This case was about a complainant’s right to apply to the Federal Court for a remedy under section 77 of the Official Languages Act (the Act) after the Commissioner has reported that he was satisfied with the measures taken by a federal institution in response to his recommendations.
In November 2010, André Dionne filed a complaint with the Office of the Commissioner of Official Languages against his employer, the Office of the Superintendent of Financial Institutions. In the final investigation report sent to Mr. Dionne on January 7, 2014, the Commissioner concluded that the complaint was founded, made recommendations and committed to following up on their implementation.
On March 11, 2015, the Commissioner issued his final follow-up report and concluded that his recommendations had been implemented satisfactorily. Mr. Dionne disagreed with the Commissioner and, on May 8, 2015, applied to the Federal Court for a remedy under subsection 77(2) of the Act.
The Attorney General of Canada (AGC) subsequently filed a motion to strike the application on the basis that the notice of application had been filed late. The Commissioner intervened to argue that applications under section 77 of the Act can be filed after his final follow-up report states that he is satisfied with the implementation of the recommendations.
According to the AGC, the application under section 77 of the Act must be filed within 60 days following the final investigation report and not 60 days following the final follow-up report. In addition, a court remedy can be initiated only when the Commissioner’s final follow-up report concludes that the federal institution did not implement his recommendations by taking appropriate action within a reasonable timeframe.
The Court was of the opinion that subsection 77(2) must be interpreted in a broad and liberal manner, as with language rights in general. The Court upheld the Commissioner’s position that Parliament’s intention in subsections 64(2) and 77(2) of the Act was not to limit a complainant’s right to legal recourse to situations where the Commissioner is not satisfied with the implementation of his recommendations. Rather, it was to give complainants the right to go to court to obtain a fair and just remedy after the Commissioner has had the opportunity to resolve the complaint. It is the issue of the final follow-up report—not the content of that report—that triggers the 60‑day timeframe to apply for a remedy under section 77 of the Act. The Court rejected the AGC’s position that the remedy under section 77 must be sought within the 60 days following the Commissioner’s final investigation report (i.e., before receiving the final follow‑up report). The Court was of the opinion that this was “
an approach devoid of practical meaning [translation]” because it would force complainants to initiate legal proceedings to protect their rights without knowing the results of the follow‑up report.
The AGC’s motion to strike the application was denied.