Chapter 2: Federal Laws

Federal Laws – Main Law and Regulations

Official Languages Act, R.S.C. 1985, c. 31 (4^th Supp)

An Act respecting the status and use of the official languages of Canada

Preamble

WHEREAS the Constitution of Canada provides that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada;

AND WHEREAS the Constitution of Canada provides for full and equal access to Parliament, to the laws of Canada and to courts established by Parliament in both official languages;

AND WHEREAS the Constitution of Canada also provides for guarantees relating to the right of any member of the public to communicate with, and to receive available services from, any institution of the Parliament or government of Canada in either official language;

AND WHEREAS officers and employees of institutions of the Parliament or government of Canada should have equal opportunities to use the official language of their choice while working together in pursuing the goals of those institutions;

AND WHEREAS English-speaking Canadians and French-speaking Canadians should, without regard to their ethnic origin or first language learned, have equal opportunities to obtain employment in the institutions of the Parliament or government of Canada;

AND WHEREAS the Government of Canada is committed to achieving, with due regard to the principle of selection of personnel according to merit, full participation of English-speaking Canadians and French-speaking Canadians in its institutions;

AND WHEREAS the Government of Canada is committed to enhancing the vitality and supporting the development of English and French linguistic minority communities, as an integral part of the two official language communities of Canada, and to fostering full recognition and use of English and French in Canadian society;

AND WHEREAS the Government of Canada is committed to cooperating with provincial governments and their institutions to support the development of English and French linguistic minority communities, to provide services in both English and French, to respect the constitutional guarantees of minority language educational rights and to enhance opportunities for all to learn both English and French;

AND WHEREAS the Government of Canada is committed to enhancing the bilingual character of the National Capital Region and to encouraging the business community, labour organizations and voluntary organizations in Canada to foster the recognition and use of English and French;

AND WHEREAS the Government of Canada recognizes the importance of preserving and enhancing the use of languages other than English and French while strengthening the status and use of the official languages;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Annotations

Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773, 2002 SCC 53 (CanLII)

[21] The Official Languages Act is a significant legislative response to the obligation imposed by the Constitution of Canada in respect of bilingualism in Canada. The preamble to the Act refers expressly to the duties set out in the Constitution. It cites the equality of status of English and French as to their use in the institutions of the Parliament and government of Canada and the guarantee of full and equal access in both languages to Parliament and to the laws of Canada and the courts. In addition, the preamble states that the Constitution provides for guarantees relating to the right of any member of the public to communicate with and receive services from any institution of the Parliament or government of Canada in English and French. The fact that the Official Languages Act is a legislative measure taken in order to fulfil the constitutional duty in respect of bilingualism is not in doubt.

Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 4 FCR 276, 2004 FCA 263 (CanLII)

[33] Section 41 of the Act refers to a commitment by the federal government ("s'engage" in French) that reproduces for all intents and purposes the seventh whereas in the preamble to the Act. The preamble, according to section 13 of the Interpretation Act, R.S.C., c. I-21, "shall be read as a part of the enactment intended to assist in explaining its purport and object" ("fait partie du texte et en constitue les motifs"). [...]

Schreiber v. Canada , 1999 CanLII 8898 (FC)

[112] In its preamble, the Official Languages Act recognizes the fundamental principles underlying its enactment, including the constitutional foundation for the equality of the English and French languages and for the right of a member of the public to communicate with and receive services in either official language from any institution of Parliament or the government. The preamble also highlights that the government of Canada has engaged itself to various commitments, including the achievement of the full participation of English-speaking Canadians and French-speaking Canadians in its institutions "with due regard to the principle of selection of personnel according to merit", the enhancement of the development of English and French linguistic minority communities, and the enhancement of the bilingual character of the National Capital Region. [...]

Professional Institute of the Public Service v. Canada , [1993] 2 FCR 90, 1993 CanLII 2921 (FC)

[29] Next comes the Official Languages Act, a statute which has been described as a quasi-constitutional document. In its lengthy preamble, the Act repeats the constitutional rights and guarantees of the Charter with respect to communications with and services from the Government of Canada in either official language. The preamble also reflects on the in-house requirement of the government to provide equal opportunities to its employees to choose either language as their language of work.

[...]

[57] In the case before me, it is obvious that there exists under the Official Languages Act a broad picture and a narrower one. The object of the Act is not only to permit the use of our official languages and give citizens the right to deal with federal institutions in the language of their choice. It is more than that. It is to promote the use of both languages or, as expressed in the Act's preamble, "enhancing the vitality and supporting the development of English and French linguistic minority communities". Such a policy commitment by the Government of Canada imposes a double duty which must sooner or later be exercised in concrete terms.

[...]

[64] This brings me to comment on what I view is the second duty which the statute imposes on federal institutions. If there is imposed a tight line in designations of individual positions to protect the majority language group in the Public Service, the other duty is reflected in the preamble to the Act and in section 41 of the Act. My interpretation of section 41 gives credence to the proposition that policy requires the respondent not only to react or respond to pressures for more or better bilingual services, but to initiate programmes to offer these services where there is a perceived need for them, a need which might not be fully reflected in a statistical analysis of the number of enquiries, the number of files, or the current incidence of French and English cases in any particular public office.

[...]

[86] I should add another comment. The carrying on of statutory duties and obligations of the Official Languages Act in the strongly English-speaking environment of the Halifax Office, as well as in other similar places, must not always be easy. Language, as is often noted, includes strong cultural ties and characteristics, and there are historical discordant notes still being heard over language duality in Canada. No matter his background, the individual manager must remain publicly discreet, yet there must come to his ears, from time to time, negative observations from colleagues and friends, which add to the constraints of his office and which impose upon him many conflicting pressures. He often faces ignorance of the law, which in turn breeds fear, and which in turn breeds resentment. The manager must cope with all this and still run a happy ship.

1. Short title

1. This Act may be cited as the Official Languages Act.

2. Purpose

2. The purpose of this Act is to

(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;

(b) 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; and

Annotations

Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53 (CanLII)

[22] Section 2 of the Official Languages Act sets out the purpose of the Act: […]

Those objectives are extremely important, in that the promotion of both official languages is essential to Canada's development. As this Court said in Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 744:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

The Official Languages Act is more than just a statement of principles. It imposes practical requirements on federal institutions, as Bastarache J. wrote in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, at para. 24: […]

[23] The importance of these objectives and of the constitutional values embodied in the Official Languages Act gives the latter a special status in the Canadian legal framework. Its quasi-constitutional status has been recognized by the Canadian courts. […]

The Federal Court was correct to recognize the special status of the Official Languages Act. The constitutional roots of that Act, and its crucial role in relation to bilingualism, justify that interpretation.

[...]

[25] [...] The Official Languages Act and the Privacy Act are closely linked to the values and rights set out in the Constitution, and this explains the quasi-constitutional status that this Court has recognized them as having. However, that status does not operate to alter the traditional approach to the interpretation of legislation, defined by E. A. Driedger in Construction of Statutes (2^nd ed. 1983), at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The quasi-constitutional status of the Official Languages Act and the Privacy Act is one indicator to be considered in interpreting them, but it is not conclusive in itself. The only effect of this Court's use of the expression "quasi-constitutional" to describe these two Acts is to recognize their special purpose.

R. v. Beaulac , [1999] 1 S.C.R. 768, 1999 CanLII 684 (SCC)

[20] […] The objective of protecting official language minorities, as set out in s. 2 of the Official Languages Act, is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees […].

[22] The Official Languages Act of 1988 and s. 530.1 of the Criminal Code, which was adopted as a related amendment by s. 94 of the same Official Languages Act, constitute an example of the advancement of language rights through legislative means provided for in s. 16(3) of the Charter; see Simard, supra, at pp. 124-25. The principle of advancement does not however exhaust s. 16 which formally recognizes the principle of equality of the two official languages of Canada. It does not limit the scope of s. 2 of the Official Languages Act. Equality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning. This Court has recognized that substantive equality is the correct norm to apply in Canadian law. Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada. […]

[24] [...] The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State […]. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. [...]

[25] Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. It is also useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice. They have a different purpose and a different origin. [...]

DesRochers v. Canada (Industry), [2007] 3 FCR 3, 2006 FCA 374 (CanLII)

[37] […] Paragraph 2(a) of the OLA provides for equality of status and use for both official languages. Paragraph 2(b) is meant to support the development of English and French linguistic minority communities and advance the equality of status and use of the English and French languages. And, needless to say, this cannot be a merely virtual or purely formal equality, without substantive or concrete application. On that basis, I am willing to subscribe to the opinion of Bastarache J. [in the R. v. Beaulac decision] that “language rights that are institutionally based require government action for their implementation and therefore create obligations for the State”, at paragraph 24.

Canada (A.G.) v. Viola, [1991] 1 F.C. 373, [1990] F.C.J. No. 1052 (QL) (FCA) [hyperlink not available]

[16] The 1988 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects “certain basic goals of our society” and must be so interpreted “as to advance the broad policy considerations underlying it.” To the extent, finally, that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political compromise, it requires the courts to exercise caution and to “pause before they decide to act as instruments of change”, as Beetz J. observed in Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al.

Tailleur v. Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 (CanLII)

[36] The OLA is at the heart of this dispute. Its purpose is to “ensure[e] respect for English and French as the official languages of Canada and the equality of status and equal rights and privileges as to their use in all federal institutions” (Thibodeau v Air Canada, 2014 SCC 67 (CanLII) [Thibodeau] at para 9). It also specifies the powers and duties of federal institutions with respect to official languages. In fact, “[t]he OLA and its regulations form a comprehensive statutory regime that governs all matters related to language rights within federal institutions” (Norton v Via Rail Canada Inc., 2009 FC 704 (CanLII) [Norton] at para 61).

[37] Language rights are a cornerstone of Canadian society, and the OLA is therefore a fundamental law of the land, closely linked to the values and rights enshrined in the Canadian Constitution and particularly in the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c 11 [Charter]. Moreover, the Supreme Court of Canada has recognized its quasi-constitutional status (Lavigne v Canada (Commissioner of Official Languages), 2002 SCC 53 (CanLII) [Lavigne] at para 25). Thus, the language rights engaged in this case are all based on the Constitution.

[…]

[49] The principles of interpretation that apply to language rights are not an issue in this proceeding.

[50] It is widely accepted that language rights in Canada “are meant to protect official language minorities in this country and to insure the equality of status of French and English” and “must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities” (R v Beaulac, 1999 CanLII 684 (SCC), [1999] 1 SCR 768 [Beaulac] at para 25, 41). Language rights “are a well-known species of human rights and should be approached accordingly” (R v Mercure, 1988 CanLII 107 (SCC), [1988] 1 SCR 234 at p 268).

[51] Courts are therefore required to give the OLA, a quasi-constitutional statute, a liberal and purposive interpretation (DesRochers v Canada (Industry), 2009 SCC 8 (CanLII) [DesRochers] at para 31). However, this does not alter the traditional approach to statutory interpretation, which requires us to read the words of an Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Thibodeau at para 112; Lavigne at para 25, quoting Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p 87).

[52] The purposes of the OLA also assist in interpreting it: […]

[53] In Beaulac at para 24, the Supreme Court of Canada stated that section 2 of the OLA affirms that the OLA protects and contemplates a substantive equality of languages in Canada. […]

LaRoque v. Société Radio-Canada , 2009 CanLII 35736 (ON SC)

[3] The fundamental importance to this country of the bicultural nature of its birth was further emphasized in the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), which gives English and French equal status as "official" languages having preferred status over all other languages in the country with respect to federal institutions. This Act is the keystone legislation of official bilingualism in Canada, the quality of this country that, in my view, by virtue of its effect on the character of its people, is a profound and resonating source of its national and international pride and strength.

[4] Language is more than the sum of its parts -- words. It is the vehicle by which ideas, thoughts, history, events, emotions and perspectives are expressed. It is a permanently open door to the ethos of the other; understanding, support, tolerance, development and security. Language sustains the past, the present and the future of the cultural identity of both the individual and his or her community. Its fundamental importance to the survival of the cultural whole cannot be overemphasized with respect to those communities of people whose numbers form a minority of the population of the area in which they live.

Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development), 2018 FC 530 (CanLII) [decision available in French only – Federal Court translation will be available in September 2018]

[41] La LLO est une loi fédérale dont l’objet est « d’assurer le respect du français et de l’anglais à titre de langues officielles du Canada, leur égalité de statut et l’égalité de droits et privilèges quant à leur usage dans les institutions fédérales » (Thibodeau c Air Canada, 2014 CSC 67 (CanLII) [Thibodeau CSC] au para 9). Elle vise aussi à préciser les pouvoirs et obligations des institutions fédérales en matière de langues officielles, et à appuyer le développement des minorités francophones et anglophones au Canada. En fait, « la LLO et ses règlements forment un régime légal complet qui régit toutes les questions qui ont trait aux droits linguistiques au sein des institutions fédérales » (Norton c Via Rail Canada, 2009 CF 704 (CanLII) [Norton] au para 61).

[42] La LLO comporte plusieurs parties. Les parties I à VI de la loi établissent une série de droits linguistiques dans de nombreux contextes, dont : les débats et travaux parlementaires; les actes législatifs et autres; l’administration de la justice; les communications avec le public; et la langue de travail. Plus particulièrement, la partie IV porte sur les communications avec le public et le droit d’être servi par les institutions fédérales dans la langue officielle de son choix. Au sein de la partie IV, l’article 21 prévoit le droit du public de communiquer avec les institutions fédérales et d’en recevoir les services dans la langue officielle de son choix. L’article 22 impose aux institutions fédérales l’obligation de veiller à ce que les membres du public puissent communiquer avec leurs bureaux et recevoir des services de qualité égale dans l’une ou l’autre des langues officielles là où l’emploi de cette langue fait l’objet d’une demande importante. L’article 25 dispose que les institutions fédérales doivent veiller à ce que les services offerts au public par des tiers pour leur compte le soient dans l’une ou l’autre des langues officielles dans le cas où, offrant elles-mêmes les services, elles seraient tenues à une telle obligation. L’article 27 prévoit que les obligations des institutions fédérales en matière de communications et services dans les deux langues officielles valent également, tant sur le plan de l’écrit que de l’oral, pour tout ce qui s’y rattache. Enfin, l’article 28 ajoute que les institutions fédérales doivent veiller à faire de l’offre active dans les deux langues officielles.

[…]

[46] Les droits linguistiques, il faut le souligner, constituent une pierre d’assise de la société canadienne. La LLO s’affiche comme une loi fondamentale du pays, étroitement liée aux valeurs et aux droits prévus par la Constitution canadienne, et notamment par la Charte. La Cour suprême lui a reconnu un statut quasi constitutionnel (Thibodeau CSC au para 12; DesRochers c Canada (Industrie), 2009 CSC 8 (CanLII) [DesRochers CSC] au para 2; Lavigne c Canada (Commissariat aux langues officielles), 2002 CSC 53 (CanLII) [Lavigne CSC] au para 25; R c Beaulac, 1999 CanLII 684 (CSC), [1999] 1 RCS 768 [Beaulac] au para 21). De nombreuses parties de la LLO ont d’ailleurs un ancrage constitutionnel, par exemple le paragraphe 20(1) de la Charte pour la langue de service et le paragraphe 16(1) pour la langue de travail. Le paragraphe 20(1) de la Charte se lit ainsi :

20. (1) Le public a, au Canada, droit à l'emploi du français ou de l’anglais pour communiquer avec le siège ou l'administration centrale des institutions du Parlement ou du gouvernement du Canada ou pour en recevoir les services; il a le même droit à l’égard de tout autre bureau de ces institutions là où, selon le cas :	20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
a) l’emploi du français ou de l'anglais fait l’objet d’une demande importante;	(a) there is a significant demand for communications with and services from that office in such language; or
b) l’emploi du français et de l’anglais se justifie par la vocation du bureau.	(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

[...]

[48] Les droits linguistiques au Canada « visent à protéger les minorités de langue officielle du pays et à assurer l’égalité de statut du français et de l'anglais » et ils « doivent dans tous les cas être interprétés en fonction de leur objet, de façon compatible avec le maintien et l’épanouissement des collectivités de langue officielle » (Beaulac aux para 25, 41; DesRochers CSC au para 31). Les tribunaux sont donc tenus d’interpréter la LLO, une loi quasi constitutionnelle, de façon libérale et téléologique (DesRochers CSC au para 31; Air Canada c Thibodeau, 2012 CAF 246 (CanLII) [Thibodeau CAF] au para 12). Les droits linguistiques doivent ainsi bénéficier d’une interprétation large et libérale et ce, de manière à favoriser la survie et l’épanouissement des minorités de langue officielle au Canada (DesRochers CSC au para 31; Beaulac au para 25). Dans le Renvoi : Droits linguistiques au Manitoba, 1985 CanLII 33 (CSC), [1985] 1 RCS 721 à la p 744, la Cour suprême, à l’unanimité, expliquait ainsi le rôle que jouent les droits linguistiques au sein de la société canadienne :

[…] L’importance des droits en matière linguistique est fondée sur le rôle essentiel que joue la langue dans l’existence, le développement et la dignité de l'être humain. C’est par le langage que nous pouvons former des concepts, structurer et ordonner le monde autour de nous. Le langage constitue le pont entre l’isolement et la collectivité, qui permet aux êtres humains de délimiter les droits et obligations qu’ils ont les uns envers les autres, et ainsi, de vivre en société.

[49] Dans l’arrêt Beaulac, au paragraphe 24, la Cour suprême a de plus consacré le principe directeur selon lequel la LLO protège et vise une égalité réelle au niveau des droits linguistiques au Canada:

Ce principe d’égalité réelle a une signification. Il signifie notamment que les droits linguistiques de nature institutionnelle exigent des mesures gouvernementales pour leur mise en œuvre et créent, en conséquence, des obligations pour l’État […]. Il signifie également que l’exercice de droits linguistiques ne doit pas être considéré comme exceptionnel, ni comme une sorte de réponse à une demande d’accommodement.

[50] Par conséquent, depuis l’arrêt Beaulac, « l’interprétation stricte des droits linguistiques a été écartée en faveur d’une approche téléologique fondée sur le principe de l’égalité réelle » (Canada (Procureur général) c Shakov, 2017 CAF 250 (CanLII) [Shakov] au para 116 (motifs dissidents, mais non sur ce point); DesRochers CSC au para 31; Lavigne CSC au para 22). Les obstacles administratifs ne peuvent donc pas servir d’excuses pour justifier le défaut d’offrir des services dans la langue de la minorité. En effet, « une demande de service dans la langue de la minorité de langue officielle ne doit pas être traitée comme s’il y avait une langue officielle principale et une obligation d’accommodement en ce qui concerne l’emploi de l’autre langue officielle » (Beaulac au para 39). Plus précisément, les dispositions prévues à la partie IV de la LLO doivent être interprétées d’une façon qui soit compatible avec le maintien et l’épanouissement des collectivités de langue officielle au Canada : « [l]’égalité réelle, par opposition à l’égalité formelle, doit être la norme et l’exercice des droits linguistiques ne doit pas être considéré comme une demande d’accommodement » (DesRochers CSC au para 31).

[51] Tant les droits et obligations de fond prévus à la LLO que les mécanismes procéduraux entourant les droits linguistiques doivent être interprétés de façon large et libérale. C’est le cas pour le paragraphe 77(2) de la LLO (Dionne c Canada (Procureur général), 2015 CF 862 au para 17). Dans le même esprit, le paragraphe 77(4) de la LLO, qui confère un vaste pouvoir de réparation aux tribunaux, doit « recevoir une interprétation généreuse afin que se réalise son objet » (Thibodeau CSC au para 112). Cette approche est conforme avec la vision selon laquelle les droits linguistiques doivent être interprétés « comme un outil essentiel au maintien et à la protection des collectivités de langue officielle là où ils s’appliquent », ce qui est uniquement réalisable si les mécanismes procéduraux bénéficient de cette approche large et libérale (Beaulac au para 25).

[52] Cela ne signifie cependant pas que les règles d’interprétation législative ordinaires n’ont plus leur place lorsqu’il s’agit d’interpréter la LLO (Thibodeau CSC au para 112; Charlebois c Saint John (Ville), 2005 CSC 74 (CanLII) [Charlebois] au para 23; Bell ExpressVu Limited Partnership c Rex, 2002 CSC 42 (CanLII) [Bell ExpressVu] au para 62). Tout au contraire, l’approche moderne d’interprétation des lois, selon laquelle il faut lire les termes d’une loi dans leur contexte global en suivant le sens ordinaire et grammatical qui s’harmonise avec l’économie de la loi, son objet et l’intention du législateur, continue toujours de s’appliquer même en matière de droits linguistiques (Caron c Alberta, 2015 CSC 56 (CanLII) au para 38; Thibodeau CSC au para 112; Lavigne CSC au para 25, citant Elmer A. Driedger, Construction of Statutes, 2nd ed, Toronto, Butterworths, 1983 à la p 87; voir aussi, au sujet de l’approche moderne d’interprétation des lois, Tran c Canada (Sécurité publique et Protection civile), 2017 CSC 50 (CanLII) au para 23 et Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (CSC), [1998] 1 RCS 27 [Rizzo] au para 21).

[…]

[84] Je suis bien conscient que les droits linguistiques doivent bénéficier d’une interprétation large et libérale susceptible de favoriser l’épanouissement et le développement des minorités de langue officielle au Canada. Mais cette interprétation large et libérale n’autorise pas la Cour à sortir du texte de la LLO, ou à s’écarter de la règle du stare decisis. Je m’attarde un instant à cette règle, considérant les propos tout récents de la Cour suprême à ce sujet dans l’affaire R c Comeau, 2018 CSC 15 (CanLII) [Comeau] et le fait que j’y référerai aussi plus loin dans les présents motifs. Suivant la règle du stare decisis dit vertical, « une juridiction inférieure est liée par les conclusions de droit particulières tirées par une juridiction supérieure susceptible d’être saisie, directement ou indirectement, de l’appel de ses décisions » (Tuccaro c Canada, 2014 CAF 184 (CanLII) au para 18). Cette règle est un principe fondamental de notre système juridique, auquel les tribunaux de première instance doivent adhérer. La Cour suprême l’a rappelé avec vigueur dans l’affaire Comeau, où elle s’exprimait ainsi au paragraphe 26 :

Les tribunaux de common law sont liés par les précédents faisant autorité. Ce principe — celui du stare decisis — est fondamental pour assurer la certitude du droit. Sous réserve d’exceptions extraordinaires, une juridiction inférieure doit appliquer les décisions des juridictions supérieures aux faits dont elle est saisie. C’est ce qu’on appelle le stare decisis vertical. Sans ce fondement, le droit fluctuerait continuellement, selon les caprices des juges ou les nouveaux éléments de preuve ésotériques produits par des plaideurs insatisfaits du statu quo.

[…]

[182] Les droits linguistiques doivent bénéficier d’une interprétation large et libérale susceptible de favoriser la survie et l’épanouissement des minorités de langue officielle au Canada, mais cette interprétation généreuse ne permet pas à la Cour de sortir du texte de la LLO et d’ignorer ce que le partage constitutionnel des compétences entre le Parlement et les provinces autorise.

[…]

[239] Un dernier mot sur l’objet de la loi. L’article 41 de la LLO fait état d’un « engagement » du gouvernement fédéral, soit celui de contribuer à la vitalité et l’épanouissement des CLOSM et à la promotion des deux langues officielles au Canada. Cet engagement reprend les grandes lignes d’un des attendus contenus au préambule de la loi et fait aussi écho à l’objet même de la LLO contenu à son article 2b). De plus, la partie VII de la LLO, qui s’intitule « Promotion du français et de l’anglais », a pour fondement les paragraphes 16(1) et 16(3) de la Charte, car elle a pour effet de codifier l’obligation du gouvernement fédéral de veiller au développement des communautés de langues officielles.

[…]

[256] Bref, comme l’ont plaidé les avocats des défendeurs, les tribunaux doivent toujours interpréter le texte de la loi en fonction des mots utilisés et dans son contexte global, incluant son historique, sa logique interne et son contexte législatif, et ils ne peuvent faire dire au texte de loi ce qu’il ne dit pas (R v DAI, 2012 SCC 5 (CanLII) [DAI] aux para 25, 49). Ils ne peuvent étendre une disposition au-delà des mots employés par le législateur et de la volonté législative exprimée, et se trouver à « [introduire] dans la disposition une condition que le législateur n’y a pas énoncée » (DAI au para 26).

[257] Cela demeure vrai en matière de droits linguistiques. L’interprétation large et libérale préconisée en matière linguistique ne doit pas faire fi des règles d'interprétation reconnues (Thibodeau CSC au para 112; Charlebois aux para 23-24; Desrochers CAF au para 41). Comme l’a souligné le juge Décary dans Forum des maires, « ce n’est pas parce qu’une loi est qualifiée de quasi-constitutionnelle que les tribunaux doivent lui faire dire ce qu’elle ne dit pas » (Forum des maires au para 40). Certes, les tribunaux doivent toujours considérer le régime légal comme une « solution de droit » et l’interpréter « de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet » (Loi d’interprétation, LRC 1985, c I-21, art 12). Ceci signifie, bien évidemment, que, dans le contexte de la LLO, les droits linguistiques doivent toujours recevoir une interprétation large et libérale, compatible avec le maintien et l’épanouissement des collectivités de langue officielle au Canada (Beaulac au para 25; FCFA au para 26). Mais une interprétation large et libérale des droits linguistiques ne peut transformer une obligation générale d’agir en une série de prescriptions ciblées alors que le législateur ne l’a pas dit et n’avait pas l’intention de le dire, et qu’il a spécifiquement réservé au pouvoir exécutif le droit et le devoir de le faire. Ce serait ignorer la retenue pour laquelle le législateur a clairement opté à la partie VII, et imposer aux institutions fédérales des obligations linguistiques que les pouvoirs législatif et exécutif se sont jusqu’à maintenant gardés d’exiger d’elles.

N.B. – This judgment is currently under appeal.

Doucet v. Canada , [2005] 1 FCR 671, 2004 FC 1444 (CanLII)

[79] It seems clear to the Court as well that equal access to services in both official languages means equal treatment. In my opinion, the procedure established by the RCMP, described by Staff Sgt. Hastey, is totally inadequate for the Francophone minority driving in the Amherst area. Motorists should not have to go out of their way or use a telephone or radio when they want to address a member of the RCMP in French. Such a service, which leaves much to be desired, absolutely fails to meet the objectives stated in section 2 of the OLA and is contrary to section 16 of the Charter, which recognizes the equality of both official languages.

Rogers v. Canada (Correctional Service), [2001] 2 FCR 586, 2001 CanLII 22031 (FC)

[59] Although the Act does not state that the Commissioner's report is binding on a court, it is surely evidence which is to be taken into consideration upon an application for a remedy under the Act. The Commissioner of Official Languages is specifically authorized to monitor the protection of language rights in accordance with the Act. The status of this Act as "quasi-constitutional legislation" was recognized by the Federal Court of Appeal in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, at page 386 as follows : [...]

[60] In my opinion, the nature of the Act as quasi-constitutional legislation means that a report of the Commissioner, after the conduct of an investigation, can be accepted as evidence that a breach of the Act has occurred. The findings and conclusion of the Commission were not seriously challenged by the respondent. Accordingly, I confirm the findings of the Commission that the staffing mode for the position in question should have been bilingual non-imperative, with a linguistic profile of CBC. Further, I find that the improper designation for the position breached the applicant's language rights.

Schreiber v. Canada, 1999 CanLII 8898 (FC)

[128] In applying the purposive approach adopted in Beaulac v. The Queen, supra, the starting point must be section 2 of the Official Languages Act. That section articulates in expansive and powerful terms the purpose of the Act, including the equality of status and equal rights and privileges of the use of English and French "...in all federal institutions...in communicating with or providing services to the public and in carrying out the work of federal institutions". Section 2 therefore affirms the substantive equality of the language rights recognized in the enactment. As indicated at page 791 of Beaulac v. The Queen, supra, the principle of substantive equality has meaning, and provides that institutionally based language rights "...require government action for their implementation and therefore create obligations for the State...".

Interpretation

3. (1) Definitions

3. (1) In this Act,

"Commissioner" means the Commissioner of Official languages for Canada appointed under section 49; (commissaire)

"Crown corporation" means

(a) a corporation that is ultimately accountable, through a Minister, to Parliament for the conduct of its affairs, and

(b) a parent Crown corporation or a wholly-owned subsidiary, within the meaning of section 83 of the Financial Administration Act; (sociétés d’État)

"department" means a department as defined in section 2 of the Financial Administration Act; (ministère)

"federal institution" includes any of the following institutions of the Parliament or government of Canada:

(a) the Senate,

(b) the House of Commons,

(c.1) the office of the Senate Ethics Officer and the office of the Conflict of Interest and Ethics Commissioner

(c.2) the Parliamentary Protective Service,

(d) any federal court,

(e) any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of Parliament or by or under the authority of the Governor in Council,

(f) a department of the Government of Canada,

(g) a Crown corporation established by or pursuant to an Act of Parliament, and

(h) any other body that is specified by an Act of Parliament to be an agent of Her Majesty in right of Canada or to be subject to the direction of the Governor in Council or a minister of the Crown,

but does not include

(i) any institution of the Legislative Assembly or government of Yukon, the Northwest Territories or Nunavut, or

(j) any Indian band, band council or other body established to perform a governmental function in relation to an Indian band or other group of aboriginal people; (institutions fédérales)

"National Capital Region" means the National Capital Region described in the schedule to the National Capital Act. (région de la capitale nationale)

3. (2) Definition of "federal court"

3. (2) In this section and in Parts II and III, "federal court" means any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament.

Annotations – Definition of “Federal Institution”

Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada , [2008] 1 S.C.R. 383, 2008 SCC 15 (CanLII)

[14] The RCMP, which is constituted under s. 3 of the RCMPA [Royal Canadian Mounted Police Act, R.S.C. 1985, c. R‑10], is responsible for enforcing federal laws throughout Canada. There is no doubt that the RCMP remains a federal institution at all times. This principle was confirmed in R. v. Doucet (2003), 222 N.S.R. (2d) 1, 2003 NSSCF 256, and in Doucet v. Canada, in which it was held that the RCMP retains its status as a federal institution when it acts under a contract with a province. This means that the RCMP cannot avoid the language responsibilities flowing from s. 20(1) of the Charter when it acts as a provincial police force. The Federal Court and the Federal Court of Appeal recognized this in the instant case. But s. 20 of the RCMP’s enabling statute provides that it may also be given responsibility for the administration of justice and law enforcement in provincial or municipal jurisdictions. As a result, the fact that, in light of its nature and by virtue of its constitution, the RCMP is and remains a federal institution does not answer the question before this Court.

