Bélanger v College of Physicians and Surgeons of Ontario
Facts
Dr. Bélanger was the subject of a disciplinary procedure before the Discipline Committee (the Committee) of the College of Physicians and Surgeons of Ontario (the College). Based on section 86 of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, SO 1991, c 18 (the Code), Dr. Bélanger requested a bilingual hearing before a discipline panel whose members could understand and speak French without the use of interpretation services. Subsection 86(1) of the Code stipulates that “[a] person has the right to use French in all dealings with the College” and subsection 86(4) subjects this right to “the limits that are reasonable in the circumstances.”
In response to Dr. Bélanger’s request, the College noted that it was not possible to form a fully bilingual panel and that, therefore, it would be necessary to use interpreters for the hearing. According to the College, it was impossible to form a bilingual panel, because the Code requires that two individuals appointed to the Council of the College by the Lieutenant Governor in Council must sit on the discipline panel and that only one bilingual individual had been appointed to the Council by the Lieutenant Governor in Council.
Thereafter, Dr. Bélanger filed a preliminary motion before the Committee to obtain an order confirming that his hearing must be held before a panel whose members could understand and speak French. The Committee determined that section 86 of the Code does not grant Dr. Bélanger the right to a hearing before a bilingual panel and that even if that were the case, the use of interpretation and translation services constitutes a reasonable limit to this right. The Committee therefore stated that Dr. Bélanger’s hearing would take place before a panel that was not bilingual, with the assistance of interpreters.
Dr. Bélanger submitted an application for judicial review to have the Committee’s decision overturned, and to obtain a declaration that section 86 of the Code granted him the right to a hearing before a panel whose members could understand and speak French without the use of an interpreter.
Decision
The Divisional Court of Ontario panel granted the application for judicial review and overturned the Committee’s decision. The panel rendered a declaration confirming that Dr. Bélanger had a presumptive right, pursuant to subsection 86(1) of the Code, to a disciplinary hearing before a panel whose members could understand and speak French without the use of interpreters or translation services, but that this right was subject to limits that were reasonable in the circumstances within the meaning of subsection 86(4). The question of the reasonable limits in the circumstances was referred back to the Committee.
Standard of review
Justice Favreau, writing on behalf of the panel, found that the correctness standard of review applied to the interpretation of subsection 86(1) of the Code. According to Justice Favreau, the correctness standard is justified by the fact that subsection 86(1) involves language rights. Given the importance of these rights, it is essential that they be addressed in a consistent manner. Therefore, the interpretation of subsection 86(1) raises a general question of law of central importance to the legal system as a whole. Justice Favreau specified that even if the reasonableness standard applied, she would find the Committee’s decision unreasonable. Justice Favreau applied the reasonableness standard to the interpretation of subsection 86(4) of the Code, because determining reasonable limits to the right to use French in dealings with the College raises questions of fact and gives rise to an exercise of discretion.
Reasons
In her reasons, Justice Favreau confirmed that the analysis of section 86 of the Code is conducted in two stages. The first is to analyze the scope of the right to use French set out by subsection 86(1). The second is to determine the reasonable limits of this right, pursuant to subsection 86(4).
With respect to the first step, Justice Favreau found that the Committee’s interpretation of subsection 86(1) was incorrect and unreasonable. She noted that the literal interpretation of subsection 86(1) adopted by the Committee, according to which Dr. Bélanger could exercise his right to use French through interpreters, was incompatible with the case law, which states that language rights must be interpreted liberally and in a manner consistent with the preservation and development of official language communities in Canada. Justice Favreau specified that an interpretation of subsection 86(1) that limits Dr. Bélanger’s right to express himself in French goes against the purpose of language rights. In her opinion, the use of interpreters gives French secondary status and does nothing to promote the preservation and development of French as an official language of Canada. She found that pursuant to its wording and the case law on language rights, subsection 86(1) grants a presumptive right to a disciplinary hearing before a panel whose members could understand and speak French. Justice Favreau also noted that the Committee had made a number of other errors in its interpretation of the scope of the right conferred by subsection 86(1) of the Code.
With respect to the second step of the analysis, Justice Favreau found that the interpretation of paragraph 86(4) adopted by the Committee was unreasonable. The Committee failed to consider the relevant circumstances in the case at hand before finding that a hearing using the services of interpreters would be a reasonable limit to the right provided for in subsection 86(1). Justice Favreau specified that the reasonable limits depend on the specific circumstances at issue, such as, for example, the efforts made by the Council of the College to have a sufficient number of bilingual members appointed, the absence of members of the profession elected who are bilingual or the effects on the public interest of an excessive delay.
Justice Favreau also shared her observations on the application of section 5 of the French Language Services Act, RSO 1990, c F.32 to the College. She confirmed that the College was not an “institution of the Legislature” for the purposes of the French Language Services Act and that, in any case, section 5 of the French Language Services Act added nothing further than section 86 of the Code in determining Dr. Bélanger’s rights.