Docket: T-1423-21
Citation: 2024 FC 1902
[ENGLISH TRANSLATION]
Ottawa, Ontario, November 28, 2024
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
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MICHEL THIBODEAU
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Applicant
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and
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HIS MAJESTY THE KING (PUBLIC SERVICES AND PROCUREMENT CANADA)
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Respondent
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PUBLIC JUDGMENT AND REASONS
This is a public version of confidential reasons for judgment issued to the parties. In accordance with Federal Courts Rules, SOR/98-106, subsection 152(3), the redactions will remain in place until the expiry of the time for any appeals and if applicable including the duration of any appeal and after final judgment.
I. Overview
[1] The applicant, Michel Thibodeau, who is self-represented, is applying for a series of remedies pursuant to subsection 77(1) of the Official Languages Act, RSC 1985, c 31 (4th Supp) [Act], in particular and amongst other things, a declaration by this Court that Public Services and Procurement Canada [PSPC] breached its language obligations under the Act, thus violating his language rights, as regards the 13 complaints he filed with the Commissioner of Official Languages [Commissioner]; a formal letter of apology acknowledging the several language rights violations; as well as an award of $19 500 in damages — $1500 for each of the 13 violations in question — plus costs and disbursements. In addition, Mr. Thibodeau asks that he be granted public interest standing.
[2] PSPC raises a number of issues in its request that this application be dismissed. However I need not address all the issues raised in this matter. For the reasons that follow, I am dismissing Mr. Thibodeau’s application. Even if I were to find that Mr. Thibodeau’s language rights were violated, given the particular circumstances in which Mr. Thibodeau discovered the breaches by PSPC of its language obligations under the Act, I am not convinced that Mr. Thibodeau is deserving of any of the remedies he seeks. I should mention as well that those particular circumstances are presently subject to a confidentiality order — more on this below.
II. Factual and legal background
[3] The facts in this case are for the most part not in dispute. PSPC provides federal departments and institutions with services to help them implement their various programs; amongst other things, PSPC procures and manages offices and facilities, and is responsible for fitting up and renovating workplaces for those federal entities. It is also in charge of the construction, maintenance, repair and restoration of federal buildings and lands, as well as overall management and related operations. In the performance of its duties, PSPC oversees a large number of projects, many of them complex, and deals with numerous outside contractors specializing in various fields. In the matter at hand, the projects at issue include repairs on Parliament Hill and restoration of the Confederation Building, as well as restoration projects in the Library and Archives Canada building and the C.D. Howe Building. Moreover, the agreements with the contractors working at those sites all contain similar clauses stipulating that signage on site must be in both official languages.
[4] PSPC claims that because of the large number of office spaces and construction sites, maintenance contracts, contractors and subcontractors, and private-sector workers, as well as the varying duration of the different projects, it is extremely difficult to systematically monitor the signage used by third parties at any one time; every day, hundreds of outside workers are present on the various sites managed by PSPC. For example, for the Centre Block restoration and modernization project on Parliament Hill, more than 1500 construction workers were on-site daily during the peak of activities. In November 2021, an average of 431 workers were on the Centre Block construction site on Parliament Hill every day, including employees from 33 subcontractor companies. Subcontractors supply most of the workers on construction sites run by PSPC, and any one of those workers may be required to set up signs to indicate, for example, that a fire hydrant or wall has just been painted, to block access to a specific area, or direct traffic. Some of those signs are set up for just a few hours, while others are on display for a whole day or for weeks or months at a time; also, the same signs are not necessarily used by the same workers.
[5] In 2019, Mr. Thibodeau filed a series of 13 complaints with the Commissioner against PSPC regarding unilingual and/or predominantly English signage, as follows:
[translation]
2019-0426-CAS
Stickers reading “Caution automatic door, activate switch to operate” were posted on the entrance and exit doors of the L’Esplanade Laurier building in Ottawa.
2019-0427-CAS
A yellow ribbon featuring the word “Caution” without a French equivalent was placed on structures used for renovations at the Confederation Building in Ottawa.
2019-0431-CAS
Safety posters with the unilingual English phrase “Danger due to…” were placed on structures used for renovations on Parliament Hill in Ottawa.
2019-0432-CAS
A sign reading “Caution” in large lettering and “attention” in small lettering was used for certain cleaning activities at 240 Sparks Street in Ottawa.
