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--- nt:rodgers_et_al_c_gtno_2025_cstno_44 [2026/08/18 21:16] – victorzhou
+++ nt:rodgers_et_al_c_gtno_2025_cstno_44 [2026/08/21 22:42] (current) – victorzhou
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 [10] There was an exchange of letters between the parents and the Minister where the parents sought to address the issues raised by the Minister.
-[11] Finally, on March 28, 2025, the Minister refused to put into place an FLP education program in Fort Smith. The Applicants are of the view that by refusing the parents' request, the Minister has abdicated their responsibilities proscribed by section 23 of the //Charter//. On May 28, 2025, they filed the present matter and a motion for a mandatory interlocutory injunction.
+[11] Finally, on March 28, 2025, the Minister refused to put into place an FLP education program in Fort Smith. The Applicants are of the view that by refusing the parents' request, the Minister has abdicated their responsibilities prescribed by section 23 of the //Charter//. On May 28, 2025, they filed the present matter and a motion for a mandatory interlocutory injunction.
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 ==== (1) The publication ban notice ====
-[15] The practice directive of the Supreme Court of the Northwest Territories of August 24, 2020 on publication bans provides that all parties who intend to bring a notice of application for a publication ban shall file a notice at least 10 clear days before the date of the hearing where the application will be heard. They must also given written notice to all parties who may be affected by such an order (including the media) at least 7 clear days before the hearing.
+[15] The practice directive of the Supreme Court of the Northwest Territories of August 24, 2020 on publication bans provides that all parties who intend to bring a notice of application for a publication ban shall file a notice at least 10 clear days before the date of the hearing where the application will be heard. They must also give written notice to all parties who may be affected by such an order (including the media) at least 7 clear days before the hearing.
-[16] The counsel for the Applicants confirmed that they did not take these required steps. They did not suggest that it would be appropriate to make any exceptions to these requirements. Therefore I am not in a position to grant the Applicants a publication ban order.
+[16] The counsel for the Applicants confirmed that they did not take these required steps. They did not suggest that it would be appropriate to make any exceptions to these requirements. Therefore I am not prepared to grant the Applicants a publication ban order.
-=== (2) The McKenna affidavit ===
+==== (2) The McKenna affidavit ====
 [17] The Applicants oppose the admission of Paul McKenna's affidavit, which the Respondent filed in response to the Applicants' motion to shorten time limits. According to them, this affidavit mainly consists of argument and does not constitute evidence.
@@ Line 86: / Line 86: @@
 </blockquote>
-[19] The deponent Paul McKenna is the Director of the Legal Division of the Department of Justice of the Government of the Northwest Territories. His affidavit explains the difficulties that would arise from the the shortened time limits that the Applicants propose for the hearing of their application for a mandatory interlocutory injunction to commence an FLP education program at the start of the school year in September 2025.
+[19] The deponent Paul McKenna is the Director of the Legal Division of the Department of Justice of the Government of the Northwest Territories. His affidavit explains the difficulties that would arise from the shortened time limits that the Applicants propose for the hearing of their application for a mandatory interlocutory injunction to commence an FLP education program at the start of the school year in September 2025.
+[20] It is true that certain portions of the McKenna affidavit resemble argument and contain understanding of facts that the deponent would not be allowed to state in evidence if they were a witness at court. However, I find that the majority of the contents are appropriate and relevant, and thus admissible. The content which does not comply with the rules will be given no weight in my decision.
+==== (3) Motion for an accelerated hearing ====
+[21] The Applicants maintain that they have clearly established that there are a sufficient number of right-holder children necessary to justify the opening of an FLP education program. They requested such a program in September 2024 and were refused. Next, they attempted to respond to the Respondent's objections and concerns but again were refused, this time for the upcoming school year.
+[22] According to the Applicants, it is urgent that the FLP program be implemented so that the children of right holders do not lose another school year in French which they have the right to. They have already been waiting for two years.
