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Foreword
Here I am—already at the end of a seven-year mandate as Commissioner of Official Languages, during which great progress has been made in terms of language rights in Canada.
As the cases I participated in—either as a party or intervener—throughout my mandate show, I have not hesitated to appear in court to both protect language rights and advance jurisprudence in this area.
Unsurprisingly, I have been involved in many cases involving my enabling statute, defending fundamental rights such as access to the courts in the official language of one’s choice, the public’s right to receive services and communications in the official language of their choice, the right to work in the official language of one’s choice in the public service and the vitality of official language minority communities.
Like my predecessors, I also took every opportunity to make innovative arguments before the Supreme Court of Canada regarding the right to minority-language education, as is constitutionally protected by section 23 of the Canadian Charter of Rights and Freedoms
Lastly, twice before the Supreme Court of Canada, I helped protect access to the courts in the official language of one’s choice under section 530 of the Criminal Code.
Reflecting on all these cases, I am finishing out my mandate with cautious optimism about the protection of language rights for individuals and official language communities in Canada.
While I recognize that our system of government is made up of the executive, legislative and judicial branches, I also recognize that the courts play a vital role in protecting minority language rights. As the Supreme Court of Canada recognized in the Mahe decision, “minority language groups cannot always rely upon the majority to take account of all of their linguistic and cultural concerns.
Since the majority—and the governments that represent it—cannot always fully appreciate the needs of linguistic minorities, it is vital that the courts continue to protect the rule of law and the Canadian Constitution.
It goes without saying that many new questions of interpretation will arise following the modernization of the Act and the imminent adoption of the Use of French in Federally Regulated Private Businesses Act
Raymond Théberge
Commissioner of Official Languages
Introduction
It is essential to continually reflect on the Commissioner of Official Languages of Canada’s role before the Courts as an ombudsperson and protector of language rights. The Commissioner of Official Languages’ involvement—and that of his predecessors—in various legal proceedings has helped establish a rich body of language rights jurisprudence on which individuals and official language communities can rely to assert their guaranteed rights.
Building on this, this report updates the previous report, “Protecting Language Rights: Overview of the Commissioner’s Interventions in the Court 2006–2016,” that Commissioner Fraser prepared toward the end of his mandate. As such, it is still intended to be of benefit to the public, federal institutions and governments—federal and provincial—that find themselves before the courts in language rights cases.
This report highlights the history of the Official Languages Act and the Commissioner of Official Languages’ court appearances, highlighting five key events in the Act’s history, culminating—most recently—in the modernization of the Act and the Commissioner’s powers. It highlights some of the landmark cases of previous commissioners, including—in Appendix B—a list of cases in which commissioners have intervened since the Canadian Charter of Rights and Freedoms.
This report looks back at my tenure as Commissioner, examining the 13 cases I have been involved in over the past 7 years. The relevant statistics for these cases can be found in Appendix A.
Lastly, this report aims to outline the various types of recourse available to the Commissioner, highlighting the considerations specific to each type of court intervention. The report transparently explains when and how the Commissioner may find themselves before the courts.
Looking both to the past and toward the future, this report highlights the significant progress made over the years and calls on my successor to be vigilant in ensuring that the language rights acquired and protected in Canada remain so.
Historical overview of the Official Languages Act and remedies
Five key events in the history of the Official Languages Act
1969 – Adoption of the first Official Languages Act
In response to one of the recommendations of the Royal Commission on Bilingualism and Biculturalism, the federal government passed the first-ever Official Languages Act (the Act) in 1969. The Act established English and French as the country’s official languages, with equal status in federal institutions, and guaranteed Canadians the right to receive services from federal institutions in the official language of their choice.
It was this very first Act that created the position of Commissioner of Official Languages of Canada (the Commissioner), an Officer of Parliament whose role is to promote compliance with the Act and oversee its implementation.
However, the 1969 Act gave neither complainants nor the Commissioner the power to take legal action to compel a federal institution to uphold the public’s language rights.
1982 - Adoption of the Canadian Charter of Rights and Freedoms
The enactment of the Charter in 1982 naturally led to constitutional rights cases. There are a number of sections in the Charter that guarantee and strengthen the language rights of Canadians, including the right to use one’s official language of choice in Parliament
Because of these constitutional provisions, individuals and communities are able to actively organize in order to assert their language rights, and the Commissioner can stand with them by intervening in constitutional language rights cases.
1988 - Adoption of the new Official Languages Act
However, it was not until 1988 that the Parliament of Canada strengthened the Act to the point that it became enforceable
Since 1988, the Commissioner has also been able to invoke the Act to intervene in cases relating to the status and use of English or French, allowing them to intervene in all cases relating to the language rights guaranteed by the Act, the Charter, the Criminal Code, or in other provincial or territorial cases
2005 - Adoption of amendments to the Official Languages Act
In 2005, following the events that led to the Federal Court of Appeal’s decision in the Forum des Maires case
2023 – Modernization of the Official Languages Act
The Act was finally modernized in 2023, following extensive engagement by various official language community stakeholders.
The Act now includes clearer provisions and better-defined obligations to ensure that federal institutions meet their official languages obligations. The Act also introduces a complete overhaul of Part VII, which deals with the advancement of equality of the official languages and the minority communities that speak them.
The modernized Act of 2023 also grants the Commissioner new powers to allow for greater compliance by federal institutions with the Act. In addition to these powers, there are new legal remedies the Commissioner may use at their discretion. These powers are discussed in section III of this report.
My predecessors in court (1983–2018)
A few landmark cases
From 1983 to 2018, all my predecessors intervened in language rights-related legal cases. These cases have resulted in significant decisions that have provided the courts the opportunity to define the scope of language rights and specify governments’ obligations regarding their implementation. Appendix B contains a list of these cases. Nevertheless, I would like to highlight just a few of the many landmark cases that have advanced language rights.