3.2 Institutional Obligation

[15] Section 20(1) of the RCMPA authorizes the RCMP to enter into agreements with the provinces and enforce the laws in force therein. This is not in dispute. Provincial laws must, of course, be enforced in a manner consistent with the Constitution; there is no reason to think that the legislature might have intended anything else in this case. Does this pose a problem because the RCMP is a federal institution? I do not think so.

[...]

[19] The RCMP does not act as a separate federal institution in administering justice in New Brunswick; it assumes, by way of contract, obligations related to the policing function. The content of this function is set out in provincial legislation. Thus, in New Brunswick, the RCMP exercises a statutory power — which flows not only from federal legislation but also from New Brunswick legislation — through its members, who work under the authority of the New Brunswick government.

Commissioner of the Northwest Territories v. Canada , [2001] 3 FCR 641, 2001 FCA 220 (CanLII)

[26] Subsection 3(1) of the Official Languages Act, R.S.C., 1985 (4^th Supp.), c. 31 and section 2 of the Canadian Multiculturalism Act, R.S.C., 1985, (4^th Supp.), c. 24 state that the expression "federal institution" does not include, for the purposes of enforcement of these Acts, "any institution of the Council or government of the Northwest Territories". In addition, subsection 7(3) of the Official Languages Act states that ordinances of the Territories and the instruments made thereunder are not subject to the bilingualism requirements applicable to legislation made in the execution of a legislative power by the Governor in Council or federal ministers.

Doucet v. Canada , [2005] 1 FCR 671, 2004 FC 1444 (CanLII)

[34] In the case at bar, both parties acknowledge that, when patrolling Nova Scotia highways or responding to calls from citizens, the RCMP is a federal institution offering services to the public. The parties further agree that, as such, the RCMP is bound by the provisions of the OLA and the Charter on the right of Canadians and the public in general to communicate with federal institutions and receive services in either of the two official languages, at their choice.

[35]The fact that the RCMP performs policing duties in Nova Scotia under a contract entered into with the Province does not in any way alter its status as a federal institution. [...]

R. v. Doucet , 2003 NSSC 256 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[29] This is not at all about whether the R.C.M.P. is an institution of Parliament or of the Government of Canada. It is established under the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10. The R.C.M.P. is a national police force. Does the R.C.M.P. lose its federal status when it performs all duties of peace officers under contract with a province or when it enforces compliance with provincial laws? In this province, the R.C.M.P. enforces all laws, federal or not, in districts where it is hired on a contract basis by the provincial government. The trial judge found that [Translation] “the act of issuing the (speeding) ticket was not, in that circumstance, an activity of the federal government.” There is no doubt that members of the R.C.M.P. are mandated to enforce both provincial and federal laws. Section 18 of the R.C.M.P. Act stipulates the following:

18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;

(b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers;

(Emphasis added.)

[31] In my opinion, members of the R.C.M.P. do not lose their federal status when they act under contract with a province or enforce provincial laws. It is their mandate under the R.C.M.P. Act and they are simply fulfilling it. Thus, it is still a service of a federal institution. Subsection 20(1) of the R.C.M.P. Act supports this finding:

20 (1) The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.

[32] In my opinion, a contract with a province does not change anything with respect to the status of the R.C.M.P. It remains a federal institution. To decide otherwise would allow the R.C.M.P. to avoid its language obligations to citizens, as guaranteed by the Charter. This would certainly not be consistent with the purpose of constitutional language rights. Justice Bastarache commented on this issue in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, when he stipulated the following at paragraph 25:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850.

[33] Federal institutions are not permitted to avoid their constitutional language obligations through contracts or other arrangements that transfer or delegate some of their functions. […]

In my opinion, subsection 20(1) of the Charter applies to this case. Finding otherwise could have the illogical effect of giving an accused constitutional language rights if he or she were arrested for a federal offence, but not if he or she were, at the same time, arrested for a provincial offence. The conduct of the R.C.M.P., acting as a police force by enforcing provincial laws, is the conduct of a federal institution, regardless of whether it is under contract with a province, and the requirements of subsection 20(1) of the Charter apply to that conduct. The R.C.M.P. has a protocol to provide services in both official languages if there is a need, even on roads.

Lavigne v. Canada (Human Resources Development), [2002] 2 FCR 165, 2001 FCT 1365 (CanLII)

[63] The applicant seeks relief under Part X of the OLA. The Federal Court Trial Division is the tribunal designated to grant relief under the OLA but that relief can only be granted, pursuant to subsection 77(4), if the Court concludes that a federal institution has failed to comply with the OLA. The term "federal institution", is defined in section 3 of the OLA. The two Quebec respondents, the Quebec Minister of Labour and Employment and Quebec's Attorney General are not federal institutions. This is in recognition of Canada's limited constitutional jurisdiction (as well as Quebec's for that matter) in matters related to language as decided by the Supreme Court of Canada in Jones v. Attorney General for New-Brunswick, [1975] 2 S.C.R. 182.

Annotations – Definition of “Federal Court”

DesRochers v. Canada (Industry), [2009] 1 S.C.R. 194, 2009 SCC 8 (CanLII)

[35] Although the complaint to the Commissioner [of Official Languages of Canada] and the investigation that follows form the basis for the remedy, it must be made clear that the Commissioner is not a tribunal for the purposes of the OLA and that an application under s. 77 is not an application for judicial review.

Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 4 FCR 276, 2004 FCA 263 (CanLII)

[16] The Commissioner [of Official Languages], it is important to keep in mind, is not a tribunal. She does not, strictly speaking, render a decision; she receives complaints, she conducts an inquiry, and she makes a report that she may accompany with recommendations (subsections 63(1), (3)). If the federal institution in question does not implement the report or the recommendations, the Commissioner may lodge a complaint with the Governor in Council (subsection 65(1)) and, if the latter does not take action either, the Commissioner may lodge a complaint with Parliament (subsection 65(3)). The remedy, at that level, is political.

Devinat v. Canada (Immigration and Refugee Board), [2000] 2 FCR 212, 1999 CanLII 9386 (FCA)

[22] There is no doubt that the [Immigration and Refugee] Board is a "federal board, commission or other tribunal" within the meaning of subsection 2(1) [as am. by S.C. 1990, c. 8, s. 1] of the FCA [Federal Court Act]. This "federal board, commission or other tribunal" is also subject to the OLA and to the provisions of that Act since it is a "federal court" within the meaning of subsection 3(2) and section 20 of the OLA. Subsection 3(2) defines a "federal court" as "any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament". It must then be determined whether, as the respondent argued, the action brought by the appellant is excluded by Part X of the OLA.

[...]

[53] It was admitted by each of the parties that the OLA applies to the respondent since it is a "federal court" within the meaning of subsection 3(2) of the OLA.

Belair v. Canada (Solicitor General), 2000 CanLII 14967 (FC)

[7] Section 3 of the Act states that a federal court is any "body that carries out adjudicative functions and is established by or pursuant an Act of Parliament". It was not in dispute that the inmate disciplinary tribunal was created pursuant to a federal statute, the Corrections and Conditional Release Act.

[8] The only question is whether this tribunal "carries out adjudicative functions", which is the phrase that appears in the English version of the Act.

[9] If this were the first time that the question had arisen, I would consider that the disciplinary tribunal carried out adjudicative functions because of the consequences which the decision of the tribunal entails for inmates, such as a fine, restrictive conditions and so on.

[10] However, the Supreme Court and the Federal Court of Appeal have held that this type of tribunal is an administrative tribunal and so is not a tribunal that carries out adjudicative functions. I refer to Martineau v. Matsqui Institution Disciplinary Board, [1978] 1 S.C.R. 118 (Martineau No. 1), [1980] 1 S.C.R. 602 (Martineau No. 2.) and Hanna v. Mission Establishment, [1995] F.C.J. No. 1370 (F.C.A.) […].

[13] Accordingly, a disciplinary tribunal is not a tribunal which carries out adjudicative functions within the Official Languages Act, and the application for judicial review must be dismissed.

Part I – Proceedings of Parliament

4. (1) Official languages of Parliament

4. (1) English and French are the official languages of Parliament, and everyone has the right to use either of those languages in any debates and other proceedings of Parliament.

4. (2) Simultaneous interpretation

4. (2) Facilities shall be made available for the simultaneous interpretation of the debates and other proceedings of Parliament from one official language into the other.

4. (3) Official reports

4. (3) Everything reported in official reports of debates or other proceedings of Parliament shall be reported in the official language in which it was said and a translation thereof into the other official language shall be included therewith.

Annotations

Knopf v. Canada (Speaker of the House of Commons), 2007 FCA 308 (CanLII)

[9] The Committee [House of Commons Standing Committee on Canadian Heritage] adequately respected Mr. Knopf’s right to address himself to its members in the language of his choice. The first Judge was right in concluding that the Committee, through its decision not to distribute the documents sent by the appellant, did not infringe on Mr. Knopf’s language rights, as provided for in section 4 of the Act.

[...]

[38] Subsection 4(1) of the Act reiterates the right first recognized by section 133 of the Constitution Act, 1867 and reaffirmed by subsection 17(1) of the Charter. These three sections recognize the right of any person participating in parliamentary proceedings “to use” (d’employer) English or French. Subsection 4(1) of the Act, as well as subsection 17(1) of the Charter create a scheme of unilingualism at the option of the speaker or writer, who cannot be compelled by Parliament to express himself or herself in another language than the one he or she chooses (See MacDonald v. City of Montreal et al., [1986] 1 S.C.R. 460, at page 483).

[39] However, in some other language rights provisions, such as subsection 20(1) of the Charter and section 25 of the Act, the legislator chose the term “to communicate” (communiquer). In my opinion, this is not accidental.

[40] To “communicate” presupposes interactions, bilateral actions between the parties. The verb “to use” does not encompass such interaction. The right is unilateral: one has the right to address the House of Commons in the official language of his choice. In the case at bar, Mr. Knopf made his opinion known on particular topics of interest to the Committee and filed his documents. There stops his right under subsection 4(1) of the Act.

[41] I do not read into subsection 4(1) of the Act any requirement for a Committee to distribute documents to its members in one official language. Subsection 4(1) of the Act provides the appellant with a right to address the Committee in the language of his choice only. Once this right has been exercised, subsection 4(1) of the Act does not compel the Committee to act in a certain way with the oral or written information provided to it.

[42] Justice Layden‑Stevenson was right in finding that the distribution of documents does not fall within the scope of subsection 4(1) of the Act. The right to use an official language of choice does not include the right to impose upon the Committee the immediate distribution and reading of documents filed to support one’s testimony. The decision on how and when to treat the information received from a witness clearly belongs to the Committee. I find, therefore, that the appellant’s language rights were not infringed upon.

Voir également :

Quigley v. Canada (House of Commons), [2003] 1 FCR 132, 2002 FCT 645 (CanLII)

Part II – Legislative and Other Instruments

5. Journals and other records

5. The journals and other records of Parliament shall be made and kept, and shall be printed and published, in both official languages.

6. Acts of Parliament

6. All Acts of Parliament shall be enacted, printed and published in both official languages.

7. (1) Legislative instruments

7. (1) Any instrument made in the execution of a legislative power conferred by or under an Act of Parliament that

(a) is made by, or with the approval of, the Governor in Council or one or more ministers of the Crown,

(b) is required by or pursuant to an Act of Parliament to be published in the Canada Gazette, or

shall be made in both official languages and, if printed and published, shall be printed and published in both official languages.

7. (2) Instruments under prerogative or other executive power

7. (2) All instruments made in the exercise of a prerogative or other executive power that are of a public and general nature shall be made in both official languages and, if printed and published, shall be printed and published in both official languages.

7. (3) Exceptions

7. (3) Subsection (1) does not apply to

(a) a law made by the Legislature of Yukon, of the Northwest Territories or for Nunavut, or any instrument made under any such law, or

(b) a by-law, law or other instrument of an Indian band, band council or other body established to perform a governmental function in relation to an Indian band or other group of aboriginal people,

by reason only that the ordinance, by-law, law or other instrument is of a public and general nature.

Annotations – Subsection 7(1)

Picard v. Commissioner of Patents , 2010 FC 86 (CanLII)

[28] In my opinion, a patent does not meet the formal criterion developed by the Supreme Court in Reference re Manitoba Language Rights, supra, at p. 224, because it is not made by a government or subject to approval by a government, and no positive action by the government is required to breathe life into it. The Supreme Court determined that the bilingualism requirement applied to instruments about which it can be said that “positive action of the Government is required to breathe life into them” in Blaikie, supra, at p. 329. If we read that decision, it is clear that when the Supreme Court referred to “the Government” it was referring to Cabinet, not the entire executive branch (see, in particular, pp. 319‑21). No “positive action” by the federal Cabinet is required to “breathe life into” a patent. The patent is effective once it is issued by the Commissioner.

[29] A patent also does not meet the content criterion because it does not have “force” of law in the sense in which the Supreme Court used that expression, because it is not a unilateral rule. The text of a patent is proposed by the inventor. The Commissioner can neither create a patent on his own initiative nor even modify a single word in a patent application

[30] The requirement that an instrument be “made in the execution of a legislative power” is essential in order for subsection 7(1) of the Official Languages Act to apply. Patents do not meet that requirement and so that provision is not applicable in this case.

Annotations – Subsection 7(2)

Picard v. Commissioner of Patents , 2010 FC 86 (CanLII)

[31] The applicant’s argument concerning subsection 7(2) of the Official Languages Act, which makes it mandatory for “[a]ll instruments made in the exercise of a prerogative or other executive power that are of a public and general nature” to be published in both official languages, also cannot be accepted. The origin of patents, in English law, indeed “rests in the royal prerogative of granting letters patent” (Adam Mossoff, “Rethinking the Development of Patents: An Intellectual History, 1550-1800”, 52 Hastings L.J. 1255 at p. 1259), and a patent was therefore, initially, “an instrument made in the exercise of a prerogative”.

[32] However, the rules relating to Crown prerogative are merely common law rules, which can be ousted by legislation. Accordingly, when a statute occupies a field formerly left to Crown prerogative, the statute is the source of the executive power to do what was formerly authorized by the prerogative. The Patent Act creates a complete statutory scheme which, in Canada, replaces the Crown prerogative to grant a patent for an invention. Accordingly, subsection 7(2) of the Official Languages Act does not apply to patents.

Annotations – Subsection 7(3)

Commissioner of the Northwest Territories v. Canada , [2001] 3 FCR 641, 2001 FCA 220 (CanLII)

8. Documents in Parliament

8. Any document made by or under the authority of a federal institution that is tabled in the Senate or the House of Commons by the Government of Canada shall be tabled in both official languages.

9. Rules, etc., governing practice and procedure

9. All rules, orders and regulations governing the practice or procedure in any proceedings before a federal court shall be made, printed and published in both official languages.

10. (1) International treaties

10. (1) The Government of Canada shall take all possible measures to ensure that any treaty or convention between Canada and one or more other states is authenticated in both official languages.

10. (2) Federal-provincial agreements

10. (2) The Government of Canada has the duty to ensure that the following classes of agreements between Canada and one or more provinces are made in both official languages and that both versions are equally authoritative:

(a) agreements that require the authorization of Parliament or the Governor in Council to be effective;

(b) agreements entered into with one or more provinces where English and French are declared to be the official languages of any of those provinces or where any of those provinces requests that the agreement be made in English and French; and

(c) agreements entered into with two or more provinces where the governments of those provinces do not use the same official language.

10. (3) Regulations

10. (3) The Governor in Council may make regulations prescribing the circumstances in which any class, specified in the regulations, of agreements that are made between Canada and one or more other states or between Canada and one or more provinces

(a) must be made in both official languages;

(b) must be made available in both official languages at the time of signing or publication; or

Annotations:

Wolf v. Canada , [2002] 4 FCR 396, 2002 FCA 96 (CanLII)

[99] As mandated by subsection 10(1) of the Official Languages Act (R.S.C. 1985, c. 31 (4th Supp.)), the Government of Canada ensured that the Convention [between Canada and the United States of America with Respect to Taxes on Income and on Capital] was “authenticated in both official languages” of Canada. The penultimate paragraph of the Convention expressly states that the Convention was “done in the French and English languages, each text being equally authentic”. The applicable rule of interpretation is, therefore, that expressed more than a century ago by J.B. Moore, A treatise on extradition and interstate rendition, Boston, Boston Books Co., 1891, vol. 1, no. 88, p. 100:

Where a treaty is executed in two or more languages, those of the respective contracting parties, each text is regarded as an original, and as intended to convey the same meaning as the other.

(see Beaupré, Interprétation de la législation bilingue, Montréal, Wilson-Lafleur, 1986, at 94ff; P.G.C. c. Mekies et P.G. du Québec, [1977] C.A. 352 (Que. C.A.))

11. (1) Notices, advertisements and other matters that are published

11. (1) A notice, advertisement or other matter that is required or authorized by or pursuant to an Act of Parliament to be published by or under the authority of a federal institution primarily for the information of members of the public shall,

(a) wherever possible, be printed in one of the official languages in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that language and in the other official language in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that other language; and

(b) where there is no publication in general circulation within a region where the matter applies that appears wholly or mainly in English or no such publication that appears wholly or mainly in French, be printed in both official languages in at least one publication in general circulation within that region.

11. (2) Equal prominence

11. (2) Where a notice, advertisement or other matter is printed in one or more publications pursuant to subsection (1), it shall be given equal prominence in each official language.

12. Instruments directed to the public

12. All instruments directed to or intended for the notice of the public, purporting to be made or issued by or under the authority of a federal institution, shall be made or issued in both official languages.

Annotations

Northwest Territories (Attorney General) v. Fédération Franco-Ténoise , 2008 NWTCA 6 (CanLII)

[278] As neither the terms “Government” nor “Legislature” is synonymous with “Legislative Assembly”, and because Hansard is a publication of the Speaker, it follows that Hansard is not covered by s. 8 [of the Northwest Territories Official Languages Act].

[279] The counterpart provisions in the OLAC [Official Languages Act of Canada] and OLANB [ Official Languages Act of New Brunswick] differ from the OLA [of the Northwest Territories]. Section 12 of the OLAC refers to instruments made or issued under the authority of a “federal institution”. The OLANB has two similar provisions, both of which are worded more generally than the OLA. Section 14 refers to “Notices, advertisements and other announcements of an official nature” without mentioning their source. Section 15 relates to notices, announcements and other documents required to be published under the OLANB or another Act “by the Province or its institutions”. The wording of these statutes further supports the conclusion that Hansard does not fall under s. 8 of the OLA.

Centre québécois du droit de l’environnement v. National Energy Board , 2015 FC 192 (CanLII)

[...] In the alternative, the moving parties maintained that they could also avail themselves of section 12 of the OLA, which sets out that “[a]ll instruments directed to or intended for the notice of the public, purporting to be made or issued by or under the authority of a federal institution, shall be made or issued in both official languages”. However, that provision clearly does not apply in this case because the application filed by Energy East did not originate from the [National Energy] Board.

The moving parties raised this Court’s decision in Picard v Canada (Commissioner of Patents), 2010 FC 86 (CanLII); that decision, however, does not support their claim. In that case, the applicant maintained that he was entitled to a French version of a patent application filed with the Commissioner of Patents of Canada. While acknowledging that a patent is “directed to or intended for the notice of the public”, Justice Tremblay-Lamer nevertheless rejected the application of section 12 of the OLA on the ground that patents do not originate from a federal institution, but from an inventor. The Court also explicitly stated that the Patent Office has no obligation to translate applications submitted to it (at paragraphs 48-49):

For one thing, in that situation, an applicant for a patent would, if they wished to retain control of the application, have to understand and approve the translation done of the patent. That is in direct contradiction with the objective of the Official Languages Act, which is to implement the constitutional guarantee of everyone’s right to communicate with federal institutions in either official language, at their option.

For another, if the inventor is required to approve the translation of their application without understanding it, the objective of the patent system, to give inventors control over their applications and place full responsibility for the resulting patent on them, would be compromised. In addition, where there was a discrepancy between the two versions of the patent, an interpretation of the patent based on the objectives of the inventor, as advocated by the Supreme Court in Free World, supra, would become impossible, unless it were recognized that the “original” version of the patent, the one in the language of the inventor’s application, took precedence over the translation. The effect of such recognition would be to cancel out any benefit for linguistic equality resulting from the fact that both versions of a bilingual instrument are equally authoritative, under section 13 of the Official Languages Act.

Those reasons are equally valid, it seems to me, in the context of an application for the construction of a pipeline system to the Board. As a result, section 12 of the OLA also does not apply here. The same is true for Part IV of the OLA, also raised by the moving parties. That part concerns communications with and services to the public. It is clear that the Board is an organization that exercises quasi-judicial functions and is not an institution that provides services. The moving parties also failed to substantiate their arguments on this point and were unable to provide any precedent in support of their claims.

Picard v. Commissioner of Patents , 2010 FC 86 (CanLII)

[40] In my opinion, a patent is a hybrid instrument, both private and public. Its authority derives from the approval by a public institution, the Commissioner, but its content is determined by a private person, the inventor. In exchange for disclosure of that content, the inventor obtains a right that is characterized as both a monopoly and a private property right. In the past a patent was a privilege deriving from royal favour, and today it is a title deed confirming a right created by law. […]

[43] Contrary to what the respondents argue, I am of the opinion that patents are public documents. Although the issuance of patents is now authorized by a statute and patents are issued on the conditions set out in the statute, they are nonetheless letters patent. Blackstone explained that letters patent are “open letters, literae patentes: so called, because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large” (William Blackstone, Commentaries on the Laws of England: a Facsimile of the First Edition 1765–1769, Chicago, University of Chicago Press, 1979, vol. 2 at p. 346; emphasis added). The fact that a patent, like letters patent confirming any other royal grant, are ostensibly intended for the owner does not change the fact that they are public in nature.

[44] It is also easy to understand the importance of a patent being public. A patent is different from a title deed to movable or immovable property in that it is a monopoly, which means that it grants “the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used” (Patent Act, section 42). It therefore creates an exception to the general principles of free commerce and even of freedom itself, under which people should be free to “make, construct and sell to others” anything in which there is no law prohibiting commerce. An individual must therefore be able to know what they are not entitled to “make, construct, use or sell”, when, hypothetically, they may do that with anything that is not banned from commerce by law.

[45] However, although a patent is directed to or intended for the notice of the public, it is made or issued not by a federal institution, but by the inventor. Notwithstanding the fact that it originates in the discretionary exercise of Crown prerogative, a patent today represents recognition of a right rather than the expression of the favour of the sovereign. The role of the Commissioner of Patents is limited to ascertaining that the patent application submitted by the inventor meets the requirements laid out in Patent Act and the regulations made under that Act. Section 27 of the Patent Act gives the Commissioner no discretion in that regard: if the requirements are met, he must issue the patent (Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76, [2002] 4 S.C.R. 45, at paragraph 144).

[46] When the Commissioner of Patents issues a patent, he confirms the inventor’s right, but it is the inventor who defines the scope of their right by writing the claims. The text of a patent, including when it results from amendments made to the patent application, is proposed by the inventor, and the inventor is responsible for it. If the inventor proposes a text that is too restrictive, they will have to bear the potential loss of profits resulting from the fact that the “field” of the monopoly granted to them is too narrow; if they propose a text that is too vague, they risk having the patent subsequently found by a court to be invalid. A patent is therefore really made or issued by the inventor, not by the Commissioner of Patents. As a result, section 12 of the Official Languages Act does not apply.

[47] In addition, the translation of patents by the Patent Office would lead to serious tensions between the various objectives of the Canadian patent system and the Official Languages Act, and this suggests to me that Parliament never contemplated that Act applying to patents.

[48] For one thing, in that situation, an applicant for a patent would, if they wished to retain control of the application, have to understand and approve the translation done of the patent. That is in direct contradiction with the objective of the Official Languages Act, which is to implement the constitutional guarantee of everyone’s right to communicate with federal institutions in either official language, at their option.

[49] For another, if the inventor is required to approve the translation of their application without understanding it, the objective of the patent system, to give inventors control over their applications and place full responsibility for the resulting patent on them, would be compromised. In addition, where there was a discrepancy between the two versions of the patent, an interpretation of the patent based on the objectives of the inventor, as advocated by the Supreme Court in Free World, supra, would become impossible, unless it were recognized that the “original” version of the patent, the one in the language of the inventor’s application, took precedence over the translation. The effect of such recognition would be to cancel out any benefit for linguistic equality resulting from the fact that both versions of a bilingual instrument are equally authoritative, under section 13 of the Official Languages Act.

[50] Given all these difficulties, we can draw a parallel with the reasoning of Bastarache J. and the majority of the Supreme Court in Harvard College, supra, at paragraph 167, and conclude that the fact that the Official Languages Act and the Patent Act, as they now stand, do not allow for proper handling of the translation of patents is a sign that Parliament never intended that the words “instruments directed to or intended for the notice of the public, purporting to be made or issued by or under the authority of a federal institution” would cover patents.

13. Both versions simultaneous and equally authoritative

13. Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.

Annotations

R. v. Daoust , [2004] 1 S.C.R. 217, 2004 SCC 6 (CanLII)

[26] The Court has on several occasions discussed how a bilingual statute should be interpreted in cases where there is a discrepancy between the two versions of the same text. […] I would also draw attention to the two-step analysis proposed by Professor Côté in The Interpretation of Legislation in Canada (3^rd ed. 2000), at p. 324, for resolving discordances resulting from divergences between the two versions of a statute:

Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing [sic] the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained.

[27] There is, therefore, a specific procedure to be followed when interpreting bilingual statutes. The first step is to determine whether there is discordance. If the two versions are irreconcilable, we must rely on other principles: see Côté, supra, at p. 327. A purposive and contextual approach is favoured: see, for example, Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 27; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33.

[28] We must determine whether there is an ambiguity, that is, whether one or both versions of the statute are “reasonably capable of more than one meaning”: Bell ExpressVu, supra, at para. 29. If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, we must look for the meaning that is common to both versions: Côté, supra, at p. 327. The common meaning is the version that is plain and not ambiguous: Côté, supra, at p. 327; see Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610, at p. 614; Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, at p. 863.

[29] If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version: Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 669; Pfizer Co. v. Deputy Minister of National Revenue For Customs and Excise, [1977] 1 S.C.R. 456, at pp. 464-65. Professor Côté illustrates this point as follows, at p. 327:

There is a third possibility: one version may have a broader meaning than another, in which case the shared meaning is the more narrow of the two.

[30] The second step is to determine whether the common or dominant meaning is, according to the ordinary rules of statutory interpretation, consistent with Parliament’s intent: Côté, supra, at pp. 328-329. At this stage, the words of Lamer J. in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1071, are instructive:

First of all, therefore, these two versions have to be reconciled if possible. To do this, an attempt must be made to get from the two versions of the provision the meaning common to them both and ascertain whether this appears to be consistent with the purpose and general scheme of the Code.

[31] Finally, we must also bear in mind that some principles of interpretation may only be applied in cases where there is an ambiguity in an enactment. As Iacobucci J. wrote in Bell ExpressVu, supra, at para. 28: “Other principles of interpretation — such as the strict construction of penal statutes and the ‘Charter values’ presumption — only receive application where there is ambiguity as to the meaning of a provision.”

Frankie v. Canada (Commissioner of Corrections), [1993] 3 FCR 3, 1993 CanLII 2962 (FCA)

[52] I would also add that unlike the case in English, it is a principle of legislative drafting in the French language that specific fore-references are the exception, rather than the rule and are only used when absolutely necessary. For example the guide canadien de réduction législative française (permanent edition), section “Références législatives”, updated January, 1993 and published by the federal Department of Justice states at page 1:

[Translation] To refer in legislation to all or part of some other provision, the Francophone drafter uses techniques quite different from those employed by the anglophone drafter, and generally more indirect than the latter.

The tendency in English drafting, even in short sections, to multiply references whether internal or otherwise may be explained by the way in which drafting techniques originating in Britain have evolved. In French drafting, references are reserved only for cases in which it is important to avoid any ambiguity. [...]

[55] It is true that section 13 of the Official Languages Act provides that both versions of the Act are equally authoritative. But this provision co-exists with section 12 of the Interpretation Act which commands that a legislative enactment must be construed in a manner “as best ensures the attainment of its objects”, and also with common law rule that “when construing the terms of any provision found in a statute [courts are bound] to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.”.

Nordlandsbanken v. Ship Nor-Fisk I et al. (1993), 1993 CarswellNat 411, 39 A.C.W.S. (3d) 307, 62 F.T.R. 103 [hyperlink not available]

[18] For purposes of defining "process", variously expressed as "the process" or "any process" or "other process" (of the Court) it would have been most helpful to be able to resort to a definition promulgated in the Interpretation Act, R.S.C. 1985, Chap. I-21. Alas, there is no definition of "process" in that statute. It is, however, not the only interpretation statute to which one can resort. The other is the Official Languages Act, R.S.C. 1985, Chap. 31 (4th Supp.). By its sections 6, 7 and 13 that Act provides not only that any Act of Parliament, instrument, rule or regulation be made in both official languages, but also that "both language versions are equally authoritative". That being so, each version is an interpretation statute for the other, if not a kind of dictionary for the other where specified documents, objects or materials, are mentioned by name or specific designation or description. They are usually nouns, in effect.

[19] Thus, in sections 55 and 56 of the Federal Court Act the equally authoritative French-language version expresses "process" as "moyens de contrainte". The French-language term is also of generic nature, although somewhat more specific and self-explaining than the English-language term. In section 56 (analogy to provincial process) the comparisons made therein illustrate the generic nature of "process/moyens de contrainte" by expressing the specifics as examples of the general: thus - "any writs of execution or other process/les brefs de saisie-exécution ou autres moyens de contrainte". Several bilingual dictionaries have been drawn to the Court's attention, such as: Cassell's French-English Dictionary, MacMillan Publishing Co., New York; Jules Jéraute's Vocabulary of Legal Terms and Phrases, Librairie Générale de Droit et de Jurisprudence, Paris; Larousse Dictionnaire Moderne Français-Anglais, Paris.

