Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale), (2015) 370 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 14, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 370 B.C.A.C. 1 (SCC);2015 SCC 25;[2015] SCJ No 25 (QL);[2015] ACS no 25;[2015] 2 SCR 282;383 DLR (4th) 579;AZ-51176286

Yukon School Bd. v. Yukon (A.G.) (2015), 370 B.C.A.C. 1 (SCC);

    635 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] B.C.A.C. TBEd. MY.055

Yukon Francophone School Board, Education Area #23 (appellant) v. Attorney General of the Yukon Territory (respondent) and Attorney General of Quebec, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of the Northwest Territories, Commissioner of Official Languages of Canada, Conseil scolaire francophone de la Colombie-Britannique, Fédération des parents francophones de Colombie-Britannique, Fédération des parents francophones de l'Alberta, Fédération nationale des conseils scolaires francophones and Fédération des communautés francophones et acadienne du Canada (interveners)

(35823; 2015 SCC 25; 2015 CSC 25)

Indexed As: Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

May 14, 2015.

Summary:

A francophone school board commenced proceedings alleging that the Yukon government (1) failed to meet its language rights obligations under s. 23 of the Charter of Rights and Freedoms; (2) violated the Languages Act; and (3) breached fiduciary duties by re-allocating funds earmarked for minority language education to French as a second language instruction.

The Yukon Supreme Court, in a judgment reported [2011] Yukon Cases Uned. 57, allowed the action. The court held that the government failed to accord the board adequate management and control of French language education as required by s. 23. The government was ordered to change certain practices and to provide resources to change the board's school facility. Further, the government's requirement that communications between it and the board be in English violated the Languages Act, and the government breached its fiduciary duty in handling funds transferred to it by the federal government. The government's application asking the trial judge to recuse himself for a reasonable apprehension of bias had been dismissed. The government appealed on the ground that there was a reasonable apprehension of bias on the part of the trial judge.

The Yukon Court of Appeal, in a judgment reported (2014), 351 B.C.A.C. 216; 599 W.A.C. 216, allowed the appeal. Certain comments and attitude displayed by the trial judge during the trial raised a reasonable apprehension of bias. Examples included: making an evidentiary ruling against the government without permitting the government to argue the issue; pressuring the government to settle during the trial by effectively threatening that if it did not there would be a "permanent" written decision that would be critical of the government and its employees; making an unsupported accusation that a government witness tried to intentionally deceive the court; refusing to permit a government witness to give evidence by affidavit on medical grounds (speech problems following stroke); awarding the board almost $1.5 million in costs in a "grossly unfair" procedure where the government could not have foreseen the extraordinary costs claim, could not have been expected to address such a claim in its submissions, and was refused permission to reply to the claim; and the trial judge unjustifiably admonished government's counsel for making submissions that "lacked conviction and/or sincerity"; the trial judge made frequent and overt displays of derision towards the government's counsel. Although the trial judge's historical political involvement in the minority francophone community in Alberta did not give rise to a reasonable apprehension of bias, his ongoing status as a governor of the Fondation franco-albertaine did. To the extent that the trial judge's fact findings depended upon questions of fact or mixed fact and law, they could not be upheld and a new trial was required before a different judge. The court did find that it could rule on three self-contained issues: (1) the trial judge erred in finding that the board could employ a school principal on a fixed term contract rather than a permanent contract as required by the Education Labour Relations Act; (2) the judge erred in finding that s. 23 of the Charter gave the board a constitutional right to choose whether to admit into its school children of persons who did not hold s. 23 rights; and (3) the judge erred in ordering that all communications between the government and board had to be in French. The board appealed the bias finding and the findings on (2) and (3).

The Supreme Court of Canada dismissed the appeal respecting bias, but held that the Court of Appeal erred in deciding issues (2) and (3). Those issues should have been remitted to trial rather than being decided on appeal.

Civil Rights - Topic 2890

Language - Education - Right of minority to manage and control its schools - Under s. 9 of the French Language Instruction Regulation, only "eligible students" were entitled to receive French-language instruction at the French language school in the Yukon - The definition of "eligible students" did not include children of parents who were not rights holders under s. 23 of the Charter - Notwithstanding that, the francophone school board admitted into its school students who were not children of s. 23 rights holders - The Supreme Court of Canada held that the Yukon, like all provinces, had the authority to delegate to a school board the function of setting admission criteria for children of non-rights holders - Some provinces had done so - However, the Yukon had not done so - The court stated that "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 Regulation . This does not preclude the Board from claiming that the Yukon has insufficiently ensured compliance with s. 23, and nothing stops the Board from arguing that the Yukon's approach to admissions prevents the realization of s. 23's purpose ... But that is a different issue from whether the Board has, in the absence of delegation from the Yukon, the unilateral right to decide to admit children other than those who are covered by s. 23 or the Regulation." - See paragraphs 63 to 74.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - [See first Courts - Topic 691 ].

