In CharleboisFootnote 1 the New Brunswick Court of Appeal had to interpret section 22 of the New Brunswick Official Languages Act (NBOLA)Footnote 2. In particular, it had to decide whether the City of Saint John was an "
institution" subject to the duty to use, for oral or written pleadings or any process issuing from a court, the official language chosen by the appellant in the civil proceeding that he brought against the town.
It also had to determine the scope of the obligation imposed on the Government of New Brunswick and its "
institutions" by that section.
Mr. Charlebois had brought his principal action against the City of Saint John to oblige it to offer equal services in both official languages. In that action, Mr. Charlebois had chosen to use French, while the representatives of the City of Saint John had chosen English and the Attorney General of New Brunswick, intervening, had chosen French. At the hearing, the City of Saint John and the New Brunswick Attorney General by motion asked that Mr. Charlebois’ application be struck out. The latter at once objected to these motions, raising preliminary objections in terms of section 22 of the NBOLA. He particularly objected to the City of Saint John having filed its processes, pleadings and affidavits only in English and that the Attorney General had submitted, in support of an affidavit, an evidentiary document written only in English and had cited case law in English without providing a translation.
In an interlocutory judgment, the judge hearing the application in the Court of Queen’s Bench concluded that the City of Saint John was not an "
institutions" within the meaning of section 1 of the NBOLA and consequently had no duty under section 22 of the NBOLA to file its processes, pleadings and affidavits in French. He further held that the New Brunswick Attorney General did not have to provide a translation of the decisions cited nor of the documents (evidence in support of affidavit), as these were not "
pleadings or processes." In reaching this conclusion, he referred to LavigneFootnote 3 and drew a parallel with section 18 of the federal OLA. In the judge’s view, if it were to be concluded that section 18 of the OLA required the translation of evidence, this would be contrary to the rights of witnesses.
Mr. Charlebois appealed this interlocutory decision. In his grounds of appeal, he argued that the judge had made an error of law by giving the word "
institutions" in sections 1 and 22 of the NBOLA a limiting interpretation that did not take into account the purpose of the language rights guaranteed by the Charter, and by concluding that the City of Saint John was not subject to the language requirements of section 22 of the NBOLA.
In its judgment, the Court of Appeal noted that the question of interpreting section 22, which was the subject of the case at bar, should not be confused with a constitutional challenge to that provision based on the principles and values governing the language rights and guarantees contained in the Charter. The parties had not submitted the constitutional question to the Court of Appeal, and the particular rules of procedure in such a case had not been observed. For this reason, in its analysis the Court dismissed the argument made by the amicus curiae (the Association des juristes d’expression française du Nouveau- Brunswick), namely that the legislature could have intended to give the word "
institutions" a narrower meaning in the Act than that which it would have in the Charter. Such reasoning raised the constitutional question whether non-inclusion of municipalities in section 22 of the NBOLA infringed a right guaranteed by the Charter or the equality principle within the meaning of section 16 of the Charter.
The Court of Appeal, at the start of its analysis of interpretation of the word "
institutions" used in section 22 of the NBOLA, was careful to note all the interpretation points or factors that it had to consider in the particular case to determine the legislative intent. It noted that in principle "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."Footnote 4 It also pointed out that the Supreme Court had noted in this regard that it was not necessary to apply all the interpretation factors in each case, but the factors were closely related and interdependent.
Ordinary and grammatical meaning of section 22 of New Brunswick Official Languages Act
The Court noted that section 22 of the NBOLA clearly set out the nature of the language requirement and the resulting right, but a problem arose in interpreting who was covered by that requirement. The definition of the word "
institutions" contained in section 1 was first given as a list of public bodies, but the words "
municipality" and "
city" were not part of that list, although the same words were defined in section 1 of the NBOLA and were covered by specific provisions in the NBOLA Act. It further noted that the definition of the word "
institutions" also included a descriptive clause intended to cover public institutions or bodies that were created to carry out certain governmental functions under a provincial statute or under the powers of the Lieutenant Governor in Council. Finally, it observed that the legislature had organized the NBOLA under sub-headings for areas of activity or service that were the responsibility of the province’s governmental structure.
In view of this legislative background, therefore, the Court concluded that the legislature had "
undoubtedly structured the legislation in this manner with a view to establishing separate and varying language rights, or regimes having regard either to the very nature of such rights, or the bodies that would be subject to the language obligations therein prescribed."Footnote 5
Ordinary meaning of the word "
In this regard, the Court noted that the word "
institutions" used in section 22 of the NBOLA was vague and general. It is often difficult to determine the limits of provincial governmental functions based on this concept, as the modern government of a state or province, such as New Brunswick, takes many forms in a number of public or quasi-public bodies. These bodies carry out the traditional governmental functions with greater or lesser functional independence. Accordingly, even the strictly governmental mission was increasingly performed through public and quasi-public agencies. Consequently, the Court of Appeal felt that "
the fact that a significant portion of services to the public are provided by public bodies favours a broad interpretation of the term."Footnote 6
To analyse the two criteria of the descriptive clause in the definition of "
institutions" used to limit its scope and determine whether an agency should be regarded as an institution (namely, functions or activities of a governmental nature and the legal sources of the powers), the Court referred to Moncton (City) v CharleboisFootnote 7. In that case, the Court had applied criteria to identify the structures and functions of governmental entities within the meaning of paragraph 32(1)(b) of the Charter and concluded, in accordance with a broad and liberal interpretation based on the purpose of that provision, that the municipalities of New Brunswick were institutions of the government within the meaning of subsection 16(2) of the Charter. In short, the Court had held that New Brunswick municipalities were subject to the Charter as they were creatures of the province, they exercised governmental powers conferred on them by the legislature or the government and they held all their powers under the NBOLA.
Based on this precedent, the New Brunswick Court of Appeal concluded that the descriptive part of section 1 of the NBOLA and the criteria stated therein for defining the word "
institutions" were broad in scope and the criteria essentially corresponded to those identified in Moncton (City) v Charlebois.
Accordingly, relying only on the analysis of the ordinary meaning of the wording of the definition of "
institutions" the Court indicated that the interpretation suggesting that "
institutions" covered municipalities and cities seemed, at first sight, to be a plausible one. That interpretation was not conclusive, however, since it was also necessary to see whether the interpretation was consistent with the purpose and structure of the NBOLA and with the legislative intent.
General context and purpose of NBOLA
The Court of Appeal noted that section 22 of the NBOLA formed part of a number of provisions creating institutional bilingualism in the courts in New Brunswick. It further noted that the preamble to the NBOLA confirmed the aims and values underlying the guaranteed rights both in the NBOLA and in the Charter. In short, this legislation was intended as a legislative response by the province to the language obligations respecting institutional bilingualism in New Brunswick imposed on it by the Charter. The Court also considered the quasi-constitutional status of this legislation. It noted that the effect of this status was not to alter the traditional approach to statutory construction, but made it possible to recognize the particular purpose of the NBOLA. Referring to BeaulacFootnote 8 and Arsenault-CameronFootnote 9, the Court concluded that language guarantees should be interpreted "
with an emphasis on the protection and flourishing of official language communities; they should also be construed remedially for the purpose of redressing past inequalities."Footnote 10
Structure of NBOLA and legislative intent
The Court of Appeal examined the relations existing between the various provisions of the NBOLA, bearing in mind the principle of internal coherence of legislation. According to this principle, the legislature cannot have intended absurd consequences, that is, an interpretation which would be illogical or incoherent. In doing this, the Court of Appeal considered the definition of the word "
institutions" used in section 1 of the NBOLA together with, inter alia, sections 27 and 36 of that NBOLA.