In 1983, Commissioner Yalden intervened in Reference re Education Act of Ontario and Minority Language Education Rights
The discussion of management and control rights continued in 1986, when Commissioner Fortier intervened before the Alberta Court of Appeal and then again before the Supreme Court of Canada in the Mahe case
As the Court noted, minority education plays a “vital” role “in preserving and encouraging linguistic and cultural vitality.
To this day, that decision is still frequently cited in litigation on language rights. Furthermore, as we well know, the right to manage and control education and schools is still crucially important to linguistic minorities, as it protects a certain sphere of decision-making “by” and “for” minority communities. As the Supreme Court recognized in this case, for linguistic minorities, managing and controlling their education, “is vital to ensure that their language and culture flourish.
In 1991, Commissioner Fortier intervened in the Viola case
In 1999, Commissioner Goldbloom intervened in the Beaulac case
Commissioner Fraser’s participation as co-appellant in DesRochers
As this brief overview of key cases shows, the Commissioners of Official Languages have always contributed to important language-related cases in Canada. Their contributions—whether as parties or interveners—are essential to carrying out their mandate, which is to take all necessary measures to ensure that the status of each official language is recognized and uphold the spirit and intent of the Act in the administration of federal institutions’ affairs, including the advancement of English and French in Canadian society.
Commissioner Théberge’s cases (2018-2025)
While carrying out my mandate, I have focused on using the courts effectively to promote the equal status of both official languages and encourage greater respect for the Act and its spirit. This has allowed me to identify a series of cases in which I have been able to have a tangible and positive impact on the language rights of Canadians.
Cases related to the Official Languages Act
Unsurprisingly, during my time as Commissioner, I have intervened several times in cases relating to various parts of my enabling legislation. It is very important for me to intervene in these types of cases, as I must take the necessary measures to ensure the obligations in the Act are met.
For a detailed summary of all the cases I have been involved in, you may click on the hyperlinks in this document.
Access to the courts in the official language of one’s choice
I intervened before the Supreme Court of Canada in Mazraani v Industrial Alliance
As the Supreme Court concluded, the language rights of several individuals had been breached before the Tax Court of Canada (TCC) in this case, given the judge’s insistence that witnesses and Industrial Alliance’s lawyer address the court in English to facilitate Mr. Mazraani’s understanding. However, the Supreme Court rectified the situation by stating very clearly—and unanimously—that the judge could not impose the official language chosen by one of the parties on the others. In this respect, the very first paragraph of the Court’s judgment is revealing:
In Canada, the right to speak in the official language of one’s choice in certain courts is a fundamental and substantive right that is recognized in both constitutional and quasi-constitutional laws. Any person who appears in the courts in question must be able to exercise this right freely. When a person asks a judge of one of these courts for permission to speak in the official language of their choice, the judge’s answer must be yes
Moreover, the Supreme Court also noted that Mr. Mazraani’s language rights had been violated as well, although Mr. Mazraani had not raised this point. The judge had not informed him of his right to an interpreter to understand the testimony of the parties and witnesses who wished to testify in French. Yet, according to the Court, the judge must inform a party of their right to an interpreter when another party or witness will be speaking in an official language other than the one chosen by the party. In other words, a party’s decision not to avail itself of its right to an interpreter must not be used to compel other parties, witnesses or lawyers to speak in that party’s official language.
The impact of this decision is undoubtedly significant.
The Court’s reasons could not have been clearer: the federal court—particularly the presiding judge—is responsible for ensuring that the language rights of the parties, witnesses and anyone else appearing in court are respected. Contrary to what happened before the TCC , a judge simply cannot ask someone to speak in an official language other than that of their choice. Such a request constitutes a violation of the language rights set out in section 14 of the Act, section 19 of the Charter and section 133 of the Constitution Act, 1867.
This is because—ultimately—the right protected by the provisions in question is that of choosing the official language to use in court. As the Supreme Court clearly stated, this choice must be free and informed.
With regard to the remedy granted, the Supreme Court confirmed that when the language rights of a party or their lawyer are violated, the appropriate remedy is generally a new hearing, which is precisely what the Court ordered in this case.
I’m delighted with the clear message this decision sends to the federal courts about everyone’s right to justice in the official language of their choice. Since this decision, I believe that federal courts are better prepared and equipped to serve Canadians in the official language of their choice.
Airport context and the rights of members of the public
Like my predecessors, I have had to intervene on several occasions during my time as Commissioner in cases relating to Part IV of the Act (communications with and services to the public), with respect to airports and air travel.
While the public’s language rights were clearly meant to be upheld amid the transfer of public airports
Based on the favourable decisions rendered during my mandate, I am nevertheless hopeful that my airport-related interventions will protect the rights of the travelling public across the country, now and in the future. In this respect, I must acknowledge the courage and sustained efforts of Mr. Thibodeau. Without his help, we would not have been able to achieve these jurisprudential advances. The Federal Court noted that language rights advocates such as Mr. Thibodeau contribute to the “institutional conscientization” of federal institutions
Safety-related signage in both official languages
In Michel and Lynda Thibodeau v Air Canada
As the Commissioner notes, equality between the official languages has four components. Section 16 of the Charter and section 2 of the Act provide that English and French have equality of status and equal rights and privileges as to their use. Equality of access and equality of quality derive from the Beaulac decision, which deals with the nature of linguistic obligations, specifying that “substantive equality is the applicable standard in Canadian law,” so that there must be “equal access to services of equal quality for members of both official language communities in Canada” (Beaulac, paragraph 22)
Based on this analysis, the Court concluded that the size difference of the words “Exit” and “Sortie” on a public sign affirms the predominance of English over French, which violates the principle of equal status. As for the unilingual use of the word “Lift” on seat belts, the Court did not hesitate to find that Air Canada’s unilingual use of a message to its passengers violates the Act.
I am very satisfied with this ruling, which has made it possible to prescribe the components of substantive equality that will serve as a reference grid in interpreting the Act. I am also satisfied that this decision has addressed certain inequalities that exist in Air Canada’s approach to communications and service delivery. I believed that it was essential for the Court to adopt an interpretation of the Act that confirms and applies the principles of substantive equality to ensure that all communications from a federal institution subject to obligations under the Act and aimed at the public can be provided in both official languages.