[20] The English-language meanings for "moyens" and "contrainte" expressed in the above cited sources are in juridical terms, these: […]

[21] This Court makes frequent use of the Ontario English-French Legal Lexicon, published by the Ministry of the Attorney General of that province. The November, 1984, edition translates "process" as an "acte de procédure émanant du tribunal". What is a unifying element here is that the process emanates from the Court. Process is not that which parties put into, or file with the Court: it is that which the Court issues, or addresses, to either an enforcement officer - a sheriff, marshal or bailiff - or to the person or party who is commanded to comply with the Court's order or command. The same meaning inheres in the non-exclusive definition of "process" enacted in section 1 of the Sheriff Act, RSBC 1979, Chap. 386:

"process" includes a writ, petition, warrant or order issued under the seal of the court, a judge's summons or order, a notice, subpoena and other proceeding at law or otherwise.

(emphasis not in original text)

Although the definition ends curiously with "or otherwise" (instead, for example, with "or similar means, measures or instrumentalities", or words importing similitude, rather than difference) it surely illustrates coercive measures emanating from the Court or a judge thereof.

Part III – Administration of Justice

14. Official languages of federal courts

14. English and French are the official languages of the federal courts, and either of those languages may be used by any person in, or in any pleading in or process issuing from, any federal court.

Annotations

Ewonde v. Canada , 2017 FC 1120 (CanLII)

[5] The Federal Court of Appeal provided a summary in Ewonde, at paras 1-9, noting, among other things, that: Mr. Ewonde commenced his actions in English although French is his mother tongue; he was self-represented at various times; and, he failed to follow through with the orders of the Case Management Judge.

[6] With respect to the Defendant’s Motion to Dismiss, Mr. Ewonde advised the Court by a letter in French that he could no longer represent himself in English, as he had in the past, with the assistance of fellow inmates. The Case Management Judge agreed with the Defendant that Mr. Ewonde could have initiated his actions in French or made a timelier request to change the language of the proceedings. The Case Management Judge directed Mr. Ewonde to respond to the motions within 14 days. Mr. Ewonde did not do so. As a result, a judge of the Federal Court granted the Defendant’s motion to dismiss the actions.

[7] On appeal, Justice Johanne Trudel found that, although there had been an inordinate delay, the crucial issue was the Court’s failure to address Mr. Ewonde’s language rights, noting at para 14:

[14] It would be an understatement to say that the appellant’s progress in the five years since the commencement of these proceedings has been unsatisfactory. On that ground alone, I could accept that the Judge had evidence supporting his Orders. But this is not the end of the matter, as the Judge and, before him, the Prothonotary, failed to respond to the substance of the appellant’s request to continue his actions in French. Neither the Judge nor the Prothonotary addressed Mr. Ewonde’s constitutional right to choose French in the context of his Court proceedings. In my respectful view, this omission amounts to an error of law.

[8] With respect to the fact that Mr. Ewonde had previously participated in the proceedings in both English and French and may have appeared to be bilingual, Justice Trudel emphasized that the right to express yourself in the language of your choice prevails, at para 17:

[17] Bilingual people do not have weaker constitutional language rights than unilingual people. As this Court recently noted in Industrielle Alliance, Assurance et service financiers inc. v. Mazraani, 2017 FCA 80 (CanLII) at paragraph 10:

Significantly, a person’s ability to express him or herself in both official languages does not impact such person’s constitutional right to choose either French or English in the context of court proceedings. One’s ability to speak both official languages is “irrelevant”. In the words of the Supreme Court of Canada in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193 at paragraph 45 [Beaulac]:

In the present instance, much discussion was centered on the ability of the accused to express himself in English. This ability is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity.

[…]

[10] Justice Trudel found that the Case Management Judge had erred in suggesting that Mr. Ewonde could continue to plead in English because he was capable of doing so in the past, noting that the right to plead in either official language is enshrined in section 14 of the Official Languages Act .

[…]

[12] As noted above, to remedy the Court’s error, Justice Trudel granted the Plaintiff three weeks to serve and file his motion records in the official language of his choice in reply to the Defendant’s motion to dismiss his actions, with the next step being the reconsideration by this Court of the Defendant’s motion.

[…]

[32] I have considered the submissions of the Defendant that the reconsideration of the motions has provided the remedy to address any contraventions of Mr. Ewonde’s rights to participate in his proceedings in English or French. I do not agree that the issues highlighted by the Court of Appeal have been remedied or can be isolated to focus only on the opportunity to respond to the Defendant’s Motions to dismiss.

As Justice Trudel highlighted, the Court has a positive duty to encourage and facilitate access to its services in either official language. This duty calls on the Court to give practical effect to the right to pursue litigation in either one of Canada’s two official languages. In the present case, that would not be accomplished by simply concluding that the Plaintiff has now had an opportunity to respond to the current motions in his language of choice. While I agree that the Plaintiff’s explanation for his many delays and non-compliance with Directions, timelines and other procedural requirements cannot all be attributed to his language abilities or his choice to use English or French, I cannot determine whether and to what extent some of the steps and timelines imposed leading up to the Motion to dismiss were affected by the Plaintiff’s language abilities. Nor can I speculate with respect to any additional prejudice the Defendant may suffer. However, the passage of time generally poses challenges for both the Plaintiff in the proof of the claims and the Defendant in its defence.

[33] The Plaintiff’s submits that some of the past delays and non-compliance were due to the need to rely on other inmates to assist him to understand and to respond in English. It is not possible to conclude whether the significant delays were caused by language barriers or otherwise. To ensure that the Plaintiff’s language rights are fully protected and respected, the Defendant’s Motions to dismiss the action cannot be granted.

N.B. – This decision dismissed the Defendant’s motions and confirms the Court of Appeal decision in Ewonde v. Canada, 2017 FCA 112 (CanLII).

Ewonde v. Canada , 2017 FCA 112 (CanLII)

[2] The appellant (or Mr. Ewonde) is an inmate serving a long sentence in a federal prison. He has commenced three actions in the Federal Court, all drafted in English. However, Mr. Ewonde is from Montreal, and French is his mother tongue.

[...]

[5] As a result, on January 25, 2016, the respondent filed motions to dismiss the appellant’s actions for delay.

[6] Mr. Ewonde replied to these motions in French, claiming that he was no longer capable of adequately representing himself in English, his second language. His English skills had been supported in the past by both former counsel and his fellow inmates in his former institution in British Columbia, supports that were no longer available to him at his new institution in Ontario (see Appeal Book, Tab 6 at page 69—inmate’s request dated February 6, 2016).

[7] Citing her objection under section 18 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA) to use English in the written proceedings once the actions had been commenced in that language, the respondent replied to Mr. Ewonde’s request as follows:

If the [appellant] wished for these proceedings to be conducted in French, he should have initiated these actions in that language or, at the very least, requested that they be changed for French at an earlier date. It is too late for the [appellant] to raise this issue and he should not be allowed to further delay these proceedings.

(Appeal Book, Tab 7 at page 70)

[8] Following that exchange of correspondence, the Prothonotary issued Directions stating his agreement with the respondent’s view. He also added that he was “not satisfied that the [appellant] is handicapped by language in responding to the [respondent’s] motion” and that “[i]t is always open to him to seek assistance from other inmates.” As a result, the Prothonotary directed the appellant to serve his reply to the motions within fourteen days (Appeal Book, Tab 8 at page 71).

[…]

[17] Bilingual people do not have weaker constitutional language rights than unilingual people. As this Court recently noted in Industrielle Alliance, Assurance et service financiers inc. v. Mazraani, 2017 FCA 80 (CanLII) at paragraph 10:

Significantly, a person’s ability to express him or herself in both official languages does not impact such person’s constitutional right to choose either French or English in the context of court proceedings. One’s ability to speak both official languages is “irrelevant”. In the words of the Supreme Court of Canada in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193 at paragraph 45 [Beaulac]:

[18] Thus, an individual may elect to institute proceedings against the Crown in either official language, regardless of their mother tongue. An individual may also re-elect, during the course of proceedings, and the Crown will be obliged to switch languages as well, unless the Crown establishes that reasonable notice has not been given. Section 18 of the OLA reads as follows: […]

[23] This said, it was open to the Prothonotary to find that the respondent had not been reasonably notified that she would have to plead her motion in French—the language of the respondent’s motion could not be retroactively changed by a subsequent request made by the appellant.

[24] However, it was an error to suggest that the appellant ought to continue pleading in English because he was capable of doing so alone or assisted by other inmates. The appellant’s right to plead in either official language is enshrined in section 14 of the OLA, which states that “either [official language] may be used by any person in, or in any pleading in or process issuing from, any federal court.” Failing to recognize a party’s right to plead in the language that they have chosen amounts to an error of law.

[25] As stated above, the respondent argues that Mr. Ewonde was not prevented from filing his motion record in French (respondent’s Memorandum of Fact and Law at paragraphs 25, 28). A reasonable reading of the Prothonotary’s Directions does not support that assertion. On the contrary, I find that they rather discourage the appellant from filing documents in French. Once again, not only was he told that use of the English language does not constitute an impairment for him, but he was also invited to continue relying on the help of other inmates—obviously to draft his proceedings in English, as it appears quite clearly from the appellant’s request (inmate’s request) that he writes fluently in French.

[…]

[28] In my respectful view, here the Federal Court did not uphold its obligations under the OLA to the appellant as party or as potential affiant. This error of law requires our intervention.

Industrielle Alliance, Assurance et services financiers inc. v. Mazraani , 2017 FCA 80 (CanLII)

[8] It is trite law that English and French are the official languages of Canada and have equality of status and equal rights and privileges in courts established by Parliament, including the TCC [Tax Court of Canada]. Hence, any person who appears before or submits written pleadings to a federal court has the constitutional right to use the official language of his or her choice: see section 133 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. This constitutional right is also reflected and confirmed in sections 16 and 19 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[9] The Supreme Court of Canada in MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460 at 483, 27 D.L.R. (4th) 321 recalled that the constitutional right to use the official language of one’s choice in courts covered by section 133 of the Constitution Act, 1867 applies broadly to “litigants, counsel, witnesses, judges and other judicial officers”.

[10] Significantly, a person’s ability to express him or herself in both official languages does not impact such person’s constitutional right to choose either French or English in the context of court proceedings. One’s ability to speak both official languages is “irrelevant”. In the words of the Supreme Court of Canada in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193 at paragraph 45 [Beaulac]:

[11] The Supreme Court of Canada further observed:

Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one’s choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. [Emphasis added.]

Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712 at 748-749, 54 D.L.R. (4th) 577; cited in Beaulac at paras. 17, 34.

[12] The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA), which falls under the privileged category of quasi-constitutional legislation (Thibodeau v. Air Canada, 2014 SCC 67 (CanLII), [2014] 3 S.C.R. 340 at para. 12) provides as follows at sections 14 and 15: [...]

[22] In each instance, the Judge coaxed counsel and the witnesses to use English. In conducting the proceedings, the Judge favoured English over French in order to accommodate Mr. Mazraani’s limited understanding of French. This resulted in a violation of counsel Turgeon and the witnesses’ official language rights. The Judge exerted subtle pressure on counsel Turgeon and the witnesses to forego their right to speak in the official language of their choice, in this case French (Chiasson v. Chiasson, 222 N.B.R. (2d) 233 (C.A.); [1999] N.B.J. No. 621 (QL)). Mr. Mazraani contends that the witnesses and counsel Turgeon freely consented to speak in English and that Industrielle Alliance’s reliance on language rights is merely strategic. The transcript of the proceedings simply does not support such a conclusion.

[23] Mr. Mazraani also argues that no prejudice is suffered where an individual is capable of expressing him or herself in both official languages. This argument is ill-founded. A person appearing before a federal court has the constitutional right to express him or herself in the official language of his or her choice regardless of whether he or she is bilingual. In other words, the fact of being bilingual does not extinguish one’s right to speak the official language of his or her choice: Beaulac at paragraph 45.

[24] Moreover, despite the efforts of the Judge to have the witnesses testify in English, a significant portion of the testimony was in French due to the difficulty some witnesses had expressing themselves in English. Of particular note is the testimony of Éric Leclerc, whose testimony had significant French portions (see for example: Transcript, vol. 4 at pp. 1206, 1207 1222, 1228, 1266, 1323, 1324, 1332). Although the Judge translated some of the witnesses’ French testimony into English for Mr. Mazraani, many exchanges were left untranslated. At times, Mr. Mazraani expressed his inability to understand what was happening, saying “I have to understand” (Transcript, vol. 4 at pp. 1249, 1320). Given Mr. Mazraani’s earlier request for interpretation services should there be testimony in French, it follows that the fact that witnesses and counsel Turgeon addressed the Judge in French with little to no translation constituted a violation of Mr. Mazraani’s official language rights (Minister’s Memorandum of Fact and Law at para. 59).

[...]

[26] In the end, the efforts of the Judge to be “pragmatic” in finding ways around adjourning and securing interpretation services resulted not only in the violation of the official language rights of counsel Turgeon and witnesses, but also the violation of Mr. Mazraani’s official language rights. It simply was not open to the Judge to seek a shortcut around the official language rights of all those involved in the proceedings. The Judge’s failure to exercise his duty to ensure that the official language rights at issue were protected not only resulted in their violation, but further resulted in delays that could have otherwise been avoided by an adjournment to secure proper interpretation services. Pragmatism does not trump the duty to respect the official language rights of all in the course of judicial proceedings.

N.B. – This judgment is currently under appeal before the Supreme Court of Canada.

Szczecka v. Canada (Minister of Employment and Immigration), 1993 CanLII 9425 (FCA)

[8] [...] The documents in the disputed portfolio are in one or other of the official languages of this country. The applicant is represented by counsel acting on her behalf. It is for him to look at the evidence for or against which is available or submitted to the tribunal, to assess its impact and evidentiary force and to discuss it with his client. In this connection the rule that should be applied to the evidence contained in the portfolio is no different from that governing any other documentary evidence which counsel for the applicant may wish to present at the hearing: it will suffice if the document is in one or other of the two official languages of the country in accordance with s. 14 of the Official Languages Act, R.S.C. 1985, c. O‑3.

[9] When during a hearing the tribunal or hearing officer refers to certain extracts or passages from a document, either for clarification or to confront a claimant with them, however, it will be necessary to have them translated by the interpreter so the claimant can participate fully in the discussions and assert his or her rights. [...]

[10] However, one certainly could not frame a rule that in order to avoid a breach of the rules of natural justice any document entered in evidence at the hearing, including information portfolios on a country, must necessarily be translated into the language of the claimant.

Beaudoin v. Canada (Minister of National Health and Welfare), [1993] 3 FCR 518, 1993 CanLII 2961 (FCA)

[22] An unrepresented party's bona fide request, on notice, for a hearing in the other official language must always be respected in full, and its denial amounts to a denial of natural justice, since it fetters the requesting party's ability to present a case in his or her own way.

Centre québécois du droit de l’environnement v. National Energy Board , 2015 FC 192 (CanLII)

There is no doubt that Part III of the OLA applies in the context of this dispute. That statute specifies the powers and duties of federal institutions with respect to official languages, and Part III concerns, more specifically, the administration of justice. Section 11 of the Act [National Energy Board Act, RSC 1985, c N-7] sets out that the [National Energy] Board is a court of record, and in that regard it is clearly a federal court under section 14 of the OLA. However, that provision stipulates that “English and French are the official languages of the federal courts”, and that “either of those languages may be used by any person in, or in any pleading in or process issuing from, any federal court”.

That provision is entirely consistent with section 133 of the Constitution Act, 1867, and sections 16 to 22 of the Constitution Act, 1982, which address language rights in the judicial system in Canada. Those provisions guarantee what is referred to as “optional unilingualism” at the option of the speaker: MacDonald v City of Montréal, 1986 CanLII 65 (SCC), [1986] 1 SCR 460, at page 496. Put differently, it is the right to use either official language in any court or in any pleading in or process issuing from any such court that is guaranteed, and not the right that the official language used will be understood by the person to whom the pleading or process is addressed: Société des Acadiens v Association of Parents, 1986 CanLII 66 (SCC), [1986] 1 SCR 549, pages 574-575.

Consequently, Energy East has the right to use either official language in a proceeding under section 52 of the Act, as do the moving parties. In addition, there is no Part III provision that requires the courts to translate the documents submitted in the records of that court into the other official language. Moreover, the Attorney General of Canada is required to use the official language chosen by the other party in any pleadings in the proceedings before the federal courts (OLA, section 18). Like this Court specified in Lavigne v Canada (Human Resources Development), [1995] FCJ No 737 at paragraph 12, that obligation does not apply to the evidence:

I am also unable to identify any legal basis for the contention that the Crown or a federal institution has an obligation to provide a party with a translation of the affidavits sworn to by its witnesses, when it is written in the official language other than that chosen by the other party. Such an obligation, insofar as it is said to arise under either the Constitution, the Charter, or the Official Languages Act, would have to result from a constitutionally enshrined guarantee, or from the wording of the Act. As noted earlier, the constitutional guarantee pertaining to the use of either official languages in court proceedings are those of the writers or issuers of written pleadings and not those of the readers thereof. There is therefore no constitutional right entitling a party to read affidavit evidence in the official language which he or she has chosen, and hence no corresponding obligation on the part of the governmental party to provide a translation.

In short, the moving parties’ position seems to me to be without merit in law, and it is unsupported by Part III of the OLA, the case law flowing therefrom and constitutional statutes that those provisions intend to apply. In the absence of a clear legislative provision to that effect, there cannot be an obligation as onerous as that of requiring that all administrative tribunals and all courts subject to the OLA have all of the records submitted to them translated.

Taire v. Canada (Minister of Citizenship and Immigration), 2003 FC 877 (CanLII)

[51] With respect to language rights, the respondent points out that the rights under section 19 of the Charter are reiterated in the OLA, which provides that any person may use either English or French in, or in any pleading in or process issuing from, any federal court [see extract from the Act, attached as Schedule "A"]. The respondent also points out that the IRB [Immigration and Refugee Board] is a "federal court" within the meaning of subsection 3(2) of the OLA, and that the rights contained in Part III are available to individuals whether they choose to exercise them or not.

[52] The respondent notes that the hearing was conducted in English, and that pursuant to section 133 of the Constitution Act, 1867, subsection 19(1) of the Charter and section 14 of the OLA, counsel for the applicant chose to make his oral submissions in French. The respondent asserts that under section 15 of the OLA, the applicant could have requested simultaneous interpretation from French into English for this part of the hearing. The respondent notes that no such request was made, because the Refugee Division said: "If you say, well, I would prefer to hear it in English, then we may have to get a French/English interpreter in here for the purposes of submissions."

[53] In addition, the respondent stresses that the applicant could also have chosen to proceed in French and could have requested interpretation from French into English. But whatever the case, the applicant must assert her right before the proceedings are conducted so that the panel can make the necessary arrangements. In any event, the applicant clearly chose not to exercise her right to interpretation from French into English.

[54] I agree with the respondent's submissions. In my view, the applicant suffered no prejudice because of the fact that English was used at the hearing. The adverse credibility findings are due not to language, but to the content and form of the applicant's testimony. The Board members emphasized that if the applicant did not understand the questions, she should ask for clarification.

[55] Furthermore, I am satisfied that the language services guaranteed by the OLA and the Constitution Act, 1982 were waived by counsel and his client. Accordingly, I reject the applicant's arguments about language rights.

15. (1) Hearing of witnesses in official language of choice

15. (1) Every federal court has, in any proceedings before it, the duty to ensure that any person giving evidence before it may be heard in the official language of his choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.

15. (2) Duty to provide simultaneous interpretation

15. (2) Every federal court has, in any proceedings conducted before it, the duty to ensure that, at the request of any party to the proceedings, facilities are made available for the simultaneous interpretation of the proceedings, including the evidence given and taken, from one official language into the other.

15. (3) Federal court may provide simultaneous interpretation

15. (3) A federal court may, in any proceedings conducted before it, cause facilities to be made available for the simultaneous interpretation of the proceedings, including evidence given and taken, from one official language into the other where it considers the proceedings to be of general public interest or importance or where it otherwise considers it desirable to do so for members of the public in attendance at the proceedings.

Annotations

Ewonde v. Canada , 2017 FC 1120 (CanLII)

[…]

[11] Justice Trudel emphasized, at para 26, the duty imposed on the Court by subsection 15(1) “to ensure that any person giving evidence before it may be heard in the official language of his choice” and highlighted this duty again at para 27:

[27] The OLA requires more of the Courts than mere permission to appear in either official language. The OLA imposes positive duties on Courts to encourage and facilitate access to its services in either official language.

[…]

N.B. – This decision dismissed the Defendant’s motions to dismiss the Plaintiff’s actions and confirms the Court of Appeal decision in Ewonde v. Canada, 2017 FCA 112 (CanLII)

Ewonde v. Canada , 2017 FCA 112 (CanLII)

[...]

[5] As a result, on January 25, 2016, the respondent filed motions to dismiss the appellant’s actions for delay.

(Appeal Book, Tab 7 at page 70)

[...]

[26] It was an even more serious error on the part of the Prothonotary to suggest that the appellant ought to give evidence in a language other than the one he chose. Section 15(1) of the OLA imposes on the Court a positive duty “to ensure that any person giving evidence before it may be heard in the official language of his choice.” Had the appellant filed a reply and motion record to the respondent’s motion to dismiss, he would likely have filed an affidavit explaining his delay. The jurisprudence is clear that he was entitled to file this affidavit in either official language, regardless of the language of the pleadings (see Charlebois v. Saint John (City), 2005 SCC 74 (CanLII), [2005] 3 S.C.R. 563).

Industrielle Alliance, Assurance et services financiers inc. v. Mazraani , 2017 FCA 80 (CanLII)

[11] The Supreme Court of Canada further observed:

Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712 at 748-749, 54 D.L.R. (4th) 577; cited in Beaulac at paras. 17, 34.

[12] The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA), which falls under the privileged category of quasi-constitutional legislation (Thibodeau v. Air Canada, 2014 SCC 67 (CanLII), [2014] 3 S.C.R. 340 at para. 12) provides as follows at sections 14 and 15: [...]

[13] Subsection 15(1) of the OLA thus establishes, inter alia, a positive duty on federal courts to ensure that any person giving evidence before them may be heard, without disadvantage, in the official language of his or her choice. Subsection 15(2) of the OLA further establishes a similar duty on the federal courts to ensure that simultaneous interpretation from one official language into the other is made available for any proceeding before it where a party requests such services. In so doing, the OLA reflects that the “freedom to choose [between French and English] is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees” (Beaulac at para. 20).

[...]

[17] Language issues arose on the second day of the hearing when counsel Turgeon for Industrielle Alliance indicated that his first witness, being Mr. Michaud, would be testifying in French. In response, Mr. Mazraani clearly indicated that he would need an interpreter if Mr. Michaud was to testify in French (Transcript, vol. 1 at pp. 269-270):

JUSTICE ARCHAMBAULT: Fine. So let’s start with Mr. Michaud. It’s Michaud. It’s not Comeau. It’s Michaud.

MR. TURGEON: Bruno Michaud. Monsieur Bruno Michaud.

JUSTICE ARCHAMBAULT: O.K. So ---

MR. TURGEON: That will testify in French if you have no ---

JUSTICE ARCHAMBAULT: I don’t have any problem except that the party – you don’t understand French very well?

MR. MAZRAANI: No.

JUSTICE ARCHAMBAULT: So ---

MR. TURGEON: And I hesitate to impose the witness ---

JUSTICE ARCHAMBAULT: Okay. Because ---

MR. TURGEON: Well, yeah, my colleague is referring to the Exhibit E-4 – A-4 that is – that he’s speaking French.

MR. JILWAN: His job application.

--- (SHORT PAUSE)

MR. TURGEON: And my client knows as a matter of fact that he’s speaking French.

JUSTICE ARCHAMBAULT: He picked up the lowest ---

MR. TURGEON: Yeah.

JUSTICE ARCHAMBAULT: --- the lowest level of French.

Are you uncomfortable with having this witness testify in French?

MR. MAZRAANI: Of course.

JUSTICE ARCHAMBAULT: Would you need -- would you need an interpreter?

MR. MAZRAANI: Of course.

JUSTICE ARCHAMBAULT: Of course what?

MR. MAZRAANI: I need an interpreter. I can’t ---

JUSTICE ARCHAMBAULT: You need an interpreter.

MR. MAZRAANI: --- because this case is ---

MR. TURGEON: Okay. Let me ---

JUSTICE ARCHAMBAULT: Because I have to -- you know, I have to be fair to both parties. You know, I’m prepared to let him speak in French but then I would have to arrange for an interpreter for him.

[Emphasis added.]

[18] Upon being informed by counsel Turgeon that the witness Mr. Michaud wanted to testify in French and that one of the parties, being Mr. Mazraani, needed an interpreter, it was incumbent upon the Judge to adjourn the hearing in order to arrange for interpretation services. It was his duty to respect Mr. Michaud’s choice to testify in French and Mr. Mazraani’s request for an interpreter (OLA, subsections 15(1), (2)).

[19] Instead, the Judge granted a break for counsel Turgeon to devise a compromise. Counsel Turgeon proposed that Mr. Michaud testify in English but that he be permitted to express himself in French on technical issues, which could then be translated into English. The Judge accepted this “pragmatic” compromise. In doing so, the Judge failed to uphold his positive duty to ensure that witnesses are heard in the official language of their choice.

[20] Another violation of official language rights resulted from the Judge’s treatment of another witness, Mr. Charbonneau, who had likewise expressed the desire to speak in French. Once counsel Turgeon began examining Mr. Charbonneau in French, the Judge interrupted the witness examination to request that it be conducted in English. Mr. Charbonneau replied by asking if he could respond in French. Rather than accede to this request, as required by subsection 15(1) of the OLA, the Judge focused on Mr. Mazraani’s inability to understand French (Transcript, vol. 2 at pp. 608-609):

[Translation]

MR. TURGEON: MR. Charbonneau, can you tell us, since when are you connected to Industrielle Alliance...

JUSTICE ARCHAMBAULT: Is it possible to -- to do it in English?

MR. TURGEON: Oh, oh yeah, I’m sorry, I’m not sure ---

JUSTICE ARCHAMBAULT: Can you speak?

MR. CHARBONNEAU: Can I just say something?

JUSTICE ARCHAMBAULT: Yes.

MR. CHARBONNEAU: Yes, as a matter of fact, I am better in French …

JUSTICE ARCHAMBAULT: Yes.

MR. CHARBONNEAU: …and I am a little surprised because at work our meetings are, everything is done in French.

JUSTICE ARCHAMBAULT: M’hm.

MR. CHARBONNEAU: Can I answer in French?

JUSTICE ARCHAMBAULT: But the taxpayer …the person before us today [Mr. Mazraani] whose case…whose case is the subject of this appeal…

MR. CHARBONNEAU: Yes.

JUSTICE ARCHAMBAULT: …tells us that he has a hard time understanding French. So we are asking as much as possible to the witnesses to speak English. Are you relatively comfortable speaking English?

MR. CHARBONNEAU: Well I’ll try …

[Emphasis added.]

[21] During the course of the proceedings before the TCC [Tax Court of Canada], counsel Turgeon and other witnesses were treated similarly and were denied their right to choose to speak in French because of their English language skills (see for example: Transcript, vol. 2 at p. 555 (Ms. Lambert) and Transcript, vol. 4 at pp. 1256, 1336-1337 (counsel Turgeon)). In turn, each request to speak in the official language of their choice was treated by the Judge as a request for accommodation, as opposed to the exercise of protected official language rights.

[...]

N.B. – This judgment is currently under appeal before the Supreme Court of Canada.

Brahim v. Canada (Citizenship and Immigration), 2014 FC 734 (CanLII)

[7] The applicants allege that the RPD [Refugee Protection Division] made three significant errors in its decision rejecting their refugee protection claim:

a) It violated their right to a hearing in the language of their choice; […]

[10] The Court agrees with the respondent that the applicants’ argumentation contains serious inaccuracies on this point. It is clear from the hearing transcript that it was the applicants’ counsel himself who switched to English of his own volition, preferring to speak English during oral argument because that was the language in which his notes had been written (Certified Tribunal Record at page 712):

Perhaps I’ll move straight into the… just a few references in the documentation which is, my notes, in English.

[11] The applicants were not in the least deprived of a hearing in French; rather, they waived their right to an interpreter when they consented to their counsel making his submissions in English for that part of his oral argument. The RPD was under no obligation to ask the applicants whether they wanted an interpreter at that time or to elicit from them a specific waiver of their right to an interpreter. This Cour has made it clear that a party may implicitly waive the language rights provided to it under the Official Languages Act, (RS (1985), c 31 (4^th Supp.)) (see Taire v Canada (Minister of Citizenship and Immigration), 2003 FC 877).

Glaxosmithkline Inc. v. Her Majesty the Queen (January 5th, 2006), Ottawa, 98-712(IT)G (TCC), Rip J. [hyperlink not available]

[9] There is a duty by a federal court to ensure that simultaneous interpretation is provided at the request of any party to the proceedings: subsection 15(2) of the Official Languages Act. I do take this to mean that the court has a duty to provide simultaneous translation at the request of a party who does not understand or is not fluent in the other language. A party who is fluent in both official languages does not require simultaneous interpretation of the proceedings. To grant a party’s request for simultaneous interpretation when that party is fluent in the language of the proceedings would serve no practical purpose and be a waste of resources. I do not mean to say that there are no circumstances when an interpreter will not be provided at the request of a person who is fluent in both languages but I believe that when Her Majesty is a party to a proceeding, she has an obligation to use both French and English without the need of an interpreter for her benefit. Her Majesty in the right of Canada is bilingual.

