Canada (House of Commons) v. Quigley, 2003 FCA 465

Date: 20031203

Docket: A-399-02

Citation: 2003 FCA 465

CORAM:        RICHARD C.J.

DÉCARY J.A.

PELLETIER J.A.

BETWEEN:

CANADA (HOUSE OF COMMONS), and

CANADA (BOARD OF INTERNAL ECONOMY)

                                                                                                                                                     Appellants

                                                                                 and

LOUIS QUIGLEY and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                               Respondents

                                                                                 and

                                                              MAURIL BÉLANGER

                                                                                                                                                     Intervener

                                           Heard at Ottawa, Ontario, on December 3, 2003.

                    Judgment delivered from the Bench at Ottawa, Ontario, on December 3, 2003.

REASONS FOR JUDGMENT OF THE COURT BY:                                                     DÉCARY J.A.

Date: 20031203

Docket: A-399-02

Citation: 2003 FCA 465

CORAM:        RICHARD C.J.

DÉCARY J.A.

PELLETIER J.A.

BETWEEN:

CANADA (HOUSE OF COMMONS), and

CANADA (BOARD OF INTERNAL ECONOMY)

                                                                                                                                                     Appellants

                                                                                 and

LOUIS QUIGLEY and

COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA

                                                                                                                                               Respondents

                                                                                 and

                                                              MAURIL BÉLANGER

                                                                                                                                                     Intervener

                                       REASONS FOR JUDGMENT OF THE COURT

                      (Delivered from the Bench at Ottawa, Ontario, on December 3, 2003)

DÉCARY J.A.

[1]    On December 27, 2000, the respondent, Louis Quigley, made an application for

1.     A declaration that the House of Commons' current method of providing television broadcasts of parliamentary proceedings to the public contravenes Part I, section 22, section 25 and the spirit of the Official Languages Act; and

2.     An order that the House of Commons comply with Part I, section 22, section 25 and the spirit of the Act, in its provision of television broadcasts of parliamentary proceedings to the public.

[2]                 In an Order dated June 5, 2002 reported at [2003] 1 F.C. 132, Mr. Justice O'Keefe identified three issues.

[3]                 The first issue was whether the Court had jurisdiction to apply the Official Languages Act (the Act) to the House or whether the House could assert its inherent constitutional privilege. The judge came to the conclusion that the issue did not arise in this case, as the House had already decided to make its proceedings available to the Cable Public Affairs Channel (CPAC) in English, French and floor sound.

[4]                 The second issue was whether the House was in breach of its linguistic obligations under the Act. The judge came to the conclusion that the House was in breach "as it has failed to ensure that the proceedings of the House would be provided in both official languages through its agreements with CPAC" (at para. 58).

[5]                 The third issue was what was the appropriate remedy on the facts of this case. The judge came to the following conclusion at para. 59:

I am of the opinion that the appropriate remedy in this case is to order that the House and the Board take the steps that are necessary to satisfy section 25 of the Act within one year from the date of this decision. Because of the complexity of the matter, I do not propose to spell out the complete nature of the steps to be taken.

[6]                 As a result, the judge made the following Order:

1.      A declaration will issue that the current method of the respondents, Canada (House of Commons) and Canada (Board of Internal Economy) for providing television broadcasts of parliamentary proceedings contravenes section 25 of the Act.

2.     The above named respondents shall, within one year of the date of this decision, take the necessary steps to bring its practices into compliance with section 25 of the Act.

[7]                 It appears, therefore, that the allegations made, the evidence adduced and the Order rendered were directed essentially at the factual circumstances existing at the time of the Order.

[8]                 Prior to the hearing of the appeal, the Chief Justice of the Federal Court of Appeal issued the following "Direction to the Parties":

The following facts appear in the Court record:

1)      It appears the Mr. Quigley now receives the television broadcast of parliamentary proceedings in both official languages (appellant's memorandum, para. 20);

2)     The impugned Order of the Trial Division is "a declaration that the current method of the respondents, Canada (House of Commons) and Canada (Board of Internal Economy) for providing television broadcasts of parliamentary proceedings contravenes section 25 of the Act"; and,

3)     Neither the CRTC nor CPAC were parties to the proceedings in the Trial Division, although the impugned Order affects them. The parties should be prepared to address the issue as to whether the Federal Court of Appeal, should it decide to hear the appeal and should it find in favour of Mr. Quigley, may not be in a position to pronounce a declaration that substantially affects third parties without these third parties having had the opportunity, in the Trial Division, to file evidence and express their views.

