Wednesday, June 11, 2008

Small & Ryan v. New Brunswick (Minister of Education), 2008 NBQB 201

Decision--June 11th, 2008

S/M/32/08

IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF SAINT JOHN


B E T W E E N: PAULA SMALL and PATRICK JAMES RYAN

Applicants

- and -


PROVINCE OF NEW BRUNSWICK,
as represented by the Minister of Education

Respondent





BEFORE: Mr. Justice H. H. McLellan

AT: Saint John, NB

DATE OF HEARING: June 4, 2008

DATE OF DECISION: June 11, 2008

COUNSEL: E. Thomas Christie, Q.C.
for the Applicants

C. Clyde Spinney, Q.C. and
Heather Doyle Landry
for the Respondents



Concluding paragraphs from Mr. Justice H. H. McLellan's Decision

Conclusion

24. In this case I must apply the principles from the precedents including the factors identified in Baker. In my opinion the disputed decision of the Minister in March 2008 was made in contravention of his own representation in July 2007 that the decision-making procedure would have time to “allow for a full debate”.

25. Because of that representation by the Minister I am satisfied that the applicants as parents of children registered to begin Early French Immersion in Grade 1 in September 2008 had a reasonable and legitimate expectation that program would not be cut without them having a real opportunity to be heard by the Minister.

26. In my view the news releases on February 27 and 29, 2008 and the Minister’s invitation for comments did not satisfy the requirements of consultation created by his own “full debate” representation.

27. Thus the decision of the Minister was unfair and unreasonable. The application for judicial review is allowed. The Minister’s decision to phase-out Early French Immersion is removed into the Court and quashed.

28. Following the precedent of the MacDonald case, I remit the matter back to the Minister. The Minister may if he wishes again consider the matter. Any further decision by the Minister should not be influenced by any expectations, consequences or possible waste caused by the March decision that has been quashed. Also any further decision should be made in accordance with the principles of fairness after an appropriate opportunity for interested citizens and organized groups to be heard to satisfy the Minister’s representation that there would be time to “allow for a full debate”.

29. Counsel will be heard with respect to costs.
______________________________
H. H. McLellan
A Judge of the Court of Queen's Bench
of New Brunswick

_______________________________

Bloggers' notes:

After deliberation, and considering the significance of the case before the courts, Mr. Justice H. H. McLellan awarded the applicants $5000 after indicating the typical award is in the $500-$1000 range.

It was a good and a sad day. The good is that we had our day in court and that an impartial examination of the facts surrounding the elimination of EFI in the anglophone school system resulted in quashing of Minister Lamrock's decision. The sad part is that we had to take the government to court to be heard. Clearly, the Liberal government needs to engage the population of NB when making a decision of this magnitude.


Judge sides with parents

From The Globe & Mail:

Justice Hugh McLellan of the New Brunswick Court of Queen's Bench sided with parents who argue Education Minister Kelly Lamrock didn't allow enough time for debate before making his decision on the program.

“Thus the decision of the minister was unfair and unreasonable,” Judge McLellan wrote.

The judgment quashes Mr. Lamrock's decision in March to scrap the program and sends the matter back to the government for further review.

“Any further decision by the minister should not be influenced by any expectations, consequences or possible waste caused by the March decision that has been quashed,” Judge McLellan says.

“Also any further decision should be made in accordance with the principles of fairness after an appropriate opportunity for interested citizens and organized groups to be heard.”

Tuesday, June 10, 2008

French immersion changes proceed as province, parents await court ruling

Published Tuesday June 10th, 2008
Telegraph-Journal
Jesse Robichaud -- Canadaeast News Service

MONCTON - The opposition that has erupted in response to the Liberal government's decision to cut early French immersion has not derailed the process of implementing the reforms in time for the start of classes this fall.
...

Parents Paula Small and Patrick Ryan filed affidavits with the Court of Queen's bench in Saint John last month in support of their application for an injunction that would halt Lamrock's reforms pending a judicial review.

Department of Education deputy minister John Kershaw filed documents seeking an application to end the legal action, claiming financial hardship would occur if the reforms were overturned after $2 million has been spent on restructuring the immersion system.

Lawyers for both sides have stated their cases before McLennan.

Legal counsel to the parents group, Thomas Christie, claimed in court that Lamrock's amendments will contravene the Canadian Charter of Rights and Freedom's minority language education guarantee. He also focused on what he alleged were incorrect procedures.

