SUPREME
COURT OF CANADA
Between:
Raymond
Desrochers, Corporation de développement
économique
communautaire CALDECH and
Commissioner
of Official Languages of Canada
Appellants
and
Department
of Industry Canada,
Government
of Canada and Attorney General of Canada
Respondents
‑ and ‑
Attorney
General of New Brunswick,
Attorney
General of the North West Territories and
Fédération
Franco‑Ténoise
Interveners
Official English Translation
Coram: McLachlin
C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
Reasons
for Judgment:
(paras. 1 to 65)
|
Charron J.
(McLachlin C.J. and Binnie, LeBel, Deschamps, Abella and Rothstein JJ.
concurring)
|
______________________________
DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R.
194
Raymond
DesRochers, Corporation de développement
économique
communautaire CALDECH and
Commissioner of Official Languages of Canada Appellants
v.
Department of
Industry Canada,
Government of Canada and Attorney General of Canada Respondents
and
Attorney
General of New Brunswick,
Attorney
General of the North West Territories and
Fédération Franco‑Ténoise Interveners
Indexed as: DesRochers v. Canada (Industry)
Neutral citation: 2009 SCC 8.
File No.: 31815.
2008: May 20; 2009: February 5.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Official
languages — Communications by public with federal institutions — Right of
members of public to be served by federal institutions in official language of
their choice — Content of duty to provide equal services in both official
languages — Community economic development services provided in both official
languages, but principle of linguistic equality not adhered to — Situation
corrected by time application for court remedy against federal institution
heard — Whether Federal Court of Appeal erred in holding that no remedy other
than costs should be granted — Canadian Charter of Rights and Freedoms, s.
20(1) — Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), Part IV.
Official languages — Communications with and services
to public — Content of duty to provide services of equal quality in both
official languages — Canadian Charter of Rights and Freedoms, s. 20(1) —
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), Part IV.
Section 20(1) of the Canadian Charter of Rights
and Freedoms and Part IV of the Official Languages Act (“OLA ”)
create a constitutional duty to make services of equal quality in both official
languages available to the public. The Corporation de développement économique
communautaire CALDECH, which was run by D, was created by Francophone community
organizations to address shortcomings those organizations saw in the economic
development services provided to the French‑speaking population of
Huronia by the North Simcoe Community Futures Development Corporation (“North
Simcoe”), which was responsible for implementing Industry Canada’s Community
Futures Program in Huronia. In 2000, D filed a complaint with the Commissioner
of Official Languages of Canada, alleging that North Simcoe was unable to
provide its services in French. In 2001, the Commissioner concluded that
Industry Canada had breached its duties under Parts IV and VII of the OLA
and recommended that certain measures be taken. CALDECH received temporary
funding to provide services in French and Industry Canada took various other
measures, but the Commissioner concluded in two follow‑up reports in 2003
and 2004 that Industry Canada was still not in full compliance with Parts IV
and VII of the OLA . D and CALDECH then made an application to the
Federal Court under s. 77(1) of the OLA , which at that time applied only
to violations of Part IV of the OLA . The Federal Court
acknowledged that at the time the complaint was filed Industry Canada had been
in breach of its duty to provide equal services in both official languages, but
it found that at the time of the application for a court remedy North Simcoe
was providing equal services in both languages. The court dismissed the
application without costs. The Federal Court of Appeal held that the Federal
Court should have granted the application, because the relevant time for
determining the merits of the application was the date the complaint was filed
and because at that time North Simcoe was unable to communicate with its
clients and provide services in French. However, no remedy other than costs
was appropriate, since corrective measures had been taken and since the trial
judge had determined that the principle of linguistic equality in
communications and the provision of services implemented in the OLA was
being adhered to at the time the application was heard. The court noted that
the standard of substantive equality did not require North Simcoe to take
account of the special needs of the French‑speaking community in
developing and implementing its programs.
Held: The appeal should be dismissed.
The Federal Court of Appeal was right to grant no remedy
other than costs, as even though the respondents were not fulfilling their
language duties under Part IV of the OLA at the time D and CALDECH
filed their complaint with the Commissioner, any deficiencies that remained at
the time the application was heard were beyond the scope of Part IV. [4]
However, in defining the scope of the language duties in
this case, the Federal Court of Appeal adopted an overly narrow view of linguistic
equality. The principle of linguistic equality in the provision of government
services involves a guarantee in relation to the services provided by the
federal institution, and the content of this principle must be defined in light
of the nature and purpose of the service in question. It is possible that
substantive equality will not result from the development and implementation of
identical services for each language community. In the instant case, it is
difficult to imagine how the economic development services could be provided
without the participation of the targeted communities in both the development
and the implementation of programs, since that is the very nature of the
services. The communities could therefore expect to have distinct content that
varied from one community to another, depending on priorities established by
the communities themselves. Insofar as North Simcoe, in accordance with the
programs’ objectives, made efforts to reach the linguistic majority community
and involve that community in program development and implementation, it had a
duty to do the same for the linguistic minority community. [4] [51] [53‑54]
Finally, the duties under Part IV of the OLA
do not entail a requirement that government services achieve a minimum level of
quality or actually meet the needs of each language community. A deficiency in
this regard might be due to a breach of the duties imposed by the Department
of Industry Act or a breach of those under Part VII of the OLA .