+[23] The Applicants explain that the Defendant has been aware of the issue for some time and should therefore be ready to respond to the motion in a very short amount of time. Therefore, the court should shorten the time limits in this matter.
+[24] Finally, the Applicants maintain there are several examples of decisions where similar injunctions were obtained in timelines as short as they propose: see //Conseil Scolaire Fransaskois De Zenon Park v. Saskatchewan//, 1998 CanLII 13468, 170 Sask. R. 103 (S.K.Q.B.), aff. in part by (1998) 1998 CanLII 12371 (SK CA), 172 Sask. R. 257 (S.K.C.A.); //Association des parents ayants droits de Yellowknife c. Territoires du Nord-Ouest (Procureur Général)//, 2005 NWTSC 58 (CanLII), 2005 CSTNO 58; and //Commission scolaire francophone, Territoires du Nord-Ouest et al. c. Procureur Général des Territoires du Nord-Ouest//, 2008 CSTNO 53, 180 C.R.R. 249.
+[25] The Respondent opposes the shortened time limits and raises procedural and practical problems. First, they note that, currently, it is the Fort Smith District Education Authority (FSDEA) who has jurisdiction over schooling in Fort Smith. The Commission scolaire francophone des Territoires du Nord-Ouest (CSFTNO), who according to the Applicants is the authority that should be mandated to offer French education in Fort Smith, only has jurisdiction in Yellowknife and Hay River, and not in Fort Smith: //Commission Scolaire Francophone, Territoires du Nord-Ouest Regulations//, R-071-2000, s. 3. Even though the Respondent is in the process of modifying the //CSFTNO Regulations// as a part of a general revision of the legislation of the Government of the Northwest Territories in regards to article 23 of the //Charter// and to confer jurisdiction on the CSFTNO to offer FLP programs in Fort Smith, the efforts to make such a change have not been and cannot be completed in the time proposed by the Applicants.
+[26] Additionally, the agreement on the sharing of spaces that the Applicants seek implicitly requires that the FSDEA control and manage the premises in question. Therefore, the Respondent maintains that the FSDEA and the CSFTNO need to be added as parties to this matter and this application for an injunction, which would necessitate delays.
+[27] The Respondent also highlights sought orders' potential implications on a fair and equitable process which allows the Respondent to prepare a complete file. The schedule proposed by the Applicants would not allow the Respondent to make full answer and defence.
+[28] According to the Respondent, even if the motion could be heard and a decision in favour of the Applicants was issued before the end of July, it is simply impossible to put an FLP program in place starting in September 2025. The obstacles such as the hiring of teachers, the renovations of the premises and the procurement of teaching materials are too onerous.
+[29] After the Minister's refusal to open an FLP program in Fort Smith, the Applicants took two months to prepare their application and motion with supporting evidence. The Respondent ought to have at least the same amount of time to prepare its documentation in reply. It is particularly difficult for the Respondent to prepare its materials during the summer when a larger number of its personnel are on vacation. Additional time is needed for cross-examinations and book preparation. Therefore, the motion could not be heard until the end of September.
+=== Law on accelerated hearings ===
+[30] The court may, in exercising its discretion, allow a request for an accelerated hearing. Everything depends on the facts of the case. The factors to consider in an application for an accelerated hearing are the following:
+  * 1. the seriousness of the issue raised;
+  * 2. the nature of the relief sought;
+  * 3. the irreparable harm or damages that may be suffered;
+  * 4. whether the moving party has proceeded with due dispatch.
+See //6165347 Manitoba Inc. v. Vandal//, 2017 MBCA 81 at para. 8.
+[31] The balance between the advantages and the prejudice that may arise from such an order must also be considered: //May v. CBC/Radio Canada//, 2011 FCA 130, 231 C.R.R. (2d) 369, at para. 13; //Tyson Creek Hydro Corp. v. Kerr Wood Leidal Associates Ltd.//, 2013 BCCA 476, at para. 8.
