The following is the judgment delivered by
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 .
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.
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 . . . .
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". . . .
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.