Canada’s top court has ruled that a new trial is needed to sort out the long-running legal battle between the Yukon government and the territory’s francophone school board.
However, both sides are expressing hope this week that their differences may be resolved out of court.
In a decision released yesterday, the Supreme Court of Canada upheld last year’s ruling by the Yukon Court of Appeal, finding that the judge of the original 2011 trial may have been biased.
“In addition to several disparaging and disrespectful remarks made by the trial judge and directed at counsel for the Yukon, several incidents occurred which, when viewed in the circumstances of the entire trial, lead inexorably to this conclusion,” Justice Rosalie Abella wrote on behalf of the seven-judge panel.
The high court also concluded that the school board cannot unilaterally decide who it admits to its school – but that doesn’t prevent it from raising the issue if it believes its Charter rights are being infringed upon.
The issue of whether the Yukon government is required to communicate with the board in French should be determined at a new trial, the ruling states.
School board president Ludovic Gouaillier said it’s a disappointing outcome, especially since five years of efforts have been “wiped out by a procedural issue” and have sent everyone back to square one.
“The issue of the appearance of partiality on the part of the judge had nothing to do with the substantive issues,” he said.
As it stands, the school board needs to sit down, read the court’s judgment carefully and determine how it wants to proceed, Gouaillier said.
But he’s optimistic a new trial may not be needed. “We’ve been able to sit down with the Department of Education and achieve some significant progress on some of these issues by way of agreement rather than litigation,” he said.
Recently, the Yukon government presented the school board with three options to choose from as to where it could build a new high school, and the board picked the site of Riverdale’s skate park.
The school board and Yukon government have been locked in their legal battle since 2009.
The French school board claimed the Yukon government had withheld funds and wasn’t giving it control over its staff and admissions.
The original trial judge in Yukon Supreme Court, Vital Ouellette, ruled in the board’s favour and ordered the government to build a new French high school and pay the board $2 million that the school board alleged had been diverted from it to French immersion programs.
The Court of Appeal later ruled the judge showed “reasonable apprehension of bias” because of his connections with the Alberta group Fondation franco-albertaine.
The Supreme Court agreed that Ouellette’s behaviour during that trial was both “troubling and problematic.”
“While this by itself is unwise, the trial judge’s refusal to hear the Yukon’s arguments after his ruling, and his reaction to counsel, are more disturbing,” Abella wrote.
But the Court of Appeal made a mistake when it concluded that Ouellette was biased because of his connection to the Fondation franco-albertaine, she said.
Under Section 23 of the Charter of Rights and Freedoms, Canadians have the right to education in a minority language, whether that is English or French, but it only extends to the children and grandchildren of those who were educated in French or whose first language is French.
The school board wants to be able to grant admission to others as well, such as the children of immigrants and other non-rights holders.
Abella wrote that provinces and territories can delegate the function of setting admission criteria for children of non-rights holders to a school board, but in this case, the Yukon government has not done so.
The government of Quebec, one of several interveners in the case, also weighed in on the issue of admission, citing concerns that if francophone school boards are granted greater leeway the province would have to broaden access to English-language schools.
Gouaillier said he hopes both parties can “roll up their sleeves” and make more progress on the issues in contention.
Education Minister Doug Graham echoed Gouaillier’s statement, saying there was “absolutely” no reason why both parties should have to go back to court.
“If they would like to sit down – and I’ll say the same thing to the president – and discuss how we can work out something around which students go to the French school, we’re perfectly willing to talk about that as well.”
Roger Lepage, a lawyer representing the school board, said he was unhappy with the decision but advised his client to sit down with department officials and try to hash things out, given their improved relationship.
Three points need to be discussed, Lepage said: plans to build a new high school within a reasonable time; parameters that give the school board a meaningful say in admission and hiring criteria; and a commitment that communication between the board and the government be conducted in French.
“Really, the only thing the Supreme Court resolved this morning was saying that there’s reasonable apprehension of bias, start over,” Lepage said.
“All three points are still alive – the construction of the school, the reasonable parameters and the language issue.”
The Yukon government has spent approximately $3 million on the case since it began, according to Mark Pindera, assistant deputy minister of legal services.
Contact Myles Dolphin at