OVERVIEW

1. The case now before the Court will be a means of defining the scope of the duties imposed on federal institutions to take “positive measures” to carry out the Government of Canada’s commitment pursuant to Part VII of the Official Languages Act (“OLA”).

2. The issues raised in the case at bar are of fundamental importance as the Government of Canada’s commitment toward the development of Francophone and Anglophone minorities and promotion of linguistic duality lies at the heart of the purpose of the OLA and is the concrete expression of Canada’s constitutional commitment to promote progress toward the equality of French and English.

3. In particular, this Court must interpret the duty to take “positive measures” set out in subs. 41(2) of the OLA, a unique concept in federal language legislation, so as to make Part VII of the OLA meaningful and establish a concrete commitment by each federal institution to take action. This duty not only requires that every federal institution subject to the OLA be at all times required to act so as not to impede the development and the vitality of official language minority communities, but also requires that each institution be proactive and of its own accord initiate specific measures which have a positive impact on the vitality of those communities.

4. This two-part duty—the duty not to impede the development of official language minority communities and the duty to take specific measures to enhance their vitality—implies that each federal institution must be aware of the particular needs and interests of these communities and their specificity. Such knowledge is acquired through a collaborative approach, which generally involves a process of consultation with official language minority communities in order to assess the impact of a program or policy which a federal institution is preparing to introduce, revise or even abolish. Only such an assessment will enable a federal institution to determine whether the initiative being considered will enhance the vitality of these communities. In cases where the initiative would adversely affect the development of official language minority communities, the institution will have to consider measures likely to mitigate such a harmful effect that would be contrary to the purpose of Part VII of the OLA.

5. The governmental prerogative to govern, review its priorities and make budgetary decisions does not have the effect of reducing the duty imposed by subs. 41(2) of the OLA to some kind of general commitment, just as it does not have the effect of exempting such decisions from review by the courts under Part X of the OLA.

6. In the case at bar, the evidence establishes that the decision to abolish the Court Challenges Program (“CCP”) was made without any assessment by Canadian Heritage of the impact of such a decision on the development and enhancement of the vitality of official language minority communities and without alternative measures that could have mitigated the negative effects of this decision. Finally, the evidence in the record shows that Canadian Heritage failed in its duty to ensure that there was public consultation about the Department’s intention to review, and ultimately to abolish, the CCP.

7. In view of the overwhelming evidence establishing the negative impact which the decision to abolish the CCP had and will continue to have on the development and enhancement of the vitality of official language minority communities, the Intervener submits that the decision at issue is contrary to Part VII of the OLA and cannot be upheld.

PART I – FACTS

Court Challenges Program

Investigation by the Commissioner of Official Languages

17. One hundred and eighteen complaints were filed with the Office of the Commissioner of Official Languages following the budget cuts announced by the federal government in September 2006. The vast majority of the complaints had to do with abolition of the CCP.

- Office of the Commissioner of Official Languages, Final Investigation Report of Complaints concerning the Federal Government’s 2006 Expenditure Review, October 2007, Motion Record of the COL at 138 [The COL’s Final Investigation Report]

18. In response to these complaints, the Commissioner undertook an investigation of the decision-making process followed in the Expenditure Review that led inter alia to changes in nine programs and agencies, including abolition of the CCP. The purpose of the investigation was to determine the extent to which the decision-making process that led to the results challenged by the complainants had taken into account the federal government’s commitment set out in subs. 41(1) of the OLA and the duties imposed on federal institutions affected under Part VII of the OLA.

- The COL’s Final Investigation Report, Motion Record of the COL, at 168
- Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31 [OLA]

19. In view of the high number of complaints filed that pertained specifically to abolition of the CCP, the Commissioner undertook a comprehensive study of the legal impact of abolishing the program. Accordingly, the Commissioner’s investigation report is accompanied by a study examining the legal impact of abolising the CCP on the development and enhancement of the vitality of official language communities living in a minority situation in the short, medium and long term.

- Study of the Legal Impact, Motion Record of the COL

20. In October 2007, the Commissioner sent the institutions and complainants in question, including the Applicant, his final investigation report.

- Final Investigation Report of the COL, Motion Record of the COL

Conclusions of the Commissioner’s investigation

21. From his investigation the Commissioner concluded that all the complaints were founded and that the 2006 Expenditures Review did not observe either the federal government’s commitments set out in Part VII of the OLA or the duty imposed on federal institutions under subs. 41(2) of the OLA to take positive measures to give effect to those commitments (except for the redirection of investments intended for a youth employment program).

- The COL’s Final Investigation Report, Motion Record of the COL, at 174

22. In his investigation report, the Commissioner concluded that the decision-making process which led to the 2006 budget cuts, and in particular to abolition of the CCP:

... lacked the means to fulfil the commitments, obligations and roles prescribed in Part VII of the Official Languages Act and supported by the government’s official languages accountability framework. Program evaluations were inadequate to ensure appropriate consideration of official languages in the early stages. TBS reminders to deputy heads to consider statutory requirements failed to guarantee Part VII’s rightful place in departmental assessments, and the lack of both internal and external consultations would have inhibited full consideration of the interests and needs of official language minority communities in relation to the various government programs.