Courts - Topic 688

Judges - Disqualification - Bias - Arising from out of court communications with counsel - [See first Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The trial judge held that the Yukon government failed to accord a francophone school board adequate management and control of French language education as required by s. 23 of the Charter - The government's recusal motion at trial for reasonable apprehension of bias had been dismissed - The Yukon Court of Appeal held that certain comments and attitude displayed by the trial judge raised a reasonable apprehension of bias - Examples included: making an evidentiary ruling against the government without permitting the government to argue the issue; pressuring the government to settle during the trial by effectively threatening that if it did not there would be a "permanent" written decision that would be critical of the government and its employees; making an unsupported accusation that a government witness tried to intentionally deceive the court; refusing to permit a government witness to give evidence by affidavit on medical grounds (speech problems following stroke); awarding the board almost $1.5 million in costs in a "grossly unfair" procedure where the government could not have foreseen the extraordinary costs claim, could not have been expected to address such a claim in its submissions, and was refused permission to reply to the claim; the unjustified criticism of government's counsel for making submissions that "lacked conviction and/or sincerity"; and the frequent and overt displays of derision towards the government's counsel - Although the trial judge's historical political involvement in the minority francophone community in Alberta did not give rise to a reasonable apprehension of bias, his ongoing status as a governor of the Fondation franco-albertaine did - The Supreme Court of Canada agreed that several incidents, viewed in the circumstances of the entire trial, "lead inexorably" to the conclusion that there was a reasonable apprehension of bias - Those incidents included the trial judge's action in relation to the confidentiality of student files, the request to have the witness testify by affidavit, the disparaging remarks, and the unusual costs award and procedure - However, the court disagreed that the trial judge's current service as a governor of the Fondation franco-albertaine substantially contributed to a reasonable apprehension of bias - See paragraphs 38 to 62.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Supreme Court of Canada stated that "the test for a reasonable apprehension of bias ... was ... 'what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly' ... The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. ... Because there is a strong presumption of judicial impartiality that is not easily displaced ... the test for a reasonable apprehension of bias requires a 'real likelihood or probability of bias' and that a judge's individual comments during a trial not be seen in isolation ... The inquiry into whether a decision-maker's conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias ... That said, this Court has recognized that a trial judge's conduct, and particularly his or her interventions, can rebut the presumption of impartiality. ... Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge's identity and experiences not close his or her mind to the evidence and issues. ... The reasonable apprehension of bias test recognizes that while judges 'must strive for impartiality', they are not required to abandon who they are or what they know ... A judge's identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them." - See paragraphs 20, 22, 25 to 27, 33, 34.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The trial judge held that the Yukon government failed to accord a francophone school board adequate management and control of French language education as required by s. 23 of the Charter - The Yukon Court of Appeal held that the trial judge's current service as a governor of the Fondation franco-albertaine was one of the reasons for finding a reasonable apprehension of bias - The Supreme Court of Canada disagreed - The Fondation had no direct involvement in the community whose rights were being determined and no affiliation with any organization implicated in the trial - The court stated that "While I fully acknowledge the importance of judges avoiding affiliations with certain organizations, such as advocacy or political groups, judges should not be required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest. ... They should not and cannot be expected to leave their identities at the courtroom door. What they can be expected to do, however, is remain, in fact and in appearance, open in spite of them. ... Membership is an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise. ... While I agree that consideration of the trial judge's current role as a governor of the organization was a valid part of the contextual basis inquiry in this case, I am not persuaded that his involvement with an organization whose functions are largely undefined on the evidence, can be said to rise to the level of a contributing factor such that the judge, as the Court of Appeal said, 'should not have sat on [this case]'" - See paragraphs 56 to 62.

Courts - Topic 693

Judges - Disqualification - Bias - Evidence - [See first Courts - Topic 691 ].

Cases Noticed:

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 20].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 21].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 21].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 21].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 21].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 21].

Ruffo (Juge) v. Conseil de la magistrature et autres, [1995] 4 S.C.R. 267; 190 N.R. 1, refd to. [para. 21].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 21].

R. v. Lippé - see Lippé et autres v. Québec (Procureur général) et autres.

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 21].

Cojocaru v. British Columbia Women's Hospital and Health Center et al., [2013] 2 S.C.R. 357; 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 25].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 25].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd to. [para. 27].

Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.), refd to. [para. 28].

Take and Save Trading CC v. Standard Bank of SA Ltd., 2004 (4) S.A. 1 (S.C.A.), refd to. [para. 28].

South African Commercial Catering and Allied Workers Union v. Irvin & Johnson Ltd. (Seafoods Division Fish Processing), 2000 (3) S.A. 705, refd to. [para. 35].

Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451 (C.A.), refd to. [para. 59].

Mahe et al v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 67].

Nguyen et al. v. Quebec (Minister of Education, Recreation and Sports), [2009] 3 S.C.R. 208; 394 N.R. 255; 2009 SCC 47, refd to. [para. 67].

Quebec Association of Protestant School Boards, Protestant School Board of Greater Montreal and Lakeshore School Board v. Quebec (Attorney General) et al., [1984] 2 S.C.R. 66; 54 N.R. 196, refd to. [para. 67].

Solski v. Quebec (Attorney General), [2005] 1 S.C.R. 201; 331 N.R. 256, refd to. [para. 67].

Conseil scolaire francophone de la Colombie-Britannique et al. v. British Columbia et al., [2013] 2 S.C.R. 774; 447 N.R. 204; 341 B.C.A.C. 1; 582 W.A.C. 1, refd to. [para. 68].

Statutes Noticed:

Languages Act, R.S.Y. 2002, c. 133, sect. 6(1) [para. 75].

Authors and Works Noticed:

Aharon, Barak, The Judge in a Democracy (2006), pp. 103, 104 [para. 36].

Canadian Judicial Council, Commentaries on Judicial Conduct (1991), p. 12 [para. 36].

Canadian Judicial Council, Ethical Principles for Judges (1998), pp. 32 [para. 54]; 33 [para. 60].

Cardozo, Benjamin N., The Nature of the Judicial Process (1921), p. 168 [para. 59].

Laskin, Bora, The Common Law is Alive and Well - And, Well? (1975), 9 L. Soc'y. Gaz. 92, p. 99 [para. 33].

Minow, Martha, Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors (1992), Wm. & Mary L. Rev. 1201, p. 1217 [para. 34].

Webber, Jeremy, The Limits to Judges' Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr. Justice Berger (1984), 29 McGill L.J. 369, p. 389 [para. 24].

Counsel:

Roger J.F. Lepage, Francis P. Poulin and André Poulin-Denis, for the appellant;

François Baril, Maxime Faille and Mark Pindera, for the respondent;

Dominique A. Jobin, for the intervener, the Attorney General of Quebec;

Karrie Wolfe, for the intervener, the Attorney General of British Columbia;

Alan F. Jacobson and Barbara C. Mysko, for the intervener, the Attorney General for Saskatchewan;

Guy Régimbald, for the intervener, the Attorney General of the Northwest Territories;

Pascale Giguère and Mathew Croitoru, for the intervener, the Commissioner of Official Languages of Canada;

Robert W. Grant, Q.C., Maxine Vincelette and David P. Taylor, for the interveners, Conseil scolaire francophone de la Colombie-Britannique and Fédération des parents francophones de Colombie-Britannique;

Nicolas M. Rouleau and Sylvain Rouleau, for the intervener, Fédération des parents francophones de l'Alberta;

Mark C. Power and Justin Dubois, for the interveners, Fédération nationale des conseils scolaires francophones and Fédération des communautés francophones et acadienne du Canada.

Solicitors of Record:

Miller Thomson, Regina, Saskatchewan, for the appellant;

Gowling Lafleur Henderson, Ottawa, Ontario; Attorney General of the Yukon Territory, Whitehorse, Yukon, for the respondent;

Attorney General of Quebec, Quebec, Quebec, for the intervener, the Attorney General of Quebec;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, the Attorney General of the Northwest Territories;

Office of the Commissioner of Official Languages, Gatineau, Quebec, for the intervener, the Commissioner of Official Languages of Canada;

Gall, Legge, Grant & Munroe, Vancouver, British Columbia; Power Law, Vancouver, British Columbia, for the interveners, Conseil scolaire francophone de la Colombie-Britannique and Fédération des parents francophones de Colombie-Britannique;

Nicolas M. Rouleau, Toronto, Ontario; WeirFoulds, Toronto, Ontario, for the intervener, Fédération des parents francophones de l'Alberta;

Power Law, Vancouver, British Columbia, for the interveners, Fédération nationale des conseils scolaires francophones and Fédération des communautés francophones et acadienne du Canada.

This appeal was heard on January 21, 2015, before McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada.

On May 14, 2015, Abella, J., delivered the following judgment in both official languages for the Court.