+===== C. ANALYSIS =====
+==== (1) Seriousness of the issue raised ====
+[32] The essence of the Applicants' argument is that if, as they maintain, they have the right provided by article 23 of the //Charter// to receive french as a first language schooling in Fort Smith, the refusal of an accelerated hearing will cause their children to lose their right to a French-language education for the 2025-2026 school year. This constitutes irreparable harm.
+[33] The issue raised is without a doubt a serious issue: assuming that the Applicants have a right to French-language schooling pursuant to article 23 of the //Charter//, the delays which accumulate before the implementation of such an education infringes on their rights. As explained by the Supreme Court of Canada in //Doucet-Boudreau v. Nova Scotia (Minister of Education)//, 2003 SCC 63, [2003] 3 S.C.R. 3, at para. 29, the rights guaranteed by article 23 are "particularly vulnerable to government delay or inaction"((//Doucet-Boudreau v. Nova Scotia (Minister of Education)//, 2003 SCC 63. CanLII. [[https://canlii.ca/t/4nx4]] (accessed August 18, 2026).)) and the accumulation of delay before measures are taken to counteract the "[TRANSLATED] cultural erosion" increases the risk of such erosion.
+[34] In their submissions, the Applicants seem to assume that it will be established that their rights have been infringed. On the contrary, the extent of the rights guaranteed by article 23 in the context of the location of Fort Smith remains unresolved in this case and makes up the heart of this dispute. Even though the Applicants characterize the remedies sought as interlocutory, I note that one remedy sought is a declaration "[TRANSLATION] that the refusal to open an FLP program in Fort Smith is contrary to the obligations that s. 23 of the //Charter// imposes on the government of the NWT". In my opinion, issuing such a declaration is equivalent to giving a final decision on the central question of the dispute. This would involve determining that the number of students belonging to the linguistic minority in Fort Smith justifies the implementation of the program they are seeking. This fact is vigorously contested by the Respondent, who maintains that there are not enough children in Fort Smith to justify an FLP program. In fact, the Respondent notes that the evidence filed in support of the application only identifies four school-aged children of right-holders and if the injunction is granted, $250,000 per student per year is sought for funding, an amount that the Respondent characterizes as unreasonable.
+==== (2) Nature of the relief sought ====
+[35] In my view, the nature of the relief sought is equivalent to an application for summary judgment on the issue of the right to an FLP education program in Fort Smith along with an implementation order. Thus, in the circumstances, the nature of the relief sought pursuant to s. 24(1) of the //Charter// militates against the acceleration of the hearing.
+==== (3) Irreparable prejudice ====
+[36] In regards to the third factor, the irreparable harm or damages that may be suffered, I accept that the refusal of an accelerated hearing may result in significant consequences for the Applicants. If the hearing does not proceed in an expeditious manner and the Applicants are successful, the decision would not be rendered in time for an FLP education program to be put into place for the start of the school year in September 2025. In this way, even though this is a case management conference and only deals with the schedule, the court finds itself in a difficult position. A decision rejecting the Applicants' proposed schedule has the effect of dismissing one relief sought in the application, the implementation of an FLP program as of September 2025.
+[37] On the other hand, there would be potentially-serious consequences for the Respondent if a mandatory interlocutory injunction were granted. Notably, the obligation to provide an FLP program would be established and the Respondent would be required to incur significant expenses. This presumably requires an extensive review of the merits: //R. v. Canadian Broadcasting Corp.//, 2018 SCC 5, [2018] 1 S.C.R. 196, at paras. 15-16. The court requires a sufficient file to conduct such an extensive review and I find that this is contrary to the scheduled proposed by the Applicants.
+==== (4) Whether the moving party has proceeded with due dispatch ====
+[38] In this case, in consideration of the exchanges between the parent Applicants and the Minister over the course of 2024 and 2025, the time which the Applicants took to file their application does not have significant weight. However, since the Applicants benefited from two months of preparation time for their claim and their application for an injunction, with supporting evidence, a schedule giving the Respondents less than two weeks to prepare a complete defence seems unreasonable to me.
