Protecting Language Rights: Overview of the Commissioner’s Interventions in the Courts 2006–2016

A tumultuous start

In September 2006, the Department of Canadian Heritage eliminated the federal Court Challenges Program, the objective of which was to provide financial support to complainants wishing to take legal action regarding the infringement of their rights guaranteed by the Canadian Charter of Rights and Freedoms. As a result of this decision, Canadians and official language communities found it harder to access the financial resources they needed to go to court and defend their language rights.

Commissioner Graham Fraser was appointed in October 2006, as the decision by Canadian Heritage was sparking more than a hundred complaints and an application for judicial review.^{Footnote 24} The Fédération des communautés francophones et acadienne du Canada (FCFA)^{Footnote 24} petitioned the Federal Court to reinstate the Court Challenges Program.

The FCFA’s application for judicial review was suspended while the Commissioner investigated the matter; then, in 2007, legal proceedings began pursuant to Part X of the Official Languages Act. Further to his investigation, the Commissioner found that Canadian Heritage had failed to meet its obligations under Part VII of the Act and obtained intervener status before the Federal Court. This allowed him to participate in the first legal debate on the interpretation of the new obligations set out in Part VII of the Act following the adoption of Senator Gauthier’s bill in 2005. On the eve of the Court’s ruling, the parties settled out of court, ushering in the new Language Rights Support Program.

From 2006 to 2008, the Commissioner also intervened in three other cases: an appeal to the Supreme Court of Canada,^{Footnote 25} an appeal involving the Fédération franco-ténoise before the Court of Appeal of the Northwest Territories^{Footnote 26} and an appeal by Air Canada in Michel Thibodeau’s case before the Federal Court of Appeal.^{Footnote 27}

The Commissioner’s role before the courts

This series of court cases, at the very outset of Commissioner Fraser’s mandate, led to some reflection with his team on how he should approach his role before the courts. At least two other factors contributed to this reflection.

First, when he arrived in office, the Commissioner noted a certain stagnation of efforts by federal institutions to implement the Act. This resulted in an in-depth review of all the powers at the Commissioner’s disposal to determine how he could seek greater compliance from federal institutions. “Despite the progress achieved here and there in recent years,” he wrote in his 2007–2008 annual report, “the implementation of the Act is still largely incomplete and often prone to setbacks.”^{Footnote 28}

Pierre Foucher, Professor of Law at the University of Ottawa, is of the same view and points out that the threat of legal action no longer appears to be yielding the anticipated results. He notes that, “in the first years after the 1988 Act took effect, many proceedings were launched, and many were abandoned. Could it be that the mere act of starting legal proceedings prompted federal institutions to settle? Conversely,… today … trials go ahead and decisions are rendered. Is this a sign that federal positions have toughened, even as the jurisprudence has become clearer? [translation] ”^{Footnote 29}

Furthermore, the amendments to Part VII of the Act regarding the advancement of English and French have obliged federal institutions since 2005 to take positive measures to enhance the vitality of English and French linguistic minority communities and foster the recognition and use of English and French in Canadian society. Yet, by the late 2000s, there was still “a lack of understanding within the federal administration as to how the amended Part VII affects government obligations. Most federal institutions are still unclear on how to give form to these obligations in their respective areas of operation.”^{Footnote 30} The Commissioner felt that it was important to include the courts in the dialogue that had just begun on Part VII.

This reflection culminated in a discussion session in Ottawa in February 2010, at which experts and practitioners studied the role that the Office of the Commissioner of Official Languages should be playing before the courts. The Commissioner also consulted representatives of official language communities, including the FCFA and the Quebec Community Groups Network, to get their viewpoints on this important matter.

Shortly thereafter, Commissioner Fraser clarified the principles that would guide how he exercises his right to participate in the judicial process.