The true scope of airport authorities’ obligations
In Thibodeau v St. John’s International Airport Authority
With regard to the interpretation of section 22 of the Act, the Court rejected SJIAA ’s argument that, by virtue of section 4 of the ATA , airport authorities would have no head or central offices
I think the Commissioner is right. His proposed interpretation is in line with the wording of section 4 and with the scheme and object of the ATA . SJIAA ’s proposed interpretation—on the other hand—ignores the text and structure of section 4
With regard to the definition of the “travelling public” in section 23 of the Act, the Court rejected SJIAA ’s proposed definition, which was based on a narrow interpretation of the term, in favour of a broad and liberal interpretation to ensure that those with the right to be served in French or English include not only those who are travelling, but also those who use the services with the intention of travelling.
In confirming that my interpretation of the Act is correct, the Court has ensured that federal institutions cannot shirk their duty of ensuring their communications with the public are available in both official languages by targeting a more limited audience. The Court’s decision in this case ensures Canadians and federal institutions have a clear, fair and predictable language regime.
SJIAA appealed the Federal Court’s decision. The Federal Court of Appeal rendered its decision in November 2024, upholding the trial decision
I would also like to add that the wording of section 23 of the Act was amended when the Act was modernized in 2023—in line with some of my recommendations—to specify that the duties imposed on federal institutions serving the travelling public include those under section 22 of the Act.
A broad and liberal interpretation of the Official Languages Regulations
Lastly, in Michel Thibodeau v Greater Toronto Airports Authority
My intervention aimed to counter GTAA ’s literal and restrictive interpretation of the Regulations, according to which any general signage not explicitly about a prescribed service would not be subject to the Act. In other words, GTAA argued that banking services advertising associated with CIBC ’s trademark, such as “bank before you fly” and “come bank with us,” constituted general advertising that would not be covered by subsection 12(1) of the Regulations. As for the Booster Juice complaint, GTAA argued that the “Fit & Fun Zone” sign was an advertisement for the playground and not for its restaurant services, and that there was therefore no obligation in connection with this service.
The Court rejected GTAA ’s argument that would essentially have permitted contractors to circumvent the language requirements with general advertising. The Court concluded that CIBC ’s general advertisements and Booster Juice’s sign at the entrance to the play area could not be dissociated from the regulatory services in question. In both cases, the signage aims to attract travellers to a service listed in the Regulations; therefore, it must be offered in both official languages.
The Court ultimately used the test we put forward, which involves using objective indicators to analyze the service in the complaint according to its nature, function and proximity to a prescribed service to determine whether it must be offered in both official languages.
This decision is very important, as it is a confirmation that the Act and its regulations and policies form a comprehensive legal framework. As such, it confirms that the principles of interpretation that apply to the Act also apply to its Regulations. Like the Act, the Regulations must be given a broad and liberal interpretation, in keeping with their objectives. According to the Federal Court, the purpose of the Regulations cannot be dissociated from that of the Act—a quasi-constitutional law that seeks to implement the fundamental values of the Charter with respect to bilingualism:
I am convinced that, if the Act is intended to clarify and develop constitutional rights, its Regulations must be recognized as a key instrument for implementing the fundamental values in the Act and the Charter [...].
Because the Act is quasi-constitutional in nature, the Regulations must be interpreted using a purposive approach including the same broad and liberal interpretation applicable to language rights
I am proud of this intervention, which has led to a landmark decision on the interpretation of language rights, especially since the Court’s findings will apply to the interpretation of all regulations made under the Act. As with Thibodeau v St. John’s International Airport Authority, this decision creates a clear framework, allowing the public to better understand the scope of their rights and assert them when they are breached.
Language of work in federal institutions
The Federal Court of Appeal’s decision in the Dionne case
In allowing the appeal, the Court determined that the Office of the Superintendent of Financial Institutions failed in its duty to take measures to establish and maintain a work environment that is conducive to the effective use of both official languages, as required by subsection 36(2) of the Act.
The Dionne decision is very useful, as it clarifies what constitutes “services that are centrally provided” under subsection 36(1) of the Act. Creating a precise test gives us much greater certainty in determining which services must be offered to employees in both official languages. With regard to subsection 36(2) of the Act, the Court of Appeal reinstated and adopted the Court’s interpretation in Tailleur
Employees of federal institutions can rely on the presumption that individuals have the right to perform all their duties in the official language of their choice and that the use of both official languages is the standard for all the institution’s activities. Any deviation from these principles must be an exception. Lastly, workplace bilingualism obligations are the responsibility of federal institutions, not their staff. I will continue to investigate Part V complaints vigilantly in light of the Federal Court of Appeal’s teaching in this decision.
Community vitality
The Federal Court of Appeal’s Fédération des francophones de la Colombie-Britannique (FFCB) decision
In this case, the Federal Court of Appeal overturned the trial decision, which unduly limited the scope of Part VII of the Act. As the Court of Appeal noted, the trial decision rendered Part VII meaningless
Fortunately, since the Federal Court of Appeal’s decision, it has become very clear in my investigations that federal institutions must carry out a two-step analysis, which—first and foremost—requires an impact analysis of federal institutions’ decisions that may affect government commitments. Next, institutions are required to act, taking positive measures to implement the government’s commitments. When a decision or initiative is likely to adversely affect these commitments, the federal institution must take steps to offset or mitigate the negative impacts. These are clear and specific duties that will ensure the government’s commitments are implemented effectively, particularly with regard to the development and vitality of linguistic minorities.
What makes the Court of Appeal’s decision even more significant is that the analytical framework in question was added to the Act when it was modernized in 2023. In fact, Part VII is one of the parts of the Act that has undergone the most changes since its modernization, to the point where it can be said that Part VII has been truly reformed.
I welcome the Court of Appeal’s decision—a concrete step in the advancement of substantive equality in Canada. I also commend the government for taking the opportunity to codify these advances within a modernized Part VII. This decision, along with the amendments to Part VII that have codified and improved it, will ensure that federal institutions consider the vitality of official language minority communities when making decisions that affect them.
