Ruling sends French language case back to square one

A monumental, multi-million-dollar fight over French-language education in the Yukon has been ordered back to court.

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

ashleyj@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Chief Medical Officer of Health Dr. Brendan Hanley gives a COVID-19 update during a press conference in Whitehorse on May 26. The Yukon government announced two new cases of COVID-19 in the territory with a press release on Oct. 19. (Alistair Maitland Photography)
Two new cases of COVID-19 announced in Yukon

Contact tracing is complete and YG says there is no increased risk to the public

Yukon Energy in Whitehorse on April 8. Yukon Energy faced a potential “critical” fuel shortage in January due to an avalanche blocking a shipping route from Skagway to the Yukon, according to an email obtained by the Yukon Party and questioned in the legislature on Oct. 14. (Crystal Schick/Yukon News file)
Yukon Energy faced ‘critical’ fuel shortage last January due to avalanche

An email obtained by the Yukon Party showed energy officials were concerned

Jeanie McLean (formerly Dendys), the minister responsible for the Women’s Directorate speaks during legislative assembly in Whitehorse on Nov. 27, 2017. “Our government is proud to be supporting Yukon’s grassroots organizations and First Nation governments in this critical work,” said McLean of the $175,000 from the Yukon government awarded to four community-based projects aimed at preventing violence against Indigenous women. (Crystal Schick/Yukon News file)
Yukon government gives $175k to projects aimed at preventing violence against Indigenous women

Four projects were supported via the Prevention of Violence against Aboriginal Women Fund

Yukonomist Keith Halliday
Yukonomist: You don’t know what you’ve got ‘til it’s gone

When I was a kid, CP Air had a monopoly on flights… Continue reading

asdf
EDITORIAL: Don’t let the City of Whitehorse distract you

A little over two weeks after Whitehorse city council voted to give… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Northwestel has released the proposed prices for its unlimited plans. Unlimited internet in Whitehorse and Carcross could cost users between $160.95 and $249.95 per month depending on their choice of package. (Yukon News file)
Unlimited internet options outlined

Will require CRTC approval before Northwestel makes them available

Legislative assembly on the last day of the fall sitting in Whitehorse. Yukon’s territorial government will sit for 45 days this sitting instead of 30 days to make up for lost time caused by COVID-19 in the spring. (Crystal Schick/Yukon News file)
Legislative assembly sitting extended

Yukon’s territorial government will sit for 45 days this sitting. The extension… Continue reading

asdf
Today’s mailbox: Mad about MAD

Letters to the editor published Oct. 16, 2020

Alkan Air hangar in Whitehorse. Alkan Air has filed its response to a lawsuit over a 2019 plane crash that killed a Vancouver geologist on board, denying that there was any negligence on its part or the pilot’s. (Crystal Schick/Yukon News file)
Alkan Air responds to lawsuit over 2019 crash denying negligence, liability

Airline filed statement of defence Oct. 7 to lawsuit by spouse of geologist killed in crash

Whitehorse city council members voted Oct. 13 to decline an increase to their base salaries that was set to be made on Jan. 1. (Crystal Schick/Yukon News file)
Council declines increased wages for 2021

Members will not have wages adjusted for CPI

A vehicle is seen along Mount Sima Road in Whitehorse on May 12. At its Oct. 13 meeting, Whitehorse city council approved the third reading for two separate bylaws that will allow the land sale and transfer agreements of city-owned land — a 127-square-metre piece next to 75 Ortona Ave. and 1.02 hectares of property behind three lots on Mount Sima Road. (Crystal Schick/Yukon News file)
Whitehorse properties could soon expand

Land sale agreements approved by council

Most Read