New criteria for intervention

In deciding whether to intervene in a case initiated by a complainant, the Commissioner will henceforth conduct a strategic analysis of the situation, applying the following criteria:

1. Does the case involve new issues in terms of interpreting language rights?
2. Does the case raise important procedural or preliminary questions pertaining to the court’s powers or jurisdiction?^{Footnote 31}
3. Is the court decision likely to affect the Commissioner’s mandate or powers?
4. To what extent could the decision create a precedent that might influence future court decisions?
5. What additional contribution could the Commissioner make to the debate in his role as Canada’s language ombudsman?
6. What impact could the court decision have on official language communities?

In deciding whether to take legal action on his own initiative, the Commissioner assesses whether all the other powers at his disposal for getting federal institutions to comply with their language obligations have been exhausted. Thus, in following up on an investigation, the Commissioner determines whether the federal institution that is the subject of the complaint has taken appropriate measures to implement his recommendations. If it has not, the Commissioner has 60 days to seek legal recourse. Alternatively, he may decide that a report to the Governor in Council is a better strategy.

Since 2009, Commissioner Fraser has sought to uphold and advance the language rights of Canadians and official language communities by applying a facilitated resolution process and working more proactively with federal institutions to help them resolve their compliance issues. Nevertheless, he will continue to exercise his power to appear before the courts when necessary, intervening in proceedings initiated by complainants or taking legal action himself, with the complainant’s consent.

A number of major cases

Commissioner Fraser’s participation in legal proceedings, like that of his predecessors, has helped to clarify the language obligations of provincial governments and federal institutions.

In 2008, Commissioner Fraser intervened in the Supreme Court in the Nguyen case, which sought to overturn a provision in the Charter of the French Language that excluded instruction at non-subsidized private English-language schools from calculations used to determine whether a child was eligible to attend public or subsidized English-language schools.

In his intervention, the Commissioner acknowledged that application of the rights guaranteed under section 23 of the Canadian Charter of Rights and Freedoms must take into account the specific linguistic dynamics of provinces and territories and the legitimate goal of protecting the French language in Quebec. However, the Commissioner contended that the provisions adopted by the National Assembly of Quebec could not set aside the criteria established by the Supreme Court in Casimir for determining whether a child had a genuine commitment to a minority-language education.

In 2009, the Supreme Court confirmed this position and concluded that, by refusing to consider a child’s private school experience, the provision in the Charter of the French Language drastically limited the rights guaranteed under section 23 of the Canadian Charter of Rights and Freedoms.

In 2014, the Commissioner intervened in a case between the Association des parents de l’école Rose-des-vents and the British Columbia Ministry of Education. In 2015, the Supreme Court confirmed in a unanimous ruling that minority-language students are entitled, as the Commissioner affirmed, to an educational experience of meaningfully similar quality to that offered to majority-language students. The educational experience of minority-language children (including school infrastructure, busing times and programs offered) must be equivalent to the educational experience of majority-language students.

Commissioner Fraser’s participation in certain cases has also resulted in clarification of the concept of substantive equality in government services. In 2008, the Commissioner responded to a ruling of the Federal Court of Appeal by taking the DesRochers case to the Supreme Court and acting as co-appellant alongside the complainants, the Centre d’avancement et de leadership en développement économique communautaire de la Huronie (CALDECH) and its director, Raymond DesRochers. CALDECH is a support agency created by Franco-Ontarians to remedy shortcomings in services provided by the North Simcoe Community Futures Development Corporation to Francophones in the Huronia region of Ontario.

This case dealt with the nature and scope of the principle of language equality in the delivery of services by federal institutions. The questions that this case set out to answer were the following: Does the right to equal services set out in subsection 20(1) of the Charter and in Part IV of the Act merely mean that Canadians have “linguistically equal access,” in other words, the right to obtain federal services in the official language of their choice? Or do the Charter and the Act also imply equal “quality of services,” which would guarantee communities the right to receive federal services of a quality equal to those available to the official language majority?

In 2009, the Supreme Court upheld the interpretation of the Commissioner, DesRochers and CALDECH and concluded that “it is difficult to imagine how the federal institution [North Simcoe Community Futures Development Corporation] could provide the … services mentioned in this description without the participation of the targeted communities in both the development and the implementation of programs.”^{Footnote 34} This landmark decision confirmed that members of the public are entitled to services of equal quality and that federal institutions must consider the nature and purpose of the services they provide to Canadians in defining the extent of their language obligations.