[10] Subsection 102(5) of the Tax Court of Canada Rules (General Procedure) provides that where a person is being examined in one official language and that person prefers to be examined in the other official language, the examining party is to advise the Registry of the Court and then appoint an interpreter. As I understand it, the appellant’s witness will be examined in the French language and will reply in the French language. Cross-examination, of course, will be a different story. However, subsection 102(5) is for the benefit of the person being examined. Also, for reasons expressed in paragraph 9 above, Her Majesty, a bilingual person, ought not require the services of an interpreter.

Taire v. Canada (Minister of Citizenship and Immigration), 2003 FC 877 (CanLII)

[44] The applicant claims that once the choice is made, the Board has to ensure that she understands the language in which the proceedings are being conducted. The applicant asserts that the breach of her rights seriously undermined her credibility and the potential assistance of counsel in this case.

[45] The respondent states that the applicant's arguments confuse the right to an interpreter, guaranteed by section 14 of the Charter, with the language rights set out in section 19 of the Constitution Act, 1982 and in Part III of the Official Languages Act (OLA). [...]

[51] With respect to language rights, the respondent points out that the rights under section 19 of the Charter are reiterated in the OLA, which provides that any person may use either English or French in, or in any pleading in or process issuing from, any federal court [see extract from the Act, attached as Schedule "A"]. The respondent also points out that the IRB is a "federal court" within the meaning of subsection 3(2) of the OLA, and that the rights contained in Part III are available to individuals whether they choose to exercise them or not.

Lavigne v. Canada (Human Resources Development), 1995 CarswellNat 1272, [1995] F.C.J. No. 1629, 106 F.T.R. 308, 59 A.C.W.S. (3d) 1074 [hyperlink not available]

[7] Federal Court Rule 302.1 deals with the language of documents for Court purposes. It states that no document shall be used for court purposes unless it is in French or English or it has been translated and is accompanied by an affidavit attesting to the accuracy of the translation. This rule applies to pleadings, applications, affidavits, and documents introduced into evidence. Federal Court Rule 356 provides for simultaneous translation of hearings in Court. This is in accordance with subsection 15(2) of the Official Languages Act which imposes a duty to provide simultaneous translation at the request of a party. The simultaneous interpretation from one official language to the other of hearings in Court, includes evidence given or taken or arguments presented at such hearing. The principle underlying the interests protected by the right to interpreter assistance is that of linguistic understanding.

[8] The Official Languages Act and the Rules do not require that this Court provide translations of documents in either official language used for court purposes. The applicant will be entitled to simultaneous interpretation of the hearing of his application for judicial review on filing a written request with the administrator of the Court.

Lavigne v. Canada (Human Resources Development), 1995 CarswellNat 239, [1995] F.C.J. No. 737, 55 A.C.W.S. (3d) 735, 6 W.D.C.P. (2d) 266, 96 F.T.R. 68 [hyperlink not available]

[12] I should also add that construing the Official Languages Act so as to compel Crown to adduce evidence in the official language chosen by the other party would give rise to a construction that is inconsistent with the rights of witnesses who also have the constitutionally guaranteed right to testify in the official language of their choice under both section 133 of the Constitution Act, 1867, and section 19 of the Charter. This right is reiterated and supplemented by subsection 15(1) of the Official Languages Act, and it seems clear that the legislator would not have given witnesses the right to testify in the official language of their choice while, at the same time, providing for the right of litigants to have this same testimony uttered in the official language of their choice.

16. (1) Duty to ensure understanding without an interpreter

16. (1) Every federal court, other than the Supreme Court of Canada, has the duty to ensure that

(a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter;

(b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and

(c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter.

16. (2) Adjudicative functions

16. (2) For greater certainty, subsection (1) applies to a federal court only in relation to its adjudicative functions.

16. (3) Limitation

16. (3) No federal court, other than the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, is required to comply with subsection (1) until five years after that subsection comes into force.

R.S., 1985, c. 31 (4^th Supp.), s. 16; 2002, c. 8, s. 155.

Annotations

Syndicat des travailleurs et travailleuses des postes v. Canada (Procureur Général), 2011 FC 1207 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[10] First, the Union intends to raise the argument that the ministerial decision to appoint a unilingual Anglophone judge, as arbitrator for final offer, is incorrect or unreasonable in that it completely disregards the quasi-constitutional requirement that every federal court, other than the Supreme Court of Canada, has a duty of bilingualism under the Official Languages Act, RSC 1985, c. 31 (4^th supp.) (OLA). In fact, the Union intends to submit that the arbitrator appointed under section 8 of the Act [Restoring Mail Delivery for Canadians Act, SC 2011, c 17] is a “federal institution” and a “federal court” within the meaning of subsection 3(2) of the OLA. Subsection 16(1) of the OLA requires every federal court to hear proceedings in both official languages, without the assistance of an interpreter, where the parties have opted to have the proceedings conducted in both languages, which is the wish of the Union in this case, as it would like to have some French-speaking witnesses testify and would like to be represented by counsel who is also French-speaking.

[…]

[18] From a language rights perspective, there is certainly an issue of irreparable harm in this case. The Union is in fact placed at a disadvantage by having to proceed with arbitration before Arbitrator Osborne, who is apparently a unilingual Anglophone, in a language that was clearly not of its choosing, especially given the fact that there will be no practical way for the parties and the Court to later verify whether the translation provided by the interpreter at the hearing had been accurate at all times. Thus, when the Union calls Francophone witnesses, the arbitrator will have to hear their testimony with the help of simultaneous translation, while the transcript will be written in French. In addition, the Union’s lead counsel argues that although he can speak English, the Union is placed at a disadvantage by the fact that he must argue the case before an arbitrator in a language that is not his own. In the event that the Court was to allow the application for judicial review, I am of the opinion that it would then result in a harm that is not quantifiable. We would then be looking at a violation of language rights, therefore of fundamental rights, for which no accommodation exists if, as the Union argues, section 16 of the OLA applies.

17. (1) Authority to make implementing rules

17. (1) The Governor in Council may make such rules governing the procedure in proceedings before any federal court, other than the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, including rules respecting the giving of notice, that the Governor in Council deems necessary to enable that federal court to comply with sections 15 and 16 in the exercise of any of its powers or duties.

17. (2) Supreme Court, Federal Court of Appeal, Federal Court and Tax Court

17. (2) Subject to the approval of the Governor in Council, the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada may make any rules governing the procedure in their own proceedings, including rules respecting the giving of notice, that they deem necessary to enable themselves to comply with sections 15 and 16 in the exercise of any of their powers or duties.

R.S., 1985, c. 31 (4^th Supp.), s. 17; 2002, c. 8, s. 156.

18. Language of civil proceedings where Her Majesty is a party

18. Where Her Majesty in right of Canada or a federal institution is a party to civil proceedings before a federal court,

(a) Her Majesty or the institution concerned shall use, in any oral or written pleadings in the proceedings, the official language chosen by the other parties unless it is established by Her Majesty or the institution that reasonable notice of the language chosen has not been given; and

(b) if the other parties fail to choose or agree on the official language to be used in those pleadings, Her Majesty or the institution concerned shall use such official language as is reasonable, having regard to the circumstances.

Annotations

Charlebois v. Saint John (City), [2005] 3 SCR 563, 2005 SCC 74 (CanLII)

[4] Mr. Charlebois’s objection raised two issues:

[...]

[2] What is the scope of the obligation under s. 22 [of the Official Languages Act of New Brunswick]? Must the party provide a translation of quotes from legal decisions included in its pleadings? Must the party provide a translation of the evidence?

[7] The second issue can be readily disposed of. I agree with Bastarache J. that the Court of Appeal was correct in holding that “oral or written pleadings” do not include evidence tendered in the course of the proceeding. Nor does s. 22 create an obligation to translate case law cited or incorporated in a book of authorities.

N.B. – Although this judgment deals with the scope of s. 22 of the New Brunswick Official Languages Act, the above excerpt is reproduced due to the similar wording of s. 18 of the Official Languages Act of Canada.

Ewonde v. Canada , 2017 FC 1120 (CanLII)

[9] Noting the provisions of section 18 of the Official Languages Act, Justice Trudel explained, at para 18, that “an individual may elect to institute proceedings against the Crown in either official language, regardless of their mother tongue. An individual may also re-elect, during the course of proceedings, and the Crown will be obliged to switch languages as well, unless the Crown establishes that reasonable notice has not been given.”

[…]

N.B. – This decision dismissed the Defendant’s motions to dismiss the Plaintiff’s actions and confirms the Court of Appeal decision in Ewonde v. Canada, 2017 FCA 112 (CanLII)

Ewonde v. Canada , 2017 FCA 112 (CanLII)

[...]

[5] As a result, on January 25, 2016, the respondent filed motions to dismiss the appellant’s actions for delay.

(Appeal Book, Tab 7 at page 70)

[…]

[20] As I am of the view that the official language issue was in front of the Judge, I now turn my mind to the Prothonotary’s Directions.

[21] The Directions, as drafted, lead me to the conclusion that the Prothonotary accepted Mr. Ewonde’s letter of request to continue the proceedings in French as a proper motion. He could have instructed Mr. Ewonde to serve and file proper motions for orders disposing of the language issue that he was raising, but he did not.

[22] This observation leads to one particular comment: directions are not the proper form to dispose of motions (Fabrikant v. Canada, 2015 FCA 53 (CanLII), [2015] F.C.J. no. 243 (QL), at paragraph 9). Orders should have been issued. It appears from the wording of the Directions that the Prothonotary was in effect disposing of the language issue, opting to simply direct the appellant to file his motion records in reply to the respondent’s motions to dismiss.

[...]

[28] In my respectful view, here the Federal Court did not uphold its obligations under the OLA to the appellant as party or as potential affiant. This error of law requires our intervention.

Industrielle Alliance, Assurance et services financiers inc. v. Mazraani , 2017 FCA 80 (CanLII)

[16] The appeal before the TCC [Tax Court of Canada] was conducted pursuant to subsection 18.15(3) of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, which directs the TCC to conduct the appeal “as informally and expeditiously as the circumstances and considerations of fairness permit”. Mr. Mazraani, who was self-represented before the TCC, submitted his notice of appeal in English. The Minister, in accordance with section 18 of the OLA, submitted her reply in English. Industrielle Alliance, the employer and an intervenor before the TCC, submitted its notice of intervention in French.

N.B. – This judgment is currently under appeal before the Supreme Court of Canada.

Centre québécois du droit de l’environnement v. National Energy Board, 2015 FC 192 (CanLII)

Consequently, Energy East has the right to use either official language in a proceeding under section 52 of the Act [National Energy Board Act, RSC 1985, c N-7], as do the moving parties. In addition, there is no Part III provision that requires the courts to translate the documents submitted in the records of that court into the other official language. Moreover, the Attorney General of Canada is required to use the official language chosen by the other party in any pleadings in the proceedings before the federal courts (OLA, section 18). Like this Court specified in Lavigne v Canada (Human Resources Development), [1995] FCJ No 737 at paragraph 12, that obligation does not apply to the evidence:

Glaxosmithkline Inc. v. Her Majesty the Queen (January 5th, 2006), Ottawa, 98-712(IT)G (TCC), Rip J. [hyperlink not available]

[6] In Charlebois the appellant objected to the admission into evidence of a document drafted in English and to the fact that the Attorney General of New Brunswick had cited cases without providing a translation. He relied on the provisions of section 22 of the Official Languages Act of New Brunswick which requires the Province to use, in its oral or written pleadings and processes in civil proceedings, the official languages chosen by the other party; the appellant had chosen to use French.

[7] The issue before me is quite different from that in Charlebois. In the case at bar we are dealing with the vive voce evidence of a witness who will testify in one of our official languages. The object and spirit of the Official Languages Act is that Her Majesty is a bilingual person who not only offers services in both official languages but also participates in both official languages. It is for this reason that subsection 18(1) of the Act grants the party other than Her Majesty to choose the language to be used in oral or written pleadings in the proceedings. The French language version of subsection 18(1) refers to “les plaidories ou les actes de la procédure”.

[8] The Act does not preclude the other party from using both official languages in a proceeding and Her Majesty must be prepared to meet such a situation. Indeed, subsection 18(b) of the Act states that if the other party fails to choose the official language to be used in pleadings, Her Majesty “shall use such official language as is reasonable, having regard to the circumstances “or in French, “elle utilise la langue officiale le plus justifiée dans les circonstances”.

[...]

[11] In the circumstances before me, it is reasonable that Her Majesty use the French language when a witness testifies in French and English when a witness testifies in English. The Attorney General employs lawyers fluent in both official languages. I am confident that Her Majesty has available to her many lawyers fluent in the French language to hear evidence of any witness called by the appellant and who testifies in the French language and to cross-examine that witness in French.

[12] Yesterday, during a telephone conference call, the respondent’s counsel advised that Her Majesty’s expert witnesses do not understand French and would therefore not be able to follow the evidence of an appellant’s witness who testified in French. For the benefit of these expert witnesses I shall permit the respondent to obtain simultaneous interpretation of any of the appellant’s expert witnesses testifying in the French language at her cost, provided the simultaneous interpretation services do not interfere with, interrupt or otherwise impede the trial process. The Court will make available its interpretation facility to the respondent for this purpose, if requested.

[13] Otherwise respondent’s request for an interpreter or simultaneous translation is refused.

The Information Commissioner of Canada v. Public Works, 1995 CarswellNat 1900, [1995] F.C.J. No. 1796, 56 A.C.W.S. (3d) 240, 6 W.D.C.P. (2d) 318, 99 F.T.R. 269 [hyperlink not available]

I advised Mr. Brunet when he appeared before me that he was abusing his position and he replied that he relied on section 133 of the Constitution Act, 1867 (British North America Act, 1867) R.S.C. 1985, No. 5. There is no doubt that both French and English are official languages of this country but the provisions of the Official Languages Act should prevail in circumstances such as these (p. 3). The applicable section of the Act reads as follows:

18. Where Her Majesty in right of Canada or a federal institution is a party to civil proceedings before a federal court,

It is clear to me that Her Majesty's institutions are to be considered bilingual. In this particular case the official language chosen by the complainant was English. The Information Commissioner as well as ministerial departments from which information was being sought had already chosen English to be the language of pleadings as well, I assume the language of as debate in these matters. May I underline most forcefully subsection 18(b) of the Act where it is written "the institution concerned shall use such official language as is reasonable having regard to the circumstances".

The Information Commissioner should be represented by counsel competent in the language chosen by the other party and in this case English would have been reasonable having regard to the circumstances. [...]

Lavigne v. Canada (Human Resources Development), 1995 CarswellNat 239, [1995] F.C.J. No. 737, 55 A.C.W.S. (3d) 735, 6 W.D.C.P. (2d) 266, 96 F.T.R. 68 [hyperlink not available]

[7] This provision is not ambiguous insofar as its application to the present matter is concerned. The respondent is required to use the official language used by the other party in oral or written pleadings in the proceedings; or in les plaidoires ou les actes de la procédure, as is stated in the French text of s. 18. Whatever construction one may wish to give to the term “pleadings” or “plaidoiries”, it does not include evidence tendered in the course of a proceeding. [...]

[8] It follows that testimony by way of affidavit does not form part of the “pleadings” or “les plaidoiries” or “les actes de procédure” within the meaning of s. 18 of the Official Languages Act and hence the respondents are subjected to no linguistic obligations with regard thereto. By parity of reasoning, the same extends to the documents annexed to these affidavits by way of exhibits.

[9] This conclusion otherwise derived from the clear and unambiguous wording of section 18 is entirely consistent with the constitutional linguistic guarantees pertaining to the use of either official languages in judicial proceedings. Section 133 of the Constitution Act, 1867, and subsection 19(1) of the Charter both guarantee the right of a litigant to use either official languages in proceedings in any courts established by Parliament. [...]

[11] Section 18 of the Official Languages Act enhances this constitutionally enshrined right to express oneself in the official language of one’s choice in court proceedings by casting upon federal institutions the further obligation to use, in oral or written pleadings, the official language chosen by the other party, thereby creating a right for the opposing party not only to speak or write in the official language of his choice, but to hear and read the pleadings emanating from the governmental party in that language. While this enhancement is substantial, it does not go beyond what is stated in s. 18, and there is no constitutional basis upon which the term “pleadings” or its French equivalents could be given a meaning contrary to what is commonly and juridically understood.

[...]

[14] As to the Official Languages Act, while it enhances the constitutionally guaranteed right of a party to the extent noted above, it does not do so with respect to documents drafted in the other official language to which section 18 does not apply. The only exception is that specifically provided for in section 19 pertaining to preprinted judicial forms used in proceedings before the court. Those are required to be printed in both official languages and the details added to such forms, when in an official language other than that chosen by the party, are to be translated forthwith upon request. Otherwise, there is no obligation under the Official Languages Act for the respondents to translate written material.

[15] I would note before concluding this aspect of the analysis that there is no suggestion here that the respondents have chosen their witnesses by reference to their language with the view of impeding the advancement of the applicant's case. The witnesses are either persons against whom specific allegations have been made by the applicant in support of his application, or persons who are the most knowledgeable of the facts being deposed to. Courts would obviously take a dim view on any attempt on the part of the Crown or a federal institution to gain a strategic advantage by purposefully using evidence in the other official language when equally adequate or better evidence was available in the official language chosen by the private litigant.

19. (1) Bilingual forms

19. (1) The pre-printed portion of any form that is used in proceedings before a federal court and is required to be served by any federal institution that is a party to the proceedings on any other party shall be in both official languages.

19. (2) Particular details

19. (2) The particular details that are added to a form referred to in subsection (1) may be set out in either official language but, where the details are set out in only one official language, it shall be clearly indicated on the form that a translation of the details into the other official language may be obtained, and, if a request for a translation is made, a translation shall be made available forthwith by the party that served the form.

Annotations

Lavigne v. Canada (Human Resources Development), 1995 CarswellNat 239, [1995] F.C.J. No. 737, 55 A.C.W.S. (3d) 735, 6 W.D.C.P. (2d) 266, 96 F.T.R. 68 [hyperlink not available]

20. (1) Decisions, orders and judgments that must be made available simultaneously

20. (1) Any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where

(a) the decision, order or judgment determines a question of law of general public interest or importance; or

(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.

20. (2) Other decisions, orders and judgments

20. (2) Where

(a) any final decision, order or judgment issued by a federal court is not required by subsection (1) to be made available simultaneously in both official languages, or

(b) the decision, order or judgment is required by paragraph (1)(a) to be made available simultaneously in both official languages but the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance, the decision, order or judgment, including any reasons given therefor, shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.

20. (3) Oral rendition of decisions not affected

20. (3) Nothing in subsection (1) or (2) shall be construed as prohibiting the oral rendition or delivery, in only one of the official languages, of any decision, order or judgment or any reasons given therefor.

20. (4) Decisions not invalidated

20. (4) No decision, order or judgment issued by a federal court is invalid by reason only that it was not made or issued in both official languages.

Annotations

Devinat v. Canada (Immigration and Refugee Board), [2000] 2 FCR 212, 1999 CanLII 9386 (FCA)

[1] This appeal from a judgment of the Trial Division has to do with the scope of the duty imposed on a "federal board, commission or other tribunal", such as the Immigration Appeal Board (the Board or the respondent) to translate its decisions into either of Canada's two official languages. The case turns on section 20 of the Official Languages Act (the OLA); but it assumes that the Court will first rule on the scope of the provisions of Part X [sections 76 to 81] of the OLA and on this Court's jurisdiction to hear the application for judicial review filed by the appellant. […].

[57] The Motions Judge then concluded [at page 613]:

In my view, the terms of section 20 of the OLA are clear. They require all federal courts, including the respondent, to issue their decisions, orders and judgments in both official languages at the earliest possible time in most cases or simultaneously in the cases provided for in paragraph 20(1)(a), unless this would be seriously prejudicial to the public or result in injustice or hardship to any party, and in paragraph 20(1)(b).

[58] The Motions Judge then considered whether the Board had performed its duty under section 20 of the OLA. He concluded [at page 614]:

In my view, the respondent is not discharging the duty provided for in section 20 of the OLA. The on-request translation policy does not meet the "earliest possible time" requirement, since it means that most decisions will never be issued in the other official language. If Parliament had wanted federal courts to have an on-request translation policy, it could have so specified.

[59] The analysis of section 20 of the OLA and the conclusion reached by it appear to the Court to be beyond question.

[…]

[61] The Court has no hesitation in answering the first three conditions in the affirmative. Section 20 of the OLA requires the Board to render its decisions in both official languages according to the procedure laid down in that section. The appellant asked to be given the Board's decisions by applying to the Board's translation section. His request was denied on the ground that the decisions were not available in the other official language.

[...]

[70] In his report titled The Equitable Use of English and French Before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers mentioned above the Commissioner of Official Languages dealt with decisions rendered in the past by administrative tribunals. He acknowledged the scope of section 20 of the OLA, but also noted that some of the earlier decisions rendered by the respondent could have no value as precedents. It is worth setting out a part of the comments and recommendations of the Commissioner regarding the language of decisions:

(D) Language of Decisions

As our study has pointed out, it is clearly important that judgments and decisions of federal courts and quasi-judicial tribunals which have jurisprudential value or policy significance be routinely available to the public in both official languages. The present scope of Section 20 of the Act is more than sufficient to meet this requirement. Indeed, Section 20 appears so broad as to require the issuance in both official languages of decisions which simply apply well-established law to a set of established facts, in other words, decisions of no particular significance with respect to evolving policy or legal principles.

The present scope of Section 20 seems to place an onerous burden upon some quasi-judicial tribunals without advancing any recognizable policy objective. Even a court of record, such as the Tax Court of Canada, appears to be currently unable to issue every decision of the court in both official languages, although all judgments of policy and legal significance are routinely available in both official languages, as well as those arising out of proceedings where both official languages were used. It seems reasonable that a review take place of the policy reasons which may support the necessity to issue, in the other official language, the purely factually bound decisions arising out of strictly unilingual proceedings. Of course, requests by an individual with a relevant interest for a specific decision should continue to be accommodated, as would appear to be the present policy of the various tribunals reviewed in the course of this study.

Recommendation number six

The Commissioner therefore recommends that the federal Department of Justice review the appropriateness of the current scope of Subsection 20(2)(a) of the Official Languages Act, insofar as it requires the routine issuance in both official languages of decisions of no jurisprudential value or policy significance.

Recommendation number seven

The Commissioner further recommends that, should no significant policy justify the current scope of Subsection 20(2)(a) of the Official Languages Act, the federal Department of Justice consider the possibility of amending the Official Languages Act in order to accord a power of regulation to the Governor in Council to determine which tribunals, if any, should be exempted from the duty to issue in both official languages factually bound decisions of no jurisprudential or policy significance arising out of strictly unilingual proceedings and to establish appropriate categories of decisions accordingly. The criteria for such an exemption should be clearly defined.

[71]The appellant further acknowledged that the earlier decisions rendered by the respondent from its creation to the date the originating motion was filed, September 17, 1996, do not all have value as precedents. The issuing of a mandamus order that would apply to all earlier decisions would therefore not satisfy the appellant's objectives, as he would only be concerned with consulting those which have such value. Issuing a mandamus order covering the entire scope of section 20 of the OLA would thus not be justified, since the money spent on translation services would have no practical result. Further, as indicated in the record, there is no question as to the respondent's good faith. From the outset, it has made every effort to co-operate in the investigation by the Commissioner of Official Languages and has complied promptly with the latter's recommendations.

[72] The difficulty in the case at bar is to determine which of the decisions rendered by the respondent have value as precedents and to ensure that those which do are available to researchers and the public in both official languages. That is the true purpose of the proceedings at bar, and this can ultimately only be achieved if the respondent develops relevant administrative standards, subject to approval by the intervener, to resolve this dispute in keeping with the aims of the OLA.

[73] In the circumstances, in view of the practical effect which the granting of a mandamus would have, especially on the thousands of decisions which there is no interest in translating, and bearing in mind the balance of convenience, we feel that it would not be advisable to make a mandamus order for the past.

Farah v. Canada (Citizenship and Immigration), 2017 FC 292 (CanLII)

[38] Following the hearing in this matter, I issued a Direction to the parties, informing them that the Court was considering the application of s. 20(1)(a) of the Official Languages Act, RSC 1985, c. 31 (4th Supp) [the Act] to the issuance of the decision in this matter. I directed that each of the parties serve and file any submissions the party may wish to make on the potential application of s. 20(2)(b) of the Act. The Respondent did not make any such submissions. The Applicant did make submissions, which are addressed below.

[39] Section 20(1)(a) of the Act provides that any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where the decision, order or judgment determines a question of law of general public interest or importance. However, pursuant to s. 20(2)(b) of the Act, where the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance, it shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.

[40] While I consider the question certified in this matter to be a question of law of general public interest or importance, I am persuaded by the Applicant’s submissions that he would suffer hardship or injustice if the issuance of this decision was delayed to allow for translation. Mr. Farah explains that he is now in the process of meeting with the Canada Border Services Agency to prepare for removal, that he is preparing his Application Record in an application for leave and judicial review of the negative PRRA [Pre-Removal Risk Assessment] decision, and that he may imminently be moving for a stay of his removal. He refers to stress and psychological hardship due to the uncertainty of his situation, which would be relieved somewhat by knowing the outcome of this matter. I find that it would represent an injustice and hardship to require Mr. Farah to pursue the remedies to which he refers, without knowing the result of the present application for judicial review, when the Court has made its decision in this matter. Therefore, this decision is being released in English, with the French translation to follow, in accordance with s. 20(2)(b) of the Act.

Canada (Information Commissioner) v. Canada (Attorney General), 2015 FC 405 (CanLII)

[67] Finally, given the importance of the Access to Information Act, it could be said that these reasons should be delivered simultaneously in both English and French in accordance with s 20 of the Official Languages Act. However, the parties all asked that one version be delivered first, in whichever language that might be, rather than having to wait for the translation. The reason is that a delay would be prejudicial to the public interest as there is a backlog of complaints.

Y.Z. v. Canada (Citizenship and Immigration), [2016] 1 FCR 575, 2015 FC 892 (CanLII)

[173] In view of the foregoing reasons, I am prepared to grant the Applicants some of the relief they have requested. In particular:

1. The Court declares that paragraph 110(2)(d.1) of the IRPA [Immigration and Refugee Protection Act, SC 2001, c 27] is inconsistent with subsection 15(1) of the Charter and has no force and effect pursuant to subsection 52(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; and

2. The decisions of the RAD [Refugee Appeal Division] in RAD File Nos. TB3-02838, TB4-00950 and TB4-00951 are set aside, and G.S.’s and C.S.’s appeals are returned to the RAD for re‑determination.

[...]

[175] I will also not suspend the declaration of invalidity as requested by the Respondents. In Schachter v Canada, 1992 CanLII 74 (SCC), [1992] 2 SCR 679 at 719, 93 DLR (4th) 1 [Schachter], the Supreme Court suggested that suspending a declaration of invalidity is appropriate when an immediate declaration would pose a danger to the public, threaten the rule of law, or deprive deserving individuals of benefits without actually helping the people whose rights were violated. None of those criteria apply in the present case.

[176] Occasionally though, the Supreme Court has suspended a declaration of invalidity where the Schachter conditions were arguably not present in order to give the legislature time to design an appropriate remedy (see, e.g., Corbiere v Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 SCR 203 at paragraphs 116-121, 173 DLR (4th) 1, L’Heureux-Dubé J, concurring; Peter W Hogg, Constitutional Law of Canada, 5th ed, vol 2 (Toronto: Thomson Reuters, 2007) (loose-leaf updated to 2014), ch 40 at 40.1(d)). That rationale is most persuasive, however, when there are many ways the legislature could conceivably fix the problem. That is not the case here. An immediate declaration of invalidity may put some increased pressure on the resources of the RAD and may delay some removals, but every day that paragraph 110(2)(d.1) is in force is a day that claimants from DCOs [designated countries of origin] are not “equal before and under the law” and will be deprived of their rights “to the equal protection and equal benefit of the law without discrimination.” Anyone deported in the meantime may be returned to a persecutory situation because they could not appeal an erroneous RPD decision to the RAD. Rectifying that inequality as soon as possible outweighs any administrative burdens to the government.

[177] For the same reason, releasing this decision simultaneously in both official languages would “occasion a delay prejudicial to the public interest” (Official Languages Act, RSC 1985, c 31 (4th Supp), s 20(2)(b) [OLA]). I recognize, however, that insofar as this decision “determines a question of law of general public interest or importance” (OLA, s 20(1)(a)), it will be translated at the earliest possible time.

Hussein v. Canada (Minister of Citizenship and Immigration), IMM-10939-12 (March 20, 2013) [hyperlink not available]

[1] The Applicants are failed refugee claimants. They are seeking leave and judicial review of the decision of the RPD [Refugee Protection Division] dated September 21, 2013. At the specific request of the Applicants, the RPD hearing was conducted and its decision thus rendered in the French language. Their counsel before the RPD was fluent in the French language.

[2] The Applicants have now retained Mr. Hamalengwa and have filed an affidavit swearing that “for appeal purposes, we have decided to use an English speaking lawyer and we instructed him to get the decision in the English language so that we could fairly prosecute the appeal in English.” In the Notice of Application they have requested that the hearing in this court, should leave be granted, be in the English language. It is noted that nowhere is there any evidence that Mr. Hamalengwa cannot read and understand the RPD decision. It is further noted that Mr. Hamalengwa has filed a memorandum of argument on his clients’ behalf setting out the alleged errors and alleged unreasonable aspects of the decision notwithstanding the suggestion that an English language translation is required in order to “fairly prosecute” the application.

[3] It is the Applicants’ choice and right to have the application heard in the English language if leave is granted. That will occur. This court often hears matters in one of Canada’s official languages when the decision under review is in the other official language. A bilingual judge is assigned to hear the application and a bilingual judge will determine whether leave is to be granted.

[4] If the counsel for the Applicants requires that the decision or any other material in the Application Record be in English then the burden to obtain a translation is upon the Applicants and their counsel, it is not on the RPD or this court given that the Applicants chose to have their refugee hearing in the French language.