- The COL’s Final Investigation Report, Motion Record of the COL, at 173

23. As regards the CCP, the impact study attached to the Commissioner’s investigation report identified the consequences of abolition of the CCP in the short, medium and long term for official language minority communities.

24. The study showed that the CCP contributed directly and significantly to the advancement of language rights in Canada, and that, accordingly, it enhanced the vitality and development of French and English minorities.

- Study of the Legal Impact, Motion Record of the COL, at 196 and 228

25. In particular, the study showed that the CCP not only made it possible to clarify and promote language rights, but also encouraged respect of and implementation of those rights. Admittedly, the financing of test cases enabled some interested parties to ensure respect for and development of rights in court cases; however, the simple possibility that parties could obtain financing to initiate test cases to ensure that constitutional or legislative language obligations would be carried out was sometimes enough to pressure certain governments to carry out their duties. Thus, the mere existence of the CCP created a power dynamic between governments and official language minority groups.

- Study of the Legal Impact, Motion Record of the COL, at 196 and 199

26. The study found that there were four aspects to the CCP’s contribution to advancing language rights. The CCP facilitated access to the courts for official language minority communities; it contributed to the identification and the implementation of language rights in Canada; and it was an essential communication tool between minority associations and groups that also made it possible to improve the dialogue between official language minority communities and representatives of government.

27. The study concluded that, given the many contributions of the CCP, abolishing the program had the effect of removing an important tool for enhancing the vitality and assisting the development of official language minority communities.

- Study of the Legal Impact, Motion Record of the COL, at 231.

28. In particular, the study concluded:

In short, the elimination of the Program has undoubtedly had a negative impact on the development and vitality of all official language minority communities in Canada because it takes away an essential tool for enhancing their vitality and facilitating their access to the courts to enforce their constitutional rights. In the absence of this tool, we expect the status quo from governments and, consequently, the implementation of their obligations will come to a standstill. A real setback for language rights could very well ensue.

- Study of the Legal Impact, Motion Record of the COL, at 233

29. Based on this study and in the absence of any evidence to the contrary provided by institutions, the Commissioner concluded that, “the evidence is overwhelming that the Court Challenges Program directly and significantly assisted in the advancement of language rights in Canada and, in so doing, contributed to the vitality and development of our official language minority communities”. Consequently, “... in the absence of positive measures, the termination of federal funding under the 2006 expenditure review is contrary to the Government of Canada’s commitments and obligations under Part VII of the Official Languages Act.”

- The COL’s Final Investigation Report, Motion Record of the COL, at 151

30. Although the Commissioner acknowledged the federal government’s prerogative to govern and to review its priorities, he indicated that in his opinion, the result of the amendments made to Part VII of the OLA in 2005 was that government measures had to be consistent with the federal government’s legislative commitment and with the duties imposed on institutions to promote the development and enhance the vitality of official language communities and to foster the full recognition and use of both languages in Canadian society.

- The COL’s Final Investigation Report, Motion Record of the COL, at 174-175

31. In conclusion, the Commissioner made three recommendations which applied jointly to Canadian Heritage and the Treasury Board Secretariat, namely that they should,

1. in keeping with the commitments, duties and roles prescribed in Part VII of the Official Languages Act, undertake in collaboration with the responsible departments and agencies and in consultation with appropriate representatives of official language minority communities a thorough assessment of the impact of the 2006 expenditure review results on official language minority communities;
2. in implementing recommendation No. 1, assign priority to assessing the impact of the elimination of the Court Challenges Program; and
3. submit the results of the assessments to the President of the Treasury Board of Canada within 120 days of receipt of the final report of this investigation in order to provide the basis for the government to review its decisions.

- The COL’s Final Investigation Report, Motion Record of the COL, at 177

32. A fourth recommendation was made regarding the Treasury Board Secretariat.

33. To date the Commissioner has had no indication that the departments in question have undertaken to implement these recommendations

PART II – ISSUES

34. The legal argument of the Intervener, the Commissioner of Official Languages, will deal with the following three points:
    
1. The nature and scope of the duties imposed on federal institutions under Part VII of the OLA;
2. The type of review the courts should undertake in assessing compliance by a federal institution with Part VII of the OLA;
3. The extent to which Canadian Heritage has met its obligations under Part VII of the OLA in the particular factual context of the case at bar.

PART III – STATEMENT OF ARGUMENTS

A. Nature and scope of the duties set out in Part VII of the OLA

i. Applicable rules of interpretation

35. The Supreme Court of Canada has recognized that language rights are fundamental rights and represent an “independent principle underlying our constitutional order.” As recognized by the Supreme Court of Canada, the interpretation of such rights must take into account “the importance of language rights as supporting official language communities and their culture.”

- Re Manitoba Language Rights, [1985] 1 S.C.R. 721.
- Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 79-82.
- R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 17.

36. Any interpretation of constitutional and quasi-constitutional language rights must also take into account the social, demographic and historic context of this country. As the Court observed in Solski:

… the need and desire to ensure that language communities continue to exist and develop represented one of the primary objectives of the language rights scheme that has gradually been implemented in Canada. Although the process of recognizing and defining those rights has at times been marked by difficulties and conflicts ... the presence of two distinct language communities in Canada and the desire to reserve an important place for them in Canadian life constitute one of the foundations in the federal system that was created in 1867.

- Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, at para. 6

37. As the Federal Court recognized in Viola, and the Supreme Court of Canada in Lavigne, the OLA is quasi-constitutional legislation:

The 1988 Official Languages Act is not an ordinary statute ... To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada . . . [It] belongs to that privileged category of quasi-constitutional legislation which reflects “certain basic goals of our society” and must be so interpreted “as to advance the broad policy considerations underlying it.”

- Canada (Attorney General) v. Viola (C.A.), [1991] 1 F.C. 373
- Also see Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773

38. It follows that all provisions of the OLA which confer language rights and impose language duties on institutions must be given an interpretation that is broad and liberal, purposive and best suited to remedying the injustices of the past and ensuring the development and enhancement of the vitality of official language minority communities.

- R. v. Beaulac, [1999] 1 S.C.R. 768
- Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, at para. 23
- Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes , 4th ed., Markham, Butterworths, 2002, at 1

39. The specific purpose of the OLA is, in particular, to enhance the development and vitality of official language minority communities in Canada and to advance the equality of status of French and English.

2. The purpose of this Act is to (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;

2. La présente loi a pour objet : 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;

- OLA, section 2

40. This basic purpose of the OLA, which also underlies all the language rights guaranteed by the Charter, is recognized in the Preamble to the OLA and is set out in detail in one of the parts of the Act, Part VII, which imposes specific duties on institutions regarding promotion of linguistic duality and the development and enhancement of the vitality of official language minority communities.

41. Contrary to what the Respondent argued, Part VII is an expression of Parliament’s commitment set out in subs. 16(3) of the Charter to advance the equality of status and use of English and French. In other words, the provisions of Part VII of the OLA are the legislative implementation of the federal government’s commitment to undertake measures to advance the equality of French and English.

- Parliamentary Debates, 28th Parl., 1st sess., 059 (February 17, 2005) at 3677 (The Honourable Raymond Simard, Parliamentary Secretary to the Deputy Leader of the Government in the House of Commons, Minister responsible for Official Languages).
- See also: Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-7, An Act respecting the status and use of the official languages of Canada, 33rd Parl., 2nd sess., No. 3 (March 24, 1988), at 6 (Testimony of The Honourable David Crombie, Secretary of State).
- Respondent’s Record, Vol. XII, Memorandum of Fact and Law, at para. 27

ii. Background to Part VII of OLA and Legislative Intent

42. The OLA was adopted in 1969. In 1988 a new OLA was adopted and provided, inter alia, for the addition of Part VII of the OLA, which stated:
    
    

    Government policy 41. The Government of Canada is committed to (a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and (b) fostering the full recognition and use of both English and French in Canadian society.	Engagement 41. Le gouvernement fédéral s’engage à favoriser l’épanouissement des minorités francophones et anglophones du Canada et à appuyer leur développement, ainsi qu’à promouvoir la pleine reconnaissance et l’usage du français et de l’anglais dans la société canadienne.
    Coordination 42. The Minister of Canadian Heritage, in consultation with other ministers of the Crown, shall encourage and promote a coordinated approach to the implementation by federal institutions of the commitments set out in section 41.	Coordination 42. Le ministre du Patrimoine canadien, en consultation avec les autres ministres fédéraux, suscite et encourage la coordination de la mise en oeuvre par les institutions fédérales de cet engagement.
    Public consultation 43 (2) The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to ensure public consultation in the development of policies and review of programs relating to the advancement and the equality of status and use of English and French in Canadian society.	Consultation 43 (2) Il prend les mesures qu’il juge aptes à assurer la consultation publique sur l’élaboration des principes d’application et la révision des programmes favorisant la progression vers l’égalité de statut et d’usage du français et de l’anglais dans la société canadienne.

43. The years that followed adoption of the 1988 OLA were marked by considerable criticism of the inaction by the federal government, which considered that Part VII only expressed a political commitment and did not impose any binding duty on federal institutions to carry out that commitment. This minimalist interpretation of such a fundamental part of the OLA subsequently resulted in requests from official language minority communities and Commissioner of Official Languages at the time, Dyane Adam, that the part of the Act be amended to incorporate express and binding duties to take measures to foster the development and enhance the vitality of official language minority communities.

- See, for example, the Annual Reports of the Commissioner of Official languages for the years 1989-1999 pertaining to the government’s inaction in the implementation of Part VII; Annual reports from 2001-2002 to 2004-2005 pertaining to the requests for a legislative change to Part VII of the OLA.

44. In 2001, the first bill to amend Part VII to include express duties and provide for a legal recourse for any failure to comply with this Part of the OLA was tabled by Hon. Senator Jean-Robert Gauthier. This bill was followed by three other similar bills filed in 2002, 2004, and finally 2005.

