The Supreme Court of Yukon gave the concept of “
rights holders” a large and liberal interpretation and determined the degree of management and the facilities to be granted to the minority community.
The Commission scolaire francophone du Yukon No. 23 (CSFY) launched proceedings against the Attorney General of the Yukon Territory (GY), alleging that the GY breached its duties with regard to minority-language education under section 23 of the Canadian Charter of Rights and Freedoms (Charter), the Yukon’s Education ActFootnote 1 and the Yukon’s Languages Act.Footnote 2 Multiple orders were sought to remedy these breaches.
To determine whether section 23 of the Charter applied in this case, the Supreme Court of Yukon first had to determine the number of rights holders. The Court then had to determine the degree of management and the facilities that should be granted to the CSFY based on the number of rights holders and the particular context of the Yukon. Also at issue were the GY’s duties to the CSFY under the Languages Act.
b) Number of rights holders
To determine the number of rights holders in the Yukon, the Court reiterated the principles laid down in MaheFootnote 3 and Arsenault-Cameron,Footnote 4 in which the Supreme Court stated that the number of rights holders is somewhere between the known demand and the number of students who could potentially take advantage of the services of minority schools. The Court then analyzed Statistics Canada’s census data, which showed that there were 190 children between the ages of 5 and 17 with at least one parent whose first language was identified as being French. However, the Court noted that the number of rights holders would be higher if the other two categories of section 23 rights holders were taken into account, namely parents who did not identify French as their first language but studied in French, and parents who had a child who was studying or had studied in French. The Court also identified other factors leading to an underestimation of the number of rights holders based on the available statistics. For example, the data could not identify children of exogamous couplesFootnote 5 residing with an Anglophone parent. According to the evidence, the rate of exogamy is very high in the Yukon. Considering all these factors, the Court found that the number of rights holders in the Yukon was actually between 400 and 435, at least double the number identified in Statistics Canada’s last census.
c) Degree of management and control required
The parties disagreed on the degree of management and control required for the CSFY, and on many of the powers that the school claimed. The GY had given the CSFY school board status in 1990, but argued that such a degree of control exceeded the requirements of section 23. On the other hand, the CSFY alleged that the current number of rights holders justified a school board with all the powers provided under the Yukon’s Education Act.
The Court analyzed the particular context of the Yukon, where each school, including Anglophone schools, may become a school board under the territory’s Education Act. Even though the number of students in the CSFY is much lower than in other school boards in Canada, the situation in the Yukon and the legislation in force require that the CSFY have the powers of a school board to ensure substantive equality. Such powers would allow the CSFY to (1) be responsible for all areas related to staff, including the school principal and the conditions of the principal’s contract; (2) establish its own school calendar; (3) manage the French-language professional development of CSFY teachers; and (4) exercise increased control over its budget and facilities.
Finally, the Court determined that the CSFY must be able to offer specialized programs to students, as well as a pre-school program. Although section 23 does not require the government to offer a pre-school program to official language minority communities, such a program is an appropriate remedy in the circumstances to ensure the survival of the school and the vitality of the community.
d) Management of admissions
The parties also disagreed on the issue of responsibility for managing admissions to the CSFY, more specifically the admission of children who are not rights holders under section 23 of the Charter. While the GY argued that the power to manage admissions is an aspect of its constitutional jurisdiction over education, the CSFY submitted that the right to manage admissions is related to language and culture and therefore should be its responsibility. The Court noted that there is no case law directly on point regarding the right to manage admissions to a minority school. Based on the general principles of Arsenault-Cameron,Footnote 6 according to which it is up to the school board, as it represents the minority community, to decide what is more appropriate for the community from a cultural and linguistic perspective, the Court held that the management and control of admissions of rights holders and non-rights holders was first and foremost the responsibility of the CSFY. According to the Court, the province may not interfere with this power, except in two specific situations: (1) where the minority official language threatens to assimilate the majority language in the territory, as the Supreme Court found with regard to Quebec in SolksiFootnote 7 and Nguyen;Footnote 8 or (2) where the minority school no longer fulfills its mandate under section 23.
e) Construction of an independent secondary school
The CSFY submitted that the number of rights holders and the principle of substantive equality warranted construction of an independent secondary school because of a lack of space in existing facilities, and because of the importance of separating primary students from secondary students. The Court found that there was a lack of facilities and specialized spaces for the secondary program, but recognized that new construction financed with public funds would have to be undertaken prudently. It therefore opted for an expansion of the existing building. Although the primary and secondary programs would remain under the same roof, there would be ways of separating the two programs.
f) Language of work
The Supreme Court of Yukon determined that the Department of Education’s policy, which makes English the language of work in the Yukon public service and prevents communication in French between the GY and the CSFY, is contrary to section 6 of the Yukon’s Languages Act. Section 6 states as follows:
6(1) Any member of the public in the Yukon has the right to communicate with, and to receive available services from, any head or central office of an institution of the Legislative Assembly or of the Government of the Yukon in English or French . . . .
According to the Court, this provision is modeled on section 20 of the Charter, which confers the constitutional obligation to serve the public in both official languages. Moreover, the objectives of the Languages Act are similar to those of the Charter and the Languages Act creates quasi-constitutional duties that prevail over the departmental policy.
g) Fiduciary duty
The CSFY argued that the GY owed it a fiduciary duty with regard to the funding received from Canadian Heritage for French first-language instruction, and that the GY breached this duty in reallocating part of that funding to the French second-language program. The Court considered the conditions necessary for finding a fiduciary relationship (reasonable expectation; duty of government towards a group, arising from statute or by implication; discretionary power of the government with regard to a defined group of persons; power over a legal or substantial practical interest of that group) and established that, in this case, such a relationship existed between the GY and the CSFY. According to the Court, the GY breached its fiduciary duty in allocating funds intended for the French first-language instruction program to the French second-language program.
As a result of these findings, the Court issued several orders compelling the government to comply with section 23 of the Charter and remedy the breaches.