Memorandum of fact and Law of the Commissioner of Official Languages of Canada
Federal Court of Appeal
Court File No. A-182-18
- Commissioner of Official Languages of Canada (Appellant)
- Department of Employment and Social Development and the Canada Employment Insurance Commission (Respondents)
- Attorney General of British Columbia (Intervener)
Court File No. A-186-18
- La Fédération des Francophones de la Colombie-Britannique (Appellant)
- Department of Employment and Social Development and the Canada Employment Insurance Commission (Respondents)
- Attorney General of British Columbia (Intervener)
- The Administrator of the Federal Court
- And to:
- Mark Power
- Juristes Power | Power Law
130 Albert Street, Suite 1103
Ottawa, Ontario K1P 5G4
- Telephone: 613-702-5565
- Counsel for the appellant,
La Fédération des francophones de la Colombie-Britannique
- And to:
- Ian Demers
- Department of Justice Canada
Quebec Regional Office
Guy Favreau Complex
East Tower, 9th Floor
200 René Lévesque Boulevard West
Montréal, Quebec H2Z 1X4
- Telephone: 514-496-9232
- Counsel for the respondents,
Department of Employment and Social Development and the Canada Employment Insurance Commission
- And to:
- Karrie Wolfe
- Attorney General of British Columbia
777 Dunsmuir Street, Suite 1300 Vancouver, British Columbia V7Y 1K2
- Telephone: 604-643-7100
- Counsel for the intervener,
Attorney General of British Columbia
I. Part I – Facts
- This appeal raises two issues of utmost importance to the appellant, the Commissioner of Official Languages, namely: (1) the interpretation to be given to subsection 41(2) of the Official Languages Act (the “OLA”); and (2) the scope of the remedy of section 77 of the OLA. It also raises a procedural issue, that is, whether the Court could refer to Canadian Heritage’s administrative interpretation in interpreting subsection 41(2).
- Regarding subsection 41(2), although the Federal Court began by setting out the proper interpretative principles applicable to language rights, it ignored Parliament’s intention to make federal institutions accountable on a case-by-case basis for their obligations under Part VII of the OLA. This interpretation led it to find that subsection 41(2) imposes no specific obligations on federal institutions, which essentially removes the enforceable nature of this provision and contradicts the internal consistency of the OLA.
- With respect to section 77 of the OLA, this appeal raises the issue of whether the OLA allows courts to consider facts arising after a complaint has been filed with the Office of the Commissioner of Official Languages when analyzing the merits of the remedy overall. The Commissioner maintains that the Federal Court erred in finding that it was bound by certain passages from the case law according to which the merits of the case are assessed at the time of the complaint, without considering the scope and the overall context of those passages. The Court also failed to consider the very broad language of the provisions of Part X of the OLA as well as its purpose.
- Finally, the Commissioner maintains that the judge erred in declining to take notice of the administrative interpretation given to subsection 41(2) by Canadian Heritage, which would have been a useful tool in interpreting Part VII.
- In this appeal, the Commissioner of Official languages relies on the facts presented by the appellant, the Fédération des francophones de Colombie-Britannique (the “FFCB”), in its memorandum at trial.
II. Part II – Questions in issues
- The Commissioner maintains that this case raises two main issues:
- What interpretation should be given to the obligation to take “positive measures” in subsection 41(2) of the OLA?
- Does the court remedy provided in Part X of the OLA allow the Court to consider facts arising after the complaint was filed when assessing its merits?
III. Part III – Submissions
A. Applicable standard of review
- To determine the standard of review applicable on appeal, the Commissioner agrees that the rules laid down by the Supreme Court of Canada in Housen v NikolaisenFootnote 1 apply. According to the Supreme Court, conclusions on questions of pure law can be overturned if they are incorrect.
- The Commissioner believes the issues he raises are questions of pure statutory interpretation. They are therefore questions of law subject to the standard of correctness.
B. The trial judge erred in his interpretation and application of Part VII of the Official Languages Act
- In this case, the trial judge had to interpret the obligation to take “positive measures” under subsection 41(2) of the OLA so as to give meaning to Part VII of the OLA, and give it a “remedial” interpretationFootnote 2. More specifically, the judge had to determine whether Employment and Social Development Canada (“ESDC”) and the Canada Employment Insurance Commission (the “CEIC”) complied with their obligations in the context of a specific measure, namely, the conclusion and implementation of a federal–provincial agreement on employment assistance services, signed in 2008 with British Columbia (the “2008 Agreement”).
- Considering the interpretation that should be given to the OLA and its Part VII based on their purpose, the intention of Parliament and the applicable case law, the Commissioner maintains that the trial court erred in interpreting Part VII of the OLA and that its decision cannot be upheld.
- An interpretation consistent with the spirit of Part VII and the intention of Parliament would have established an obligation for federal institutions to consider the impact of their decisions on official language minority communities and to take measures accordingly.
i. Part VII must be interpreted in light of its object and the intention of Parliament, which intended to make subsection 41(2) applicable to specific decisions of federal institutions
- The modern method of interpretation involves reading the words of an act in their entire contextFootnote 3. The method requires paying special attention to the purpose of the act when the provisions to be interpreted are quasi-constitutional in natureFootnote 4. The OLA “belongs to that privileged category of quasi-constitutional legislation which reflects ‘certain basic goals of our society’” and must be interpreted so as to advance the broad policy considerations underlying itFootnote 4.
- Like other parts of the OLA, Part VII has its roots in the Canadian Constitution. The principle of advancement towards equality, enshrined in subsection 16(3) of the Canadian Charter of Rights and Freedoms,Footnote 5 and the unwritten constitutional principle of protecting minoritiesFootnote 6 constitute the guiding principles that underlie the obligations under Part VII of the OLA.
- Like all language rights provisions, Part VII must be given an interpretation that is broad and liberal, purposive and best suited to remedying the injustices of the past and ensure the development and vitality of official language minority communitiesFootnote 7.
- It is even more crucial to pay special attention to the purpose of the act in the case of enactments drafted in general terms, as they are here. In such cases, “there is in effect little to be gained by resort to the dictionary, and much to be gained by attention to the enactment’s purpose”Footnote 8Footnote . A statutory provision that is not exhaustively defined “invites the courts to take a more active role in interpretation.” In this context, as Professor Côté explains, the limits of a purely literal interpretation are particularly evident:
- Interpretation founded on text alone is unacceptable, if only because words have no meaning in themselves. Meaning flows at least partly from the context of application, of which the statute’s purpose is an integral element. Not only does the strictly literal approach ask more of language than it can offer, but it also overestimates the foresight and skill of the drafter. The separation of powers should not necessarily exclude collaboration between them. Drafters are not clairvoyant and cannot anticipate all circumstances to which their texts will apply. It is therefore reasonable for them to expect the courts to do more than simply criticize their work, and in fact cooperate in fulfilling the goals of legislationFootnote 9.
- Considering this, a few observations must be made at the outset in considering subsection 41(2) of the OLA. Firstly, this provision establishes a broad obligation to act that has not been analyzed to any great extent by the courts to date. Finally, this legislative measure is unique in federal law, being the first to give tangible effect to the principle of advancement toward equality in subsection 16(3) of the Charter and to the unwritten constitutional principle of protecting minorities5. Given these observations, the trial court was required to interpret the content of subsection 41(2) in light of its purpose.
- However, it did not do so. Contrary to the long settled interpretive principles laid down by the courts regarding language rights, the trial court interpreted the phrase “positive measures” in isolation and gave disproportionate weight to dictionary definitionsFootnote 10, without taking into account the purpose of this provision.
- The language of subsection 41(2) should have been reconciled with Parliament’s intention to make federal institutions accountable on a case-by-case basis and to allow the Commissioner and the courts to apply these provisions in a specific factual context.
a. The history of Part VII demonstrates a continuing intention to create a tangible obligation in the decision-making process of federal institutions
- To properly understand Parliament’s intention in enacting the 2005 amendments to the OLA, it is essential to conduct an in-depth analysis of the legislative history that led up to the enactment of these amendments.
- In 1988, a new OLA was enacted to replace the 1969 act. Among its features was the addition of Part VII. This part of the Act was intended to give substance to the principle of progress towards equality, as the Minister of Justice at the time explained:
- This part of the bill builds on the principle of advancement of progress in the equality of status and use of the two languages, a principle recognized by Section 16 of the Charter and by the Supreme Court of Canada in a number of important decisions. As the court has pointed out, legislative initiatives [are] “particularly suited to advance the principle” of equalityFootnote 11.
- In response to numerous criticisms regarding the inaction of the federal government, which considered these provisions to be non-binding, multiple private member’s bills seeking to strengthen the obligations of Part VII were introduced between 2001 and 2005 by the Honourable Senator Jean-Robert GauthierFootnote 12. The last iteration of these bills, Bill S-3, received Royal Assent in 2005Footnote 13.
- In the meantime, the federal government established, in 2003, the Action Plan for Official LanguagesFootnote 14 to give new momentum to the language policies. The heart of the Action Plan is an Official Languages Accountability and Co-ordination Framework [the “Framework”]Footnote 15, which is still in force. The Framework describes the enforcement procedures applicable to all federal institutions regarding the implementation of the OLAFootnote 16, particularly in respect of the government’s commitments under Part VIIFootnote 17. More specifically, it provides that each institution must adopt a systematic approach when developing policies and programs in order to:
- determine whether its policies and programs have impacts on the development of minority communities;
- consult affected publics as required, especially representatives of official language minority communities;
- be able to describe its actions and demonstrate that it has considered the needs of minority communities; and
- when it has been decided that impacts do exist, plan activities accordinglyFootnote 18.
- The Framework is an important tool for interpreting the obligations of federal institutions under Part VII of the OLA. When considering provisions with general terms, as in this case, the courts may refer to extrinsic materials to aid in discerning Parliament’s intention in enacting these provisionsFootnote 19.
- The use of extrinsic documents is particularly appropriate where these documents were expressly considered by Parliament when it enacted a provisionFootnote 20. In this case, the legislative debates confirm that Parliament intended the Framework as a guideline for interpreting the obligations on federal institutions under Part VII of the OLA at the time of the 2005 amendments. Senator Jean-Robert Gauthier, one of the bill’s sponsors, was very explicit on this point:
- My bill has three objectives. First, it clarifies the imperative nature of the commitment made in Part VII. Next, it places certain obligations on federal institutions through the implementation of this commitment and allows the government to introduce regulations […]
- These examples of the duties involved were taken from the accountability framework with which you are all familiar, namely the action plan tabled in Parliament last year, at pages 66 and 67. That is clear. I have distributed copies of this document. You will see that I copied exactly what is stated in the action plan. […] I want to strengthen the accountability framework of federal institutionsFootnote 21. [Emphasis added.]Footnote 22
- It is also telling that, while this bill was being studied, the federal government proposed a wording for subsection 41(2) that would have codified the implementation procedures under the Framework. The Honourable Raymond Simard explained that the obligation to take “positive measures” required setting up a continuous process:
- One of the processes in place would be to determine the impact of each policy and program on implementation of the commitment.
- We’ll also have to consult the organizations concerned, in particular those representing the Francophone and Anglophone minorities of Canada. […]
- I think this is important. The idea isn’t just to consult the organizations appropriately; it’s also to consider consultation findingsFootnote 23.
- This interpretation of the nature of the obligation under subsection 41(2) was confirmed by the Honourable Liza Frulla, Minister of Canadian Heritage:
- With these amendments, federal institutions would be required, when developing policies or programs, to determine whether the policy or program impacts on the implementation of the commitments, consult where appropriate any interested organizations, including organizations representing English and French linguistic minority communities in Canada, and take into consideration the impact of the promotion of French and English as well as results of consultationsFootnote 24.
- Parliament’s intent in setting aside this wording in favour of the current wording of subsection 41(2) was not to restrict the obligations of federal institutions, but quite the opposite: it wanted to strengthen the provisionFootnote 25. Accordingly, the new wording was intended to respond to the fears expressed by many stakeholders that an overly explicit definition in terms of the process, without refocusing the Act on a positive obligation to take action in favour of official language communities, would not yield any tangible effects for these communitiesFootnote 26. In other words, the new language was not intended to eliminate the process described in the previous version but to ensure that the measures adopted pursuant to this process would have a tangible positive effect.
- Moreover, at one of the last meetings of the House of Commons Standing Committee on Official Languages (the “LANG Committee”) before the current wording of subsection 41(2) was adopted, different members of the Committee in turn sought to ascertain whether the new wording of the provision proposed by Commissioner of Official Languages Dyane Adam would have immediate and tangible effects in specific circumstances. On this point, we cite a few excerpts below:
- Mr. Guy Lauzon: . . .Let’s compare right now to tomorrow, if Bill S-3 were allowed. How is that going to affect the community, positively or negatively?
- Ms. Dyane Adam: Right now the federal institutions feel that when they set a program or a policy, they don’t even have the obligation to consult the communities. They don’t feel they have the obligation. Some may do, but they don’t feel they have to.
- Mr. Guy Lauzon: I’d like to get a practical application. How is Bill S-3 going to improve that situation?
- Ms. Dyane Adam: Perhaps we should use a program as an example, since you’re from the rural community of Stormont— Dundas—South Glengarry
- There is a program called Un Canada branché. […] In conceiving such a program, at the beginning, the government would have to ask itself, based on their obligation to consider official language communities, whether such a program may need to be adaptedFootnote 27.
- After several questions of this sort from Committee members, including examples of specific situations where federal institutions had obligations to consider the impact of their decisions on communitiesFootnote 28, the Honourable Raymond Simard confirmed his interpretation by referring to an example that he had mentioned during the consideration of the previous wording proposed by his government:Footnote 29
- Hon. Raymond Simard: I’d like to cite a specific example, that shows how passing the bill could change things […]. At the same time, that will answer the question of my colleague Mr. Lauzon.
- I often cite the example of a project that was implemented back home, in French-speaking Manitoba. The communities got together to set up a broadband frequency for all Francophone communities in the province, in both official languages. Industry Canada did not approve the project. So we abandoned it. However, the Anglophone communities received funding; they bypassed the Francophone communities so that these services would be offered in English only.
- If Bill S-3 had been in effect at the time — even with the amendments you propose — would it have changed that decision? The officials would have been required to be more sensitive and discharged their obligations toward the minority communities.
- Ms. Dyane Adam: As I always say, the decision might have been the same for all kinds of other reasons. However, the decision-making process would have been subject to an obligation to justify the decisionFootnote 30.
- In response to these testimonies, the Honourable Don Boudria, the bill’s sponsor in the House of Commons, took the floor to dispel any doubts surrounding the amendments’ objective to create an enforceable obligation:
- Could I request unanimous consent to speak, even though I’m not a member of the committee. I’m the bill’s sponsor, and I believe this will be the last time we talk about it before you conduct the clause-by-clause consideration. Could you allow me five minutes?
- […] So there are only the amendments to section 41 to make it enforceable. I’m addressing my colleagues, particularly those in the Conservative Party, to say that, if we make it enforceable, it’s so that there is an element of “enforceability”. It’s so that people, if they need it, can have access to the justice system in order to defend themselves. That’s the case for all the rest of the act.[…]
- Rights were introduced whereby, for example, my children were able to receive their academic training in French in Ontario from elementary school to the master’s level[…].They had those rights because the act was enforceable and because people, at some point, had to go to court to say that they wanted their rights respected.
- I agree that we want to amend the bill in order to clarify it, but please pass it so that we can provide more rights, not take them away. In that way, my children’s children will have more rights, as my son and my daughter had more rights than I didFootnote 31.
- Thus, members of all the political parties represented on the LANG Committee, as well as the bill’s sponsor, made sure one last time that the bill, in its final form, would create tangible and specific obligations. The subsequent meeting of the LANG Committee primarily dealt with procedural issuesFootnote 32, and the bill was adopted by the Committee at the following meetingFootnote 33.
- In November 2005, Bill S-3 was enacted, and Part VII of the OLA was amended by inserting subsections 41(2) and (3) and adding, at subsection 77(1), a remedy for complaints in respect of Part VII of the OLA. Accordingly, to ensure the protection and development of official language minorities, Parliament imposed on each federal institution an obligation to take positive measures to implement the government’s commitments. This obligation was subject to a court remedy in cases of specific breachesFootnote 34. Making Part VII immediately binding and giving it a specific content on a case-by-case basis was therefore the central object at the heart of the amendments proposed in 2005, as stated one of the sponsors of the act, Senator Gauthier:
- These bills have always set out the same fundamental principle, namely that the Official Languages Act should be made binding with clear conditions that the agencies and departments will not be able to get aroundFootnote 35.
b. The administrative interpretation after 2005 complies with Parliament’s intention
- Shortly after the new Part VII came into effect, Canadian Heritage, the primary institution responsible for coordinating the implementation of that PartFootnote 36, adopted an administrative interpretation of federal departments’ obligations under Part VII, in accordance with its mandate to that effect under section 42 of the OLA. That interpretation is found in the Guide for Federal Institutions (the Guide) and serves to direct the conduct of federal institutions in the carrying out of their responsibilities under subsection 41(2)Footnote 37. The Guide provides for the approach to be used by the institutions when they prepare to make decisions leading to, for example, the adoption or review of a policy, the creation or abolition of a program or the setting up or shutting down of a point of serviceFootnote 38. Canadian Heritage also promotes the same systematic approach announced in the debates and in the Framework with respect to considering the impacts of administrative decisions on minority communities.
- Canadian Heritage’s administrative interpretation is relevant in this case. Furthermore, the Supreme Court of Canada regularly refers to the administrative interpretation of federal institutions as doctrine, by consulting guidesFootnote 39, interpretation bulletinsFootnote 40, and even some government websitesFootnote 41 while interpreting legislative provisions. The trial judge therefore erred in considering the Guide as evidenceFootnote 42. Like the Supreme Court of Canada, he should have accepted this document as doctrine or as an authority as it was presented in the Commissioner's book of authorities.
- Alternatively, the administrative interpretation of Canadian Heritage through the Guide is a legislative fact about which the Court could have taken judicial notice. The fact that Canadian Heritage adopted that interpretation in 2007 through the Guide is not debatable amongst reasonable people. The existence of this fact can be immediately and reliably demonstrated through readily accessible sources of indisputable accuracyFootnote 43.
- The Supreme Court has indicated that judicial notice may be used “not only to dispense with unnecessary proof but to avoid a situation where a court, on the evidence, reaches a factual conclusion which contradicts ‘readily accessible sources of indisputable accuracy’, and which would therefore bring into question the accuracy of the court’s own fact-finding processes”Footnote 44.
- That is exactly what the trial court did in erroneously finding that the federal government had entirely abstained from clarifying the scope of the federal institutions’ duty under subsection 41(2), “although the legislative power has given it the tools and responsibility to do so for over 12 years”Footnote 45. In fact, Canadian Heritage has clarified the scope of Part VII by developing the Guide. The fact that this clarification was not made through a regulatory vehicle does not mean that the government did not publicly clarify its understanding of subsection 41(2)Footnote 46.
- The Framework and the Guide form a continuum in the interpretation given to the obligations of Part VII of the OLA by two consecutive Canadian governments. The Framework shows that this interpretation existed before the legislative amendments. Parliamentary debates confirm that Parliament wanted to codify a decision-making obligation similar to that found in the Framework. Finally, the interpretation retained in the Guide continues to promote a systematic analysis throughout “the entire cycle of activities of federal government institutions, whether it be during the strategic planning, development, implementation, evaluation or accountability phases of policies and programs”Footnote 38.
- The Supreme Court of Canada has acknowledged that the administrative interpretation of a statute cannot be disregarded by Parliament when it proposes amendments to a similar statuteFootnote 47. Adoption by the Court of an interpretation of the obligations set out in Part VII that would be in line with the interpretations found in the Framework and the Guide would also respect the principle of stability in interpretation. As stated by Professor Côté:
- If a statute lends itself to the interpretation give to it by its use, the courts cannot disregard it.
- The reason for the principle is obvious: an interpretive use gives rise to expectations that cannot be deceived without causing harm that is sometimes serious. Therefore, a valid reason is needed to reject an interpretive use that is not contrary to the textFootnote 48.
- In this case, the authors of the Framework had also anticipated that such a document would generate expectations in communities. The Honourable Stéphane Dion indicated that this was a public document that everyone could refer to, which would allow communities to expect accountability from their governmentFootnote 49.
- In addition, the evidence on the record shows that, in 2008, the Government of Canada still interpreted its obligations under Part VII in light of the FrameworkFootnote 50. It also shows that, in its action plan for the implementation of section 41 of the OLA, ESDC planned to support official language minority communities through the delivery of programs and activities as well as through initiatives, which, among other things, were contained in the Action Plan for Official Languages (2003)Footnote 51. ESDC committed to assess and continually improve its policies, strategies and programs as part of its implementation of section 41Footnote 52. ESDC also admits that it may be necessary to consult with communities throughout the year before making a final decisionFootnote 53. The “toolkit” used by ESDC staff in these consultations includes the Guide, among other thingsFootnote 54.
- In short, as the history of Part VII has shown, Parliament wanted to correct a specific problem in 2005: the fact Part VII did not have an enforceable effect. It adopted targeted amendments for the sole purpose of making it enforceable and to make federal institutions accountable before the courts for its implementation. By ignoring Parliament’s intention, the trial judge’s interpretation leads to an absurd result: it perpetuates the problem Parliament wanted to address by essentially removing the enforceable character of Part VII.
c. Interpretation of Part VII that gives effect to its purpose by making it enforceable
- In the Commissioner’s opinion, only a similar interpretation to that found in the government’s administrative interpretative tools would allow for the reconciliation of the text of subsection 41(2) with Parliament’s intention. According to this interpretation, institutions have the obligation, when acting under their mandate, to assess the impact of their activities on minority communities.
- Parliament’s intention in including subsection 41(2) in Part VII was to implement a systematic obligation for federal institutions to analyze, assess and consider the impact of decisions they intend to make on official language minority communities and to take measures that encourage their development.
- The term “positive measures” must be interpreted in such a manner as to include an obligation to act in a proactively in favour of the development of one or more communities and a correlative obligation to not hinder their development in a particular factual context.
- The obligation to act in a proactively to enhance the vitality of official language minority communities requires measures that seek to meet the specific needs of these communities in a given context.
- The obligation to not hinder the development of official language minority communities, where a negative impact has been identified, consists of taking measures to mitigate the negative impacts of a decision on the development and vitality of the communities.
- The common thread running through the two facets of this obligation is the consideration of the minority communities in the decision-making process of the institution concerned, in terms of identifying their needs and interests as well as in terms of evaluating the impact of the decision and identifying possible measures while taking this impact into account. Only then can a measure be considered positive for the purpose of section 41(2).
- In short, it must be determined whether the institution has considered the impact of its decisions on official languages communities and verify whether it acted accordingly.
ii. Part VII must allow the analysis of a specific default in the administration of a federal institution
- By finding that the courts should limit their review to the entirety of actions taken by a federal institution towards a communityFootnote 55, the trial court was opening the door to accepting that only a total disengagement by the federal institution could result in a violation of Part VII.