Nor does the principle of linguistic equality in the provision of services mean
that there must be equal results for each of the two language communities,
although inequality of results may be a valid indication that the quality of
the services is unequal. Here, the apparent disparity in results between the
two language communities does not support a conclusion that the services were
of unequal quality. [55‑56] [62]
Cases Cited
Referred to: Lavigne
v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53,
[2002] 2 S.C.R. 773; Forum des maires de la Péninsule acadienne v. Canada
(Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276, leave to
appeal allowed, [2005] 1 S.C.R. ix, leave to appeal withdrawn, 2005 SCC 85,
[2005] 3 S.C.R. 906; R. v. Beaulac, [1999] 1 S.C.R. 768; Arsenault‑Cameron
v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3.
Statutes and Regulations Cited
Act to amend the Official Languages Act (promotion
of English and French), S.C. 2005, c. 41 .
Canadian Charter of Rights and Freedoms, ss. 16(1) , 20(1) .
Department of Industry Act, S.C. 1995, c. 1 .
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), Parts IV, V, VII , ss. 2(a),
21, 22, 25, 41, 77.
APPEAL from a judgment of the Federal Court of Appeal
(Richard C.J. and Létourneau and Nadon JJ.A.), 2006 FCA 374, [2007] 3 F.C.R. 3,
355 N.R. 144, [2006] F.C.J. No. 1777 (QL), 2006 CarswellNat 3962, allowing an
appeal from a judgment of Harrington J., 2005 FC 987, [2005] 4 F.C.R. 3, 276
F.T.R. 249, [2005] F.C.J. No. 1218 (QL), 2005 CarswellNat 2086. Appeal
dismissed.
Ronald F. Caza,
Mark C. Power and Justin Bertrand for the appellants Raymond
DesRochers and Corporation de développement économique communautaire CALDECH.
Pascale Giguère
and Christine Ruest, for the appellant the Commissioner of Official
Languages of Canada.
Alain Préfontaine
and René LeBlanc, for the respondents.
Gaétan Migneault,
for the intervener the Attorney General of New Brunswick.
Maxime Faille and Guy
Régimbald, for the intervener the Attorney General of the North West
Territories.
Roger J. F. Lepage,
for the intervener Fédération Franco‑Ténoise.
English version of the judgment of the Court delivered
by
Charron J. —
1. Overview
[1]
This appeal requires the Court to determine the nature and scope of the
principle of linguistic equality in communications and the provision of
services as implemented in Part IV of the Official Languages Act,
R.S.C. 1985, c. 31 (4th Supp .) (“OLA ”). In particular, it concerns
the community economic development services provided in Huronia, a region of
Ontario where there is “significant demand”, within the meaning of s. 22
of the OLA , for communications and services in the minority official
language. The services in question are provided by the Department of Industry
Canada pursuant to its powers, duties and functions under the Department of
Industry Act, S.C. 1995, c. 1 (“DIA ”), and are implemented
by various community futures development corporations (“CFDCs”).
[2]
It is common ground in this appeal that the rights being claimed are of
constitutional origin, since the relevant provisions of the OLA
implement the constitutional right of any member of the public to be served by
federal institutions in the official language of his or her choice (Lavigne
v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53,
[2002] 2 S.C.R. 773). The Chief Justice stated the following
constitutional question:
Do s. 20(1) of the Canadian Charter of Rights and Freedoms
and Part IV of the Official Languages Act, R.S.C. 1985, c. 31,
read in light of the principle of equality set out in s. 16(1) of the Charter ,
require Industry Canada to provide services of equal quality in both official
languages?
[3]
The parties agree, correctly so in my opinion, that the provisions
referred to in this constitutional question create a constitutional duty to make
services “of equal quality in both official languages” available to the
public. The answer to the constitutional question is therefore clearly yes.
What is in issue in this appeal is the scope of this concept of “services of
equal quality”.
[4]
With respect, in defining the scope of the language duties in this case,
the Federal Court of Appeal, which rendered the decision under appeal, appears
to have adopted an overly narrow view of linguistic equality that does not take
account of the nature and objectives of the program in question. Nevertheless,
for reasons I will explain below, I reach the same conclusion as that court on
the merits. It is true that the respondents were not fulfilling their language
duties under Part IV of the OLA at the time the appellants Raymond
DesRochers and Corporation de développement économique communautaire CALDECH
(“CALDECH”) filed their complaint with the Commissioner of Official Languages
of Canada (“Commissioner”). However, any deficiencies that remained at the
time the application was heard were, as the trial judge concluded, beyond the
scope of Part IV, which means that no remedy other than costs was
appropriate.
[5]
For the reasons that follow, I would dismiss the appeal. However,
since I am of the opinion that the application has raised an important new
principle in relation to the OLA , I would also award the appellants
DesRochers and CALDECH their costs in this Court.
2. Facts
[6]
Huronia is in central Ontario on the shore of Georgian Bay. The
majority of its population is English‑speaking. According to statistics,
about 6 percent of the region’s population is French‑speaking, although
Francophones form a significant share of the population of the town of
Penetanguishene (19 percent) and the township of Tiny (18 percent).
[7]
In 1985, Industry Canada created an economic development program for
Ontario’s rural areas, the “Community Futures Program”, which was to be
implemented by the CFDCs. These local non‑profit organizations are run
by local volunteer boards of directors that represent various community
interests. The North Simcoe CFDC (“North Simcoe”) is responsible for
implementing the Community Futures Program in northern Huronia.
[8]
The mandate of CFDCs is threefold. First, they are to facilitate access
to capital for the creation, expansion or stabilization of local small
businesses. Second, they are responsible for providing local small
businesses with advice, information and other business services. Third, they
are to develop and implement community strategic economic development plans in
co‑operation with other partners. The objective of these plans is to
assess local problems, implement strategies for the development of human,
institutional and physical infrastructures, and support entrepreneurship,
employment and the region’s economy.
[9]
To carry out its mandate as a CFDC, North Simcoe provides a range of
services. It lends up to $125,000 to small businesses that have difficulty
obtaining financing from traditional sources. It advises entrepreneurs and
helps them prepare business plans and loan applications. It organizes seminars
and workshops for entrepreneurs and young persons. Every five years, it holds
community consultations to update the community strategic plan.
[10] In
1995, the appellant CALDECH was created by Francophone community organizations
to address shortcomings those organizations saw in the community economic
development services provided by North Simcoe to the French‑speaking
population of Huronia. CALDECH did not receive support from Industry Canada’s
Community Futures Program and had to obtain funding from various sources, such
as the Department of Canadian Heritage and the Ontario Trillium Foundation.
CALDECH was able to implement more than 50 projects intended to benefit
the French‑speaking community before it stopped providing services in
2004.
[11] In
2000, the appellant Raymond DesRochers, CALDECH’s Executive Director,
filed a complaint with the Commissioner, alleging that North Simcoe was
unable to provide its services in French. After investigating, the
Commissioner concluded, in an investigation report sent to the parties in
2001, that Industry Canada had breached its duties under Parts IV and VII
of the OLA (Investigation Report on the North Simcoe Business
Development Center’s Ability to Provide French‑Language Services to the
Region’s French‑Speaking Population, September 2001). She recommended
that Industry Canada take measures to ensure that services provided by
North Simcoe to the French‑speaking community were equal in quality
to those provided to the English‑speaking community. In view of the
government’s commitment in s. 41 of Part VII of the OLA , she
also recommended that adequate and appropriate measures be taken to meet the
economic development needs of French‑speaking businesspersons in Simcoe
County.
[12] Following
the Commissioner’s investigation, Industry Canada, as a temporary measure,
provided funding to CALDECH between March 2001 and August 2002 so
that the community could immediately receive economic development services in
French. During that period, CALDECH received monthly grants of $25,000 from
Industry Canada. In the meantime, Industry Canada took various corrective
measures to ensure equality in the provision of North Simcoe’s services in
both languages.
[13] Despite
the efforts of Industry Canada and North Simcoe, the Commissioner
concluded in two follow‑up reports in 2003 and 2004 that
Industry Canada was still not in full compliance with Parts IV and
VII of the OLA (Final Follow‑up to the Investigation Report on the
North Simcoe Business Development Centre’s Ability to Provide French‑Language
Services to the Region’s French‑Speaking Population, June 2003; Second
Follow‑up to the Investigation Report on the North Simcoe Community
Futures Development Corporation’s Ability to Provide French‑Language
Services, August 2004). I will come back to these conclusions later in my
analysis.
[14] After
the second follow‑up report was published in 2004, Mr. DesRochers
and CALDECH applied to the Federal Court under s. 77(1) of the OLA
for, inter alia, the following remedies: an order declaring that the
respondents had violated and were continuing to violate Parts IV and VII
of the OLA and ss. 16(1) and 20(1) of the Canadian Charter of
Rights and Freedoms ; an order enjoining the respondents to comply with
those provisions of the OLA and the Charter ; damages; an order
granting CALDECH permanent and stable funding; and costs. The Commissioner
intervened in the proceedings in the courts below and was granted leave to
participate in the appeal to this Court as an appellant.
3. Parts
IV and VII of the OLA
[15] Before
summarizing the decisions of the courts below and considering the issue before
this Court, it will be helpful to mention certain events that have occurred
since the proceedings began in order to properly situate the application in its
legislative context and clarify its scope.
[16] As
I mentioned above, the appellants DesRochers and CALDECH based their
application to the Federal Court not only on Part IV but also on Part VII
of the OLA . The Commissioner’s reports also referred to both these
parts. The distinction between the two parts is an important one and, as we
will see, only Part IV is now in issue before the Court.
[17] Part IV
of the OLA is entitled “Communications With and Services to the
Public”. The specific issue in this appeal is whether the respondents breached
their duty under s. 22 to ensure that any member of the public can
“communicate” with and “obtain available services” from the federal institution
“in either official language”.
[18] Part VII
is entitled “Advancement of English and French”. Section 41, which is in
Part VII, was worded as follows during the period relevant to this appeal:
41. The
Government of Canada is committed to
(a) enhancing
the vitality of the English and French linguistic minority communities in Canada
and supporting and assisting their development; and
(b) fostering the full recognition and use of both English
and French in Canadian society.
At the time the
appellants DesRochers and CALDECH filed their application, there was no
enforceable provision to go along with the declaratory wording of s. 41.
Moreover, the application provided for in s. 77(1) of the OLA , on
which the application in this case is based, was limited to complaints under
parts IV and V, as Part VII was not mentioned in s. 77(1) until 2005, when
it was added by means of a statutory amendment (Act to amend the Official
Languages Act (promotion of English and French), S.C. 2005,
c. 41 ).
[19] In
July 2004, a few months before the application in this case was filed, the
Federal Court of Appeal held in Forum des maires de la Péninsule acadienne
v. Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276, that
an application for a court remedy could not be made on the basis of an alleged
failure to meet the commitment set out in Part VII, in s. 41. In
February 2005, this Court granted leave to appeal that decision ([2005] 1
S.C.R. ix). Harrington J. heard the application in the instant case in
May 2005, and in accordance with the Federal Court of Appeal’s holding in Forum
des maires, his decision in July of that year was based solely on
Part IV.