Cases pertaining to section 23 of the Canadian Charter of Rights and Freedoms
Building on the expertise my office has acquired over the years, I regularly intervene in the courts when a case involves education in the minority language, which is protected by section 23 of the Charter. During my mandate, I intervened in two Supreme Court of Canada cases pertaining to section 23 of the Charter
One of these cases— CSFCB —was a colossal legal recourse in British Columbia about minority-language schools in the province.
It all began in 2010, when the Conseil scolaire francophone de la Colombie-Britannique (CSFCB), the Fédération des parents francophones de la Colombie-Britannique and three parents who are rights holders under section 23 of the Charter took the Province of British Columbia to court. They alleged that several aspects of the funding of the education system in British Columbia penalized the official language minority community and infringed on its section 23 rights.
In this landmark decision, a majority of the Supreme Court of Canada granted the appellants’ appeal in part. The majority clarified and confirmed the analytical framework applicable to section 23 of the Charter, ruling on a number of key issues for linguistic minorities, including the concept of sliding scale (identifying situations where the number of children of rights holders weighs in favour of homogeneous minority schools and the management and control of such schools), substantive equivalence (the principle that minority schools must be equivalent to majority schools), the interaction between sections 1 and 23 of the Charter, and appropriate remedies for violations of this constitutional right.
This decision is not only a major victory for British Columbia communities but also a victory for all minority communities in Canada—including Quebec—that are trying to assert their right to education in their own language. This decision answers many long-standing questions and provides a roadmap for governments who—I hope—will follow the Court’s precedent and quickly grant communities the minority-language educational facilities to which they are entitled.
I’m delighted to have been able to contribute, albeit in a minor way, to the communities’ success in this matter.
The other case, CSFTNO
The Supreme Court of Canada’s decision—which recognizes that the minister should have considered the values of section 23 of the Charter when exercising her discretion to admit children of non-rights holder parents to French-language schools—will help fight against the linguistic erosion suffered by Canada’s official language minority communities and support particularly vulnerable communities, such as those in the Northwest Territories. This decision ensures that governments will consider the values of section 23 of the Charter when making decisions that could affect minority-language education.
As the Supreme Court recognized, minority language education is fundamental to the full development of these communities, and official language minority community schools are the most important institution for their survival, as well as a key source of information for governments. This decision helps value the community’s view of its own needs and objectives.
Section 530 of the Criminal Code and criminal law
During my mandate, I also intervened twice in criminal cases before the Supreme Court of Canada. Both of these interventions had the same objective: to ensure that accused persons, who find themselves in a vulnerable position because of a major power imbalance, have easy access to the courts in the official language of their choice. In both the Bessette
I am very pleased with the Supreme Court of Canada’s decision in the Bessette case, as it upholds the importance of the right to a trial in the accused’s official language of choice and insists that breaching this right is a substantial wrong.
Like the appellant, I intervened in this case to clarify that appealing a criminal decision is not the appropriate remedy when a court violates the accused’s right to a trial in the official language of their choice. Much to my relief, the Supreme Court agreed.
Furthermore, I argued before the Supreme Court in this case that denying one’s right to a trial in the official language of their choice always has the same effect, whether it is statutory, provincial or incorporated by reference. I then argued that section 530 of the Criminal Code
The Supreme Court confirmed that section 530 of the Criminal Code implicitly repeals the 1731 Act with regard to trials under British Columbia’s Offence Act. The 1731 Act banned trials in French, while section 530 of the Criminal Code guarantees them. This decision therefore provides greater access to British Columbia courts in French.
Despite this notable victory in the Supreme Court of Canada, I unfortunately had to intervene again in British Columbia only a few years later to defend the language rights of the accused.
I intervened before the Supreme Court of Canada in R v Tayo Tompouba
My arguments in this case focused on the substantive—rather than procedural—nature of the right conferred by subsection 530(3) of the Criminal Code, for example, the right of the accused to have the judge before whom they first appear advise them of their right to a trial in the official language of their choice, as well as the timeframe for making such a request.
Because equal access to the absolute right to a trial in the accused’s language of choice relies on the judge meeting their obligation and making an active offer to ensure that the accused is encouraged to exercise their rights, judges must be clear that subsection 530(3) of the Criminal Code confers a fundamental right that cannot be violated by them without consequence. Therefore, I argued that violating subsection 530(3) of the Code is a substantial wrong and not a mere procedural irregularity.
All parties agreed before the Supreme Court that Mr. Tayo Tompouba’s right to be advised of his right to be tried in the official language of his choice had been violated. The only issue was the analytical framework that applies when an accused person appeals their conviction and raises a breach of subsection 530(3) of the Criminal Code for the first time on appeal.
A majority of the Supreme Court ordered a new trial in French for Mr. Tayo Tompouba, finding that the violation of subsection 530(3) of the Criminal Code was an error of law allowing a court of appeal to intervene under paragraph 686(1)(a) of the Criminal Code.
I am hopeful that these two Supreme Court decisions will send a clear message to Canadian courts: breaching the language rights of the accused is a serious issue and can result in the State being forced to hold a new trial. When the fundamental language rights of the accused are prioritized and valued before their trial, everyone wins.
My participation in legal cases – Conclusion
During my time as Commissioner, I saw my involvement in court as a tool to preserve and enhance past successes, clarify the purpose and function of language rights, and help build a better future for official language minority communities across the country. I am very pleased to have received favourable rulings on all the final decisions we obtained.
Nonetheless, I believe this is an excellent time to lay the foundations for future recourses. In all transparency, I believe that the criteria set out in the following section will help outline when and how the Commissioner decides to intervene in the courts after the modernization of the Act.
The Commissioner’s role before the courts
The commissioners’ contributions in court have undoubtedly had a positive impact on the protection and advancement of language rights. These contributions have not only established and clarified principles applicable to the interpretation of the Act but have also helped interpret and develop language rights more generally.