Christie charged that Lamrock left only two weeks between issuing a release asking for public input into the decision, which was based on 18 recommendations from the Croll-Lee report. He said that was not enough time to collect meaningful input on the policy change.

The province's lawyer, Clyde Spinney, said Lamrock had no obligation to consult with the public over a matter of broad public policy.

Lamrock sounded the death knell for early immersion in March when he announced reforms of the French second language system based on a controversial report by Jim Croll and Patricia Lee.

Click here to link to full article.

Letters June 10th -- the letters keep coming

Daily Gleaner
N.B. should be embarrassed of French immersion decision

On May 29, the federal commissioner of official languages, Graham Fraser, released his annual report.

In it, he specifically mentions the New Brunswick minister of education and the changes made to French second-language education.

Specifically, the report reads: "... the Commissioner is concerned about the recommendations made by the commission charged with reviewing French-as-a-second language programs and activities in New Brunswick and the decision of the province's Minister of Education to end early immersion programs.

"A very larger majority of experts still agree that immersion, and early immersion in particular, is the best way to learn a second-language."

Premier Shawn Graham should be embarrassed that his Department of Education has been specifically and negatively named in the commissioner's report.

Personally, I'm tired of hearing expert after expert prove how wrong it was to eliminate early French immersion. Premier Graham, it is time to prove that you know what the right decisions are:

* reinstate EFI;

* and remove Education Minister Kelly Lamrock.

Jenny Doucette, Fredericton

Why wasn't Genesee part of team reviewing immersion?

In a letter published in a recent edition of The Daily Gleaner, Dr. Fred Genesee of McGill University took Education Minister Kelly Lamrock to task for misquoting him in some arguments for making New Brunswick Canada's only province without a public early French immersion program.

Genesee points out many flaws in Lamrock's use of his research, but he never mentions the greatest flaw of all. If Lamrock believes that the opinions of experts such as Genesee need to be consulted to justify these decisions, why didn't he hire at least one of them at the beginning of this process, as a member of the panel studying FSL in New Brunswick?

Then, instead of misquoting Genesee's research in a vain attempt to prop up his ill-conceived ideas, he could simply let Genesee speak for himself, and we New Brunswickers would have the benefit of a truly well-thought-out plan for French education.

Debbie White, Fredericton

Even government's lawyers don't support decision

Weeks ago now, when Education Minister Kelly Lamrock decreed that all French instruction would be removed from kindergarten to Grade 4 in schools, he attempted to characterize it as the result of a proper consultation.

When the Croll-Lee study, on which he based that decision, was discredited by wave after wave of criticism, he thereupon tried to suggest that by brushing off opposition as not "Christian" or arguing that the new plan contained a "hidden X factor," he was undertaking a "time of discussion" which should lead to decisions.

If one thing is clear from the recent judicial review of this decision, it is that nobody believes Lamrock's story, not even the government's own lawyers.

It was recently reported that the government's defence will not follow Lamrock's story; instead, they will argue not that he has done his proper duty as a minster, but merely the much safer point that "Lamrock had no obligation to consult the public before making the decision."

It seems that Lamrock, who once wrote the NDP election platform, is leading the way in forming two new Liberal policies: consult only when necessary by law; and admit to a lack of consultation only when sworn into a court.

Kelly Black, Oromocto, N.B.

Telegraph-Journal

Liberal popularity drop may be costly

Recent polling suggests the Liberal government has suffered a 12 per cent drop in popularity, but are still ahead of the leaderless Conservatives.

Some will claim 12 per cent isn't much and that it's normal for this point in a mandate when difficult decisions have been made. However, a closer look at the numbers would be warranted.

First, popular vote does not always equal victory. In 2006, the Liberals lost the popular vote but were elected anyway. It has to do with winning seats. Twelve per cent doesn't mean 12 per cent in every riding - in all likelihood the drop is higher in places where people are most angry.

In 2006, 10 Liberal MLAs won by a margin of 15 per cent or lower, and six of these won by less than 10 per cent - ridings where French immersion participation ranges from 37 to 49 per cent. If anger is even slightly concentrated in these areas, their problems are compounded.

Second, this poll was conducted before it was revealed that the government appears to have hired consultants (Croll and Lee) who were looking for data to match their pre-determined conclusions, rather than drawing conclusions based on data.

