The Attorney General for the Yukon has officially filed an appeal of a supreme court decision forcing the government to build a new francophone school in Whitehorse.

In July, Justice Vital Ouellette gave the government two years to build a new francophone high school large enough to accommodate 150 students.

The decision came after a two-year battle between the government and the Commission scolaire francophone du Yukon (CSFY), which operates École Émilie-Tremblay in Whitehorse.

Ouellette also ordered the government to restore $1.95 million which he said was earmarked for French first-language programs and had instead gone to French immersion programs.

The appeal argues that the decision should be overturned based on a number of points including "reasonable apprehension of bias” on the part of the judge.

"The trial judge's undisclosed personal and professional antecedents as a former advocate for French-language minority education rights and as a former president of a minority-language French school board in Alberta together with his current involvement as a sitting governor of the Fondation Franco-Albertaine gives rise to a reasonable apprehension of bias,” said the notice of appeal filed last week.

The court documents also list 14 examples during the trial when the government alleges the "trial judge's comments, demeanor and rulings through the proceedings gives rise to reasonable apprehension of bias.”

Among the allegations quoted in the document are that the judge:

"Laughed and grimaced during the course of evidence in a manner to suggest that he did not take the GYT's seriously and or that he had a closed mind;”

"On several occasions took on the role of the plaintiff's counsel by arguing with defense council or by ruling against the defendant of the basis of arguments or points not raised by plaintiff's counsel;”

"Allowed a lay witness for the plaintiff to give opinion evidence as to the number of rights-holders in the territory and likely enrollment at EET over the coming years, while refusing to allow the GYT to call a lay witness from the Yukon Bureau of Statistics to give evidence on the issue;”

"Repeatedly applied different standards to the plaintiff and to the defendant in relation to the admissibility of evidence, consistently favouring the plaintiff;”

"Repeatedly curtailed the scope of evidence that could be tendered by the GYT's witnesses, both lay and expert, while giving wide latitude to the plaintiff's witnesses;”

During the trial, the government had appealed for the judge to remove himself from the case because of alleged biases.

Ouellette ruled he was not biased and had quashed a government appeal to have him removed from the case.

The notice of appeal also argues "the reasons for decision also give rise to reasonable apprehension of a bias in the favour of the plaintiff.”

The documents allege that in the 317-page decision:

"The trial judge repeatedly characterizes legitimate cross examination by defense council as ‘personal attacks' against witnesses;”

"The trial judge ignores or papers over contradictions in the evidence of plaintiff's witnesses;”

The 13-page notice of appeal also argues the judge "erred in law and made palpable and overriding errors in facts in finding that the defendant's current approach, funding and commitment to French first language election in the GYT did not fulfill its constitutional obligations under section 23 of the Charter.”

Section 23 of the Canadian Charter of Rights and Freedoms deals with minority language educational rights.

Among its seven points addressing this claim, the document alleges that the judge "erred in law and in fact in finding that the number of rights-holders school-aged children in the territory is between 400-435 when the admissible evidence indicated the actual number to be significantly lower.”

The appeal claims the judges detailed order as to the specifications on the new school goes "well beyond the dictates of section 23 of the charter.”

The document claims the order "errs in law in using as a comparator English-Language high schools in Whitehorse that are 10-15 times larger in student population.”

The order also "ignores the ‘sliding scale' approach mandated by the Supreme Court of Canada.”

The judge ordered that the new school include a gymnasium, industrial arts classroom, computer labs, and individual classrooms for all grade levels.

The order "would result in a school that exceeds facilities that are or would be provided for student populations in the Yukon of comparable size,” the appeal said,

"The requirement that each class be taught in single-grade classes is contrary to the legitimate and universal practices in the Yukon and elsewhere in Canada teaching in split-levels where class sizes are small,” the document said.

The appeal also alleges the judge erred in setting out specific steps the GYT must undertake to remedy its alleged breaches or section 23 of the Charter thereby unduly encroaching on the GYT's jurisdiction as it related to education.”

Among the allegations are that "The trial judge erred in removing the CSFY teachers from the collective agreement with the Yukon Teachers Association in relation to professional development.”

The appeal also alleges the trial judge erred in ordering the government to provide human and financial resources to the CSFY to fulfill obligations under the Education act.

The appeal also questions the order that compels the government to communicate with the CSFY in French, finance and expand the French school to accommodate pre-school aged children and impose arbitrary timetables over the implementation of the various orders.

The government is asking that the decision be set aside and an order dismissing the claim in its entirety or in part be entered. Alternatively the document asks for a new trial to be ordered and the order be stayed pending the appeal.

No date has been set for when the case will next appear in court.

By ASHLEY JOANNOU

Star Reporter