Appeal decision disappoints French board
Lawyer suggests school expansion case may go to Supreme Court of Canada
Randi Beers
Northern News Services
Published Wednesday, January 14, 2015
SOMBA K'E/YELLOWKNIFE
The NWT francophone community's six-year-old court battle over improved school facilities and the power to determine who can attend them may be heading for a showdown in the Supreme Court of Canada.
Commission scolaire francophone president Suzette Montreuil and L'association des parents ayants droit de Yellowknife president Jacques Lamarche say they are "very disappointed" in a NWT Court of Appeal rendered against them Jan. 9. - Randi Beers/NNSL photo |
Describing the territorial government's partial appeal victory last week as a "major disappointment," representatives from the Commission scolaire francophone said they're considering whether to take the case all the way to the Supreme Court during a press conference Monday.
The commission initially won an NWT Supreme Court trial case against the GNWT in 2012, seeking control over student admission. Parents of French-speaking students were also awarded with a $15-million expansion of Ecole Allain St.-Cyr to a capacity of 250 students with a gymnasium, science lab, learning space for special needs students and a larger playground. The school currently shares these facilities with William McDonald Middle School. NWT Supreme Court Justice Louise Charbonneau also ordered the government to expand facilities at Ecole Boreale in Hay River.
On Jan. 9, NWT Court of Appeal judges Jack Watson and Frans Slatter overturned most of that decision, with Justice Patricia Rowbatham in dissent.
The judges concluded the commission does not have the right to exclusive control of admissions, but kept the GNWT on the hook for some of the expansions at Ecole Allain St. Cyr. The decision calls for the construction of a suitable gymnasium as well as a space that can be used to teach students with special needs. The court added long-term arrangements must be made to provide access to the other specialized facilities the commission seeks.
"The numbers warrant nothing more," states the decision, written by Slatter.
The appeal court rejected Charbonneau's order for other amenities, including the science lab, a larger playground and a classroom kitchen.
Maxime Faille, lead legal counsel on the GNWT's appeal, said he was confident they had a strong case.
"It's always hazardous to make predictions," he said. "Obviously we felt we had a very strong argument or the government wouldn't have appealed in the first place, but one never knows."
There were actually two appeal decisions handed down Friday: one dealt specifically with the Supreme Court decision to expand Allain St.-Cyr, while the other answered the GNWT's appeal of the order granting the Commission scolaire greater control over enrolment and improvements for Hay River's French school. Surprisingly, in a point noted by the court of appeal judges, the Commission scolaire was not a party to the Ecole Allain St.-Cyr case. That case was launched by the Federation franco-tenoise, Yellowknife's French daycare and a group called l'Association des parents ayant droit de Yellowknife.
Faille said the government legal team felt it had a strong argument, that the number of students at the school didn't justify the construction of the gym. However, he said, they recognize it was a close call.
"Everyone wants their schools to be the best," he said. "We accept that."
Both decisions depend on different interpretations of Section 23 of the Canadian Charter of Rights and Freedoms, which protects the rights of English and French speakers, where they are the minority, across Canada. In this case, the charter guarantees students who started their education in French to continue in the language. As well, students for whom either parent was educated in French are extended that right.
Roger Lepage, the commission's lawyer, said he believes - and he is confident the Supreme Court of Canada will agree - that the appeal court's interpretation of Section 23 is wrong.
"From our perspective, (Charbonneau) rendered a thoughtful opinion and we are not happy the majority of the Court of Appeal has overturned the decision," he said.
"We are heartened by (Rowbatham's) dissent and we believe it clearly shows the legal errors made by the majority."
Lapage argues the judges interpreted Section 23 too narrowly. He said when the judges looked at enrolment numbers at Ecole Allain St-Cyr and Ecole Boreale in Hay River, they are required to consider potential future enrolment.
"The second major error (made by these judges) is that Section 23 has to be interpreted purposefully to ensure equality between the two language groups in Canada," he added.
"And they must ensure equivalence in infrastructure and programming. Both schools do not have gymnasiums, science labs or space for special education."
In 2013, the GNWT asked Yellowknife Education District No. 1 to a transfer a school - pointing in particular to William McDonald Middle School, which only had 38 per cent utilization rate that year - in hopes that it would satisfy the French community's desire for greater facilities. This touched off a facilities review that ultimately led Yk1 to maintain the status quo in December after parents demanded the school board not give up a school.
Suzette Montreuil, commission president, said she has not calculated court costs and doesn't know if or how the costs will affect its operations.
"Without exact numbers I can't speak to that issue," she said.
"But the point we are making is that we are serious about the needs of our students and we will put the resources in place to meet those needs."
