Yukon Francophone School Board, Education Area #23 v. Attorney General of the Yukon Territory (Charter (Non-criminal) - Official languages, Courts, Judges)

On appeal from the Yukon Court of Appeal (2014 YKCA 4), dated February 11, 2014, setting aside a decision of Ouellette J. (2011 YKSC 57).

The Yukon Francophone School Board is the first and only school board in the Yukon. It has responsibility for one school, École Émilie Tremblay, a French language school founded in 1984. In 2009, the Board sued the Yukon government for what it claimed were deficiencies in the provision of minority language education. The trial judge ruled in the Board’s favour on most issues.

The Court of Appeal concluded that there was a reasonable apprehension of bias on the part of the trial judge based on a number of incidents during the trial as well as the trial judge’s involvement as a governor of a philanthropic francophone community organization in Alberta. Accordingly, it ordered a new trial except on three issues, only two of which were appealed to this Court: the trial judge’s conclusion that, under s. 23 of the Charter, the Board had the unilateral right to set admission criteria so as to include students who are not covered by s. 23; and the trial judge’s decision that the Yukon is required to communicate with the Board in French.

Held (7:0): The appeal from the Court of Appeal’s conclusion that there was a reasonable apprehension of bias requiring a new trial is dismissed, but the Board’s claims pursuant to the Languages Act should be joined with the other issues remitted by the Court of Appeal for determination at a new trial.

The test for a reasonable apprehension of bias is what would a reasonable, informed person think. The objective is to protect public confidence in the legal system by ensuring not only the reality, but the appearance of a fair adjudicative process. Impartiality and the absence of bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind. Because there is a presumption of judicial impartiality, the test for a reasonable apprehension of bias requires a real likelihood or probability of bias. 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. Judges should be encouraged to experience, learn and understand “life” — their own and those whose lives reflect different realities. The ability to be open‑minded is enhanced by such knowledge and understanding. Impartiality thus demands not that a judge discount or disregard his or her life experiences or identity, but that he or she approach each case with an open mind, free from inappropriate and undue assumptions.

In the present case, the threshold for a finding of a reasonable apprehension of bias has been met. 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.

The first was the trial judge’s conduct during an incident where counsel for the Yukon attempted to cross‑examine a witness based on confidential information contained in student files. After hearing some argument on the confidentiality issue, the trial judge told counsel he would entertain additional arguments on the matter the following 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. 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. He both characterized the Yukon’s behaviour as reprehensible and accused counsel for the Yukon of playing games. Viewed in the context of the entire record, the trial judge’s conduct was troubling and problematic.

The trial judge’s treatment of the Yukon’s request to submit affidavit evidence from a witness who had suffered a stroke was also improper. The judge accused counsel for the Yukon of trying to delay the trial, criticized him for waiting half‑way through the trial to make the application, suggested that that the incident amounted to bad faith on the part of the government, and warned counsel for the Yukon that he could be ordered to pay costs personally if he brought the application. There was no basis for the accusations and criticism levelled at counsel and, viewed in the context of the rest of the trial, this incident provides further support for a finding of a reasonable apprehension of bias.

Moreover, the trial judge’s refusal to allow the Yukon to file a reply on costs is highly problematic in the overall context of the trial. After the release of his reasons on the merits, the trial judge required each party to file their costs submissions on the same day. To the Yukon’s surprise, the Board sought not only solicitor‑client costs, but also punitive damages and solicitor‑client costs retroactive to 2002. The trial judge’s refusal to allow the Yukon to file a reply factum is questionable, particularly in light of the fact that the Yukon could not have known the quantum of costs sought by the Board at the time it filed its factum. The judge’s refusal is made all the more worrisome by his decision to award a lump‑sum payment to the Board, in addition to retroactive costs.

All of these incidents, taken together and viewed in their context, would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias.

However, the Court of Appeal erred when it concluded that the trial judge’s current service as a governor of the Fondation franco‑albertaine substantially contributed to a reasonable apprehension of bias. Membership in 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. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.

In the present case, it is difficult to see how, based on the evidence, one could conclude that the Fondation franco‑albertaine’s vision could be said to “clearly align” with certain positions taken by Board in this case or that the trial judge’s involvement in the organization foreclosed his ability to approach this case with an open mind. Standing alone, vague statements about the organization’s mission and vision do not displace the presumption of impartiality. Although consideration of the trial judge’s current role as governor of the Fondation franco‑albertaine was a valid part of the contextual bias inquiry in this case, his involvement with an organization whose functions are largely undefined on the evidence cannot be said to give rise to a reasonable apprehension of bias.

The Court of Appeal’s conclusion that the Board could not unilaterally decide whom to admit to its school should not be disturbed. There is no doubt that a province or territory can delegate the function of setting admission criteria for children of non‑rights holders to a school board. This delegation can include granting a minority language school board wide discretion to admit the children of non‑rights holders. In this case, however, the Yukon has not delegated the function of setting admission criteria for the children of non‑rights holders to the Board. 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.

This, however, 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.

Finally, it is unclear why the Court of Appeal decided that this case was not a suitable vehicle for determination of rights under the Yukon’s Languages Act. The Board’s claims raise significant factual issues that may well lead to a finding that parts of the claims were justified and should be determined at the new trial with the benefit of a full evidentiary record.

Reasons for decision of the Court delivered by Abella J.

Neutral Citation: 2015 SCC 25. Court File No. 35823.