VI- SCOPE OF THE COMMITMENT OF THE FEDERAL GOVERNMENT IN PART
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6.2 Positions transferred by the Canadian Food Inspection Agency in New Brunswick without taking into account the needs of the local francophone community
Forum des maires de la péninsule acadienne v. Canada (Canadian Food Inspection Agency)
During the period covered by this report, the proceedings initiated by the Forum des maires resulted in a judgment by the Federal Court115 and a judgment by the Federal Court of Appeal.116 The case concerned the decision of the Canadian Food Inspection Agency to transfer certain positions from one region to another and raised inter alia the question of remedies available to penalize infringements of the government’s commitment regarding the development of official language minorities.
In this case, the Agency in the fall of 1999 transferred four seasonal inspector positions from its Shippagan office, located on the Acadian peninsula in the northwest of the province of New Brunswick, to the Shediac office located in the southeastern part of the province. According to the Agency, this transfer was necessary to rationalize activities relating to inspection work in the Shippagan area, a rationalization due primarily to the decline in the fishing industry and the transfer of unprocessed fish products from Shippagan to processing plants in southeastern New Brunswick.
Following that decision, the Forum des maires filed a complaint with the Commissioner of Official Languages, alleging that the administrative reorganization implemented by the Agency had been carried out to the detriment of the Francophone regions in northeastern New Brunswick. According to the applicant, this decision had an impact not only on service to the public and on the Agency’s capacity to respect the rights of employees at the Shippagan office to work in French, but also on the region’s economy.
In her investigation report, the Commissioner concluded that the complaint was valid, noting that, "the Agency’s decisions did not allow it to fully meet its obligations under Part IV of the OLA (Services to the Public)." Further, in view of the particular regional and historic context of the Acadian peninsula, "Part VII of the OLA at the very least created an obligation on the respondent to consult the minority official language community before making its decision."
Relying on the Commissioner’s conclusions, the applicant filed an action in the Federal Court. It alleged that the decision by the Agency was contrary to law as, first, it did not assist in resolving the situation concerning Part IV of the OLA, and second, the Agency had failed to consider Part VII of the OLA in making the decision.
1) Whether the Agency carried out its linguistic duties
In his judgment, Blais J. of the Federal Court relied primarily on the findings of the Commissioner’s investigation and held that there had been an infringement of Part IV and Part VII of the OLA. It appeared from the evidence, based primarily on the Commissioner’s investigation report, that the Agency did not take the linguistic preferences of its clientele into account at any time, and that Part IV of the OLA was still not being observed since the transfer of the positions in question. Regarding Part VII of the OLA, Blais J. concluded that the Agency had failed in its duty to consult the official language minority communities to ensure that its decisions took into account their special development and vitality requirements.
Relying on the decision in Devinat117 and the comments he had made in the case involving the Contraventions Act,118 Blais J. went on to answer the Agency’s argument that Part VII did not create rights which could give rise to penalties. He noted that remedies under section 18.1 of the Federal Courts Act were always available for breaches of parts of the OLA not covered by subsection 77(1) of the OLA, such as the provisions of Part VII of the OLA. Accordingly, the judge allowed the application by the Forum des maires and ordered that the positions be reinstated.
The Attorney General of Canada appealed this judgment, asking the Federal Court of Appeal to quash the order by Blais J. In its judgment, the Federal Court of Appeal first noted that the initial application filed by the Forum des maires was pursuant to section 77 of the OLA, not an application for judicial review under section 18.1 of the Federal Courts Act, as the trial judge had several times described it. Also, the remedies the applicant could seek were not limited to those set out in subsection 18.1(3) of the Federal Courts Act. The Court further observed that analysis of Part IV of the OLA and a finding that it had been infringed, sufficed to dispose of the case.
In this regard, the Court concluded that the Agency had reduced its services in Shippagan without considering the effect of that reduction on the Francophone minority’s rights to receive services in French, and that the reduction of services had the effect of infringing the right conferred on that minority by section 21 of the OLA. It noted that the Agency did not dispute "the merits of the complaint at the time it was filed, in October 1999, but the choice of relief ordered by the judge in September 2003,"119
It also noted that at the hearing before the Federal Court a discussion had also arisen as to the scope of Part VII of the OLA, and the judge appeared to have agreed to treat part of the application as an application for judicial review in respecting breach of Part VII of the OLA. It therefore had to consider this question.
2) Whether breaches of Part VII of OLA can be dealt with by the courts
The Court first noted that subsection 77(1) of the OLA was quite clear: Parliament intended that "only those complaints in respect of a right or duty under certain sections or parts of the Act could be the subject matter of the remedy under Part X."120 This remedy was accordingly limited to complaints based on the sections and parts set out in subsection 77(1) of the OLA, with Part VII not listed.
The Court then considered the argument based on the judgment in Devinat,121 according to which, subsection 77(5) of the OLA authorized other actions, such as an application for judicial review pursuant to section 18.1 of the Federal Courts Act in the event of an infringement of OLA provisions other than those set out in section 77 of the OLA. It dealt with this argument by carefully distinguishing the facts of the case from those that existed in Devinat. In the Court’s opinion, there was no doubt as to the existence of a duty in Devinat, since the latter dealt with section 20 of the OLA, imposing a duty ("shall") to publish a bilingual version of the decisions of federal tribunals. Section 41 of the OLA, at issue in this case, contained no similar language, however, and instead spoke of a political commitment. The Court further considered that the duties were actually to be found in sections 42 and 43 and, as these were of a most general and vague nature, they did not lend themselves to the exercise of judicial authority.
In the Court’s view, the Supreme Court’s many judgments on the broad and liberal interpretation of language rights in terms of their purpose122 also could not have the effect that section 41 of the OLA imposed a duty. In its opinion, it is true that the protection of language rights is a fundamental constitutional objective and requires special vigilance by the courts. The latter should therefore interpret provisions conferring such rights generously, "but it is also necessary that these be rights to protect and not policies to define."123 It added that, "however, it is not because a statute is characterized as quasi-constitutional that the courts must make it say what it does not say, especially when the statute, as in this case, has been careful not to say it."124 Thus, the Court concluded that section 41 of the OLA was "declaratory of a commitment and that it does not create any right or duty that could at this point be enforced by the courts, by any procedure whatsoever,"125 and that the argument regarding section 41 should take place in Parliament, not before the courts.
3) Remedy that was appropriate and just in the circumstances
Finally, considering the question of a remedy, the Court first noted that it was for the Court to decide whether the complaint was valid at the time it was filed, not whether it was valid at the time of the trial. If the judge considered it was valid, he or she should allow the application and undertake to define the "remedy he [or she] considers appropriate and just in the circumstances." It pointed out that if the alleged infringements had all been corrected at the time of the trial, the judge could decide that in the circumstances no remedy should be granted, except, for example, the awarding of costs.
The Court went on to recall the criteria applied by the Supreme Court in Doucet-Boudreau126 to define the phrase "appropriate and just in the circumstances," adding that the solution applied had to be:
relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied . . . effective, realistic, and adapted to the facts of the case . . . respectful of the relationships with and separation of functions among the legislature, the executive and the judiciary and the role of the courts, which is one of adjudicating disputes and granting remedies that address the matter of those disputes, and not leap into the kinds of decisions and functions for which [the] design and [their] expertise are manifestly unsuited . . . fair to the party against whom the order is made and not impose substantial hardships that are unrelated to securing the right.127
Considering the facts of the case, the Court concluded that the trial judge had accepted reasons "much too summary to satisfy the standards laid down in Doucet-Boudreau"128 and that "his order for relief was pronounced in an erroneous legal context since he based himself primarily on Part VII of the Act, which is not executory,"129 and that, in any case, the order contained "a number of uncertainties and difficulties."130 Accordingly, the Court decided to review the remedy.
It noted that the first basis for the complaint, namely the lack of consultation, had been vitiated, as for four years, and throughout the trial, there had been numerous meetings and attempts to arrive at a satisfactory solution. The second basis for the complaint, however, the reduction of services in French, remained an issue. In light of the evidence, the Court concluded that essentially the problems that initiated the complaint had been dealt with through the intervention of the Commissioner and the pressure applied to the Agency by the filing of the action in the Federal Court. Finally, it noted that the provision of service in French certainly entailed "hiccups," but the evidence did not show that those "hiccups" were symptomatic of serious problems or deep-seated malfunctions in the Agency. Accordingly, there was no question of breaches that could be described as "collective." In other words, the Court held that it had not been established that reinstatement of the positions in Shippagan was an appropriate and just remedy in the circumstances.
In concluding, the Court of Appeal took care to note that the Forum des maires "was right to institute its proceedings since the Agency was not at the time complying with the obligations imposed on it by the Official Languages Act to serve the public in French in the Acadian peninsula"131 and to "contest the appeal since the Agency was seeking to have set aside a judgment that had correctly held that the complaint was justified."132 In view of the changes that had occurred since the complaint was filed and the remedial actions taken, the Court of Appeal granted no remedy other than to order the Agency to pay the costs of the Forum des maires at trial and on appeal.
Accordingly, the Court of Appeal concluded that the original complaint was valid and that the trial judge’s decision to allow the application should be upheld and the appeal dismissed in this regard. In view of the fact, however, that the original complaint was no longer valid when the trial judgment was taken under advisement, and the remedies ordered by the trial judge were not appropriate and just in the circumstances, it allowed the appeal on that issue. It reversed the part of the Federal Court Trial Division judgment that set aside the Agency’s decision to transfer the positions to Shediac and awarded monetary compensation.
It should be noted that the Supreme Court of Canada has accepted to hear an appeal of this decision.
