Forum des maires de la péninsule acadienne
No.: A-467-03
FEDERAL COURT OF APPEAL
BETWEEN:
THE CANADIAN FOOD INSPECTION AGENCY
Appellant
- and -
LE FORUM DES MAIRES DE LA PÉNINSULE ACADIENNE
Respondent
- and -
THE COMMISSIONER OF OFFICIAL LANGUAGES
Intervener
- and -
LA SOCIÉTÉ DES ACADIENS ET ACADIENNES DU NOUVEAU-BRUNSWICK
Intervener
MEMORANDUM OF FACT AND LAW OF THE INTERVENER,
THE COMMISSIONER OF OFFICIAL LANGUAGES
Office of the Commissioner of Official Languages
Legal Affairs Branch
344 Slater Street, 3rd Floor
Ottawa, Ontario
K1A 0T8
Telephone (613) 995-0724
Fax (613) 996-9671
Pascale Giguère
Counsel for the intervener,
the Commissioner of Official Languages
TABLE OF CONTENTS
I. Appellant’s allegation of absence of link between the relief and the breach
OVERVIEW
1. In this appeal, the Attorney General of Canada (“the Attorney General”) is not questioning the conclusions arrived at by the Commissioner of Official Languages (“the Commissioner”), that the Canadian Food Inspection Agency (“the Agency”) did not comply with its language obligations under Part IV of the OLA. The appellant has also accepted the Commissioner’s conclusions regarding Part VII of the OLA and indicated to the Commissioner that it expected to [TRANSLATION] “take the necessary action” to comply therewith. In his memorandum, the Attorney General confirmed that [TRANSLATION] “the Agency accepts the Commissioner’s recommendations” and is continuing to make the necessary adjustments to correct deficiencies.
2. Instead, the question raised by the Attorney General concerns the exercise of the Court’s discretion under s. 77(4) of the OLA. More specifically, the Attorney General argued that the trial judge erred in exercising his discretion and asked this Court to [TRANSLATION] “take the implementing measures which the trial judge should have taken.” To this end, the Attorney General examined the [TRANSLATION] “path” of the Court in challenging the trial judge’s conclusions.
3. However, in the Commissioner’s opinion the Court made no error when it concluded, on the basis of the evidence in the record, that the Agency had failed to carry out its linguistic obligations, and by granting such release as it considered “appropriate and just” pursuant to the very broad discretion conferred on the Court by s. 77(4) of the OLA.
4. Further, in exercising its discretion to grant such remedy “as it considers appropriate and just in the circumstances,” the Court had a statutory mandate to examine any breach of the Act, including the Agency’s failure to act in accordance with Part VII of the OLA. By taking this aspect into account, the trial judge only carried out the Court’s statutory mandate under s. 77(4) of the OLA.
PART I - Facts
5. In October 1999 the Commissioner received a complaint from the Forum des maires de la péninsule acadienne (“Forum des maires”) concerning the administrative reorganization of the Agency at its Shippagan office in New Brunswick.
Investigation Report of the Commissioner of Official Languages, July 2001, Appeal Book, Vol. 1, Tab D, p. 46.
6. In July 2001 the Commissioner filed a final investigation report in which she concluded that (1) the Agency had not completely fulfilled its obligations under Part IV of the Official Languages Act (“OLA”) and that (2) the Agency had ignored the requirements contained in Part VII of the OLA.
Investigation Report of the Commissioner of Official Languages, July 2001, Appeal Book, Vol. 1, Tab D, p. 54.
7. In view of the conclusions in her investigation, the Commissioner recommended that within six months following the publication of her report the Agency:
- review the delivery of inspection services in the Acadian Peninsula to ensure they are offered and made available in both official languages, in accordance with the requirements of Part IV of the OLA;
- ensure that all decisions regarding the delivery of these services support the development of the Francophone community and the recognition and use of French to the full extent of its mandate, in accordance with Part VII of the OLA; and
- revise its national Official Languages Policy to take account of the government’s commitment as set out in Part VII of the OLA.
Investigation Report of the Commissioner of Official Languages, July 2001, Appeal Book, Vol. 1, Tab D, pp. 55-56.
8. The Forum des maires then made an application to the Federal Court pursuant to s. 77(1) of the OLA, seeking a remedy for the Agency’s failure to carry out its obligations under Part IV of the OLA.
Notice of Application to Federal Court, September 28, 2001, Appeal Book, Vol. 1, Tab C, pp. 39-42.
9. The hearing was adjourned to allow the Commissioner to complete her follow-up report. In that report, dated May 2003, the Commissioner concluded that none of her recommendations had been implemented by the Agency in a fully satisfactory manner.
Final Report on the Follow-up to the Investigation Report of the Commissioner of Official Languages, May 2003,, Appeal Book, Vol. 2, Tab O, pp. 502-518.
10. In his reasons delivered on September 8, 2003, Blais J. of the Federal Court concluded that the action was valid since, in his opinion, the Agency had "infringed the statutory language rights in the OLA."
Reasons for Order and Order by Blais J., September 8, 2003, Appeal Book, Vol. 1, Tab B, p. 23.
11. Consequently, Blais J. allowed the application and set aside the Agency’s decision to transfer the positions of four seasonal workers from Shippagan to Shediac.
Reasons for Order and Order by Blais J., September 8, 2003, Appeal Book, Vol. 1, Tab B, p. 23.
12. The trial judge also considered the appropriate and just remedy in the circumstances and ordered various forms of relief “in accordance with the powers to grant the relief that is considered appropriate and just in the circumstances, under subsection 77(4) of the OLA.”
Reasons for Order and Order of Blais J., September 8, 2003, Appeal Book, Vol. 1, Tab B, pp. 23-25.
13. In the case at bar, the Agency is appealing that decision.
PART II - POINTS AT ISSUE
14. Did the trial judge commit an error in granting “the relief that is considered appropriate and just in the circumstances” pursuant to s. 77(4) of the OLA?
PART III - LEGAL ARGUMENT
15. The appellant maintained that the trial judge erred on two levels. First, it was alleged that the trial judge made a fundamental error in using his powers under 77(4) to order the restitution of the positions of four seasonal inspectors, since in the appellant’s view there is no link between the relief ordered and the breach of the OLA. Second, it was alleged that the trial judge erred in his [TRANSLATION] “path,” so much so that he [TRANSLATION] “distorted the entire structure of the rights and undertakings set out in the OLA.” The Commissioner will indicate her position on these two allegations below.
I. APPELLANT’S ALLEGATION OF ABSENCE OF LINK BETWEEN THE RELIEF AND THE BREACH
16. Although in the Commissioner’s opinion the question of the remedy that is “appropriate and just in the circumstances” is one that is exclusively a matter for the Court’s very broad discretion, the Commissioner nevertheless wishes to comment on the appellant’s submissions in support of its position in this appeal.
17. At para. 42 of his memorandum the Attorney General alleged that the Commissioner’s Report [TRANSLATION] “refuses to make a causal link between the breaches . . . and the abolition of the positions. For the Commissioner, that abolition is a matter of internal administration which is more a question of the management of resources than of official languages.”
Appellant’s Memorandum, p.14, para. 42.
18. This allegation is surprising to say the least since, contrary to what the Attorney General maintained, the Commissioner’s Report clearly makes a causal link between the Agency’s decision to abolish four positions in the Shippagan office and the conclusion that Part IV of the OLA was not carried out in the case at bar:
It was obvious to us that the relocation of employees from Shippagan and the subsequent restructuring within the Agency did not systematically take account of the Agency’s obligations under Part IV of the OLA.
and:
Based on our investigation, we conclude that the Agency’s decisions did not allow it to fully meet its obligations under Part IV of the OLA (services to the public) . . . The Agency’s decisions resulted in the disappearance of four federal government jobs from the Acadian Peninsula, four well-paying, indeterminate-seasonal positions. [Emphasis added.]
Investigation Report of the Commissioner of Official Languages, July 2001, Appeal Book, Vol. 1, Tab D, pp. 51 and 54.
19. Further, although the Commissioner did not specifically recommend that the four positions in question be restored, the Investigation Report indicated that the Commissioner’s recommendations were based on the conclusions of the investigation, including the Commissioner’s conclusion that the Agency’s decision to abolish four positions had not been taken in accordance with the language obligations imposed by Part IV of the OLA:
Given the conclusions we reached during our investigation, the Commissioner recommends that the Canadian Food Inspection Agency, within six months following the publication of this report . . . [Emphasis added.]
Investigation Report of the Commissioner of Official Languages, July 2001, Appeal Book, Vol. 1, Tab D, p. 55.
20. Additionally, the Report expressly indicated that the Commissioner expected the Agency to comply with her recommendations. Although the Commissioner did not specify the manner of such compliance (recognizing that this question comes under the managerial power of federal institutions), the Commissioner noted that the progress in implementing her recommendations would be determined by a follow-up to be made later.
21. In the case at bar, based on the evidence in the record, the trial judge considered that restitution of the positions was justified. Under the broad discretion at the Court’s disposal pursuant to s. 77(4), the Commissioner considers there to be no reason to question the Court’s conclusions regarding what is “appropriate and just in the circumstances.”
II - APPELANT’S ALLEGATION THAT THE TRIAL JUDGE “DISTORTED” THE ENTIRE STRUCTURE OF RIGHTS CONFERRED BY THE OLA22. The Attorney General wrongly alleged that the trial judge [TRANSLATION] “distorted” the entire structure of rights conferred by the OLA by misunderstanding the purpose of the remedy created by s. 77 of the OLA and the part that the Commissioner’s reports may play in such a remedy. The Attorney General further alleged that the judge erred in his [TRANSLATION] “approach,” by transforming the political commitment in Part VII of the OLA into a binding decision-making procedure. In the Commissioner’s view, these allegations are completely without basis since the Court made no error in its approach and in no way [TRANSLATION] “distorted” the nature of the rights conferred by the OLA.
A. Structure of rights conferred by the OLA
1. Purpose of applications under 77(1) of the OLA
23. Part X of the OLA, titled “Court Remedy,” confers a statutory right of action in s. 77. It contains very specific provisions dealing with several matters, including who may exercise the right (77(1)), within what deadlines (77(2)), before what court (76), and by what procedure (80), as well as the powers the Federal Court enjoys in such an application (77(4)).
a) Who may bring an application under the OLA?
24. Section 77(1) of the Act expressly identifies who may bring an application:
77. (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part.Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, s. 77(1).
25. Section 77(1) sets out the “eligibility requirement” for “apply[ing]” to the Federal Court “for a remedy.” Accordingly, not all complainants are able to apply to the Court. Only those who have made a complaint to the Commissioner in respect of the sections or parts mentioned in s. 77(1) of the OLA may do so.
26. A single complaint may relate to several provisions of the OLA. In such a case, the complainant is eligible to apply to the Federal Court for a remedy under the OLA if he or she meets the threshold established by the eligibility requirement contained in s. 77(1), that is, that the complaint at least relates to one of the provisions mentioned in s. 77(1). Consequently, at this stage it is not relevant that the complaint may relate to other provisions of the Act – whether mentioned or not – as a complainant will not be any more eligible if his or her complaint relates to several of the provisions mentioned in 77(1).
27. Similarly, a complainant is not disqualified from bringing an action under 77(1) if his or her complaint goes beyond the list of provisions mentioned and relates to other provisions of the OLA. What is important is to determine whether his or her complaint relates to at least one of the provisions or parts of the Act mentioned in 77(1). However, as the trial judge noted, the OLA provides for no possibility of a remedy when only one breach of Part VII is in question (although an action is possible under the Federal Court Act). At the same time, it is not necessary to decide this question since the Forum des maires met the minimum requirements contained in s. 77(1) of the OLA for applying to the Federal Court for a remedy.
28. In s. 77(2), Parliament imposed a specific deadline for the filing of an action in the Federal Court. This is another requirement a complainant must meet to proceed with an application under the OLA.
29. It can thus be said that Parliament took care in drafting the provisions of the Act dealing with the judicial remedy procedure under the OLA. No part of the procedure is left to chance.
30. In the case at bar, the Forum des maires met the conditions laid down for applying for a remedy under 77(1), since in October 1999 it filed a complaint with the Commissioner that inter alia related to the Agency’s obligations under Part IV of the OLA. The Forum des maires thereby accordingly acquired a statutory right to appeal to the Court.
b) Court’s power in applications under the OLA
31. Section 77(4) sets out the Court’s power once a complainant has applied to the Court:
77. (4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances. [Emphasis added.]
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, s. 77(4).
32. Once again, nothing is left to chance: Parliament has been careful to specify the Court’s power in a remedy under the OLA. This statutory mandate involves determining whether the federal institution has complied “with this Act.”
33. Contrary to what the appellant argued, Parliament has not limited the scope of s. 77(4) to [TRANSLATION] “a specific case,” but instead has authorized the Court to assess the action taken by the federal institution in question in terms of the OLA as a whole.
34. The Court’s broad discretion under 77(4) even allows it to grant relief other than that sought by the applicant in its originating motion:
...s. 77(4) gives this court in addition to its power of review jurisdiction to grant a remedy if it concludes that a federal institution has not complied with the Act.
[…]
In my opinion the exercise of this ancillary power does not depend on what was alleged in the originating motion. This court has jurisdiction to grant relief in every case where it finds that an institution has failed to comply with the Act, so long as it considers doing so is appropriate and just in the circumstances. [Emphasis added.] [Nous soulignons]
Côté v. Canada (1994), 78 F.T.R. 65, at paras. 9 and 12.
35. If Parliament had intended to limit the scope of 77(4), it would have used language similar to that used in 77(1). However, Parliament was careful to expressly mention the Court’s power to consider every breach of the Act, which necessarily includes Part VII of the OLA.
36. Consequently, the Federal Court was justified in weighing the Agency’s actions in terms of the linguistic obligations imposed under Parts IV and VII of the OLA. Furthermore, on finding that those obligations had not been carried out, the trial judge could exercise his discretion to grant a remedy that was “appropriate and just in the circumstances.”
37. Further, it should be noted that the judge could still have exercised his discretion to grant a remedy even if he had concluded that the Agency committed a breach of only one of its obligations under the OLA. The fact that the trial judge concluded, based on the evidence in the record, that the Agency had failed to perform its obligations under Parts IV and VII of the OLA only broadens the justification for exercising the Court’s extensive discretion to fashion a remedy that is “appropriate and just” in all the circumstances.
2. Function of Commissioner’s investigation reports in applications under the OLA
38. Part IX of the OLA sets out an investigation process that has been carefully and specifically designed, and this of itself indicates the importance attached to that process by Parliament. Broad investigative powers are vested in the Commissioner. Some of these powers are similar to those of a superior court of record. The Commissioner may submit directly to the Governor in Council, and subsequently to Parliament, a copy of any investigation report containing recommendations regarding such federal institutions as she sees fit.
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, Part IX.
39. Contrary to what the appellant argued, this process shows that the Commissioner’s investigation reports are much more than the mere collection of [TRANSLATION] “anecdotes.”
40. In an action brought under the OLA, the Commissioner’s Report is evidence the Court may take into account:
The Commissioner may report her findings following an investigation . . . While such reports are not binding on a court, they constitute evidence that is to be taken into consideration upon an application for a remedy under the Act.
M. Power and A. Braën, “The Enforcement of Language Rights”, in Michel Bastarache (ed.) Language Rights in Canada, 2d ed., Les Éditions Yvon Blais, 2004, p.584
See also Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586, at para. 59.
41. It goes without saying that the Court must draw its own conclusions on whether a federal institution has complied with the OLA, but in arriving at such a conclusion the Court will consider the evidence as a whole, including the Commissioner’s investigation reports.
42. In the case at bar, the investigation report and follow-up report of the Commissioner were in the Court’s record. After citing the relevant supporting precedents as to the weight to be given to this evidence, the trial judge concluded:
Consequently, I am of the opinion that this Court should take account of the conclusions of the Commissioner’s Report, given that on the one hand the respondent has not seriously contradicted them and on the other hand I agree with these conclusions. [Emphasis added.]
Reasons of Blais J., September 8, 2003, Appeal Book, Tab B, p. 15, para. 33.
43. In his Memorandum the Attorney General accepts the principle that the Commissioner’s opinions in her reports deserve consideration by the Court, but maintains that the trial judge went too far in taking the Commissioner’s conclusions [TRANSLATION] “as proven.” However, the reasons the trial judge accepted the Commissioner’s conclusions of fact are clearly indicated in the Court’s judgment. Further, it is hardly surprising that a judge would more readily accept uncontradicted evidence.
3. Agency’s obligations under Part VII of the OLA
44. In his memorandum the Attorney General argued that Part VII gives rise to no right or obligation. Specifically, the Attorney General maintained that a [TRANSLATION] “teleological approach by the OLA makes it possible to conclude that Part VII sets out a commitment of a political nature” and that “Parliament did not intend to make Part VII of the OLA a source of obligations for the Government.”
Appelant’s Memorandum, pp. 16, 17 and 21, paras. 49, 50 and 63.
45. Contrary to what the appellant argued, a teleological approach actually shows the compelling effect Parliament intended to give Part VII of the OLA.
a) Interpretation of Part VII in accordance with the purpose of the OLA
46. Part VII of the OLA, titled “Advancement of English and French” in Canadian society, is designed to carry out the purpose underlying the OLA. That purpose, set forth in s. 2 of the OLA, is inter alia to “support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society.”
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, s. 2.
47. This purpose is also reflected in the preamble to the OLA and is one of the pillars on which any interpretation of the letter and spirit of the OLA rests.
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, Preamble.
48. The Government’s responsibility to carry out the purpose of the OLA, through the performance of its duties, is especially specific and clearly set out in s. 41 of the OLA:
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.
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, s. 41.
49. By means of s. 41, Parliament was careful to firmly implant the express confirmation of the principle contained in s. 16 of the Charter. The very specific wording of the purposes of the Act, contained in s. 2 of the OLA, and in particular that concerning the development of English and French linguistic minorities and fostering progress towards equality of status and use for French and English, is thus not simply the expression of a political commitment, but a specific constitutional objective which must henceforth guide and condition the actions of federal institutions.
[TRANSLATION] ...[B]y introducing Part VII, and in particular s. 41, Parliament did not limit itself to a statement of intent, but created a positive obligation for the federal government to act to respect the spirit of s. 16(1) and (3) of the Charter.
R.B. Asselin, “L’article 41 de la Loi sur les langues officielles: portée, évolution et régime d’application”, Library of Parliament, Parliamentary Research Branch, 2001, PRB 01-9F (published on the Internet at http://www.parl.gc.ca/information/library/PRBpubs/prb019-f.htm)
50. Accordingly, if we are to correctly interpret the obligations imposed on federal institutions by Part VII, we have to take into account both the statement in the Preamble and the actual provision setting out the purpose of the OLA as well as Part VII, indicating how this responsibility is framed.
b) Part VII: source of obligations for government
51. As the Federal Court has already indicated, the Government’s commitment imposes on it a twofold obligation, to
- enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development; and
- foster the full recognition and use of both English and French in Canadian society.
Professional Institute of the Public Service v. Canada, [1993] 2 F.C. 90, at 107.
52. According to the Federal Court, this policy “commitment” is not simply a pious wish but is actually a “duty” which must be exercised in concrete terms.
In the case before me, it is obvious that there exists under the Official Languages Act a broad picture and a narrower one. The object of the Act is not only to permit the use of our official languages and give citizens the right to deal with federal institutions in the language of their choice. It is more than that. It is to promote the use of both languages or, as expressed in the Act’s preamble, “enhancing the vitality and supporting the development of English and French linguistic minority communities.” Such a policy commitment by the Government of Canada imposes a double duty which must sooner or later be exercised in concrete terms. [Emphasis added].
Professional Institute of the Public Service v. Canada, [1993] 2 F.C. 90, at 107.
53. Section 41 of the OLA therefore sets out a clear commitment for the government and gives rise to a positive duty, which is executory in nature, to carry the purpose of the OLA to completion.
[TRANSLATION] Thirteen years after s. 41 of the OLA was adopted, it is difficult to say with certainty whether the federal government has done justice to the intentions stated by Parliament in 1998. However, it is clear that Parliament’s intentions at the time the OLA was adopted and the Supreme Court judgments on language rights since the Reference on the Secession of Quebec tend to show that there is a positive obligation on the Canadian government to act in accordance with the purposes described in s. 16(1) and (3) of the Charter, which find their application in s. 41 of the OLA. The means used to comply with this obligation may of course vary and their effectiveness must be determined in accordance with the results obtained. [Emphasis added.]
R.B. Asselin, “L’article 41 de la Loi sur les langues officielles: portée, évolution et régime d’application”, supra.
54. Further, the government’s commitment set out in s. 41 of the OLA must be read in the context of s. 42 of the OLA, which prescribes its implementation in binding terms, imposing specific responsibilities on the Minister of Canadian Heritage and on federal institutions as a whole.
55. In s. 42 Parliament used peremptory language, which accurately reflects the executory nature of the implementation of the commitment stated in s. 41 of the OLA. In our opinion, the binding nature of this shared obligation can be seen from reading the French and English versions of s. 42. The binding force of this responsibility is even more clearly confirmed by Parliament’s decision to use the word “shall” in the wording of the English version: “[The Minister] shall encourage and promote a coordinated approach to the implementation by federal institutions of the commitments set out in section 41.” [Emphasis added.
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, s. 42.
P.-A. Côté, The Interpretation of Legislation in Canada, 3d ed., Les éditions Thémis, 1999, pp. 287-305 and 408-419.
56. Sections 43 and 44 of the OLA, which refer more specifically to the particular responsibilities of the Minister of Canadian Heritage, also use the binding “shall” in the English version, regarding the implementation of the commitment stated in s. 41 of the OLA.
Official Languages Act, R.S.C. 1985 (4e Supp.), c. 31, ss. 43 and 44.
57. In short, a teleological interpretation of s. 41, which also takes into account other provisions of Part VII of the OLA, clearly indicates Parliament’s intent to make this part executory. Additionally, s. 41 is quasi-constitutional in nature and always has full legal effect.
Lavigne v. Canada (Office of Commissioner of Official Languages), [2002] 2 S.C.R. 773, at 786, para. 21.
c) Implementation of Part VII by federal institutions
58. In his memorandum the Attorney General argued that the application of Part VII [TRANSLATION] “is exclusively entrusted to the government” and that “Parliament gave the government the task of giving concrete form to the solemn commitment in Part VII.”
Appellant’s Memorandum, pp. 16, 22 and 23, paras. 49, 63, 64 and 65.
59. However, this argument completely disregards the wording of s. 42 of the OLA, which clearly and expressly commits federal institutions – such as the appellant – to the implementation of the federal government’s commitment stated in s. 41:
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. [Emphasis added.]
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, s. 42.
60. In the case at bar, therefore, the Agency has an obligation to act in accordance with the government’s commitment set out in s. 41 of the OLA, which it has been made responsible for implementing. In particular, the Agency is required to take measures to carry out the federal government’s commitment, taking that commitment into account in its decision-making process and the exercise of its discretion when its decisions are likely to have an impact on the development of official language minority communities.
61. Consequently, in performing its mandate the Agency had a “positive” duty to enhance the vitality of the Francophone community in New Brunswick and foster the full recognition of French in that province. At the very least, the Agency had an implicit duty [TRANSLATION] “not to impede” the principle of progress mentioned in s. 41 of the OLA.
62. In practice, the Agency necessarily had to take into account the repercussions its decisions would have on the development and enhancement of the official language minority in New Brunswick.
63. In the case at bar, the Agency did not even consult the minority community on the proposed changes, and furthermore admitted that it did not take the OLA into account when it was transferring the positions. This is the very evidence on which the trial judge relied in concluding that he should expressly recognize a breach of Part VII of the OLA.
B. Validity of trial judge’s conclusions
64. As the Attorney General recognized in para. 39 of his Memorandum, [TRANSLATION] “a broad remedial power” is vested in the Federal Court, which it may exercise when there has been a [TRANSLATION] “breach of the obligations imposed by the Official Languages Act” on the part of a federal institution.
1. Stage one: determining breach(es) of OLA
65. In the case at bar, the trial judge concluded that the Agency had failed to carry out its linguistic obligations under the OLA. This conclusion was based on the evidence in the record.
Consequently, I am of the opinion that this Court should take account of the conclusions of the Commissioner’s Report, given that on the one hand the respondent has not seriously contradicted them and on the other hand I agree with these conclusions.
I am especially of this view because, like the conclusions of the Report, during his cross-examination the respondent’s executive director, Régis Bourque, acknowledged that when the decision that is the subject matter of this application for judicial review was made, it was based on the workload in the northeastern regions of the province. The official languages question was considered only after the tabling of the Report of the Commissioner. [See note 7 below] It is therefore possible for this Court to confirm [See note 8 below] the de facto violation of the rights under Part IV of the OLA. [Footnotes omitted – emphasis added.]
Reasons of Blais J., September 8, 2003, Appeal Book, Tab B, pp. 15-16, paras. 33-35..
66. Besides concluding that there had been a breach of Part IV of the OLA by the Agency, the judge also reviewed the Agency’s actions in terms of Part VII of the OLA. In his reasons, the trial judge noted that:
[A]s the respondent’s executive director, Régis Bourque, actually admitted, Part VII of the OLA was not considered when the decision was made.
Reasons of Blais J., September 8, 2003, Appeal Book, Tab B, p. 20, para. 48.
67. Further, although the judge mentioned the Commissioner’s conclusion that Part VII of the OLA imposed on the Agency a duty to consult the official language minority community before making its decision, the judge actually relied on the statements by the Agency itself in concluding he should expressly recognize that there was a breach of Part VII of the OLA.
68. Having concluded there was a breach of the language obligations imposed by the OLA, the trial judge could thus move on to the second stage of the analysis, namely determining the remedy that was “appropriate and just in the circumstances.”
2. Stage two: exercise of discretion to grant remedy
69. The real point at issue in the appeal at bar is the exercise by the trial judge of the very broad discretion conferred on the Court under 77(4). In particular, the Attorney General is asking this Court to review the merits of the case and determine whether the specific measures ordered by the trial judge are “appropriate and just” in the circumstances or whether this Court should intervene.
70. The Commissioner supports the argument that the appropriate test for the exercise of the Court’s discretion is that recently articulated by the Supreme Court of Canada in Doucet-Boudreau, as adopted in the arguments of the Forum des maires and the intervener, the SAANB.
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, paras.55-59.
71. In the case at bar, the Commissioner maintains that nothing in the measures granted by the trial judge infringes the criteria of what is “appropriate and just.”
PART IV - CONCLUSION SOUGHT
72. For all these reasons, the intervener asks the Court to dismiss the appeal.
Respectfully submitted,
Ottawa, April 16, 2004.
Pascale Giguère
Counsel for the intervener
Commissioner of Official Languages
Office of the Commissioner of Official Languages
Legal Affairs Branch
344, Slater Street, 3d Floor
Ottawa, Ontario K1A 0T8
Telephone (613) 995-0724
Fax (613) 996-9671
PART V - LIST OF AUTHORITIES CITED
Legislation
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, Preamble, ss. 2, 41, 42, 43, 44, 76, 77, 77(1), 77(4) and 80.
Cases cited
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3.
Professional Institute of the Public Service v. Canada, [1993] 2 F.C. 90.
Côté v. Canada (1994), 78 F.T.R. 65.
Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586.
Lavigne v. Canada (Office of Commissioner of Official Languages), [2002] 2 S.C.R. 773.
Commentary
M. Power and A. Braën, “The Enforcement of Language Rights,” in Michel Bastarache (ed.), Language Rights in Canada, 2d ed., Les Éditions Yvon Blais, 2004, p.584
R.B. Asselin, “L’article 41 de la Loi sur les langues officielles: portée, évolution et régime d’application,” Library of Parliament, Parliamentary Research Branch, 2001, PRB 01-9F (published on the Internet at http://www.parl.gc.ca/information/library/PRBpubs/prb019-f.htm)
P.-A. Côté, The Interpretation of Legislation in Canada, 3d ed., Les éditions Thémis, 1999