- Bill S-32, introduced September 19, 2001, died on the order paper; Bill S-11, introduced December 10, 2002, died on the order paper; Bill S-4, introduced February 3, 2004, died on the order paper; and Bill S-3, introduced October 6, 2004, received Royal Assent on November 25, 2005

45. In 2003, the federal government introduced the Action Plan for Official Languages to give a new impetus to language policies. The Action Plan includes an Official Languages Accountability and Coordination Framework, which is still in effect. Among other things, the Framework describes the working methods applicable to all federal institutions for giving effect to the government’s commitment under Part VII of the OLA. The Framework recognizes that some decisions could have negative repercussions on official language minority communities. In particular, the Framework provides that as part of the process of developing policies and programs each institution should, inter alia:

1. Determine whether its policies and programs have impacts on the development of minority communities;
2. Consult affected publics as required, especially representatives of official language minority communities;
3. Be able to describe its actions and demonstrate that it has considered the needs of minority communities; and
4. When it has been decided that impacts do exist, the institution will have to plan activities accordingly.

- Official Languages Accountability and Coordination Framework, Annex A of The Next Act : New Momentum for Canada’s Linguistic Duality, The Action Plan for Official Languages, Privy Council Office, 2003, at 63 [Accountability Framework]

46. It is worth noting that these procedures for implementing the government’s commitment under Part VII were adopted by the present government in 2007, as indicated by the Guide for Federal Institutions developed by Canadian Heritage. The Guide gives institutions instructions on the way in which their new duties under subsection 41(2) are to be carried out. Additionally, the Guide indicates that these procedures also apply when an institution intends to repeal a program.

- Guide for Federal Institutions, Official Languages Act Part VII – Promotion of English and French, Canadian Heritage, 2007, at 12 [Guide for Federal Institutions]

47. It is also instructive that in 2005, with the adoption of Bill S-3 amending Part VII of the OLA, the federal government proposed a wording for section 41(2) that would have had the effect of codifying the working methods set out in the Accountability Framework, which, according to the Intervener, are covered in part by the implementation of the duty to “take measures.” In particular, the wording proposed by the government provides:
    
    

    (2) In order to implement the commitments under subsection (1), every federal institution set out in the schedule shall ensure that measures are taken in the development and review of any of its policies and programs to	(2) En vue de la mise en œuvre de cet engagement, chaque institution fédérale dont le nom figure à l’annexe veille à ce que les mesures ci-après soient prises dans le cadre de l’élaboration et de la révision de ses politiques et programmes :
    (a)determine whether the policy or program impacts on the implementation of the commitments;	i.vérifier l’incidence de chaque politique ou programme sur la mise en œuvre de cet engagement
    (b)consult any interested organizations, including organizations representing English and French linguistic minority communities in Canada, if the federal institution considers it appropriate in the circumstances; and	ii.consulter les organismes intéressés, notamment ceux qui représentent les minorités francophones et anglophones du Canada, si elle le juge indiqué;
    (c)consider the determination made under paragraph (a) and the results of any consultation undertaken under paragraph (b).	iii.tenir compte de la conclusion tirée en application de l’alinéa(i) et des résultats de toute consultation faite en application de l’alinéa (ii).

    
    

48. The present wording of subs. 41(2) was proposed as the result of representations by a number of interveners, including the then Commissioner of Official Languages, who expressed their fear that a specific list of positive measures might be interpreted in a restrictive manner by federal institutions, which might be able to argue that they were only required to carry out the measures indicated.

- See for example, the apprehensions expressed by the following witnesses: Minutes of Proceedings and Evidence of the Standing Committee on Official Languages, 38th Parl., 1st Sess., No. 39 (June 16, 2005), at 6-8 (Testimony of Jean-Guy Rioux, Vice-President of FCFA, and of Rénald Rémillard, Director General, Fédération des associations de juristes d’expression française de common law), No. 37 (June 9, 2005), at 5-6 (Testimony of André Braën, Professor, Faculty of Civil Law, University of Ottawa, No. 38 (June 14, 2005), at 11-12 (Testimony of Pierre Foucher, Law Professor, University of Moncton)
- Minutes of Proceedings and Evidence of the Standing Committee on Official Languages, 38th Parl., 1st Sess., No. 44 (October 6, 2005), at 2 (Testimony of Dyane Adam – Commissioner of Official Languages)

49. Although the wording, set out at paragraph 47 above and proposed by the government of the day, is not the current wording of subs. 41(2), it does show that at a minimum Parliament intended to impose a duty on institutions developing or reviewing their programs and policies to

- assess the impact of those programs or policies on the implementation of the government’s commitment under Part VII;
- consult with official language minority communities, if they consider it appropriate; and
- take the result of such an impact analysis into account in their decision-making process.

50. As indicated by the Minister responsible for Official Languages at that time, the duty to take “positive measures” required the implementation of an ongoing and specific process:

One of the processes in place would be to determine the impact of each policy and program on implementation of the commitment.
We’ll also have to change to consult the organizations concerned, in particular those representing the Francophone and Anglophone minorities of Canada, if they see fit, and to take into account the determination made under paragraph (a) and the results of any consultation conducted under paragraph (b).

. . . . .

