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Supreme Court of Yukon SUPREME COURT OF YUKON Citation: La Commission Scolaire Francophone Date: 20110726 du Yukon No. 23 c. Procureure Générale du S.C. No.: 08-A0162 Territoire du Yukon, 2011 YKSC 57 Registry: Whitehorse Between: COMMISSION SCOLAIRE FRANCOPHONE DU YUKON NO. 23 Plaintiff And: PROCUREURE GÉNÉRALE DU TERRITOIRE DU YUKON Defendant Before: Mr. Justice Vital O. Ouellette Appearances: Roger J. F. Lepage for the Plaintiff Francis Poulin Maxime Faille for the Defendant François Baril Guy Régimbald ii Table of Contents I. Introduction.......................................................... -1- II. Issues in Dispute....................................................... -1- III. Facts. ............................................................... -2- i) Procedural Context................................................ -2- ii) Uncontroverted History............................................ -3- iii) The Charter and the Education Act . ................................. -5- IV. Witnesses............................................................. -8- A. Jeanne Beaudoin. ................................................ -8- B. Florent Bilodeau................................................. -15- C. Edmond Ruest.................................................. -27- D. Rodrigue Landry. ............................................... -34- E. Marc Champagne................................................ -45- F. Lee Kubica..................................................... -58- G. Jean-François Blouin............................................. -75- H. André Bourcier.................................................. -80- I. Roger Paul..................................................... -93- J. Lorraine Taillefer................................................ -94- iii K. Valerie Stehelin................................................ -109- L. Norman Laniel................................................. -115- M. Judith Anderson................................................ -117- N. Patricia Daws.................................................. -118- O. Sandra Henderson. ............................................. -124- P. Elizabeth Lemay................................................ -127- Q. Ed Shultz..................................................... -133- R. Anita Simpson................................................. -135- S. Cyndy Dekuysscher............................................. -138- T. David Hrycan.................................................. -145- U. Bruce McAskill................................................ -147- V. Charles Georges Callas. ......................................... -152- W. Michael Woods. ............................................... -155- X. Sébastien Markley.............................................. -163- Y. Christey Whitley. .............................................. -164- V. Management........................................................ -179- i) Law - Case Law - Section 23 of the Charter.......................... -179- 1) “Where Numbers Warrant”................................. -183- 2) Minority Language Instruction Facilities.. -183- 3) Application of the Principles................................ -185- ii) Analysis...................................................... -191- iv 1) The Number of Rights Holders in the Yukon. -191- 2) Degree of Management and Control. -198- 3) Management of Finances, Staff, Programs and Buildings.. -204- a) School Principal.................................... -207- b) School Year and School Transportation. -213- c) Professional Development of Teachers. -215- d) Budget, Staff, Buildings and Title to Property.. -219- e) Programs. ........................................ -225- f) Staffing Formula. .................................. -232- 4) Management of Admission of Rights Holders and Non Rights Holders................................................. -238- a) Analysis.......................................... -246- 5) Construction............................................. -250- VI Languages Act....................................................... -262- i) Law - Case Law................................................ -262- ii) Analysis...................................................... -264- VII Fiduciary Duty...................................................... -272- i) Law - Case-Law................................................ -272- ii) Analysis...................................................... -279- v VIII. Conclusion. ........................................................ -293- i) Management................................................... -294- ii) Language..................................................... -299- iii) Fiduciary Obligation. ........................................... -300- IX. Costs. ............................................................. -301- -1- [English translation of the judgment] I. Introduction [1] The Commission scolaire francophone du Yukon no. 23 (CSFY) has sued the Attorney General of the Yukon (GY). The CSFY alleges that the GY has failed in its duties under s. 23 of the Canadian Charter of Rights and Freedoms and the Education Act, R.S.Y. 2002, c 61. According to the CSFY, the GY has also breached a fiduciary duty toward the CSFY. II. Issues in Dispute [2] In this case, the Court is asked to determine the extent of the rights granted under s. 23 of the Charter to the members of the francophone minority in the Yukon, and the resulting duties of the GY. [3] In order to determine the extent of the rights under s. 23, it is necessary to first determine the number of rights holders. Once this number has been established, it will be possible to determine the degree of management which should be granted to the CSFY in the particular context of the Yukon. The areas of management in question include finances, staff, programs and buildings. The parties disagree as to the definition of “rights holder” and each claims the right to manage the admission of students to the French schools. Also at issue are the duties which the GY has toward the CSFY under the Languages Act, R.S.Y. 2002, c 133 . -2- [4] As well, there is a final question, being whether the GY has breached a fiduciary duty to transfer $1.9 million to the CSFY. III. Facts i) Procedural Context [5] The trial commenced on May 17, 2010 and finished on February 4, 2011. In fact, the trial consisted of two distinct phases. The first phase, lasting six weeks, dealt with the issues of the number of rights holders, management of finances, staff and programs, and fiduciary duty. The trial continued for three weeks in January and February 2011. The second phase addressed the issue of management of buildings, construction of a separate secondary school building, and management of admissions. [6] The trial had to proceed in two separate phases because of the unexpected illness of one of the GY’s witnesses, which arose a few weeks prior to the commencement of trial on May 17, 2010. The Court denied the GY’s request for an adjournment of the entire trial, given the GY’s position that the said witness was required only in relation to the issue of building management. The Court decided to hear, during the dates set for the trial, the evidence on all of the other issues. -3- [7] On June 11, 2010, during cross-examination of the last witness called by the CSFY in the first phase, the GY requested permission delay presentation of its evidence until January 2011. The Court declined the request, for reasons provided during the trial. The Court thereby confirmed that all of the evidence and submissions of the CSFY and the GY would be presented during the first phase of the trial, regarding all of the issues in dispute except for building management, construction and management of admissions. Given the possibility that certain individuals would testify twice, the Court decided that it would render only one judgment following the evidence on building management, construction and admissions, in order to avoid an application for recusal on continuation of the trial. [8] During the trial, the Court heard 25 witnesses, and the parties filed more than 533 exhibits. The CSFY filed a notice to admit regarding 320 of the documents adduced, as provided for under Rule 31 of the Supreme Court of Yukon. Following a discussion, the CSFY and the agreed that the 320 documents would constitute individual trial exhibits, including the deemed admissions of the GY. However, the GY would have the right to request the Court’s permission in due course to withdraw any of the deemed admissions. In such case, the Court would decide whether the admissions in question could be withdrawn. ii) Uncontroverted History [9] In 1984, the École Émilie-Tremblay (Émilie-Tremblay School, referred to herein as EET) was founded. The francophone program in 1984 provided instruction in all grade levels up to the end of Grade 6. Around two years later, a francophone program for junior high (Grades 7 to 9) -4- was established. At the time, EET was located within other schools in Whitehorse, Yukon. In 1990, EET moved to its own prefabricated buildings. Following this move, EET began accepting high school students (Grades 10 to 12). [10] In 1996, the GY created the CSFY by way of departmental order under the Education Act. Pursuant to the Education Act and the French Language Instruction Regulation (YOIC 1996/99), the CSFY has jurisdiction over French instruction in the Yukon as guaranteed by s. 23 of the Charter. In 1996, there were 113 students registered at EET. The same year, EET
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