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Montreal, July 30, 2010 --- The Marguerite-Bourgeoys School Board filed this May with the Quebec Court of Appeal for leave to appeal a Human Rights Tribunal decision that found the School Board and two employees guilty of discrimination on the basis of ethnic origin.

The School Board wants to appeal an April 2010 decision by the Tribunal ordering the School Board, together with Principal Normand Bergeron and Educator Martine Betrand, to pay to Mrs. Maria Gallardo $17,000 in damages for discriminating against her and her son because the boy ate with a fork and spoon.

The School Board claims that the Tribunal did not have the right or the jurisdiction to hear all of the aspects of Mrs. Gallardo’s complaint. It relies on a 1977 Quebec Court of Appeal decision, Ménard c. Rivet, which states that when the Quebec Human Rights and Youth Rights Commission dismisses a complaint due to insufficient proof of discrimination the complaint cannot be brought before the Human Rights Tribunal. Even though the Commission found some discrimination in the Gallardo case, unlike in the Menard case, the School Board argues that the Tribunal did not have jurisdiction to look at the facts the Commission dismissed as non-discriminatory. However, Quebec jurisprudence holds that there is no such thing as partial inadmissibility and courts must look at all the evidence in any case brought before them.

If the School Board wins leave to appeal and the Court upholds its interpretation, all the facts considered by the Tribunal that the Commission previously dismissed will become inadmissible. Without these facts, the School Board argues, two Respondents would be off the hook and the Tribunal would be unable to award moral and punitive damages.

The School Board’s argument raises serious questions about access to justice for discrimination victims since, as the Tribunal highlighted in its decision, the Commission simply dismissed many of the Complainants’ claims out-of-hand. Significant problems CRARR identified in the Commission’s investigation include: no interviews of the victims and their witnesses (although the Commission met with many School Board representatives); no disclosure of the evidence gathered during the investigation to CRARR and the family for comments; and no interview of a local daily’s journalist who interviewed the school principal.

According to the School Board, had the Tribunal not examined all the facts, it could not have concluded that the school and its principal were guilty of discrimination; therefore, they should not be held liable for aggravating and refusing to resolve the discriminatory situation.

The School Board further claims that Mrs. Gallardo did not prove that the discriminatory acts harmed her son, therefore no moral damages should be awarded. It also states that she did not prove that Principal Normand Bergeron intended to discriminate against her son, therefore he should not be liable for punitive damages.

If the Court of Appeal considers the Tribunal committed any error the appeal will be allowed and the Court will proceed to examine the case on its merits. If it does not allow an appeal, the Tribunal’s decision will stand.

The hearing on the motion for leave to appeal will be held on September 2, 2010, at 9:00 AM. at the Court of Appeal in Montreal. The hearing is open to the public.

The Court’s decision will affect other complainants who wish to take their cases before the Human Rights Tribunal, as CRARR has documented several cases pointing to the Commission’s systemic failure in recent years to properly investigate cases involving school discipline against racialized and disabled students.

In a recent decision involving a diabetic Arab youth who claimed discrimination and harassment in school, the Commission interviewed six witnesses from the School Board but refused to interview any from the victims’ side. Furthermore, statements by the youth and his parents who are immigrants and unfamiliar with the civil rights complaint process, to the investigator were absent from the file and the investigation report revealed significant factual errors and omissions. CRARR indicated these problems to the Commission which nonetheless dismissed the complaint on the strength of the flawed investigation.

In contrast to other human rights commissions in Canada, the Quebec Commission does not have policy guidelines and train its investigative staff on the discriminatory impact of school discipline on vulnerable students and on discrimination based on the intersection of grounds such as race and disability.

To learn about the Gallardo decision: