Factum of the Intervener, The Commissioner of Official Languages for Canada
File Number: 30545
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM A JUDGMENT OF THE FEDERAL COURT OF APPEAL)
BETWEEN:
LE FORUM DES MAIRES DE LA PÉNINSULE ACADIENNE
AND LA SOCIÉTÉ DES ACADIENS ET ACADIENNES
DU NOUVEAU-BRUNSWICK INC.
Appellant
- AND -
CANADIAN FOOD INSPECTION AGENCY
Respondent
- AND -
ATTORNEY GENERAL OF NEW BRUNSWICK
Intervener
- AND -
THE COMMISSIONER OF OFFICIAL LANGUAGES
Intervener
- AND -
FÉDÉRATION NATIONALE DES CONSEILS SCOLAIRES
FRANCOPHONES
AND COMMISSION NATIONALE DES PARENTS FRANCOPHONES
Interveners
- AND -
FÉDÉRATION DES COMMUNAUTÉS FRANCOPHONES ET ACADIENNES
DU CANADA ET FÉDÉRATION DES ASSOCIATIONS DE JURISTES
D’EXPRESSION FRANÇAISE DE COMMON LAW INC.
Interveners
FACTUM OF THE INTERVENER,
THE COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA
Rule 42 of the Rules of the Supreme Court of Canada)
Me Pascale Giguère
Me Amélie Lavictoire
Legal Affairs Branch
Office of the Commissioner of Official Languages
344 Slater Street, 3rd Floor
Ottawa, Ontario
K1A 0T8
Tel.: (613) 995-0724
Fax: (613) 996-9671
SOLICITORS FOR THE INTERVENER,
THE COMMISSIONER OF OFFICIAL LANGUAGES
OF CANADA
TABLE OF CONTENTS
- Modern rules of interpretation in the field of language rights
- Executory nature of Part VII of the OLA.
- Section 41 imposes a duty to act on federal institutions
- Interpretive tools revealing the ordinary meaning of section 41
- Legislative intent and purpose of section 16 of Charter
- Normative effect of the duty to act
- Scope of the duty to act imposed by section 41
- Justiciable nature of Part VII
- The respondent has failed to perform its duties under Part VII
OVERVIEW
1. Part VII of the Official Languages Act (“OLA”) is one of the pillars of the federal language regime whose objectives include, inter alia, enhancing the vitality of both official language communities. It constitutes the legislative implementation of the federal government’s commitment to advancing the equality of status and use of French and English, a commitment set out in par. 16(3) of the Canadian Charter of Rights and Freedoms. In adopting Part VII of the OLA, the legislator’s intent was to impose upon federal institutions a duty to act with regard to official language communities.
2. The duty to act imposed on federal institutions by section 41 is not one which requires that a specific result be attained. Rather, the intervener submits that federal institutions are required to take measures to advance the equality of status and use of both languages. In order to discharge this duty, federal institutions must consult the official language community when one of its decisions or programs could have an impact on the development and the vitality of that community. Further, the intervener submits that federal institutions are also required to take into account the interests of the minority language community and evaluate the impact of their decision on the development and enhanced vitality of that community, in accordance with the needs expressed by it.
3. Under the accepted principles of constitutional law, the intervener submits that it is essential for the courts to retain a right of review on compliance with the provisions of Part VII of the OLA, by means of inter alia their power of judicial review of government action.
PART I - FACTS
4. The Commissioner relies on the statement of facts contained in the memorandum of the appellants the Forum des maires de la péninsule acadienne and the Société des acadiens et acadiennes du Nouveau-Brunswick Inc. (hereinafter “the appellants”).
PART II – ISSUES
5. Does section 41 of the Official Languages Act impose a duty on federal institutions to enhance the vitality and support the development of official language minority communities and to foster the full recognition and use of both English and French?
PART III – ARGUMENTS
(1) Modern rules of interpretation in the field of language rights
6. Soon after the adoption of the Canadian Charter of Rights and Freedoms (“the Charter”), this Court set out the rules that should guide courts in interpreting constitutional rights, namely the need for a large and liberal, purposive interpretation of constitutional rights.
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11
- R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at 344
7. Despite this clear statement, interpretation of the language rights set out in the Charter has fluctuated. The Supreme Court of Canada, which adopted an interpretation at times restrictive and at times liberal, has now definitively put an end to the debate on the interpretation of language rights.
