4.6 Language rights in the Northwest Territories
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Northwest Territories (Attorney General) v. Fédération Franco-ténoise163
This appeal and cross-appeal concerned the scope of language rights in the Northwest Territories arising from the Northwest Territories’ Official Languages Act (NWT OLA).164 The case, on appeal from the judgment of the Supreme Court of the Northwest Territories,165 was the first occasion for judicial interpretation of the NWT OLA, and raised important issues about the nature and extent of the rights provided.
The plaintiffs (respondents and cross-appellants) were the community-based Fédération franco-ténoise (FFT), Éditions Franco-ténoises/L’Aquilon (a French-language newspaper) and five individual members of the Francophone community. They sought a declaration, damages and other specified relief arising from alleged breaches of their language rights against the Attorney General of the Northwest Territories, the Commissioner of the Northwest Territories, the Speaker of the Legislative Assembly of the Northwest Territories and the Languages Commissioner of the Northwest Territories (collectively, the appellants), as well as the Attorney General of Canada (AGC).
The Commissioner of Official Languages of Canada was granted intervener status in the appeal, which was heard in November 2007.
A. The order granted at trial
The first ground of appeal concerned some of the remedies granted by the trial judge. The trial judge found that the alleged breaches of the OLA were not isolated incidents, but represented examples of systemic deficiencies resulting from a persistent refusal by the Government of the Northwest Territories (GNWT) to adopt an overall implementation plan and centralize the application of the NWT OLA. This conclusion underpinned the relief granted by the Court. As such, the Court made four declaratory orders, and six mandatory orders, including a requirement that the GNWT ensure the implementation of the NWT OLA and the drafting of a comprehensive plan to implement its obligations pertaining to communications with and services to the public by government institutions.
First, the appellants argued that the trial should have been limited to specific failures to comply with the NWT OLA, adding that the trial judge allowed evidence pertaining to breaches that were not pleaded and then subsequently relied on those breaches in formulating the remedies granted. Second, they argued that the remedies granted by the trial judge went beyond what was contemplated in the pleadings, that the trial became a sort of inquiry into the implementation of the NWT OLA. They contended that only declaratory relief should have been granted as opposed to the structural remedy that was ordered. Declaratory relief identifies a breach and directs that it be remedied, whereas a structural remedy details how the breach should be remedied. The appellants argued that, by ordering a structural remedy, the trial judge intruded unduly on the role of the legislature.
Responding to the appellants’ first argument, the Court of Appeal stated that trial courts are entitled to entertain constitutional challenges of systemic violations, and found that the pleadings in this case raised the issue of systemic violations regarding the respondents’ quasi-constitutional language rights, and the trial did not exceed the scope of those pleadings. Similarly, the Court of Appeal found that the remedies granted by the trial judge were contemplated by the pleadings. In regards to the appellants’ arguments as to the structural component of the relief granted, the Court of Appeal found that the trial judge committed no error of law or principle. She properly applied the five factors to be considered in granting a just and appropriate remedy as outlined in Doucet-Boudreau,166 and her order was well supported by the evidence. In short, she determined that the GNWT was unwilling to provide the services required by the NWT OLA; therefore, relief in the form of a declaration would inevitably require follow-up relief before the courts. The first ground of appeal was therefore dismissed.
B. The interpretation and application of the Northwest Territories Official Languages Act
The second ground of appeal concerned the interpretation of the NWT OLA, more particularly, how the concept of substantive equality (the applicable norm in language rights) applies given the unique demographic and geographical context of the Northwest Territories. The appellants argued that, while the trial judge claimed to apply substantive equality, she erroneously imposed a requirement of absolute equality.
The Court of Appeal found that the trial judge correctly concluded that the NWT OLA intended to create substantive equality with respect to the official languages of the Northwest Territories. She applied the principles established in Beaulac,167 and the language of the NWT OLA also supported that conclusion. However, the Court of Appeal favoured a more contextual approach in its interpretation of the concept of substantive equality, stating "[a]lthough the trial judge’s consideration of the context was thorough, in our view she gave inadequate weight to the overall context of the NWT and failed to take proper account of how the nature of the service being sought might affect the way in which the service is provided."168 As such, the Court of Appeal found that the trial judge had made certain errors as to how the GNWT could meet its obligations under the NWT OLA generally, and whether individual rights had been breached. According to the Court of Appeal, given the broad spectrum of services offered by the GNWT, the nature of the service must be factored into an assessment as to how the obligations under the NWT OLA can be met. For instance, in services where the health and safety of the public is concerned (for example, at hospitals), if the service involves urgent or confidential matters, members of the public are entitled to immediate service in their language. If on the other hand urgency and confidentiality are not immediate concerns (for example, the issuance of a birth certificate or driver’s licence), the GNWT has greater flexibility in determining how to provide the services. The Court of Appeal applied a similar reasoning to the obligation to provide an active offer: "in those contexts where urgent or highly confidential matters are likely to arise, the person who seeks such services in French cannot easily access it or know it is available without an active offer."169
C. The exhaustion of remedies under the Northwest Territories Official Languages Act
Under the third ground of appeal, the appellants argued that the respondents should have exhausted their remedies under the NWT OLA before initiating litigation. They argued that the trial judge should have encouraged recourse to the administrative complaint system to preserve the integrity of that system. The trial judge concluded that the NWT OLA does not require the filing of a complaint as a precondition to initiating litigation.
