Greater Montreal Protestant School Board v. Quebec (Attorney General)

Courts -- Practice -- Motion for a rehearing of appeal -- Applicants asking for a rehearing on the basis that the Supreme Court of Canada's decision was rendered per incuriam -- Motion dismissed.

MOTION FOR A REHEARING of Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377. Motion dismissed.

Colin K. Irving and Allan R. Hilton, for the applicants.

Jean-Yves Bernard and Luc Leblanc, for the respondent.

//The Court//

The following is the judgment delivered by

THE COURT -- The events giving rise to this application are summarized in the following paragraphs of applicants' memorandum argument:

1. On March 16, 1989, this Court dismissed with costs the appeal of the appellants and held that section 16(7) of the Education Act, R.S.Q. 1977, c. I-14 and the Elementary and Secondary School Regulations issued thereunder were intra vires the Province of Quebec pursuant to section 93 of the Constitution Act, 1867 .

2. The essential contention of the appellants, shortly stated, was that under the law in force in Quebec at Confederation school commissioners and trustees had the power to determine the curriculum to be followed in schools under their management and that this right, subject to general regulatory power of the government, was protected by section 93(1) of the Constitution Act, 1867 and had been prejudicially affected by the impugned regulations.

3. It was common ground that the relevant law in force in Quebec at Confederation was Chapter 15 of the Consolidated Statutes of Lower Canada of 1861 . . . .

4. The Court found that the power to determine the content of curriculum vested by law at Confederation with a government agency and that the role of the school commissioners was confined to monitoring and implementing the curriculum set by the "central authority". . . .

5. The appellants submit respectfully that the two essential findings on the state of the law in force at Confederation are based upon findings of historical fact reached without any reference to the historical record before the Court which findings are demonstrably erroneous when the record is examined. These findings, which were conclusive of the result, were reached per incuriam such that a new hearing should be ordered.

In essence the applicants are saying that, when one considers all of the material before the Court, and more particularly certain items brought to its attention at the time of the application, one cannot but make these two findings in a manner favourable to their case. Having found adversely to the applicants, the Court, argue applicants, must have overlooked this material and therefore should rehear the case.

That is an argument that any unsuccessful party could make seeking a rehearing. There is nothing here before us supportive of the fact that the Court misled itself or was misled as regards what was the record before it, the nature of the issues, or the questions to be addressed.

The applicants simply disagree with certain findings and are in effect asking for a rehearing on the basis that the decision is per incuriam because unreasonable when one has regard to the record.

While it is open to an unsuccessful party to hold such view, when seeking leave to appeal to a higher court, it is not in our view ground for a rehearing.

The application is accordingly dismissed with costs.

Motion dismissed with costs.