- R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 25
- Arsenault-Cameron v. P.E.I., [2000] 1 S.C.R. 3, at para. 27
- Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, at para. 27
- Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, at para. 20
8. Beaulac was a real turning point in the interpretation of language rights guaranteed by the Charter. This Court summarized the method of interpretation that should be applied in the field of language rights as follows:
Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. [Emphasis added but original underlining of the Court]
- R. v. Beaulac, supra, at para. 25
9. Although these rules were articulated in Beaulac in the particular context of language rights, they reiterate the principles set forth in the Reference Re Secession of Quebec and, in matters of interpretation, embody the application of the unwritten constitutional principle of the protection of minorities.
- Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, paras. 52 and 53.
10. Accordingly, the intervener maintains that any interpretation of language rights guaranteed in the Charter and the OLA must henceforth take into account this Court’s statement in Beaulac as well as the unwritten constitutional principle of the protection of minorities, the purpose of which is to breathe life into a legislative text (such as the OLA) designed to enhance the vitality of official language minorities.
- Reference Re Secession of Quebec, supra.
- Lalonde v. Ontario (Commission de restructuration des services de santé de l’Ontario), [2001] 56 O.R. (3d) 571 (Ont. C.A.)
11. The principle stated in Beaulac, according to which language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada, is given its full meaning in the following statement by the Supreme Court of Canada:
The constitutional protection of minority language rights is necessary for the promotion of robust and vital minority language communities which are essential for Canada to flourish as a bilingual country.
- Solski, supra, at para. 2
12. The intervener submits that the quasi-constitutional status of the OLA – recognized by this Court in Lavigne – does not have the result of rendering the modern approach to statutory interpretation, set forth by E.A. Driedger and adopted by the courts, inapplicable.
- Lavigne v. Canada (Office of the Commissioner of Official Languages
- Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 2002, 4th ed., Butterworths, at p. 368
13. Contrary to what the respondent suggests, the intervener submits that the result of Lavigne is not to exclude the application of the guidelines laid down in Beaulac. The intervener maintains that the principles stated in Beaulac must instead guide the courts in applying Driedger’s modern method of interpretation when they are interpreting language rights.
- Lavigne, supra
- Beaulac, supra
14. In the case at bar, the intervener submits that the Court of Appeal erred in so far as it failed to apply the principles of interpretation set forth in Beaulac. It did not give section 41 of the OLA an interpretation consistent with the purpose of Part VII, of the OLA as a whole and of section 16 of the Charter, namely an interpretation which promotes the development and vitality of the French-speaking community of the Acadian Peninsula and which is consistent with the principle of advancing the equality of status and use of French and English.
(2) Executory nature of Part VII of the OLA
(i) Section 41 imposes a duty to act on federal institutions
15. In light of the rules of interpretation applicable in the field of language rights and the quasi-constitutional nature of the OLA, the intervener supports the position taken by the appellants at paragraphs 78 to 84 of their memorandum, namely that the ordinary and grammatical sense of the wording of section 41 of the OLA conveys a duty to act, a duty of positive action, and not simply a declaration of intent, as maintained by the respondent.
(a) Interpretive tools revealing the ordinary meaning of section 41
16. As the respondent notes at para. 40 of its memorandum, the intervener recognizes that the ordinary meaning of the verb “commit to” (“s’engager”) in section 41 of the OLA is open to more than one interpretation. However, contrary to the position put forth by the respondent, the intervener submits that the expression “commit to” has a normative effect in the case at bar.
17. The use of the verb “commit to” does not exclude the fact that section 41 conveys a duty to act as opposed to a mere declaration of intent.
18. In order to identify the true meaning that should be given to this expression, we must take into account the preamble to the OLA, the purpose of the OLA and Part VII as a whole.
19. A preamble serves to explain the scope of an Act and set out the principles and policies which the legislature sought to implement through the adoption of legislation.
- Sullivan, supra, at p. 296
- Interpretation Act, R.S.C. 1985, c. I-21, s. 13
20. The preamble to the OLA sets out a number of constitutional principles and commitments undertaken by the Government of Canada in connection with this legislation. Among the commitments set out in the preamble to the OLA, Parliament included a paragraph to the effect that the federal government “is committed to enhancing the vitality and supporting the development of English and French linguistic minority communities”, and to “fostering full recognition and use of English and French in Canadian society”. The legislature used this same wording in the purpose clause and in section 41 of the Act.