+==== (5) The circumstances of the matter do not lend themselves to an accelerated hearing ====
+[39] In my view, the hearing of an application for a mandatory interlocutory injunction within the schedule proposed by the Applicants, in consideration of the circumstances, is without precedent.
+[40] The cases which the Applicants' counsel referred to involve situations of completely different character. When the injunction was granted in //Commission scolaire francophone, Territoires du Nord-Ouest et al. c. Procureur Général des Territoires du Nord-Ouest//, the Commission scolaire francophone already had jurisdiction and they were already operating a francophone school (which is not the case in Fort Smith). The dispute was regarding the lack of space in this school, and whether this problem infringed the rights protected by article 23 of the //Charter//. Once granted, the order for the interlocutory injunction proved difficult to implement and was subject to a motion to modify a short time later: see //Commission scolaire francophone, Territoires du Nord-Ouest et al. c. Procureur Général des Territoires du Nord-Ouest, (No. 3)//, 2008 CSTNO 66.
+[41] Similarly, in //Association des parents ayants droits de Yellowknife c. Territoires du Nord-Ouest (Procureur Général)// and //Conseil Scolaire Fransaskois de Zenon Park v. Gouvernement de la Saskatchewan//, there were no issues in obtaining the premises and facilities necessary to satisfy the minority schools' existing needs.
+[42] The application in this case is completely different. The Applicants seek a new program with all of its needs within a few weeks, including the development of the premises and the facilities.
+[43] Even if I were to allow the motion to shorten the time limits, in consideration of the limited time that would be available to take the steps to open an FLP program in Fort Smith, such a program would not be ready by September 2025.
+[44] The Applicants do not specify how the FLP program would be structured, who would be responsible for its supervision, nor how it would be integrated into the government or the existing legal structure. As explained by the Defendant, there are major obstacles such as the hiring of teaching personnel and the development of the premises. The uncertainties which arise from the lack of information on how these obstacles would be overcome leaves open the possibility that the quality of education offered would be affected in a negative manner if the court issued an order requiring the opening of an FLP program in Fort Smith without allowing for a reasonable delay for its implementation. Finally, in the case that the remedies sought by the Applicants could bind the FSDEA and/or the CSFTNO, their absence could have consequences on the relief that is granted: //Association des parents ayants droit de Yellowknife v. Northwest Territories (Attorney General)//, 2015 CanLII 170 (NWT CA), 2015 NWTCA 2, 80 Admin. L.R. (5th) 75, at para. 6, leave to appeal to SCC refused, [2015] S.C.C.A. No. 95.
+[45] In conclusion, the Applicants' motion to shorten the time limits of the schedule is dismissed. The Respondent indicated that a schedule allowing for a hearing of the injunction application at the end of September or the start of October 2025 would be reasonable. Given that I did not accept the deadlines sought by the Applicants, I do not know whether they will want to add to their file. I ask the parties to discuss a reasonable schedule allowing for a hearing on the merits of the injunction around the end of September or the start of October 2025. If the parties cannot agree, I remain available for another case management conference to set the schedule.
+[46] I give the parties until June 30, 2025 to communicate to the court a schedule to which they agree, or ask for a case management conference.
+[47] I note that the Respondent has suggested, subject to obtaining the authorization of their client, that it would be possible to set a schedule to hear the entire case on the merits around the end of November 2025. It is up to the parties whether they want to pursue this option.
+===== D. CONCLUSION =====
+[48] For these reasons, the application for an accelerated hearing in accordance with the Applicants' proposed schedule is dismissed.
+[49] The parties are asked to propose to the court, by June 30, 2025, a new schedule anticipating a hearing on the merits of the injunction application around the end of September or the start of October 2025. If the parties cannot agree on such a schedule, they must request a case management conference with the purpose of setting a schedule.
+[50] The costs of this motion will be in the cause.
+Paul S. Rouleau \\
+J.S.C.
+Dated in Yellowknife, NT this \\
+this 18th day of June 2025
+Mr. Francis Poulin, for the Applicants \\
+Mr. Maxime Faille, for the Respondent