The Treasury Board responded promptly to the Supreme Court ruling by urging federal institutions to apply the principle of substantive equality to their services and programs and giving them a tool for that purpose.^{Footnote 35}

In addition to the court interventions mentioned above, the Commissioner initiated proceedings against CBC/Radio-Canada in 2010 to obtain clarification from the Federal Court on his jurisdiction to investigate complaints into the broadcaster’s programming operations and the extent of its obligations under Part VII of the Act.^{Footnote 36}

This action followed an investigation into 876 complaints received by the Commissioner in 2009–2010 with regard to CBC/Radio-Canada’s decision to make budget cuts to CBEF 540 Windsor, a French-language AM radio station in southwestern Ontario. This decision resulted in the elimination of almost all local programming. The complainants felt that the Crown corporation had violated Part VII of the Act by failing to take into account the impact this decision would have on the Francophone community in Windsor.

CBC/Radio-Canada refused both to recognize the Commissioner’s jurisdiction to investigate complaints and to implement the recommendations in the Commissioner’s investigation report, which had concluded that the broadcaster had not complied with Part VII of the Act. This dispute led the Commissioner to exercise his power to take legal action of his own initiative, given the importance of the question of his jurisdiction to investigate CBC/Radio-Canada and the fact that the legal impasse on the matter had dragged on for several years.

In 2014, the Federal Court confirmed that the Commissioner had concurrent jurisdiction to that of the Canadian Radio-television and Telecommunications Commission and could investigate complaints filed against CBC/Radio-Canada under the Act, particularly Part VII. In its ruling, the Court also declared, for the first time, that federal institutions must not only promote the development of official language communities, but also act in a manner that does not hinder their development and vitality. In fact, in the Court’s view, enhancing the vitality of official language communities “is a categorical, non-negotiable imperative”^{Footnote 37} for CBC/Radio-Canada and other federal institutions.

CBC/Radio-Canada decided to appeal this ruling on both the matter of the Commissioner’s jurisdiction to investigate and the extent of the broadcaster’s obligations under Part VII of the Act. In November 2015, the Federal Court of Appeal upheld CBC/Radio-Canada’s appeal and quashed the order by the Federal Court on the grounds that the Court had made procedural errors. However, the Federal Court of Appeal made a point of stating that “the CRTC cannot reach any conclusion regarding breaches of the [Act].”^{Footnote 38} Thus, after five years of litigation, the important questions for which the Commissioner had hoped to obtain clarification from the courts remain unanswered.

While he was filing proceedings against CBC/Radio-Canada in 2010, Commissioner Fraser was also intervening in a Federal Court case filed by Michel and Lynda Thibodeau against Air Canada, after the Office of the Commissioner had concluded that several complaints they had filed were founded. This was the second case filed by Thibodeau against the airline. The facts had not changed substantially since the first one (which had resulted in a victory in the Federal Court of Appeal in 2007); the Thibodeaus had not been served in French on two international flights.

As in the first case, the Thibodeaus did not hire a lawyer, but rather represented themselves in Federal Court. In its response to the proceedings, Air Canada did not dispute that it had violated the couple's rights under the Act eight times during a single trip. Instead, the company invoked the Montreal Convention, an international agreement on air travel that, in Air Canada’s view, prevented the Court from granting the complainants financial compensation.

Thanks to the Commissioner’s presence as intervener, the Court heard complete and sound arguments on how the Act and the Montreal Convention interact. In 2011, the Federal Court upheld the Commissioner’s argument that, in the event of a conflict, the Act prevails.^{Footnote 40} Air Canada, however, decided to appeal this decision to the Federal Court of Appeal, and this court ruled in favour of the carrier in 2012.^{Footnote 41}

In 2013, the Supreme Court granted the Commissioner and the Thibodeaus leave to appeal the decision of the Federal Court of Appeal. In its 2014 ruling, the Supreme Court confirmed that the Act has a quasi-constitutional status.^{Footnote 42} It also validated the provision in the Act giving the Federal Court remedial powers where federal institutions fail to comply with the obligations set out in the Act. However, the Supreme Court concluded that there is no conflict between the Act and the Montreal Convention, but that the latter does prevent the Federal Court from awarding monetary damages to the Thibodeaus.