The Court invites counsel to address the following questions:

1)     That this appeal might be moot; or,

2)     In any event, that the Court might not be in a position to determine adequately the issues raised.

[9]                 The appellants agreed in their written submissions that the appeal was moot. The respondents as well as the intervener all submitted that there still exists a live controversy between the parties as the substratum of this litigation concerns the alleged failure of the House to meet its obligations pursuant to the Act.

[10]            We are of the view, with respect, that the appeal is moot. The declaration sought and the evidence adduced at the hearing of the application related to the "current method" of providing television broadcasts of parliamentary proceedings to the public. The impugned Order refers on the one hand to the "current method" of the respondents and allows the respondents on the second hand to take the necessary steps "within one year of the date of this decision". One year has passed, the method used by the respondents at the time of the hearing (on December 5, 2001) and at the time of the Order (on June 5, 2002) has changed; new regulations have been issued by the CRTC on September 1, 2002 which require cable distributors to distribute both French and English signals of Houses of Commons proceedings as a condition of their licence (SOR/02-322); and Mr. Quigley now receives the television broadcasts in the official language of his choice. If there is still a live controversy between the parties, it is not with respect to the factual situation that prevailed at the time of the hearing and of the Order, nor with respect to actual compliance with the impugned Order. It is, rather, with respect to the reasons for judgment of the learned judge. To use the words of Justices Iacobucci and Arbour, for the majority of the Court, in 2003 SCC 62">Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, at para. 17, "[t]he desired effect has been achieved" and confirming or reversing the application's judge order "would have no practical effect for the litigants in this case".

[11]            Mootness, of course, is not an absolute bar to an appeal court hearing an appeal. The court must still exercise its discretion to hear a moot issue if the circumstances warrant (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at paras. 15 and 16; 2003 SCC 62">Doucet-Boudreau, supra, at paras. 16-22).

[12]            An adversarial context is still very much present in this case as all parties have vigorously urged the Court to hear the appeal. The concern for judicial economy, however, militates against the hearing of this case. It seems unlikely to us that this Court could properly deal with the question of the appropriate method of distributing the House of Commons debates to the public without the assistance of the CRTC, the broadcast regulator, and CPAC, the organization which is the interface between the cable companies and the House of Commons. Any decision made in the absence of these parties would not bind them, so that the same issue could be relitigated at a later date. Finally, to the extent that the Court must be attentive that it not stray into the legislative domain, it must be particularly careful not to do so in relation to the rights and privileges of Parliament itself. Parliament is not above the law, but the Court ought not to delve into its internal operations except where it is clearly necessary to do so. In this case, it is not.

[13]            That no useful order may be made by this Court in an area where evolving technology plays such a great part without the participation of the CRTC and of the broadcasting industry is confirmed by the following extract from the Investigation Report concerning the broadcasts and availability of the proceedings of the House of Commons in both official languages, issued by the Commissioner of Official Languages of Canada in October 2000:

While the advent, in a few years, of the digital era when the accessibility to the public of the Multi-Channel TV Sound referred to above will probably make it possible to ensure members of the public full access to parliamentary debates televised in their preferred official language, the House of Commons must, meanwhile, take all the measures required to achieve this objective. For example, we believe it is the House of Commons' responsibility to bring this issue to the attention of the CRTC and explore with all interested parties, including the Canadian Cable Television Association, any short-term solutions which would give the Canadian public access to televised parliamentary proceedings in the public's preferred official language.

                                                                                                                                  [A.B., p. 139]

[14]            The appeal will therefore be dismissed on the ground that it is moot. The costs of respondent Quigley are to be borne by the appellants.

                                                                                                                                            "Robert Décary"                             

                                                                                                                                                                   J.A

.

                                                    FEDERAL COURT OF APPEAL

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                                     A-399-02

APPEAL FROM AN ORDER OF THE FEDERAL COURT OF CANADA DATED JUNE 5, 2002, NO. T-2395-00

STYLE OF CAUSE:                                                                  Canada (House of Commons) et al v. Louis Quigley et al

PLACE OF HEARING:                                                             Ottawa, Ontario

DATE OF HEARING:                                                               December 3, 2003

REASONS FOR JUDGMENT OF THE COURT:              Richard C.J.

Décary J.A.,

Pelletier J.A.

DELIVERED FROM THE BENCH BY:                               Décary J.A.

APPEARANCES:

SOLICITORS OF RECORD: