Founded in 1983 - United for Diversity and Racial Equality


Montreal, September 8, 2010---The Court of Appeal has granted leave to appeal to the Marguerite Bourgeoys School Board which sought to overturn the Quebec Human Rights Tribunal decision last Spring awarding $17,000 to Maria Gallardo and her son Luc Cagadoc.

After a hearing into the motion, Mr. Justice Pierre Alphond considered that the case raises important legal questions, such as the jurisdiction of the Quebec Human Rights Tribunal to examine some aspects of a complaint that have been dismissed by the human rights commission.

In short, what begun as a case of discrimination based on race and ethnicity directed at a 7-year old child in a Montreal school will become a case where the powers and jurisdiction of the Quebec Human Rights and Youth Rights Commission, and the Quebec Human Rights Tribunal, will be decided.

In 2008, the human rights commission issued a decision rejecting most elements of the complaint of race bias filed by CRARR on behalf of the mother and the child. The Commission upheld the allegation that Luc's education did make some discriminatory remarks about his ancestry but did not find this aspect to warrant a referral to the tribunal. It dismissed parts of the complaint related to the Principal's statement in the media about the mother and the child, and his actions in managing the problem, as well as the institutional duty of the School Board in dealing with discrimination.

In accessing the investigation file, however, CRARR discovered that not only the Commission failed to disclose to the family evidence against Luc that was submitted by the School Board, but that the Commission failed to investigate several aspects of the complaint. In addition, while it met with several respondents and witnesses from the school board, at no time did the Commission's investigator meet with Luc, his parents and other witnesses from the child's side.

The case illustrates the risks of poor and inadequate investigations by the human rights commission of complaints involving the discriminatory impact of school sanctions and disciplinary measures. While Many North American jurisdictions (including the U.S. Congress) have laws and policies regarding this situation, which is found to have an adverse discriminatory impact on racialized and disabled students, or racialized disabled students, the Quebec human rights commission still has not adopted policy guidelines on this issue. Problems in addressing cases involving the intersection of race and disability have also been noted in other cases involving racial profiling.

Concerning the Gallardo-Cagadoc case, it appears that the Court of Appeal will use the opportunity to clarify rules of access to the Quebec Human Rights Tribunal, in cases when the human rights commission dismisses in whole or in part a complaint and refuses to refer the matter to the tribunal.

In 1997, the Court of Appeal ruled that only the Commission can bring cases before the Human Rights Tribunal, which effectively cut off citizens' direct access to the tribunal and compelled victims without financial means to resort to the Commission for protection. A Commission investigation can take up to four years to reach a decision, even in simple cases where the discriminatory policy or practice is admitted or documented.

The full appeal hearing will be heard in Winter 2011.