Ensuring greater compliance with the Act with the Commissioner’s new powers
The Commissioner’s ability to participate in court proceedings is an essential tool in their toolkit to ensure compliance with the Act.
The Commissioner’s role before the courts has changed significantly since June 2023. While in most cases commissioners have acted as interveners in court, the Act now allows the Commissioner to appear before the courts more frequently. Thus, this is the perfect time to reflect on the Commissioner’s role before the courts.
Remedies associated with compliance agreements, orders and administrative monetary penalties
Following the modernization of the Act in 2023, the Commissioner’s powers have been somewhat “judicialized,” as—when using these new powers—the Commissioner is called on to appear more often before the Federal Courts.
- Compliance agreements
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For example, if the Commissioner has reasonable grounds to believe that a federal institution—during or after an investigation—has breached the Act, they may enter into a compliance agreement with that institution to enforce compliance
<abbr title="Official Languages Act">OLA</abbr>, supra note 8, section 64.1(1). . In addition, in cases where the Commissioner believes that the federal institution has not complied with the compliance agreement, they may apply to the Federal Court for an order requiring the institution to comply with the agreement, in addition to any other remedy the Court may grant<abbr title="Official Languages Act">OLA</abbr>, supra note 8, section 64.1(1), section 64.4(1)a). , or apply for a remedy under paragraph 78(1)(a) of the Act, which allows them to apply to the Federal Court with the complainant’s consent<abbr title="Official Languages Act">OLA</abbr>, supra note 8, section 64.1(1), section 64.4(1)b). .
- Orders
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If the Commissioner has reasonable grounds to believe that a federal institution has violated a person’s right under parts IV or V of the Act
The Commissioner may eventually be able to issue an order for breaching sections 41(7) and 41(10) of the Act, pursuant to a future Order in Council. and they have unsuccessfully proposed that the institution enter into a compliance agreement, the Commissioner may use an order to require the institution to adopt measures the Commissioner deems appropriate to remedy the violation.This new power also leads to the courts, as the Commissioner may file a copy of the order with the Federal Court if they have reasonable grounds to believe that the federal institution has not complied with the order
<abbr title="Official Languages Act">OLA</abbr>, supra note 8, section 64.6(1). . Furthermore, once the order has been filed with the Federal Court, it becomes an order of the Federal Court and can be enforced as such<abbr title="Official Languages Act">OLA</abbr>, supra note 8, section 64.6(2). .
- Administrative monetary penalties
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Lastly, the use of the Commissioner’s power to impose administrative monetary penalties on certain entities that breach certain provisions of Part IV of the Act (when it comes into force) will enable my successor to go before the courts.
I hope that these new powers, as well as the Commissioner’s potential presence in court, will lead to greater compliance by federal institutions with the Act.
Commissioner-led proceedings
The Commissioner’s duty to take all measures to ensure the status of both official languages is recognized is very important, and this is reflected in the Commissioner’s power to file proceedings themselves, appear in proceedings on behalf of others who have filed proceedings under section 77, appear as a party in such proceedings or apply for intervener status in proceedings, all under section 78 of the Act.
The modernized Act upholds the Commissioner’s power to initiate proceedings before the courts under the Act and still includes three ways for the Commissioner to do so.
Proceedings initiated by the Commissioner with the complainant’s consent
Under paragraph 78(1)(a) of the Act, the Commissioner can file proceedings themselves. According to the preliminary criterion of this provision, the Commissioner needs the complainant’s consent to do so. This is also only an option once the Commissioner has conducted an investigation. It should be noted that paragraph 78(1)(a) does not preclude the participation of the complainant as a party to the proceedings
Commissioner-led cases and party participation are preferred in instances where the Commissioner finds that one institution repeatedly commits the same violations of the Act, illustrating a systemic compliance problem within that institution. This option can be very useful when the Commissioner wants to force a federal institution to change its behaviour.
The Commissioner filing proceedings themselves can help clarify and even resolve certain conflicts of interpretation of the Act, allowing the Commissioner to improve their investigative efficiency with federal institutions that oppose their interpretation of the Act.
Appearances on behalf of the complainant
The Act also allows the Commissioner to appear on behalf of the complainant. Under paragraph 78(1)(b), the Commissioner may effectively substitute for the complainant (after the complainant has filed proceedings) to argue a case and draft proceedings.
This has not been a popular approach, as—in most cases—the complainant who filed proceedings wants to manage their case and how the arguments are presented to the Court.
Because the Commissioner must appear “on behalf of” a complainant who has already filed proceedings, this option requires the Commissioner to get involved in a case the complainant has already filed and has already set out certain requests in their notice of application. Moreover, by acting “on behalf of” the complainant, the Commissioner is agreeing to act in the specific interests of a complainant.
It can be very beneficial for the Commissioner to take over a case on behalf of a complainant—for example, a community organization seeking recognition of a new interpretation of the Act. This type of recourse is also important, as it enables the Commissioner to lead a complainant’s case when they require support for a specific reason, for example, because of any inability or obstacle.
Appearances as a party with the court’s permission
Under paragraph 78(1)(c) of the Act, the Commissioner may appear as a party to proceedings under Part X of the Act with the court’s permission.
If the Commissioner does not have the complainant’s consent to participate in a case under paragraph 78(1)(a) and does not act on behalf of the complainant under paragraph 78(1)(b), they may apply to the court for permission to participate as a party.
On appeal, the Commissioner may also decide to act as a party to the proceedings, applying to the court after having acted as an intervener in the lower courts, or after not having participated at all in the lower courts. This happens most often when a case goes all the way to the Supreme Court of Canada and the legal (and constitutional) issues become clearer. The Commissioner may make such a request based on how the legal issues will affect the implementation of their mandate.
The Commissioner’s role as intervener
As the cases discussed in the first two sections of this report show, over the years commissioners have participated most in legal cases as interveners. The purpose of intervening is to put forward arguments or positions that may not be presented—or fully presented—otherwise by the main parties in the case. The Commissioner then makes purely legal arguments to the court to provide a useful perspective on the case.