- This interpretation goes against the only decision that has substantially analyzed Part VII of the OLA, Picard v Canada. In that case, Justice Tremblay-Lamer was very clear about the need to analyze a specific violation of the OLA under Part VII:
- However, I believe that the courts must limit themselves to the factual circumstances relating to a particular decision rather than examining the government’s entire language policy every time an application under Part VII is brought before them. The courts are simply not equipped to assess the government’s language policy as a whole: that assessment is political in nature. Parliament is in a better position than the courts to make that assessment. However, the courts are used to ruling concerning the factual circumstances relating to a particular decision, and it is logical to assume that by creating a legal remedy for violations of Part VII, Parliament intended precisely to call on their expertise in the matterFootnote 56.
- At paragraph 247 of his decision, the trial judge wanted to limit the scope of this decision by stating that “it was not disputed that the Patent Office itself had not taken any positive measures to fulfil the commitment in section 41”.
- However, the fact on which the judge based this distinction is not found in the decision. On the contrary, the judge analyzed measures that the Commissioner of Patents had proposed with regard to the patentsFootnote 57 and found that those measures were not sufficientFootnote 58. Indeed, the entire reasoning in Picard with regard to Part VII is related to a specific situation: the non-availability of patents in both official languages on the Commissioner of Patents’ website. This interpretation is confirmed by the final order to publish abstracts of patents in both languages, a remedy adapted to the specific default raised by the applicantFootnote 59.
- This analysis based on a specific factual situation indeed corresponds with the requirements of subsection 58(1) of the OLA, under which the Commissioner must receive a complaint regarding a particular instance where the status of an official language is not being recognized. The courts competent to hear the case flowing from the complaint must therefore also be competent to render a decision on specific violations of Part VII of the OLAFootnote 60.
- The opposite interpretation generates serious inconsistencies in terms of the investigations and remedies resulting from Part VII. In fact, if a complainant files a complaint that refers to a specific government decision that, in his opinion, constitutes a violation of Part VII of the OLA, the Commissioner and the courts would be required, according to the trial court’s proposed interpretation, to ignore the facts raised by the complainant and to limit their analysis to the institution’s general policy. In contrast, if the complainant merely alleges that a particular institution does not generally take positive measures when carrying out its mandate, the Commissioner and the courts would be required to find, in accordance with the requirements of subsection 58(1) of the OLA and legal proceedingsFootnote 61, that the complaint or notice of application does not indicate a specific incident of non-compliance in the administration of a federal institution. The trial judge’s interpretation therefore does not allow for an acceptable legal remedy under Part VII.
- Moreover, this interpretation diverges significantly from the approach the Commissioner and the courts must take in assessing alleged violations of other parts of the OLA, which all require an analysis of the specific situation raised in the complaint.
- Only an interpretation of subsection 41(2) that allows for the evaluation of a specific violation in the administration of a federal institution is consistent with the purpose of the OLA. It is also the only interpretation that grants complainants and federal institutions alike sufficient certainty with regard to the content of the analysis that will be conducted of the filed complaints.
- If Parliament wanted to remove the Commissioner and the courts’ right to hear and deal with a case regarding a specific incident of non-compliance with Part VII of the OLA, it would have amended subsection 58(1) by removing part VII of the OLA.
- The trial judge therefore erred in law by finding that an analysis of Part VII does not need to target “a federal institution’s program, decision-making process, or particular initiative”Footnote 62.
iii. The implementation of Part VII is not subject to the creation of a regulation
- It has been clear since at least 2005 that the goal of progressing towards equality that underlies Part VII of the OLA requires the government and federal institutions to act systematically in order to encourage the development of Anglophone and Francophone minorities in Canada and to promote the full recognition and use of English and French in Canadian society. It would be contrary to Parliament’s clear intention, even in the absence of regulations, to reduce the obligations of Part VII to a general obligation to act with no specificityFootnote 63.
- On this, the wording of subsection 41(3) is very clear. The making of regulations under Part VII is completely discretionary: “the Governor in Council may make regulations […] prescribing the manner in which any duties […] are to be carried out.” Nothing in this provision would make the implementation of Part VII subject to the creation of a regulation. As shown amply in the debates cited above, subsection 41(2) should have been enforceable immediately upon its adoption.
- The trial judge based his decision, among other things, on the comments of Senator Gauthier during the deliberations of the Standing Senate Committee on Official Languages (the OLLO Committee), on October 20, 2004, to find that “it [was] clear that Parliament’s intention was to use regulations to clarify […] the duty to take ‘positive measures’”Footnote 64. The Commissioner maintains that reading Senator Gauthier’s statements in their entirety does not lead to such a conclusion. Indeed, in the paragraphs surrounding the passages quoted by the trial judge, the senator insists on the optional character of regulations provided for in future subsection 41(3):
- I think it might be useful to state that the amendment seeks only to clarify the government's power to pass regulations. Part VII is the only part of the act that does not give the government the explicit power to pass regulations. Even Part VI, which deals with equitable participation, refers to the government's commitment, as does Part VII. The purpose of my amendment is to correct this omission from the act. . . .
- This is a discretionary power. The government is not required to pass any regulationsFootnote 21.
- Put into their context, these quotations show that, although Parliament clearly would have liked regulations, and they would have certainly helped clarify the scope of Part VII of the OLA, such regulations were not mandatory.
- Moreover, at a LANG Committee meeting, Parliament had the opportunity to consider an amendment that would have made it mandatory to pass regulations but did not adopt it. The Honourable Raymond Simard described his concerns as follows:
- We feel this amendment is highly problematical. There are four or five very obvious problems. First, it makes regulation-making mandatory. There are many acts and parts of acts have no regulations because they're not necessary. Consequently, it would not be the responsibility of this committee to decide on that; it is up to the executive to do that. That leads me to the second matter. It's not the role of legislators to recommend to the Governor in Council that regulations be made; that's the role of the executive. I believe that, with this amendment, we're confusing the two roles. Furthermore, in all the other parts of the act, it is the President of the Treasury Board who may recommend regulationsFootnote 65.
- The trial court thus erred in determining that Parliament wished to solely rely on the executive to determine how federal institutions should comply with their obligations.
