The case concerned the decision of the Canadian Food Inspection Agency to transfer certain positions from one region to another and raised inter alia the question of remedies available to penalize infringements of the government’s commitment regarding the development of official language minorities.
In this case, the Agency in the fall of 1999 transferred four seasonal inspector positions from its Shippagan office, located on the Acadian peninsula in the northwest of the province of New Brunswick, to the Shediac office located in the southeastern part of the province. According to the Agency, this transfer was necessary to rationalize activities relating to inspection work in the Shippagan area, a rationalization due primarily to the decline in the fishing industry and the transfer of unprocessed fish products from Shippagan to processing plants in southeastern New Brunswick.
In her investigation report, the Commissioner concluded that the complaint was valid, noting that, "
the Agency’s decisions did not allow it to fully meet its obligations under Part IV of the Official Languages Act (OLA) (Services to the Public)." Further, in view of the particular regional and historic context of the Acadian peninsula, "
Part VII of the OLA at the very least created an obligation on the respondent to consult the minority official language community before making its decision."
Relying on the Commissioner’s conclusions, the applicant filed an action in the Federal Court. The Federal Court judge allowed the application of the Forum des maires and ordered the Agency to restore the positions of the four inspectors in the Shippagan office. The Attorney General of Canada appealed this decision and asked the Federal Court of Appeal to set aside the order of the trial judge.
Federal Court of Appeal judgement
The Federal Court of Appeal confirmed the Federal Court’s ruling to allow the application. However, it overturned the Federal Court’s order for relief, stating that it was not appropriate or just in the circumstances and that the complaint was no longer justified when judgment was reserved in the Federal CourtFootnote 1.
1) Whether the Agency carried out its linguistic duties
In its judgment, the Federal Court of Appeal first noted that the initial application filed by the Forum des maires was pursuant to section 77 of the OLA, not an application for judicial review under section 18.1 of the Federal Courts Act, as the trial judge had several times described it. Also, the remedies the applicant could seek were not limited to those set out in subsection 18.1(3) of the Federal Courts Act. The Court further observed that analysis of Part IV of the OLA and a finding that it had been infringed, sufficed to dispose of the case.
In this regard, the Court concluded that the Agency had reduced its services in Shippagan without considering the effect of that reduction on the Francophone minority’s rights to receive services in French, and that the reduction of services had the effect of infringing the right conferred on that minority by section 21 of the OLA. It noted that the Agency did not dispute "the merits of the complaint at the time it was filed, in October 1999, but the choice of relief ordered by the judge in September 2003, "Footnote 2
It also noted that at the hearing before the Federal Court a discussion had also arisen as to the scope of Part VII of the OLA, and the judge appeared to have agreed to treat part of the application as an application for judicial review in respecting breach of Part VII of the OLA. It therefore had to consider this question.
2) Whether breaches of Part VII of OLA can be dealt with by the courts
The Court first noted that subsection 77(1) of the OLA was quite clear: Parliament intended that "
only those complaints in respect of a right or duty under certain sections or parts of the Act could be the subject matter of the remedy under Part X."Footnote 3 This remedy was accordingly limited to complaints based on the sections and parts set out in subsection 77(1) of the OLA, with Part VII not listed.
The Court then considered the argument based on the judgment in DevinatFootnote 4, according to which, subsection 77(5) of the OLA authorized other actions, such as an application for judicial review pursuant to section 18.1 of the Federal Courts Act in the event of an infringement of OLA provisions other than those set out in section 77 of the OLA. It dealt with this argument by carefully distinguishing the facts of the case from those that existed in Devinat. In the Court’s opinion, there was no doubt as to the existence of a duty in Devinat, since the latter dealt with section 20 of the OLA, imposing a duty ("
shall") to publish a bilingual version of the decisions of federal tribunals. Section 41 of the OLA, at issue in this case, contained no similar language, however, and instead spoke of a political commitment. The Court further considered that the duties were actually to be found in sections 42 and 43 and, as these were of a most general and vague nature, they did not lend themselves to the exercise of judicial authority.