I’ll give you an example where that would apply. I’ve already spoken here in committee about a project back home in which the Francophone communities got organized to obtain broadband services. However, people weren’t consulted at all.
Under the process proposed here, the minority communities would have to be consulted to determine the impact of Industry Canada allocating funds to communities without considering what’s going on in the Francophone communities.
... I think this is important. The idea isn’t just to consult the organizations appropriately; it’s also to consider consultation findings.
...
[emphasis added]

- Minutes of Proceedings and Evidence of the Standing Committee on Official Languages, 38th Parl., 1st Sess., No. 33 (May 18, 2005), at 3 (Testimony of The Honourable Raymond Simard, Parliamentary Secretary to the Deputy Leader of the Government in the House of Commons, Minister responsible for Official Languages).

51. This interpretation of the nature of the duty imposed by subs. 41(2) was confirmed by Hon. Liza Frulla, Minister of Canadian Heritage:

With these amendments, federal institutions would be required, when developing policies or programs, to determine whether the policy or program impacts on the implementation of the commitments, consult where appropriate any interested organizations, including organizations representing English and French linguistic minority communities in Canada, and take into consideration the impact of the promotion of French and English as well as results of consultations. The obligations of the Minister of Canadian Heritage would also be subject to similar measures. I would like to repeat the fact that these steps ... are far from being banal or negligible. The legal obligation to consider the impact of a policy or program on the promotion of English or French would be substantial and would allow federal institutions to respond more appropriately to the needs of the official-language minority communities and the interests of linguistic duality as a whole. [emphasis added]

- Minutes of Proceedings and Evidence of the Standing Committee on Official Languages, 38th Parl., 1st Sess., No. 35 (May 31, 2005), at 2 (Testimony of The Honourable Liza Frulla, Minister of Canadian Heritage)

52. In 2005, Bill S-3 was adopted and Part VII of the OLA amended to insert subsections 41(2) and (3) and to add, in subs. 77(1), a right to file an application in Federal Court for a complaint concerning Part VII of the OLA.

53. Accordingly, since 2005, Part VII of the OLA provides inter alia for a duty incumbent on every federal institution to ensure that positive measures are taken to implement the commitment stated in subs. 41(1) of the OLA.

- An Act to amend the Official Languages Act (Promotion of English and French), S.C. 2005, c. 41, at para. 41(2).

54. In particular, section 41 provides:
    

    Government policy 41. (1) The Government of Canada is committed to (a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and (b) fostering the full recognition and use of both English and French in Canadian society.	Engagement 41. (1) Le gouvernement fédéral s’engage à favoriser l’épanouissement des minorités francophones et anglophones du Canada et à appuyer leur développement, ainsi qu’à promouvoir la pleine reconnaissance et l’usage du français et de l’anglais dans la société canadienne.
    Duty of federal institutions (2) Every federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments under subsection (1). For greater certainty, this implementation shall be carried out while respecting the jurisdiction and powers of the provinces.	Obligations des institutions fédérales (2) Il incombe aux institutions fédérales de veiller à ce que soient prises des mesures positives pour mettre en oeuvre cet engagement. Il demeure entendu que cette mise en oeuvre se fait dans le respect des champs de compétence et des pouvoirs des provinces.

55. As the Supreme Court of Canada has recognized, official language minorities can never be assured that the majority will take account of all their linguistic and cultural concerns.

-  Mahe v. Alberta, [1990] 1 S.C.R. 342, at 372

56. Accordingly, to ensure the protection and development of official language minorities, Parliament reinforced the Government of Canada’s commitment—previously interpreted by the government as only declaring a solemn and political commitment. In particular, Parliament imposed a duty on every federal institution to take positive measures, a duty subject to legal recourse in the event of inaction by federal institutions or in the event of actions that impeded the development and enhancement of the vitality of official language minority communities.

57. Contrary to what is argued by the Respondent, the legislative intent was not simply to provide a legislative basis for the government’s efforts to promote official languages. If that were the case the amendments made to section 41 of the OLA in 2005 would not have been necessary, since the 1988 OLA already provided such a foundation.

58. The Intervener maintains that the legislative intent, as expressed in the current wording of subs. 41(2) of the OLA, was instead to ensure that the promotion of linguistic duality and development of official language minority communities was a crucial part of any federal institutions’ decision-making process, when they develop programs or policies, revise them or consider their abolition.

iii. What is the scope of the duty to take “positive measures”?

59. It is important to note that the concept of “positive measure” is a new one in federal legislation. The federal government has not exercised its power to adopt a regulation (provided for in subs. 41(3) of the OLA) to clarify how the duty to take positive measures is to be implemented.

60. The Intervener contends that the interpretation suggested by the Respondent does not take account of the purpose of Part VII or of the legislative intent. By reducing this duty to a general duty to act, the implementation of which would have to be assessed by the Court in light of all the positive measures taken by all federal institutions, the Respondent is depriving this fundamental part of the Act of its meaning and compromising the accomplishment of its purpose.

61. As regards the part of the Government of Canada’s commitment regarding development of the communities, the Intervener maintains that the duty imposed on every federal institution to “take positive measures” must be interpreted so as to impose on each institution a duty to act at all times in the best interests of official language minorities, which means:

1-acting so as not to impede the development and vitality of these communities; and
2- taking a proactive approach by adopting positive measures which form part of the particular framework of their institutional mandate in order to implement the government’s commitment.

62. The duty not to impede the development of official language minority communities includes a duty to undertake an analysis of the impact of the initiative that the institution is preparing to take and to take account of the results of that analysis. Further, this duty must by necessary implication require that, where negative repercussions will probably follow, the institution must take measures that will mitigate such repercussions on the development and vitality of the communities.

63. Furthermore, the duty to take a proactive approach in promoting the vitality of official language minority communities requires that measures be taken on a continuing basis in an attempt to fulfill the special needs of those communities, and/or measures consistent with the interests of official language minority communities.

64. The two-part duty imposed by subs. 41(2)—the duty not to impede the development of official language minority communities and the duty to take specific measures to promote the vitality of those communities—means that every federal institution must be aware of the special needs of the communities and their particular nature. Such knowledge is acquired through a collaborative approach which generally takes the form of a consultation process with the official language minority communities in question, but may also include other procedures enabling an institution to familiarize itself with the needs and interests of those communities.

65. The common thread in the two parts of this duty to take positive measures is the involvement of official language minority communities in the decision-making process, in identifing their needs and interests, in the assessment of the impact of decisions that might impede the development of these communities and in identifying measures that would mitigate the harmful effects of a decision an institution is considering.

66. The Intervener is not suggesting an interpretation of Part VII that would have the effect of imposing a burden on federal institutions, in their decision-making processes, beyond obligations already provided for by the federal government in its administrative framework. The interpretation the Intervener is proposing is consistent with the Accountability Framework adopted by the federal government to implement Part VII of the OLA and the instructions issued by Canadian Heritage as a guide to federal institutions in implementing their new duties under subs. 41(2) of the OLA.

    - Accountability Framework
    - Guide for Federal Institutions

B. Type of review to be conducted by the courts

67. The Respondent argues that the discretion given institutions in subs. 41(2) as to the choice of positive measures that may be taken by those institutions should incline this Court to consider the action of the government and of institutions as a whole, without reviewing the specific measures taken or not taken by a federal institution. In doing so, the Respondent is asking this Honourable Court to transform the legal recourse provided for in Part X of the OLA into a true commission of inquiry, in which the Court would be required to consider all the measures taken by all federal institutions since adoption of Part VII in 1988.

- Trang v. Edmonton Remand Centre (Director) (2005), 363 A.R. 167

68. Further, when the Respondent asks the Court to [TRANSLATION] “exercise the greatest possible deference” when called on to consider the decisions made by a federal institution in the course of implementing its duties under Part VII of the OLA, the Respondent is asking this Honourable Court to disregard the parliamentary intention as expressed in the amendments made to the OLA in 2005. In asking this Court to exercise great deference in making its decision in the case at bar, the Respondent is seeking to introduce considerations of judicial deference that have no place in a statutory application brought pursuant to Part X of the OLA.

- Respondent’s Record, Vol. XII, Memorandum of Fact and Law, at para. 9

69. Contrary to what was argued by the Respondent, the Intervener maintains that if this Honourable Court is to give effect to the purpose of Part VII and the intention of Parliament, it must adopt an interpretation of subs. 41(2) of the OLA that would structure the decision-making process of federal institutions so as to accomplish the purpose of Part VII. Although the Court’s function is not to dictate to federal institutions the positive measures they must take, it has to determine whether an institution has demonstrated that it assessed the impact of the decision in question and took steps to mitigate the negative impact of that decision on the vitality of official language minority communties.

70. In other words, since the amendments made in 2005 to Part VII and Part X of the OLA, the decision-making process of a federal institution and the decisions that result may be the subject of review by the Commissioner and by the Federal Court.

i. OLA provides for the review of specific breaches

71. The Respondent contends that this Court’s review should deal only with the actions taken by the federal government as a whole and that only the disengagement of the federal government could lead the Court to conclude that there has been a breach of Part VII.

72. The Intervener contends that by amending Part VII of the OLA in 2005, Parliament sought not only to impose a binding duty on every federal institution to take positive measures in favour of official language minority communities, but also attempted to ensure that each institution would be required to examine the impact of each of its programs and policies on official language minority communities when making decisions or taking action relevant to those programs or policies.

73. The right of file an application provided for in Part X states that “any person who has made a complaint to the Commissioner in respect of a right or duty under … [Part] VII … may apply to the Court for a remedy under this Part.” [emphasis added]

- OLA, at para. 77(1)

74. Accordingly, the filing of a complaint with the Commissioner about a provision or a part listed in subs. 77(1) is the only prerequisite for the filing of an application in Federal Court.

75. As the Commissioner is expressly authorized to investigate complaints “arising from any act or omission to the effect that, in any particular instance or case, (a) the status of an official language was not or is not being recognized, (b) any provision of any Act of Parliament or regulation relating to the status or use of the official languages was not or is not being complied with,” including Part VII, it is clear that courts authorized to hear applications resulting from such a complaint must also have the power to decide applications filed under Part VII dealing with “any particular instance or case” under Part VII of the OLA.