Legal issues involving language rights are often incredibly complex. Equipped with the expertise OCOL has acquired over the years, the commissioners have much to offer the courts in this type of litigation.
In all cases, the Commissioner must consider the legal criteria applicable to interventions in addition to the intervention principles below, which guide the decision on whether or not to file—or not file—an application for leave to intervene in a case.
Above all, the interventions the Commissioner puts forward must be useful, in that they will be of direct help to the Court in deciding the issues at the heart of the case and not simply repeat the arguments other parties have made.
The proposed interventions must then reflect a genuine interest on the part of the requesting party.
Lastly, the Court has considerable leeway in considering the best interests of justice, which allows the Court to determine—at its discretion—whether the proposed intervention is in the interests of the Court and the public. For example, a very late application that would cause major delays in the hearing, thereby harming the parties, may not be in the interests of justice.
In Overview of the Commissioner’s Interventions in the Courts 2006–2016, Commissioner Fraser concluded that, in deciding whether to intervene before the courts in a case, the Commissioner would use six additional criteria to help guide them in their analysis of the case:
- Does the case involve new issues in terms of interpreting language rights?
- Does the case raise important procedural or preliminary questions pertaining to the court’s powers or jurisdiction?
- Is the court decision likely to affect the Commissioner’s mandate or powers?
- To what extent could the decision create a precedent that might influence future court decisions?
- What additional contribution could the Commissioner make to the debate in their role as Canada’s language ombudsperson?
- What impact could the court decision have on official language communities?
The Commissioner’s analysis of the decision to intervene in a case is based on these criteria, as well as on those outlined in the jurisprudence. The weight or value given to each criterion depends on the facts of the case in question. Other factors may also be relevant, for example, it may be more useful to intervene on a question of law on appeal than at trial.
If the Commissioner’s intended contribution would serve primarily to clarify or advance strictly legal points, then intervening is preferred. This is often the case when the parties are already at an advanced stage of the proceedings and when the Commissioner determines that their contribution to evidence development is not required to settle the dispute.
Conclusion
Looking back on the cases I intervened in during my time as Commissioner, I note that all the final decisions I received were favourable to language rights protection in Canada. Considerable progress has been made in recent years on all fronts, whether in cases involving the Act, section 23 of the Charter or section 530 of the Criminal Code.
Despite the optimism I have felt about recent court rulings, the progress made generally involves the resolution of serious breaches of the language rights of individuals or official language minority communities. In some cases, remedies for these violations are obtained only after several years, the time it takes for decisions to be made on appeal, as in Dionne and FFCB , or even in Supreme Court of Canada decisions, such as Mazraani, CSFCB , CSFTNO , Bessette and Tayo Tompouba.
Significant effort and resources are required to file proceedings or appeal a decision, so, although I recognize the importance of my role before the courts, I believe it is critical to prevent violations rather than try to resolve them much later, once the damage has been done.
I also recognize that the progress made during my mandate is not set in stone. As the Federal Court has recognized, “the protection of language rights in Canada nonetheless requires constant vigilance.
Appendix A – Statistics and chart relevant to Commissioner Théberge’s interventions
| Year | Interventions OLA | Initiated OLA | Interventions section 23 of the Charter | Interventions section 530 of the Criminal Code |
|---|---|---|---|---|
| 2018 | 2 | 1 | 0 | 0 |
| 2019 | 2 | 1 | 0 | 1 |
| 2020 | 2 | 0 | 1 | 0 |
| 2021 | 0 | 0 | 0 | 0 |
| 2022 | 1 | 0 | 0 | 0 |
| 2023 | 0 | 0 | 1 | 1 |
| 2024 | 0 | 0 | 0 | 0 |
| Total | 7 | 2 | 2 | 2 |
Seven cases in which the Commissioner intervened under the Act
- 2018
- Mazraani v Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50
- Part III of the Act
- Dionne v Canada (Office of the Superintendent of Financial Institutions), 2019 FC 879
- Part V of the Act
- Mazraani v Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50
- 2019
- Thibodeau v Air Canada, 2019 FC 1102
- Part IV of the Act
- Thibodeau v Halifax International Airport Authority, 2019 FC 1149
- Part IV of the Act
- Part IV of the Act
- Thibodeau v Air Canada, 2019 FC 1102
- 2020
- Thibodeau v St. John’s International Airport Authority, 2022 FC 563
- Part IV of the Act
- Thibodeau v Greater Toronto Airports Authority, 2024 FC 274
- Part IV of the Act
- Thibodeau v St. John’s International Airport Authority, 2022 FC 563
- 2022
- St. John’s International Airport Authority v Thibodeau, 2024 FCA 197
- Part IV of the Act
- St. John’s International Airport Authority v Thibodeau, 2024 FCA 197
Two cases in which the Commissioner intervened under the Charter
- 2020
- Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13
- Section 23 of the Charter
- Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13
- 2023
- Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31
- Section 23 of the Charter
- Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31
