Yukon Francophone School Board v Yukon: the School Board’s Powers

There exists within the territory of the Yukon only one French-language school, École Émilie-Tremblay, which is governed by the only school board in the Yukon, the Francophone School Board (“Board”). In 2009, this lone Board sued the Yukon government for what it claimed were deficiencies in the provision of minority language education. In 2015, the Board had the opportunity to argue its case at the Supreme Court of Canada (“SCC”) in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 [Yukon]. The main issue at hand, as discussed below, revolves around whether it is the Yukon government or the Board who gets to decide which student is eligible to attend École Émilie-Tremblay.

The SCC on the Judge’s Bias

One issue that was addressed by the SCC was whether the trial judge’s conduct was troubling and caused a bias in his decision-making because of the position he held as a governor of the Fondation franco-albertaine, a community organization of which he was part. This is because the Court of Appeal believed that this organization’s beliefs about the francophone community within Yukon stood “clearly align[ed] with some of the positions taken by the Board in this case” (Yukon, para 18).

The Court of Appeal held that the judge was indeed bias. However, the SCC reiterated that the test for a reasonable apprehension of bias is what a reasonable, informed person would think, and concluded that the conduct of the trial judge was not influenced by a bias. The SCC seemed to have an unnecessarily lengthy discussion about why the Court of Appeal’s decision was incorrect – mainly because the SCC’s conclusion was fairly simple and seemed as though it was written as if it was a given. The SCC noted a fair number of details regarding the trial judge’s conduct throughout the case, but the tone of the writing seemed to suggest, from the very beginning, how they were going to conclude.

The SCC on the Yukon’s French Requirement

Another issue that the SCC addressed briefly was whether the Yukon government must communicate and provide services in French to the Francophone School Board and its employees, as per s. 6(1) of the Languages Act, RSY 2002, c 133: “As the Court of Appeal observed, it is unlikely that the question has a simple answer given that the Board and its personnel engage in various types of communications with the government” (Yukon, para 76). The SCC held that a new trial, relating specifically to this issue, must to be heard. This decision was set aside rather quickly with hardly any discussion within the case. It would have been interesting to read a more detailed reasoning behind why a new trial was necessary and what sorts of considerations were taken into account when coming to this conclusion.

The SCC on the Board’s Power

A third issue that the SCC addressed was whether the Board had a right to unilaterally decide whom to admit to the French-language school. The French Language Instruction Regulation, YOIC 1996/99 states that only eligible students are entitled to receive French-language education in schools in the Yukon. “Eligible student” is defined within that Act as:

. . . a student whose parent or parents are citizens of Canada who have the right under section 23 of the Charter to have their children educated in the French language and include those students whose parents or siblings would have the right under section 23 if they were citizens of Canada or if the instruction referred to in section 23 was not limited to Canada (French Language Instruction Regulation, s. 2).

Even still, since 1996, the Board had been the one to decide which students were to be admitted to École Émilie-Tremblay. In response to this, the Yukon Government sent a letter to the Board declaring that they intended to enforce s. 2 of the French Language Instruction Regulation, and residents needed to file a declaration with the Board so that the Minister of Education, as per the Yukon’s government, could make the final decision about the students’ eligibility.

The issue that the SCC had to settle was whether “s. 23 grants the Board the unilateral power to admit students other than those who are ‘eligible’ according to the Regulation. This raises questions about the allocation of constitutional powers” (Yukon, para 66). The Charter, as explained by the SCC, gives certain rights in this context: “Where numbers warrant, ss. 23(1) and 23(2) give certain Canadian citizens the right to have their children receive education in a province or territory’s minority language at the government’s expense” (Yukon, para 67). It is important to note that this right is restricted to potential students whose primary language is either that of their residing province’s minority language or elementary education.

The SCC reaffirmed that although the Charter has language rights, it also is important for determining the constitutional powers of the provinces:

Pursuant to s. 93 of the Constitution Act, 1867, provincial legislatures have authority to make laws in relation to education. Federalism remains a notable feature in matters of minority language rights. As this Court stated in Solski, a case upholding Quebec legislation requiring a student to have received the ‘major part’ of his or her education in English in order to qualify for access to publicly funded English-language schools (Yukon, para 68).

The SCC mentioned that a province or territory can delegate what the admission criteria is for children that do not hold rights to attend a school that is part of a particular school board. The province or territory can also pass legislation that provides higher protection than that of the Charter since s. 23 simply establishes a constitutional minimum. For example, the SCC goes on to note how some provinces have granted school boards wide discretion to admit non-rights holders into schools (like Ontario and Manitoba). Nevertheless, in the context of the Yukon, there is an important difference: Since the Yukon had not given the Board the jurisdiction of setting admission criteria for non-rights holder children, the SCC held that “there is no authority for the Board to unilaterally set admission criteria which are different from what is set out in the Regulation” (Yukon, para 74).

The judgment is rather simple – since the province has not determined the criteria for the admission of students, the regulation must be the guiding force. The decision regarding this issue was flushed out at a reasonable length. However, it seemed as though it got lost within the discussion of the first two issues described above. It would have been more of an enjoyable read had the SCC written the case in a more structured manner.