OVERVIEW

1. This appeal involves the nature and scope of the principle of linguistic equality with respect to the delivery of services by federal institutions. 
   
   
2. More specifically, it is designed to determine whether the right to equality of service as provided under subsection 20(1) of the Canadian Charter of Rights and Freedoms (the “Charter”) and under Part IV of the Official Languages Act  (the “OLA”) is limited to an “equal linguistic access,” allowing one to receive federal services in the official language of one’s choice, or whether these provisions also encompass equality in terms of “quality of services,” guaranteeing that services provided by federal institutions are of equal quality in both the minority and majority languages.
   
   
3. In the appellants’ view, the substantive equality required for the delivery of services should be broadly and liberally construed, in order to realistically and effectively achieve equality “of use” and equality “of status” of the two official languages, as provided for under subsection 16(1) of the Charter and subsection 2(1) of the OLA.
   
   
4. Any interpretation restricting the principle of equality in the delivery of services to equality of use or to “equal linguistic access” – as suggested by the Federal Court of Appeal – is inconsistent with the intent of constituents and of Parliament. Such an interpretation contradicts well-established principles by failing to take into account an important objective of section 16 of the Charter and of the OLA, namely to achieve true equality “of status” of the two official languages.
   
   
5. In the case at bar, due to the nature of the service involved, namely the Government of Canada’s Community Futures Program (the “Program”), Part IV of the OLA requires more than an accounting exercise tallying the number of staff allocated to serve the Francophone community, and more than a mechanical assessment of services offered in French to the minority. Truly equal treatment requires that the linguistic minority have more than simple access to the service in the official language of its choice; it should also have access to a service of equal quality. In the case at bar, the community economic development service offered to communities in the Huronia region only takes into consideration the needs of the linguistic majority. A service of equal quality offered to the linguistic minority should take into account its specific needs in terms of community economic development.
   
   
6. Contrary to the respondents’ assertions, this appeal does not seek to determine whether a parallel system should be established for serving linguistic minorities across the country, but rather to define the legal scope of the principle of substantive equality in order to identify Industry Canada’s obligations under that principle in the delivery of service. Once the scope of this legal obligation has been defined, the methods chosen by Industry Canada can be assessed to determine whether it is complying with its duty to provide truly equal economic development services to the official language minority community.
   
   
7. In the appellants’ view, the constitutional question should be answered in the affirmative, and the circumstances of this case justify the award of an appropriate and just remedy that takes into account the vulnerability of the Franco-Ontarian community of Huronia as well as the importance of its economic development.

PART I – FACTS

Service offered by Industry Canada

8. Under the Department of Industry Act (“DIA”), the functions and powers of the Minister of Industry encompass matters related to the regional economic development of Ontario. In compliance with its enabling legislation, the Minister promotes the economic development of Ontario communities characterized by low income, slow economic growth and a limited potential for productive employment.

- Department of Industry Act, S.C. 1995, c. 1, Part II
- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 5-7

9. Industry Canada created the Program to support economic development by helping communities to develop and diversify. The Program is funded under section 8 of the DIA, and there is no dispute that it is a federal program.

- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 8 and 25

10. In Ontario, the Program is implemented by Community Futures Development Corporations (“CFDCs”). The CFDCs are not-for-profit local organizations that provide strategic community economic planning services, support to small and medium-sized businesses and access to capital. The implementation and management of the Program are administered by the CFDCs and funded by Industry Canada.

- Affidavit of Scott Merrifield, sworn January 21, 2005, Appellant’s Record, Volume IV, at p. 555, at para. 4-5
- Transcript of the cross-examination of Scott Merrifield dated April 28, 2005, Appellant’s Record, Volume XI at pp. 1786-1787, Q. 60 and at p. 1808, Q. 169
- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 8

Service offered by the North Simcoe CFDC

11. Since 1985, the North Simcoe Business Development Centre (“North Simcoe CFDC”) has been Industry Canada’s CFDC responsible for servicing the residents of the northern part of Simcoe County, in the Huronia region. The mandate of the North Simcoe CFDC includes advice to businesses, community development and financial support.

- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at p. 280, at para. 11
- Transcript of the cross-examination of Debra Muenz dated April 27, 2005, Appellant’s Record, Volume IX at pp. 1401-1402, Q. 160
- Transcript of the cross-examination of Marie-Jeanne Gilbank dated April 27, 2005, Appellant’s Record, Volume X at p. 1684, Q. 183 and at p. 1677, Q. 383

12. The area serviced by the North Simcoe CFDC is one of “significant demand” under the OLA. The Program’s services must therefore be provided in both official languages.

    - Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 30-31

French-speaking residents of the Huronia region

13. Huronia includes the towns, villages and townships located on the shores of Georgian Bay, such as the town of Penetanguishene and the township of Tiny.

- Contribution Agreement between Her Majesty the Queen in Right of Canada and North Simcoe Business Development Centre (for the years 1995 to 2004), Appellant’s Record, Volume XII at pp. 1967-1986; at pp. 1990-2066, Volume XIII at pp. 2109-2136; at pp. 2146-2194; at pp. 2198- 2225, s. 2.1

14. It is an area with a rich French-language heritage and a troubled past. Huronia Francophones have faced several linguistic battles. Following a court reference involving French-language education in Penetanguishene, the Court of Appeal of Ontario ruled that the Francophone minority of Ontario was vested with the constitutional power to administer its own education system. Moreover, the first Canadian judgment to apply the principle of equality in the realm of minority-language education involved a French-language school in Penetanguishene.

- Transcript of the cross-examination of P. Hominuk dated April 25, 2005, Appellant’s Record, Volumes VIII at pp. 1292-1294, Q. 71-75
- Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753 (C.P.)
- Reference Re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4^e) 491 (C.A. Ont.)
- Marchand v. Simcoe County Board of Education (1986), 29 D.L.R. (4th) 596 (H.C.J. Ont.)

15. Today, the population of the Huronia region is mainly English-speaking, although small communities with a French-speaking majority remain. In 1971, more than five people out of 10 whose mother tongue was French had adopted English as the language spoken in the home. In 2001, the assimilation rate of Francophones in the Huronia region was above 70%.

- Desrochers v. Canada (Industry) (F.C.), [2005] 4 F.C.R. 3 at para. 64
- Affidavit of Charles Castonguay, sworn November 16, 2004, Appellant’s Record, Volume II at p. 192, at para. 20

16. According to the 2001 census, fewer than 5% of individuals in the Huronia region use French in the workplace. Most Francophones work in English at English-language institutions. Using one’s own language at work is a very important factor to help resist assimilation.

- Supplementary affidavit of Charles Castonguay, sworn March 16, 2005, Appellant’s Record, Volume IV at pp. 581-582, at para. 49 and at p. 582, at para. 51
- Affidavit of Raymond Breton, sworn November 19, 2004, Appellant’s Record, Volume IV at p. 485, at para. 11 and at pp. 488-489, at para. 22-23
- Transcript of the cross-examination of Raymond Breton dated April 25, 2005, Appellant’s Record, Volume IX at pp. 1321-1324, Q. 30; at pp. 1325-1326, Q. 34-35; at p. 1353, Q. 89

17. The French-speaking community of Huronia differs from the English-speaking community in a number of ways, including fewer private institutions, higher unemployment, less economic power in the region, fewer opportunities to work in their mother tongue, and a distinct set of needs, values and culture.