Even though the Supreme Court did not uphold the position taken by the Thibodeaus and the Commissioner, this case still contributed to the dialogue between the judicial and legislative branches. In fact, following the Supreme Court ruling in Thibodeau, Member of Parliament Stéphane Dion tabled a bill in April 2015 to establish that the Montreal Convention cannot infringe upon the fundamental rights set out in the Act. This bill died when the House of Commons was dissolved in August 2015.

Choosing the right case

Some people feel that the Commissioner of Official Languages could intervene more in the courts or be more legally proactive. For example, the FCFA is of the view that the Commissioner should make more use of the powers conferred on him by Part X of the Official Languages Act, given the enormous burden that litigation places on official language communities.

Diane Côté, Director of Community and Government Liaison at the FCFA, notes that “it is very hard for a non-profit organization like ours, operating with few employees and limited financial means, to seek redress in court. We would like to see the Commissioner, with his team of experienced legal counsel, initiate more proceedings himself in matters that are important to community development, such as the elimination of the mandatory long census form or the Court Challenges Program. [translation]”

“In fact,” says Suzanne Bossé, the FCFA’s executive director, “we feel that not only is the Commissioner better equipped than we are to take legal action, but he is also mandated by the Act to do so. We have a hard time understanding why, when an institution admits to violating Part VII of the Act or rejects the findings of an investigation or audit, the Commissioner does not initiate proceedings himself to clarify the institution’s obligations or compel it to meet its obligations. When these things happen, the Commissioner should take action. [translation]”^{Footnote 43}

These expectations as to how the Commissioner should be exercising his powers to initiate court proceedings are entirely legitimate. That being said, there are various factors that account for why these powers are used sparingly, as mentioned in Chapter 2.

In general, the Commissioner will not take a case to court until all non-judicial means at his disposal to make a federal institution comply with its language obligations under the Act have been exhausted. He will therefore normally await the results of the follow-up to an investigation before determining that legal action is the only way to compel a federal institution to honour its language obligations. As Justice Paul Rouleau said in the discussions that took place at the Office of the Commissioner in 2010, “One must choose the right facts, the right cause and the right timing when it comes to official languages. The right choice is critical, since cases may serve to establish limits; decisions must there­ fore be made with a view to the future. [translation]”^{Footnote 44} These principles guide the Commissioner in deciding to take legal action.

That being said, data on the number of times the Commissioner has exercised his powers under Part X of the Act show that Commissioner Fraser has been just as active as his predecessors since 1984, commissioners of official languages have participated in 104 cases involving language rights. Commissioner Fraser participated in 23 cases from 2006 to 2016, 9 of which were before the Supreme Court.

What the numbers say

As shown in Figure 1, Commissioner Fraser has appeared before the courts as an intervener 19 times and four times as a party to the case. By participating four times as a party to the case (before the Supreme Court in DesRochers and Thibodeau, and before the Federal Court and Federal Court of Appeal in the case against CBC/Radio-Canada), Commissioner Fraser followed in the footsteps of the other commissioners, who sought party status in 19% of cases.

