’re not ruling out possible court challenges.

Several lawsuits targeting previous Coalition Avenir Québec legislation are currently winding their way through the courts — including Bill 21 (restrictions on religious symbols), Bill 40 (school board reform) and Bill 96.

The Montreal Gazette spoke with Grey and Bergman on Friday about the universities’ possible legal avenues.

Julius Grey

Lawyer Julius Grey
Lawyer Julius Grey discusses a lawsuit against Bill 96 by 23 Quebec municipalities during a news conference on Wednesday, June 7, 2023. Photo by Pierre Obendrauf /Montreal Gazette

The university overhaul violates discrimination clauses in Quebec and federal law, Grey said.

“I think there is a very good case,” he said. “There is clear discrimination as to language, which is forbidden” under Quebec’s Charter of Human Rights and Freedoms (Section 10) and the Canadian Charter of Rights and Freedoms (Section 15).

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Grey said the university announcement is par for the course with the CAQ government, which he described as one of the most nationalistic in the province’s history — more so than any Parti Québécois administration.

After targeting other anglophone institutions, the government now hopes to turn English universities into “some minor facilities proportionate to their population,” Grey said.

“But English, like French, belongs to all Quebecers. They’re basically trying to eliminate English, and I think that’s illegal. I think that’s discriminatory. If the charters say language is a forbidden ground of discrimination, what they’re doing is surely illegal.”

The CAQ’s education measures are also harmful to francophones, Grey said. The province recently took steps to discourage non-anglophones from attending English CEGEPs and now wants to diminish English universities, he noted.

“It takes away francophones’ freedom to learn in the name of some mythical prevention of assimilation, when assimilation is not happening. They’re trying to prevent (francophones) from acquiring, using, having access to one of the great cultures, which is part of Quebec heritage.”

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Legault’s government is “viscerally nationalist” and “doesn’t think through the consequences of its actions — the intellectual, the academic, the cultural consequences,” Grey said.

He added: “It’s important to challenge these issues. It’s important that the challenges come not only from the universities but also from the community — from people at large. It’s important to bring to Quebecers the realization that all Quebecers, and not just English Quebecers, are at risk from the narrow vision of the CAQ.”

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Michael Bergman

Lawyer Michael Bergman is shown speaking outside the Montreal courthouse.
Lawyer Michael Bergman, front, and Andrew Caddell, president of the Task Force on Linguistic Policy, filed a lawsuit at Palais de Justice on Wednesday, May 31, 2023, to overturn parts of Bill 96. Photo by Pierre Obendrauf /Montreal Gazette

English universities could argue the new measures contravene at least two parts of the Charter of Rights and Freedoms — mobility (Section 6) and equality rights (Section 15), Bergman said.

The changes also violate a longstanding unwritten agreement in Quebec not to target post-secondary institutions with language rules, he added.

Under the Charter, Canadians have “the right to work, play, study in every part of this country,” Bergman noted.

It can be argued that Quebec is erecting obstacles to that mobility by charging much higher fees to non-Quebec students and compelling non-Quebec Canadian students to reach certain levels of French, he said.

The measures violate equality rights because they’re part of a “generalized assault on the English language and those who use it within Quebec, particularly in Montreal,” Bergman said. “That is discriminatory.”

And while Quebec “has some regulatory authority over universities, those institutions are independent private facilities established by charter or by special laws,” he added. “This is a gross intrusion into the control of their student body, who they may or may not accept, and the curriculum that they require.”

In addition, Bergman said, universities could argue the CAQ government is bound by an unwritten promise from previous governments since the 1960s not to impose French language rules on English higher education.

“It’s not written down, but there is a principle of law that says if a government or authority makes a promise, saying that a citizen may do A, B or C, then that promise can or may have legal value,” Bergman said.

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