Memorandum of fact and Law of the Commissioner of Official Languages of Canada

a. The history of Part VII demonstrates a continuing intention to create a tangible obligation in the decision-making process of federal institutions

19. 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.
20. 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 equality^{Footnote 11}.
21. 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 Gauthier^{Footnote 12}. The last iteration of these bills, Bill S-3, received Royal Assent in 2005^{Footnote 13}.
22. In the meantime, the federal government established, in 2003, the Action Plan for Official Languages^{Footnote 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 OLA^{Footnote 16}, particularly in respect of the government’s commitments under Part VII^{Footnote 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 accordingly^{Footnote 18}.
23. 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 provisions^{Footnote 19}.
24. The use of extrinsic documents is particularly appropriate where these documents were expressly considered by Parliament when it enacted a provision^{Footnote 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 institutions^{Footnote 21}. [Emphasis added.]^{Footnote 22}
25. 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 findings^{Footnote 23}.
26. 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 consultations^{Footnote 24}.
27. 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 provision^{Footnote 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 communities^{Footnote 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.
28. 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 adapted^{Footnote 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 communities^{Footnote 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 decision^{Footnote 30}.

29. 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 did^{Footnote 31}.
30. 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 issues^{Footnote 32}, and the bill was adopted by the Committee at the following meeting^{Footnote 33}.
31. 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 breaches^{Footnote 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 around^{Footnote 35}.

b. The administrative interpretation after 2005 complies with Parliament’s intention

32. Shortly after the new Part VII came into effect, Canadian Heritage, the primary institution responsible for coordinating the implementation of that Part^{Footnote 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 service^{Footnote 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.
33. 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 guides^{Footnote 39}, interpretation bulletins^{Footnote 40}, and even some government websites^{Footnote 41} while interpreting legislative provisions. The trial judge therefore erred in considering the Guide as evidence^{Footnote 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.
34. 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 accuracy^{Footnote 43}. 
35. 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}. 
36. 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}.
37. 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}.
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 statute^{Footnote 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:
    • [translation]
    • 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 text^{Footnote 48}.
39. 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 government^{Footnote 49}.
40. 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 Framework^{Footnote 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 41^{Footnote 52}. ESDC also admits that it may be necessary to consult with communities throughout the year before making a final decision^{Footnote 53}. The “toolkit” used by ESDC staff in these consultations includes the Guide, among other things^{Footnote 54}.
41. 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

42. 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.
43. 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.
44.  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.
45. 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.
46. 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.
47. 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).
48. 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.