- OLA, at para. 58(1)

76. In order to withdraw the Federal Court’s right to hear and decide an application concerning a specific case of non-compliance with Part VII of the OLA, Parliament would have had to amend subs. 58(1) so as to exclude from the Commissioner’s power of investigation any complaint about allegations of specific breaches by a federal institution pursuant to subs. 41(2). As Parliament specifically chose not to proceed in this way in the amendments made to Part VII of the OLA and in subs. 77(1) of the OLA, it follows that the Federal Court has the authority to decide all issues in the application filed by the Applicant regarding the decision to abolish the CCP.

ii. No deference is required by courts

77. The Intervener maintains that in a statutory application filed pursuant to quasi-constitutional legislation, as brought under Part X of the OLA, the courts do not have to exercise deference toward a decision-maker required to comply with polycentric duties.

78. Although a federal institution enjoys a measure of discretion regarding the methods it will adopt to meet the duties imposed on it under Part VII of the OLA, that does not mean that it has any discretion regarding the extent to which it will comply with the quasi-constitutional duties set out in this Part of the OLA.

79. Regarding compliance, the wording of Part VII leaves no room to manoeuvre for institutions covered by the legislation. If any such institution fails to comply with the duties set out in the legislation, the courts must conclude that there has been a breach and award the remedy that is “appropriate and just in the circumstances.”

- Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.A.), [2004] 4 F.C.R. 276, para. 53 [Forum des maires]

80. Under the rules of interpretation, this Honourable Court should adopt an interpretation of subs. 41(2) of the OLA which results in a meaningful duty for the institutions affected and makes it possible to accomplish the intent of Parliament in adopting Part VII of the OLA, so as to give effect to the commitment set out in subs. 16(3) of the Charter.

- Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505, para. 118
- Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3

81. The Intervener maintains that the Respondent’s position, according to which the courts should treat federal institutions with deference, would have the effect of making the achievement of the purposes of that Part of the OLA subject to the political will of the federal government, which is clearly contrary to the parliamentary intent in amending Part VII of the OLA.

82. In July 2004, the Federal Court of Appeal found that subs. 41(2) of the OLA (as it stood at that time) seemed to contemplate purposes “the achievement of which depends on the existence of a political will.”

- Forum des maires,at para. 37

83. In response to this judgment, section 41 was amended to insert subs. 41(2) and so require that federal institutions act to enhance the vitality of official language minority communities, regardless of political will.

84. In adopting Bill S-3, Parliament was attempting to limit the discretion which the federal government claimed to have regarding the implementation of the commitment it had made in subs. 16(3) of the Charter as well as in section 2 and Part VII of the OLA.

85. Accordingly, the Intervener is asking this Honourable Court to adopt the interpretation of subs. 41(2) that would have the effect of reflecting the meaningful duty contemplated by Parliament when it amended Part VII in 2005: an interpretation according to which institutions would be held responsible for their failure to perform their duty to develop and enhance the vitality of official language minorities.

C. Canadian Heritage has failed to perform its duties

86. The Intervener acknowledges that the federal government is entitled to govern and to review its priorities and programs and to make budgetary decisions. However, the effect of this government prerogative is not to dilute the government’s commitment to official language minority communities, nor the duties which subs. 41(2) imposes on federal institutions to implement this quasi-constitutional commitment.

87. In the case at bar, the CCP is a program which was administered by Canadian Heritage. This program was implemented as part of the measures which the Minister of Canadian Heritage had to take under subs. 43(1) of the OLA, in particular para. 43(1)(a). That paragraph provides that the Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to advance the equality of status and use of English and French in Canadian society, and in particular any measure to enhance the vitality of English and French linguistic minorities in Canada.

- OLA, at para. 43(1)

88. It can be concluded from reading section 43 of the OLA as a whole that, when the Minister of Canadian Heritage undertakes the review of a program established through the power conferred on him or her by para. 43(1)(a) to enhance the vitality of language minorities (such as the CCP), the Minister must, under subs. 43(2), ensure that there is public consultation on the matter. This duty of consultation is especially applicable when the Minister of Canadian Heritage intends to abolish a program of this kind.

- OLA, at para. 43(2)

89. Before making any decision to abolish the CCP, the Minister of Canadian Heritage was thus required to ensure that public consultations took place. In view of the significant negative impact that abolishing the CCP would have on official language minority communities, such public consultation should have been focussed both on official language minority communities and on the public in general.

90. As Canadian Heritage has presented no evidence that consultation was part of the process of reviewing this program, the Intervener contends that the Minister of Canadian Heritage failed to perform its duty to consult under subs. 43(2) of the OLA.

91. The Intervener further contends that, based on the evidence before this Court, Canadian Heritage has been unable to show, first, that the decision to abolish the CCP was the subject of any analysis of the impact on the development and enhancement of the vitality of official language minority communities, which were not consulted; and second, that alternative measures were considered to mitigate the negative impact of such a decision. These are breaches of subs. 41(2) which, indicate that the decision to abolish the CCP is vitiated and cannot be upheld.