[20] Parliament
subsequently amended the OLA to include a reference to Part VII in
s. 77(1) and add enforceable provisions: see s. 41(2) and (3) . The
leave to appeal the Court had granted in Forum des maires was then
withdrawn and declared to be of no effect: Forum des maires de la Péninsule
acadienne v. Canada (Food Inspection Agency), 2005 SCC 85, [2005] 3 S.C.R.
906.
[21] In
light of these developments, the Federal Court of Appeal determined that the
scope of the application in the case at bar was as follows:
At the time the appellants made their application, the statutory
amendment had not yet been enacted. Moreover, it did not come into force until
November 25, 2005, and then without retroactive effect. Therefore,
the decision of this Court concerning the language of subsection 77(1) , as
it stood prior to the amendment, is the one that is applicable in this case:
the section 77 application is therefore not available to the appellants
for the alleged breaches of Part VII. [Emphasis added.]
(2006 FCA 374, [2007] 3 F.C.R. 3, at para. 74)
[22] The
appellants agree that the issue in this appeal arises entirely under
Part IV of the OLA and does not concern any duties that may result
from Part VII.
[23] It
is clear simply from the wording of the enactment that the distinction between
Part IV and Part VII is important. It is also clear from the evidence
that what the appellants DesRochers and CALDECH sought in their application was
in essence, first, to show that there was a real need for economic development
services in the French‑speaking community and, second, to convince the
court that the government had a positive duty to take concrete measures to support
the development of the French‑speaking community in Simcoe County in
order to counter the increasing rate of assimilation. As we will see, the
question whether the duties under Part IV were fulfilled is much narrower
than the question before the Federal Court in the original application. What
must be done to answer it is essentially to conduct a comparative analysis in
order to determine whether the services provided by the federal
institution in each official language community are of equal quality. I will
now review the decisions of the courts below in this case.
4. Judicial History
4.1 Federal Court, 2005 FC 987, [2005] 4
F.C.R. 3
[24] In
first instance, Industry Canada maintained that the OLA does not apply
in this case because North Simcoe cannot be characterized as a “federal
institution” within the meaning of Part IV. Harrington J. rejected
this argument and held that the OLA does apply. He also found that
under s. 25 of the OLA , Industry Canada had a duty to ensure
that North Simcoe provided equal services in English and French. However,
he concluded that “[m]uch of what Mr. Desrochers and CALDECH submit
pertains to Part VII” (para. 75). Since Part VII of the OLA
was simply declaratory and could not serve as a basis for the application for a
remedy under s. 77(1) , decisions in that regard were to be made by
Parliament and the executive, not by the courts.
[25] Harrington J.
acknowledged that when the applicants filed their complaint with the
Commissioner in 2000, Industry Canada was in breach of its duty to provide
equal services in both official languages. But Industry Canada had
subsequently taken corrective measures. According to Harrington J., at
the time the applicants applied for a court remedy in 2004, North Simcoe
was able to provide services in both languages and was providing them equally,
even if it was “not as successful as Mr. Desrochers and CALDECH would
like” (para. 73).
[26] Harrington J.
therefore dismissed the application without costs.
4.2 Federal Court of
Appeal, 2006 FCA 374, [2007] 3 F.C.R. 3
[27] Like
the trial judge, the Federal Court of Appeal defined the issue by specifying
that Part IV of the OLA provides only for a right to communicate
with and receive available services from the federal institution in French.
The court also made it clear that the application was based on the OLA
and not the DIA .
[28] Regarding
the duties under the OLA , Létourneau J.A., writing for the court,
readily accepted that the applicable standard was that of substantive, and not
simply formal, equality in the use and status of the two official languages.
However, he rejected the argument that this concept of equality required
North Simcoe to take account of the special needs of the French‑speaking
community in developing and implementing its programs. He explained:
. . .
Part IV of the OLA provides for equal linguistic access to regional
economic development services in Ontario, and not access to equal
regional economic development services. . . .
. . .
However, in my humble opinion, the intervener’s
counsel was mistaken when she argued that, based on this principle of
linguistic equality, the respondents had a duty under the OLA to take the
necessary steps to ensure that Francophones are considered equal partners
with Anglophones in regional economic development, as per a definition of
the services that reflect the needs of the minority, and in the provision of
equal economic development services. In my view, this is to confuse the rights
that may be provided for in, and the duties that may be imposed by, the DIA
with the rights and duties that flow from the OLA . [Emphasis added;
paras. 33 and 38.]
[29] The
court concluded that if there were any inadequacies in the provision of
services, they resulted from a breach of duties imposed by the DIA , not
from a breach of those imposed by the OLA .
[30] The
court nevertheless allowed the appeal because, in its view, the trial judge had
erred in determining the merits of the application on the basis of
North Simcoe’s ability to provide services in French at the time the
application was filed in 2004. The relevant time was instead the date the
complaint was filed with the Commissioner. Since the evidence clearly showed
that North Simcoe had been unable to communicate with its clients and
provide services in French in 2000, the application ought to have been
allowed. However, no remedy other than costs was appropriate, because North
Simcoe had taken corrective measures between 2000 and 2004 and because the
trial judge had correctly determined that the principle of linguistic equality
in communications and the provision of services implemented in Part IV of the OLA
was being adhered to at the time the application was heard.
5. Analysis
[31] Before
considering the provisions at issue in the case at bar, it will be helpful to
review the principles that govern the interpretation of language rights
provisions. Courts are required to give language rights a liberal and
purposive interpretation. This means that the relevant provisions must be
construed in a manner that is consistent with the preservation and development
of official language communities in Canada (R. v. Beaulac, [1999] 1
S.C.R. 768, at para. 25). Indeed, on several occasions this Court has
reaffirmed that the concept of equality in language rights matters must be
given true meaning (see, for example, Beaulac, at paras. 22, 24 and 25; Arsenault‑Cameron
v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 31).
Substantive equality, as opposed to formal equality, is to be the norm, and the
exercise of language rights is not to be considered a request for
accommodation. Bearing this in mind, I will now consider the scope of the
remedies provided for in s. 77 of the OLA .
5.1 Nature of the Section 77 Remedy
[32] In
Forum des maires, Décary J.A. clearly explained the nature of the
court remedy provided for in s. 77 of the OLA (at paras. 15‑21).
Although the scope of the remedy has since been broadened by the inclusion of
Part VII, his comments on its nature are no less relevant. I agree with
his analysis and will therefore review its salient points here before
addressing the issue before us.
[33] Section 77
reads as follows:
77. (1) Any person who has made a complaint to the
Commissioner in respect of a right or duty under sections 4 to 7,
sections 10 to 13 or Part IV or V [since 2005 , “Part IV, V or
VII”], or in respect of section 91, may apply to the Court for a
remedy under this Part.
(2) An application may be made under subsection (1) within
sixty days after
(a) the
results of an investigation of the complaint by the Commissioner are reported
to the complainant under subsection 64(1),
(b) the
complainant is informed of the recommendations of the Commissioner under
subsection 64(2), or
(c) the
complainant is informed of the Commissioner’s decision to refuse or cease to
investigate the complaint under subsection 58(5),
or within such further time as the Court may, either before or after the
expiration of those sixty days, fix or allow.
(3) Where a complaint is made to the
Commissioner under this Act but the complainant is not informed of the results
of the investigation of the complaint under subsection 64(1), of the
recommendations of the Commissioner under subsection 64(2) or of a
decision under subsection 58(5) within six months after the complaint is
made, the complainant may make an application under subsection (1) at any
time thereafter.
(4) Where, in proceedings under subsection (1), the Court
concludes that a federal institution has failed to comply with this Act, the
Court may grant such remedy as it considers appropriate and just in the
circumstances.
(5) Nothing in this section abrogates or
derogates from any right of action a person might have other than the right of
action set out in this section.
[34] Thus,
the remedy provided for in s. 77 is grounded in the complaint to the
Commissioner and the results of the Commissioner’s investigation. As
Décary J.A. explained, “the capacity as an ‘applicant’ to the Court is
derived from the capacity as a ‘complainant’ to the Commissioner
(subsection 77(1)) and it is the date of communication of the report that
serves as the point of departure for the calculation of the time periods
(subsection 77(2))” (para. 17). The merits of the complaint are
determined as of the time of the alleged breach, and the facts that existed as
of the date the complaint was filed with the Commissioner are therefore
determinative of the outcome of the application.
[35] Although
the complaint to the Commissioner and the investigation that follows form the
basis for the remedy, it must be made clear that the Commissioner is not a
tribunal for the purposes of the OLA and that an application under
s. 77 is not an application for judicial review. Décary J.A.
explained this as follows:
The Commissioner, it is important to keep in mind, is not a
tribunal. She does not, strictly speaking, render a decision; she
receives complaints, she conducts an inquiry, and she makes a report that she
may accompany with recommendations (subsections 63(1), (3)). If the
federal institution in question does not implement the report or the
recommendations, the Commissioner may lodge a complaint with the Governor in
Council (subsection 65(1)) and, if the latter does not take action either,
the Commissioner may lodge a complaint with Parliament (subsection 65(3)).
The remedy, at that level, is political.
However, to ensure that the Official Languages Act
has some teeth, that the rights or obligations it recognizes or imposes do not
remain dead letters, and that the members of the official language minorities
are not condemned to unceasing battles with no guarantees at the political
level alone, Parliament has created a “remedy” in the Federal Court that the
Commissioner herself (section 78 ) or the complainant (section 77 ) may
use. This remedy, the scope of which I will examine later, is designed to
verify the merits of the complaint, not the merits of the Commissioner’s report
(subsection 77(1) ), and, where applicable, to secure relief that is
appropriate and just in the circumstances (subsection 77(4) ).
[paras. 16‑17]
[36] The
Commissioner’s reports are admissible in evidence but are not binding on the
parties. The evidence provided during the Commissioner’s investigation may
therefore be supplemented or even contradicted. Nor are the Commissioner’s
conclusions binding on the judge, who hears the matter de novo. As
well, the Commissioner’s reports and the conclusions they contain must be
considered in the context of the Commissioner’s specific mandate.
Décary J.A. explained how the nature and purpose of the Commissioner’s
mandate differ from those of the court remedy:
Moreover, the Commissioner’s reports are admissible in
evidence, but they are not binding on the judge and may be contradicted like
any other evidence. The explanation is obvious. The Commissioner conducts her
inquiry in secret and her conclusions may be based on facts that the parties
concerned by the complaint will not necessarily have been able to verify.