21. One of the established principles of statutory interpretation is that Parliament does not speak in vain, and that in drafting legislation it seeks to avoid repetition. Thus, when the wording of a preamble repeats word for word the statements made in a legislative provision of the same Act (as is the case with section 41 of the OLA), the intervener submits that the courts must give the legislative provision an interpretation that imposes a duty. In such circumstances – and especially in the case of quasi-constitutional legislation – we maintain that the legislator must be deemed to have intended to make the preamble a declaration of principle and to attribute to section 41 an executory nature.
- Sullivan, supra, at p. 158
22. In the opinion of the intervener, this presumption is especially persuasive when the legislation in question includes both a purpose clause and a preamble. When an Act includes a preamble and a purpose clause which both set out the government’s declarations of principle, the intervener maintains that the preamble and the purpose clause must be deemed to reflect an exhaustive list of all declarations. In the submission of the intervener, the subsequent legislative provisions thus indicate the legal duties arising from those declarations.
23. Section 2 of the OLA, which defines the purpose of the Act, provides specifically in subs. 2(b) that the purpose of the Act is to “support the development of English and French linguistic minority communities” and “generally advance the equality of status and use of the English and French languages within Canadian society”. The inclusion of this wording on three different occasions in the OLA (preamble, purpose clause and section 41) is in our submission not the result of mere chance nor a futile repetition by Parliament.
24. The intervener submits that if the legislator’s intent in enacting section 41 was simply to reiterate the declaration made in the preamble, it would not have thought it necessary to make an express reference to that declaration in the purpose clause of the OLA. However, not only did the legislator consider it important to repeat that the government’s support for the development of official language communities and advancement of language equality constitutes one of the purposes of the Act and thus one of the fundamental pillars of the official language regime, it devoted a complete, separate part of the Act to defining the implementation of that purpose.
(b) Legislative intent and the purpose of section 16 of Charter
25. The full meaning of section 41 of the OLA is apparent when it is interpreted in light of Part VII as a whole. In order to determine Parliament’s intent and the real meaning that should be given to that provision, it is necessary that it be examined in the context of all the provisions underpinning Part VII.
26. The provisions contained in Part VII go from the general to the specific. Section 41 sets out the duty to act imposed on the federal government in general, while subsequent sections, especially sections 42 and 43, specify the way in which federal institutions must proceed to give effect to that duty. The wording of these provisions clearly establishes a duty to act by use of the present indicative in the French version and use of the verb “shall” in the English version, as recognized by the Court of Appeal.
-Judgment of Décary J.A. of the Court of Appeal on July 22, 2004, para. 35
-Interpretation Act, supra, s. 11
27. If the respondent’s argument were accepted, we would then have to ask why Parliament would have attached specific duties to a “declaration of principle”. How could duties reasonably result from a declaration if it did not constitute a duty to act? In our view, when considered as a whole it is clear that Part VII gives rise to duties for the government and its institutions. The specific duties found at sections 42 and 43 result from the more general duty set out in section 41.
28. Accordingly, the intervener submits that Parliament’s intent in section 41 was to enact an executory commitment to take measures that would advance progress toward equality. That commitment – which is the implementation of a Charter provision – was found to be sufficiently important for Parliament to impose on Canadian Heritage, in sections 42 and 43, a duty to coordinate the implementation of the commitment by federal institutions. In so doing, Parliament imposed on federal institutions a duty to implement the federal government’s commitment.
29. The interpretation of section 41 proposed by the intervener is consistent with the intention of Parliament as stated by the Hon. Lucien Bouchard, then Secretary of State, at an appearance before a Senate Committee studying the bill which led to the adoption of the present OLA:
[TRANSLATION] The importance of these communities for the federal government, Madam Chairman, is expressed very specifically in Part VI of Bill C-72, whose application would be the responsibility of the Secretary of State. Section 41 describes the extent of the government’s intentions. It assigns to the federal government the obligation to enhance the vitality of linguistic minorities, to support their development, and to foster the full recognition and use of English and French. Here the concept of the vitality of linguistic minorities is found for the first time in the working of an Act. […] This Section [41], and all those which supplement it in this Bill, confer a legislative basis for the objective we set ourselves: namely, that of full participation by linguistic minority groups in the life of our country.
[Emphasis added.]