In the Court’s view, the Supreme Court’s many judgments on the broad and liberal interpretation of language rights in terms of their purposeFootnote 5 also could not have the effect that section 41 of the OLA imposed a duty. In its opinion, it is true that the protection of language rights is a fundamental constitutional objective and requires special vigilance by the courts. The latter should therefore interpret provisions conferring such rights generously, "
but it is also necessary that these be rights to protect and not policies to define."Footnote 6 It added that, "
however, it is not because a statute is characterized as quasi-constitutional that the courts must make it say what it does not say, especially when the statute, as in this case, has been careful not to say it."Footnote 7 Thus, the Court concluded that section 41 of the OLA was
"declaratory of a commitment and that it does not create any right or duty that could at this point be enforced by the courts, by any procedure whatsoever,"Footnote 8 and that the argument regarding section 41 should take place in Parliament, not before the courts.
3) Remedy that was appropriate and just in the circumstances
Finally, considering the question of a remedy, the Court first noted that it was for the Court to decide whether the complaint was valid at the time it was filed, not whether it was valid at the time of the trial. If the judge considered it was valid, he or she should allow the application and undertake to define the "
remedy he [or she] considers appropriate and just in the circumstances." It pointed out that if the alleged infringements had all been corrected at the time of the trial, the judge could decide that in the circumstances no remedy should be granted, except, for example, the awarding of costs.
The Court went on to recall the criteria applied by the Supreme Court in Doucet-BoudreauFootnote 9 to define the phrase "appropriate and just in the circumstances," adding that the solution applied had to be:
relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied … effective, realistic, and adapted to the facts of the case … respectful of the relationships with and separation of functions among the legislature, the executive and the judiciary and the role of the courts, which is one of adjudicating disputes and granting remedies that address the matter of those disputes, and not leap into the kinds of decisions and functions for which [the] design and [their] expertise are manifestly unsuited … fair to the party against whom the order is made and not impose substantial hardships that are unrelated to securing the rightFootnote 10.
Considering the facts of the case, the Court concluded that the trial judge had accepted reasons "
much too summary to satisfy the standards laid down in Doucet-Boudreau"Footnote 11 and that "
his order for relief was pronounced in an erroneous legal context since he based himself primarily on Part VII of the Act, which is not executory,"Footnote 11 and that, in any case, the order contained "
a number of uncertainties and difficulties."Footnote 11 Accordingly, the Court decided to review the remedy.
It noted that the first basis for the complaint, namely the lack of consultation, had been vitiated, as for four years, and throughout the trial, there had been numerous meetings and attempts to arrive at a satisfactory solution. The second basis for the complaint, however, the reduction of services in French, remained an issue. In light of the evidence, the Court concluded that essentially the problems that initiated the complaint had been dealt with through the intervention of the Commissioner and the pressure applied to the Agency by the filing of the action in the Federal Court. Finally, it noted that the provision of service in French certainly entailed "
hiccups," but the evidence did not show that those "
hiccups" were symptomatic of serious problems or deep-seated malfunctions in the Agency. Accordingly, there was no question of breaches that could be described as "
collective." In other words, the Court held that it had not been established that reinstatement of the positions in Shippagan was an appropriate and just remedy in the circumstances.
Accordingly, the Court of Appeal concluded that the original complaint was valid and that the trial judge’s decision to allow the application should be upheld and the appeal dismissed in this regard. In view of the fact, however, that the original complaint was no longer valid when the trial judgment was taken under advisement, and the remedies ordered by the trial judge were not appropriate and just in the circumstances, it allowed the appeal on that issue. It reversed the part of the Federal Court Trial Division judgment that set aside the Agency’s decision to transfer the positions to Shediac and awarded monetary compensation.