Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development)
The case concerns a federal institution’s language obligations as part of a transfer payment agreement with a provincial government regarding the administration of employment benefits and support measures to help Employment Insurance recipients return to the labour market.
In 2011, the Fédération des francophones de la Colombie-Britannique (FFCB) filed a complaint with the Commissioner of Official Languages (the Commissioner). It alleged that Human Resources and Skills Development CanadaFootnote 1 (HRSDC) and the Canada Employment Insurance Commission (the Commission) failed to fulfil their obligations to the Francophone linguistic minority when they entered into and implemented the Canada – British Columbia Labour Market Development Agreement, which was signed in 2008. More specifically, FFCB alleged that the Agreement undermined the development and vitality of the province’s Francophone minority communities and the equal quality of services provided in French. In 2012, the province implemented the new program stemming from the Agreement.
Following his investigation, the Commissioner concluded that Parts IV and VII of the Official Languages Act (the Act) had been violated. The complaint anticipated that violations that had not taken place when it was filed would occur as a result of the Agreement. Therefore, the investigation took into account the facts that arose both when the complaint was filed and afterward.
The investigation first determined that HRSDC and the Commission failed to fulfil their obligations under Part IV, which states that federal institutions must, in certain cases, communicate with and provide services to the public in both official languages. The Commissioner reached this conclusion by determining that British Columbia was acting on behalf of the federal institutions when it implemented the Agreement, and that HRSDC and the Commission therefore had to ensure that services are provided in both official languages.
The investigation also concluded that HRSDC and the Commission failed to fulfil their obligations under Part VII, since the federal institutions did not take positive measures to enhance the vitality and support the development of official language minority communities and to foster the full recognition and use of both official languages in Canadian society.
Following the investigation, FFCB brought the case before the Federal Court to make sure that HRSDC and the Commission fulfil their language obligations.
The Federal Court dismissed the application on the basis that Part IV did not apply and that the obligations under Part VII of the Act were fulfilled. As a result, the Court did not grant any remedy.
FFCB was awarded its costs since it had raised new issues.
1. Preliminary issues
a. Jurisdiction of the Federal Court
First, the Federal Court ruled that it had full jurisdiction to hear the case, which concerned the obligation of federal institutions in relation to Parts IV and VII of the Act. The Act specifically establishes this jurisdiction, which includes the handling of peripheral issues. In addition, Parts IV and VII constitute a body of federal law essential to the disposition of the case. Lastly, the Act is a law of Canada. The Court has jurisdiction to address the constitutional jurisdiction of the province and the federal government in the labour market, which is the subject of the Agreement.
b. Remedy under section 77 of the Act
The judge found that the application for remedy under section 77 of the Act requires the Court to determine whether a violation occurred on the basis of the facts that existed when the complaint was filed and, if necessary, to grant such remedy as it considers appropriate and just at the time of its decision.
The Court must determine whether the complaint is founded. The Commissioner’s conclusions are not determinative and do not bind the Court in its analysis.
The Court specified that the merits of the complaint cannot be based on anticipated facts. Instead, they must be based on the facts that existed when the complaint was filed. The remedy provided under the Act is remedial and not preventive.
Lastly, while language rights are given a broad and liberal interpretation, this interpretation does not allow the Court to depart from the text of the legislation or to ignore the stare decisis rule. The Court is bound by the case law and the rules of law of superior courts. According to the Court, this case cannot deviate from them.
2. Part IV of the Act
The Federal Court found that Part IV does not apply in this case.
According to the Court, the courts have already ruled on this issue by finding that, as part of an intergovernmental agreement on service delivery, a province is not subject to Part IV. The Court sees no reason to deviate from these precedents and is therefore bound to follow them.
Addressing the division of powers, the Court determined that the federal government does not have exclusive jurisdiction with regard to the labour market, which is the subject of the Agreement. In passing the administration of the program stemming from the Agreement on to the province, it acted legitimately within its concurrent legislative jurisdiction. The Court concluded that the federal government did not delegate its authority to the province. The double aspect doctrine, which holds that both jurisdictions can legitimately act in the same sphere, applies.
Lastly, other than the financial aspect, the Court found that the federal institutions did not have sufficient control for the conclusion to be made that the province was acting on their behalf under the Agreement. As a result, the Court determined that HRSDC and the Commission were not required to ensure that their language obligations were being fulfilled by the province as if the institutions were providing the service themselves.
The Court stated that, by giving the Act a broad and liberal interpretation, it cannot ignore the text of the legislation or the constitutional division of powers. In light of the foregoing, the Court concluded that Part IV does not apply. The merits of the application at the time of the complaint were therefore not taken into account.
3. Part VII of the Act
Part VII of the Act applies in the context of the Agreement, even though the province has concurrent jurisdiction in its implementation.
The Court was satisfied that, when the complaint was filed, the federal institutions concerned had fulfilled their obligation to take positive measures as part of the Agreement. The Court took into account the existence of a consultation clause, the consultations that were held, and a variety of initiatives taken by HRSDC and the Commission to consider the needs of the official language minority.
The Court noted that Part VII requires that positive measures be taken. It does not require that other or further measures be taken, or that desirable or possible measures be considered. According to the Court, the scope of the obligations under Part VII is limited by the lack of regulation by the federal government.
According to the Court, “this regulatory silence and the resulting vagueness are probably detrimental to language minority communities in Canada, which may be losing a potential benefit under Part VII. ... Regulations could better gauge the requirements of Part VII in terms of “positive measures” that must be taken by federal institutions[.] I accept that it is more difficult to achieve substantive linguistic equality if the guidelines for doing so are not sufficiently clear.”Footnote 2
Following the determination that Part IV does not apply and that there was no failure to comply with Part VII of the Act, no remedy was granted.
Although the application was dismissed, FFCB was awarded its costs by the Court since it had raised new and important issues.