Pelaez v. Canada (Citizenship and Immigration), 2007 FC 35 (CanLII)

[18] In my opinion it is also important to note that the Official Languages Act, R.S.C. 1985, c. 31, explicitly permits any federal court to render oral decisions in either official language. Section 20 of the Official Languages Act reads as follows: […]

Although the IRB [Immigration and Refugee Board] is a federal tribunal and not a federal court, in my opinion the Official Languages Act is still persuasive in determining the IRB’s obligations in what concerns Canada’s official languages. This being said, as the RPD complied with the Official Languages Act it cannot be said to have erred in law by rendering its decision orally in French with an English decision to follow, even though the Applicant requested his proceeding be conducted in English. In any event, it must be reiterated that, in the case at hand, counsel for the Applicant agreed to have the RPD [Refugee Protection Division] render its decision orally in French with an English version to follow.

Part IV – Communications with and Services to the Public

Communications and Services

21. Rights relating to language of communication

21. Any member of the public in Canada has the right to communicate with and to receive available services from federal institutions in accordance with this Part.

Annotations

DesRochers v. Canada (Industry), [2009] 1 S.C.R. 194, 2009 SCC 8 (CanLII)

[2] It is common ground in this appeal that the rights being claimed are of constitutional origin, since the relevant provisions of the OLA implement the constitutional right of any member of the public to be served by federal institutions in the official language of his or her choice (Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 (CanLII), [2002] 2 S.C.R. 773). The Chief Justice stated the following constitutional question:

Do s. 20(1) of the Canadian Charter of Rights and Freedoms and Part IV of the Official Languages Act, R.S.C. 1985, c. 31, read in light of the principle of equality set out in s. 16(1) of the Charter, require Industry Canada to provide services of equal quality in both official languages?

[3] The parties agree, correctly so in my opinion, that the provisions referred to in this constitutional question create a constitutional duty to make services “of equal quality in both official languages” available to the public. The answer to the constitutional question is therefore clearly yes. What is in issue in this appeal is the scope of this concept of “services of equal quality”.

[...]

[23] It is clear simply from the wording of the enactment that the distinction between Part IV and Part VII is important. It is also clear from the evidence that what the appellants DesRochers and CALDECH sought in their application was in essence, first, to show that there was a real need for economic development services in the French‑speaking community and, second, to convince the court that the government had a positive duty to take concrete measures to support the development of the French‑speaking community in Simcoe County in order to counter the increasing rate of assimilation. As we will see, the question whether the duties under Part IV were fulfilled is much narrower than the question before the Federal Court in the original application. What must be done to answer it is essentially to conduct a comparative analysis in order to determine whether the services provided by the federal institution in each official language community are of equal quality. I will now review the decisions of the courts below in this case.

[...]

[45] As I stated in the introduction to these reasons, the parties agree that as a general rule, the principle — provided for in s. 20(1) of the Charter and implemented in Part IV of the OLA — that members of the public are entitled to linguistic equality when receiving services entails an obligation to make services “of equal quality in both official languages” available to the public. The parties disagree, however, on what is meant by “equal quality”.

[...]

[51] It seems clear to me that the respondents are correct to say that the principle under s. 20(1) of the Charter and Part IV of the OLA of linguistic equality in the provision of government services involves a guarantee in relation to the services provided by the federal institution. However, it is not entirely accurate to say that linguistic equality in the provision of services cannot include access to services with distinct content. Depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community. The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question.

[…]

[54] Given the nature of the services at issue here, I therefore disagree with Létourneau J.A.’s view that the principle of linguistic equality does not entail a right to “access to equal regional economic development services” (at para. 33), or that the respondents did not have a duty under Part IV of the OLA to “take the necessary steps to ensure that Francophones are considered equal partners with Anglophones” (at para. 38) in the definition and provision of economic development services. With respect, it seems to me that Létourneau J.A. did not fully consider the nature and objectives of the program in question in so defining the scope of the duties resulting from the guarantee of linguistic equality. What matters is that the services provided be of equal quality in both languages. The analysis is necessarily comparative. Thus, insofar as North Simcoe, in accordance with the programs’ objectives, made efforts to reach the linguistic majority community and involve that community in program development and implementation, it had a duty to do the same for the linguistic minority community.

[55] However, two points must be made regarding the scope of the principle of linguistic equality in the provision of services. First, the duties under Part IV of the OLA do not entail a requirement that government services achieve a minimum level of quality or actually meet the needs of each official language community. Services may be of equal quality in both languages but inadequate or even of poor quality, and they may meet the community economic development needs of neither language community. A deficiency in this regard might be due to a breach of the duties imposed by the DIA [Department of Industry Act], as the Federal Court of Appeal pointed out in this case, or to a breach of the duties under Part VII, as the Commissioner seemed to believe. I will come back to this point.

[56] Second, nor does the principle of linguistic equality in the provision of services mean that there must be equal results for each of the two language communities. Inequality of results may be a valid indication that the quality of the services provided to the language communities is unequal. However, the results of a community economic development program for either official language community may depend on a large number of factors that can be difficult to identify precisely.

[...]

[62] There is no doubt that disparity in results can be a sign that the quality of services is unequal, but the inquiry must not end there. Several factors may come into play that have nothing to do with the comparative quality of the services provided by the federal institution in each official language. In the instant case, to support their contention that the services were not of equal quality, the appellants place great emphasis on the success of CALDECH, which implemented more than 50 projects for the French‑speaking community. The extent to which this provides a basis for comparing the quality of North Simcoe’s services in each official language is debatable. It seems to me that the very existence of CALDECH may explain why so few Francophones chose to use North Simcoe’s services, whatever their quality may have been. In any event, the apparent disparity in results between the two language communities does not support a conclusion that the services were of unequal quality.

[63] Although the parties disagree about the number of CALDECH’s projects that Industry Canada would actually have supported, one thing is certain: CALDECH’s ability to reach the linguistic minority community and involve it in many community economic development projects shows that there is a real need for such services in Huronia’s French‑speaking community and that that need can be met. However, I cannot conclude that the failure to remedy this shortcoming relates to the principle of linguistic equality in communications and the provision of services as implemented in Part IV of the OLA. Like Harrington J. at trial, I believe that the appellants’ arguments essentially relate to alleged violations of Part VII of the OLA. It is noteworthy that in each of her three reports, the Commissioner drew a clear distinction between duties related to the principle of equality in communications and the provision of services under Part IV and duties resulting from the government’s commitment, stated in Part VII, to enhancing the vitality and development of linguistic minority communities. In all her reports, she identified Part VII as the source of the duty to consider and meet the special needs and concerns of Simcoe County’s French‑speaking business community with regard to economic development.

Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 4 FCR 276, 2004 FCA 263 (CanLII)

[1] Subsection 58(2) of the Official Languages Act [R.S.C., 1985 (4th supp.), c. 31] (the Act) allows any "group" to bring a complaint before the Commissioner of Official Languages (the Commissioner). Relying on this provision, the Forum des maires de la Péninsule acadienne (the Forum or respondent), in October 1999, complained to the Commissioner that an administrative reorganization in New Brunswick by the Canadian Food Inspection Agency (the Agency) had been carried out to the detriment of the Francophone areas in the north of the province. The Forum specifically criticized the Agency for transferring four inspectors from the Shippagan office, in the Acadian peninsula, to the Shediac office located in the southeastern portion of the province, assigning the supervision of the food inspection office for the Acadian peninsula to a unilingual Anglophone manager in the Blacks Harbour office and having constantly, since the early 1990s, reduced the number of employees in the Shippagan inspection division. The Forum argued that the decisions made by the Agency had an impact not only on the service to the public and the Agency's ability to comply with the right of the employees in the Shippagan office to work in French, but also on the economy of the region. The Forum also contended that the Agency's decisions reflected a trend toward the gradual erosion of the existing services that had developed in the region (A.B., Vol. 1, at page 46).

[...]

[48] The right involved, in this Part IV, is that of the public "to communicate with and to receive available services from federal institutions in accordance with this Part" (section 21). This right of the public prevails, under section 31, over the right conferred by Part V "Language of Work" to officers of federal institutions to work in either of the two official languages.

[...]

[52] Like the Commissioner and the Judge, I think it is possible to conclude, from the evidence, that the Agency reduced its services at Shippagan without concerning itself with the effect of this reduction on the right of the Francophone minority to receive these services in French and that the effect of the reduction in the services was to infringe the right that section 21 of the Act gives that minority. It is clear, in my view, that at the time the complaint was filed, it was justified.

Ayangma v. Canada , 2003 FCA 149 (CanLII)

[31] [...] Section 21, 22 and 28 of the OLA are found within Part IV of the Act entitled "Communications With and Services to the Public". Although the phrase "Services to the Public" is not defined in the OLA, it clearly does not apply to a competition under the PSEA [Public Service Employment Act, R.S.C. 1985, c-P-33], an Act which relates to staffing within the Public Service and which has its own code of language provisions.

Canada (A.G.) v. Viola, [1991] 1 F.C. 373, [1990] F.C.J. No. 1052 (FCA) [hyperlink not available]

[20] That is not all. The foregoing provisions indicate that Parliament has directed its attention to the matter of selection based on merit. If it had intended to take the opportunity of giving the appeal board a new jurisdiction, it would certainly have done so at the same time as it undertook to create the new judicial remedy contained in Part X. It should not be forgotten that while the 1988 Official Languages Act establishes the right of government officers to use either official language (section 34), it also establishes the public's right to be served in either language in accordance with the provisions of Part IV (section 21). It may be concluded that the legislature did not think it advisable to make the appeal board the proper decision-making authority to determine the respective rights of government officers and the public in the particularly sensitive area of language of work and language of service within the federal government structure. Parliament might well have preferred to make the Commissioner and the judges responsible for performing this delicate task. To raise any question as to that preference would be incautious.

[42] La LLO comporte plusieurs parties. Les parties I à VI de la loi établissent une série de droits linguistiques dans de nombreux contextes, dont : les débats et travaux parlementaires; les actes législatifs et autres; l’administration de la justice; les communications avec le public; et la langue de travail. Plus particulièrement, la partie IV porte sur les communications avec le public et le droit d’être servi par les institutions fédérales dans la langue officielle de son choix. Au sein de la partie IV, l’article 21 prévoit le droit du public de communiquer avec les institutions fédérales et d’en recevoir les services dans la langue officielle de son choix. L’article 22 impose aux institutions fédérales l’obligation de veiller à ce que les membres du public puissent communiquer avec leurs bureaux et recevoir des services de qualité égale dans l’une ou l’autre des langues officielles là où l’emploi de cette langue fait l’objet d’une demande importante. L’article 25 dispose que les institutions fédérales doivent veiller à ce que les services offerts au public par des tiers pour leur compte le soient dans l’une ou l’autre des langues officielles dans le cas où, offrant elles-mêmes les services, elles seraient tenues à une telle obligation. L’article 27 prévoit que les obligations des institutions fédérales en matière de communications et services dans les deux langues officielles valent également, tant sur le plan de l’écrit que de l’oral, pour tout ce qui s’y rattache. Enfin, l’article 28 ajoute que les institutions fédérales doivent veiller à faire de l’offre active dans les deux langues officielles.

[…]

[179] Si la Colombie-Britannique avait agi « pour [le] compte » d’une institution fédérale et que l’article 25 et la partie IV s’appliquaient, il faudrait alors démontrer le bien-fondé de la plainte de la FFCB devant le Commissaire, soit l’existence d’une violation des droits linguistiques énoncés à la partie IV à la date du dépôt de la plainte, en fonction des faits existant à ce moment-là et de la preuve faite devant la Cour. Toutefois, ayant déterminé que, dans le cadre de l’Entente, la Colombie-Britannique n’agit pas sous le contrôle d’EDSC ou de la Commission, que ni l’un ni l’autre ne lui a délégué ses fonctions et que la province offre ses services d’aide à l’emploi conformément à sa compétence législative, je n’ai pas à considérer si la demande de la FFCB au niveau de la partie IV était bien fondée au moment de sa plainte au Commissaire, le 15 juin 2011.

[180] Pour l’ensemble de ces raisons, je conclus que la partie IV de la LLO ne s’applique pas aux services d’aide à l’emploi visés par l’Entente. Du même souffle, il va de soi qu’aucune entrave à l’article 25 de la LLO ou au paragraphe 20(1) de la Charte ne s’est produite en l’instance. Je comprends que, comme l’a souligné le président de la FFCB, Réal Roy, dans son affidavit, les services d’aide à l’emploi sont d’une importance primordiale pour la communauté francophone de la Colombie-Britannique. Le travail, après tout, « est l’un des aspects les plus fondamentaux de la vie d’une personne, un moyen de subvenir à ses besoins financiers et, ce qui est tout aussi important, de jouer un rôle utile dans la société » (Renvoi relatif à la Public Service Employee Relations Act (Alb), 1987 CanLII 88 (CSC), [1987] 1 RCS 313 au para 91). Il est, comme la langue d’ailleurs, une composante essentielle de l’identité d’une personne (Shakov aux para 111-112 (motifs dissidents, mais non sur ce point)).

N.B. – This judgment is currently under appeal.

Thibodeau v. Halifax International Airport Authority , 2018 FC 223 (CanLII)

[22] [...] Quite the contrary, the articles in question are exactly the type of admissible evidence to verify compliance with Part IV obligations in the OLA, those being to ensure the equality of service in English and French and to ensure the fullest protection of those quasi-constitutional guarantees.

Tailleur v. Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 (CanLII)

[38] The OLA contains a number of parts including Part IV on communication with members of the public and the right to be served by federal institutions in the official language of their choice, and Part V on language of work and the equality of status and use of both official languages in Government of Canada institutions. Each of these parts has a constitutional foundation: section 20 of the Charter for language of service and subsection 16(1) of the Charter for language of work (Schreiber v Canada, [1999] FCJ No 1576 [Schreiber] at para 125; see also Jennifer Klink et al, “Le droit à la prestation des services dans les langues officielles” in Michel Bastarache and Michel Doucet, eds, Les droits linguistiques au Canada, 3rd ed, (Cowansville QC: Yvon Blais 2014) at pp 523-24).

[39] In Part IV of the OLA, section 21 sets out the right of members of the public to communicate with and to receive available services from federal institutions. Sections 22 and 24 impose a duty on federal institutions to ensure that any member of the public can communicate with and receive available services of equal quality from their offices in either official language. In addition, section 27 provides that the duties of federal institutions in respect of communications and services in both official languages apply in respect of oral and written communications and in respect of any documents or activities that relate to those communications or services.

[...]

[93] The rights conferred on taxpayers by Part IV of the OLA must mean something. As the Court said in Norton at para 76, the right to communicate in the official language of their choice “implies a right to be heard and understood by the institution in either official language”. In order for taxpayers to be understood and receive equal service in the language of their communications with the CRA, call centre agents must be able to understand the file of the taxpayer with whom they are speaking, including the notes in the “notepad”. “Lip service does not satisfy the letter and spirit of provisions found in Part IV of the OLA” (Norton at para 76).

Norton v. Via Rail Canada , 2009 FC 704 (CanLII)

[76] Coming back to the nature of the rights conferred on the public by Part IV of the OLA, it must be understood that the right to communicate, which is already guaranteed by section 20 of the Charter, implies a right to be heard and understood by the institution in either official language. Moreover, the concept of public “services”, which is also guaranteed by section 20 of the Charter, is broader than the term “communications”. Simultaneous or consecutive translation is impractical in the case of oral communication, and diminishes the quality of service. Therefore, the opportunity to be served in the official language of one’s choice in the cases contemplated by the law can only be assured by the presence of bilingual personnel. Lip service does not satisfy the letter and spirit of provisions found in Part IV of the OLA which require an “active offer”. See Nicole Vaz and Pierre Foucher, Language Rights in Canada, Second Edition, Edited by Michel Bastarache (Les Editions Yvon Blais, 2004), chapter 4.

See also: Seesahai v. Via Rail Canada, 2009 FC 859 (CanLII), Collins v. Via Rail Canada, 2009 FC 860 (CanLII), Bonner v. Via Rail Canada, 2009 FC 857 (CanLII), Temple v. Via Rail Canada Inc., [2010] 4 FCR 80, 2009 FC 858 (CanLII)

Schreiber v. Canada , 1999 CanLII 8898 (FC)

[125] From a constitutional perspective, the language rights entrenched in subsections 16(1) and 20(1) of the Charter are engaged in the present proceeding. With respect to the Official Languages Act, the language rights in issue are the section 21 right to communicate with and to receive services from a federal institution and the section 34 right that English and French are the languages of work in all federal institutions, with employees having the right to use either official language in accordance with the provisions in Part V. The language rights in sections 21 and 34 of the Official Languages Act mirror the rights guaranteed respectively in subsections 20(1) and 16(1) of the Charter. The corresponding duties imposed on federal institutions in sections 22, 35 and 36 of the Official Languages Act are also relevant.

[…]

[129] As indicated previously, sections 21 and 34 of the Official Languages Act recognize, respectively, the right of a member of the public to communicate with and receive available services from federal institutions and the right of an employee to use either official language at work, as English and French are the languages of work in all federal institutions. The corresponding statutory duties in section 22 and sections 35 and 36 respectively require a federal institution to ensure that a member of the public can communicate with and receive available services from it in either official language within the National Capital Region and other prescribed areas, and that it provide work environments conducive to the effective use of both official languages. Those duties, imposed on federal institutions by the Official Languages Act, conform to the principle of substantive equality which requires positive government action to implement the recognized language rights. In other words, the purpose of the legislative duties imposed on federal institutions in sections 22, 35 and 36 is to implement and to give substantive effect and meaning to the rights recognized in sections 21 and 34. […]

22. Where communications and services must be in both official languages

22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities

(a) within the National Capital Region; or

(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.

Annotations

Thibodeau v. Air Canada , [2014] 3 SCR 340, 2014 SCC 67 (CanLII)

[13] Air Canada and its affiliate Jazz are subject to the OLA: see Air Canada Public Participation Act, R.S.C. 1985, c. 35 (4th Supp.), s. 10. (For convenience, I will refer to either or both of them as “Air Canada” in these reasons.) The OLA requires Air Canada to supply services in French or English where there is “significant demand” for them: see s. 22(b).

[...]

[15] On three international flights on Air Canada and in an airport, over the course of roughly four months in 2009, Mr. and Ms. Thibodeau did not receive services in the French language. On some flights, there was no flight attendant able to provide services in French and in some cases passenger announcements on board and in the terminal were made only in English.

[16] On January 23, 2009, while on board a flight from Toronto to Atlanta, Georgia, Mr. and Ms. Thibodeau did not receive services in French because there was no bilingual flight attendant on the aircraft. A few days later, coming back from Atlanta, there was no French announcement made by the pilot or translation of it. On May 12, 2009, the Thibodeaus again did not receive services in French, this time on a flight from Charlotte, North Carolina, to Toronto. Upon arrival in Toronto, an announcement concerning baggage collection was made only in English.

[17] There is no longer any dispute that Air Canada breached its obligations under s. 22 of the OLA on these occasions.

[...]

[136] There is no dispute that Air Canada breached its obligations under s. 22 of the Official Languages Act by failing to provide services and announcements in French. [...]

DesRochers v. Canada (Industry), [2009] 1 S.C.R. 194, 2009 SCC 8 (CanLII)

[1] This appeal requires the Court to determine the nature and scope of the principle of linguistic equality in communications and the provision of services as implemented in Part IV of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (“OLA”). In particular, it concerns the community economic development services provided in Huronia, a region of Ontario where there is “significant demand”, within the meaning of s. 22 of the OLA, for communications and services in the minority official language. The services in question are provided by the Department of Industry Canada pursuant to its powers, duties and functions under the Department of Industry Act, S.C. 1995, c. 1 (“DIA”), and are implemented by various community futures development corporations (“CFDCs”).

[...]

[17] Part IV of the OLA is entitled “Communications With and Services to the Public”. The specific issue in this appeal is whether the respondents breached their duty under s. 22 to ensure that any member of the public can “communicate” with and “obtain available services” from the federal institution “in either official language”.

[...]

[40] It is common ground that Huronia is a region where there is “significant demand”, within the meaning of s. 22, for communications and services in the minority official language. As well, it is no longer in dispute in this Court that, as the courts below concluded, s. 25 applies in this case. The issue is whether the respondents have fulfilled their duties under s. 22.

[41] The scope of s. 22 must be assessed in light, inter alia, of the purpose of the OLA. The appellants rely in particular on s. 2(a), which reads as follows:

2. The purpose of this Act is to

[...]

[55] However, two points must be made regarding the scope of the principle of linguistic equality in the provision of services. First, the duties under Part IV of the OLA do not entail a requirement that government services achieve a minimum level of quality or actually meet the needs of each official language community. Services may be of equal quality in both languages but inadequate or even of poor quality, and they may meet the community economic development needs of neither language community. A deficiency in this regard might be due to a breach of the duties imposed by the DIA, as the Federal Court of Appeal pointed out in this case, or to a breach of the duties under Part VII, as the Commissioner seemed to believe. I will come back to this point.

Knopf v. Canada (Speaker of the House of Commons), 2007 FCA 308 (CanLII)

[39] However, in some other language rights provisions, such as subsection 20(1) of the Charter and section 25 of the Act, the legislator chose the term “to communicate” (communiquer). In my opinion, this is not accidental.

Ayangma v. Canada , 2003 FCA 149 (CanLII)

St-Onge v. Canada (Office of the Commissioner of Official Languages) (C.A.), [1992] 3 FCR 287, 1992 CanLII 8671 (FCA)

[23] We feel it is important to note that section 22 of the Act essentially reproduces paragraph 20(1)(a) of the Canadian Charter of Rights and Freedoms, which suggests that the Court should interpret it in the same way as this provision of the Charter would be interpreted.

[24] Further, it appears from section 31 of the Act that the provisions of Part IV, dealing with the language of communications with and services to the public (including sections 22 and 27), prevail over inconsistent provisions of Part V, dealing with the language of work.

N.B. – This judgment is currently under appeal.

Picard v. Commissioner of Patents , 2010 FC 86 (CanLII)

[54] I agree with the respondents that publication of certain components of patents on the Patent Office web site is not a distinct “service” that, in itself, must be provided in both official languages. The Office merely reproduces (in part) the text of the patents, as they exist. The question of a violation of section 22 of the Official Languages Act that is distinct from a violation of section 12 would arise if the patents were bilingual but the Office published only one of the two versions of the patents on its web site. That is not the case, and accordingly I am of the opinion that the Office is not in violation either of section 22 of the Official Languages Act or of the Charter.

Norton v. Via Rail Canada , 2009 FC 704 (CanLII)

[98] What constitutes under the Charter or the OLA “significant demand” or in what circumstances it is reasonable, due to the “nature of the office”, to provide bilingual services, is subject to differing interpretations. Regulatory criteria provide greater certainty and uniformity in the application of such opened concepts. For this purpose, regulations established by the Governor in Council under Part IV of the OLA enumerate specific cases where railway stations or train routes are “deemed” to meet the “significant demand” or the “nature of the office” criteria: sections 7, 9, 11 and 12. Thus, the Regulations establish a legal presumption facilitating the proof that the Charter or OLA criteria are met. This is their basic purpose but they are not exhaustive and should not be rigidly interpreted and applied. Indeed, it must be accepted by the Court that neither the Regulations nor Burolis can supersede or restrain the OLA or the Charter, but must always be interpreted and applied in a manner consistent with the general objectives of the preamble of the OLA and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism.

Schreiber v. Canada , 1999 CanLII 8898 (FC)

[113] Part IV of the Official Languages Act, entitled "Communications with and Services to the Public", creates certain rights and corresponding duties in relation to communications and the provision of services in the official languages. In particular, section 21 accords to any member of the public the right to communicate with and to receive available services from federal institutions in either official language in accordance with the provisions in Part IV. To implement and give practical effect to that general right, sections 22 to 26 inclusive impose various duties on federal institutions. For the purposes of the present proceeding, only section 22 is relevant, requiring that the communications and services of federal institutions must be in both official languages in certain areas of the country, including the National Capital Region. Section 22 imposes the following duty on federal institutions: [...]

[...]

[132] In the present case, given the integrated nature of the air traffic control operations and the importance of all controllers being aware of the level of activity and the events transpiring in the area, the Department chose to comply with its statutory duties and obligations under the Official Languages Act to give effect to the language rights in sections 21 and 34 by implementing a fully bilingual work environment for the safe and effective delivery of bilingual air traffic services. Indeed, since the inception of bilingual air traffic services in Quebec in 1978, the Department has consistently taken the position that all air traffic controllers working in an area offering such services must be bilingual. The Department also believed that a fully bilingual work environment was necessary to foster cohesiveness in the group effort required in the complex air traffic control environment, and that the presence of a unilingual air traffic controller would "force everyone to operate in his language", thereby frustrating its goal. Furthermore, the Canadian Air Traffic Control Association consistently opposed the implementation of bilingual air traffic control services at the Ottawa Control Tower unless it could be "safely implemented with a full staff of competent and fully qualified bilingual controllers". Even Mr. Schreiber, during his cross-examination, admitted that it was "better" for all of the air traffic controllers to be bilingual. The Department therefore sought to create a fully bilingual work environment in order to facilitate the section 21 right of a member of the public to communicate with and to receive services in either official language, and to comply with the section 34 right of its employees to use either official language. Indeed, given the unique nature of air traffic control operations, only a fully bilingual work environment could be "... conducive to the effective use of both official languages and accommodate the use of either official language by officers and employees", as required by paragraph 35(1)(a) of the Official Languages Act. Finally, a fully bilingual work environment was also consistent, on a long term basis, with the Department’s high safety requirements for the provision of air traffic control services.

Professional Institute of the Public Service v. Canada , [1993] 2 FCR 90, 1993 CanLII 2921 (FC)

[32] Part IV of the Act is relevant to the issue before me. It speaks of communications with and responses from government services in either official language. Paragraph 22(b) repeats the principle laid down in section 20 of the Charter concerning the "significant demand" for communications and services and later, in section 24 of the Act, provides by regulation the institutions of government in which it would "be reasonable" that communications and services be available in both official languages.

[...]

[58] The first duty is to assure that federal institutions are in a position to respond to a citizen's right to communicate with or to be provided services from them in either language. Admittedly, there are variables in the extent or depth of meeting need and availability. One must never lose sight of the main issue, namely that it is only with respect to minority language rights in any given community that the purposes and objectives of the Act are put to the test. The majority language rights in any such community are dynamically respected and pose no problems.

[59] These variables are the product of many basic considerations. I need not list them all, but they do include demographic factors, the size of the minority constituency, the exposure of particular federal agencies to citizen relationships, the proper functioning of these agencies to meet their operational requirements, the significant demand for minority language services, as well as the other considerations which are outlined in section 32 and section 33 of the Act.

R. v. Brewer , 2009 NBPC 5 (CanLII)

[23] Putting aside the issue of whether the provincial official languages legislation applies to the CRA [Canada Revenue Agency], and the extent of any obligation to inform a member of the public of language rights and choices, it is clear that the CRA in this fact situation proceeded to honor a choice of language for communication made by the defendant and also the company of which he was the sole director.

[24] In my opinion, the CRA is entitled and perhaps bound to respect the choice of language indicated by a taxpayer, personal or corporate, on the last filed return.

[25] The defendant filed his last personal return indicating his choice. Common sense would dictate that CRA could refer to this in deciding as to the language to be used to communicate with him regarding the Income Tax Legislation.

[26] Further, the defendant was being notified in his capacity as a director of the company. The company had given its own choice of language for correspondence. In my opinion that indication can be relied upon for any correspondence with the company and any officer or director of that company unless and until the CRA receives an indication to the contrary. That indication may well be made explicitly by an election of language choice filed by an individual on a tax return, or filing correspondence indicating a different language choice, or requesting bilingual correspondence, or verbal notice. It may also be done implicitly by any other conduct.

Marchessault v. Canada Post Corp., 2002 FCT 1202 (CanLII)

[6] What factual basis was applied in reaching the 1992 decision? In reaching the decision, Canada Post established its own criteria for determining "significant demand"; if there was a minority official languages population of 500 or 10% of the total population of a given community or area, Canada Post deemed this area to have a "significant demand" requiring bilingual services.

[7] In fact, Canada Post used the 1991 census as its factual basis for reaching its conclusion; by the 1991 census, 33.8 % of the population of Coderre claimed French as their official language and, thus, this was decided to be a "significant demand". In my opinion, this is a most reasonable conclusion reached properly on the legislation cited above.

[8] The question of the applicability of the Official Languages Act Regulations (SOR/92-48) ("the Regulations") has played a prominent part in the arguments presented in the present case. The pertinent sections of the Regulations are as follows:

[...]

[9] Indeed, it appears that the 1991 census figures were applied by Canada Post in a belief that this was required by virtue of the Regulations. Mr. Marchessault argues that, on a correct interpretation of the Regulations, by application of s.3(a)(i), the 1986 rather than the 1991 census figures should have been used, which would have resulted in the postmaster position not being designated as bilingual.

[10] I must dismiss Mr. Marchessault's argument on the applicability of the Regulations since I find that they were not in force at the time the classification decision was made by Canada Post being before December 1, 1992; the Regulations were registered on December 16, 1991 but did not come into effect until December 16, 1992.

[11] Even if the Regulations can be said to apply, on the evidence filed at the hearing of the present case (Exhibit 2), I find that the release date of the language counts of the 1991 census was September 15, 1992. As a result, I find that s.5 (1)(p) of the Regulations is the correct provision to apply. On this basis, I must also dismiss Mr. Marchessault's argument that the 1986 census figures apply.

23. (1) Travelling public

23. (1) For greater certainty, every federal institution that provides services or makes them available to the travelling public has the duty to ensure that any member of the travelling public can communicate with and obtain those services in either official language from any office or facility of the institution in Canada or elsewhere where there is significant demand for those services in that language.

23. (2) Services provided pursuant to a contract

23. (2) Every federal institution has the duty to ensure that such services to the travelling public as may be prescribed by regulation of the Governor in Council that are provided or made available by another person or organization pursuant to a contract with the federal institution for the provision of those services at an office or facility referred to in subsection (1) are provided or made available, in both official languages, in the manner prescribed by regulation of the Governor in Council.

Annotations

Thibodeau v. Halifax International Airport Authority , 2018 FC 223 (CanLII)

[2] The applicant complained to the Commissioner of Official Languages [the Commissioner] that the HIAA [Halifax International Airport Authority] did not comply with the language obligations set forth in section 23 of the OLA to ensure that services to travellers at the Halifax Stanfield International Airport [the Airport] are in both official languages. In fact, on July 26, 2016, the applicant and his spouse were not served in French at an information counter at the airport when a display clearly indicated that the service was available in both official languages [the incident]. Those last facts were not denied by the federal institution.