2019-0433-CAS
A unilingual English sign reading “Danger due to work overhead” was placed behind the Library and Archives Canada building in Ottawa.
2019-0434-CAS
Unilingual English signs reading, “Danger due to …” were placed on a structure used for renovations near West Block on Parliament Hill in Ottawa.
2019-0438-CAS
Signs reading “Caution” without a French equivalent and the phrase “Falling Ice and Snow” with a French equivalent in smaller lettering were used at 240 Sparks Street in Ottawa.
2019-0439-CAS
On February 13, 2019, a construction worker was directing traffic on Parliament Hill using a unilingual English sign reading “SLOW” and “STOP”.
2019-0453-CAS
On March 18, 2019, unilingual English signs were posted at the entrance to the L’Esplanade Laurier building in Ottawa, reading “Caution Wet Floor” and “Danger Hot Work”, respectively.
2019-0456-CAS
On February 14, 2019, safety posters with the unilingual English phrase “Danger due to…” were posted outside a construction site near East Block on Parliament Hill in Ottawa.
2019-0457-CAS
On February 14, 2019, a unilingual English poster reading “Gate 4” was posted outside a construction site near Centre Block on Parliament Hill in Ottawa.
2019-0459-CAS
On March 18, 2019, unilingual English safety posters reading, “Danger due to…” were placed outside a construction site near East Block on Parliament Hill in Ottawa.
2019-0460-CAS
Unilingual English stickers reading “Caution automatic door, activate switch to operate” were posted on the doors to the L’Esplanade Laurier building in Ottawa.
[6] The 13 complaints involved sites which PSPC managed and on which it was responsible for ensuring that signage was in both official languages and of equal quality at all times, in particular Parliament Hill (six complaints), the Confederation Building (one complaint), the Library and Archives Canada building and the C.D. Howe Building (three complaints), and L’Esplanade Laurier building (three complaints). The signage in question primarily addressed health, safety and security on the premises, and traffic.
[7] In its comments in response to the Commissioner’s preliminary investigation report, PSPC acknowledged its lack of compliance with the Act in 11 of the 13 complaints; it stated that it had subsequently had the signage corrected and had reminded the responsible subcontractors of the language obligations under their agreements. PSPC denied any breach of the Act, however, with respect to two of the complaints: files 2019-0432-CAS [the “Caution/Attention” complaint] and 2019-0439-CAS [the “Slow/Stop” complaint]. Regarding the “Caution/Attention” complaint, PSPC was of the view that the sign was bilingual, but it was necessary for the French version to be in smaller letters so the word “Attention” would fit on the sign. With respect to the “Slow/Stop” complaint, PSPC stated that the signage was subject to a provincial health and safety regulation which governed the shape and size of the signs used on construction sites in Ontario, and that the signage in question complies with mandatory provincial regulations for which PSPC is not responsible.
[8] In his final investigation report dated July 21, 2021, the Commissioner concluded that Mr. Thibodeau’s 13 complaints were all well founded and that PSPC had breached its language obligations under Part IV of the Act. With respect to the “Caution/Attention” complaint, the Commissioner determined that PSPC [translation] “did not fulfil its duties, as the signage in both official languages should have been of equal quality, which implies lettering of the same size”
. As regards the “Slow/Stop” complaint, the Commissioner found that PSPC [translation] “could have instructed employees to hold multiple signs, one in English and the other in French, or to use bilingual signs, or to rely on signs with pictograms”
. The Commissioner also noted, however, that during the investigation, PSPC showed good faith by quickly taking measures such as inspecting the premises and reminding the employees concerned of the obligations under the Act. Nevertheless, the Commissioner was of the view that PSPC had a duty [translation] “to do more than give reminders and ensure that contracts contain language clauses”
; it had to [translation] “employ monitoring measures so that those in charge of the work in other organizations ensure that work site safety signage is bilingual before the work begins and while it is being carried out”
. Finally, the Commissioner stated that, in response to the preliminary investigation report, PSPC had committed to implementing his recommendations.
[9] As I understand matters, when he rendered his final investigation report, the Commissioner was not aware of the particular circumstances that led Mr. Thibodeau to discover the breaches by PSPC of Part IV of the Act. Then again, it may not have been necessary given that, as stated in the report, the Commissioner’s investigation focused on determining whether PSPC respected its language obligations under Part IV of the Act as regards the complaints of Mr. Thibodeau, and whether the complaints were well founded. The report did not deal with the subsidiary issue of whether Mr. Thibodeau’s language rights under the Act were violated, nor the issue of appropriate remedies.