Third, people have long memories when it comes to their children. Every year parents will have to watch as their children lose out on opportunities to become bilingual. The Liberals are in trouble over this, whether they want to admit it or not. They need to undo the damage now before it's too late.

JEFF INGALLS, Saint John

Lamrock's reality even more elitist

An elementary school still needs to hire the same number of teachers for the same number of students. The number of textbooks will not change. There is no extra cost to early immersion. In fact, costs will skyrocket as communities formerly served by French immersion now assert their constitutional rights for their own francophone schools. This will cost tens to hundreds of millions of dollars.

There is no denying that French-language training in early years is crucial for success. Lamrock concurs, explaining his own child's success in early immersion. Now he deems it better to have more students obtain a mediocre French proficiency evaluation than pay a non-existent cost for an "elite" few to score high. This is not a fix. This is making the problem even worse. A nefarious regression to the mean is no longer good enough. We must also lower the mean.

Lamrock continues that elitism inherent in the status quo is responsible for New Brunswick's terrible scholastic results. He ignores Canada's top performing provinces; all have early French immersion.

Lamrock's new reality is even more elitist and more unjust than before. New Brunswick will soon have two tiers: bilingual francophones and unilingual anglophones. It gets better: a privileged few anglophones may enrol their children into favoured francophone schools, while neighbouring taxpayers cannot. This year, our own local francophone school has dedicated one of four kindergartens entirely for anglophone children.

We can take small comfort; at least the Péquists in Quebec applaud Lamrock's folly.

EVANGELINE POWER, Quispamsis

Monday, June 9, 2008

Science, not pseudo-science

Published Monday June 9th, 2008
Miramichi Leader.com

It seems that when you don't have science on your side, you turn to pseudo-science.

Kelly Lamrock's French language instruction plan has been given the thumbs-down by a long line of language learning experts, including the two who devised the Intensive French program on which he is banking so heavily.

Now the Minister is attempting to buoy his sinking plan by announcing that "People have missed the plan's ‘hidden X factor,'" in two parts.

First, "integrating more conversational French opportunities into school life" — something that will be hard to do in the only province in Canada whose elementary school setting will not offer a single hour of French language instruction.

The second element is "events that introduce students to the bilingual and French culture in New Brunswick."

Indeed, listening to Acadian stories told in English for half an hour a month will do much more for our province's understanding of French than actually learning the language.

Education is no different from health and finance: when it comes to making plans for our future, the province's citizens expect something better than "X factors."

We'll settle for nothing less than a plan devised by experts.

Sarah Wilby

Immersion changes not properly explained, parents say

Times and Transcript, June 9th
Surveys quizzed parents on planned FSL curriculum changes

FREDERICTON - The results from surveys handed out in schools across the province are starting to come back, and the response thus far is overwhelmingly against the elimination of early immersion.


Within weeks of Education Minister Kelly Lamrock's sweeping reforms to the French second language system, a number of parent school support committees sent a survey home with students to gather more information on how the changes were being perceived by parents.

Approximately three-quarters of parents who responded expressed dissatisfaction at the axing of early immersion.

The process has been completed at five schools -- three in Fredericton and two in Sackville -- and at least a dozen more surveys are still under way, in regions including Saint John, Moncton, Miramichi and Sussex.

The survey contains seven questions, asking parents to weigh in on whether Lamrock's decision was adequately explained, the level of consultation, and whether plans for implementing the changes are sufficient.

Parents are also quizzed on their support for the new intensive French program, the elimination of core and early immersion programming, and the Ombudsman's recommendation to delay Lamrock's plan.

The numbers tell a similar story in each of the five surveys completed so far. In most schools, between a third and a half of parents responded. Overall, approximately 70 per cent said the decision was not properly explained and the opportunity for feedback was inadequate.

About 75 per cent were against the elimination of early immersion, while only about half supported the new intensive French program.

Widespread opposition to changes -- June 9th, 2008

By ADAM BOWIE
http://dailygleaner.canadaeast.com/search/article/319914

Hundreds of parents across New Brunswick are hoping the results of surveys conducted by parent school support committees (PSSC) on changes to early French immersion programs will voice their true opinions.

The Daily Gleaner has obtained results from surveys conducted at several schools in the Fredericton area and several more in Sackville.

The tallied results from each school indicate most of the surveyed parents are against the elimination of early French immersion and believe Education Minister Kelly Lamrock failed to explain his decision or provide adequate opportunity for feedback.

Parents with students in grades that will be affected by the changes were sent surveys and asked to respond.

