Fédération franco-ténoise v Attorney General of Canada

Historical and political background of the Northwest Territories Official Languages Act

After reviewing the historical background of language rights in the N.W.T., the Court noted that the Northwest Territories Official Languages Act^{Footnote 2} (N.W.T. OLA) “is the result of a delicate political compromise,” since

1. the legislation was adopted to resolve uncertainty surrounding the status of official bilingualism in the N.W.T.;
2. its background attested to the federal government’s commitment to promoting respect for official language rights throughout the country;
3. through its entrenchment, its provisions were sheltered from unilateral attack by a majority in the N.W.T. Legislative Assembly;
4. its adoption as law respected local concerns about the legislative autonomy of the N.W.T.; and
5. the N.W.T. used it as an opportunity to preserve and promote Aboriginal languages through territorial legislative measures and a federal funding commitment^{Footnote 3}.

The Court proceeded with an analysis of the demographic, geographic and social context of the N.W.T. OLA and of its philosophical and legal context. Then, taking all these factors into account, it reviewed the fundamental principles for interpreting language rights.

Principles of interpretation applied by the Court

In its analysis, the Court observed the similarity between the N.W.T. OLA provisions and the corresponding provisions of the charter as well as the fundamental nature of the language rights it protects. Noting that the N.W.T. OLA “forms part of the privileged category of quasi-constitutional legislation”^{Footnote 4}, Moreau J. set out the principles that should be used in analysing the Act:

In my view, the OLA N.W.T. must be interpreted to recognize:

1. the underlying principles of the Constitution, in particular federalism and the protection of minorities;
2. its remedial aspect, in light of the historic context of institutional unilingualism that persisted in the N.W.T. for over seventy years and in light of the federal bilingualism program at the national level reflected in the language provisions of the Charter; and
3. the statement in para. 25 of Beaulac that language rights be “in all cases interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada” and in light of the importance of language rights as “a fundamental tool for the preservation and protection of official language communities where they do apply.”^{Footnote 4}

Nature of the obligations of the Northwest Territories Official Languages Act

Another question raised at the trial was that of the nature of government obligations in matters of official languages. The Court accepted the argument made by the Commissioner of Official Languages that the obligations deriving from the N.W.T. OLA are obligations of result, that is, an obligation to achieve a specific result, namely the substantive equality of status and use of the language concerned. It came to this conclusion by taking several factors into account, including the quasi-constitutional nature of the rights guaranteed by the N.W.T. OLA, the modern method of interpreting language rights, the need for positive action on the government’s part to give effect to these rights and the principle of equality underlying the provisions of the N.W.T. OLA. In so doing, the Court dismissed the argument by the territorial defendants, who maintained that the standard imposed on them concerning the provision of French-language services and communications “is that of good faith and reasonableness.”^{Footnote 5}

Although they enjoy a degree of discretion in choosing the means taken to meet their obligations of result, the Court indicated that, in order to fulfill those obligations, the territorial defendants must satisfy the requirements of substantive equality. Consequently, in order to demonstrate that it had met its obligations under the N.W.T. OLA, the GNWT could not simply show that it had “acted in good faith” or “taken reasonable steps.”

Evaluation of allegations and breaches established by the evidence

After reviewing the many allegations made by the plaintiffs and the evidence presented in support of them, Moreau J. noted that the breaches established by the evidence were not isolated or exceptional. Rather, they indicated “the existence of a serious and widespread problem in the N.W.T. concerning the implementation of the rights in question.”^{Footnote 6} In view of the nature, diversity and seriousness of the breaches established by the evidence, the Court concluded that they reflected a problem with the implementation of language rights in the N.W.T., a problem that, in its view, could not be resolved by isolated remedial measures dealing only with the particular, alleged cases.

Active offer as an inherent component of the right to services and communications in the language of choice

During the trial, one of the issues was whether the GNWT had an obligation to actively offer its services in both official languages, since the N.W.T. OLA does not contain an explicit provision stipulating such an obligation. Noting the applicable principles of interpretation, in particular the principle of substantive equality, and relying on Beaulac, the Court considered “that implicit in language obligations is a duty to supply the means of benefiting from the language right.”^{Footnote 7} According to the judge, an active offer is one of those means. Therefore, for the right to use the official language of choice in communicating with the head or central administration of government institutions to be given full effect, individuals must be offered a real choice between English and French.

Breaches at the territorial level

As noted above, the plaintiffs brought the action against the GNWT and the federal government. However, the Court found that only the breaches by the territorial government were at the source of the breaches established by the evidence. These breaches did not ensue from the N.W.T. OLA, but rather from a poor understanding of language rights on the part of the people responsible for implementing the N.W.T. OLA, the lack of a general implementation plan and the lack of a regular, well-established procedure for controlling services.

Regarding the plaintiffs’ action against the Attorney General of Canada, the Court held that in its opinion it was not necessary to consider the application of the language provisions of the Charter to the GNWT and dismissed the action against the Government of Canada.

Just and appropriate remedy in the circumstances

The Court concluded that the alleged breaches were not isolated cases, but instead represented examples of systemic deficiencies. This conclusion underpinned the remedial orders made by the Court. As noted above, it considered that the established breaches were primarily a result of the GNWT’s persistent refusal to adopt an overall implementation plan and centralize the application of the N.W.T. OLA.

In support of the range of remedies granted, the Court indicated that taking positive corrective measures was necessary to preserve and promote official language communities. It found that the judicial and executive branches would have to open a dialogue, “the court providing some elements of the solution while granting the executive the necessary flexibility to develop appropriate solutions.”^{Footnote 8}

The Court therefore made four declaratory orders, in particular regarding communications and the provision of services in French by government institutions and the N.W.T. Languages Commissioner, the publication of debates in French and the language of job postings and calls for tender by the GNWT and certain other public bodies.

The Court also made six mandatory orders, which included requiring the GNWT to ensure the implementation of the N.W.T. OLA and the drafting of a comprehensive implementation plan in relation to its obligations towards communications and the provision of services by government institutions. Furthermore, the Court recognized the importance of the Francophone community’s participation in the planning process and affirmed that this would enable the GNWT to more effectively discharge its responsibilities under the N.W.T. OLA.

It should be noted that the GNWT is appealing this decision to the N.W.T. Court of Appeal. The plaintiffs have also appealed the decision dismissing the action against the Government of Canada.