[10] In any event, on September 17, 2021, Mr. Thibodeau filed the underling application for judicial review [translation] “to assert [his] language rights, obtain a remedy, and ensure that PSPC stops violating the language rights of Francophones”
. I note the following paragraphs from Mr. Thibodeau’s affidavit filed in support of this application:
[translation]
34. I feel that my rights are infringed when I am confronted with this type of unilingual English and/or predominantly English signage. It causes me frustration, stress, and loss of enjoyment of life.
35. I suffered stress because of my identity as a Francophone was threatened and I felt like a second-class citizen.
36. Confronted with this unilingual English and/or predominantly English signage, I filed a complaint with the Commissioner to assert and enforce my language rights.
37. The right to be served in French is a constitutional right, and to me it is a very important fundamental right.
38. As an individual, I have identified with the French language since I was very young, and when I am refused the right to be served in French, in terms of either service or signage, my identity as an individual and my sense of belonging to one of the two founding peoples of Canada is threatened.
39. On September 17, 2021, I brought an application before this Honourable Court to assert my language rights, seek a remedy, and ensure that PSPC ceases its violation of the language rights of Francophones.
[11] In his underlying application, Mr. Thibodeau alludes to several similar complaints that he filed against PSPC over the last 10 years and asserts that PSPC has refused or neglected to change its way of operating to comply with its language obligations under the Act. In particular, Mr. Thibodeau refers to a previous application for judicial review he filed against PSPC in 2017, Docket T-1512-17 [the 2017 application]; he confirms that the 2017 application referred to several breaches of the Act and that a good number of them were quite similar if not identical to those identified in the present application. I find in the record before me the affidavit that Mr. Thibodeau filed as part of the 2017 application, without the exhibits. Mr. Thibodeau confirms that the 2017 application was resolved by way of a settlement; a letter of apology [the letter of apology] was also issued by PSPC acknowledging that Mr. Thibodeau’s complaints to the Commissioner were well founded, and that the breaches of the Act in that case lead to a violation of Mr. Thibodeau’s language rights.
[12] Nowhere in the documentation he has filed in support of this application does Mr. Thibodeau describe the particular circumstances which led him to discover the breaches by PSPC — |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| — and which prompted the filing of the 13 complaints with the Commissioner because, according to Mr. Thibodeau, those circumstances were confidential.
[13] In the matter before me now, Mr. Thibodeau does not challenge the Commissioner’s conclusions; on the contrary, he agrees with them to the effect that PSPC breached its language obligations under Part IV of the Act. Mr. Thibodeau now asks the Court for a declaration that his language rights were violated and seeks the appropriate remedies under the law; he argues that although PSPC acknowledges its breaches of the Act, it simply seeks to explain them away by minimizing the problem. In particular, on the topic of the “Slow/Stop” complaint, Mr. Thibodeau asserts that the fact that PSPC has been trying for several years to have the Ontario regulation changed so that signage in both official languages can be used on federal work sites in Ontario does not excuse the fact that it breached its language obligations under the Act. In addition, and although PSPC did not challenge before the Commissioner the 2019-0453-CAS complaint regarding a sign at L’Esplanade Laurier reading “Caution Wet Floor” [the “Caution Wet Floor” complaint], nor did PSPC, according to Mr. Thibodeau, commit to implementing the Commissioner’s recommendations in relation to that complaint; the corrective measures taken in that case still do not remedy the breach of the Act because the lettering for the French “Attention Plancher mouillé” is not the same size as the English lettering.
[14] PSPC raises a number of issues with respect to this matter. First, PSPC again acknowledges that it breached its language obligations under the Act — this time with respect to 12 of the 13 complaints filed by Mr. Thibodeau, including the “Caution/Attention”, “Slow/Stop”, and “Caution Wet Floor” complaints — and concedes that the complaints were well founded at the time they were filed with the Commissioner. However, PSPC submits that there are mitigating circumstances that must be considered when determining remedies; here, PSPC continues to argue that the signs at issue in the “Slow/Stop” complaint were governed by Ontario provincial health and safety regulations and therefore were not its responsibility. As for the “Caution Wet Floor” complaint, PSPC tried to remedy the breach but seemingly, according to Mr. Thibodeau, without success.
[15] Second, PSPC raises a new argument before me concerning complaint 2019-0457-CAS [the “Gate 4” complaint] that was not put to the Commissioner, namely, that the unilingual English sign reading Gate 4 posted outside a construction site near the Centre Block on Parliament Hill did not breach the language requirements of the Act. Mr. Thibodeau objects, submitting that PSPC admitted to the breach of the Act before the Commissioner with respect to the “Gate 4” complaint, and cannot now withdraw its admission. PSPC, for its part, states that the parties are not bound by the submissions they made at the stage of the Commissioner’s investigation and that they may adopt a position before the Court that is contrary to the one they took before the Commissioner concerning the same complaint.
[16] Third, and notwithstanding its admitted breaches of the Act, PSPC is of the view that Mr. Thibodeau’s language rights were not violated in respect of any of the 13 complaints given the manner in which he discovered those breaches. Ordinarily, an application made pursuant to section 77 of the Act raises two questions: (i) was the complaint justified at the time it was filed because of a breach to the Act? (ii) if so, what is the appropriate and just remedy in the circumstances? (Canadian Food Inspection Agency v Forum des Maires de la Péninsule Acadienne, 2004 FCA 263 at para 53). However, PSPC asserts that the circumstances in which Mr. Thibodeau discovered the breaches of the Act, in essence, sever the causal link between a breach of the Act and a violation of the language rights of a complainant; in this case, PSPC submits that the finding that it breached its language obligations under the Act should not automatically lead to such a determination, again, because of the circumstances in which Mr. Thibodeau discovered those breaches. PSPC argues that the recommendations of the Commissioner are of little assistance regarding this issue because, as I mentioned earlier, the role of the Commissioner is to determine whether complaints relating to breaches of the Act are well founded, and not whether the complainant’s rights were violated or whether remedies should be granted in the event of such violations. PSPC concedes that the case law has not yet addressed this jurisprudential issue because the debate before this Court has, in prior cases, usually been limited to the merits of the complaint, shifting then automatically to a determination of whether remedies under section 77 of the Act are appropriate. PSPC admits that, in most cases, merely concluding that the Act has been breached would automatically lead to the finding that the applicant’s language rights have been violated; however, argues PSPC, there are exceptions, and this case is one such exception.
[17] Finally, PSPC argues that regardless whether the circumstances in which Mr. Thibodeau discovered the breaches severs the link between a breach of the Act and a finding that his language rights have been violated, those same circumstances militate against awarding any of the remedies sought by Mr. Thibodeau in this case.
III. Preliminary issue — motion to strike portions of the affidavit evidence
[18] Before I deal with issues raised by the parties, I must first deal with the preliminary issue of determining whether I should strike the portions of the evidence Mr. Thibodeau does not wish for me to consider and address the issue of confidentiality emanating from the motion to strike heard by Associate Judge Tabib on September 13, 2022.
[19] As part of the proceedings now before the Court, PSPC had filed the affidavit of Nicolas Boulet‑Groulx, Director General of Operations at the Science and Parliamentary Infrastructure Branch of PSPC, dated December 17, 2021 [Mr. Boulet‑Groulx’s affidavit]. According to Mr. Thibodeau, this affidavit contains confidential information protected by settlement privilege and a confidentiality agreement. He therefore filed a motion to strike paragraphs 12 to 22 and exhibits C, D, E, F, and G of Mr. Boulet‑Groulx’s affidavit to prevent disclosure of what he saw as confidential information. Associate Judge Tabib dismissed Mr. Thibodeau’s motion, stating that it was preferable that the judge on the merits decide the matter. The Associate Judge issued an interim order of confidentiality on September 16, 2022, preventing the public disclosure of the information, pending a determination by the trial judge.
[20] This preliminary issue was argued before me in camera. The factual elements which Mr. Thibodeau claims to be confidential are redacted in the public version of my judgment, at least for the moment. In accordance with subsection 152(3) of the Federal Courts Rules, SOR/98-106 [Rules], the redactions will remain until the expiry of the appeal period and, if applicable, during the appeal and after final judgment.
[21] As stated earlier, Mr. Thibodeau and PSPC resolved the 2017 application by way of a settlement on terms. Mr. Thibodeau’s affidavit of November 1, 2021, submitted in support of this application, explains certain details of the complaints that formed part of the 2017 application, including locations and dates, as well as photographs of the signage at issue. Mr. Thibodeau also refers to the 2017 application having been resolved through settlement and to the letter of apology he obtained further to that agreement. In response and in support of its defence in the underlying application, PSPC served Mr. Boulet‑Groulx’s affidavit. In paragraphs 12 to 22, Mr. Boulet‑Groulx states certain facts, in particular that |||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[22] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| || |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Mr. Thibodeau does not challenge Mr. Boulet‑Groulx’s statements; in fact, in his cross‑examination, |||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. However, Mr. Thibodeau now asks the Court to exercise its discretion and strike paragraphs 12 to 22 and exhibits C, D, E, F, and G of Mr. Boulet‑Groulx’s affidavit, namely, the evidence of PSPC that explains the particular circumstances in which Mr. Thibodeau discovered the breaches forming the basis of the complaints, under the pretext that all the facts |||||||||||||||||||||||||||||||||||||||||||||| are confidential on account of the settlement. It is important to bear in mind that the remedies Mr. Thibodeau seeks before me include a declaration that his language rights were violated and substantial monetary compensation for the harm that he claims to have suffered on account of the breaches of the Act by PSPC.
[23] As I stated above, the motion to strike — with confidential material duly filed — was heard by Associate Judge Tabib. Her decision of September 16, 2022, contained the following passages:
[translation]
The applicant argues that the evidence he objects to is subject to a privilege of exclusion and a confidentiality agreement. The respondent recognizes the existence of the privilege claimed and the confidentiality agreement but submits that their application does not extend to the facts in evidence.
…
The facts related in the disputed evidence are already well known by the parties. Inasmuch as the confidentiality of the information at issue is maintained in respect of third parties, the applicant has not established to the Court’s satisfaction that he would suffer any harm whatsoever if the issue of the admissibility of this evidence were left to the assessment of the judge on the merits. Furthermore, I am convinced that it would be preferable for the issues of the extent of the privilege sought, the waiver of the privilege by the applicant’s conduct, and the lifting of the privilege in the circumstances of the case to be determined on the merits, in light of the record as a whole.
Moreover, I am also convinced that so long as the issue of privilege is not decided, public disclosure of the disputed evidence risks breaching the privilege sought and rendering the question moot. In the circumstances, an interim order of confidentiality is appropriate to prevent public disclosure of the disputed information until the application is decided on the merits. I recognize that the confidentiality agreement may have a broader scope than the privilege sought in this case and that a finding on admissibility therefore does not necessarily mean a finding on confidentiality. Accordingly, once the issue of the application and extent of the privilege is determined, the judge will be able to consider whether the confidentiality agreement applies and whether upholding the order of confidentiality on all or part of the disputed information would be in the interests of justice.
[Emphasis added.]
[24] Associate Judge Tabib therefore dismissed Mr. Thibodeau’s motion to strike but ordered that:
[translation]
Paragraphs 12 to 22 and exhibits C, D, E, F, and G to the affidavit of Nicolas Boulet‑Groulx, along with the information in the parties’ respective motion records redacted in accordance with the order of March 30, 2022, will be treated as confidential until the judge on the merits of the application decides otherwise.
…
Upholding the confidentiality of the information designated as confidential in this order falls within the discretion of the Court, after the hearing of the application.
[25] To be clear, Mr. Thibodeau does not object to |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Moreover, Mr. Thibodeau did not file a motion for an order of confidentiality under subsection 151(1) of the Rules. Instead, he filed before Associate Judge Tabib a confidential motion to strike information from Mr. Boulet‑Groulx’s affidavit, namely, the evidence surrounding the circumstances in which Mr. Thibodeau discovered the breaches, on the grounds that it was protected by a privilege of exclusion and a confidentiality agreement.
[26] Mr. Thibodeau asserts that it is important for the government to comply with its confidentiality agreements. However, it seems to me that an order for confidentiality protecting the information from the public was not enough for Mr. Thibodeau; what he wanted was for the judge hearing the merits not to become aware of the factual matrix to which Mr. Boulet‑Groulx refers in his affidavit when discussing the circumstances in which Mr. Thibodeau discovered the breaches which form the subject of the complaints; in fact, the question of whether an order for confidentiality would have been sufficient in this case seems to have been put to Mr. Thibodeau by Associate Judge Tabib (see the Minutes of Hearing prepared regarding his motion).
[27] PSPC, for its part, acknowledges the existence of the privilege claimed by Mr. Thibodeau and of the confidentiality agreement, which is the reason why, according to PSPC, Mr. Boulet‑Groulx’s affidavit was carefully drafted so as to |||||||||||||||||||||||||||||||||||||||||||||| |||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. As such, PSPC asserts that the evidence Mr. Thibodeau seeks to strike is not confidential, |||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Mr. Boulet‑Groulx’s affidavit outlines the |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| breaches to the Act like the ones alleged by Mr. Thibodeau in the underlying application. According to PSPC, these details in no way reveal |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| [translation] ||||||||||||||||||||||||||||||||||||||||||||||||||, and striking this evidence would prejudice PSPC because it would prevent it from making full answer and defence in this matter. PSPC further states that, if the privilege and the confidentiality agreement have as broad a scope as Mr. Thibodeau claims, he himself violated them by including certain pieces of what would arguably be confidential information in his own affidavit. In the alternative, PSPC argues that the privilege Mr. Thibodeau claims is a qualified privilege and that the Court has the discretion to lift this type of privilege when it is in the interests of justice to do so. PSPC submits that such circumstances exist in this case.
[28] In my opinion, there is no need for me to decide whether the information that Mr. Thibodeau would like to strike is confidential. Even if it is, by filing the underlying application, he has made any prior confidentiality agreement inoperative in respect of information that is reasonably necessary for PSPC to make full answer and defence. I will not allow Mr. Thibodeau to cherry-pick the bits of information he chooses to reveal to the Court. In his memorandum of fact and law and in his own affidavit, Mr. Thibodeau details several aspects of his settlement with PSPC. He includes a copy of the affidavit from the 2017 application and a copy of the letter of apology that PSPC issued as a remedy. In doing so, Mr. Thibodeau’s objective was to demonstrate that the breaches of language obligations by PSPC (and the PWGSC before it) are nothing new. Indeed, Mr. Thibodeau wished to emphasize that this problem has persisted for several years, despite the Commissioner’s past recommendations. According to Mr. Thibodeau, many of the 13 breaches at issue in this application are very similar if not identical to those listed earlier in the 2017 application.
[29] As provided in section 79 of the Act, “the Court may admit as evidence information relating to any similar complaint under this Act in respect of the same federal institution”
. Indeed, the case law recognizes that section 79 “is a unique provision, showing Parliament’s intent to make an exception to the traditional rules of evidence in order to allow the tribunal to offer the most complete and appropriate remedy”
(Thibodeau v Halifax International Airport Authority, 2018 FC 223 at para 19; see also Thibodeau v Air Canada, 2005 FC 1156 at paras 82–83). Mr. Thibodeau thus wishes to bolster his complaint against PSPC by arguing that PSPC’s breaches of the Act that gave rise to this application reveal a greater systemic problem within the organization. According to Mr. Thibodeau, this would allow the Court to consider the overall problem when assessing what would constitute an “appropriate and just” remedy under the circumstances.
[30] It seems to me that Mr. Thibodeau is seeking to strike evidence that is unfavourable to his cause, and that the public interest and the principle of open justice militate in favour of not allowing him to do so. There is no doubt that public interest weighs in favour of protecting the confidentiality of settlement documents; it is equally clear, however, that neither the settlement privilege nor the confidentiality agreement is absolute. There are exceptions to settlement privilege “when the justice of the case requires it” (Sable Offshore Energy Inc. v Ameron International Corp., 2013 SCC 37 [Sable Offshore] at para 12, citing Rush & Tompkins Ltd v Greater London Council, [1988] 3 All ER 737 (HL) at 740). To benefit from these exceptions, “a defendant must show that, on balance, ‘a competing public interest outweighs the public interest in encouraging settlement’”
; these countervailing competing public interests have been found to include preventing a plaintiff from being overcompensated (Sable Offshore at para 19, citing Dos Santos Estate v Sun Life Assurance Co. of Canada, 2005 BCCA 4 at para 20). By bringing this application, Mr. Thibodeau has opened himself up to the disclosure of the circumstances in which he discovered the breaches of the language requirements of the Act. In this case, considerations of justice require that PSPC be allowed to disclose otherwise possibly confidential information to the extent that is reasonably necessary to defend itself and avoid overcompensating Mr. Thibodeau. In my view, the circumstances under which Mr. Thibodeau discovered the admitted breaches of the Act by PSPC are a key element that must be considered when determining the remedy that is “appropriate and just” in the circumstances. In this case, it is difficult if not impossible to separate, on the one hand, |||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||.
