A monumental, multi-million-dollar fight over French-language education in the Yukon has been ordered back to court.
In a rare decision, the Yukon Court of Appeal ruled the original judge in the case between the Yukon government and the Commission scolaire francophone du Yukon had a “reasonable apprehension of bias” when he ruled in favour of the school board.
That was enough to order a new trial.
The 68-page decision comes nearly two years after the Yukon government appealed the original decision by Justice Vital Ouellette.
In July 2011, after a lengthy trial, Ouellette ordered the territory pay nearly $2 million – money that the francophone school board alleged had been diverted from them to French immersion programs.
He also ordered administrative changes.
But the decision that received the most attention was when Ouellette gave the government two years to build a new French high school alongside the current Ecole Emilie-Tremblay in Whitehorse.
The school was to accommodate up to 150 students from Grades 7 to 12, even though, the government argued, the number of French students in the territory is much lower.
The original trial was a complicated one. The court heard from 25 witnesses. The transcript is more than 2,300 pages long, and the exhibits take up a further 5,453 pages.
Claims of bias are rare, the court says. Successful claims are even more so.
“That said, judicial impartiality is absolutely crucial to the integrity of the legal system. Thus, it is never necessary to prove that a judge was actually biased; all that is necessary is that there is sufficient indication of bias to create a reasonable apprehension of partiality.”
Before he was appointed to the Alberta bench in 2002, and the Yukon three years later, Ouellette was “deeply involved with minority language education in Alberta,” the decision says.
He was once elected as a school trustee and was later on the executive of a local French association.
At the time of the Yukon trial, he was a governor of the Fondation franco-albertaine.
According to the court documents, the FFA’s “mission statement indicates that it is dedicated to ‘an autonomous, dynamic and valued Albertan francophonie.’” The philosophy of the foundation was described as including the following statement: “[W]e have had to fight the same fights many times, for schools, for services, for the simple right to exist. For us, nothing has ever been obtained once and for all.”
The judge’s work before he was called to the bench is not enough to raise a concern, the appeal court said.
But his continuing involvement as a governor of the FFA raises different issues.
“The reason for this is straightforward: a person who is involved in the ongoing management or control of an organization has ongoing duties to uphold the organization’s principles and to advance its philosophies. Those duties can potentially conflict with the duty to approach cases with an open mind,” the court said.
Judges must exercise caution, the court said.
“We are of the view that ‘reasonable and right minded persons’ looking at the situation dispassionately, would have a reasonable apprehension of bias in this case, and would think that the judge should not have sat on it, given his position as a governor of the FFA.”
In the appeal, the government claimed Ouellette “laughed and grimaced” while the government’s lawyer made his case at trial.
The appeal court judges read the entire transcript, but said it was hard to evaluate the government’s claims.
“Quite apart from issues of facial expressions or laughter, however, we are of the view that the judge treated counsel for the government with a lack of respect on many occasions during the trial. This treatment does not appear to be the result of any misconduct by counsel during the trial, nor is there reference in the transcript to anything in the pre-hearing proceedings that may have precipitated the judge’s treatment of counsel,” the decision says.
No date has been set for the new trial.
If one does happen, it won’t be cheap. The government has already spent about $2.6 million on the case, according to Education spokesperson Mark Hill. That includes about $400,000 it was ordered to pay to cover some of the school board’s legal costs, he said.
Aside from that, neither side is saying much.
After battling it out repeatedly in courtrooms, the government and the school board released a joint statement within hours of the decision being made public.
“While awaiting a response to the appeal, both parties have continued to work together in the best interests of students. Now that the appeal decision has been received, both parties await advice and information from legal counsel.
“CSFY and Yukon Education will continue to collaborate on various projects undertaken in 2013, such as the construction of two portable classrooms at Ecole Emilie-Tremblay, the funding formula, and a study about the construction of a French-language high school.”
Both sides claim they are “optimistic about the future.”
Contact Ashley Joannou at