11 January 2019 11:30
The folder of educational materials which should have been provided free of charge to students by the school boards is found again in the courts and this time the game is played between insurers and the government of Quebec.
Intact financial Corporation, Aviva Canada and Trisura Guarantee have undertaken court proceedings in the place of the Attorney general and the ministry of Education that they hold them responsible for any conviction, compensation or costs that could be delivered to their place or to compensate them if they are the subject of a conviction in this claim.
This entire issue revolves around the payment for years by parents in textbooks, teaching materials and educational services that should have been paid by the school boards (CS) under the Act on public education.
In 2015, an application for authorization to institute a class action in the place of the 68 school boards has been filed by a mother of Jonquière, whose two children attended a public school in the Saguenay. In a judgment rendered on December 6, 2016, the superior Court had authorized the exercise of this collective action. The statement of claim was registered against the 68 school boards in June 2017.
Claims to insurers
At the end of October 2017, the school board had filed against each insurer an act of forced intervention that would require them to pay any judgment that may be pronounced against them in the framework of the class action. The amount of the appeal amounted to almost 160 million dollars (M$).
The insurers had already indicated to the school boards that the fees they earned “unlawfully” to the detriment of the education Act were not covered by various insurance policies, and therefore that the action in warranty had, according to them, has no basis. However, in June 2018, after months of negotiations, a settlement was reached between the school boards and the parents, but without any contribution or commitment of insurers.
The regulation in question provides for the payment by school boards of a sum of 153 507 134 $, which will be distributed between the parents. The result of this agreement, school boards were asked to continue the action in warranty against the insurers on the basis of contracts of insurance applicable to this contested now Intact, Aviva Canada and Trisura Guarantee.
Response of insurers
In the event that this action is in whole or in part upheld, these insurers are themselves addressed to the superior Court at the end of 2018. The news was first revealed by the Journal de Québec.
In a proceeding brought in the judicial district of Chicoutimi, the insurers ask the court to declare the Attorney general of Quebec sole responsibility for the harm suffered by the parents because of the actions of the ministry of Education and higher Education (MEES). They allege that the action in warranty based on no foundation and they want to be ordained for the province to indemnify them for any judgment in the proceeding warranty.
The arguments of the insurers
In their motion, Intact, Aviva Canada and Trisura Guarantee attempt to demonstrate, with supporting evidence, that the State has been fully aware for several years of the existence of a billing system illegal on the part of school boards, which had enabled her to save millions of dollars since it is the MEES grants to the school boards. As early as 1999, the same ministry had questioned this practice in a study that has been filed in court.
However, these practices continued, and in 2005, the department was again questioned on the payment of certain fees by the parents of the students. According to the three insurers, the boards have continued to turn a deaf ear and the MEES continued to tolerate these practices. In 2008, a first request to obtain the authorization to institute a class action has been authorized. Finally, the department has adopted a directive in June 2018, but it was too late, and the second class action was already in motion.
The government could and should operate well before, and if it had done so in a timely and appropriate manner, the main action and the grievances of the parents would never have been undertaken, said the insurers in the superior Court.
“The State may not allow public bodies which it monitors the conduct can systematically circumvent the laws. Allow school boards, in full knowledge of the cause and during a long period of time, to charge fees that are not permitted by law is the equivalent of tolerating, or even contributing to a system is prohibited by Law. “The insurers argue that the repeated negligence of the State is not only flawed, but can be assimilated to bad faith.
“It is also inconceivable that it enabled the State to discharge its obligation to provide public education which is free, based on insurers the burden to repay parents for the sums paid unlawfully by reason of its own negligence,” they concluded.
The prosecutors of the school boards expect that the government opposed this court action.