Section 27 provides that the public is entitled to communicate with and receive services from any "
institutions" in the official language of its choice. Section 36 is part of the sub-heading "municipalities" and provides that "
municipalities and cities to which subsection 35(1) and 35(2) of the Act applies" (cities and municipalities whose minority language population is at least 20 percent of the total population) are required to offer communications and services specified by regulation in both official languages. In this connection, the Court noted that the latter provision was intended to give different treatment to municipalities serving a population with a language minority of at least 20 percent and those not serving such linguistic minorities, and held that the effect of section 36 was to create a language regime separate from that of section 27 (which also deals with service to the public by an "
institution," but makes no distinction based on the minority language percentage of the population).
In view of this analysis, if the word "
institutions" were to include municipalities and cities and make them subject to the language obligation set out in section 27, the application of the provisions in sections 27 and 36 would be inconsistent. For example, it would be inconsistent for all municipalities to be required to provide all services and communications in both official languages under section 27 while under section 36 municipalities with a minority official language population of 20 percent or more were required to provide in both official languages only communications and services specified by regulation.
At the conclusion of its analysis, the Court found that an interpretation whereby the word "
institutions", defined in section 1, included municipalities and cities would lead to inconsistent and illogical results in the application of several provisions of the NBOLA. It added that a plausible and liberal interpretation of the word "
institution," based on analysis of the ordinary meaning of the wording of the provision, was not consistent with the legislative intent and so had to be rejected. Finally, the Court considered that contextual and teleological analysis of the disputed provision had removed all ambiguity as to the meaning of "
institutions" and the scope of section 22. As there was no ambiguity, there was no basis for referring to the values and principles enshrined in the Charter as a means of determining the legislative intent.
Pleadings" and "processes"
Finally, as there was no dispute that the New Brunswick Attorney General was clearly covered by section 22 of the NBOLA, the Court of Appeal also proceeded to consider the interpretation of the expressions "
pleadings" and "
processes" appearing in section 22 of the NBOLA, to determine the scope of the obligation imposed. Referring to the judgment of Noël J.A. in LavigneFootnote 3 on section 18 of the federal OLA, which uses the same phrase, the Court of Appeal considered that the trial judge had not erred by concluding that the words "
pleadings and processes" did not include evidence or testimony in the form of affidavits. Consequently, the applicant could not require that the Attorney General submit his evidentiary document in French. The Court of Appeal also indicated that the phrase "
pleadings and processes" did not, in any case, apply to case law cited in a memorandum or a book of authorities, the applicant, therefore, could not require that the Attorney General submit his authorities in French or to provide a French translation. It noted, however, that it would be natural to expect the province and its institutions to use a translation of case law where it existed.
In sum, the Court of Appeal dismissed the appeal, concluding that the word "
institutions" defined in section 1 of the NBOLA did not cover either municipalities or the City of Saint John. Consequently, that town was not subject to the obligation imposed by section 22 of the NBOLA. Finally, the phrase "pleadings and processes" did not apply either to evidence or case law, so that the New Brunswick Attorney General was not required to file an evidentiary document in support of an affidavit, or authorities, in French and was not obliged to provide a translation of these documents.
- Footnote 1
Charlebois v Saint John (City),  NBCA 49.
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- Footnote 2
Official Languages Act, S.N.B. 2002, c.O-0.5.
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- Footnote 3
Lavigne v Canada (Human Resources Development) (1995), 96 F.T.R. 68.
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- Footnote 4
The Court cited E. A. Driedger in his works entitled Construction of Statutes (2e ed., 1983, p.87) at para. 18 of its decision in Charlebois v Saint John (City),  NBCA 49.
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- Footnote 5
Charlebois v Saint John (City),  NBCA 49 at para. 21.
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- Footnote 6
Charlebois v Saint John (City),  NBCA 49 at para. 24.
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- Footnote 7
Moncton (City) v Charlebois (2001), 242 N.B.R. (2d) 259.
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- Footnote 8
R. v Beaulac,  1 S.C.R. 768.
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- Footnote 9
Arsenault-Cameron v Prince Edward Island,  1 S.C.R. 3.
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- Footnote 10
Charlebois v Saint John (City),  NBCA 49 at para. 36.
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