4. Language Rights and Service to the Public
4.4 Access to services of equal quality
Desrochers v. Canada (Industry)
The judgments by the Federal Court and the Federal Court of Appeal105 raise issues regarding the interpretation and implementation of Part IV of the OLA, in particular when an institution delivers one of its programs through a third party.
The applicant, Mr. DesRochers, is president of the Centre d’avancement et de leadership en développement économique communautaire de la Huronie (CALDECH), a non-profit organization whose mission is to ensure greater participation by Francophones in the local economy. In 2000, Mr. DesRochers and CALDECH filed a complaint with OCOL. In the complaint, they alleged that Industry Canada was not providing equal services in English and French with respect to its Community Futures Program. This program, whose purpose is to promote economic development by helping groups improve and diversify their communities, is delivered throughout Canada by local non-profit organizations known as Community Futures Development Corporations (CFDCs), which Industry Canada finances. CFDCs provide strategic community planning services, support to small and medium businesses and access to financing. The CFDC in Penetanguishene, Ontario, serving Mr. DesRochers’ and CALDECH’s region, is the North Simcoe Community Futures Development Corporation (North Simcoe CFDC).
In its investigation report, OCOL concluded that the complaint was justified, given that the services offered by the North Simcoe CFDC to its French-speaking customers were, in number and quality, far from comparable to the services offered to its English-speaking clients. OCOL also found that Industry Canada had failed to fulfill the federal government’s commitment under Part VII of the OLA to support the development of the Francophone community in North Simcoe. Accordingly, it made four recommendations to Industry Canada. It then followed-up on the recommendations to ensure that they had been implemented and found that the Francophone community of North Simcoe was still not receiving equal services with respect to the Community Futures Program.
CALDECH filed an action in Federal Court, seeking a ruling that there had been a breach of Parts IV and VII of the OLA and subsections 16(1) and 20(1) of the Charter, as well as damages.
Federal Court judgment
Harrington J. dismissed CALDECH’s application on the ground that the evidence did not show that there had been a breach of Part IV of the OLA. In his opinion, the “[North Simcoe CFDC] is able to communicate with the public in French and provides (equal) service.”106 Consequently, he did not feel it necessary to consider the question of remedies.
1) Interpretation of the Official Languages Act
From the outset, the judge stated that the case did not concern Part VII, but rather Part IV of the OLA. This distinction is important because the investigation reports by OCOL had dealt with Parts IV and VII.
As for the method of interpretation to be applied, the judge indicated that all statutes are subject to the modern standard of statutory interpretation. However, he added that the quasi-constitutional status of the OLA meant that it must be interpreted in a manner that gives particular consideration to unwritten constitutional principles and the history of English- and French-speaking minorities.107
2) Application of the Official Languages Act
The Attorney General of Canada argued that the situation at hand did not fall within the scope of Part IV of the OLA since Industry Canada was not directly providing services to the public, nor was it dealing directly with the beneficiaries of the Community Futures Program. For their part, the applicants relied on section 25 of the OLA, which imposes on federal institutions a duty to ensure that services offered to the public by third parties on their behalf are available in both languages. The judge accordingly considered the meaning of the expression “on its behalf” used in section 25 of the OLA.
In his analysis, the judge relied on the Supreme Court of Canada’s judgment in Eldridge v. British Columbia,108 in which the Court had concluded that certain private organizations could be part of the “government” and be subject to the Charter when they exercised delegated government powers or were responsible for the implementation of government policy. At the end of his analysis, the judge concluded that the North Simcoe CFDC “is implementing a specific governmental policy or program, the Community Futures Program”. Accordingly, he held that Industry Canada had a duty to ensure that the North Simcoe CFDC provided equal services in both official languages, as if it was providing these services itself.
Industry Canada claimed that it discharged its responsibility under the Treasury Board’s policy on grants and contributions.109 It had included a language clause in the financing agreement dealing with the provision of services and communications in both official languages. The Court held that this could not replace its obligations under the OLA:
A constitutional right cannot be reduced to what could best be charitably described as a contractual stipulation for the benefit of a third party. […] Put another way, a federal institution cannot contract out of its Charter and official language obligations.110
3) Right of the North Simcoe Francophone minority to services of equal quality
To determine whether Industry Canada had discharged its obligations under section 25 of the OLA, the judge examined the factual situation as it existed at the time the action was filed. He examined three particular incidents: telephone service, a meeting with the Director General and a series of public breakfast meetings, which all took place in English only. However, he found that the evidence was not sufficient to conclude there had been a breach of Part IV of the OLA or of
the Charter.