[31] As already noted, Mr. Thibodeau argues that to defend itself, PSPC could have |||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||. Mr. Thibodeau objects to PSPC ||||||||||||||||||||||||||||||||||||||||||||||; even though Mr. Boulet‑Groulx’s affidavit makes no reference to |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | ||||||||||||||.
[32] I cannot accept Mr. Thibodeau’s reasoning. Mr. Thibodeau asks the Court to declare that his language rights were violated, that this violation caused him [translation] “frustration, stress, and loss of enjoyment of life”
, and that he [translation] “suffered stress because [his] identity as a Francophone was threatened”
, for which he seeks remedies, including damages. In order to do so, the Court must consider in its entirety the specific circumstances in which the parties found themselves; the complaints at issue here did not take place in a contextual vacuum. It goes without saying that the breaches to the |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||| are at the heart of the complaints in this case. In determining the appropriate remedies, if any, the Court can fulfil its role fairly and correctly only if it has full knowledge of the circumstances; it must be aware of the context of the complaints and the alleged breaches of the Act. Therefore, the Court must be able to consider |||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| of the Act as a result of the actions of outside contractors working for the government, |||||||||||||||||||||||||||||||||||||||||||||||||| || ||||||||||||||||||||. Doing otherwise would amount to drawing a false portrait of Mr. Thibodeau’s experience when he discovered these breaches and of the purportedly repeat offences of PSPC. Such a portrait would not take into account |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The extent to which Mr. Thibodeau was a victim of a breach by PSPC’s of its language obligations must be assessed with a full understanding of the surrounding circumstances.
[33] Without deciding whether Mr. Boulet‑Groulx’s affidavit reveals confidential information, I also note that the confidentiality agreement provides that it may be lifted when [translation] “|| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||”. Therefore, in the circumstances, I will not strike from the record evidence that more clearly reflects the facts on the ground, and which may possibly restore PSPC’s image in connection with its breaches of the Act. Mr. Thibodeau’s preliminary motion is therefore dismissed.
IV. The just and appropriate remedies
[34] Subsection 77(4) of the Act reads as follows:
(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.
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(4) Le tribunal peut, s’il estime qu’une institution fédérale ne s’est pas conformée à la présente loi, accorder la réparation qu’il estime convenable et juste eu égard aux circonstances.
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[35] The words “appropriate and just in the circumstances” in subsection 74(4) mirror the words found in subsection 24(1) of the Canadian Charter of Rights and Freedoms [the Charter]. The meaning of the words was considered by the Supreme Court in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3:
[52] What, then, is meant in s. 24(1) by the words “appropriate and just in the circumstances”? Clearly, the task of giving these words meaning in particular cases will fall to the courts ordering the remedies since s. 24(1) specifies that the remedy should be such as the court considers appropriate and just. Deciding on an appropriate and just remedy in particular circumstances calls on the judge to exercise a discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles. Once again, we emphasize McIntyre J.’s words in Mills, supra, at p. 965:
It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion.
[53] With respect, the approach to s. 24 reflected in the reasons of LeBel and Deschamps JJ. would tend to pre-empt and reduce this wide discretion. Their approach would also, in this case, pre-empt and devalue the constitutional promise respecting language rights in s. 23. In our view, judicial restraint and metaphors such as “dialogue” must not be elevated to the level of strict constitutional rules to which the words of s. 24 can be subordinated. The same may be said of common law procedural principles such as functus officio which may to some extent be incorporated in statutes. Rather, as LeBel and Deschamps JJ. appear to recognize at paras. 135 and following, there are situations in which our Constitution requires special remedies to secure the very order it envisages.
[54] While it would be unwise at this point to attempt to define, in detail, the words “appropriate and just” or to draw a rigid distinction between the two terms, there are some broad considerations that judges should bear in mind when evaluating the appropriateness and justice of a potential remedy. These general principles may be informed by jurisprudence relating to remedies outside the Charter context, such as cases discussing the doctrine of functus and overly vague remedies, although, as we have said, that jurisprudence does not apply strictly to orders made under s. 24(1).