Two cases in which the Commissioner intervened under the Criminal Code
- 2019
- Bessette v British Columbia (Attorney General), 2019 SCC 31
- Section 530 of the Criminal Code and section 133 of the Offence Act, RSBC 1996, chapter 338
- Bessette v British Columbia (Attorney General), 2019 SCC 31
- 2023
- R v Tayo Tompouba, 2024 SCC 16
- Subsection 530(3) of the Criminal Code
- R v Tayo Tompouba, 2024 SCC 16
Two cases initiated by the Commissioner under the Act
- 2018
- Canada (Commissioner of Official Languages) v Canada (Employment and Social Development), 2022 FCA 14
- Parts IV and VII of the Act
- Canada (Commissioner of Official Languages) v Canada (Employment and Social Development), 2022 FCA 14
- 2021
- Canada (Commissioner of Official Languages) v Office of the Superintendent of Financial Institutions, 2021 FCA 159
- Part V of the Act
- Canada (Commissioner of Official Languages) v Office of the Superintendent of Financial Institutions, 2021 FCA 159
Commissioner Théberge's participation in cases
- Intervener (Official Languages Act): 7
- Intervener (Canadian Charter of Rights and Freedoms): 2
- Party to the proceedings (Official Languages Act): 2
- Section 530 of the Criminal Code: 2
Total cases: 13
Text version: Commissioner Théberge's participation in cases
Appendix B – List of all Commissioner decisions
| Commissioner | Year of decision | Decision | Issues |
|---|---|---|---|
| Raymond Théberge | 2024 | St. John’s International Airport Authority v Thibodeau, 2024 FCA 197 | Interpretation of sections 22 and 23 of the Act |
| Raymond Théberge | 2024 | R v Tayo Tompouba, 2024 SCC 16 | Recourse under section 530 of the Criminal Code |
| Raymond Théberge | 2024 | Thibodeau v Greater Toronto Airports Authority, 2024 FC 274 | Scope of section 12 of the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 |
| Raymond Théberge | 2023 | Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 | Recourse under section 23 of the Charter |
| Raymond Théberge | 2022 | Thibodeau v St. John’s International Airport Authority, 2022 FC 563 | Interpretation of sections 22 and 23 of the Act |
| Raymond Théberge | 2022 | Canada (Commissioner of Official Languages) v Canada (Employment and Social Development), 2022 FCA 14 | Interpretation of parts IV and VII of the Act |
| Raymond Théberge | 2021 | Canada (Commissioner of Official Languages) v Office of the Superintendent of Financial Institutions, 2021 FCA 159 | Interpretation of paragraph 36(1)(a) and subsection 36(2) of the Act |
| Raymond Théberge | 2020 | Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13 | Appeal concerning the scope of section 23 of the Charter |
| Raymond Théberge | 2019 | Bessette v British Columbia (Attorney General), 2019 SCC 31 | Recourse under section 530 of the Criminal Code |
| Raymond Théberge | 2019 | Thibodeau v Halifax International Airport Authority, 2019 FC 1149 | Recourse concerning Part IV of the Act; Motion |
| Raymond Théberge | 2019 | Thibodeau v Air Canada, 2019 FC 1102 | Interpretation of Part IV of the Act |
| Raymond Théberge | 2019 | Dionne v Canada (Office of the Superintendent of Financial Institutions), 2019 FC 879 | Interpretation of Part V of the Act |
| Raymond Théberge | 2018 | Mazraani v Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50 | The scope of sections 14 and 15 of the Act |
| Ghislaine Saikaley | 2018 | Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development), 2018 FC 530 | Interpretation of parts IV and VII of the Act |
| Graham Fraser | 2015 | Dionne v Canada (Attorney General), 2015 FC 862 | Part X of the Act |
| Graham Fraser | 2015 | R v Caron, 2015 SCC 56 | Judicial and legislative bilingualism |
| Graham Fraser | 2015 | CBC/Radio-Canada v Canada (Commissioner of Official Languages), 2015 FCA 251 | Jurisdiction |
| Graham Fraser | 2015 | Tailleur v Canada, 2015 FC 1230 | Interpretation of Part V of the Act (subsection 36(2) of the Act) |
| Graham Fraser | 2015 | Commission scolaire francophone du Yukon, School District #23 v Yukon (Attorney General), 2015 SCC 25 | Appeal concerning the scope of section 23 of the Charter |
| Graham Fraser | 2015 | Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 21 | Appeal concerning the scope of section 23 of the Charter |
| Graham Fraser | 2015 | Canada (Commissioner of Official Languages) v CBC/Radio-Canada, 2015 FCA 251 | Interpretation of Part VII of the Act |
| Graham Fraser | 2014 | Canada (Commissioner of Official Languages) v CBC/Radio-Canada, 2014 FC 849 | Interpretation of Part VII of the Act |
| Graham Fraser | 2014 | Thibodeau v Air Canada, 2014 SCC 67 | Interpretation of Part IV of the Act and remedies |
| Graham Fraser | 2013 | Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2013 SCC 42 | Judicial bilingualism |
| Graham Fraser | 2012 | Thibodeau v Air Canada, 2012 FCA 246 | Interpretation of Part IV of the Act and remedies |
| Graham Fraser | 2012 | Canada (Commissioner of Official Languages) v CBC/Radio-Canada, 2012 FC 650 | Jurisdiction |
| Graham Fraser | 2011 | R v Caron, 2011 SCC 5 | Powers of superior courts |
| Graham Fraser | 2011 | Air Canada v Thibodeau, 2011 FCA 343 | Compensation for violation of Part IV of the Act |
| Graham Fraser | 2011 | Thibodeau v Air Canada, 2011 FC 876 | Compensation for violation of Part IV of the Act |
| Graham Fraser | 2009 | Robert Lavigne v Canada Post Corporation, 2009 FC 756 | Sections 72, 73, 74 and 79 of the Act |
| Graham Fraser | 2009 | Nguyen v Quebec (Education, Recreation and Sport), 2009 SCC 47 | Appeal concerning the scope of section 23 of the Charter |
| Graham Fraser | 2009 | Bonner v VIA Rail Canada, 2009 FC 857 | Interpretation of parts IV, V and VI of the Act |
| Graham Fraser | 2009 | Norton v Via Rail Canada, 2009 FC 704 | Interpretation of parts IV, V and VI of the Act |