- Such an interpretation also does not respect internal consistency of the statute. Indeed, the OLA contains many statutory provisions that provide for the potential making of regulationsFootnote 66 that were never made by the government. This has not prevented the courts from clarifying the scope of those provisions and from applying them in particular contexts when a case was before them. Furthermore, with respect to regulations relating to Part IV of the OLA, the Federal Court specifically acknowledged that those regulations “merely establish standards to ensure that the administration of the Act is sound” and that the specific obligations of Part IV regarding significant demand existed before the regulations came into forceFootnote 67.
- In the absence of regulations clarifying obligations, it is for the court to interpret them based on facts raised in the application. The approach chosen by the trial court does not obey the general principle of interpretation requiring that any section of a statute be interpreted in a manner that it is deemed remedial and given such fair large and liberal construction and interpretation as best ensures the attainment of its objectsFootnote 10.
- In addition, if Parliament had wanted to suspend the implementation of the obligations found under subsection 41(2), it would have done so expressly by postponing the coming into force of that section until regulations were adopted. Yet, it did not do so.
- In these circumstances, only an interpretation conferring an immediate binding effect on subsection 41(2) respects the principles of the rule of law and the separation of powers: the implementation of this section must comply with the intention clearly expressed by the legislative branch and cannot be subject to the executive’s inactionFootnote 68. If not, the government would benefit from its own inaction in implementing quasi-constitutional rights. However, the Supreme Court of Canada acknowledged that language rights—especially those related to the vitality of official language minority communities—are “particularly vulnerable to government delay or inaction”Footnote 69.
- Finally, such an interpretation would violate the fundamental principles of administrative law that states that regulations are subordinate to their enabling statuteFootnote 70. It is therefore illogical to conclude that regulations, as useful as they would be to clarify statutory obligations, are necessary to enable the court to interpret the statute based on its purpose.
- The court thus erred in law in interpreting the regulatory silence as an absence of specific content of the obligations under subsection 41(2) OLA.
C. The trial judge erred in how he interpreted the remedy provided in section 77 of the Official Languages Act
- With respect to the scope of the remedy provided in Part X of the OLA, the trial judge erred in concluding that it did not allow courts to consider facts subsequent to the filing of the complaint in the overall assessment of the merits of the complaint.
- This finding is contrary to the intention clearly expressed by Parliament when it created the right to a court remedy and is completely unsupported by the text of the legislation. It also points to a misreading of the case law and is inconsistent with the practice of the courts to date. Finally, it creates an excessive burden for complainants and is contrary to the purpose of language rights.
i. The applicable case law allows courts to consider relevant facts to understand the problem alleged in the complaint
- In reaching this restrictive interpretation, the trial court relied on a mistaken interpretation of the decisions in Forum des maires de la Péninsule acadienne v Canada and DesRochers v Canada. It considered itself bound by passages from these two decisions according to which “[t]he merits of the complaint are determined at the time of the alleged breach, and the facts that existed as of the date the complaint was filed with the Commissioner are therefore determinative of the outcome of the application”Footnote 71. In granting disproportionate weight to these passages, the judge completely failed to consider the context in which they were written.
- The passages cited by the trial judge must be understood in a very specific context: in both DesRochers and Forum des maires, the trial court had held that the complaint could not succeed because the federal institution had corrected the violations before proceedings were filed. The Supreme Court of Canada and the Federal Court of Appeal favoured a broader and more generous interpretation of the right to a court remedy, emphasizing that the remedy is grounded in the complaint before the CommissionerFootnote 72. The purpose of the interpretation adopted by these appellate courts was therefore to allow the courts to decide on the merits of the complaint even in situations where the institution has corrected the violation between the time of filing the complaint and the date of the hearing. In other words, these passages were developed so as not to deprive the complainants of a decision on a violation that existed at the time of the complaintFootnote 73.
- These judgments do not prevent the courts from considering facts arising after the complaint in the assessment of its merits, particularly when these facts flow logically from the decision that led to the complaint and are relevant to an understanding of the overall problem described in the complaint.
- In this case, the facts arising after the complaint are highly relevant to an understanding of the extent of the violation alleged in the complaint. The impugned government action is the conclusion of an agreement in 2008 transferring responsibility for the delivery of employment assistance services from the federal government to the Province of British Columbia. The complaint is also about the decision-making process that led to the adoption and implementation of this decisionFootnote 74. The complaint alleged that this agreement was entered into without consideration for the likely negative impact on the province’s French-speaking community and without any concrete measures being taken to mitigate this impactFootnote 75. The facts subsequent to the filing of the complaint confirm this negative impactFootnote 76.
- Further, the language of section 77 shows that Parliament did not intend to limit the analysis of the courts strictly to the information or facts existing at the time the initial complaint was filed with the Commissioner. The only two conditions established for applying for a remedy are that the complaint must have been “made […]to the Commissioner in respect of a right or duty under […] Part IV, V or VII […]” and that the timeframes set out in subsections 77(2) and (3) must have been respected. If the Federal Court then concludes “that a federal institution has failed to comply with this Act”, it may grant such remedy as it considers appropriate and just in the circumstances.
- Parliament also expressly provides that a remedy under Part X may extend beyond the confines of the initial complaint filed by the complainant by indicating that information relating to any similar complaint is admissible in such proceedingsFootnote 77. The similar complaints may be prior to or after the complaint giving rise to the application for a remedy.
- The Federal Court has already pointed out that evidence of similar complaints that may have been filed under section 79 is intended to give the Court “a full context” of the alleged violations committed by a federal institution, and that this power comes from the broad remedial power provided for in subsection 77(4)Footnote 78. This Court has ruled that this evidence can, even in the context of a court proceeding, transform the debate on a particular case into a general debateFootnote 79. It therefore must follow that the Court must be able to take into account all the relevant evidence with which it is presented in assessing the merits of the complaint at the time it is filed.
