Source: CanLII

Rodgers et al c GTNO, 2025 CSTNO 44
Date: 2025-06-18
Docket: S-1-CV-2025-000 135

BETWEEN:

Renée Rodgers, Geneviève Côté and Parents pour l’Instruction en français à Fort Smith

-and-

Gouvernement des Territoires du Nord-Ouest

REASONS FOR JUDGMENT
(APPLICATION TO SHORTEN TIME LIMITS)

Heard: June 11, 2025 (by teleconference)

[1] The Applicants have brought an application for a mandatory interlocutory injunction:

• 1. Declaring that the Respondent's refusal to operate a French as a First Language (FLP) program in Fort Smith is contrary to its obligations under article 23 of the Canadian Charter of Rights and Freedoms;
• 2. Requiring the Respondent to set up an FLP program in the municipality of Fort Smith beginning in September 2025 and to run this program for three years. There are specific implementation details of this program included in the application.

[2] The Applicants argue that the court may grant this relief pursuant to subsection 24(1) of the Charter.

[3] This motion is brought in the context of an action by the Applicants for declarations of rights pursuant to article 23 of the Charter in order to establish the right to a distinct francophone school in Fort Smith as well as damages.

[4] This case management conference was held to discuss the Applicants' application for an order to shorten the time limits set for the preliminary steps and the hearing on the merits.

[5] These reasons do not address the procedural aspects of the application, but rather the deadlines leading up to the hearing of the application for relief pursuant to subsection 24(1) of the Charter. However, given the factors to be considered for this motion, I consider and discuss specific substantial aspects of the application. This being said, in this decision, I do not decide on the merits of the substantive issues and the Charter remedies sought.

[6] For the reasons that follow, I am of the view that the motion to shorten time limits should be rejected.

[7] The Applicants identify as parents entitled to the right to minority language education guaranteed by article 23 of the Charter exercising their constitutional linguistic rights. They argue that other parents who do not claim to be entitled to this right, but whose children could qualify under an admission regime at an FLP school established by the territorial government, support their application.

[8] In June 2024, the parent Applicants sent a formal demand letter to the Minister of Education, Culture and Employment and the premier of the Northwest Territories demanding the implementation of an FLP education program in Fort Smith commencing in September 2024.

[9] In their letter of August 2, 2024, the Minister refused their demand for the 2024-2025 school year. They explained, among other things, that it would not have been possible to establish such a program in such little time.

[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.

[12] In their notice of motion, the Applicants argue that given the urgency of the relief sought, the court should impose the following deadlines:

• (a) filing and service of the Respondent's affidavits (June 9, 2025)
• (b) cross-examinations on the affidavits, if necessary (June 13, 2025)
• (c) filing and service of the Applicants' book (June 17, 2025)
• (d) filing and service of the Respondent's book (June 25, 2025)
• (e) filing and service of the reply, if necessary (June 26, 2025)
• (f) date of virtual hearing of the motion on the merits by WebEx (June 27, 2025)

[13] The current case management conference was held on June 11. Given the delay in scheduling this conference, the Applicants' proposed deadlines are no longer up-to-date. However, according to them, it is still possible to set deadlines which would allow a decision on the merits with enough time for the implementation of an FLP education program which starts in September 2025. They ask the court to set such deadlines.

[14] Additionally, at the start of the conference, the Applicants' counsel brought up two additional requests: that the court issue a publication ban order and that the affidavit filed by the Respondent (“[TRANSLATED] McKenna affidavit”) be deemed inadmissible, or in the alternative, that I give little or no weight to it.

[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.

[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.

[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.

[18] Article 373 of Rules of the Supreme Court of the Northwest Territories, NWT Reg 010-96 describes what is permitted in a filed affidavit:

373. (1) Subject to subrule (3), a deponent may state in an affidavit only what the deponent would be permitted to state in evidence as a witness in court.

…

(3) An affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.¹⁾

[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.

[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.