The judge hearing a lawsuit filed against the territorial government by the francophone school board says he is not biased and has quashed a government appeal to have him removed from the case.

In his Jan. 7 decision, Justice Vital Ouellette also tossed the second part of the Yukon government's two-pronged appeal – that Ouellette had overstepped his jurisdiction by reinstating federal funding to École Émilie-Tremblay which had expired in June 2010.

The trial, which resumed Monday, was split into two three-week portions last year after a witness for the defence suffered a stroke.

Because the trial's new schedule would overlap into another school year, Ouellette said stripping the school of the funding until a verdict would be contrary to the interest of justice.

In its lawsuit filed in February 2009, the Commission scholaire francophone du Yukon wants sole control of nearly $5 million in annual funding from the Yukon government, and is demanding that the government build it a dedicated high school.

Currently, École Émilie-Tremblay accommodates francophone students from Kindergarten through Grade 12.

On the matter of Ouellette's alleged impartiality, the judge did not deny "laughing and visibly grimacing in the course of the evidence,” as the government's appeal states, particularly during testimony given by Christie Whitley, the ADM of Public Schools.

"It suggest(s) that (Ouellette) did not take the defendant's position seriously,” Maxime Faille, the government's lawyer, submitted to the court.

But Ouellette explained in his decision that in the course of hearing lengthy trials, judges cannot be expected to sit impassively.

Ouellette also states categorically that he finds no reasonable doubt of his impartiality in the case.

But the government raises more questions over Ouellette's suitability to hear this particular case, noting that before he was called to the bench in 2002, he had been a promoter of French language and education in Alberta.

From 1994 to 1998, Ouellette was the president of the Conseil scolaire francophone du Nord-Est de l'Alberta, and between 1999 and 2001, he was an executive member of l'Association canadienne-française de l'Alberta.

Roger LePage, the lawyer for the Commission scholaire francophone du Yukon, argued it is unreasonable to expect Ouellette to come to the trial as a "blank slate” and that in maintaining true impartiality, one need not relinquish any sympathies or opinions.

As well, in 2005, Faille appeared in a Yellowknife court before Ouellette, acting on behalf of the Northwest Territories government in a similar lawsuit, in which Ouellette sided with that city's francophone school board.

The Yukon government and Faille are well aware of that case and who presided over it, Ouellette writes in his appeal decision, and back in 2005, Faille expressed no concerns whatsoever with Ouellette's pre-bench work promoting francophone rights in Alberta.

While a new staff allocation formula for École Émilie-Tremblay, implemented at the beginning of last year, took away teaching positions from the francophone school, the Commission scholaire francophone du Yukon had already filed its lawsuit the year before.

With more than $4.5 million in annual funding for 170 students – 40 of whom take high school courses at École Émilie-Tremblay – the Yukon's francophone students are among the best-funded in the territory.

The trial continues today, and lawyers for the government and the francophone commission are expected to rest their cases by Feb. 3.