Furthermore, for reasons that I will soon give, the purpose of the Court remedy
is more limited than the purpose of the Commissioner’s inquiry and it may be
that the Commissioner takes into account some considerations that the judge may
not consider. . . . I note that in Lavigne v. Canada (Office of the
Commissioner of Official Languages), [2002] 2 S.C.R. 773, Gonthier J.
emphasized that “[i]n many significant respects, the mandates of the
Commissioner of Official Languages and the Privacy Commissioner are in the
nature of an ombudsman’s role” (paragraph 37), that the Commissioners
“follow an approach that distinguishes them from a court” and that their
“unique mission is to resolve tension in an informal manner”
(paragraph 38). [para. 21]
[37] Finally,
although the assessment of the merits of the complaint is based on the facts
that existed as of the time the complaint was filed with the Commissioner, any
remedy must be adapted to the circumstances that exist as of the time of the
court’s order. Décary J.A. noted that “[t]he remedy will vary according
to whether or not the breach continues” (para. 20).
[38] I
will now consider the issue before us in light of this analytical framework.
5.2 Relevant Provisions
of Part IV of the OLA
[39]
As I explained above, the only provisions of Part IV of the OLA
that are at issue in this case are the following:
part iv
communications with and services to the public
. . .
21. Any member of the public in Canada has the right to
communicate with and to receive available services from federal institutions in
accordance with this Part.
22. Every federal institution has the duty to ensure
that any member of the public can communicate with and obtain available
services from its head or central office in either official language, and
has the same duty with respect to any of its other offices or facilities
(a) within
the National Capital Region; or
(b) in
Canada or elsewhere, where there is significant demand for communications with
and services from that office or facility in that language.
. . .
25. Every federal institution has the
duty to ensure that, where services are provided or made available by another
person or organization on its behalf, any member of the public in Canada or
elsewhere can communicate with and obtain those services from that person or
organization in either official language in any case where those services, if
provided by the institution, would be required under this Part to be provided
in either official language.
[40] It
is common ground that Huronia is a region where there is “significant demand”,
within the meaning of s. 22 , for communications and services in the
minority official language. As well, it is no longer in dispute in this Court
that, as the courts below concluded, s. 25 applies in this case. The
issue is whether the respondents have fulfilled their duties under s. 22 .
[41] The
scope of s. 22 must be assessed in light, inter alia, of the
purpose of the OLA . The appellants rely in particular on s. 2 (a),
which reads as follows:
2. The purpose of this Act is to
(a) ensure respect for English and French as the official
languages of Canada and ensure equality of status and equal rights and
privileges as to their use in all federal institutions, in particular with
respect to their use in parliamentary proceedings, in legislative and other
instruments, in the administration of justice, in communicating with or
providing services to the public and in carrying out the work of federal
institutions;
5.3 Issue in This Appeal
[42] As
I explained above, the merits of the complaint must be assessed in light of the
facts that existed as of the time the complaint was filed with the
Commissioner. This question was resolved long ago. As the Commissioner wrote
in her investigation report in 2001, Industry Canada acknowledged that at the
time of the complaint, the quality of French‑language services was not
equal to that of services offered in English. The Department therefore
responded to the Commissioner’s preliminary recommendations by taking measures
to remedy the situation while the investigation was still under way. Despite
those measures, the Commissioner concluded when she issued her investigation
report that the services provided by North Simcoe “to its French‑speaking
clients are far from being comparable, in quantity or quality, to those
provided to its English‑speaking clients” (p. 13 (emphasis added)).
[43] The
trial judge reached the same conclusion, stating that, on the date the
complaint was filed, “Industry Canada would clearly have been found in breach
of the duty imposed upon it by section 25 ” (para. 44). There is ample
evidence to support this conclusion. Therefore, the Federal Court of Appeal
correctly allowed the appeal and, as the trial judge would have done had he not
erred regarding the relevant date, granted the appellants’ application.
[44] What
is in issue in this appeal is whether the Federal Court of Appeal erred in
holding that no remedy other than costs should be granted because, in light of
the evidence, it was open to the trial judge to find that the principle of
linguistic equality implemented in Part IV of the OLA was being adhered
to at the time the application was heard.
5.4 Arguments of the Parties
[45] As
I stated in the introduction to these reasons, the parties agree that as a
general rule, the principle — provided for in s. 20(1) of the Charter
and implemented in Part IV of the OLA — that members of the public
are entitled to linguistic equality when receiving services entails an
obligation to make services “of equal quality in both official languages”
available to the public. The parties disagree, however, on what is meant by
“equal quality”.
[46] The
appellants conceded before this Court that equality of rights and privileges as
to the use of the two official languages has been achieved through the
institutional infrastructure created by Industry Canada in response to the
Commissioner’s recommendations. They also acknowledged that in order to also
achieve equality of status, it will in most cases suffice for the
government to communicate and deliver the same service equally in both official
languages. But, the appellants argue, depending on the nature of the service
in question, it will sometimes be necessary to go further and take account of
the special needs of the language community receiving the service. They assert
that in the instant case, Industry Canada is required to provide — through a
separate institution if necessary — economic development services that not
only are delivered in the official language of the user’s choice, but also are
adapted to the special needs and cultural reality of the region’s French‑speaking
community.
[47] The
appellants submit that a community economic development service that is
tailored to the needs of the majority and is merely offered to the minority in
its language amounts at best to accommodation. On this basis, they request an
order declaring that Industry Canada, in developing its programs and providing
its services, has a duty to consider the special needs and cultural reality of
the French‑speaking community regarding economic development.