[55] First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. An ineffective remedy, or one which was “smothered in procedural delays and difficulties”, is not a meaningful vindication of the right and therefore not appropriate and just (see Dunedin, supra, at para. 20, McLachlin C.J. citing Mills, supra, at p. 882, per Lamer J. (as he then was)).
[56] Second, an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy. As discussed above, a court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary. This is not to say that there is a bright line separating these functions in all cases. A remedy may be appropriate and just notwithstanding that it might touch on functions that are principally assigned to the executive. The essential point is that the courts must not, in making orders under s. 24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.
[57] Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court. It will not be appropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestly unsuited. The capacities and competence of courts can be inferred, in part, from the tasks with which they are normally charged and for which they have developed procedures and precedent.
[58] Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right.
[59] Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter. As such, s. 24, because of its broad language and the myriad of roles it may play in cases, should be allowed to evolve to meet the challenges and circumstances of those cases. That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case.
[Emphasis added.]
[36] Much of the discussion surrounding this issue has centered around the remedy of damages. In the Supreme Court decision of Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 [Ward], the Chief Justice, speaking for the majority, stated at paragraph 4:
[4] I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.
[Emphasis added.]
[37] In Ward, the issue related to the appropriateness of the awarding of damages as a particular remedy under the circumstances. This citation from Ward has been adapted in the context of the Act (Thibodeau v Edmonton Regional Airports Authority, 2022 FC 565 [Edmonton Regional Airports Authority] at para 18 – affirmed recently on appeal, Edmonton Regional Airports Authority v Thibodeau, 2024 FCA 196 at para 20; Thibodeau v St. John’s International Airport Authority, 2022 FC 563 [St. John’s International Airport Authority] at para 72 – affirmed recently on appeal, St. John's International Airport Authority v Thibodeau, 2024 FCA 197 at para 21).
[38] I also accept that the importance of remedies, in particular damages, in the event of a violation of language rights in the context of the Act cannot be overstated. As mentioned by Justice Martineau in Thibodeau v Canada (Senate), 2019 FC 1474 at paragraph 69:
. . . any violation that is tolerated, not reported or not corrected ultimately erodes the relevance of protected rights, normalizing their perpetration. The past is an indication of what the future holds. Awarding damages to the applicant speaks to the value that the Court places on protecting minorities and ensuring that this type of remedy has a place in advancing the equality of status between the two official languages.
[39] Having considered the matter, however, I need not address all the issues raised by the parties. For the purposes of my determination, I will assume not only that PSPC failed to comply with its language obligations under the Act with respect of all 13 complaints identified by Mr. Thibodeau, but also that such breaches resulted in Mr. Thibodeau’s language rights being violated; thus a breach of a right is considered established in line with the test in Ward. However, not only do I find that damages will not serve the functions of compensation, vindication of the right, and/or deterrence of future breaches, but more importantly, PSPC has convinced me that countervailing factors, being the circumstances of this case, defeat the functional considerations that support a damage award and render damages inappropriate or unjust. I also consider, as did Justice Grammond in St. John’s International Airport Authority at paragraphs 88, 101 and 102 – but for different reasons – that the awarding of declaratory relief would add nothing and thus be unnecessary given, again, the surrounding circumstances which lead to Mr. Thibodeau discovering the breaches.
[40] As such, I find that the circumstances surrounding the discovery of Mr. Thibodeau of such breaches militate against my finding that he is entitled to any remedies under subsection 77(4) of the Act. In this case, and even putting aside whether he was a member of the public during the process, Mr. Thibodeau |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| || |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Mr. Thibodeau has been a stalwart in the defence of language rights in this country; the optics of his conduct are important. I have no doubt that the 2017 application referred to several breaches of the Act and that a good number of them were quite similar if not identical to those identified in the present application. But that was the entire point |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. I can fully understand why PSPC objects to Mr. Thibodeau ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. I wonder whether, in similar circumstances, Plato’s defence of Socrates would have been as spirited.
[41] In the circumstances, and on Mr. Thibodeau’s best arguable case in his favour, that all 13 complaints in question constitute a breach of PSPC’s language obligations under the Act and that each breach corresponds to a violation of his language rights, I exercise my discretion to not award him any of the remedies that he seeks.
V. Costs and disbursements
[42] Under subsection 81(1) of the Act, costs are in the discretion of the Court and follow the event unless the Court orders otherwise. Having considered the matter, I find that there is no basis for awarding costs in this case to either party, including on the motion to strike.
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