Notes
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69 Public Service Official Languages Exclusion Order (1977), SOR/77-886, subsequently replaced by SOR/81 787.
70 Kelso v. The Queen, [1981] 1 S.C.R. 199.
71 Schreiber v. Canada, Federal Court (Trial Division), [1999] F.C.J. No. 1576; T-1770-94.
72 See subsection 35(1)(a) of the OLA. For more specific duties related to the work place see section 36.
73 Subsection 82(1) provides that “in the event of any inconsistency” between any other Act of Parliament or regulation and Parts I, II, III, IV, and V of the OLA, the latter provisions prevail.
74 The equality principle is also set out in the OLA at section 2. In referring to the principle and its interpretation in Beaulac, the Federal Court said: “In applying the purposive approach adopted in Beaulac v. The Queen ... the starting point must be section 2 of the Official Languages Act. That section articulates in expansive and powerful terms the purpose of the Act, including the equality of status and equal rights and privileges of the use of English and French ‘in all federal institutions ... in communicating with or providing services to the public and in carrying out the work of federal institutions.’ Section 2 therefore affirms the substantive equality of the language rights recognized in the enactment. As indicated at page 791 of Beaulac v. The Queen ... the principle of substantive equality has meaning, and provides that institutionally based language rights ...‘require government action for their implementation and therefore create obligations for the State’.” Supra, note 71, at para. 128.
75 Canada (A.G.) v. Viola, [1991] 1 F.C. 373, at p. 386.
76 Paragraph 36(1)(a)(I) of the OLA states that “every federal institution has the duty, in the National Capital Region ... to make available in both official languages to officers and employees of the institution ... services that are provided to officers and employees, including services that are provided to them as individuals and services that are centrally provided by the institution to support them in the performance of their duties.”
77 Leduc v.The Queen (Foreign Affairs and International Trade Canada); Federal Court of Canada, Trial Division, [2000] F.C.J. No. 716, May 26, 2000; T-1953-94.
79 The court also concluded that, even if a breach of a provision in the OLA had been proven, there was no causal link between it and the termination of the complainant’s employment with the department. See para. 20 of the decision.
80 In cases where important questions of law are raised, a court is authorized to issue its decision in one official language if delays associated with bilingual issuance would be “prejudicial to the public interest” or result “in injustice or hardship to any party to the proceedings.” See subsection 20(2)(b) of the OLA.
81 Devinat v. Canada (Immigration and Refugee Board); [2000] 2 F.C. 212, Federal Court of Appeal, November 29, 1999.
82 For a complete summary of the background to this matter and the decision rendered by the trial judge see: The Equitable Use of English and French before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers, at pp. 40-44; Commissioner of Official Languages; Public Works and Government Services Canada; Cat. No. SF 31-37/1999; IBSN 0-662 64056-X. For the trial level decision see: Federal Court File No. T-2062-96 (Mr. Justice Nadon, May 1, 1998).
83 Supra, note 81, at para. 58.
84 The Equitable Use of English and French before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers, supra, note 82, at p. 40.
85 Supra, note 81, at para. 71.
86a Mr. Devinat’s motion for leave to appeal was dismissed by the Supreme Court of Canada on October 12, 2000.
86b With respect to the language used by judges and adjudicators see the Commissioner’s study: The Equitable Use of English and French before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers, supra, note 82, at pp. 34-37.
87 This decision is contained in a memorandum dated June 10, 1999, from the Chairman of the Copyright Board, John. H. Gomery, to the Secretary of the Board, Claude Majeau, and attached to the official designation of the members of the board selected to hear the matter of private copying 1999-2000.
88 The chairman referred to a decision of the Supreme Court which established that “whether an administrative decision or order is one required by law to be made on a judicial or non-judicial basis will depend in large measure upon the legislative intention. If Parliament has made it clear that the person or body is required to act judicially, in the sense of being required to afford an opportunity to be heard, the courts must give effect to that intention. But silence in this respect is not conclusive.” See Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at p. 503. The chairman also cited a number of criteria identified by the Supreme Court in this judgment relevant to deciding if a tribunal is exercising adjudicative functions.
89 Belair v. Canada (Solicitor General), Federal Court (Trial Division), [2000] F.C.J., no. 199; T-1413-98.
90 He cited Martineau v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118 (Martineau No. 1) and [1980] 1 S.C.R. 602 (Martineau No. 2).
