The French school board plans to ask the Supreme Court of Canada to hear its case against the government.
Last week the Yukon Court of Appeal ordered a new trial for the case involving French language rights in the territory.
The Yukon Court of Appeal ruled the judge, who ordered a new French high school be built in Whitehorse, showed a “reasonable apprehension of bias.”
That was enough to order a new trial, without examining many of the legal questions brought up in the case.
“It is unfortunate that the judges of the Court of Appeal have chosen not to examine the essential and fundamental issues in the trial,” said Ludovic Gouaillier, president of the school board, in a statement.
“Consequently we now find ourselves 23 months later with a decision that sends both parties to square one on fundamental issues. Therefore, we will be asking the Supreme Court of Canada to review the Yukon Court of Appeal’s decision.”
The francophone school board brought the case against the Yukon government, alleging it had not met its obligations under section 23 of the Canadian Charter of Rights and Freedoms, which protects minority language rights.
The original judge, Vital Ouellette, ordered the government to build a new French high school and pay the board nearly $2 million that the school board alleged had been diverted from it to French immersion programs.
At the time of the original trial, Ouellette was a governor of the Alberta group Fondation franco-albertaine. The appeal judges ruled that was cause for concern.
Going back to square one “does not constitute a viable option,” the school board said.
“We must consider the human and financial resources already invested in this process as well as those that would be spent through a new trial. Therefore, the trustees have chosen to call upon the Supreme Court of Canada which has the final authority to decide on these matters,” Gouaillier said.
“Only this will allow CSFY to continue its quest to provide the members of the Yukon francophone community with educational services of a quality which conforms with Article 23 of the Canadian Charter of Rights and Freedoms.”
Elaine Taylor, the minister responsible for the French Language Services Directorate, said she met with the school board’s president last week.
“It’s well within the school board’s right to continue the court proceeding and we certainly respect their decision to seek clarity on those questions as they pertain to charter language rights in this country,” she said.
Taylor said the government is continuing to work with the school board even as the case is ongoing.
Both sides point to two new portables at Ecole Emilie-Tremblay, and the funding of a study to look into a new French high school, as signs of that work.
The study looks at a number of options, including a separate French high school on the same site as the new F.H. Collins secondary school.
“There haven’t been any decisions made on that front, and those discussions will continue,” said Taylor.
Government officials estimate they’ve spent $2.6 million on the case from the beginning.
Not every case that applies to the country’s top court is heard.
The country’s Supreme Court Act says that a case is chosen by the court “by reason of its public importance.”
Judges are not required to provide reasons for why they choose to hear one case and not another.
In 2012 the Supreme Court of Canada only granted a hearing to about 12 per cent of the cases that applied.
The French school board has until April 14 to submit its application.
According to the most recently available statistics, it takes on average 4.4 months for the court to decide if it will hear a case.
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