| Graham Fraser | 2009 | DesRochers v Canada (Industry), 2009 SCC 8 | Interpretation of parts IV and VII of the Act |
| Graham Fraser | 2008 | Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v Canada, 2008 SCC 15 | Interpretation of Part IV of the Act; section 20 of the Charter |
| Graham Fraser | 2008 | Attorney General of the Northwest Territories v Fédération franco-ténoise, 2008 NWTCA 5, 2008 NWTCA 6 | Interpretation of the NWT Official Languages Act |
| Graham Fraser | 2007 | Air Canada v Thibodeau, 2007 FCA 115 | Interpretation of Part IV of the Act |
| Dyane Adam | 2006 | DesRochers v Canada (Department of Industry), 2006 FCA 374 | Parts IV and VII of the Act |
| Dyane Adam | 2006 | Fédération franco-ténoise v Canada (Attorney General), 2006 NWTSC 20 | Interpretation of the NWT Official Languages Act |
| Dyane Adam | 2005 | Charlebois v Saint John (City), 2005 SCC 74 | New Brunswick Official Languages Act |
| Dyane Adam | 2005 | Thibodeau v Air Canada, 2005 FC 1621 | Compensation for violation of Part IV of the Act |
| Dyane Adam | 2005 | Société des Acadiens & Acadiennes du Nouveau-Brunswick Inc. v Canada, 2005 FC 1172 | Interpretation of Part IV of the Act; section 20 of the Charter |
| Dyane Adam | 2005 | Thibodeau v Air Canada, 2005 FC 1156 | Interpretation of Part IV of the Act |
| Dyane Adam | 2005 | Gosselin (Tutor of) v Quebec (Attorney General), [2005] 1 SCR 238 | Interpretation of section 23 of the Charter |
| Dyane Adam | 2005 | DesRochers v Industry Canada, 2005 FC 987 | Interpretation of parts IV and VII of the Act |
| Dyane Adam | 2005 | Norton v Via Rail Canada Inc., 2005 FCA 205 | Scope of section 77 of the Act; jurisdiction of the Federal Courts |
| Dyane Adam | 2005 | Solski v Quebec (Attorney General), 2005 SCC 14 | Appeal concerning the scope of section 23 of the Charter |
| Dyane Adam | 2004 | Raîche v Canada (Attorney General), 2004 FC 679 | Interpretation of Part VII of the Act |
| Dyane Adam | 2004 | Forum des maires de la Péninsule acadienne v Canada (Canadian Food Inspection Agency), 2004 FCA 263 | Interpretation of parts IV and VII of the Act and applicable remedies |
| Dyane Adam | 2004 | Norton v VIA Rail Canada, 2004 FC 406 | Scope of section 77 of the Act |
| Dyane Adam | 2003 | Canada (House of Commons) v Quigley, 2003 FCA 465 | Section 25 of the Act |
| Dyane Adam | 2003 | Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 | Appeal concerning the scope of sections 23 and 24 of the Charter |
| Dyane Adam | 2001 | Baie d’Urfé (City) v Quebec (Attorney General), [2001] JQ No. 4821 | Unwritten constitutional principle of minority protection |
| Dyane Adam | 2001 | Canada (Commissioner of Official Languages) v Canada (Department of Justice), 2001 FCT 239 | Interpretation of parts IV and VII of the Act |
| Dyane Adam | 2001 | Fédération franco-ténoise v Canada, 2001 FCA 220 | Sections 16 and 20 of the Charter; jurisdiction of the Federal Courts |
| Dyane Adam | 2001 | Charlebois v Mowat, 2001 NBCA 117 | Legislative bilingualism |
| Dyane Adam | 2001 | Lalonde v Ontario (Health Services Restructuring Commission), 56 O.R. (3d) 505 (ONCA) | Unwritten constitutional principle of minority protection; French Language Services Act |
| Victor Goldbloom | 2000 | Arsenault-Cameron v Prince Edward Island, 2000 SCC 1 | Appeal concerning the scope of section 23 of the Charter |
| Victor Goldbloom | 1999 | Duguay v Canada (National Defence), [1999] F.C.J. No. 1548 | Part V of the Act |
| Victor Goldbloom | 1999 | R v Beaulac, [1999] 1 SCR 768 | Interpretation of language rights; Recourse regarding section 530 of the Criminal Code |
| Victor Goldbloom | 1999 | Devinat v Canada (Immigration and Refugee Board), [1999] FCJ No. 1774 | Section 20 of the Act |
| Victor Goldbloom | 1999 | Canada (Commissioner of Official Languages) v Air Canada (1999), 167 FTR 157 | Commissioner’s powers |
| Victor Goldbloom | 1998 | Lavigne v Canada (Human Resources Development), 1998 CanLII 7820 (FCA) | Part V and remedies |
| Victor Goldbloom | 1998 | L’Association des Parents francophones de la Colombie-Britannique v British Columbia [1998] 167 D.L.R. (4th) 534 | Interpretation of section 23 of the Charter |
| Victor Goldbloom | 1998 | Leblanc v R , [1998] FCJ No. 1900 | Part V of the Act |
| Victor Goldbloom | 1997 | Commissioner of Official Languages (Re), (1997), 144 FTR 161 | Reference on the linguistic obligations of Air Canada and its subsidiaries |
| Victor Goldbloom | 1997 | Canada (Commissioner of Official Languages) v Air Canada, (1997) 141 FTR 182) | Part IV of the Act |
| Victor Goldbloom | 1997 | Société des Acadiens et Acadiennes du Nouveau-Brunswick et al. v Canada, (1997) 188 NBR (2d) 330, 480 APR 330 | Delimitation of electoral districts |
| Victor Goldbloom | 1996 | Association des parents francophones (British Columbia) v British Columbia (1996) 139 D.L.R. (4th) 356 | Interpretation of section 23 of the Charter |
| Victor Goldbloom | 1995 | Canada (Attorney General) v Asselin, (1995), 100 FTR 309 (TD) | Language requirements of positions |
| Victor Goldbloom | 1993 | Professional Institute of the Public Service v Canada, [1993] 2 FC 90 | Language requirements of positions |
| Victor Goldbloom | 1993 | Reference re Public Schools Act (Man.), [1993] 1 SCR 839 | Interpretation of section 23 of the Charter |
| D’Iberville Fortier | 1991 | Canada v Viola, [1991] 1 FC 373 | Interpretation of language rights; language requirements of positions |
| D’Iberville Fortier | 1990 | Mahe v Alberta, [1990] 1 SCR 342 | Interpretation of section 23 of the Charter |
| D’Iberville Fortier | 1988 | Reference re: School Act (1988), 49 D.L.R. (4th) 499 | Interpretation of section 23 of the Charter |
| Maxwell Yalden | 1984 | Reference re Education Act of Ontario and Minority Language Education Rights, 47 O.R. (2d) 1 | Interpretation of section 23 of the Charter |
