Canada (Commissioner of Official Languages) v Canada (Employment and Social Development)
This case is about the interpretation of parts IV and VII of the Official Languages Act (the Act) and a federal institution’s language obligations as part of a transfer payment agreement with a provincial government.
Background
In 2011, the Fédération des francophones de la Colombie-Britannique (FFCB) filed a complaint with the Commissioner of Official Languages (the Commissioner) alleging that Human Resources and Skills Development Canada (HRSDC) and the Canada Employment Insurance Commission (the Commission) failed to meet their obligations when they entered into and implemented the Canada – British Columbia Labour Market Development Agreement (the Agreement), which was signed in 2008. More specifically, FFCB alleged that the Agreement undermined the equality of services in both official languages and the development of official language minority communities by excluding community organizations providing employment assistance services. The province implemented the new program originating from the Agreement in 2012.
Following the Commissioner’s investigation report concluding that the complaint was founded, FFCB started proceedings before the Federal Court, with the Commissioner as intervener.
Trial decision
The Federal Court dismissed FFCB’s application in 2018. It held that Part IV of the Act did not apply, because British Columbia was acting within its jurisdiction and the federal government did not exercise sufficient control over the delivery of employment assistance services. The Federal Court also ruled that HRSDC and the Commission had met their obligation under Part VII of the Act to take positive measures to implement the federal government’s commitment to official language minority communities. In reaching this conclusion, the trial judge interpreted the obligation to take positive measures as a general obligation to act. In his view, this obligation does not have a defined threshold of specificity or sufficiency. He also concluded that Part VII and section 77 of the Act require the Federal Court to take into account only the facts that existed at the time the complaint was filed to determine the extent of the violation. According to the trial judge, the evidence was not sufficiently clear and compelling to show that there was a negative impact to British Columbia’s official language minority community at the time the complaint was filed, because the Agreement was not yet in effect.
The Commissioner and FFCB appealed this decision to the Federal Court of Appeal.
Decision
Part IV
Based on the LavigneFootnote 1 decisions, the Federal Court of Appeal confirmed the trial judge’s conclusion with respect to British Columbia’s concurring jurisdiction to provide employment assistance services, thus excluding the application of Part IV of the Act.
Part VII
The Federal Court of Appeal set aside the trial judge’s decision regarding Part VII of the Act and concluded that HRSDC and the Commission did not meet their obligation to take positive measures to enhance the vitality of official language minority communities.
According to the Federal Court of Appeal, Part VII of the Act must be applied in the context of a specific factual decision. The trial judge’s opposite interpretation defeats the purpose of Part VII of the Act and renders it meaningless, even in the absence of regulations specifying the manner in which it is to be applied.
The Federal Court of Appeal ruled that the analysis of Part VII of the Act must be guided by the standard of substantive equality and that the objective of preventing the erosion of official language minority communities must guide the positive measures to be taken. It also held that the obligation to take positive measures is ongoing and “applies so long as a federal institution can act towards achieving the intended purposeFootnote 2.”
The Federal Court of Appeal confirmed the applicable legal test suggested by the Commissioner, according to which the obligation set out in Part VII of the Act lends itself to a two-step analysis:
Federal institutions must first be sensitive to the particular circumstances of the country’s various official language minority communities and determine the impact that the decisions and initiatives that they are called upon to take may have on those communities. Second, federal institutions must, when implementing their decisions and initiatives, act, to the extent possible, to enhance the vitality of these communities; or where these decisions and initiatives are susceptible of having a negative impact, act, to the extent possible, to counter or mitigate these negative repercussionsFootnote 3.
Given the circumstances surrounding the signing of the Agreement with British Columbia in 2008—in particular the significant vulnerability of British Columbia’s French linguistic minority community, the importance of Francophone organizations in the provision of employment assistance services for this community, and the absence of any provincial laws, regulations or formal policies to protect French and the Francophone minority in British Columbia—the Federal Court of Appeal concluded that HRSDC and the Commission violated their obligations under Part VII of the Act by signing the Agreement without giving themselves the means to enforce those obligations.
Remedy and disposition
The Federal Court of Appeal ordered that the Agreement be terminated unless it could be renegotiated in compliance with Part VII of the Act. It also ordered that the French linguistic community’s network of employment assistance services be restored, taking into account the community’s current needs. Finally, it stated that the Federal Court will remain seized of the application in order to deal with any issue surrounding the execution of the remedy.