[48] The
respondents contend that the order being sought should not be granted. Their
view is that depending on the nature of the service, the government might, in
order to fulfil its language duties, be required to change its method of
providing the service, but not the content of the service itself. They
argue that “[t]his would amount to giving official language minority
communities, via subsection 20(1) of the Charter and Part IV
of the Act, a right to participate in defining the content of programs,
which even a generous reading of those provisions, having regard to subsection
16(1) of the Charter , does not authorize.”
[49] According
to the respondents, what is being claimed here is not the equal provision of
available services in both languages, but the provision of services other than
those being offered that better reflect the socio‑demographic
characteristics of the linguistic minority community. They assert that the
appellants are basically claiming a right to parallel services provided by a
Francophone organization. In the respondents’ view, linguistic equality does
not have as broad a scope as this, but is instead achieved “by guaranteeing
equal linguistic access to the services offered, not by access to distinct
services”. They therefore submit that the Federal Court of Appeal was correct
to conclude that the rights being claimed in this case exceed the scope of Part IV
of the OLA .
[50] In
reply to the respondents’ arguments, the appellants stress that the purpose of
this application is not to claim a right to parallel services managed by the
linguistic minority community. In their opinion, there is ample evidence that
the needs of the French‑speaking minority community are indeed different
from those of the English‑speaking majority community and that
North Simcoe, unlike CALDECH, has not succeeded in reaching the French‑language
business community. The appellants therefore request, in addition to the above‑mentioned
order, that the government be ordered to provide funding to CALDECH, at least
until substantive equality is achieved in the services provided by
North Simcoe both in terms of rights and privileges as to the use
of the official languages and in terms of the status of those languages
in the federal institution.
5.5 Application to the
Case at Bar
[51] It
seems clear to me that the respondents are correct to say that the principle
under s. 20(1) of the Charter and Part IV of the OLA of
linguistic equality in the provision of government services involves a
guarantee in relation to the services provided by the federal
institution. However, it is not entirely accurate to say that linguistic
equality in the provision of services cannot include access to services with
distinct content. Depending on the nature of the service in question,
it is possible that substantive equality will not result from the development
and implementation of identical services for each language community. The
content of the principle of linguistic equality in government services is not
necessarily uniform. It must be defined in light of the nature and purpose of
the service in question. Let us consider the community economic development
program in the case at bar.
[52] At
the relevant time, Industry Canada described its community economic development
program as follows:
[translation] Community economic
development (CED) is a global approach to development under which communities
take charge of their own economic futures and decide the direction they will
take to attain their goals. The following CED principles guide community
futures development corporations (CFDCs) in all the activities and services
they offer:
· ensuring development of the community, by the
community and for the community;
· taking local autonomy into account and promoting local skills;
· incorporating economic, social and environmental concerns in a
holistic approach to sustainable development;
· making use of partnerships that bring together various
interests and stakeholders;
· taking a long-term strategic approach;
· including the public and private sectors as well as volunteer
organizations; and
· supporting local entrepreneurs and small businesses.
In addition
to the business development and strategic planning services mentioned above,
CFDCs may take part in all kinds of other CED activities and projects. These
will vary greatly from one community to another, depending on priorities established
in the local strategic planning process. The following are a few examples:
·
development of infrastructure in support of economic development;
·
sponsoring of entrepreneurial and business management training courses
and workshops;
·
promotion of the community to stimulate tourism and investment;
·
creation of other partnerships to deal with issues related to
telecommunications and foster the use of the information highway;
·
implementation of special initiatives to promote entrepreneurship among
certain groups, such as women, young people, Aboriginal persons and
Francophones;
·
provision of support to micro‑businesses and home-based
businesses; and
·
promotion of sustainable development and adoption of measures in this
respect. [Underlining added.]
(As this text comes from a printout of an Industry Canada Web page
(http://strategis.ic.gc.ca/SSGF/md17281f.html, September 29, 2003) that is no
longer on line, an unofficial translation is provided.)
[53] It
is difficult to imagine how the federal institution could provide the community
economic development services mentioned in this description without the
participation of the targeted communities in both the development and the
implementation of programs. That is the very nature of the service provided by
the federal institution. It necessarily follows, as is expressly recognized in
the above passage, that the communities could ultimately expect to have distinct
content that varied “greatly from one community to another, depending on
priorities established” by the communities themselves.
[54] Given
the nature of the services at issue here, I therefore disagree with
Létourneau J.A.’s view that the principle of linguistic equality does not
entail a right to “access to equal regional economic development services”
(para. 33), or that the respondents did not have a duty under Part IV of
the OLA to “take the necessary steps to ensure that Francophones are
considered equal partners with Anglophones” (para. 38) in the definition
and provision of economic development services. With respect, it seems to me
that Létourneau J.A. did not fully consider the nature and objectives of
the program in question in so defining the scope of the duties resulting from
the guarantee of linguistic equality. What matters is that the services
provided be of equal quality in both languages. The analysis is necessarily
comparative. Thus, insofar as North Simcoe, in accordance with the
programs’ objectives, made efforts to reach the linguistic majority community
and involve that community in program development and implementation, it had a
duty to do the same for the linguistic minority community.
[55] However,
two points must be made regarding the scope of the principle of linguistic
equality in the provision of services. First, the duties under Part IV of
the OLA do not entail a requirement that government services achieve a
minimum level of quality or actually meet the needs of each official language
community. Services may be of equal quality in both languages but inadequate
or even of poor quality, and they may meet the community economic development
needs of neither language community. A deficiency in this regard might be due
to a breach of the duties imposed by the DIA , as the Federal Court of
Appeal pointed out in this case, or to a breach of the duties under
Part VII, as the Commissioner seemed to believe. I will come back to this
point.
