Yukon Francophone School Board, Education Area #23 v. Attorney General of the Yukon Territory

(Yukon Territory) (Civil) (By Leave)

(Publication ban in case)


Courts - Official languages, Judges.


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Canadian Charter of Rights - Official languages - Courts - Judges - Bias - Right to manage admissions to schools of French linguistic minority population - School board’s right to obtain communications and services in French from Yukon government - Whether Court of Appeal erred in applying reasonable apprehension of bias test and in concluding that judge’s conduct during trial and involvement with community organization raised such apprehension - Whether Court of Appeal erred in deciding issues related to right to manage admissions and school board’s right to receive services and communications in French despite fact that it had set aside trial judge’s findings of fact - Whether ss. 2, 5 and 9 of French Language Instruction Regulation contrary to s. 23 of Charter - If so, whether infringement is reasonable limit prescribed by law as can be demonstrably justified in free and democratic society under s. 1 of Charter - French Language Instruction Regulation, YOIC 1996/099 - Canadian Charter of Rights and Freedoms, s. 23 - Languages Act, R.S.Y. 2002, c. 133, ss. 6 and 9.

The Commission scolaire francophone du Yukon (“CSFY”) is the only school board in the Yukon Territory. It operates the only French-language school in Yukon, École Émilie-Tremblay in Whitehorse. CSFY brought an action against the Yukon government (“Yukon”) alleging that it had breached its obligations under s. 23 of the Charter, violated the Languages Act, R.S.Y. 2002, c. 133, and breached its fiduciary duties by reallocating funds earmarked for minority language education to French as a second language instruction. There were a number of issues at the trial, and they touched nearly all aspects of French-language education in Yukon: the adequacy of school facilities, funding for certain teaching programs and CSFY’s power to control ancillary school services, such as school bus transportation. CSFY’s power to establish admission criteria for the French-language school was also in issue, particularly its ability to admit the children of non-rights holders under s. 23 of the Charter. The issues also encompassed relations between Yukon and CSFY, including budget administration and communications. Finally, there was a claim for breach of fiduciary duty against Yukon alleging that the territorial government had arranged to reallocate federal funds earmarked for minority language education so that they were used instead for immersion programs.

On the first day of the trial, Yukon notified CSFY that the power to manage admissions to École Émilie-Tremblay was being taken away from it. CSFY had been exercising that power for some time. Yukon informed CSFY that the territorial government would now implement s. 9 of the French Language Instruction Regulation made in 1996, which provides that “[o]nly eligible students shall be entitled to receive French language instruction”. Also at the start of the trial, Yukon sought an adjournment of the trial on the basis that an important witness had fallen ill. The judge denied the adjournment but agreed to bifurcate the trial so that the issues on which the witness was to give evidence would proceed at a later date.

The first phase of the trial lasted six weeks. During that phase, the judge granted an interlocutory injunction requiring Yukon to maintain CSFY’s current budget for the duration of the trial. Shortly after the judge adjourned the trial until the start of the second phase, Yukon filed a recusal application alleging that the judge’s conduct during the first phase of the trial, the interim orders made by him and his personal background gave rise to a reasonable apprehension of bias. The judge dismissed the application and the second phase of the trial continued.