- In short, there is nothing in the law to justify the restrictive interpretation of the right to a remedy that the trial judge has adopted. This interpretation adds conditions and limitations that are completely absent from the text of the OLA, thereby violating the courts’ obligation to interpret the OLA broadly and liberally.
- The limitations of a restrictive interpretation such as the one chosen by the trial judge are particularly flagrant in this case. Indeed, the Court was not simply required to analyze a one-time violation, such as a lack of service in French in a given office at a given time. In this case, the Court was handling a violation relating to a high-level decision, that being the conclusion of a federal-provincial agreement which jeopardized the continuity of services in French, and which resulted in a one-stop service model and demobilized centres in the Francophone community that had previously themselves provided employment assistance services to members of their communityFootnote 80. In this highly complex context, it was necessary for the Court to get to the bottom of the issue raised by the complainant and to take into account the repercussions that followed the complaint.
- In this regard, while the trial judge stated that he was totally bound by certain passages of Forum des maires and DesRochers, he ignored other decisions that would have allowed him to better understand the scope of the remedy under section 77.
- In Commissioner of Official Languages v Air Canada, the Federal Court of Appeal had before it an action bringing together several complaints of the same nature. Air Canada’s counsel objected to the action, arguing, among other things, that the allegations in the action and the Commissioner’s conclusions were too general and did not report specific separate incidents for each complaint. The Court held that an overly litigious approach should not be applied to the court remedy provided for in Part X of the OLA:
- The powers of the Commissioner of Official Languages are unique in that the Act expressly allows him, under section 79, in the context of a court proceeding in relation to a particular instance or case, to file “information relating to any similar complaint”. The proceeding does not cease to be an individual one, in that the complaint in question is the one that is the subject matter of the proceeding, but it was Parliament’s intention that the Court, which, under subsection 77(4), may “grant such remedy as it considers appropriate and just in the circumstances” (the same language that is found in subsection 24(1) of the Canadian Charter of Rights and Freedoms), should be able to have before it an overall view, and this an idea of the scope of the problem, if a problem exists. […]
- The Act itself provides that a particular complaint may serve as the gateway into a federal institution’s system as a whole. This was Parliament’s intention, as a means of giving more teeth to an enactment, the Official Languages Act, which serves as a special tool for the recognition, affirmation and extension of the linguistic rights recognized by the Canadian Charter of Rights and Freedoms.
- In other words, this is an area in which an overly litigious approach is particularly inappropriateFootnote 80.
- The Federal Court of Appeal recognized in these passages that the power of the courts to provide appropriate and just relief in the circumstances has concrete implications for the scope of the court remedy. Indeed, the existence of such a broad power necessarily requires that the Court have an “overall view” of the context of the complaint.
- The practice of the courts to date confirms this interpretation of the right to a remedy. In Lavigne v Canada, a federal-provincial labour market agreement similar to the one at issue in this case was at issue. In his complaint to the Commissioner, the applicant alleged that parts IV and X of the OLA should apply to this agreement with Quebec, in spite of terms to the contrary. The Attorney General of Canada objected to this application, claiming the complainant had not alleged any lack of services in English in Quebec as a result of this agreement. The court concluded that even in the absence of such evidence, it had the power to hear the application and grant any appropriate remedy, including a declaration that Part IV applies to the agreement. In doing so, the court took into account the quasi-constitutional nature of the OLA and the broad remedial power provided for in subsection 77(4)Footnote 81.
- Similarly, in Commissioner of Official Languages v Minister of Justice, the Federal Court heard an application under section 77 following an initiative by the federal government that had not yet produced any concrete effects at the time of the initial complaint, namely the adoption of the Act to amend the Contraventions Act and to make consequential amendments to other Acts. These amendments failed to confirm the continuity of language rights acquired under federal legislationFootnote 82. In that decision, the court specifically considered the content of an agreement between the federal government and the City of Ottawa that had arisen following the filing date of the complaint in order to conclude that “the agreements entered into by the respondents and the Government of Ontario and the subsequent municipal agreements do not adequately and completely protect the quasi-constitutional language rights provided by sections 530 and 530.1 of the Criminal Code and by Part IV of the OLA”Footnote 83.
- The situation in this case is similar to those two proceedings. In all three cases, the government decided to relinquish certain responsibilities to a province, thereby compromising the acquired rights of the minority community. However, as we have seen above, Parliament has created a broad and flexible court remedy to enable the Court to adapt to all contexts, including complex situations such as the three proceedings discussed above.
ii. The interpretation of the scope of the court remedy must allow for effective oversight of federal institutions and must not impose an excessive burden on complainants
- The complaint mechanism before the Commissioner of Official Languages was created to provide complainants with a simple resolution process so that they do not have to bear the heavy burden of legal proceedings each time they find a violation. Section 58 of the OLA requires the Commissioner to investigate “any complaint made” that meets three very simple conditions: (1) it must relate to a specific violation (2) of a federal law or regulation relating to official languages or of the spirit of the OLA and the intention of Parliament, and (3) a federal institution must be implicated in respect of that violation.
- Complaints to the Office of the Commissioner are generally no more than a few lines long. There is no obligation with respect to the format of the complaint, the evidence or the level of detail that the complainant must provide. Moreover, because of the complexity of federal government bureaucratic bodies, some complaints sometimes target the wrong federal institution. The vast majority of complainants do not receive legal advice and are not aware of all the implications of the violations they perceive, especially in the case of systemic or complex cases such as this one.
- Moreover, the OLA explicitly provides that the complainant is not required to have personally experienced or witnessed the repercussions of the violations alleged in his or her complaint. Subsection 58(2) states that “a complaint may be made to the Commissioner by any person or group of persons”. Subsection 77(1) follows this logic by stating that “any person who has made a complaint to the Commissioner” may apply to the Court for a remedy.
- The minimal requirements when filing a complaint are the direct counterpart of the Commissioner’s broad ombudsman power. The Commissioner has a duty to get to the bottom of the problem raised by the complainant when investigating, as the Commissioner is responsible for taking “all measures with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act” (56(1) and (2)). Moreover, the Commissioner may even decide at any time to investigate on his or her own initiative, which shows how little the Commissioner is limited by the confines of the complaints received to implement his or her mandate (56(2)).
