Supreme Court sends francophone school board back to square one

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.

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

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

Just Posted

Dawson the dog sits next to the Chariot Patrick Jackson has loaded and rigged up to walk the Dempster Highway from where it begins, off the North Klondike Highway, to the Arctic Circle. (Submitted)
Walking the Dempster

Patrick Jackson gets set for 405-kilometre journey

Liberal leader Sandy Silver speaks outside his campaign headquarters in Dawson City following early poll results on April 12. (Robin Sharp/Yukon News)
BREAKING: Minority government results will wait on tie vote in Vuntut Gwitchin

The Yukon Party and the Liberal Party currently have secured the same amount of seats

Yukonomist Keith Halliday
YUKONOMIST: The Neapolitan election

Do you remember those old bricks of Neapolitan ice cream from birthday… Continue reading

Chief Medical Officer of Health Dr. Brendan Hanley. (Crystal Schick/Yukon News)
Exposure notice issued for April 3 Air North flight

Yukon Chief Medical Officer of Health Dr. Brendan Hanley has issued another… Continue reading

Crystal Schick/Yukon News file
Runners in the Yukon Arctic Ultra marathon race down the Yukon River near the Marwell industrial area in Whitehorse on Feb. 3, 2019.
Cold-weather exercise hard on the lungs

Amy Kenny Special to the Yukon News It might make you feel… Continue reading

Today’s Mailbox: Rent freezes and the youth vote

Dear Editor, I read the article regarding the recommendations by the Yukon… Continue reading

Point-in-Time homeless count planned this month

Volunteers will count those in shelters, short-term housing and without shelter in a 24-hour period.

The Yukon’s new ATIPP Act came into effect on April 1. Yukoners can submit ATIPP requests online or at the Legislative Assembly building. (Gabrielle Plonka/Yukon News file)
New ATIPP Act in effect as of April 1

The changes promise increased government transparency

A new conservancy in northern B.C. is adjacent to Mount Edziza Provincial Park. (Courtesy BC Parks)
Ice Mountain Lands near Telegraph Creek, B.C., granted conservancy protection

The conservancy is the first step in a multi-year Tahltan Stewardship Initiative

Yukon RCMP reported a child pornography-related arrest on April 1. (Phil McLachlan/Black Press file)
Whitehorse man arrested on child pornography charges

The 43-year-old was charged with possession of child pornography and making child pornography

Team Yukon athletes wave flags at the 2012 Arctic Winter Games opening ceremony in Whitehorse. The postponed 2022 event in Wood Buffalo, Alta., has been rescheduled for Jan. 29 to Feb. 4, 2023. (Justin Kennedy/Yukon News file)
New dates set for Arctic Winter Games

Wood Buffalo, Alta. will host event Jan. 29 to Feb. 4, 2023

Victoria Gold Corp. has contributed $1 million to the First Nation of Na-cho Nyak Dun after six months of production at the Eagle Gold Mine. (Submitted/Victoria Gold Corp.)
Victoria Gold contributes $1 million to First Nation of Na-cho Nyak Dun

Victoria Gold signed a Comprehensive Cooperation and Benefits Agreement in 2011

Most Read