The Court of Appeal found that, unlike the federal OLA, the NWT OLA does not require a party to file a complaint with the Languages Commissioner before initiating legal action. The NWT OLA does not contain a privative clause circumscribing judicial review, nor does it contain a mechanism of appeal to challenge the Language Commissioner’s findings or recommendations. As such, the Court of Appeal found that the trial judge was entitled to assess the adequacies of the remedies made available under the NWT OLA, and there was no reason to interfere with her finding that they did not provide an adequate alternative in this case. The third ground of appeal was therefore dismissed.
D. The broadcasting of Legislative Assembly debates and the publication of Hansard
Section 11(1) of the NWT OLA provides that "[a]ny member of the public in the Northwest Territories has the right to communicate with, and to receive available services from, any head or central office of a government institution in English or French [...]." The trial judge found that the Assembly is the head office of a government institution for the purposes of that provision. As such, the broadcasting of debates is a service or communication offered by the Assembly and must therefore be offered in both English and French. Similarly, the trial judge found that Hansard was an official record of the work of the Legislative Assembly and is therefore covered by the expression "records and journals" in section 7 of the NWT OLA. She rejected the appellants’ arguments that the decision to broadcast the debates and the publication of Hansard fell within the Assembly’s privilege, stating that, if it did, that privilege was circumscribed with the adoption of the NWT OLA.
The Court of Appeal agreed with the trial judge that the language of the NWT OLA required that debates be broadcast and Hansard be published in both English and French. However, the Court of Appeal concluded that the Assembly’s decisions not to broadcast the debates in French with the same frequency as in English and not to publish Hansard in French were protected by privilege. According to the Court of Appeal, the language of the NWT OLA was not sufficiently explicit to abrogate that privilege. As such, the Court of Appeal found the courts could not review the Assembly’s decisions about language use.
E. Solicitor-client costs
The appellants argued that the trial judge improperly exercised her discretion in awarding solicitor-client costs. Relying on Arsenault-Cameron,170 the trial judge noted that the award of solicitor-client costs could be part of a "just and appropriate remedy."
The Court of Appeal found the trial judge made no error in law or principle by awarding costs as part of the remedy. She properly considered the appropriate factors in fashioning the remedy, which included the FFT’s attempts to find a political solution before litigating and the GNWT’s failure to adopt a global implementation plan or to otherwise implement the NWT OLA despite the numerous recommendations to that effect. As such, the Court of Appeal found no reason to interfere with the trial judge’s cost award. The fifth ground of appeal was therefore dismissed.
F. The cross-appeal
The appellants and the AGC are cross-respondents in the cross-appeal, which concerns the applicability of parts of the Charter in the Northwest Territories and the availability of damages and punitive damages against the cross-respondents.
At trial, the cross-appellants sought damages under the Charter against both the cross-respondents and the AGC. The Court of Appeal agreed with the trial judge’s findings that the NWT OLA provided similar guarantees as those provided by the Charter and that nonetheless the remedy granted under the Charter would have been the same. The trial judge also found the evidence did not establish any breaches at the federal level. The Court of Appeal therefore agreed that it was unnecessary to consider the application of the Charter.
Regarding the availability of damages and punitive damages against the cross-respondents, the Court of Appeal concluded that the trial judge properly applied the principles governing the crafting of an "appropriate and just remedy." The remedy awarded included remedial measures to redress the issues raised, and these matters were further considered in her decision to award solicitor-client costs. Furthermore, the Court of Appeal found the trial judge’s decision not to award punitive damages was justifiable, given her findings that there was no abusive, contemptuous or malicious behaviour on the part of the GNWT, nor any bad faith.
The cross-appeal was therefore dismissed.
It should be noted that both the appellants and respondents in this case had filed an application for leave to appeal to the Supreme Court of Canada, which was refused.171