- In addition, the Commissioner was expressly granted the power under subsection 62(2) of the OLA to require any evidence that he or she considers important “to the full investigation and consideration of any matter within his authority”.
- While he may identify and obtain evidence relevant to his or her investigation on his or her own initiative, and even extend the scope of the investigation on his or her own initiativeFootnote 80, the Commissioner also has the power to collect additional information where relevant to a clear understanding of the nature of the issue at hand. This is what the Commissioner did in this case, by conducting telephone, Internet and in-person checks to assess the consequences of the 2008 AgreementFootnote 84. The Commissioner’s investigative powers are intended to lessen the difficulties faced by complainants in a judicial proceeding, including the need to gather evidence.
- Limiting the remedy under Part X of the OLA strictly to the facts and allegations that existed when the complaint was filed would compromise the effectiveness and flexibility of the Commissioner’s ombudsman role. In fact, complainants would be forced to wait to file their complaint until they have obtained all the facts and relevant evidence to avoid restricting their right to a remedy. From that perspective, the Commissioner’s mission to investigate all the facts surrounding a complaint and to get to the root of the issue raised by a complainant would lose much of its usefulness since the courts could not consider this information.
- The trial judge recognized that his interpretation might have the “incongruous” effect of requiring complainants to file several successive complaints to ensure that their final complaint covers all the essential facts for the court remedyFootnote 85. In other words, to exercise their right to a remedy with the benefit of the Commissioner’s investigation, complainants would have to navigate an extremely long, repetitive and complex complaints process paved with procedural pitfalls. This situation would obviously compromise the regime Parliament put in place to resolve complaints in a proactive, flexible and informal mannerFootnote 86.
- More serious still, complainants would henceforth have to wait passively for years before filing the “right” complaint against a government decision, even if the content of this decision was known from the start. If we combine this with the length of the Commissioner’s investigation and follow-upFootnote 87, and the extra years required to obtain a final decision from the courts, there would be ample time for the impugned measures to produce their harmful effects on the vitality of minority communities before a remedy can be envisaged.
- Such an interpretation is contrary to the purpose of language rights. It is well established that these rights are aimed at ending the erosion of minority communities and enhancing their vitalityFootnote 88. Language rights are therefore based on the premise that institutions of the State play a vital role in the survival of a minority community and in language retentionFootnote 89. That is why the Supreme Court of Canada found that these rights are vulnerable to government inaction and that a violation that is not remedied effectively and in a timely manner will end up eroding the vitality of a minority communityFootnote 90.
- By not offering an effective mechanism to resolve violations in complex cases such as this one, the Federal Court’s interpretation cannot be reconciled with the fundamental principles developed over the course of decades by the courts regarding language rights.
iii. The section 77 remedy has a broad scope and should not be smothered in procedural difficulties
- In Thibodeau v Air Canada, the Supreme Court of Canada recognized that section 77 of the OLA “is certainly part of a quasi-constitutional statutory scheme designed to both reflect and actualize the equality of status of English and French as the official languages of Canada and the equal rights and privileges as to their use in the institutions of Parliament and government of Canada”. The court held that this provision should be interpreted as generously as the substantive rights provided for in the OLA “to achieve its purpose”Footnote 91.
- The extraordinary scope of this remedy is not surprising given that Part X of the OLA was designed to extend section 24 of the Charter. The Parliamentary debates about Part X of the OLA refer directly to this constitutional source, as the testimony of the then Minister of Justice reveals:
- It is precisely because there is a judicial recourse under section 24 of the Charter that the bill provides a similar one under Part X. If the courts are to accept the new official languages bill as a reasonable approximation of the language provisions of the Constitution, court enforcement must be possibleFootnote 11.
- Referring to subsection 24(1) of the Charter, the wording of which is fully reproduced in section 77, the Supreme Court held that “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion”Footnote 92.
- The court remedy provided for in section 77 is therefore unparalleled in Canadian legislation. Like the remedy provided for in section 24 of the Charter, it should not be frustrated by a “[n]arrow and technical” readingFootnote 93. The Supreme Court of Canada noted as follows:
- As Lamer J. stated in Mills, “[a] remedy must be easily available and constitutional rights should not be ‘smothered in procedural delays and difficulties’” (p. 882). Anything less would undermine the role of s. 24(1) as a cornerstone upon which the rights and freedoms guaranteed by the Charter are founded, and a critical means by which they are realized and preservedFootnote 94.
- By refusing to consider the relevant facts that would have allowed the court to have before it the full scope of the problem alleged by the complainant, the trial court effectively stifled language rights through procedural difficulties.
- Given its origin, which is rooted in the fundamental principles of our Constitution, its wholly innovative character and its recent reforms, which had the clearly established objective of enhancing the accountability of federal institutions towards Canada’s minority communities, Part VII of the OLA required much more than an interpretation largely derived from dictionaries. A thorough analysis of its purpose and the context in which it was enacted establishes that Part VII imposes specific obligations on federal institutions. In fact, even though the text of subsection 41(2) confers some discretion as to choosing positive measures, or measures adopted so as not to harm communities in a given context, Parliament’s intention was clearly to make institutions accountable before the courts for the decision-making processes leading to the adoption of these measures.
- Moreover, where there is a right, there must be an effective remedy to ensure the right is respected. The survival and vitality of our country’s minority communities require nothing less. An interpretation of Part X of the OLA that is in line with its purpose must allow the courts to consider any fact that arises between the complaint and the court remedy when that fact is useful to get an “overview” of the problem described in the complaint.
- For all these reasons, the Commissioner is seeking the following remedies from the Court:
- An order allowing this appeal;
- An order setting aside the decision of the Honourable Mr. Justice Denis Gascon;
- Any other remedy that this Court considers appropriate and fair in the circumstances;
- With costs.
Gatineau, Quebec, February 19, 2019.