- Transcript of the cross-interrogation of Marie Jeanne Gilbank dated April 27, 2005, Appellant’s Record, Volume X at pp. 1633-1634, Q. 81-84 and at p. 1636, Q. 101-104
- Transcript of the cross-examination of Scott Merrifield dated April 28, 2005, Appellant’s Record, Volume XI at pp. 1826-1827, Q. 235
- Transcript of the cross-examination of Debra Muenz dated April 27, 2005, Appellant’s Record, Volume IX at pp. 1446-1447, Q. 392 and at pp. 1488-1489, Q. 602-606
- Transcript of the cross-examination of Raymond Desrochers dated April 25, 2005, Appellant’s Record, Volume VII at pp. 1064-1066, Q. 94
- Transcript of the cross-examination of Peter Hominuk, dated April 25, 2005, Appellant’s Record, Volume VII at pp. 1292-1294, Q. 71-74
- Affidavit of Raymond Breton, sworn November 29, 2004, Appellant’s Record, Volume IV at pp. 492-493, at para. 33-37
- Supplementary affidavit of Charles Castonguay, sworn March 16, 2005, Appellant’s Record, Volume IV at pp. 581-582, at para. 49 and at p. 582, at para. 51

CALDECH

18. In 1995, the Centre d’avancement de leadership et de développement économique communautaire de la Huronie (“CALDECH”) was created by Francophone community agencies to fill the gaps in the community economic development services offered by the North Simcoe CFDC to the Huronia region French-speaking community.

- Affidavit of Jean-Guy Vallière, sworn November 17, 2004, Appellant’s Record, Volume II at pp. 203-204, at para. 3-8

19. CALDECH is a not-for-profit organization that represents the principle French-language agencies of the Huronia region, namely the Centre d’activités françaises, the Association canadienne française de l’Ontario (Huronia) and the Sève de Penetanguishene. CALDECH’s goal is to “[TRANSLATION] integrate Francophones into the North Simcoe County economy. CALDECH supports a community development approach and the implementation of a multidimensional strategy that aims to revitalize the economy of the local Francophone community.”

- Final Report titled Stratégie de prestation des services en français pour les sociétés d’aide au développement des collectivités en Ontario, prepared at the request of FedNor, October 2001, Appellant’s Record, Volume III at pp. 404-451

20. The evidence on file demonstrates that the North Simcoe CFDC is unable to deliver community economic development services in French that are of equal quality to those offered in English in the same area.



21. Since CALDECH has stopped offering community economic development services, the North Simcoe CFDC has not supported any economic development project benefiting the French-speaking community of Huronia. In contrast, when CALDECH was funded by Industry Canada, it supported more than 50 community economic development projects. These projects played a pivotal role in ensuring the survival of the French-speaking community of Huronia and therefore demonstrated that such a program fulfills a genuine need within the Franco-Ontarian community. Unlike the North Simcoe CFDC, CALDECH has the ability to work with individuals, entrepreneurs, small and medium-sized businesses, community groups and not-for-profit organizations that are committed to the well being of the Huronia French-speaking community.

- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at p. 281, at para. 15; at p. 282, at para. 17; at pp. 293-302
- Affidavit of Jean-Guy Vallière, sworn November 17, 2004, Appellant’s Record, Volume II at p. 205, at para. 9
- Transcript of the cross-examination of Debra Muenz, dated April 28, 2005, Appellant’s Record, Volume IX at pp.1424-1425, Q. 284

Complaint and Commissioner’s Investigation

22. In 2000, the appellants CALDECH and Raymond Desrochers filed a complaint with the Commissioner of Official Languages (the “Commissioner”), alleging that the North Simcoe CFDC offered the majority of its services in English only. The best the CFDC could do was to greet Francophones in their language. The Commissioner conducted an investigation and concluded that Industry Canada had failed to fulfil its obligations under Parts IV and VII of the OLA. The investigation report concluded that the services offered by the North Simcoe CFDC to the French-speaking community (1) were not available in both official languages and (2) were not equal in quality to those offered to the English-speaking community because they did not take into consideration the specific needs of the French-speaking community with respect to its economic development. Two follow-up reports indicate that Industry Canada failed to fully comply with the Commissioner’s recommendations.

-  “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,”  September 2001, Appellant’s Record, Volume III at pp. 304-331
- “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, Appellant’s Record, Volume III at pp. 332-349
- “Second Follow-up to the Investigation Report on the North Simcoe Community Futures Development Corporation’s Ability to Provide French-Language Services,” August 2004, Appellant’s Record, Volume III at pp. 350-362

23. To allow the French-speaking community of Huronia to benefit from some of the economic development services already offered to the English-speaking community, CALDECH received monthly grants of $25,000 from Industry Canada from March 2001 to August 2002. To ensure that the services were of equal quality, Industry Canada also subsidized CALDECH from June to September 2004, and from December 2004 to March 2005. Since April 2005, Industry Canada has ceased funding CALDECH on the grounds that the North Simcoe CFDC began offering its services in both official languages.

- Transcript of the cross-examination of Raymond Desrochers dated April 25, 2005, Appellant’s Record, Volume VII at pp. 1001-1005, Q. 21-38

Judicial Proceedings

24. The appellants CALDECH and Raymond Desrochers filed an application with the Federal Court. The Federal Court ruled that, at the time the appellants filed their complaint with the Commissioner, Industry Canada had not fulfilled its obligations under section 25 of the OLA to ensure that equal economic development services were offered by the North Simcoe CFDC in both official languages. The Federal Court, however, held that, at the time the application was filed in Federal Court, the North Simcoe CFDC had corrected its shortcomings and was henceforth able to provide services in both official languages. The Federal Court therefore ruled that there was no need for relief. It should be noted that the Federal Court did not determine whether the service offered by the North Simcoe CFDC was of equal quality in both official languages.

- Desrochers v. Canada (Industry) (F.C.), [2005] 4 F.C.R. 3 at para. 44

25. The Federal Court of Appeal allowed the appeal, filed by appellants CALDECH and Raymond Desrochers, in part. Like the Federal Court, the Federal Court of Appeal found that the Program delivered by the North Simcoe CFDC is a “service” as defined under Part IV of the OLA and that Industry Canada did not fulfil its obligations under section 25 of the OLA. The Federal Court of Appeal, however, held that Part IV of the OLA provided only for “equal linguistic access to regional economic development services in Ontario, and not access to equal regional economic development services.”

- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 40-41

26. In issuing its decision, the Federal Court of Appeal did not take into account the principle that a federal institution is required to ensure equal access to services of equal quality. Instead, the Federal Court of Appeal seemed to support the view that equal access to services of equal quality should be restricted to situations involving an “absolute right.”

- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 39-40
- R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 28

27. More specifically, the Federal Court of Appeal held that:
    
    […]the appellants claim in effect that the Francophone minority has some special and specific needs in terms of regional economic development and that these needs are not satisfied by the programs established and the services offered under these programs. In my opinion, Part IV of the OLA is of no assistance to them on this aspect of their claim.
    […]Part IV is meant to help the official language minorities preserve and promote their language and cultural identity by enabling them to have access, in the official language of their choice, to the government services that are available. This is an important objective of Part IV, to be sure, but it is nevertheless a limited objective.

- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 33, 35 and 41

28. The Commissioner, who intervened in the lower instances, has been joined as a party to this appeal, because of the importance of the legal issues relating to the scope of the obligations imposed by Part IV of the OLA with respect to the delivery of services, the scope of the principle of substantive equality, as well as the powers held by this Honourable Court to grant relief where there has been a breach of the quasi-constitutional rights guaranteed under the OLA.

- Desrochers c. Ministère de l’Industrie du Canada, [2007] C.S.C.R. n^o 27 (QL)

PART II – ISSUES

29. The constitutional issue in this matter has been defined as follows:

    Do subsection 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 subsection 16(1) of the Charter, require Industry Canada to provide services of equal quality in both official languages?

30. More specifically, this appeal raises the following questions:
    1. Has Industry Canada breached its obligations under Part IV of the OLA – namely section 25 – by failing to ensure that the French-speaking community of Huronia receives community economic development services of equal quality to those offered to the linguistic majority?
    2. If so, what is the appropriate and just remedy with regard to the specific circumstances of this case and the official language minority community of Huronia?

PART III – MEMORANDUM OF ARGUMENT

31. The key issue in this case is the scope of the principle of substantive equality in the delivery of services, as provided for under subsections 16(1) and 20(1) of the Charter and Part IV of the OLA. More specifically, the issue is to determine whether the principle of equality in the delivery of services is restricted to guaranteeing equal access to services offered by Industry Canada, or whether it also guarantees that the services offered to members of both official language communities are of equal quality.



32. In the case at bar, the Federal Court of Appeal ruled that the goal of Part IV of the OLA is limited to guaranteeing “an equal linguistic access” to services. In the appellants’ view, the Federal Court of Appeal’s analysis fails to consider the true purpose of subsections 16(1) and 20(1) of the Charter and Part IV of the OLA. The equality referred to under these provisions is twofold and encompasses:
    1. equal rights and privileges with respect to the “use” of French and English in the delivery of services by federal institutions; and
    2. the equal “status” of French and English with respect to the delivery of services by federal institutions.
       
       
33. By basing the application of the principle of substantive equality on the “absolute” nature of language rights, the Federal Court of Appeal is suggesting a new paradigm with respect to substantive equality. The Federal Court of Appeal established an arbitrary distinction, qualifying as “absolute” the right to a trial in one’s official language of choice, as guaranteed under section 530 of the Criminal Code, and not the right to delivery of services guaranteed under section 20 of the Charter and Part IV of the OLA. Following such an approach, the principle of substantive equality would only apply to “absolute” language rights, and not to other language rights, such as the rights guaranteed under Part IV of the OLA.
    
    
34. Such a distinction is astonishing. The Federal Court of Appeal fails to explain the distinction between the absolute nature of the right to a trial in the official language of one’s choice and the right to a service in the official language of one’s choice. In the appellants’ view, this constitutes an artificial distinction; the exercise of each of these rights may be subject to certain conditions but this does not prevent all language rights from being equally protected.
    
    
35. The Federal Court of Appeal’s interpretation represents a major setback in the interpretation of language rights since it is not based in any way on the Charter, the OLA, or the case law of this Honourable Court or of lower courts. This arbitrary classification of language rights also amounts to a breach of the principle of linguistic duality, which is a fundamental characteristic of Canada and the basis for our constitutional language guarantees.
    
    
36. The appellants hereby suggest an analytical framework to help define, in a practical manner, the scope and application of the principle of substantive equality with respect to the delivery of services by federal institutions. Such an approach also fully complies with the standard of substantive equality as it has been defined to this day by the Supreme Court of Canada.

I. EQUALITY STANDARD APPLICABLE TO OFFICIAL LANGUAGES

37. Substantive equality is the applicable standard in Canadian law and does not have a lesser meaning in matters of language. It should be given its true meaning.

- R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 22

38. Substantive equality is based on subsection 16(1) of the Charter, as well as on the constitutional principle of the protection of minorities.

- Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 72-82

39. The right to the delivery of services by federal institutions in one’s official language of choice should, like any other language right, be broadly and liberally construed, in compliance with the purpose it serves, and in a manner that is consistent with the preservation and the development of official language minorities.

- R. v. Beaulac, [1999] 1 S.C.R. 768
- Charlebois v. Saint John (City), [2005] 3 S.C.R. 563 at para. 28
- Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th Ed., Markham, Butterworths, 2002 at p. 1

40. There is no precise definition of “substantive equality” with regard to the delivery of governmental services. However, the case law pertaining to language rights allows the following conclusions to be drawn in regards to the meaning of the principle of substantive equality and the requirements imposed on federal institutions, particularly when institutional bilingualism is involved:

1.Meaning of the principle of substantive equality:

(a) Substantive equality should not be used to reinforce the status quo by adopting a formal vision of equality that seeks to treat majority and minority official language groups alike; (Mahe v. Alberta, [1990] 1 S.C.R. 342 at 378; Reference Re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491 (Ont. C.A.); Marchand v. Simcoe County Board of Education (1986), 29 D.L.R. (4th) 596 (Ont. H.C.)

(b) Substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a treatment equivalent to that of the official language majority; (Arsenault-Cameron v. Prince Edward Island [2000] S.C.R. 3 at para. 27 and 31)

(c) Such differential treatment provided to a linguistic minority is based on the equality principle and ensures that both the collective and individual aspects of true equality of status may be achieved; (Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259 at para. 80)

2. Requirements for federal institutions:

(d) The principle of substantive equality provides in particular that institutionally based language rights require government action for their implementation and therefore create obligations for the state; (R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 24)

(e) The government must comply with the provisions of the OLA by maintaining a proper institutional infrastructure and providing services in both official languages on an equal basis; (R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 39)

3. In the context of institutional bilingualism at the federal level:

(f)   An application for service in the language of the official language minority group must not be treated as though there was one primary official language and a duty to accommodate with regard to the use of the other official language. The governing principle is the equality of both official languages; (R. v. Beaulac, [1999] 1 S.C.R. 768 at para 39)

(g) More specifically, where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada; (R. v. Beaulac, [1999] 1 S.C.R. 768 at para 22)

41. This case law demonstrates that subsection 20(1) of the Charter and Part IV of the OLA both incorporate the principle of substantive equality, which is the applicable standard in the implementation of the public’s and the communities’ language rights regarding the delivery of services.
    
    
42. In practical terms, the principle of substantive equality seeks to remedy existing inequalities in order to achieve true equality, i.e. factual equality. Such an interpretation, based on the purpose of the rights provided for under subsection 20(1) of the Charter and the OLA, should take into account the ultimate purpose, which is to redress past injustices and guarantee that the official language minority benefits from rights that are equal to those of the linguistic majority, particularly when federal institutions are involved.
    
    
43. To determine whether a federal institution has complied with its linguistic obligations under the Charter and under Part IV of the OLA, the courts must conduct a historical and contextual analysis to establish whether the service offered by the institution is consistent with the true purpose of the rights involved.

- Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 at para. 29
- Solski (Tutor of) v. Québec (Attorney General), [2005] 1 S.C.R. 201 at para. 5

II. NATURE AND SCOPE OF THE RIGHT TO EQUALITY IN THE DELIVERY OF SERVICES UNDER THE OLA

The right to receive services in both official languages

44. The OLA, which is quasi-constitutional, includes a series of provisions designed to clarify and implement constitutional guarantees with respect to linguistic rights.
    
    
45. Part IV of the OLA, like subsection 20(1) of the Charter, confirms that members of the public have the right to receive services from federal institutions in either official language. Part IV of the OLA, like subsection 20(1) of the Charter, recognizes two distinct rights:

(1) The right to “communicate” with federal institutions in either official language: and
(2) The right to “obtain services” from federal institutions in either official language:

PART IV COMMUNICATIONS WITH AND SERVICES TO THE PUBLIC Communications and Services Rights relating to language of communication 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. Where communications and services must be in both official languages 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.

PARTIE IV COMMUNICATIONS AVEC LE PUBLIC ET PRESTATION DES SERVICES Communications et services Droits en matière de communication 21. Le public a, au Canada, le droit de communiquer avec les institutions fédérales et d’en recevoir les services conformément à la présente partie. Langues des communications et services 22. Il incombe aux institutions fédérales de veiller à ce que le public puisse communiquer avec leur siège ou leur administration centrale, et en recevoir les services, dans l’une ou l’autre des langues officielles. Cette obligation vaut également pour leurs bureaux — auxquels sont assimilés, pour l’application de la présente partie, tous autres lieux où ces institutions offrent des services — situés soit dans la région de la capitale nationale, soit là où, au Canada comme à l’étranger, l’emploi de cette langue fait l’objet d’une demande importante.

