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Montfort Hospital - Notice of Motion Before Ontario Court of Appeal

ONTARIO COURT OF APPEAL

BETWEEN:

MOTION PURSUANT TO THE Judicial Review Procedure Act, L.R.O. 1990, c. J.l, ss. 6(1).

THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA will make a motion to the Chief Justice of Ontario on a date to be fixed by the Registrar of the Court.

SUGGESTED METHOD OF HEARING.

The motion will be heard:

[ ] in writing pursuant to Rule 37.12.1(1);

[ ] in writing as a contested motion pursuant to Rule 37.12.1(4);

[X] orally. The Commissioner of Official Languages of Canada asks that the motion be heard by means of a telephone conference call pursuant to Rule 1.08(1)1;

THE MOTION IS FOR:

1. An order granting the Commissioner of Official Languages of Canada leave to intervene in this appeal as a friend of the court, on the following terms:
   
   1. The intervenor will accept the appeal record as it is, without seeking leave to file any additional evidence;
      
      
   2. The intervenor will not claim her costs;
      
      
   3. The intervenor shall deliver her factum within the time fixed by the Court; and
      
      
   4. The intervenor will be allowed to make oral submissions to this Court.
   
   
2. Without costs, unless the motion is contested.

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THE GROUNDS FOR THE MOTION ARE:

1. The Divisional Court held that the Health Services Restructuring Commission (the "Commission") could not ignore the role played by the Hôpital Montfort  "as a truly francophone centre, necessary to promote and enhance the Franco-Ontarian identity as a cultural/linguistic minority in Ontario, and to protect that culture from assimilation". The Divisional Court therefore quashed the Commission's directions as they applied to the Hôpital Montfort and remitted the question to the Minister for a decision in accordance with its reasons;
   
   
2. The situation of the official languages throughout Canada is of great interest to the Commissioner of Official Languages of Canada (the "Commissioner");
   
   
3. The position of Commissioner of Official Languages of Canada has been created under subsections 49(1) and 49(2) of the Official Languages Act, R.S.C. 1985, c. 31 (4^th Supp.) (the "OLA"). The incumbent is appointed by a commission under the Great Seal, after approval by resolution of the Senate and the House of Commons. The Commissioner is appointed during good behaviour for a term of seven years unless revoked by the Governor in Council on an address of the Senate and the House of Commons;
   
   
4. Under section 56 of the OLA, it is the duty of the Commissioner "to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages", including activities "relating to the advancement of English and French in Canadian society";
   
   
5. This statutory mandate is expressed through the full realization of the purpose of the OLA, which is, inter alia, pursuant to paragraph 2(b) of the OLA, 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";
   
   
6. The importance of the Commissioner's duty to take all actions and measures with a view to ensuring recognition of the status and use of the English and French languages within Canadian society is reflected, moreover, in the Commissioner's capacity "to seek leave to intervene in any adjudicative proceedings relating to the status or use of English or French", pursuant to subsection 78(3) of the OLA;
   
   
7. In recognition of the Commissioner's significant interest and unique experience, the courts, including this Court, have previously granted the Commissioner leave to intervene in other cases relating to the scope and interpretation of language rights;
   
   
8. Should the Court grant leave to intervene to the Commissioner, she may provide a national perspective and therefore a dimension other than the one that may be contributed by the litigants and the intervening parties;
   
   
9. As the ombudsman of official languages in Canada, the Commissioner is particularly and singularly well placed to assist this Court in the interpretation of the principle of the protection of the minorities who participate, as one of its keystones, in the fundamental structure of the Constitution of Canada, as well as in the interpretation of section 16 of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being itself Schedule B to the Canada Act, 1982, (U.K.) 1982, c. 11, which articulates this fundamental principle in the written text of the Constitution;
   
   
10. Allowing the Commissioner the right to intervene will not affect the conduct of this appeal. Indeed, it is not the Commissioner's intention to unduly increase the scope of the proceedings or to generate delays as a result of her intervention;
    
    
11. The decision being appealed raises important questions of public law, including in particular questions as to the scope and applicability of constitutional principles and language rights. The Court would benefit from the Commissioner's submissions in this regard;
    
    
12. The Commissioner relies in support of her motion on the following statutory provisions:

• Section 109 of the Courts of Justice Act, R.S.O. 1990, c. C-43;
  
  
• Sections 16 and 24 of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being itself Schedule B to the Canada Act, 1982, (U.K.) 1982, c. 11);
  
  
• Subsections 2(b), 49(1) et 49(2), section 56 and subsection 78(3) de la Official Languages Act, R.S.C. 1985, c. 31 (4^th Supp.);
  
  
• Rules 1.08, 13, 37 and r. 61.16 des Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

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THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion;

1. The affidavit of the Commissioner of Official Languages of Canada, Ms. Dyane Adam, made on December 6, 2000, in support of her motion;
   
   
2. The Court record in this matter, including the decision of the Divisional Court, the factums of the Attorney General of Ontario, counsel for the respondents and the Attorney General of Canada, previously filed, the examination of Dr. Victor Goldbloom held on October 21, 1998, Commissioner of Official Languages of Canada in office at the time of the trial at first instance (Transcripts filed by the Applicant Volume 2; Tab 6) and the exhibits filed during the cross-examination of Dr. Goldbloom (Appeal Book Volume D2, Tabs 1, 2, 3 and 4 and Volume D3, Tabs 5, 6, 7 and 8); and
   
   
3. Any further documentary evidence considered relevant by the counsel for the Commissioner and allowed by the Court.

COUNSEL for the moving party certifies that the time required for his submissions will be ten (10) minutes, in his estimate.

Date: December 6, 2000

Ms. Johane Tremblay
Commissioner of Official Languages of Canada
Office of the Commissioner of Official Languages of Canada
Per: René Cadieux
Fasken Martineau DuMoulin, LLP
3400 Tour de la Bourse
800 Place Victoria
Montréal, Quebec
H4Z 1E9
Tel.: (514) 397-7591
Fax: (514) 397-7600
Counsel for the Commissioner of Official Languages of Canada

To: Nelligan Power, LLP
Barristers and Solicitors
1900-66 Slater Street
Ottawa, ON K1P 5H1

Tel.: (613) 231-8290
Fax: (613) 788-3669

Ronald F. Caza
Pascale Guiguère

Counsel for the applicants (respondents on appeal)

AND
TO: Attorney General of Ontario
Constitutional Affairs Branch
8^th Floor, 720 Bay Street
Toronto, ON M5G 2K1

Tel.: (416) 326-4454

Janet E. Minor
Michel Y. Hélie

Counsel for the respondent (appellant)

AND

TO: Leslie S. Holland, Q.C.
Senior General Counsel
Department of Justice
284 Wellington Street
East Memorial Building, Room 2246
Ottawa, Ontario
K1A 0H8

Tel.: (613) 946-3815
Fax : (613) 954-1920

Alain Préfontaine
Warren J. Newman

Counsel for the Attorney General of Canada