[3] In fact, information services at airport counters were offered and continue to be offered to the travelling public by a team of volunteers who are recruited and trained by the HIAA. In its final report in August 2017, the Acting Commissioner found that the shortage of services in French was flagrant and systemic. In fact, the investigation revealed that the total number of volunteers at airport counters was 96 and of that number, only two were identified as being bilingual. However, the HIAA acknowledged that the volunteers who were present at the information counter where the applicant and his spouse had arrived were all unilingual Anglophone, meaning that they were unable to serve them or other travellers in French.

[4] Finding that the applicant’s complaint had merit and that the HIAA had not complied with the obligations set forth in Part IV (including the spirit of the OLA), the Acting Commissioner recommended that the HIAA create and implement an action plan as soon as possible and no later than six months after receiving the final report for recruiting volunteers who can offer service in French at the airport’s information counters and continue to give monthly reminders of the importance of compliance with the OLA to volunteers who serve the public.

Norton v. Via Rail Canada , 2009 FC 704 (CanLII)

[8] Notably, both as a Crown corporation and a “federal institution” to which the OLA applies, VIA has the constitutional or quasi-constitutional duty to ensure that members of the travelling public can communicate with and obtain its services in their official language at its head office as well as in any local office, railway station or train where there is a “significant demand” or where it is reasonable, due to the “nature of the office”. This duty flows directly from subsection 20(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), and sections 23 or 24 of the OLA, which are found in Part IV of same.

[...]

[74] Part IV of the OLA, where sections, 22, 23 and 24 are found, repeats the constitutional rights and guarantees of the Charter afforded to the public with respect to communications with and services from the government of Canada in either official language.

Doucet v. Canada , [2005] 1 FCR 671, 2004 FC 1444 (CanLII)

[75] […] The choice of offering services in both official languages in accordance with a "significant demand" or "the mandate of the office" is, in my opinion, an eminently political one. Parliament has mandated the Governor in Council to choose which institutions will be covered by the notion of "mandate of the office", and it is not for the judiciary to make that choice.

[76] I cannot, however, disregard a significant demand that is not recognized by the authorities, but which clearly exists. The RCMP [Royal Canadian Mounted Police] is a federal institution, whose central office is required by law to offer services in both official languages. An RCMP detachment is regarded as an "office" for the purposes of the Charter and the OLA. When an RCMP detachment provides policing services in Canada, it is important to consider the function it is charged with in the community in which it is located. In the case at bar, one of the RCMP's important duties is to patrol a busy highway, where there is undoubtedly a demand for services in French.

[77] The Regulations should, therefore, be amended to take into account circumstances such as those present in this case: a major highway, used significantly by people of a minority official language, and patrolled by a police force under the authority of the Canadian government. Under such circumstances, defining the "significant demand" in terms of the demographics of the detachment's location is clearly inadequate, since the RCMP is expected not only to deal with residents of the area, but also to serve all non-residents who use the highway. Given the geographic location of Amherst, Nova Scotia, bordering New Brunswick, and the large French population nearby, it is clear that the RCMP must take into account the need to offer services in French, the minority official language.

[78] It is the responsibility of the Governor in Council to find the appropriate language to resolve this problem. It is clear that the expression "travelling public" under section 23 of the OLA must be defined more broadly than to include only travellers using airports, railway stations or ferry terminals, and that travellers using major highways must also be considered when they number in the millions.

[79] It seems clear to the Court as well that equal access to services in both official languages means equal treatment. In my opinion, the procedure established by the RCMP, described by Staff Sgt. Hastey, is totally inadequate for the Francophone minority driving in the Amherst area. Motorists should not have to go out of their way or use a telephone or radio when they want to address a member of the RCMP in French. Such a service, which leaves much to be desired, absolutely fails to meet the objectives stated in section 2 of the OLA and is contrary to section 16 of the Charter, which recognizes the equality of both official languages.

Canada (Commissioner of Official Languages) v. Air Canada , 1997 CanLII 5843 (FC)

[25] As mentioned supra, Air Canada submits that any documents relating to a complaint based on facts from before December 16, 1992, the coming into force date of the Regulations, have a retrospective aspect and are accordingly inadmissible.

[26] It is subsection 23(1) that the Commissioner must apply to determine whether there is "significant demand" for services in an official language. What "significant demand" means is defined by subsection 7(3) of the Regulations, which reads as follows: [...]

[27] I agree with the Commissioner that even though subsection 7(3) was not in force before December 16, 1992, subsection 23(1), which was in force before that date, states that every federal institution that provides services or makes them available to the travelling public has the duty to do so in the official language requested where "there is significant demand for those services in that language". Subsection 23(1) reads as follows: [...]

[28] The [Official Languages] Act itself dates back to 1988. The Regulations in question merely establish standards to ensure that the administration of the Act is sound, so Air Canada had a duty to provide French-language services to the travelling public, where there was a significant demand for those services in French even before the Regulations came into force. As a consequence, the Commissioner may file complaints and information in evidence that relate to situations that occurred before the Regulations came into force.

24. (1) Nature of the office

24. (1) Every federal institution has the duty to ensure that any member of the public can communicate in either official language with, and obtain available services in either official language from, any of its offices or facilities in Canada or elsewhere

(a) in any circumstances prescribed by regulation of the Governor in Council that relate to any of the following:

(i) the health, safety or security of members of the public,

(ii) the location of the office or facility, or

(iii) the national or international mandate of the office; or

(b) in any other circumstances prescribed by regulation of the Governor in Council where, due to the nature of the office or facility, it is reasonable that communications with and services from that office or facility be available in both official languages.

24. (2) Institutions reporting directly to Parliament

24. (2) Any federal institution that reports directly to Parliament on any of its activities has the duty to ensure that any member of the public can communicate with and obtain available services from all of its offices or facilities in Canada or elsewhere in either official language.

24. (3) Idem

24. (3) Without restricting the generality of subsection (2), the duty set out in that subsection applies in respect of

(a) the Office of the Commissioner of Official languages;

(b) the Office of the Chief Electoral Officer;

(d) the Office of the Information Commissioner; and

(e) the Office of the Privacy Commissioner.

Annotations

Norton v. Via Rail Canada , 2009 FC 704 (CanLII)

Professional Institute of the Public Service v. Canada , [1993] 2 FCR 90, 1993 CanLII 2921 (FC)

Services Provided on behalf of Federal Institutions

25. Where services provided on behalf of federal institutions

25. Every federal institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this Part to be provided in either official language.

Annotations

DesRochers v. Canada (Industry), [2007] 3 FCR 3, 2006 FCA 374 (CanLII)

[42] Section 25, contained in Part IV of the OLA, deals with the provision of services by third parties. Such provision of services to the public must be available in either official language when the third party is acting on behalf of a federal institution and when that institution would be subject to a similar obligation if it were offering those services itself. Members of the public also have the right to communicate with this third party in either official language.

[43] To act on behalf of another person is to act for that person or for the benefit or in the interest of that person: Owners, Strata Plan No. VR368 v. Marathon Realty Co. Ltd. et al. (1982), 141 D.L.R. (3d) 540 (B.C.C.A.); Gilbert v. British Columbia (Forest Appeals Commission), 2002 BCSC 950; Canadian Oxford Dictionary, 2^nd ed. (Toronto: Oxford University Press, 2004), at page 128; The New Oxford Dictionary of English (Oxford: Clarendon Press, 1998), at page 157; Grand Larousse universel, Vol. 4 (Paris: Larousse, 1995), at page 2467.

[44] Counsel for the respondents argued that the Judge erred in finding that North Simcoe was acting on behalf of the respondents within the meaning of section 25. This is because the expression “on behalf of/pour le compte de” implies a notion of prior authorization by the person on whose behalf the third party will act: see the respondents’ memorandum of fact and law at paragraphs 44 and 45. If services made available by a third party are to be subject to the obligations in Part IV of the OLA, it was argued that the third party must necessarily obtain the prior authorization of the federal institution to provide the services in question, which was not the case here.

[45] I think the respondents’ counsel adopted an excessively technical and restrictive view of the expression “on behalf of”. A third party may act in concert or in partnership with a federal institution for the provision of services even though there has not necessarily been a prior authorization in the formal sense given to it by the respondents’ counsel.

[46] Similarly, a third party may act on behalf of another person when he exercises powers that the other person has delegated to him: see Canada (Commissioner of Official Languages) v. Canada (Minister of Justice) (2001), 35 Admin. L.R. (3d) 46 (F.C.T.D.), at paragraph 138, where the Federal Court held that the Province of Ontario and the municipal governments that had signed an agreement with Justice were acting on behalf of the federal government in the implementation of the Contraventions Act, S.C. 1992, c. 47, when they exercised the powers that were delegated to them by the federal government.

[47] Finally, it is not inconceivable that a federal institution might decide to approve and accept responsibility for the provision of existing services; those services would then become subject to the obligations in Part IV of the OLA. In that case, one could not speak of a prior authorization in the sense that was understood by the respondents.

[48] Counsel for the respondents referred to Lavigne v. Canada (Human Resources Development) (2003), 308 N.R. 186 (F.C.A.), where this Court confirmed the decision of the Federal Court [[2002] 2 F.C. 164]. The latter had held that there was no delegation of powers in that case because Emploi‑Québec had jurisdiction to act in the area of activities related to the labour market and “is not dependent upon federal authorization for its activities and owes nothing to it”.

[49] I note, firstly, that in this passage, the Federal Court refers to an authorization, and not a prior authorization. Secondly, this reference to a federal authorization was made in connection with the distribution of powers between the federal and provincial governments. The concept of authorization to which the Federal Court referred did not mean authorization or prior approval, but rather connoted an enabling power, since without this enabling power the provincial governments do not have the legal capacity to act where a field of exclusive federal jurisdiction is at stake—which was not so in that case. But the Federal Court recognized the possibility and validity of a delegation of powers from the federal government to some provincial agencies or governments.

[50] Thirdly, delegation, which both Lavigne and Commissioner of Official Languages accept as proof of acting on behalf of another, and ratification are both modes of authorization. The Nouveau Petit Robert defines “ratification” as a confirmation or approval (homologation) and “delegation” as a mandate or power of attorney (procuration). Synonyms of “authorisation”, or having the same meaning as the verb “to authorize”, are accreditation, confirmation, agreement, approval, consent, acceptance and permission. This applies as well to a partnership, which evokes the notion of agreement and hence of reciprocal authorization.

[51] At the end of the day, 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. In the affirmative, it must be held that this third party is acting on behalf of a federal institution within the meaning of section 25 of the OLA. And the third party is required to provide these services in both official languages if, I repeat, the federal institution or federal government were themselves subject to this obligation.

[52] In the case at bar, the program, as mentioned earlier, is a government program offering various services related to regional and community economic development, devised pursuant to, and in application of, the DIA [Department of Industry Act, S.C. 1995, c. 1]. If it were dispensing those services itself, the Department [of Industry] would be subject to the obligations set out in Part IV of the OLA

[…].

[54] Needless to say, there is no denying that a mere financial contribution by the federal government to a third person for services it is delivering, and which are not services provided by a federal institution or in the context of a federal government program, does not trigger the application of section 25 of the OLA. But in this case we have a government program emanating from a federal institution which, through the CFDC [Community Futures Development Corporations], including North Simcoe, provides a portion of the services referred to in the program. I think the relationship between the Department and North Simcoe in this case goes beyond the mere giving of financial support to some service agency. The fact that North Simcoe can look to funding sources other than the federal government does not, in my opinion, alter the nature of their relationship.

N.B. – The Supreme Court does not pronounce upon the above analysis of s. 25 of the OLA (DesRochers v. Canada (Industry), [2009] 1 SCR 194, 2009 SCC 8 (CanLII)): “As well, it is no longer in dispute in this Court that, as the courts below concluded, s. 25 applies in this case” (at para. 40).

[7] Pour les motifs qui suivent, la demande de la FFCB doit échouer. En effet, je suis d’avis que, dans les circonstances, la partie IV ne s’applique pas à l’Entente conclue entre le gouvernement fédéral et la Colombie-Britannique, puisque la fourniture des services d’aide à l’emploi prévue à l’Entente constitue un exercice valide de la compétence législative de la province et que, partant, la Colombie-Britannique n’agit pas « pour [le] compte » d’une institution fédérale. De plus, je suis satisfait qu’en regard de l’interprétation qu’il convient de donner au paragraphe 41(2) de la LLO et de la preuve au dossier, les institutions fédérales en cause avaient pris « des mesures positives » au sens de la partie VII de la LLO au moment du dépôt de la plainte de la FFCB auprès du Commissaire. Puisqu’il n’y avait pas de violation ou d’inobservation de la LLO au moment du dépôt de la plainte de la FFCB, la Cour ne peut imposer de réparation. Cependant, la FFCB a droit à ses frais et dépens dans les circonstances.

[…]

[65] Je précise, au demeurant, que la FFCB ne cherche aucunement à ce que cette Cour ordonne une quelconque mesure de redressement à l’encontre de la Colombie-Britannique, ni qu’elle reconnaisse qu’une entité provinciale soit une « institution fédérale » aux fins de la LLO; bien au contraire, les mesures de redressement souhaitées par la FFCB ne visent que les défendeurs, soit EDSC et la Commission, lesquels sont tous deux des institutions fédérales titulaires d’obligations au titre de la LLO. Au surplus, dans l’affaire Lavigne, cette Cour a déjà convenu qu’une question en vertu de l’article 25 de la LLO constituait bel et bien un enjeu auquel elle pouvait répondre même si, dans cette affaire, les défendeurs québécois n’étaient pas eux-mêmes des « institutions fédérales » (Lavigne c Canada (Développement des ressources humaines), 2001 CFPI 1365 (CanLII), [2002] 2 CF 164 [Lavigne CF] aux para 85-87, conf par 2003 CAF 203 (CanLII) [Lavigne CAF] [ensemble, Lavigne]).

[…]

[87] J’en viens à la première question de fond soulevée par la FFCB, soit l’argument voulant qu’il y ait eu violation de la partie IV de la LLO dans la prestation des services d’aide à l’emploi aux termes de l’Entente. Pour décider s’il y a violation ou inobservation de la partie IV, il faut que cette partie et ses dispositions s’appliquent dans le contexte de l’Entente et aux prestations et mesures offertes par la Colombie-Britannique. Or, aux termes de la partie IV de la LLO et de son article 25, l’obligation d’EDSC et de la Commission de veiller à ce que les prestations d’emploi et mesures de soutien de la Colombie-Britannique soient offertes dans les deux langues officielles, et que les fonctionnaires de la Colombie-Britannique qui les offrent puissent communiquer avec le public dans l’une ou l’autre des langues officielles, ne peut prendre naissance que si la Colombie-Britannique est un tiers agissant « pour [le] compte » d’EDSC et de la Commission en tant qu’institutions fédérales. En vertu de l’article 25, lorsqu’un tiers agit « pour [le] compte » d’une institution fédérale, celle-ci a l’obligation de s’assurer que le tiers offre des services conformément à la partie IV de la LLO comme si c’était l’institution fédérale elle-même qui les offrait. Comme le souligne à juste titre le Commissaire, l’objet de l’article est d’éviter que les institutions fédérales ne se délestent de leurs obligations linguistiques lorsqu’elles font appel à des tiers.

[88] La question en litige est donc de déterminer si, dans le cadre de l’Entente, la Colombie-Britannique offre effectivement des services d’aide à l’emploi « pour [le] compte » d’EDSC et de la Commission au sens de l’article 25 de la LLO, ayant pour effet d’assujettir ces institutions fédérales à la partie IV de la LLO. La FFCB et le Commissaire soutiennent que c’est le cas et qu’EDSC et la Commission sont ainsi liées par les articles 21, 22 et 28 de la LLO.

[…]

[92] D’abord, la Cour a déjà décidé dans l’affaire Lavigne CF, confirmée par la Cour d’appel fédérale dans Lavigne CAF, qu’une entente comme celle qui fait l’objet du présent litige relève d’une compétence concurrente entre le Parlement et les législatures provinciales, soit le champ des activités liées au marché du travail, et que l’article 25 de la LLO ne s’y applique pas. La jurisprudence plus récente de la Cour suprême ne vient aucunement saper les conclusions du juge Lemieux dans l’affaire Lavigne CF. La Cour est liée par ce précédent confirmé par la Cour d’appel, et il n’y a pas de raison de s’en dissocier.

[93] D’autre part, et à tout événement, la Colombie-Britannique, en créant et offrant ses propres prestations et mesures aux termes de l’Entente, agit dans le cadre de sa compétence législative. Comme la preuve soumise par les défendeurs le démontre, le caractère véritable de l’Entente est de créer des possibilités d’emploi, d’accroître la productivité de la Colombie-Britannique et de développer le marché du travail de la province au moyen de programmes très variés. L’Entente se rattache ainsi aux compétences provinciales en matière de propriété et de droits civils dans la province, de matières d’une nature purement locale ou privée et d’éducation, prévues aux paragraphes 92(13) et 92(16) et à l’article 93 de la LC 1867. La Colombie-Britannique n’agit donc pas « pour [le] compte » ou sous le contrôle d’une institution fédérale. Ni EDSC ni la Commission ne lui ont délégué la responsabilité de créer et d’offrir les prestations d’emploi et mesures de soutien financées par l’Entente, puisqu’elles relèvent de sa propre compétence législative. Ainsi, il y a lieu d’écarter la doctrine de l’exclusivité des compétences mise de l’avant par la FFCB et le Commissaire et de faire plutôt appel à la théorie du double aspect, enracinée dans le principe du fédéralisme coopératif, laquelle prévoit qu’une matière peut faire l’objet d’une compétence constitutionnelle à la fois provinciale et fédérale.

[…]

[120] Pour déterminer si la Colombie-Britannique offre des services d’aide à l’emploi pour le compte d’EDSC et de la Commission au sens de l’article 25 de la LLO, il faut mener une analyse en vertu du partage des compétences. Dans le cadre d’une telle analyse, il faut d’abord « déterminer si le palier législatif ou l’entité exerçant les pouvoirs délégués est autorisé, en vertu de la Constitution, à adopter la loi ou la mesure contestée » (Rogers Communications Inc c Châteauguay (Ville), 2016 CSC 23 (CanLII) [Rogers] au para 34; Québec (Procureur général) c Canadian Owners and Pilots Association, 2010 CSC 39 (CanLII) [COPA] au para 22; Banque canadienne de l’Ouest c Alberta, 2007 CSC 22 (CanLII) [Banque canadienne de l’Ouest] au para 25). La question est de savoir quel est l’objet ou le « caractère véritable » des prestations et mesures visées à l’Entente et d’évaluer à quel(s) chef(s) ou champ(s) de compétence elles se rattachent (Banque de Montréal c Marcotte, 2014 CSC 55 (CanLII) [Marcotte] aux para 48 et s). D’ailleurs, afin de conclure si certaines des mesures de la LAE eu égard aux prestations de maternité relevaient de la compétence fédérale en matière d’assurance-chômage, la Cour suprême avait rappelé qu’il faut évaluer leur caractère véritable et ensuite déterminer dans quelle mesure elles se rapportent au chef de compétence du législateur concerné (Renvoi LAE au para 8).

[…]

[134] Tout le contexte de l’adoption de la partie II de la LAE, et le libellé plus particulier de son article 63, reflètent donc l’intention avouée du gouvernement fédéral lorsqu’il a entrepris la réforme de l’assurance-emploi au milieu des années 1990 : par respect pour la compétence des provinces et par souci d’éliminer les dédoublements de programmes, le gouvernement fédéral avait annoncé son souhait de se retirer progressivement des prestations et mesures et de contribuer financièrement à celles que les provinces développeraient et offriraient. La volumineuse preuve par affidavit des défendeurs, qui n’a pas été contredite, en fournit les détails.

[135] Ce contexte législatif de l’Entente appuie la conclusion que les prestations et mesures prévues par les accords de contribution de l’article 63 (et donc par l’Entente) ne relèvent pas d’une compétence fédérale, mais bien de la compétence législative provinciale. La Commission ne fait que financer ces mesures : elle ne les détermine pas, ne les délivre pas, ne les administre pas. Bref, la partie II de la LAE reconnaît la promotion du développement de multiples aspects du marché du travail comme domaine de compétence provinciale.

[…]

[149] À mon avis, il faut plutôt conclure que les prestations et mesures visées par l’Entente sont caractéristiques de matières qui relèvent à la fois des compétences provinciale et fédérale, et ont un caractère véritable comportant un « double aspect » qui peut être réglementé à la fois par le fédéral en vertu du paragraphe 91(2A) sur l’assurance-chômage et/ou par les provinces en vertu des paragraphes 92(13) et 92(16) ou de l’article 93 de la LC 1867. Cette théorie du double aspect, dont la Cour suprême s’est faite davantage l’apôtre depuis l’arrêt Banque Canadienne de l’Ouest, signifie que la même activité peut être régie dans sa dimension fédérale par une loi fédérale et dans sa dimension provinciale par une loi provinciale, toutes deux valides. Elle « permet aux deux paliers de gouvernement d’adopter des lois ou règlements semblables ‘lorsque le contraste entre l’importance relative des deux aspects n’est pas très net’ » (Rogers au para 50, citant Multiple Access Ltd c McCutcheon, 1982 CanLII 55 (CSC), [1982] 2 RCS 161 à la p 182). Le développement et le bon fonctionnement du marché ainsi que les activités liées au marché du travail, en tant que matière générale, en sont un bel exemple. Chaque palier de gouvernement peut validement adopter des prestations et mesures d’aide à l’emploi dans les limites de ses compétences législatives (Renvoi LAE au para 77).

[150] Pour ces raisons, je conclus que la Colombie-Britannique n’est pas une institution du gouvernement du Canada et qu’elle n’agit pas « pour [le] compte » d’une institution fédérale lorsqu’elle élabore et offre ses prestations et mesures aux termes de l’Entente. Elle agit plutôt strictement dans le cadre des compétences législatives qui lui sont dévolues.

[…]

[160] Dans l’affaire DesRochers CAF, la Cour d’appel fédérale a précisé le sens des mots « pour leur compte » utilisés à l’article 25 de la LLO. L’arrêt DesRochers CAF portait sur un recours en vertu de l’article 77 de la LLO qui alléguait une violation des parties IV et VII de la LLO par un organisme privé, North Simcoe Business Development Centre [Simcoe Nord], lequel agissait pour le compte d’Industrie Canada. La Cour d’appel fédérale y a indiqué qu’agir pour le compte d’une autre personne veut dire « agir pour cette personne ou pour le bénéfice ou dans l’intérêt de cette personne » (DesRochers CAF au para 43). Ainsi, un tiers peut agir pour le compte d’autrui lorsqu’il exerce des pouvoirs délégués, comme dans l’affaire Contraventions, où la province de l’Ontario et les municipalités agissaient pour le compte du gouvernement fédéral dans la mise en œuvre de la législation canadienne sur les contraventions (DesRochers CAF au para 46).

[161] Dans DesRochers CAF, la Cour d’appel fédérale n’a pas établi le seuil qu’il faut franchir pour engager l’article 25 de la LLO. Elle a toutefois précisé qu’une simple contribution financière du gouvernement fédéral à un tiers ne suffit pas à déclencher l’application de l’article 25 de la LLO (DesRochers CAF au para 54). Cela dit, le juge Létourneau, écrivant pour le banc de la Cour, a tout de même formulé le test suivant, au paragraphe 51 de la décision :

En somme, il s’agit de voir, selon les faits et les circonstances de l’espèce, si le tiers offre des services d’une institution fédérale ou d'un programme gouvernemental fédéral avec l’accréditation, l’accord, la confirmation, le consentement, l’acceptation ou l’approbation de celle-ci ou du gouvernement. Une réponse positive entraîne une conclusion que ce tiers agit pour le compte d’une institution fédérale au sens de l’article 25 de la LLO. Et ce tiers est tenu d'offrir ces services dans les deux langues officielles si, je le rappelle, l’institution fédérale ou le gouvernement fédéral étaient eux-mêmes soumis à une telle obligation.

[Je souligne]

[162] Par conséquent, l’offre des services avec « l’accréditation, l’accord, la confirmation, le consentement, l’acceptation ou l’approbation » du gouvernement fédéral constitue le test à utiliser pour mesurer le degré de contrôle. Dans son analyse portant sur l’examen du degré de contrôle sur Simcoe Nord, la Cour d’appel fédérale a tenu compte du contrôle qu’exerçait le gouvernement fédéral sur la « définition, la nature et l’étendue des activités du programme et des activités admissibles, sur les coûts de ces activités, et sur les résultats recherchés » (DesRochers CAF au para 58). Aux paragraphes 60 à 62 de la décision, le juge Létourneau a passé en revue les nombreuses activités offertes par Simcoe Nord. Il en a conclu que la conception du programme en cause, les critères d’accès, les modalités et les obligations de reddition de compte avaient été établis par l’institution fédérale, et que le tiers agissait ainsi « pour [le] compte » du gouvernement fédéral. La Cour d’appel fédérale a aussi retenu la clause linguistique prévue au contrat entre le gouvernement fédéral et Simcoe Nord, qui prévoyait entre autres que le tiers devait annoncer et publiciser ses services dans les deux langues officielles et que les communications avec le public devaient aussi respecter les mêmes obligations (DesRochers CAF au para 62). De plus, le juge Létourneau a considéré le fait qu’un nombre important de politiques ayant trait au fonctionnement administratif et financier de Simcoe Nord ne pouvaient faire l’objet de modifications sans l’approbation du ministre fédéral (DesRochers CAF au para 63).

[163] Comme l’a fait valoir le Commissaire, l’analyse du degré de contrôle prescrite par la Cour d’appel fédérale se penche généralement sur deux aspects de la relation entre l’institution fédérale et le tiers impliqué : 1) la spécification de la nature et l’étendue des activités prévues par l’entente en cause; et 2) le pouvoir de surveillance de l’autorité fédérale sur les activités du tiers. Dans ses soumissions, le Commissaire a décliné certains autres paramètres plus précis qui, à ses yeux, devraient être pris en compte dans l’évaluation. Je suis d’accord qu’il s’agit là d’un bon guide à suivre dans l’analyse, mais l’établissement du degré de contrôle est d’abord et avant tout une question d’appréciation de la preuve et des faits par les tribunaux, à la lumière des principes énoncés par la Cour d’appel fédérale dans DesRochers CAF. Je ne crois pas qu’en regard de ce précédent, il soit nécessaire de reformuler le test autrement, de préciser davantage les paramètres que les tribunaux devraient suivre dans leur appréciation de la preuve, ou de décréter un seuil particulier à atteindre pour avoir un contrôle « suffisant » aux fins de l’article 25 de la LLO. Il suffit, dans chaque cas particulier, de peser soigneusement les critères en fonction des circonstances factuelles propres à la situation et en regard de la preuve soumise, et suivant la norme de la prépondérance des probabilités. Il s’agit là d’un exercice que les tribunaux ont l’habitude de mener.

[164] Dans son rapport final d’enquête, le Commissaire a eu tôt fait de conclure à un « niveau de contrôle suffisant » de la part d’EDSC sur la province, sur la base de ce qu’il qualifiait d’implication « dans une certaine mesure » ou d’un « certain rôle » joué par le gouvernement fédéral dans la gestion de l’Entente. À sa décharge, le Commissaire ne disposait alors pas de la plus lourde preuve par affidavit que la Cour a devant elle aujourd’hui. À mon avis, cette preuve invite à plus de modération. Pour les raisons qui suivent, je ne suis pas persuadé que les institutions fédérales en cause ici exercent le même genre de degré de contrôle que ce qui prévalait dans DesRochers CAF. Je suis plutôt d’avis qu’en regard de la preuve au dossier, l’offre de prestations et mesures par la Colombie-Britannique n’est pas assujettie à « l’accréditation, l’accord, la confirmation, le consentement, l’acceptation ou l’approbation » ni au contrôle général d’EDSC ou de la Commission, que ce soit sur la définition, la nature et l’étendue des prestations et mesures visées par l’Entente, sur la gestion et l’administration de ces activités, sur leurs coûts ou sur les résultats recherchés.

[…]

[166] Je rappelle que l’Entente découle de l’article 63 de la LAE, qui prévoit que la Commission peut conclure avec un gouvernement provincial un accord prévoyant le versement d’une contribution relative à des prestations et mesures similaires aux prestations d’emploi de la Commission. Le fait que l’Entente ait été conclue en vertu de cet article, et non pas aux termes de l’article 62 qui prévoit quant à lui que la Commission peut signer un accord avec un tiers pour qu’il administre une prestation d’emploi « pour son compte », est un premier élément appuyant le constat que la Colombie-Britannique n’agit pas pour le compte des défendeurs.

[…]

[168] C’est ainsi que la province a elle-même adopté le modèle du « guichet unique » dans l’EPBC. La Colombie-Britannique peut aussi modifier la conception de ses prestations et mesures pour répondre aux besoins des clients, aux impératifs du marché du travail ou aux résultats des évaluations, le tout sujet à vérification par les représentants désignés. Cependant, ces représentants désignés proviennent des deux parties, pas seulement du gouvernement fédéral. Aucune partie n’a le dernier mot, et une vérification de cette nature ne constitue pas une forme d’accréditation, de consentement, d’acceptation ou d’approbation au sens de DesRochers CAF. La preuve au dossier ne fait pas plus état d’un exercice effectif de contrôle par le gouvernement fédéral à ce chapitre.

[169] Au niveau de la redistribution du financement, la province choisit à qui sont répartis les fonds reçus du gouvernement fédéral. Selon l’affidavit de Duncan Shaw, la redistribution de la contribution financière du gouvernement fédéral est à la totale discrétion de la Colombie-Britannique qui est libre de choisir les personnes ou les entités qui en bénéficieront, avec un soutien minimal de la Commission. En d’autres termes, la province est libre de faire ce qu’elle veut avec son argent dans la mesure où les prestations et mesures sont « similaires » à celles établies par la Commission et les lignes directrices de la LAE sont respectées. Le gouvernement fédéral ne s’immisce pas dans la gestion des fonds.

