The Supreme Court of Canada has ordered that the dispute between the Yukon’s francophone school board and the territorial government over minority-language rights must go back to the trial stage.

In a decision released this morning, the country’s top court found there was “reasonable apprehension of bias” by an Alberta judge who presided over the trial involving the two parties in 2010-2011.

“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,” wrote Justice Rosalie Abella on behalf of the seven-judge panel.

The Supreme Court heard the case last January, after the Commission scolaire francophone du Yukon (CSFY) appealed a Yukon Court of Appeal ruling last year.

The legal battle over who has the right to manage French-language education in the territory has been ongoing since 2009.

Today, the Supreme Court judges agreed with the appeal-court ruling that CSFY could not unilaterally decide which students to admit to its sole school, École Émilie-Tremblay in Whitehorse.

A province or territory can delegate to a school board the task of setting admission criteria for children of non-rights-holders, the court ruled, but that hasn’t happened in the Yukon.  

(Under the Canadian Charter of Rights and Freedoms, children of francophones or of people who were educated in French have the right to French-language education in jurisdictions where English is the dominant tongue.)

“In the absence of any such delegation, there is no authority for the Board to unilaterally set admission criteria which are different from what is set out in the territorial regulation applicable to French‑language instruction,” wrote Abella.

In an interview with the Star early this afternoon, Education Minister Doug Graham said the department will discuss delegating admissions to the school board.

He said he’s optimistic a new trial won’t be necessary as Education and CSFY have further discussions.

The court’s decision is “anti-climactic,” Graham said.

“Most of the questions that started this whole case we’ve managed to deal with simply by working with CSFY on the issues themselves,” he said, citing a new funding agreement with the school board.

“This is not to say that we’ve worked out everything, but given the way discussions are going and the fact that CSFY and myself and my department want to work out a reasonable solution to everything, I think that the decision itself was anti-climactic.”

CSFY lawyer Roger Lepage said there does seem to be “an opening” to resolve matters, with a new minister and staff at the Education department.

Court proceedings are always a last resort, he told the Star from Ottawa early this afternoon.

Lepage said the school board’s appeal hinged on three issues: the need for a francophone high school in the territory, managing of admissions at École Émilie-Tremblay and receiving services and communications from the government in French.

“We’ve already acknowledged we’re willing to work with CSFY on the new French high school,” Graham said.

The school board has selected the Riverdale skateboard park as the ideal location for it.

“This decision really hasn’t made a difference to any of those things that we’re doing,” Graham said.

Of the ruling, Lepage said: “I was disappointed that we had to go back to square one, but at the same time I can understand that it’s one of the fundamental principles of our legal system that the judge not only has to be independent but he has to be seen to be independent.”

In their ruling, the judges discussed the issue of bias.

They disagreed with the Yukon appeal court’s position that Justice Vital Ouellette’s apparent bias was his involvement with a francophone foundation in Alberta.

“Canada has devoted a great deal of effort to creating a more diverse bench,” Abella wrote.

“That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.”

Instead, the Supreme Court pointed to specific comments Ouellette made, as well as his conduct, calling it “troubling and problematic.”

At one point, the judge told the Yukon government lawyer, who was attempting to cross-examine a witness based on confidential information in student files, that he would hear further arguments on confidentiality the next day.

“However, he started the next day’s proceedings with a ruling unfavourable to the Yukon and without giving the parties an opportunity to present further argument,” the decision states.

“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.”

This dispute began in 2009, when the francophone school board sued the government, alleging it wasn’t meeting its obligations under the Charter.

The Yukon Supreme Court ruled in favour of CSFY, and ordered a new French high school be built in Whitehorse.

The Yukon Court of Appeal overturned that decision last year, citing a “reasonable apprehension of bias” by the trial judge.

It also found that judge erred in finding that the Charter gives minority-language school boards an automatic right to admit the children of non-rights-holders to its schools.

The French school board then appealed to the Supreme Court of Canada.

The Supreme Court decision states that CSFY may claim that the Yukon government has not complied with the section of the Charter pertaining to language-of-education rights.

“Nothing stops the board from arguing that the Yukon’s approach to admissions prevents the realization of (that section)’s purpose,” Abella wrote.

There were several intervenors in the case, including the governments of the Northwest Territories, Quebec, Saskatchewan and British Columbia.