Federal Court of Appeal judgment
The Federal Court of Appeal allowed the appeal by Mr. DesRochers and CALDECH.111 It reversed the trial judge’s decision on the basis that the judge had erred in considering the factual situation that existed at the time the action was filed in 2004, rather than at the time the complaint was made in 2000. While concluding that Industry Canada had not met its language obligations in the provision of services at the time the complaint was filed, the Court of Appeal nevertheless found that the situation had subsequently been corrected and that there was no need to award the relief sought by the appellants.
1) Application of section 25 of the Official Languages Act to the North Simcoe CFDC
The issue to be determined was whether the North Simcoe CFDC was acting on behalf of Industry Canada within the meaning of section 25 of the OLA. On this point, the Court first noted that the phrase “on behalf of” meant acting for a person or for the benefit of that person. It further considered that a third party did not need prior authorization from a federal institution to act on its behalf: rather, a third party may act in concert or partnership with the institution and exercise the powers delegated to it, without having obtained prior authorization. It therefore set out the following criteria for determining whether a third party is acting on behalf of a federal institution within the meaning of section 25 of the OLA:
. . . the issue is whether, given the facts and circumstances of the case, the third party is providing the services of a federal institution or a federal government program with the accreditation, agreement, confirmation, consent, acceptance or approval of the institution or the government.112
After examining the case at bar, the Court held that the Community Futures Development Program was an Industry Canada program, and accordingly, that the North Simcoe CFDC was acting on the government’s behalf in establishing and implementing the Program. It dismissed the respondents’ argument that the Program was not a government program and concluded that the institution was offering more than mere financial support to the North Simcoe CFDC. It based its conclusion on the control exercised by the Department, particularly over the definition, nature and scope of the Program; the manner in which services were provided; North Simcoe’s policies and procedures regarding personnel; the operation of the investment fund; the provision of its small business counselling and assistance services; and the general administration of the Program. Consequently, the Court held that the terms of the agreement concluded between Industry Canada and the North Simcoe CFDC indicated that their relationship went well beyond mere financial support.
2) Principle of substantive equality in communications with the public and in the provision of services by federal institutions
The Court held that the principle of equality “is equality at the level of communication with federal institutions and equality at the level of receipt of services in either language.”113 This means that services must be available in both official languages and communication must also be able to take place in those two languages. However, the Court noted that what was required was “equal linguistic access” to regional economic development services rather than “access to equal regional economic development services.”114 Thus, it explained that the purpose of Part IV was “to help the official language minorities preserve and promote their language and cultural identity by enabling them to have access, in the official language of their choice, to the government services that are available.”115
The Court concluded that Part IV of the OLA did not give the linguistic minority a right to be consulted or participate in the development of programs, though it added that it would be strongly desirable. It agreed with the argument that when establishing services, federal institutions should take into account the particular needs and culture of minority communities. However, this is not a requirement of Part IV of the OLA. At the most, this could be a requirement under the Department of Industry Act.116 According to the Court, Part IV of the OLA simply provided for a right to receive services in either official language. In doing so, it made the distinction between the case at bar and Beaulac, which mentions “equal access to services of equal quality for members of both official language communities in Canada”117 on the grounds that Beaulac dealt with the “absolute right” of the accused to a trial in the official language of his or her choice.118
3) Date at which the alleged breaches of the Official Languages Act should be assessed
It was on this point that the Court of Appeal’s judgment differed from Harrington J.’s decision at trial. While the latter had concluded that the date the proceedings were filed on in October 2004 was the relevant date in determining whether there had been a breach of the OLA, the Court of Appeal instead relied on the judgment in Forum des maires,119 according to which the relevant facts for determining whether there had been a breach of the OLA were those existing at the time the complaint was filed with OCOL, in March 2000. The Court of Appeal found that if the trial judge had chosen this date as the relevant one for examining the violations of the OLA, he would have allowed the appellants’ action, since it was clear that at that time the services provided by the North Simcoe CFDC on behalf of Industry Canada were not offered in both official languages.
4) Just and appropriate remedy in the circumstances and entitlement to costs
On the question of remedies, the Court of Appeal affirmed the trial judge’s conclusion that any breach of the OLA had ceased by the time the action was filed and when the action was heard, as a result of remedial provisions made to the services offered by the North Simcoe CFDC. The trial judge had held that none of the relief sought by the appellants was available to them, except for costs, which he chose not to award.
However, the Court of Appeal concluded that the appellants should be entitled to costs, given that their application was valid at the time the complaint was filed with OCOL and that they had prevailed on the issue of the application of section 25 of the OLA.
In short, the Court concluded that the services provided by the North Simcoe CFDC were in fact in both official languages. It did not accept the argument by the appellants and the intervener that the services offered should take into account the specific needs of the Francophone community in order to respect the standard of substantive equality.
It should be noted that leave to appeal this decision to the Supreme Court of Canada has been filed.120