Table - Figure 1 — Commissioner Fraser’s participation in language cases, by type of intervention

Number of cases	Commissioner’s role
9	Intervener (Official Languages Act)
6	Intervener (provincial or territorial legislation)
4	Intervener (Canadian Charter of Rights and Freedoms)
4	Party to the proceedings (Official Languages Act)

Table - Figure 2 — Commissioner Fraser’s participation in language cases, by type of case

Number of cases	Type of case
14	Cases pertaining to the Official Languages Act
5	Other types of cases
4	Cases pertaining to the Canadian Charter of Rights and Freedoms

Figure 2 shows that cases based on the Act represent 60% of Commissioner Fraser’s involvement in legal proceedings from 2006 to 2016. About one fifth dealt with language rights protected under section 23 of the Canadian Charter of Rights and Freedoms (language of instruction). A similar proportion concerned issues arising primarily from provincial or territorial legislation.^{Footnote 45} These percentages are essentially the same as those reported by other commissioners between 1984 to 2006.

Legal action on issues pertaining to the Act, in which Commissioner Fraser and his predecessors participated, dealt chiefly with communications with and services to the public (Part IV), particularly the rights of the travelling public. This is hardly surprising, since the majority of complaints received by the Office of the Commissioner are related to these obligations.

On the other hand, very few cases have involved language of work in the federal administration (Part V) and the advancement of English and French in Canadian society (Part VII). Federal employees are reluctant to complain to the Commissioner and especially reluctant^{Footnote 46} to appear in court to defend their right to work in the official language of their choice. The scarcity of cases relating to Part VII is explained by the fact that it only became enforceable a decade ago.

In addition to these statistics, however, it is important to assess the impact of the Commissioner’s involvement before the courts.

Mainly Francophone rights, but …

Since 1984, the Office of the Commissioner has participated more often in cases relating to the language rights of the country’s Francophone minority communities than in those involving Quebec’s English-speaking communities. According to Michael N. Bergman, a Montréal lawyer, “This is simply due to the fact that there have not been that many cases in the courts involving the English-speaking minority of Quebec. The opportunity for the different commissioners to intervene in a legal way has been limited. As a result, most of the jurisprudence created through their interventions comes from litigation involving Canada’s Francophone minorities.”^{Footnote 47}

Not only that, says Bergman, but “the dearth of cases from the English-speaking minority of Quebec, relative to the greater number of cases from the French-speaking minority in the rest of Canada, is due to the fact that language litigation in Quebec always necessitates challenging the Charter of the French Language; such challenges are controversial and may set off anew linguistic tensions.”

Lawyer Ron Caza believes that the involvement of commissioners of official languages in cases dealing with access to English-language schools in Quebec has had positive repercussions. “They have lent credibility to difficult court cases addressing the issue of Anglophone rights in Quebec. They intervened to explain that, in looking at the big picture of the situation in this province, it is essential to allow for a broad interpretation of language rights. This took courage on their part. [translation]”^{Footnote 32}

Legitimacy and solidarity

According to former Supreme Court judge Michel Bastarache, the Commissioner has a number of important tools at his disposal, but his power to intervene before the courts is particularly important, since it helps to rally official language communities behind individuals who have the courage to take a stand and defend their language rights in court.

Bastarache adds that “communities do not always show solidarity, because they are wary of taking a stand and confrontation. By intervening, the Commissioner reassures complainants, alleviates their sense of isolation and lends greater legitimacy to their positions.”

“Thibodeau v Air Canada was the finest illustration of this,” says Bastarache. “The media ridiculed the complainants, who were asserting their right to be served in French on international flights. Some journalists sneeringly questioned whether the Canadian Charter of Rights and Freedoms would uphold the right to ask for a 7UP in French. By intervening in the case and emphasizing that this was not the real issue, that it was more a matter of respect, that Air Canada had to respect individuals who wanted to be served in the official language of their choice and were entitled to this right, Commissioner Fraser lent weight to the Thibodeaus’ case and diffused the ridicule.”

“In stressing his role before the courts,” concludes Bastarache, “Commissioner Fraser has raised the credibility and relevance of the institution he leads. [translation]”^{Footnote 32}

Power to intervene or take legal action: A strategic tool

In short, the power to intervene or to take legal action is a tool that commissioners of official languages use strategically to contribute to the dialogue on language rights and to clarify and advance these rights. Commissioner Fraser, like his predecessors, has used this power many times, occasionally as the main party in a proceeding, and in many instances his involvement has had a significant impact.