92. The Intervener contends that, in any application having to do with Part VII of the OLA, the burden of proof is on those subject to a duty to act (here Canadian Heritage) to establish that the decision-making process which led to the government’s decision to abolish the CCP took account of the needs and interests of official language minority communities and of the impact of the decision being considered on their development and the enhancement of their vitality. Canadian Heritage further had the burden of showing that the decision-making process that led to abolition of the CCP considered alternative measures to counteract the negative impact of the decision contemplated.

93. In the course of the Commissioner’s investigation, the Respondent invoked the privilege of Cabinet confidentiality, but without complying with the procedures that must be followed in order to rely on that privilege. In such circumstances, it would be, to say the least, unfair to reverse the burden of proof on the Applicant and require the latter to present evidence of a failure by Canadian Heritage in (i) not considering the impact of abolishing the CCP on official language minority communities, (ii) not taking into account the negative impact of such a decision, and (iii) not considering the adoption of alternative measures to mitigate the negative impact of the decision to abolish the CCP.

94. Without any evidence to show that Canadian Heritage complied with the requirements and duties set out in subs. 41(2) and that the Minister of Canadian Heritage complied with subs. 43(2) of the OLA in the course of the decision-making process at issue, and in view of the overwhelming evidence as to the negative impact which the decision to abolish the CCP had and will continue to have on the enhancement of the vitality and the development of official language minority communities, the Intervener contends that the disputed decision is vitiated and cannot be upheld.

- The COL’s Final Investigation Report, Motion Record of the COL
- Study of the Legal Impact, Motion Record of the COL

PART IV – ORDER SOUGHT

The Intervener submits this memorandum in support of the position put forward by the Applicant.

Respectfully submitted.

Ottawa, December 21, 2007.

PART V – LIST OF CASE LAW AND SECONDARY MATERIALS

LEGISLATION

Department of Canadian Heritage Act, S.C. 1995, c. 11

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

Act to amend the Official Languages Act (Promotion of English and French), S.C. 2005, c. 41

Bill S-4, Act to amend the Official Languages Act (Promotion of English and French), 3d Sess., 37th Parl., 2004; Bill S-11, Act to amend the Official Languages Act (Promotion of English and French), 2d Sess., 37th Parl., 2003; Bill S-32, Act to amend the Official Languages Act (Promotion of English and French), 1st Sess., 37th Parl., 2002

CASE LAW

Canada (Attorney General) v. Viola (C.A.), [1991] 1 F.C. 373

Charlebois v. Saint John (City), [2005] 3 S.C.R. 563

Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.A.), [2004] 4 F.C.R. 276

Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577

Lavigne v. Canada (Office of Commissioner of Official Languages), [2002] 2 S.C.R. 773

Mahe v. Alberta, [1990] 1 S.C.R. 342

R. v. Beaulac, [1999] 1 S.C.R. 768

Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721

Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference Re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201

Trang v. Edmonton Remand Centre (Director) (2005), 363 A.R.167

COMMENTARY

House of Commons Debates, 1st Sess., 38th Parl., 059 (February 17, 2005) (Hon. Raymond Simard, Parliamentary Secretary to the Deputy Leader of the Government in the House of Commons and Minister responsible for Official Languages)

Transcript and Testimony of Legislative Committee on Bill C-72, Act respecting the Status and Use of the Official Languages of Canada, 2d Sess., 33d Parl., No. 3 (March 24, 1988) (Testimony of Hon. David Crombie, Secretary of State of Canada)

Transcript and Testimony of Standing Committee on Official Languages, 1st Sess., 38th Parl., No. 33 (May 18, 2005) (Testimony of Hon. Raymond Simard, Parliamentary Secretary to Deputy Leader of Government in House of Commons and Minister responsible for Official Languages)

Transcript and Testimony of Standing Committee on Official Languages, 1st Sess., 38th Parl., No. 35 (May 31, 2005) (Testimony of Hon. Liza Frulla, Minister of Canadian Heritage)

Transcript and Testimony of Standing Committee on Official Languages, 1st Sess., 38th Parl., No. 37 (June 9, 2005) (Testimony of André Braën, professor, Civil Law Faculty, University of Ottawa)

Transcript and Testimony of Standing Committee on Official Languages, 1st Sess., 38th Parl., No. 38 (June 14, 2005) (Testimony of Pierre Foucher, professor of law, University of Moncton)

Transcript and Testimony of Standing Committee on Official Languages, 1st Sess., 38th Parl., No. 39 (June 16, 2005) (Testimony of Jean-Guy Rioux, president of FCFA, and Rénald Rémillard, director general, Fédération des associations des juristes d’expression française de common law)

Transcript and Testimony of Standing Committee on Official Languages, 1st Sess., 38th Parl., No. 44 (October 6, 2005) (Testimony of Dyane Adam, Commissioner of Official Languages)

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes, 4th ed., Markham, Butterworths, 2002

REPORTS

Privy Council Office, Official Languages Accountability and Coordination Framework, Appendix A of The Next Act: Momentum for Canada’s Linguistic Duality, The Action Plan for Official Languages, 2003

Office of the Commissioner of Official Languages, Annual Reports from 1989 to 2004-2005

Goreham, Richard, Language Rights and Court Challenges Program: A Review of its Accomplishments and the Impact of its Abolition, report submitted to Commissioner of Official Languages, Office of Commissioner of Official Languages, 1992