[170] Révélatrices, les dispositions de l’Entente et sa mise en œuvre le sont encore lorsqu’on regarde le déploiement et l’administration des prestations et mesures. L’autonomie de la Colombie-Britannique, et l’absence de contrôle, s’y reflètent tant dans le libellé de nombreuses dispositions que dans la façon dont fonctionne la mise en place des prestations et mesures visées par l’Entente. Par exemple, les contrats avec les prestataires de services sont rédigés par la Colombie-Britannique. En fait, l’appel d’offres initial a été lancé par la Colombie-Britannique suite à la révision de ses programmes et à son choix du modèle à « guichet unique ». Ensuite, la province a procédé à administrer l’appel d’offres, a rédigé les clauses linguistiques, et a signé les contrats avec les entreprises qui, comme sous-traitants, s’occupent de la prestation de services d’aide à l’emploi dans les différentes régions que la Colombie-Britannique a identifiées. La preuve montre que l’administration des prestations et mesures par les sous-traitants s’est faite conformément à l’appel d’offres lancé par la province, et que la clause linguistique insérée dans les différents contrats rédigés par la Colombie-Britannique a été négociée par la province sans l’aide ou l’approbation d’EDSC. Ainsi, la province s’est engagée à faire quelque chose de concret pour les minorités linguistiques, dans le cadre de sa responsabilité ultime dans l’élaboration et l’offre de ses prestations et mesures.

[171] L’Entente contient des dispositions sur l’évaluation du rendement des prestations et mesures mais, encore une fois, elles témoignent de l’absence de contrôle de la part d’EDSC et de la Commission. Pour mesurer l’efficacité de l’Entente, l’article 3.2 prévoit par exemple la remise au gouvernement fédéral de plans annuels préparés par la Colombie-Britannique sur l’évaluation du rendement. Ce plan annuel de la Colombie-Britannique doit présenter les enjeux relatifs au marché du travail, un éventail des prestations et mesures de la Colombie-Britannique, et les dépenses projetées pour chaque prestation et mesure. L’information sert pour le rapport ministériel d’EDSC sur le rendement.

[172] Les articles 8, 9 et 11 de l’Entente prévoient que la Commission doit évaluer le rendement des prestations et mesures, et que la province doit s’engager à de telles évaluations périodiques. L’article 11 traite des rapports de contrôle et d’évaluation. Oui, il prévoit que le gouvernement fédéral « contrôlera et évaluera l’efficacité de l’aide offerte par la Colombie-Britannique relative aux prestations et mesures d’emploi ». Mais le tout est fait en vue de produire un rapport annuel de contrôle et d’évaluation que le ministre responsable déposera devant le Parlement. Selon l’affidavit de Duncan Shaw, l’objectif de cette évaluation du rendement est de s’assurer de la pertinence de la contribution financière et de l’atteinte des objectifs de l’Entente. Quant aux outils d’évaluation du rendement, l’article 18 de l’Entente requiert un état financier annuel et certifié par le vérificateur de la province et indiquant le montant des dépenses du programme liées aux prestations et mesures. Ainsi, on évalue le rendement par un état financier annuel et certifié par la province, et non pas par le vérificateur général fédéral ou des fonctionnaires fédéraux. Encore une fois, cela ne reflète pas une forme de contrôle par le gouvernement fédéral.

[173] Cela dit, une certaine vérification financière des sommes attribuées à la province est compatible avec un constat d’absence de contrôle suffisant puisqu’elle est nécessaire pour les fins de faire rapport au Parlement sur les sommes dépensées, et pour le rapport annuel du vérificateur général sur le compte des opérations de l’assurance-emploi. Ceci, à nouveau, n’est pas synonyme d’accréditation, de confirmation ou d’approbation au sens de l’arrêt DesRochers CAF. En fait, comme l’a souligné l’avocat des défendeurs à l’audience, le plan annuel et l’évaluation du rendement rappellent plutôt ce que la Cour d’appel fédérale décrivait au paragraphe 57 de DesRochers CAF, soit des mesures de saine gestion des fonds publics.

[…]

[175] Au niveau de la gestion, l’Entente est rédigée de façon telle qu’aucune des parties n’a de pouvoir décisionnel sur l’autre. On parle de gestion conjointe. Ainsi, à l’article 22, l’Entente crée un comité de gestion fédéral-provincial, qui se réunit au moins deux fois par an, qui est coprésidé par les deux parties à l’Entente et qui sert de forum d’échange de renseignements et de discussion sur les défis liés au marché du travail auxquels font face les employeurs, employés et personnes sans emploi dans la province. Il est formé de représentants des deux paliers de gouvernement et les décisions s’y prennent par consensus. Comme l’indique Duncan Shaw dans son affidavit, il s’agit d’un forum d’échanges et de discussions pour soutenir les parties aux ententes de services, pour favoriser une approche intégrée et coordonner une efficacité administrative et opérationnelle, ainsi que pour partager l’expertise sur le marché du travail. Ce n’est pas une structure organisationnelle où le gouvernement fédéral pourrait dicter à la Colombie-Britannique de quelle façon elle doit gérer les prestations et mesures qu’elle a élaborées et mises en place. Le comité de gestion a une fonction consultative et a pour but d’optimiser la contribution financière du gouvernement fédéral plutôt que d’encadrer la prestation des services par la province.

[176] Il y a de la consultation, mais une consultation n’équivaut pas à un contrôle. D’ailleurs, je m’empresse de souligner que le terme « consultation » ne figure pas dans l’énumération de six termes exprimant la notion de contrôle faite par la Cour d’appel fédérale dans DesRochers CAF. Une consultation n’est pas du même acabit qu’une approbation ou un accord. Aussi, je ne suis pas persuadé que le fait pour le gouvernement fédéral de jouer un certain rôle consultatif dans la gestion de l’Entente démontre un niveau de contrôle suffisant pour répondre aux exigences de DesRochers CAF.

[…]

[178] Au bout du compte, je ne suis pas persuadé que la preuve au dossier soit suffisamment claire et convaincante pour conclure que, sur la base de la prépondérance des probabilités, le gouvernement fédéral exerce un « degré de contrôle » suffisant sur les activités de la Colombie-Britannique et que, dans son offre de prestations et mesures dans le cadre de l’Entente, la province se trouverait à agir au bénéfice d’EDSC ou de la Commission. Les dispositions de l’Entente et la façon dont les prestations et mesures sont effectivement administrées par la Colombie-Britannique pointent au contraire dans la direction opposée. Ce n’est donc pas une situation où, pour cette raison additionnelle, l’article 25 de la LLO entre en jeu.

[…]

[180] Pour l’ensemble de ces raisons, je conclus que la partie IV de la LLO ne s’applique pas aux services d’aide à l’emploi visés par l’Entente. Du même souffle, il va de soi qu’aucune entrave à l’article 25 de la LLO ou au paragraphe 20(1) de la Charte ne s’est produite en l’instance. Je comprends que, comme l’a souligné le président de la FFCB, Réal Roy, dans son affidavit, les services d’aide à l’emploi sont d’une importance primordiale pour la communauté francophone de la Colombie-Britannique. Le travail, après tout, « est l’un des aspects les plus fondamentaux de la vie d’une personne, un moyen de subvenir à ses besoins financiers et, ce qui est tout aussi important, de jouer un rôle utile dans la société » (Renvoi relatif à la Public Service Employee Relations Act (Alb), 1987 CanLII 88 (CSC), [1987] 1 RCS 313 au para 91). Il est, comme la langue d’ailleurs, une composante essentielle de l’identité d’une personne (Shakov aux para 111-112 (motifs dissidents, mais non sur ce point)).

[181] Je sais aussi que l’article 25 de la LLO existe pour empêcher que, dans le cadre d’ententes avec des tiers, le gouvernement fédéral ne puisse se soustraire à l’emprise de la LLO et à ses obligations linguistiques en matière de langue de service, faire indirectement ce qu’il ne pourrait faire directement, et nier l’égalité réelle de statut et d’usage de la langue de la minorité linguistique (DesRochers CAF au para 72). Mais ici, l’entente de paiements de transfert conclue entre le gouvernement fédéral et la Colombie-Britannique pour le développement du marché du travail dans la province a remis l’administration des services d’aide à l’emploi à une autorité provinciale, qui les fournit suivant un exercice valide de sa compétence législative. Et la Colombie-Britannique le fait sans être assujettie au contrôle d’EDSC ou de la Commission.

[…]

[299] Pour tous ces motifs, la demande de la FFCB est rejetée. Dans les circonstances, la partie IV ne s’applique pas à l’Entente conclue avec la Colombie-Britannique, puisque la fourniture des services d’aide à l’emploi prévus à l’Entente constitue un exercice valide de la compétence législative de la province et que, par conséquent, la Colombie-Britannique n’agit pas « pour [le] compte » d’une institution fédérale. De plus, je suis satisfait qu’en regard de l’interprétation qu’il convient de retenir pour le paragraphe 41(2) et de la preuve au dossier, les institutions fédérales en cause avaient pris « des mesures positives » au sens de la partie VII de la LLO au moment du dépôt de la plainte de la FFCB auprès du Commissaire. Puisqu’il n’y avait pas de défaut de se conformer à une disposition de la LLO au moment du dépôt de la plainte de la FFCB, la Cour ne peut imposer de réparations. Cependant, la FFCB a droit à ses frais et dépens dans les circonstances.

N.B. – This judgment is currently under appeal.

Thibodeau v. Air Canada , 2005 FC 1156 (CanLII)

[41] In terms of communication with and services provided to the public, the OLA provides, in sections 23 and 25, that "every federal institution . . . has the duty" (in French, "qu'il incombe aux institutions fédérales"--"incombe" meaning that federal institutions "ont la responsabilité ou la charge de" [translation] "are responsible for", Le Nouveau Petit Robert, 1993). I would liken this obligation to the one in subsection 10(2) of the ACPPA [Air Canada Public Participation Act]: "has the duty to ensure" (est tenue de veiller à ). The Federal Court has previously interpreted section 25 of the OLA as imposing an obligation of result on these institutions. In Quigley v. Canada (House of Commons), 2002 FCT 645 (CanLII), [2003] 1 F.C. 132 (T.D.), it was held that the House of Commons had breached its duties under the OLA in failing to ensure that the debates are made available in both official languages.

[...]

[71] Subsection 10(2) of the ACPPA provides that the "Corporation" (Air Canada) has the duty to ensure that its subsidiaries provide services in both languages. It is therefore Air Canada that is accountable and not the subsidiaries, since the OLA does not directly apply to them. Subsection 10(2) is modelled on section 25 of the OLA, which provides that every federal institution has the duty to ensure that services provided or made available to the public by another person or organization on its behalf are provided in either official language as if the institution itself were providing the services.

[...]

[85] Section 25 of that Act provides that a federal institution that provides services through another person or organization on its behalf has a duty to ensure that this third party makes those services available in either official language as if the federal institution was itself providing the services. The interpretation of this section has not been unanimous in the past. Air Canada did not consider its subsidiaries to be third parties, and did not think section 25 applied to its subsidiaries. But with the amendment to subsection 10(2) of the ACPPA, Parliament decided to impose the section 25 OLA obligation on Air Canada on its subsidiaries, using the parameters set out in section 7 of the Regulations.

[86] I do not think it is necessary to answer the question as posed, since in my opinion subsection 10(2) of the ACPPA is very clear and unambiguous. Nor do I need to question whether, in the past, Air Canada was under the same duty in regard to its subsidiaries as the one prescribed for third parties in section 25 of the OLA.

N.B. – This point is not addressed on appeal: Air Canada v. Thibodeau, 2007 FCA 115 (CanLII)

Quigley v. Canada (House of Commons), [2003] 1 FCR 132, 2002 FCT 645 (CanLII)

[54] I am of the view that the arrangements between the Speaker of the House [of Commons] and CPAC [Cable Public Affairs Channel] are caught by section 25 of the Act. The House delivers its signals to CPAC which, in turn, provides these signals to the BDUs [Broadcasting distribution undertakings] for distribution to the public. It is because the services are being provided by CPAC for the Speaker of the House that section 25 of the Act applies.

[55] Section 25 of the Act requires that every federal institution, and the House is defined as a federal institution by the Act, must, if it uses another person or organization to deliver services that are required to be provided in both official languages, ensure that the person or organization providing such service does so in both official languages. That has not happened in this case since CPAC, in its agreement with the House, did not undertake to ensure that its distribution contracts with various BDUs would guarantee that CPAC would broadcast in both official languages.

[56] In my opinion, section 25 of the Act requires that any agreement between the House and CPAC, based on the facts of this case, must "ensure" that the eventual broadcasting of the proceedings already provided by the House be in both official languages.

[57]The respondent House argues that BDUs would refuse to broadcast CPAC if such a clause were inserted. There is no evidence before me to establish this statement. In any event, if section 25 of the Act applies and I have found that it does, the mere fact that BDUs may refuse to air any proceedings of the House does not justify ignoring of section 25 of the Act.

[58]I am therefore of the view that the House is in breach of its linguistic obligations under the Act as it has failed to ensure that the proceedings of the House would be provided in both official languages through its agreements with CPAC.

Lavigne v. Canada (Human Resources Development), [2002] 2 FCR 165, 2001 FCT 1365 (CanLII)

[77] If there be delegation in this case, it must be a delegation of administrative functions under the Labour Market Agreement because neither the federal Parliament nor the provincial Legislatures can delegate to one another legislative powers (see the Nova-Scotia Interdelegation case known as A.G. for Canada v. A. G. for Nova Scotia, [1951] S.C.R. 31.

[78] Delegation of administrative functions from one level of government to another level of government is a well-accepted technique in Canadian constitutional law as is the appointment of federal or provincial functionaries to carry out the duties of another level of government. The object of such delegations is to overcome the difficulties of divided jurisdiction (such as in agriculture), to avoid duplication and to ensure co-ordination to achieve desired results. […]

[79] These cases illustrate that the essence of delegation would be in this case, if it occurred, the conferring, vesting or transfer by the federal government including the CEIC [Canada Employment Insurance Commission] of federal functions in the labour market area to Emploi-Québec to be performed by it on behalf of the [Canada Employment Insurance] Commission in accordance with the Labour Market Agreement. However, that is not what happened and as a result, I do not accept the argument put forward by Mr. Lavigne that this case is one of delegation.

[80] It is clear that Emploi-Québec is carrying out its functions in the area of labour market activities under the LMIA [Labour Market Implementation Agreement] such as active employment measures pursuant to provincial legislative authority as its source; it does not carry out those functions pursuant to a mandate received either through the Labour Market Agreement, the Commission or the Minister of Human Resources Canada.

[81] In other words, Emploi-Québec is not dependent upon federal authorization for its activities and owes nothing to it. Its only source of authority is the National Assembly of Quebec.

[82]What happened here is that the federal government withdrew from the field and in lieu of carrying out those activities funded Emploi-Québec through the LMIA.

[83]Mr. Lavigne relies heavily upon Justice Blais' decision in the Contraventions Act case, supra. In my opinion, his reliance is misplaced.

[84] The Contraventions Act case (and the Act was amended in 1996 [S.C. 1996, c. 7]) involved the enactment by the federal Parliament of that Act which authorized provincial authorities to prosecute federal ticket offences and authorized the federal Minister of Justice to enter into agreements in respect of the prosecution, discharge and enforcement of fines.

[85] Justice Blais found the authority over federal contraventions was federal and that the federal authorities decided to streamline the procedure by the enactment of the Contraventions Act. He then specifically looked at section 25 of the OLA which he said simply confirms the constitutional principle that a government may not divest itself of the constitutional obligations to which it is bound by the Charter by delegating certain of its responsibilities. He said the duty that is incumbent on the Attorney General of Canada to offer administrative services relating to prosecutions for federal contraventions in both official languages is imposed not only by Part IV of the OLA but also by the Charter. He was of the view that in administering the Contraventions Act, the Government of Ontario was applying a federal statute within the territory of the province and that, in implementing the Contraventions Act, the Government of Ontario and the municipalities were acting on behalf of the Government of Canada.

[86] It is apparent why the Contraventions Act case, and I entirely agree with Justice Blais' decision, is completely different than the issue before me. As I read Justice Blais' decision, the key to his thinking was the existence of a federal law dealing with federal non-criminal offences which was being administered by provincial authorities. In other words, the provincial authorities derived their right to act not from the provincial statute and regulations but federal ones. Rightfully so, in that context, Justice Blais found a delegation of administrative authority from the federal government to provincial authorities.

[87] For the reasons already explained in these reasons, such is not the case here. There has been no delegation of functions from federal to provincial authorities.

N.B. – This judgment was confirmed on appeal ((Lavigne v. Canada (Minister of Human Resources Development), 2003 FCA 203 (CanLII)): “Hence the Canada-Quebec Labour Market Implementation Agreement (LMIA) does not constitute a delegation of functions from federal to provincial authorities and the Official Languages Act (R.S., 1985, c. 31 (4th Supp.)) does not apply to the services provided by Emploi-Québec” (at para. 2).

Canada (Commissioner of Official Languages) v. Canada (Department of Justice), 2001 FCT 239 (CanLII)

[135] In the circumstances, it seems clear that the federal government has full power to delegate to the provincial government or to municipalities, the administration of prosecutions for violations of federal statutes and regulations. The Government of Ontario then chose to delegate this power to administer, by way of legislative regulation and specific agreements relating to the administration of certain contraventions by municipal authorities.

[136] Under this analysis, the authority that has received the delegated power still has a duty to comply with the language laws that were binding on the delegating authority, whether the Government of Canada or the Government of Ontario, as the case may be.

[137] It would therefore seem important to ensure that the legal obligations of the delegating authority, the federal government, or of the delegates, the Government of Ontario and municipal governments, particularly with regard to language rights, which were characterized earlier as constitutional rights, are delineated and specified sufficiently to ensure that the rights of every accused person will be respected, whether the legislation relating to contraventions is administered by the federal government, the Ontario Government or the municipal authorities.

[138] I therefore conclude that the province of Ontario and the municipalities that have been given the province's delegated powers are acting on behalf of the Government of Canada in implementing the CA and that the municipal governments that have signed an agreement with Justice Canada are also acting on behalf of the Government of Canada.

[139] In addition, even if it were agreed that in administering the CA [Contraventions Act, S.C. 1992, c. 47] the Government of Ontario was acting pursuant to the powers granted to it by section 92(14) of the Constitution Act, 1867, that government would still be obliged to respect the quasi-constitutional language rights set out in the OLA and in sections 530 and 530.1 of the Criminal Code.

[140] It must be recalled that in administering the CA, the Government of Ontario is applying a federal statute within the territory of the province. Accused persons are entitled to expect the same language rights guarantees as if it were the Attorney General of Canada administering the CA.

[141] A federal law of general application such as the OLA cannot be applied throughout Canada in a discriminatory manner, depending on who is responsible for applying the CA. The language guarantees set out in the OLA and in the Criminal Code must therefore apply regardless of whether the Attorney General of Canada, the Attorney General of Ontario or the municipalities are given the authority to administer the CA.

Regulatory Activities of Federal Institutions

26. Regulatory activities relating to health, safety and security of public

26. Every federal institution that regulates persons or organizations with respect to any of their activities that relate to the health, safety or security of members of the public has the duty to ensure, through its regulation of those persons or organizations, wherever it is reasonable to do so in the circumstances, that members of the public can communicate with and obtain available services from those persons or organizations in relation to those activities in both official languages.

General

27. Obligations relating to communications and services

27. Wherever in this Part there is a duty in respect of communications and services in both official languages, the duty applies in respect of oral and written communications and in respect of any documents or activities that relate to those communications or services.

Annotations

St-Onge v. Canada (Office of the Commissioner of Official Languages) (C.A.), [1992] 3 FCR 287, 1992 CanLII 8671 (FCA)

[9] In this court, the appellant relied primarily on the part of his complaint that concerned the difficulty he had in obtaining oral communication in French when he first contacted the [Public Service] Commission [of Canada]'s offices in Toronto. He told the court that it was not until after he had been obliged to speak in English to several employees that he was finally put through to the Director General of the Commission's office, with whom he was able to speak in French.

[10] The appellant cited s. 27 of the Act, which comes under the heading "Communications with and Services to the Public" and which reads as follows:

27. Wherever in this Part there is a duty in respect of communications and services in both official languages, the duty applies in respect of oral and written communications and in respect of any documents or activities that relate to those communications or services.

(Emphasis added.)

[...]

[14] Further, it appears from s. 31 of the Act that the provisions of Part IV, dealing with the language of communications with and services to the public (including ss. 22 and 27), prevail over inconsistent provisions of Part V, dealing with the language of work. It follows, in our opinion, that under Part IV the rights of the public in an area such as Toronto where demand is considered to be significant are not diminished by the fact that that area has not been "designated" bilingual with respect to the language of work under ss. 35 and 36 of the Act. In other words, the appellant's rights to receive service in French in Toronto are not lessened merely by the fact that the appellant would have to work in English if he were to obtain the employment sought.

Tailleur v. Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 (CanLII)

[2] The applicant Luc Tailleur, a Francophone, works in the federal public service. He is a taxpayer services agent at a Canada Revenue Agency [CRA] call centre in Montréal. Mr. Tailleur’s position and the Montréal region where he works are both designated bilingual. In the course of his employment, Mr. Tailleur receives telephone calls from taxpayers and answers their questions about taxes and programs managed by the CRA. In August 2010, Mr. Tailleur served an Anglophone taxpayer in the language of her choice, i.e. English. After finishing his call with the taxpayer, Mr. Tailleur had to write a note in one of the CRA’s computer systems to ensure that the necessary follow-up would be done in the taxpayer’s file. Mr. Tailleur wrote this note in the language of work of his choice, i.e. French. Citing the policies in place at the CRA, Mr. Tailleur’s supervisors directed him to rewrite his note in the language of the taxpayer, which Mr. Tailleur did.

[...]

[18] The Commissioner’s investigation noted, inter alia, that the CRA was basing its position on section 27 of the OLA, which provides that the duty in respect of communications and services in both official languages applies in respect of oral and written communications and in respect of any documents or activities that relate to those communications or services. In addition, the Commissioner’s investigation noted that the CRA also cited section 31 of the OLA, which states that Part IV prevails over any inconsistency in Part V on language of work and therefore gives precedence to the rights of members of the public to communicate and receive their services in their preferred official language. Lastly, the Commissioner observed that the CRA had unsuccessfully tried to reconcile the public’s right with its agents’ rights:

[TRANSLATION]

The CRA also stated that it had tried to find ways to uphold employees’ rights while complying with its duties to serve the public. However, it was unable to reconcile the two parts of the [OLA] given its official language duties and institutional objectives.

N.B. – This judgment is currently under appeal.

28. Active offer

28. Every federal institution that is required under this Part to ensure that any member of the public can communicate with and obtain available services from an office or facility of that institution, or of another person or organization on behalf of that institution, in either official language shall ensure that appropriate measures are taken, including the provision of signs, notices and other information on services and the initiation of communication with the public, to make it known to members of the public that those services are available in either official language at the choice of any member of the public.

Annotations

Northwest Territories (Attorney General) v. Fédération Franco-Ténoise , 2008 NWTCA 6 (CanLII)

[139] An active offer is a greeting that informs the member of the public that they may communicate in either French or English. Its purpose, as described by Mr. Wissell, an investigator with the Office of the COLC [Commissioner of Official Languages of Canada], is to ensure that an individual feels comfortable requesting a service. It is a sign of respect. An active offer can take the form of a sign, a personal greeting or a message.

[140] The trial judge found that the active offer was an integral part of the substantive equality contemplated by s. 5 of the OLA [of the Northwest Territories], whether mentioned or not: at para. 693. The appellants submit that if the legislature intended to make active offer an essential part of s. 11(1), it would have said so (as in the case of ss. 28-30 of the OLAC [Official Languages Act of Canada] and s. 28.1 of the Official Languages Act, S.N.B. 2002, c.O-0.5 (“OLANB”)). They contend that, absent similar provisions in the OLA, the legislature is free to enact regulations to provide for active offer.

Tailleur v. Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 (CanLII)

[25] Call centres like the one Mr. Tailleur works at are an important component of the services provided by the CRA [Canada Revenue Agency] to Canadian taxpayers. To deliver these telephone services, the CRA publishes national toll-free telephone numbers accessible to callers from both official language groups. Separate telephone numbers are provided for each official language and dedicated to each of the two language clienteles. The CRA considers this an active offer of service put in place to respond, in real time, to requests from members of the Anglophone and Francophone communities in Canada. The volume of telephone interactions between CRA agents and taxpayers is very high: in fact, the CRA received no fewer than 16.5 million calls in 2012-2013.

Professional Institute of the Public Service v. Canada , [1993] 2 FCR 90, 1993 CanLII 2921 (FC)

[33] Section 28 might be termed the proactive clause. It imposes on federal institutions the duty to ensure that appropriate measures are taken to make it known to the public that services in either official language are available. Likewise, under section 30, these institutions are obliged to use communications media which will effectively reach both language groups.

N.B. – This judgment is currently under appeal.

29. Signs identifying offices

29. Where a federal institution identifies any of its offices or facilities with signs, each sign shall include both official languages or be placed together with a similar sign of equal prominence in the other official language.

30. Manner of communicating

30. Subject to Part II, where a federal institution is engaged in communications with members of the public in both official languages as required in this Part, it shall communicate by using such media of communication as will reach members of the public in the official language of their choice in an effective and efficient manner that is consistent with the purposes of this Act.

Annotations

Professional Institute of the Public Service v. Canada , [1993] 2 FCR 90, 1993 CanLII 2921 (FC)

31. Relationship to Part V

31. In the event of any inconsistency between this Part and Part V, this Part prevails to the extent of the inconsistency.

Annotations

Forum des maires de la Péninsule acadienne c. Canada (Agence d'inspection des aliments), [2004] 4 RCF 276, 2004 CAF 263 (CanLII)

[48]The right involved, in this Part IV, is that of the public "to communicate with and to receive available services from federal institutions in accordance with this Part" (section 21). This right of the public prevails, under section 31, over the right conferred by Part V "Language of Work" to officers of federal institutions to work in either of the two official languages.

St-Onge v. Canada (Office of the Commissioner of Official Languages) (C.A.), [1992] 3 FCR 287, 1992 CanLII 8671 (FCA)

[14] Further, it appears from s. 31 of the Act that the provisions of Part IV, dealing with the language of communications with and services to the public (including ss. 22 and 27), prevail over inconsistent provisions of Part V, dealing with the language of work. It follows, in our opinion, that under Part IV the rights of the public in an area such as Toronto where demand is considered to be significant are not diminished by the fact that that area has not been "designated" bilingual with respect to the language of work under ss. 35 and 36 of the Act. In other words, the appellant's rights to receive service in French in Toronto are not lessened merely by the fact that the appellant would have to work in English if he were to obtain the employment sought.

Tailleur v. Canada (Attorney General), 2015 FC 1230 (CanLII)

[1] This case deals with the tension that exists between two aspects of the Official Languages Act, RSC, c 31 (4th Supp.) [OLA]: the language rights of members of the public to be served by federal institutions in the official language of their choice and the language rights granted to officers and employees of federal institutions to work in either of the two official languages of Canada.

[...]

[7] For the following reasons, the Court finds that Mr. Tailleur’s application should be dismissed. The Court is of the opinion that the CRA took all reasonable measures to enable Mr. Tailleur and its other employees to use the language of work of their choice, but that the requirement to write the “notepad” in the taxpayer’s language of choice is essential and necessary to ensure that the CRA provides equal service to Anglophone taxpayers; therefore, it must take precedence. With respect to the alternative solution proposed by Mr. Tailleur to establish a mechanism to transfer calls, the Court is of the view that this avenue is beyond the scope of reasonable measures that the CRA can consider in the circumstances.

[...]

[40] Lastly, section 31 of the OLA expressly provides that, in the event of any inconsistency, the language rights of members of the public to communicate with and to receive available services from federal institutions in the official language of their choice prevail over the language rights conferred by Part V on officers and employees of federal institutions. Section 31 reads as follows: [...]

[54] Although the parties agree on the principles of interpretation that apply, they do not agree on the proper interpretation of subsection 36(2) of the OLA. The dispute is twofold: the scope of section 31 of the Act and the meaning of the words “such measures . . . as can reasonably be taken” used in subsection 36(2).

[55] Of course, both section 31 and subsection 36(2) of the OLA must be interpreted in light of the principles of interpretation generally applicable to language rights and bilingual legislation, both versions of which are equally authoritative. Accordingly, “differences between two official versions of the same enactment are reconciled by educing the meaning common to both” (R v Daoust, 2004 SCC 6 (CanLII) [Daoust] at para 26, citing Pierre-André Côté, Interpretation des lois, 3rd ed, (Montréal: Thémis, 1999) at p 410). Thus, the interpretation of a bilingual enactment consists first in searching for the common meaning between the two versions of the statute and, where their scope differs, in preferring the narrower meaning common to both versions (Daoust at para 29). Then, it must be determined whether the common meaning that has been identified is, according to the ordinary rules of statutory interpretation, consistent with Parliament’s intent (Daoust at para 30).

(a) Impact of section 31

[56] The Attorney General submits that it is sufficient to look at section 31 and Part IV of the OLA to resolve the apparent conflict between language of service and language of work in this case, without necessarily having to consider Part V and subsection 36(2) of the OLA or even Mr. Tailleur’s language rights with respect to language of work. The Attorney General is, in effect, arguing that section 31 of the OLA responds to any tension between Parts IV and V of the OLA and that any dispute should be determined in favour of Part IV pursuant to section 31; indeed, where there is a conflict, the right of members of the public to be served in the language of their choice always prevails over the right of employees.

[57] The Court disagrees with this argument and this interpretation of the OLA.

[58] If section 31 of the OLA clearly establishes that Part IV takes precedence over Part V, it does not do so absolutely but to the extent that the provisions of Part V are inconsistent with the provisions of Part IV. In fact, the French version of the section speaks of “dispositions incompatibles de la partie V” while the English version of the OLA provides that Part IV prevails “to the extent of the inconsistency”. Interpreted jointly and with a meaning common to the two versions, this section clearly states that the window of inconsistency that section 31 refers to is limited. Indeed, Part IV will only take preccedence to the extent of the inconsistency that has been identified. How can this inconsistency be measured without first identifying its nature and scope (and therefore analyzing the duties of federal institutions under Part V)?

