DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194

                                                 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.

______________________________

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.