46. Section 25 of the OLA, which addresses the delivery of services by third parties, assigns a federal institution the duty to ensure that the delivery of services by third parties acting on its behalf are subject to the same linguistic obligations as if the federal institution offered the services directly.
    
    
47. In the case at bar, under the terms and conditions of the Program and of the agreement between the parties, the North Simcoe CFDC acts on behalf of the government in the implementation of the Program. The service offered by Industry Canada through the North Simcoe CFDC must therefore be delivered in compliance with the OLA.

- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 71

48. Although it is not expressly stated in sections 21, 22 and 25 of the OLA, the principle of equality is expressly embedded in the purpose clause of the OLA and therefore affects the meaning of all of the OLA’s provisions.

The principle of equality in the delivery of services

49. The principle of equality underlying the OLA and the Charter aims to achieve both: (1) the “equality of status” of French and English; and (2) the “equality of rights and privileges as to their use.”
    

Purpose 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 communicating with or providing services to the public and in carrying out the work of federal institutions; (b) 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;

Objet 2. La présente loi a pour objet : a) d’assurer le respect du français et de l’anglais à titre de langues officielles du Canada, leur égalité de statut et l’égalité de droits et privilèges quant à leur usage dans [...] les communications avec le public et la prestation des services, ainsi que la mise en oeuvre des objectifs de ces institutions; b) d’appuyer le développement des minorités francophones et anglophones et, d’une façon générale, de favoriser, au sein de la société canadienne, la progression vers l’égalité de statut et d’usage du français et de l’anglais;

[Our emphasis]

- Official Languages Act, R.S.C. 1985, c. 31 (4th supp.), s. 2

50. The purpose of the equality underlying the OLA flows directly from subsection 16(1) of the Charter, which also guarantees a twofold principle of equality:
    

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

16. (1) Le français et l’anglais sont les langues officielles du Canada; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada

[Our emphasis]

51. The notion of equality underlying the rights established under Part IV of the OLA should therefore be construed by taking into account the purpose of the OLA, which is to ensure the equality “of use” as well as the equality “of status” for both official languages in the delivery of services by federal institutions. Furthermore, the appropriate interpretation of the principle of equality should be guided by an additional goal: the preservation and development of official language communities in Canada.

- R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 25

i. Equality of “use”: equal linguistic access

52. The Federal Court of Appeal ruled that the purpose of the OLA is equality “of use,” namely “equal linguistic access” to the services of federal institutions. However, this is but one of the two objectives expressly provided for in the purpose clause of the OLA.

- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 40

53. The scope of the principle of equality with regard to the equality “of use” of both official languages in the delivery of services was considered by authors Pierre Foucher and Nicole Vaz:

…where government services are destined for members of the public […], the service must be made available in the official language of choice of the client. Does translation satisfy this obligation? The question is not an academic one, but will instead depend on a series of factors. In our view, it is necessary to determine the nature of the service required. If the service can be given in writing and requires no urgent action, and if the quality of service is not compromised, bilingual forms or translation of pertinent documents will suffice. [ …] If it is necessary to have personal contact between the public servant and the public, not only will translation be inadequate, but considerations arise with regard to the quality of service.

- Nicole Vaz and Pierre Foucher, “The Right to Receive Public Services in Either Official Language” in Michel Bastarache (ed)., Language Rights in Canada, 2nd Ed., Cowansville (QC), Yvon Blais, 2004 at p. 290

54. To achieve equality of use, the quality of the service offered in the other official language must be assessed, because a service delivered in an incomplete or incomprehensible manner is, for all intents and purposes, not delivered. Any other conclusion would deny the true equality of use in the delivery of services, as intended by Parliament.
    
    
55. In the case at bar, after the filing of a complaint with the Commissioner of Official Languages in 2000, Industry Canada brought some corrections which resulted in improving the equality “of use” of French in the services offered by the North Simcoe CFDC:

If the proceedings had been instituted in 2000, Industry Canada would clearly have been found in breach of the duty imposed upon it by section 25. At that time, North Simcoe had difficulty even answering the telephone in French. However, by the time the proceedings were taken, it had hired a bilingual receptionist, has a French-speaking loan officer, created a French-speaking loan committee and has a number of French-speaking directors. It also had a bilingual library and website. Its French component is far greater than the community as a whole. French speakers are a definite minority comprising only about 6% of the population.

- Ruling of Judge Harrington, July 15, 2005, Appellant’s Record, Volume I at p. 21, at para. 44

56. Relying on a mathematical exercise of counting the number of bilingual employees and on the evidence pertaining to the existence of a library and website in both official languages, the trial judge was satisfied that the North Simcoe CFDC provided an equal economic development service in both official languages. Based on its interpretation that Part IV of the OLA contained an important objective, but was nonetheless limited to equal linguistic access, the Federal Court of Appeal upheld that finding.

- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 41 and 78

57. In the appellants’ view, this constitutes an incomplete analysis. If the intent of Parliament and of constituents was limited to guaranteeing solely the equality of use of both official languages, why would they have specifically identified the additional principle of equality of status in the purpose clause of the OLA, which is based on subsection 16(1) of the Charter?

- Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th Ed.,
Markham, Butterworths, 2002 at p. 350

ii. Equality of “status”: a service of equal quality

58. In the appellants’ view, the principle of equality in the delivery of federal services should be based on the dual objective stated in subsection 16(1) of the Charter and re-stated in section 2 of the OLA, namely equality of use (linguistic access to a service) and equality of status (service of equal quality).
    
    
59. To fully realize these goals in the delivery of federal services, a federal institution must go beyond an accounting analysis of the staff assigned to serve members of the public and a brief assessment of services offered. The federal institution must clearly assess the quantitative aspect of the process related to the offer of services (bilingual documentation, number of bilingual employees, etc.) but it must also take into account the qualitative aspect of the offer of services by determining whether the service offered to the linguistic minority is of equal quality to that offered to the majority.
    
    
60. The concept of equality “of status” of the two official languages implicitly includes the concepts of identity and comparison.
    
    
61. As far as identity is concerned, this Honourable Court has already emphasized the “cultural objective of linguistic guarantees” in ruling on the “importance of linguistic rights in supporting official language communities and their culture.”

- R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 17-20

62. This cultural objective is therefore much broader than that of guaranteeing individual equality of use in the delivery of services. Although different, the two objectives, equality of use and equality of status, are complementary. These objectives may not be dissociated in determining the true scope of the principle of substantive equality, as they reflect both the “individual” and the “collective” right to the delivery of bilingual services guaranteed under Part IV of the OLA and subsection 20(1) of the Charter.
    
    
63. The right to the delivery of services in either official language is an individual right, in that any member of the public can assert and exercise that right. The right to the delivery of services is, on the other hand, a collective right in that it is generally subordinate to the “significant demand” criterion, thus reflecting the importance of the cultural objective. Individuals have rights under Part IV of the OLA only through the community to which they belong. This explains the broader cultural objective of the OLA, which is to achieve equality of status between the two official language communities with respect to the delivery of services.

- R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 20
- See also Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at para. 28

64. As for the comparison element, the Charter and the OLA both seem to draw a parallel between the status of the two official languages and, through the individual and collective nature of the rights, the communities they represent. To measure the equality of status, it should therefore be determined whether, in specific circumstances, French and English are on an equal footing, particularly with regard to the delivery of services by federal institutions.
    
    
65. It is in this context, that the late Chief Justice Dickson underscored the remedial nature of linguistic rights whose objective is designed to “correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the ‘equal partnership’ of the two official language groups.” It is against this backdrop that the Minister of Justice introduced, on March 22, 1988, the legislative bill that would become the OLA.

- Mahe v. Alberta, [1990] 1 S.C.R. 342 at pp. 362-364
- Minutes of Proceedings and testimonies of the Legislative committee on Bill C-72, House of Commons, March 22, 1988 (R. Hnatyshyn) at p. 1: 13

66. Quoting from the judgment of this Honourable Court in R. v. Mercure, which ruled that “rights regarding the French and English languages, which are basic to the continued viability,” the Minister of Justice underscored the purpose of the OLA:

the government’s commitment to equity in official languages matters for all Canadians.

- Minutes of Proceedings and testimonies of the Legislative committee on Bill C-72, House of Commons, March 22, 1988 (R. Hnatyshyn) at p. 1: 13
- R. v. Mercure, [1988] 1 S.C.R. 234 at p. 269

67. This goal of “equity” for all really illustrates how the comparison element is entrenched in the purpose of the OLA. However, such “equity” or equality of status will not be achieved in the absence of actual equality, meaning substantive equality in fact between the two official language communities with respect to the delivery of services by federal institutions.
    
    
68. The concept of “equal partnership” in Mahe also illustrates the importance of the dual objective of the OLA and of subsection 16(1) of the Charter. Indeed, there could be no true linguistic equality without protecting both the equality of use and the equality of status of the two official languages.
    
    
69. From a practical standpoint, it is crucial for a linguistic minority’s “status” to be equal to that of the linguistic majority so that it may protect its linguistic identity when faced with the danger of assimilation.

- Affidavit of Raymond Breton, sworn November 19, 2004, Appellant’s Record, Volume VI at pp. 484-489, at para. 8-24

70. An application of the principle of substantive equality that takes into account the quality of the service offered to achieve the cultural objective of equality of status is consistent with the approach taken by this Court in R. v. Beaulac:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. […]
… the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity. [The emphasis is ours]
- R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 16 (citing the late Chief Justice Dickson in the Reference re Manitoba Language Rights) and 45

71. In short, the effective equality of status of both official languages in the delivery of services therefore aims to guarantee that the official language minority community receives services of equal quality – i.e. community economic development services based on the specific needs of the linguistic minority.
    
    
72. In such circumstances, the principle of substantive equality could require – as the appellants maintain in the case at bar – that a federal institution reassess its existing modes of service delivery and, if warranted to achieve actual equality, offer a service that meets the needs of the linguistic minority. The members of this minority would therefore benefit from a service that would, in practical terms, truly be equal to that offered to members of the majority. This would also allow for both the collective and individual dimensions of the rights that are guaranteed under Part IV of the OLA to be achieved.

The implementation of the standard of equality in the delivery of services

73. Unlike other provisions of the Charter regarding equality (ss.15 and 23), the case law has yet to establish criteria defining the standards for substantive equality with respect to the delivery of services.
    
    
74. The equality standard should remain flexible to account for the range of services offered by federal institutions. Such flexibility is also important because the needs of official language communities often widely vary.
    
    
75. Accordingly, the appellants suggest establishing a flexible analytical grid that would help determine whether a service offered by a federal institution complies with the substantive equality principle as defined under Part IV of the OLA and subsection 20(1) of the Charter. The appellants recommend using a contextual analysis to fulfil the purpose set out in the OLA, namely to:
    
    
1. Ensure the substantive equality of French and English;
   
   
2. Guarantee that members of the public belonging to an official language minority community have equality of access to services provided by the federal institutions; and
   
   
3. Guarantee a governmental service of equal quality for members of the public belonging to an official language minority community.
   
   
76. The unwritten constitutional principle of the protection of minorities is also relevant when breathing life into language guarantees and should be taken into consideration in the interpretation of the language rights involved.
    
    
77. The crucial issue in each case is to determine whether identical treatment for the delivery of a service can be applied or whether substantive equality requires a different approach. The appellants maintain that, in all cases, a contextual analysis is required. However, that analysis may also be guided by certain factors.

- Transcript of the cross-examination of Scott Merrifield dated April 28, 2005, Appellant’s Record, Volume XI at pp. 1793-1800, Q. 98-128

78. First, the appellants maintain that the following factors should be considered by federal institutions as they determine the appropriate method of service delivery to effectively accomplish substantive equality and thus meet their obligations under Part IV of the OLA:
    
    
1. The clientele for whom the service is intended: Is it a service that will benefit the public individually or a community-type service for both official language communities? Is the service delivery method uniform on a national scale or are regional differences accounted for?
   
   
2. The nature of the service or program: Is the service transactional (i.e. a service provided on the spot at a counter or teller window), or rather is it designed to provide medium- and long-term benefits, involving an ongoing relationship with the recipients of the service? How important is this service for official language communities?
   
   
3. The result expected from this service: Must the institution be aware of and take into account the initial situation and needs of the recipient of the service to achieve its objectives?
   
   
79. Such factors require a results-based analysis of service delivery for the members of each official language community. As long as a single method of delivery offers the same benefits to members of both official language communities (either because it is designed for a general clientele or because of the nature of the service), substantive equality in the delivery of the service can be achieved with identical treatment. However, in the case at bar, where the clientele involved is the community of Huronia and the objective is community economic development, a single approach tailored to the needs of the majority does not result, in practical terms, in substantive equality, and therefore fails to achieve equality of status between the two official language communities.
    
    
80. When a federal institution determines that a single method of service delivery does not provide equal results for each of the official language communities, reviewing a second set of criteria may enable the institution to decide how to adapt this method to achieve true, actual equality. This is a factual analysis that focuses on the reality in which both official language communities evolve. The following questions should be asked:
    
    
1. Characteristics of the official language minority community: Is the community vulnerable to assimilation? Does the method of service delivery selected by the federal institution take into account the specific situation of the linguistic minority?
   
   
2. Needs of the official language minority community and of the linguistic majority: If the service involved is in response to a community or regional need, what are the needs of the linguistic minority and majority? Are there differences that could have an impact on the method of service delivery?
   
   
3. Measures to ensure that members of both official language communities are provided a comparable service: What aspects of the method of service delivery selected by the federal institution should be adjusted to take into account the specific needs of both the linguistic minority and majority?
   
   
81. The appellants suggest applying the above-stated factors to the facts of this case to determine whether Industry Canada should take into account the specific needs of the Francophone minority of Huronia to ensure that it receives a community economic development service truly equal to the service offered to the linguistic majority.

III. APPLICATION OF THE PRINCIPLE OF SUBSTANTIVE EQUALITY WITH RESPECT TO SERVICES DELIVERED UNDER THE PROGRAM

82. The evidence presented in this case establishes that the Program is a service designed to promote the community economic development of both official language communities of Huronia. However, the evidence shows that the method of delivery selected by Industry Canada does not offer the Francophone minority a service of truly equal quality to the one offered to the majority. In the field of community economic development in Huronia, French and English are not on equal footing.

- See inter alia: Contribution Agreement between Her Majesty the Queen in Right of Canada and North Simcoe Business Development Centre (for the years 1995 to 2004), Appellant’s Record, Volume XII at pp. 1967-1986, at pp. 1990-2066, Volume XIII at pp. 2109-2136; aux pp. 2146-2194; at pp. 2198- 2225, at Whereas, s. 2.1 (“Community”), s. 14.1

83. Because of a certain number of general factors, Industry Canada is required to adopt, with respect to the community economic development of the Francophone community of Huronia, a different approach than the one it uses for the majority in that area.
    
    
84. First, the service involved in the case at bar is a collective service. It is not a service that provides benefits to the public on an individual basis. It is a community economic development service that supports official language communities characterized by low income, slow economic growth and limited productive employment opportunities. Such a service supports the development of these communities by helping them consolidate and diversify their economy through the funding small local businesses.
    
    
85. In addition, the service at issue in this appeal is designed to provide benefits that are assessed at the community level in the medium and long term. Positive and ongoing relationships between providers and recipients are essential to the success of the delivery of this service. Unlike a large number of services offered by federal institutions, the community economic development service offered by Industry Canada is not merely offered in writing, but is a service with distinctive community, sociological and cultural components.
    
    
86. The evidence filed in this case sets out the social component and cultural objective of community economic development, as well as the vital role it plays for some communities:

Community economic development is a catch phrase for promoting economic and business development that is rooted in and fully benefits the local community. Essentially, it is the use of business and economic means to meet social goals […] In the most extreme circumstances, it becomes related to the very survival of a community […] In all cases, it is related to broader questions of strengthening community leadership and capacity, contributing to a greater measure of social cohesion and economic inclusiveness and enhancing participation of affected citizens in their own social and economic development.

– Affidavit of Mike Lewis, sworn November 19, 2004, Appellant’s Record, Volume IV at p. 462, at para. 3

87. The objectives of social cohesiveness and a sense of community at the economic level illustrate the importance of community economic development on the identity of members of both official language communities. It goes without saying that the translation into French of economic development services tailored to the majority is inadequate. An interpretation service would be equally inadequate in reflecting true equality of status between the two official languages.
    
    
88. By definition, community economic development requires the identification and understanding of whom the recipient of the service is, namely the community involved. CALDECH’s success in the community of Huronia demonstrates the importance of an approach adapted to the community’s cultural needs. In fact, a conclusion to the contrary would have been astonishing given the evolution of the Franco-Ontarian communities’ institutions in the fields of post-secondary education and health.

- Affidavit of Mike Lewis, sworn November 19, 2004, Appellant’s Record, Volume IV at pp. 462-463, at para. 3-5 and at pp. 465-466, at para. 10-13
- Affidavit of Peter Hominuk, sworn November 19, 2004, Appellant’s Record, Volume III at p. 457, at para. 4
- Transcript of the cross-examination of Peter Hominuk dated April 25, 2005, Appellant’s Record, Volume VIII at pp. 1281-1282, Q. 29
- Transcript of the cross-examination of Scott Merrifield dated April 28, 2005, Appellant’s Record, Volume XI at p. 1793, Q 110-111; at p. 1814, Q. 193-194; at pp. 1826-1827, Q. 235
- Transcript of the cross-examination of Debra Muenz dated April 27, 2005, Appellant’s Record, Volume X at pp. 1120-1123, Q. 1120-1123 and at pp. 1597-1598, Q. 1136-1139

Post-secondary Education:
- General, O. Reg. 34/03, s. 3

Health:
- Lalonde v. Ontario (Commission de restructuration des services de soins de santé) (2001), 56 O.R. (3d) 505 (C.A.)
- French Language Health Services Advisory Council, O. Reg. 162/07

89. This is acknowledged by Industry Canada. Indeed, one of the guiding community economic development principles identified with respect to the activities and services offered by the North Simcoe CFDC, is that community economic development should be achieved “by the community and for the community.” The same Industry Canada framework document provides: “The CFDCs may undertake all kinds of other activities and projects of community economic development. These will vary largely from one community to the other, in accordance with the priorities established during the local process of strategic planning. Here are some examples: …the establishment of special initiatives to encourage entrepreneurship within certain groups, such as . . . Francophones.”

- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at p. 402

90. As such, the delivery of community economic development services funded by Industry Canada differs widely across the country. In some areas of Ontario, including the northern and eastern parts of the province, Industry Canada offers funding to providers of economic development services under the control of Francophone majorities. In all other areas of the country where Francophones are a minority, federal institutions fund community development organizations that work exclusively with Francophones. These organizations receive permanent financing and support small- and medium-size businesses.

- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at p. 282, aux para. 19-20; at p. 320; at p. 420
- Department of Industry Act, S.C. 1995, c. 1, Part II
- Desrochers v. Canada (Industry) (F.C.), [2005] 4 F.C.R. 3 at para. 70
- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 5-7

91. It follows that the use of a single method in the delivery of community economic development services would not produce equal results for the two official language communities served. The following facts lead to the conclusion that actual equality in the community economic development of Huronia cannot be achieved through a single approach that offers the minority a service tailored to the needs of the majority.

Distinctive community economic development needs

92. The trial judge drew three conclusions that Industry Canada does not dispute:

    (1) In terms of community economic development, the needs of French-speaking Huronia residents are different from those of their English-speaking peers;

    (2) The French-speaking residents of the Huronia region are different from the English-speaking majority because, inter alia:

    - they have less economic power in the region;

    - they have fewer jobs and a higher unemployment rate;

    - they have fewer institutions of their own and they are less likely to live in their mother tongue;

    - they are less likely to work in their mother tongue;

    - they are subject to a very high rate of assimilation

    - they live in a region where historically Francophones have been persecuted; and

    - their culture is different.

    (3) CALDECH has the ear of the French-speaking community, is more successful in communicating with French-speaking residents and performs worthy community service.

    - Desrochers v. Canada (Industry) (F.C.), [2005] 4 F.C.R. at para. 64-65

    See also:
    - Affidavit of R. Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at pp.  319-320; at pp. 336-340; at pp.423-424; at pp. 436-437
    - Affidavit of Jean-Guy Vallière, sworn November 17, 2004, Appellant’s Record, Volume II at p. 205
    - Transcript of the cross-examination of Debra Muenz dated April 27, 2005, Appellant’s Record, Volume X at pp. 1572-1576, Q. 1120-1139
    - Affidavit of Mike Lewis, sworn November 19, 2004, Appellant’s Record, Volume IV at pp. 465-466, at para. 10-13
    - Transcript of the cross-examination of Peter Hominuk, Appellant’s Record, Volume VIII at pp. 1292-1294, Q. 71-75

93. The French-speaking community of the Huronia region is very vulnerable to assimilation. The community is undergoing an identity crisis due to its limited and precarious institutional network. A further distinguishing feature of the Huronia Francophone community is that the survival of its language and culture is contingent upon its economic and community development.

- Affidavit of Charles Castonguay, sworn November 16, 2004, Appellant’s Record, Volume II at p. 189, at para. 12; at p. 191, at para. 18; at p. 192, at para. 20
- Supplementary affidavit of Charles Castonguay, sworn March 16, 2005, Appellant’s Record, Volume IV at pp. 581-582 at para. 49 and at p. 582, at para. 51
- Affidavit of Raymond Breton, sworn November 19, 2004, Appellant’s Record, Volume IV at pp. 484-489, at para. 8-24 and at pp. 492-483, at para. 33-37
- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III, at p. 285, at para. 30 and at pp. 436-437
- Transcript of the cross-examination of Marie-Jeanne Gilbank dated April 27, 2005, Appellant’s Record, Volume X at pp. 1633-1634, Q. 81-84 and at p. 1636, Q.101-104

94. In economic development as well as other sectors such as education, health and culture, the Huronia region Francophone community is still feeling the effects of a past where its equality with the majority was neither acknowledged nor protected. The economic emancipation of the French-speaking community has not yet been fully achieved. The Huronia French-speaking community has a considerable amount of catching up to do; a challenge the majority is not faced with and can hardly appreciate.

- Transcript of the cross-examination of Peter Hominuk dated April 25, 2005, Appellant’s Record, Volume VIII at pp. 1292-1294, Q. 71-75
- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at p. 359
- Affidavit of Monique Jaiko-Marchildon, sworn November 18, 2004, Appellant’s Record, Volume III at pp. 453-454
- Transcript of the cross-examination of Monique Jaiko-Marchildon dated April 27, 2005, Appellant’s Record, Volume X at pp. 1695-1698, Q. 38-46

95. Needs also differ in terms of geographic location. Huronia Francophones are concentrated mainly in Penetanguishene and Tiny. French-speaking residents in the city of Penetanguishene and the township of Tiny have the right to receive services in French from the government of Ontario. In Midland, on the other hand, there are very few Francophones and hardly any French-language organizations or institutions. The only office of the North Simcoe CFDC is located in Midland, while CALDECH’s office is located in Penetanguishene. Because French-speaking residents are spread across the Huronia region, CALDECH meets entrepreneurs at home, which is something the North Simcoe CFDC never did.

- French Language Service Act, R.S.O. 1990, c. F-32, s. 5, Schedule
- Transcript of the cross-examination of Marie-Jeanne Gilbank dated April 27, 2005, Appellant’s Record, Volume X at pp. 1628-1630, Q. 45-57
- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III, at pp. 352 and 361
- Desrochers v. Canada (Industry) (F.C.), [2005] 4. F.C.R. 3 at para. 71
- Transcript of the cross-examination of Raymond Desrochers dated April 14, 2005, Appellant’s Record, Volume VII at pp. 1049-1051, Q. 42, 44-45
- Affidavit of Monique Jaiko-Marchildon, sworn November 18, 2004, Appellant’s Record, Volume III at pp. 453-454
- Transcript of the cross-examination of Monique Jaiko-Marchildon dated April 27, 2005, Appellant’s Record, Volume X at pp. 1695-1698, Q. 38-46

96. Finally, a short meeting was organized in an effort to consult the French-speaking community, but very few Francophones attended. In fact, the North Simcoe CFDC never really consulted the linguistic minority of the Huronia region. The Huronia community economic development plan was prepared without identifying or considering the needs of the French-speaking community, and without attempting to account for the equality of status and use of French and English. The North Simcoe CFDC is therefore attempting to do the impossible by implementing a strategic community economic development plan for all Huronia interest groups without reflecting the needs of one of the two official language communities.

- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at pp. 352-353 and at pp. 357-358
- Transcript of the cross-examination of Debra Muenz dated April 27, 2005, Appellant’s Record, Volume IX at pp. 1456-1457, Q. 439-440
- Affidavit of Mike Lewis, sworn November 19, 2004, Appellant’s Record, Volume IV at pp. 165-166, at para. 13

97. Huronia Francophones were, however, consulted for a report ordered by Industry Canada. Representatives of French-language organizations requested their own economic development mechanisms to enable the French-speaking community to determine its own needs, approaches and priorities.

-  Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at pp. 423-424 and at pp. 436-437

98. It is therefore clear in the case at bar that the right to services of truly equal quality requires that the delivery of community economic development services take into account the differences between the linguistic minority and majority of the Huronia region.
    
    
99. The English-speaking community of Huronia has been receiving community economic development services since at least 1986. The French-speaking community has never benefited from community economic development services that are equal in quality to those of the majority. CALDECH thus came into being, and has been successful because it considers the different needs of French-speaking Huronia residents.

- Affidavit of Raymond Desrochers, sworn November 18, 2004, Appellant’s Record, Volume III at p. 280, at para. 11; at p. 282, at para. 17; at pp. 293-302
- Transcript of the cross-examination of Debra Muenz dated April 27, 2005, Appellant’s Record, Volume IX at p. 1402, Q. 160
- Transcript of the cross-examination of Marie-Jeanne Gilbank dated April 27, 2005, Appellant’s Record, Volume X at p. 1648, Q 183 and at p. 1677, Q. 383
- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 11, 14-15, 17
- Affidavit of Jean-Guy Vallière, sworn November 17, 2004, Appellant’s Record, Volume II at para. 9
- Transcript of the cross-examination of Monique Jarko-Marchildon dated April 27, 2005, Appellant’s Record, Volume X at pp. 1698-1699, Q. 47

IV. PART VII OF THE OLA NOT AT ISSUE

• 100.  The issue in this appeal focuses strictly on Part IV of the OLA and does not involve the obligations of the respondents under Part VII of the statute.
  
  
• 101.  The appellants CALDECH and Raymond Desrochers request a truly equal delivery of Program services. The heart of this matter is therefore the scope of the substantive equality standard underlying Part IV of the OLA.
  
  
• 102.  Part VII of the OLA describes the federal government’s commitment of “enhancing” the development or vitality of official language minorities. This part of the OLA requires that the federal government take positive measures, i.e. measures that go beyond the status quo, to enhance the development and vitality of official language minorities and therefore redress the past wrongs they endured.
  
  
• 103.  In the case at bar, the dispute is not over the soundness or existence of the Program, but how its services are delivered. It is theoretically possible that a future decision by Industry Canada to cut or modify the Program would require an assessment of the decision on the basis of Part VII of the OLA, to measure the impact of such a change on the development and vitality of the linguistic minority. However, in the case at bar, because Industry Canada made the decision to offer the Program, Part IV of the OLA requires that the Program be offered equally to both official language communities. This appeal focuses solely on the issue of determining whether Industry Canada has met its obligations to ensure equality in the delivery of services to the region of Huronia.
  
  
• 104.  The service offered is related to community economic “development,” but this is not enough to shift the debate to the implementation of a federal service under Part VII of the OLA.

V. RELIEF SOUGHT

• 105.  This Honourable Court has a wide range of discretion under subsection 77(4) of the OLA with respect to applying the appropriate and just remedy in the circumstances.
  
  
• 106.  Subsection 77(4) of the OLA restates subsection 24(1) of the Charter, which allows anyone whose rights or freedoms guaranteed under the Charter have been infringed or denied to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Subsection 77(4) thus mirrors subsection 24(1) of the Charter and allows the full range of remedies available under the Charter.

- Lavigne v. Canada (Human Resources Development) (T.D.), [1997] 1 F.C. 305 at para. 20

• 107.  Subsection 77(4) of the OLA should be construed as broadly as possible, in a manner consistent with the achievement of the purposes of the OLA, particularly with respect to the objectives of ensuring the equality of status and use of both official languages, as well as the development and vitality of official language minorities.

- Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at para. 24
- Official Languages Act, R.S.C. [1985], c. 31 (4th Supp.), s. 2

• 108.  The remedies awarded should:

First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies. [Emphasis of the Court]

- Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at para. 25

• 109.  Remedy provisions such as subsection 77(4) of the OLA and subsection 24(1) of the Charter should be construed in a way that provides a full, effective and meaningful remedy.

- Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at para. 25.

• 110.  As broad as it might theoretically be, a right is only as efficient as the relief provided in the event of a breach. The appellants maintain that, in the case at bar, the lower courts erred in holding that no relief (other than costs) should be awarded, notwithstanding their ruling that there had been a breach under Part IV of the OLA.

- R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 (“Dunedin”) at para. 19-20
- Desrochers v. Canada (Industry) (F.C.), [2005] 4 F.C.R. 3 at para 74
- Desrochers v. Canada (Industry) (F.C.A.), [2007] 3 F.C.R. 3 at para. 78

Relief sought jointly by all appellants

• 111.  The linguistic rights of the Huronia French-speaking community must be respected.
  
  
• 112.  To the extent that the Federal Court of Appeal’s judicial reasoning (pursuant to which the only equality guaranteed under Part IV of the OLA is the equality of access to services) is overruled, and to the extent that this Honourable Court rules that Industry Canada must ensure community economic development services of equal quality in both official languages, the appellants maintain that it would be appropriate and just for this Honourable Court to:

- Declare that the principle of equality found in Part IV of the OLA and at sections 16 to 20 of the Charter guarantees both equal linguistic access and a service of equal quality in both official languages in the delivery of services by federal institutions; and

- Declare that Industry Canada breached its obligations under Part IV of the OLA by not offering to the French-speaking community of Huronia an economic development service of equal quality to the one already offered to the linguistic majority;

- Order Industry Canada to comply with Part IV of the OLA in the implementation of the Program; and

- Order Industry Canada to take immediate measures to ensure that the official language minority community of Huronia can receive community economic development services in its language that are of equal quality to the services offered to the majority including, if required, to maintain the necessary financing so that the appellant CALDECH can continue to offer economic development services until Industry Canada is able to show that it or a third party acting on its behalf can offer an economic development service that takes into account and responds to the particular needs of the region’s French-speaking community.

• 113.  The appellants further maintain that any plaintiff who demonstrates a breach of the OLA has, under subsection 77(4) of the OLA, a prima facie right to monetary relief.
  
  
• 114.  In the case at bar, the appellants maintain that Industry Canada failed to comply with its obligations under Part IV of the OLA and that, as a result, the community suffered harm. However, as far as the Commissioner is concerned, this Honourable Court shall determine whether awarding a monetary relief is appropriate in the circumstances of this case and, if so, determine the amount of such relief.

Monetary relief sought by CALDECH and Raymond Desrochers

• 115.  On the other hand, given the remedial and particular nature of the OLA, the appellants CALDECH and Raymond Desrochers maintain that it would be appropriate and just for this Honourable Court  to:

- Order Industry Canada to pay compensation to CALDECH equivalent to what Industry Canada would have paid had it maintained its administrative arrangements with CALDECH to offer the French-speaking minority a community economic development service equal to the service already offered to the majority of the region. 

• 116.  Industry Canada should not benefit from monetary savings as a result of its breach of linguistic obligations at the expense of the minority community.
  
  
• 117.  If the lower courts had not erroneously construed the scope and application of the principle of substantive equality in this matter, Industry Canada would have funded CALDECH until an appropriate delivery of services had been established, to ensure services of equal quality to the French-speaking minority of the Huronia region. The community would therefore not have been deprived of community economic development services of equal quality, and the devastating effects of assimilation over nearly three years would probably have been less severe.
  
  
• 118.  In the view of the appellants CALDECH and Raymond Desrochers, a compensation order in this matter is warranted to enable the minority community to catch up in its community economic development.
  
  
• 119.  In ruling, this Honourable Court should not only prevent Industry Canada from taking advantage of the savings resulting from the lack of services of equal quality for the French-speaking community, but also order compensation for the French-speaking community, which is still suffering from the dual economic development disadvantage of (1) its precarious position as a minority community in an area with a high rate of assimilation; and (2) the lengthy absence of services of equal quality to those offered to the linguistic majority, further widening the gap between the two official language communities and justifying the French-speaking community’s need to catch up in its community economic development.

- Doucet-Boudreau v. Nova Scotia (Minister of Education, [2003] 3 S.C.R. 3 at para. 29

PART IV – SUBMISSIONS CONCERNING COSTS

• 120.  CALDECH and Raymond Desrochers request that this Honourable Court award them costs, irrespective of the outcome of this matter.
  
  
• 121.  Subsection 81(2) of the OLA provides an important departure from the rule according to which costs are awarded at the court’s discretion and, unless the court orders otherwise, they follow the event. It reads as follows:
  
  

  (2) Where the Court is of the opinion that an application under section 77 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.

  (2) Cependant, dans les cas où il estime que l’objet du recours a soulevé un principe important et nouveau quant à la présente loi, le tribunal accorde les frais et dépens à l’auteur du recours, même s’il est débouté.

  
  
• 122.  Subsection 81(2) of the OLA is not exceptional. Similar provisions exist in other federal legislative instruments and recognize the increasing importance of access to justice in the application of certain federal statutes. Clearly, Parliament recognizes the significant importance of access to justice with respect to language rights under the OLA.

- See for example the Access to Information Act, R.S.C. 1985, c. A-1, subs. 53(2) and the Privacy Act, R.S.C. 1985, c. P-21, subs. 52(2)

• 123.  This appeal raises a new and important issue, namely whether Part IV of the OLA and subsection 20 of the Charter – via the principle of substantive equality expressed in section 16 of the Charter – ensure a delivery of services of equal quality in both official languages and, where required by the nature of the service involved, take into account and meet the needs of official language minority communities.
  
  
• 124.  The Federal Court of Appeal properly recognized that CALDECH and Raymond Desrochers were entitled to costs in Federal Court and that the Court – pursuant to subsection 81(2) of the OLA – had no discretion in this regard. Accordingly, pursuant to subsection 81(2) of the OLA, appellants CALDECH and Raymond Desrochers maintain that this Honourable Court has no discretion as to the legal costs in Federal Court and should not, irrespective of the outcome of this appeal, amend the Federal Court of Appeal’s order in that regard.
  
  
• 125.  The appellants maintain that the power with respect to costs, as set forth under subsection 81(2) of the OLA, should inform and guide the awarding of costs in appellate decisions rendered pursuant to Part X of the OLA. This Honourable Court should therefore, in the case at bar, take into account the principle stated at subsection 81(2) of the OLA when awarding costs before this Court and before the Federal Court of Appeal, a principle fully consistent with the powers of this Honourable Court under section 47 of the Supreme Court Act (“SCA”).

- Supreme Court Act, R.S.C. 1985, c. S-26, s. 47

• 126.  The appellants maintain that, when the requirements of subsection 81(2) are met (namely where the court finds that an application has raised an important and new principle in relation to the OLA), this Honourable Court should exercise its discretionary power under section 47 of the SCA to give effect to Parliament’s intention in applications filed under the OLA, as stated in subsection 81(2) of the OLA.

- Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3
- See also Dagg v. Canada (Department of Finance), [1997] 2 S.C.R. 403

• 127.  The awarding of costs to the appellant the Commissioner of Official Languages is at the discretion of this Honourable Court.
  
  
• 128.  All appellants request that this Honourable Court exempt them from paying costs incurred by the respondents as a result of this appeal.

PART V – ORDER SOUGHT

• 129.  For the above-stated reasons, the appellants request that this Honourable Court allow this appeal, answer affirmatively the constitutional question, and find that Industry Canada has breached its obligations under Part IV of the OLA by failing to offer a community economic development service that takes into account the specific needs of the minority French-speaking community.
  
  
• 130.  The appellants request that this Honourable Court award the relief it considers appropriate and fair in the circumstances. In addition, appellants CALDECH and Raymond Desrochers request that this Honourable Court award them costs in this Court, irrespective of the outcome of this matter.
  
  

Ottawa, November 20, 2007

PART VI – ALPHABETICAL TABLE OF AUTHORITIES

PART VII – EXCERPTS OF STATUTES AND REGULATIONS

STATUTES

Canadian Charter of Rights and Freedoms,
Part I of the Constitutional Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11

Department of Industry Act, R.S. 1995, c. 1

Official Languages Act, R.S.C. 1985, c. 31 (4th supp.)

French Language Service Act, R.S.O. 1990, c. F-32, s. 5, Schedule

SCHEDULE

APPENDIX

Access to Information Act, R.S.C. 1985, c. A-1

Privacy Act, R.S.C. 1985, c. P-21

Supreme Court Act, R.S.C. 1985, c. S-26

REGULATIONS

General, O. Reg. 34/03, s. 3

French Language Health Services Advisory Council, O. Reg. 162/07.

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?

Le par. 20(1) de la Charte canadienne des droits et libertés et la partie IV de la Loi sur les langues officielles, L.R.C. 1985, ch. 31, interprétés à la lumière du principe de l’égalité énoncé au paragraphe 16(1) de la Charte, obligent-ils à Industrie Canada à fournir des services qui sont de qualité égale dans les deux langues officielles?