The Yukon Supreme Court ruled that a lawsuit against the Yukon government’s Department of Education will proceed with public interest standing, meaning the final ruling could have wide applications.
The latest development in the case are two decisions penned by justice Edith Campbell in early December 2022. They rule on three key issues: whether some portions of the claim against the government should be stuck and not considered at trial, whether the lawsuit should receive public interest standing and whether a trio of education or disability advocate groups should be granted intervener status and be allowed to participate as the case proceeds.
In the lawsuit, first filed in 2021, a parent claims on behalf of their child that the territorial government’s practices, policies, actions and conduct regarding students with disabilities violates students’ Charter rights.
The claims presented to court allege systemic failures in providing appropriate education to students with disabilities who have special educational needs. The closure of the occupational therapy room at the school and the way learning assistance teachers are funded and assigned are among the insufficient practices, the lawsuit claims.
The name of the parent and child at the centre of the lawsuit, as well as the community they live in and the school they attended, are anonymized in the court documents.
Presented with applications from the Yukon government’s lawyers to strike various parts of the claim against them, Campbell ruled that four paragraphs of the claim should be struck and a further section of it, that dealing with the government’s alleged “unwritten policy” for the allocation of learning assistance teachers must be rewritten more clearly if it is to be considered by the trial judge. The application to strike relating to other portions of the claim was denied.
A significant portion of the decision dealt with whether the case should be granted public interest status.
Counsel for the government argued that the lawsuit should be confined to the case at hand specifically and not be allowed to become about students with disabilities and their families at large. They submitted that a class action suit would be the more appropriate course of action if the plaintiffs want to apply the case to all Yukon students with disabilities and their families. They argue that the court should consider the plaintiffs’ personal and direct interest only.
The plaintiffs, on the other hand, submitted that their claim is systemic in nature and that the public interest standing is required to pursue all the issues they have raised. The judge’s attention was drawn to the ways the court-ordered relief sought is not limited to only the plaintiffs’ situation and the variety of experience among the students with disabilities who a ruling might apply to that would make a class for a class action suit difficult to define. The court also heard about the lack of an organization or non-profit in the Yukon that might bring a lawsuit challenging the systemic failures if this one doesn’t go forward on public interest standing.
“I agree the lawsuit raises matters of public interest with respect to the defendant’s provision of, and access to, public education in this territory for students with disabilities. I am also of the view that the case the plaintiffs want to bring forward transcends their own personal interests with respect to the defendant’s policies, guidelines, actions, inaction or conduct,” Campbell wrote.
In a separate written decision Campbell granted the Yukon Association of Education Professionals (YAEP) leave to submit information when the lawsuit is heard. The judge ruled that it is premature to decide whether YAEP will also be allowed to present the perspectives of the Learning Disabilities Association of Yukon and Autism Yukon.
Contact Jim Elliot at jim.elliot@yukon-news.com