- Proceedings of Senate Special Committee on Bill C-72, 33rd Legislature, July 20, 1988, at p. 1:10
30. As R. Asselin noted in his article Section 41 of the Official Languages Act: Scope, Evolution and Implementation Framework, the foregoing statement confirms that section 41 imposes on the government a duty to act:
It may be concluded from the above passages that, in introducing Part VII, and more particularly section 41, Parliament was not limiting itself to a statement of intentions, but creating a positive obligation for the federal government to act in a manner consistent with the spirit of subsections 16(1)and (3) of the Charter.
- Robert B Asselin, Section 41 of the Official Languages Act: Scope, Evolution and Implementation Framework, Library of Parliament, September 17, 2001, at p. 4.
31. Further, the intervener cannot concur with the position taken by the respondent at paragraphs 27 to 32 of its memorandum, that section 41 of the OLA cannot impose a duty to act on account of the fact that subs. 16(3), from which it derives, does not confer rights.
32. While it recognizes that the principle of substantive equality contained in subs. 16(1) of the Charter only applies where a language right exists and that subs. 16(3) reflects the federal government’s commitment to implement the principle of advancement of equality of both official languages, the intervener submits that Part VII of the OLA is in fact the legislative implementation of the Government of Canada’s commitment set out in subs. 16(3) of the Charter. By adopting Part VII of the OLA, Parliament imposed on the federal government and on all federal institutions a duty to act with respect to official language minorities.
33. Only an interpretation of section 41 by which the phrase “is committed to” (“s’engage à”) gives the provision an executory nature is consistent with the purpose of Part VII, the purposes of the OLA and section 16 of the Charter as well as with the intent of Parliament, that is, to enhance the vitality, and assist in the development, of official language minority communities in Canada. Furthermore, this interpretation is entirely consistent with the ordinary and grammatical meaning of the wording of section 41 and of Part VII of the OLA as a whole.
34. Finally, the interpretation favoured by the intervener is also consistent with Canada’s international commitments. The federal legislator is presumed to have intended to observe the values and principles of international law, be it conventional or customary, when it enacted Part VII of the OLA. Thus, even if international treaties are not part of Canadian law unless they are made applicable through legislation, the values expressed in international law , particularly where those values pertain to human rights, may be taken into account in interpreting statutes, whether Canada is bound by the commitments set out in the international instruments or not.
- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 70
- Reference Re Public Service Employees Relations Act (Alb.), [1987] 1 S.C.R. 313, at 348 (per Dickson C.J.)
- R. v. Zundel, [1992] 2 S.C.R. 731, at 811
- Chung Chi Cheung v. The King, [1939] A.C. 160, at p. 168
- In the matter of a reference as to whether members of the military or naval forces of the United States of America are exempt from criminal proceedings in Canadian criminal courts, [1943] S.C.R. 483
35. Many states have undertaken to protect the existence and identity of their language minorities and to promote the development of their languages through international instruments dealing with minorities. Canada took an active part in the drafting of several of these instruments, which concern, inter alia, the protection of linguistic minorities and the development of their languages. For the purposes of this interpretive exercise, it should be noted that these instruments comprise a normative value and clearly require states to take positive measures to implement them.
See e.g. the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, clauses 1 and 4; the European Framework Convention on the Protection of National Minorities, 1995, clause 5.-1; and the Concluding Document of the 1996 Vienna Meeting of the Organization of Security and Cooperation in Europe, clause 19; and the Document of the Copenhagen Meeting of the 1990 Conference on the Human Dimension of the Organisation of Security and Co-operation in Europe, art. 33
36. In view of the presumption in favour of consistency of Canadian legislation with international commitments, the intervener submits that the interpretation of section 41 should be wholly in line with the interpretation of these international instruments and must consequently impose a duty to act.
(ii) Normative effect of the duty to act
37. A teleological interpretation of section 41 of the OLA indicates that the provision imposes a duty to act on the federal government. The next step is to determine the nature of this duty to act.
38. The intervener submits that Parts I to VII of the OLA all have a normative effect, in that they impose on all federal institutions, with a few exceptions, duties to act the nature of which may vary.
39. In section 41 of the OLA, Parliament used a vocabulary different from that used elsewhere in the Act (with the exception of s. 39 of the OLA), in particular the verb “is committed to”. According to the intervener, the wording of section 41 reveals Parliament’s intent to impose on the federal government a duty to act which is different from the duties imposed on federal institutions under Parts I to V of the OLA. Thus, the intervener submits that the standard applicable to the duties to act imposed by the OLA may vary from one part of the statute to another. This may be illustrated by looking at the OLA as a whole.
40. Parts I to V of the OLA derive from subs. 16(1) of the Charter. Thus, the provisions they contain are designed to ensure the substantive equality of French and English. The mandatory wording used in Parts I to V (“il incombe aux institutions de veiller à ce que . . .”; “has the duty to ensure”) demonstrates that institutions which are subject to Parts I to V are required to ensure that they achieve a specific result, that of substantive equality.
- Interpretation Act, supra, s. 11
41. By analogy, in civil law, the obligations imposed by Parts I to V of the OLA could be characterized as obligations of result. Such obligations apply to cases in which the debtor of an obligation is required to obtain a specific and determined result in order to discharge his obligation.
-P.A. Crépeau, L’intensité de l’obligation juridique ou des obligations de diligence, de résultat et de garantie, Les éditions Yvon Blais inc., 1989, 2,332 pages, p. 4-5
- Roberge v. Bolduc, [1991] 1 S.C.R. 374, at 396
42. Unlike Parts I to V of the OLA, Parts VI and VII derive from subs. 16(3) of the Charter. The provisions contained in those parts of the Act are the legislative implementation of the federal government’s commitment to take action to advance the equality of French and English. Accordingly, the intervener submits that under Parts VI and VII of the OLA, the duty to act imposed on the federal government and its institutions is that of taking action in the goal of advancing the equality of the two official languages.
43. In civil law, such an obligation may be characterized as an obligation of means. According to the case law, an obligation of means imposes an obligation to take measures which are ordinarily likely to lead to a result without however being required to attain the result sought. It is an obligation comprising a duty of a lesser intensity and less demanding than that of an obligation of result.
- P.A. Crépeau, L’intensité de l’obligation juridique ou des obligations de diligence, de résultat et de garantie, Les éditions Yvon Blais inc., 1989, 2,332 pages, p.11
- Roberge v. Bolduc, [1991] 1 S.C.R. 374, at 396
44. The intervener acknowledges that the wording of section 41 and Part VII as a whole does not suggest that federal institutions are required to attain a specific result, that is to ensure the advancement to equality of French and English. However, the latter have a duty to take measures to support the development and to enhance the vitality of official language minorities and to foster the full recognition and use of those languages in Canadian society.
45. Further, it should be noted that the implementation of section 41 may as such require joint action on the part of federal institutions. Thus, as some aspects of the implementation of this obligation may be beyond the control of the federal institutions, it follows that the latter cannot guarantee that the result mentioned in section 41 will be obtained.
- Crépeau, supra, at pp. 39-45
46. In short, the intervener submits that reading section 41 so as to impose on the federal government and its institutions a duty to take action in view of attaining a result – the development and enhancement of official language minorities – gives effect to a duty which is achievable, consistent with the purpose of the OLA and the Charter, and for which compliance or non-compliance may be assessed by the courts.
- Marcel Fontaine, « Best Efforts », « Reasonable Care », « Due Diligence » and Industry Standards in International Agreements”, in the Revue du droit des affaires internationales, No. 8, Paris, Librairie générale de droit et de jurisprudence, 1988, at pp. 1016-1017
(iii) Scope of the duty to act imposed by section 41
47. Under section 41 of the OLA, the federal government is not assessed on the achievement of a specific result but rather on the measures taken by federal institutions in view of attaining the result mentioned in the provision.
48. When the scope of a duty to act is not expressly provided for by the legislature, the Court must identify the extent of the duty in question. The intervener submits that any duty to act certainly assumes that at least minimal action will be taken in view of attaining a result. The scope of the actions to be taken must be determined based on the circumstances in which the duty arose, the nature of the duty and the result sought.
- Fontaine, supra, at pp. 990, 1001 and 1004
49. In the case at bar, the duty set out in section 41 is part of a quasi-constitutional Act the purpose of which is to ensure the preservation and development of official language minorities in Canada and to give effect to the federal government’s commitment on the advancement of the equality set out at subs. 16(3) of the Charter.
50. Seeing as the principle of the advancement of equality underpins section 41, the intervener submits that federal institutions are required – at a minimum – to consult with the minority official language community when a decision or program could have an impact on their development and vitality. Without such consultation, federal institutions cannot be aware of the interests and needs of the community, and consequently their decisions or programs could have no positive effect on development of the community, or worse still, could impede its development.
51. However, the intervener wishes to emphasize that the duty imposed on federal institutions is not simply one of consultation. The intervener submits federal institutions will also be required to take into account the interests of the minority community affected and to assess the impact of their decision on the development and vitality of the community, taking the needs expressed by the latter into account.
(3) Justiciable nature of Part VII
52. The position put forward by the respondent to the effect that the institutions affected by Part VII of the OLA are accountable only to Parliament, is inconsistent with the purpose of the OLA and section 16 of the Charter as well as the well-settled principles in matters involving language rights. According to the intervener, such a position is contrary to Canadian experience, which clearly shows that it may in some cases be necessary for the courts to intervene in order for governments to fulfill their duties to act.
- Respondent’s memorandum, at paras. 69 to 77
- Mark Power and André Braën , “The Enforcement of Language Rights” in Michel Bastarache, Language Rights in Canada, 2d ed., Cowansville, Yvon Blais, 2004, at p. 656
- Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3
53. In Mahe, this Court recognized that official language minorities in Canada can never be certain that the majority will take their linguistic and cultural concerns into account. Thus, in order to guarantee protection for and the development of official language minorities in Canada, it was necessary to entrench in the Charter and the OLA the principles of substantive equality and advancement of the equality of both official languages and to make the actions and inaction of federal institutions subject to review by the courts.
- Mahe v. Alberta, [1990] 1 S.C.R. 342, at 372
54. Like the language rights entrenched in the Charter and set out in Parts I to V of the OLA, the intervener submits that, consistent with accepted principles in constitutional law, it is essential that the courts should retain a right of review as to compliance with the provisions of Part VII of the OLA, through inter alia their power of judicial review of governmental action. Thus, inaction by federal institutions must be the subject of judicial review as well as the failure of such institutions to consult communities and assess the impact of their decisions on the development of the latter.
55. The duties imposed by Part VII of the OLA lend themselves readily to judicial review by the courts. Insofar as decisions taken pursuant to section 41 may sometimes require that conflicting interests to be taken into consideration, the applicable standard of judicial review may be adjusted accordingly and thus showing greater deference to the decision-maker. As judicial review serves as a valid and effective method of control, it is neither necessary nor desirable to remove the duties contained in Part VII of the OLA from the scope of review by the courts.
- Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 36
56. Contrary to what was argued by the respondent, the intervener submits that the distinction made in section 82 of the OLA whereby certain parts of the Act prevail over other provisions, does not mean that section 41 cannot contain a duty that is justiciable in nature.
57. The OLA as a whole is quasi-constitutional in nature, not just the parts mentioned in section 82. Thus, the intervener submits that the distinction made in section 82 reflects only the differing nature of the duties to act which are imposed on federal institutions under Parts I to V, as opposed to the duties to act imposed on federal institutions under Parts VI and VII of the OLA.
- Lavigne v. Canada (Office of the Commissioner of Official Languages), supra, at para. 23
- Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (F.C.A.)
58. Since, as we see it, Part VII imposes a duty to take action in view of achieving a result, though without guaranteeing that the result is achieved, it follows that Part VII should not prevail over other federal statutes which impose greater duties. Thus, the intervener submits that it is entirely logical for Part VII not to be listed among the OLA provisions which take precedence over other legislation.
(4) The respondent has failed to perform its duties under Part VII
59. The intervener submits that section 41 imposes on the Canadian Food Inspection Agency a duty to act in view of achieving the result contemplated by that provision. In the case at bar, the intervener submits that the Agency did not discharge this duty. The report of the Commissioner of Official Languages issued in July 2001 came to this same conclusion.
- Investigation of a complaint concerning the Canadian Food Inspection Agency’s reorganization of its office in Shippagan, New Brunswick, appellant’s record, vol. III, at p. 9
60. The intervener refers to two findings of fact drawn by the trial judge based on the evidence in the record, and which were not contradicted or reversed by judges on the Court of Appeal.
61. First, Blais J. concluded that there had been no consultation between the respondent’s representatives and the representatives of the official language minority community prior to the decision to transfer the seasonal inspector positions being taken.
-Judgment of Blais J. of the Federal Court, rendered on September 8, 2003, at paras. 47 to 50
62. Second, he concluded that the decision of the respondent was taken without considering the harmful effect that such a decision could have on the development and vitality of the Francophone minority in the Acadian Peninsula.
-Judgment of Blais J. of the Federal Court, rendered on September 8, 2003, at paras. 47 to 50
63. The intervener submits that, pursuant to Part VII of the OLA, the respondent had a duty to consult the official language minority community before taking a decision which could affect its vitality.
64. In the circumstances of the case at bar, the intervener submits that the respondent also had a duty to take the interests of the Francophone community in the Acadian Peninsula into account and to consider the impact of the decision contemplated on the vitality of that community, including any economic impact which that decision might have for the development of the community.
PART IV – COSTS
65. The intervener the Commissioner of Official Languages for Canada makes no submission as to costs.
PART V – ORDER SOUGHT
66.The intervener the Commissioner of Official Languages for Canada asks this Honourable Court to allow the appeal at bar.
Respectfully submitted.
Ottawa, October 24, 2005
______________________________
Pascale Giguère
Amélie Lavictoire
Counsel for the intervener
the Commissioner of Official Languages for Canada
PART VI TABLES OF AUTHORITIES
| Canadian Food Inspection Agency v. Le Forum des maires de la péninsule acadienne, 2004 FCA 263 | 26 |
| Arsenault-Cameron v. P.E.I., [2000] 1 S.C.R. 3 | 7 |
| Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 | 34 |
| Canada (Attorney General) v. Viola (C.A.), [1991] 1 F.C. 373 | 57 |
| Chung Chi Cheung v. The King, [1939] A.C. 160 | 34 |
| Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 | 7, 52 |
| Forum des maires de la péninsule acadienne v. Canada (Food Inspection Agency) (F.C.), [2004] 1 F.C.R.. 136 | 61, 62 |
| In the matter of a reference as to whether members of the military or naval forces of the United States of America are exempt from criminal proceedings in Canadian criminal courts, [1943] S.C.R. 483 | 34 |
| Lalonde v. Ontario (Commission de restructuration des services de santé de l’Ontario), [2001] 56 O.R. (3d) 571 (C.A. Ont.) | 10 |
| Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773 | 12, 13, 57 |
| Mahe v. Alberta, [1990] 1 S.C.R. 342 | 53 |
| Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 | 54 |
| R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295 | 6 |
| R. v. Beaulac, [1999] 1 S.C.R. 768 | 7, 8, 13 |
| R. v. Zundel, [1992] 2 S.C.R. 731 | 34 |
| Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 | 34 |
| Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 | 9, 10 |
| Roberge v. Bolduc, [1991] 1 S.C.R. 374 | 41, 43 |
| Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 | 7, 11 |
| DOCTRINE | |
| Robert B. Asselin, Section 41 of the Official Languages Act: Scope,Evolution and Implementation Framework, Library of Parliament, September 17, 2001 | 30 |
| Council of Europe, Framework Convention for the Protection of National Minorities, February 1st, 1995 | 35 |
| P.A. Crépeau, L’intensité de l’obligation juridique ou des obligations dediligence, de résultat et de garantie, Yvon Blais, 1989, 2332 pages | 41, 43, 45 |
| Marcel Fontaine, « Best efforts » , « Reasonable Care », « Due Diligence » and Industry Standards in International Agreements in the Revue du droit des affaires internationales, No. 8, Paris, Librairie générale de droit et de jurisprudence, 1988 | 46, 48 |
| United Nations, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Resolution 47/135, December 18th, 1992 | 35 |
| Organization on Security and Co-operation in Europe, Concluding Document of the 1986 Vienna Meeting | 35 |
| Organization on Security and Co-operation in Europe, Document of theCopenhagen Meeting, Conference on the Human Dimension, 1990 | 35 |
| Mark Power and André Braën , « The Enforcement of Language Rights », in Michel Bastarache, Language Rights in Canada, 2nd ed., Cowansville, Éditions Yvon Blais, 2004 | 52 |
| Senate, Proceedings of the Special Committee of the Senate on Bill C-72, 33rd Legislature, 2nd Session, July 20, 1988 | 29 |
| Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes,2002, 4th ed., Butterworths | 12, 19, 21 |
PART VII STATUTES
Interpretation Act. , R.S.C. 1985, c. I-21, ss. 11, 13
