5. Actions provided for by the Federal and Provincial Official Languages Legislation
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5.2 Action under section 43 of the New Brunswick Official Languages Act
Caraquet (Town) v. New Brunswick (Minister of Health and Wellness)
In this case,150 the New Brunswick Court of Appeal ruled on the procedure to be followed in filing an action for a breach of the N.B. OLA.
The applicants challenged a decision by the New Brunswick Minister of Health and Wellness to close L’Enfant-Jésus Hospital in Caraquet and convert it into a community health centre. Under the Regional Health Authorities Act 151 (RHAA), this hospital was designated as French speaking. The Minister’s decision provided that surgical and obstetric services in Caraquet would be transferred to Chaleur Regional Hospital in Bathurst, designated bilingual under the RHAA, while emergency services would be transferred to Tracadie-Sheila Hospital, which was designated as French speaking.
Following the Minister’s decision, the applicants filed an application for judicial review with the New Brunswick Court of Queen’s Bench as well as a complaint with the New Brunswick Commissioner of Official Languages. The applicants argued that the Minister’s decision was not consistent with the provisions of the Charter, the unwritten constitutional principles of respect for and protection of minority rights, the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick 152 and the N.B. OLA. The Commissioner refused to hear the complaint as the case was already before the courts.
The New Brunswick Court of Queen’s Bench dismissed the applicants’ action153 on the ground that they had not followed the procedure provided for in the N.B. OLA. Relying on the Court of Appeal’s judgment in Charlebois,154 the Court indicated that the procedure for complaints and investigations in section 43 of the N.B. OLA requires a complainant to first file a complaint with the New Brunswick Commissioner of Official Languages. Then, if the complainant is not satisfied with the Commissioner’s findings, he or she may file an action in the New Brunswick Court of Queen’s Bench pursuant to subsection 43(18) of the N.B. OLA. The Court thus dismissed the applicants’ application, and they appealed the decision to the Court of Appeal.
The appeal was allowed by the New Brunswick Court of Appeal, which held that the Court of Queen’s Bench had jurisdiction to hear the appellants’ action. It concluded that neither section 43 of the N.B. OLA nor the Court of Appeal’s judgment in Charlebois155 could serve as a basis for dismissing the action, since (1) the appellants’ claims were not based solely on the N.B. OLA, but were based also on the Charter and unwritten constitutional principles; and (2) even if they had relied only on the N.B. OLA, subsection 43(20) states that section 43 “does not affect any other right”. Given this provision, the Court found that the actions provided for in section 43 are not unique, nor are they exclusive, and it is possible to bring an action without having first filed a complaint with the Office of the Commissioner of Official Languages for New Brunswick.
As such, the Court of Appeal allowed the appellants’ action and allowed the case to be heard on its merits by a trial court. Following this decision, the Town of Caraquet filed an application for an injunction to suspend any change in the status of L’Enfant-Jésus Hospital in Caraquet and the services provided there. This application was dismissed on the ground that there was not enough evidence to justify issuing an injunction.156
Following the conversion of the hospital into a community health centre, the Town of Caraquet discontinued its legal proceedings against the province.