[56] Second,
nor does the principle of linguistic equality in the provision of services mean
that there must be equal results for each of the two language communities.
Inequality of results may be a valid indication that the quality of the
services provided to the language communities is unequal. However, the results
of a community economic development program for either official language
community may depend on a large number of factors that can be difficult to
identify precisely.
[57] What
remains to be done is to consider the evidence in light of the above comments.
[58] As
we saw above, the evidence clearly shows that at the time the complaint was
filed with the Commissioner, the services provided in French by
North Simcoe were far from equal in quality to the services provided in
English. The institutional infrastructure required to provide services in each
official language simply did not exist. This deficiency, the appellants
concede, has since been remedied.
[59] Moreover,
as the Commissioner concluded in her follow‑up report in 2004,
North Simcoe has made “considerable efforts . . . to attract
French‑speaking clientele” (p. 5). The Commissioner described, inter
alia, some of the measures taken by North Simcoe: it has advertised
in newspapers of the French‑speaking community and on the French‑language
radio station; it has personal contacts with key representatives of the French‑language
minority community to inform them of its services; its Francophone volunteers
have also promoted its services in the context of their contacts with the
community; and it has published a new bilingual newsletter that has been
presented to representatives of the French‑speaking community and mailed
to 92 Francophone businesses.
[60] The
crux of the problem is that, despite these efforts, North Simcoe still
seems incapable of reaching the French‑speaking minority community and
actually involving that community in its program. Training sessions and
workshops in French are usually cancelled due to lack of participation. In her
second follow‑up report in 2004, the Commissioner stated that only one
French‑speaking client was dealing with North Simcoe in French.
Five other French‑speaking clients had chosen to be served in English.
North Simcoe has never received a loan application in French, despite the
creation of a French‑language investment committee.
[61] On
the other hand, North Simcoe seems to have had some success with the
English linguistic majority community. For example, in 2004 it received
272 general information requests, gave 21 in‑depth counselling
interviews and received 17 loan applications, 11 of which were approved.
[62] There
is no doubt that disparity in results can be a sign that the quality of
services is unequal, but the inquiry must not end there. Several factors may
come into play that have nothing to do with the comparative quality of the
services provided by the federal institution in each official language. In the
instant case, to support their contention that the services were not of equal
quality, the appellants place great emphasis on the success of CALDECH, which implemented
more than 50 projects for the French‑speaking community. The extent
to which this provides a basis for comparing the quality of North Simcoe’s
services in each official language is debatable. It seems to me that the very
existence of CALDECH may explain why so few Francophones chose to use
North Simcoe’s services, whatever their quality may have been. In any
event, the apparent disparity in results between the two language communities
does not support a conclusion that the services were of unequal quality.
[63] Although
the parties disagree about the number of CALDECH’s projects that Industry
Canada would actually have supported, one thing is certain: CALDECH’s ability
to reach the linguistic minority community and involve it in many community
economic development projects shows that there is a real need for such services
in Huronia’s French‑speaking community and that that need can be met.
However, I cannot conclude that the failure to remedy this shortcoming relates
to the principle of linguistic equality in communications and the provision of
services as implemented in Part IV of the OLA . Like
Harrington J. at trial, I believe that the appellants’ arguments
essentially relate to alleged violations of Part VII of the OLA .
It is noteworthy that in each of her three reports, the Commissioner drew a
clear distinction between duties related to the principle of equality in
communications and the provision of services under Part IV and duties resulting
from the government’s commitment, stated in Part VII, to enhancing the vitality
and development of linguistic minority communities. In all her reports, she
identified Part VII as the source of the duty to consider and meet
the special needs and concerns of Simcoe County’s French‑speaking
business community with regard to economic development.
[64] Of
course, as we saw above, the Commissioner’s role is entirely separate from that
of the court, which is not bound by her conclusions when it hears an
application under s. 77 . For example, the Commissioner does not have to
be overly concerned about distinctions between the various parts of the OLA ,
since she prepares a report containing recommendations, not an order granting remedies.
Also, the duties set out in Part IV may very well overlap those provided
for in Part VII. Since questions about the nature and scope of the duties
that may arise under Part VII of the OLA were not raised before
this Court, I will express no opinion on the correctness of the Commissioner’s
observations concerning such duties. Having said this, however, I conclude, as
the Commissioner seems to have done in her reports and as the trial judge
noted, that the deficiencies at issue here clearly exceed the scope of
Part IV.
6. Conclusion
[65] For
these reasons, I would dismiss the appeal but would award costs to the
appellants DesRochers and CALDECH.
Appeal dismissed with costs to certain appellants.
Solicitors for the appellants Raymond DesRochers and
Corporation de développement économique communautaire
CALDECH: Heenan Blaikie, Ottawa.
Solicitor for the appellant the Commissioner of Official Languages of
Canada: Office of the Commissioner of Official Languages of Canada,
Ottawa.
Solicitor for the respondents: Attorney General of Canada,
Ottawa.
Solicitor for the intervener the Attorney General of New
Brunswick: Attorney General of New Brunswick, Fredericton.
Solicitors for the intervener the Attorney General of the North West Territories: Gowling
Lafleur Henderson, Ottawa.
Solicitors for the intervener Fédération Franco‑Ténoise: Balfour
Moss, Regina.