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--- nt:rodgers_et_al_c_gtno_2025_cstno_44 [2026/08/19 05:13] – [Law on accelerated hearings] 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 prepared to grant the Applicants a publication ban order.
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 </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 fin 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.
+[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 ====
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 [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 has not been and cannot be completed in the time proposed by the Applicants.
+[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 allow the Respondent to prepare a complete file. The schedule proposed by the Applicants would not allow the Respondent to make full answer and defence.
+[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 amonut 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.
+[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 ===
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 ==== (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 an irreparable damage.
+[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 "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.
+[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 remain unresolved in this case and make up the height 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.
+[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 ====
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 ==== (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.
+[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 ====