6. Vitality and Development of Official Language Minority Communities
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6.2 Amendments made to Part VII of the Official Languages Act
Part VII of the Official Languages Act (OLA) sets out the federal government’s commitment to enhance the vitality of Anglophone and Francophone minorities in Canada and support their development, as well as to foster full recognition and use of both English and French in Canadian society. Since this commitment was included in the OLA in 1988, there has been uncertainty as to its scope and meaning.
The question as to whether section 41 of Part VII was declaratory or executory in nature was one of the issues in Forum des maires,169 a judgment discussed in the Language Rights 2003–2004 report. In that case, the Federal Court of Appeal had concluded that the commitment provided for in Part VII of the OLA was declaratory in nature, and section 41 did not create a right or obligation that could be enforced by the courts.170 The Court also indicated that discussion on the nature of section 41 should take place in Parliament and not in the courts.171
This is effectively what happened, since significant legislative amendments were made in 2005 to Part VII of the OLA.172 Bill S-3, which became the Act to Amend the Official Languages Act (Promotion of English and French),173 added three important elements to the OLA.
First, the legislative amendments clarified the obligations imposed on federal institutions. Subsection 41(2) now provides that federal institutions have a duty to ensure that positive measures are taken to implement the federal government’s commitment to enhance the development of Anglophone and Francophone minorities in Canada and to assist their development and foster the full recognition of English and French in Canadian society. Each federal institution now has a responsibility to take concrete measures to support the development of official language communities in Canada and to promote linguistic duality.
Second, the amendments to the Act make it possible for the Governor in Council to adopt regulations to specify how the obligations imposed by Part VII of the OLA are to be carried out.
Third, the OLA now includes the possibility of a court action under Part VII. Subsection 77(1) was amended so that following a complaint, an action may be brought in the event of inaction or breaches of the obligations provided for in Part VII.
Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency)
The legislative amendments to Part VII of the OLA led the Supreme Court of Canada to withdraw leave to appeal in Forum des maires.174 In that case, the Supreme Court had agreed to consider the question of the scope of Part VII of the OLA. However, in view of the amendments made to Part VII a few weeks before the hearing was scheduled, the Court held that the questions of law that were the subject of the appeal were no longer of importance to the public and consequently withdrew the leave to appeal.
There have been no judgments dealing with the content of the obligations provided for in Part VII of the OLA during the period covered by this report. However, the courts will have the opportunity to consider the obligations of the new Part VII of the OLA in an application for judicial review filed in the Federal Court by the Fédération des communautés francophones et acadienne du Canada against the federal government’s decision to cease providing financial support for the Court Challenges Program.175 The purpose of this program was to give financial support to individuals and groups to assist them in filing court actions on constitutional questions, including language issues. Among the reasons for the application for judicial review, the applicant mentioned that the decision is contrary to the obligations set out in Part VII of the OLA, the principle of progression toward equality recognized in section 16 of the Charter, constitutional principles such as the principle of respect for and protection of minority rights, and the government’s fiduciary obligation toward official language minorities.