The surveys asked parents to indicate if they agreed or strongly agreed, disagreed or strongly disagreed, or whether they had no opinion on the subject, to a series of statements.

Parents had to respond to statements such as, "I believe the reasons for change to the FSL programs have been adequately explained," or, "I support the elimination of Early French Immersion."

Connaught Street School PSSC member Kate Rogers said the surveys were distributed in April and the results were tallied in May.

Seventy-eight per cent of the parents responding from Connaught Street Elementary School said they disagreed with the elimination of early French immersion. Seventy-seven per cent said they disagreed that they had adequate opportunity to provide feedback on these changes.

She said 118 parents at Connaught Street school responded, sending a clear message that they wanted to voice their opinions.

"If given proper opportunity, people do provide input," he said.

"There are some things that (all parents in the anglophone school system) clearly want and one of those things is French-language instruction, whether it comes in the form of early French immersion or it comes in the form of core French.

"We all want that and we want it before Grade 5."

Sixty-four per cent of responding parents at Barkers Point Elementary School, which is in Lamrock's riding, disagreed that they had adequate opportunity for feedback about the changes.

Sixty-nine per cent of responding parents were against the elimination of early French immersion.

At Park Street Elementary School, 195 parents filled out the surveys and 70 per cent of responding parents disagreed with the elimination of early French immersion.

Sixty-three per cent disagreed with the notion that the changes had been adequately explained.

The results were similar at Salem Elementary School in Sackville where 79 per cent of responding parents felt the changes weren't adequately explained.

Seventy-two per cent felt they didn't have enough opportunity to offer feedback.

Lamrock, who has reviewed the results of the PSSC surveys, said he understands that many parents feel uncomfortable with his decision.

But he said he believes there has been adequate consultation and the decision to act was taken.

"I would say, like most things, if you agree with the decision you think there was enough consultation, and if you disagree, you don't," he said.

He said the surveys were conducted soon after the changes were first announced and many people were still gathering information.

Lamrock said he's spoken with many parents who have filled out the surveys but have since changed their position.

"I've had a lot of parents in schools like Barkers Point call my office and they said, 'Well, I answered those but I didn't know for instance that 93 per cent of kids with special needs are in the same classroom. No one told me that. I want you to know that changes my opinion,' " he said.

"Some called and said, 'I didn't realize only 20 per cent of kids are in French immersion after Grade 5. If I'd known that I would have felt differently,' "

Rogers said Lamrock met with PSSC groups recently but chose not to debate the findings of the surveys.

"He answered a lot of questions and everything but he wouldn't discuss the surveys," he said.

"And I think his view is that he did his form of consultations and this is irrelevant."

Parents will have to wait until Wednesday to learn the outcome of the application for a judicial review of the decision to eliminate early French immersion.

Click here to link to article and read the many comments on the web.
____________________________________

A few choice comments from the web as of 8:51 this morning!

Lamrock says that many parents have since changed their minds? based on what??
He can't stop himself from making stuff up as he goes... We're not that stupid.
16 Thumbs Up 1 Thumbs Down
Anonymous Reader on 09/06/08, 6:18:41 AM ADT

The surveys have been done at different times, and the Sackville ones have just been completed as recently as last week.
Its not getting better, Lamrock and you demonstrate once again that you play fast and loose with information to win the debate.
15 Thumbs Up 1 Thumbs Down
Anonymous Reader on 09/06/08, 6:33:24 AM ADT

And he lies again.
13 Thumbs Up 0 Thumbs Down
Anonymous Reader on 09/06/08, 7:14:13 AM ADT

There is clearly no limit on how low Lamrock will go.
Lamrock is out of control and the Liberal government has the reigns and refuses to bring him into control.
Now he is attempting to discredit the PSSCs of the province.
This sure does not sound like a functioning democracy.
14 Thumbs Up 0 Thumbs Down
Anonymous Reader on 09/06/08, 7:17:56 AM ADT

Kelly Lamrock's response is just plain ridiculous. Yeah right... over 100 parents from Barkers Point School called his office to tell him that they've changed their minds since completing the survey. This is just plain LYING and he needs to be held accountable.
A more genuine response would be to actually LISTEN to what parents are saying.
Shame on you Lamrock. Shame on you "Liberal" government.
2 Thumbs Up 0 Thumbs Down
Anonymous Reader on 09/06/08, 8:34:48 AM ADT