[59] Since a substantive inconsistency is required to depart from the language rights in Part V in favour of those in Part IV, the Court finds that there cannot be an inconsistency without considering the scope and extent of section 36 of the OLA. The notion of conflict in section 31 of the OLA should be interpreted narrowly because both Part IV and Part V of the Act must be given a liberal and purposive interpretation that is consistent with the preservation and development of both official language communities in Canada.

[60] Therefore, the Court is of the opinion that, interpreted correctly, the meaning and scope of section 31 cannot be divorced from an assessment of the duties imposed on federal institutions by subsection 36(2) of the OLA.

[…]

[77] A second factor stems from the primacy of Part IV of the OLA in the event of any inconsistency with Part V, as established in section 31 of the Act. Accordingly, a measure will not be reasonable if its implementation conflicts with the federal institution’s duties under Part IV of the OLA. It is important to note that the notion of conflict must be interpreted narrowly because both Part IV and Part V should be given a liberal and purposive interpretation that is consistent with the preservation and development of official language communities in Canada.

[…]

[94] Accordingly, the Court is satisfied that, in order to ensure equal, immediate service for all taxpayers, it is objectively necessary that the notes be entered in taxpayers’ files in the official language of their choice. This involves something other than mere administrative convenience (Singh v Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177 at para 70). It should be noted that, with the telephone system in place at the CRA, calls from Anglophone taxpayers may be routed to a bilingual agent or a unilingual Anglophone agent and that those taxpayers have the right to receive the same quality of service, irrespective of the language proficiency of the call centre agent who answers their call.

[...]

[96] In these circumstances, the constitutional guarantee of Mr. Tailleur and the CRA’s call centre agents to be able to use French or English as the language of work in this federal institution must yield to the taxpayers’ right to be able to communicate with call centre agents and receive their services in the language of their choice.

[...]

[98] Mr. Tailleur suggests that it would be possible to implement a system in which a taxpayer’s file would indicate that it has become [translation] “bilingual” when that is the case and that the calls could be redirected to a bilingual employee when necessary and where a unilingual Anglophone agent would not understand the notes to the file written in French. Mr. Tailleur submits that transferring calls to another bilingual agent capable of understanding the notes to the file, whether they are in English or French, would not create unequal service for Anglophone taxpayers and that it would not be complicated to implement such a mechanism for transferring calls.

[...]

[110] The Court is therefore of the opinion that the CRA has shown why the measure proposed by Mr. Tailleur is not reasonable, because implementing it would breach Part IV of the OLA. Accordingly, the proposed measure is inconsistent with Part IV within the meaning of section 31. As the parliamentary debates point out, where there is an inconsistency, the duty to serve members of the public in the language of their choice prevails. Given this finding, the Court does not need to consider whether the transfer of calls suggested by Mr. Tailleur would cause significant operational or administrative difficulties for the CRA or whether implementing it would conflict with the CRA’s mandate.

[...]

[113] Since it is impossible in the circumstances to reconcile duties and language rights in terms of both language of service and language of work because of the need to provide equal service to Anglophone and Francophone taxpayers, Part IV of the OLA must take precedence.

Norton v. Via Rail Canada , 2009 FC 704 (CanLII)

[77] Thus, the right of the public under Part IV of the OLA to communicate with and receive services in the official language of its choice will prevail over any incompatible work rule found in a collective agreement (e.g. seniority) preventing members of the public from communicating with and receiving services from the concerned federal institution in the official language of their choice. Whether the obligation under Part IV is one of result or one of means, there is very little room for compromise (Thibodeau v. Air Canada, 2007 FCA 115 (CanLII), [2007] F.C.J. No. 404 (QL) (Thibodeau)).

Regulations

32. (1) Regulations

32. (1) The Governor in Council may make regulations

(a) prescribing the circumstances in which there is significant demand for the purpose of paragraph 22(b) or subsection 23(1);

(b) prescribing circumstances not otherwise provided for under this Part in which federal institutions have the duty to ensure that any member of the public can communicate with and obtain available services from offices of the institution in either official language;

(c) prescribing services, and the manner in which those services are to be provided or made available, for the purpose of subsection 23(2);

(d) prescribing circumstances, in relation to the public or the travelling public, for the purpose of paragraph 24(1)(a) or (b); and

(e) defining the expression "English or French linguistic minority population" for the purpose of paragraph (2)(a).

32. (2) Where circumstances prescribed under paragraph (1)(a) or (b)

32. (2) In prescribing circumstances under paragraph (1)(a) or (b), the Governor in Council may have regard to

(a) the number of persons composing the English or French linguistic minority population of the area served by an office or facility, the particular characteristics of that population and the proportion of that population to the total population of that area;

(b) the volume of communications or services between an office or facility and members of the public using each official language; and

Annotations

Doucet v. Canada , [2005] 1 FCR 671, 2004 FC 1444 (CanLII)

[10] Although based on the same facts, the issue now before the Court is quite different. The summons and the plaintiff's conviction for speeding are no longer the issue. The issue is rather to determine whether the plaintiff's rights as a Francophone were infringed because, contrary to the right guaranteed in section 20 of the Charter, he did not receive services in French and could not communicate in French when he addressed a member of the RCMP who was patrolling Highway 104 near Amherst. [...]

[11] Under the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (the Regulations), adopted pursuant to section 32 of the OLA, to determine whether a "significant demand" exists for services in the minority official language in a rural area, the minority population must attain the level of 500 persons or 5% of the population in the service area. Consequently, the RCMP detachment at Amherst, Nova Scotia, as an office of a federal institution subject to the Charter and the OLA, does not have to offer bilingual services in the Amherst area because there is no "significant demand" in that area within the meaning of the Regulations. The 1991 census shows a Francophone population of 255 persons living in the service area of the Amherst detachment, and this is 1.1% of the population in the detachment's service area. In Amherst itself, the Francophone population makes up 2.1% of the population.

[...]

[80] I allow the plaintiff's claim in part. I declare subparagraph 5(1)(h)(i) of the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48, adopted pursuant to section 32 of the OLA, inconsistent with paragraph 20(1)(a) of the Charter in that the right to use French or English to communicate with an institution of the Government of Canada should not solely depend on the percentage of Francophones in the census district. Consideration must also be given to the number of Francophones who use or might use the services of the institution, as illustrated by the circumstances in this case, along Highway 104 near Amherst, Nova Scotia. In my view, it is reasonable to give the Governor in Council 18 months to correct the problem identified in the Regulations.

Canada (Attorney General) v. Green, [2000] 4 FCR 629, 2000 CanLII 17146 (FC)

(d) The Official Languages (Communications with and Services to the Public) Regulations [SOR/92-48]

[47] These Regulations made by the Governor in Council under section 32 of the OLA were adopted in 1991. They define the concept of English and French linguistic minority population, significant demand and contain other provisions which need not be reproduced here.

Professional Institute of the Public Service v. Canada , [1993] 2 FCR 90, 1993 CanLII 2921 (FC)

[34] Subsection 32(1), in turn, prescribes in more detail the regulatory authority of the Governor in Council with respect to "significant demand", to circumstances not otherwise provided, and with respect to the services and the manner of providing them. It also authorizes the Governor in Council to have regard to: the French and English linguistic minority population served by the government; the proportion of that population and its characteristics; the volume of business in either language; and finally, any other factors the Governor in Council considers appropriate.

[...]

33. Regulations

33. The Governor in Council may make any regulations that the Governor in Council considers necessary to foster actively communications with and services from offices or facilities of federal institutions — other than the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer, office of the Conflict of Interest and Ethics Commissioner, Parliamentary Protective Service or office of the Parliamentary Budget Officer — in both official languages, if those communications and services are required under this Part to be provided in both official languages.

R.S., 1985, c. 31 (4th Supp.), s. 33; 2004, c. 7, s. 27; 2006, c. 9, s. 21; 2015, c. 36, s. 145; 2017, c. 20, s. 180.

Annotations

Professional Institute of the Public Service v. Canada , [1993] 2 FCR 90, 1993 CanLII 2921 (FC)

Part V – Language of Work

34. Rights relating to language of work

34. English and French are the languages of work in all federal institutions, and officers and employees of all federal institutions have the right to use either official language in accordance with this Part.

Annotations

Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773, 2002 SCC 53 (CanLII)

[64] In the particular context of employment, the use of an official language by a minority group is a very delicate situation. It may be difficult for an employee to make a complaint for the purpose of having his or her language rights recognized. The employee is in a situation of twofold weakness: he belongs to a minority group, and his relationship with the employer is one of subordination. Instead of tackling these difficulties by asserting his rights, an employee may prefer to conform to the language of the majority. The objective of the Official Languages Act is precisely to make that kind of behaviour unnecessary, by enhancing the vitality of both official languages. To facilitate the exercise of language rights, Parliament has expressly provided that investigations will be private and confidential, and has given the Commissioner of Official Languages a mandate to ensure that the Act is enforced. This is the delicate context in which the Commissioner carries out his functions.

Gingras v. Canada , [1994] 2 FCR 734, 1994 CanLII 3475 (FCA)

[7] The Official Languages Act of 1969 and 1988 contain no provision regarding the introduction of a bilingualism bonus plan. In other words, there was nothing in those Acts to require the Government to set up such a plan, if it did so there was nothing to require it to make the plan applicable to all eligible employees in the federal Public Service and nothing prevented it from abolishing or modifying any plan it created, which the Official Languages Commissioner in fact urged it to do year after year in his annual report.

Canada (A.G.) v. Viola, [1991] 1 F.C. 373, [1990] F.C.J. No. 1052 (QL) (FCA) [hyperlink not available]

François v. Canada (Attorney General), 2017 FC 154 (CanLII)

[39] My review of the CDS [Chief of Defence Staff] Decision and of the evidence on the record first persuades me that, contrary to what Capt. François alleges, the CDS reasonably found that the CAF [Canadian Armed Forces] had met its obligations under the OLA and the CAF language policy. In other words, Capt. François’ language rights were not breached.

[40] The CDS indicated in his decision that he fully agreed with the Committee’s findings with regard to the obligations under the OLA, and to the fact that the CAF complied with its obligations. The Committee, in its report, mentioned that even though Capt. François received extensive language training, the evidence demonstrated that he was placed in a bilingual working environment which provided him with the opportunity to communicate in the language of his choice. Moreover, the Committee’s report emphasized that Capt. François “received numerous and ample tools, training, counselling and support in the language of his choice”, which was often English, and that Capt. François’ choices, such as receiving counselling, training and documents in English, as well as filing his grievance in English, weakened his OLA argument. As a result, the CDS completely agreed with the Committee that no breach of the OLA or of the CAF language policy occurred.

[41] Indeed, the record contains ample evidence showing that the CAF met its obligations described in the DAOD [Defence Administrative Orders and Directive] 5039, to ensure that “in bilingual units, the work environment is conducive to the effective use of both languages” and that “Francophones and Anglophone have equal opportunity for employment and career advancement” within the CAF. To support its conclusions, the CDS extensively canvassed the facts and the law and provided a detailed analysis in his decision. In particular, he noted the following facts:

A. Capt. François initially received full-time English training for 948 hours in 2003, and graduated with a “BBB” second language profile;

B. Capt. François benefited from two other 60-hours courses in English writing in 2009;

C. Capt. François’ second language profile improved to “CBB” in 2011;

D. Capt. François was employed in sections supervised by several levels of bilingual Francophones for the four years prior to his release;

E. Capt. François’ sole employment in the year leading up to the AR [Administrative Review] process was as an assistant to a Francophone, supporting a Francophone company in Mirabel, Québec;

F. Capt. François was always able to speak and brief in the language of his choice;

G. Capt. François had to work with some technical materials provided by the United States that were only available in English, but he possessed the necessary tools to overcome this, considering that his second language profile rated his English written comprehension as a “C”;

H. Capt. François’ challenges associated with communication skills were only one of several areas of noted weakness.

[42] In light of this evidence, I agree with the Attorney General that the CDS reasonably concluded that Capt. François was provided with the necessary tools to perform and to be effective in an environment conducive to the effective use of both official languages. It bears underscoring that the CDS did address the issue of Capt. François’ linguistic rights in detail in his decision, adopting the Committee’s view on the issue and explaining how the CAF fulfilled its obligations under the OLA and the DAOD 5039.

[...]

[50] Moreover, the CDS found that Capt. François’ assertion that he was working in an Anglophone environment was incorrect and not borne by the evidence. True, the technical materials that Capt. François was working with were only available in English, but it was reasonable to find, given the evidence and the circumstances, that Capt. François possessed the necessary tools and skills to overcome that challenge. Also, his supervisors were Francophones and Capt. François could always brief in the language of his choice. Once again, these findings of fact are reasonable.

Tailleur v. Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 (CanLII)

[...]

[41] With respect to Part V of the OLA on language of work, section 34 prescribes that English and French are the languages of work in all federal institutions and confers on officers and employees of these institutions “the right to use” either official language. Sections 35 to 37 of the OLA set out more specifically the duties of federal institutions in respect of language of work.

Schreiber v. Canada , 1999 CanLII 8898 (FC)

[…]

Lavigne v. Canada , 1997 CanLII 4800 (FC)

During his employ at NHW [National Health and Welfare], the applicant made four complaints to the Commissioner of Official Languages (COL). The report prepared by the COL sets them out as follows:

" his supervisor requires that correspondence addressed to the regional office in Quebec City be written in French (OCOL file 1950-92-H2);

" memorandums sent to the Montreal District Office from the Quebec Regional Office are unilingual French (OCOL file 0174-93-H2);

" most of the job-related training courses are offered in French only at the Montreal District Office (OCOL file 0175-93-H2);

" various unilingual English messages sent by electronic mail from the Montreal District Office to the Quebec Regional Office are returned with the notation "en français s.v.p." [in French, please] (OCOL file 0357-93-H2).

In a letter dated July 4, 1993, the complainant added further elements to his initial allegations, namely:

" the linguistic climate that prevailed at the Montreal office reflected the fact that the institution had not created an environment conducive to the use of English;

" his employer had done nothing to promote the use of English and refused him the right to work in English;

" the fact that he had been denied training and work instruments in English had an unfavourable impact on the acquisition of knowledge and on his performance, and, consequently, on the evaluation of these done by his supervisor; the employer used this evaluation in deciding not to rehire him for another specified period (term).

The COL identified the issue as having to do with "language of work and with equal opportunities for employment and advancement in federal institutions" pursuant to the provisions of Part V of the Act. The Montréal work region is designated as bilingual, and accordingly, employees have the right to use the language of their choice in carrying out their work functions. The Québec Regional Office is not designated as bilingual. The Québec office has jurisdiction over the Montréal office. The report set out that "the Quebec office must accommodate the employees of the Montreal office as regards their right to work in the official language of their choice. Thus, in the internal handling of the files of NHW clients, the employees of the Montreal office may communicate with the Quebec office in the language of their choice."

The conclusions of the COL, rendered in his report which came out in June 1994, were as follows:

" the management of the Montreal office did not identify in advance the linguistic preference of the complainant (nor of the other term clerks) when he took up his duties;

" the management of the Montreal office did not ensure that the complainant and other English-speaking staff received the documentation produced at the regional and local levels in their official language;

" the complainant's opportunities to demonstrate his abilities and potential were affected due to the fact that he was obliged, during approximately half his term of employment, to work in French; and

" the complainant was put at a disadvantage in terms of his opportunity to acquire and master work-related knowledge because he did not receive his initial training in his official language and did not have work instruments available in his language. The complainant was thereby placed at a disadvantage in the selection process compared to his French-speaking peers. This situation could have had a negative impact on his opportunities for employment in the Department.

As the COL concluded that the applicant's language of work complaints were founded, he made the following recommendations to the respondent HRD [Human Resources Development]:

1. review, without delay, the complainant's performance evaluation (the one prepared within the context of the selection process of persons recalled for another term), taking into account the fact that the complainant was placed at a disadvantage in demonstrating his knowledge and abilities; and, if possible, review its decision not to renew his term.

2. organize, by June 30, 1994, information sessions for the managers of the Montreal office to make them more aware of their linguistic obligations;

3. ensure that the managers of the Montreal office take, by June 30, 1994, all the measures required to provide English-speaking employees with work instruments in their official language and to create a climate conducive to the use of both official languages in the work environment;

4. ensure immediately that staff training in bilingual regions in Quebec is offered in the official language of the employees; and

5. put in place, by June 30, 1994, the corrective measures contemplated in July 1993 by the Regional Director, Human Resources, with regard to central services at the Quebec office.

[...]

As the respondent HRD has admitted to infringements under Part V of the Act, the only remaining issue is the appropriate remedy to be granted by this Court.

N.B. – The appeal of this decision was dismissed: Lavigne v. Canada (Human Resources Development), 1998 CanLII 7820 (FCA).

35. (1) Duties of government

35. (1) Every federal institution has the duty to ensure that

(a) within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed, work environments of the institution are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees; and

(b) in all parts or regions of Canada not prescribed for the purpose of paragraph (a), the treatment of both official languages in the work environments of the institution in parts or regions of Canada where one official language predominates is reasonably comparable to the treatment of both official languages in the work environments of the institution in parts or regions of Canada where the other official language predominates.

35. (2) Regions of Canada prescribed

35. (2) The regions of Canada set out in Annex B of the part of the Treasury Board and Public Service Commission Circular No. 1977-46 of September 30, 1977 that is entitled "Official languages in the Public Service of Canada: A Statement of Policies" are prescribed for the purpose of paragraph (1)(a).

Annotations

Patanguli v. Canada (Citizenship and Immigration), 2015 FCA 291 (CanLII)

[45] With regard to an infringement of the appellant’s language rights, the final investigation report dated January 26, 2010, signed by Mr. Ferguson and Pirt Horodyski, states that:

At the beginning of Mr. Balikwisha-Patanguli’s first interview with the investigating committee on August 31, 2009, Mr. Balikwisha-Patanguli expressed two concerns to the committee.

…

Secondly, Mr. Balikwisha-Patanguli requested that the interview be conducted in French as this is his first official language. The committee explained that due to the fact that Mr. Balikwisha-Patanguli’s work location, CIC [Citizenship and Immigration Canada] Calgary, is not designated a bilingual region for language of work and that he has been deemed to meet the English Essential language requirements of his current position, the interview would be conducted in English. Mr. Balikwisha-Patanguli was, however, advised that the committee would take extra care to ensure clarity of the questions being posed and understanding of Mr. Balikwisha-Patanguli’s responses. Mr. Balikwisha-Patanguli was encouraged to seek additional clarification if and when he did not understand a question being asked or if and when he felt that a response was not totally understood by the committee. The committee also offered that should Mr. Balikwisha-Patanguli feel the need to provide additional follow-up to the interview, he could do so in writing. Mr. Balikwisha-Patanguli was in agreement to proceed with the interview on this basis. Mr. Balikwisha-Patanguli did not indicate any concerns related to his ability to express himself or understand the questions posed during the interview and at the conclusion of the interview, he declined the offer to provide a written follow-up to the interview. Neither Mr. Balikwisha-Patanguli nor his union representative raised any further concerns regarding the use of the English language at the second interview with the investigating committee [September 1, 2009] or at any other time during the investigation process.

[46] It is far from clear to me that the appellant actually had the language rights he alleges to have had under the Charter and the Act, which enforces sections 16 to 20 of the Charter (Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 (CanLII), [2002] 2 S.C.R. 773). The appellant cites section 16 of the Charter and the purpose of the Act (section 2), without demonstrating that these provisions imposed an obligation on his employer to ensure that the interviews on August 31 and September 1, 2009, took place in French. If there was such an obligation, it would likely result from Part V of the Act entitled “Language of Work.” That part of the Act distinguishes between different regions of the country. As Calgary is not a “prescribed region” under Part V, an employer’s linguistic obligations respecting employees are more limited in that region.

[47] Mr. Patanguli did not file a grievance regarding this so-called violation of his language rights and nothing indicates that he filed a complaint about it under the Act. In the absence of arguments demonstrating that the purpose of the Act may be the source of the obligation that the appellant says he benefits from, I cannot conclude that his language rights were violated in this case. Therefore, it is not useful to examine the impact that the de novo process before the adjudicator could have had in this regard.

St-Onge v. Canada (Office of the Commissioner of Official Languages) (C.A.), [1992] 3 FCR 287, 1992 CanLII 8671 (FCA)

[14] Further, it appears from s. 31 of the [Official Languages] Act that the provisions of Part IV, dealing with the language of communications with and services to the public (including ss. 22 and 27), prevail over inconsistent provisions of Part V, dealing with the language of work. It follows, in our opinion, that under Part IV the rights of the public in an area such as Toronto where demand is considered to be significant are not diminished by the fact that that area has not been "designated" bilingual with respect to the language of work under ss. 35 and 36 of the Act. In other words, the appellant's rights to receive service in French in Toronto are not lessened merely by the fact that the appellant would have to work in English if he were to obtain the employment sought.

François v. Canada (Attorney General), 2017 FC 154 (CanLII)

A. Capt. François initially received full-time English training for 948 hours in 2003, and graduated with a “BBB” second language profile;

B. Capt. François benefited from two other 60-hours courses in English writing in 2009;

C. Capt. François’ second language profile improved to “CBB” in 2011;

D. Capt. François was employed in sections supervised by several levels of bilingual Francophones for the four years prior to his release;

E. Capt. François’ sole employment in the year leading up to the AR [Administrative Review] process was as an assistant to a Francophone, supporting a Francophone company in Mirabel, Québec;

F. Capt. François was always able to speak and brief in the language of his choice;

H. Capt. François’ challenges associated with communication skills were only one of several areas of noted weakness.

[...]

Tailleur v. Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 (CanLII)

[42] In particular, section 35 of the OLA creates a distinction between the language rights of employees working in prescribed regions and employees working outside those regions. It sets out a general rule that institutions must establish and maintain an environment that accommodates employees’ use of the official language of their choice in prescribed regions: [...]

Schreiber v. Canada , 1999 CanLII 8898 (FC)

[115] Part V of the Official Languages Act creates rights and duties in relation to the language of work. The general right in relation to the language of work is embodied in section 34 which provides that "English and French are the languages of work in all federal institutions, and officers and employees of all federal institutions have the right to use either official language in accordance with this Part". In order to give effect to the right relating to the language of work, sections 35 and 36 impose certain duties on federal institutions in relation to various matters, including the work environment. In that regard, paragraph 35(1)(a) imposes a duty on every federal institution to ensure that, within the National Capital Region and other prescribed areas, "...work environments of the institution are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees...". The importance ascribed to the existence of a bilingual work environment is reinforced by paragraphs 36(1)(a) and (b) which require a federal institution to provide the necessary tools, including services, work instruments and automated systems for the processing and communication of data, in both official languages to assist officers and employees in the performance of their duties. By virtue of subparagraph 36(c)(i), supervisors must be able to communicate in both official languages "where it is appropriate or necessary in order to create a work environment that is conducive to the effective use of both official languages". Under subparagraph 36(1)(c)(ii), any management group with responsibility for the general direction of the institution must have "the capacity to function in both official languages". Finally, subsection 36(2) imposes a further duty on federal institutions to take reasonable measures "...to establish and maintain work environments of the institution that are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees".

[116] For ease of reference, paragraph 35(1)(a) and section 36 provide as follows: […]

[…]

36. (1) Minimum duties in relation to prescribed regions

36. (1) Every federal institution has the duty, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), to

(a) make available in both official languages to officers and employees of the institution

(i) services that are provided to officers and employees, including services that are provided to them as individuals and services that are centrally provided by the institution to support them in the performance of their duties, and

(ii) regularly and widely used work instruments produced by or on behalf of that or any other federal institution;

(b) ensure that regularly and widely used automated systems for the processing and communication of data acquired or produced by the institution on or after January 1, 1991 can be used in either official language; and

(i) where it is appropriate or necessary in order to create a work environment that is conducive to the effective use of both official languages, supervisors are able to communicate in both official languages with officers and employees of the institution in carrying out their supervisory responsibility, and

(ii) any management group that is responsible for the general direction of the institution as a whole has the capacity to function in both official languages.

36. (2) Additional duties in prescribed regions

36. (2) Every federal institution has the duty to ensure that, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), such measures are taken in addition to those required under subsection (1) as can reasonably be taken to establish and maintain work environments of the institution that are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees.

Annotations

Canada (Attorney General) v. Shakov, 2017 FCA 250 (CanLII)

V. Analysis

[64] In my view, the combined effect of paragraph 30(2)(a) of the PSEA [Public Service Employment Act], subsections 36(1) and 46(1), paragraph 46(2)(c) and section 91 of the OLA and the Treasury Board Directive on the Linguistic Identification of Positions or Functions might well be to require that the linguistic profile of supervisory positions within federal government departments in the National Capital Region be classified as bilingual as subsection 36(1) and paragraph 46(2)(c) of the OLA provide the Treasury Board authority to establish the linguistic requirements for positions and the Directive stated that such positions should, at a minimum, be set as BBB bilingual.

[…]

[67] Here, the investigator found there to be conduct that undermined the values in the PSEA because the linguistic profile for the term Director position was set as English Essential to tailor it to meet Mr. Shakov’s abilities. However, in the unusual circumstances of this case – where the survival of an important Division was imperiled – there were other factors that the investigator was required to also consider before reaching her conclusion that there had been improper conduct.

[68] More specifically, the FJA, Mr. Giroux and Ms. Clemenhagen were faced with a situation where competing values enshrined in the PSEA of ensuring selection of an urgently-required competent candidate and compliance with linguistic requirements applicable to the staffing process were pitted against one another. The only individual who was reasonably likely to be able to fill the urgent needs of the FJA and ensure the continued survival of the International Programs Division was Mr. Shakov.

[69] If the FJA had the funding, it could have staffed the Director position on an indeterminate basis, set the linguistic requirement as bilingual and appointed Mr. Shakov on a non-imperative basis to the position by virtue of the PSOL Appointment Regulations and the Exclusion Approval Order. In other words, if it had the funding, it could have proceeded exactly as it did without violating the Directive.

[…]

[74] The investigator thus failed to engage with the factual situation she was called upon to adjudicate and this failure renders her decision unreasonable as she failed to answer the question remitted to her, namely, whether it is improper conduct, within the meaning of section 66 of the PSEA, to classify a term supervisory position in the National Capital Region as English essential if that is required to avoid the likely collapse of a portion of the public service that provides an important international service.

[75] In so determining, I am fully cognizant that the rights afforded under the OLA are fundamental in nature and entirely endorse the comments of my colleague, Stratas, J.A., in his reasons at paragraphs 111-116 and 119-122. However, this recognition does not mean that the PSC’s [Public Service Commission] decision should be upheld where it failed to address the key issue remitted to it. Were we to do so, this Court would usurp the role that Parliament has left to the PSC. I therefore believe that the PSC’s decision must be set aside.

[76] In addition to the PSC’s failure to address the issue that it was required to address, I also believe that the portion of its remedial order that set aside the term appointment of Mr. Shakov on a retroactive basis, effective the day before he was appointed to his current indeterminate position, is unreasonable. At the point this remedy was issued, the term appointment was over and Mr. Shakov had met the linguistic requirements of a bilingual supervisory position. He had also been appointed to his current position on an indeterminate basis. Thus, the only effect of this portion of the remedial order was to remove a qualified and meritorious individual from a position that is difficult to staff.

[77] While the remedial jurisdiction of administrative tribunals – particularly in the labour and employment arena – is broad, it is not limitless. A remedial order will be unreasonable if it contradicts the objects and purposes of the legislation under which it was issued: Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 CanLII 220 (SCC), [1996] 1 S.C.R. 369 at para. 68, 193 N.R. 81; VIA Rail Canada Inc. v. Cairns, 2004 FCA 194 (CanLII) at para. 63, [2004] F.C.J. No. 866.

[78] In my view, the portion of the PSC’s order retroactively abrogating Mr. Shakov’s term appointment contradicts the object and purposes of the PSEA as it removes a qualified candidate from a position that is difficult to fill, which is the antithesis of the merit principle.

[79] Indeed, the Attorney General at least implicitly recognizes the unreasonable nature of this portion of the remedy selected by the PSC as the Attorney General submits that, even if the PSC’s decision stands, it would still be open to the PSC to appoint Mr. Shakov to his current indeterminate position under section 73 of the PSEA. Such an appointment would entirely undo this portion of the PSC’s award.

[80] Moreover, I agree with Mr. Shakov that this portion of the PSC’s remedy contradicts its own guideline on appropriate remedies as the PSC failed to consider the fact that Mr. Shakov was not at all complicit in the impugned decisions and the remedy affects him in a very harsh manner. He reluctantly accepted the term appointment at financial cost to himself for the good of the FJA International Programs Division, yet the remedial order would leave him without employment after he has occupied the position for several years.

STRATAS J.A. (Dissenting Reasons)

[111] First the significance of language. Language is not merely functional. “It is…a means by which a people may express its cultural identity” and “the means by which the individual expresses his or her personal identity and sense of individuality”: R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193 at para. 17, citing Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577 at pp. 748-49. Language is intimately associated with personal and cultural identity, dignity, and personhood.

[112] Next, the importance of work. For many of us, work takes up most of the time we are awake, a cornerstone or at least a dominant part of our lives. Dickson C.J. put it well:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self-respect.

(Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161 at p. 368).

[113] From this, one can appreciate that the combination of language and work—the language of work—is no trifling thing. Unsurprisingly, Parliament and the government’s primary employer, the Treasury Board, have devoted significant legislative and administrative attention to it. As the Commission interprets and applies legislation and administrative measures and policies and as we review Commission decisions, the deep role played by the language of work must be kept front of mind.

[114] Now to substantive equality. Substantive equality recognizes that facially neutral conduct that treats individuals identically “may frequently produce serious inequality”: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII), [2015] 2 S.C.R. 548 at para. 17, citing Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 at p. 164. Substantive equality asks whether there is a disproportionate or adverse impact on a particular group in light of that group’s background and characteristics. To take cognizance of substantive equality, one must dig beneath the surface and consider the “actual impact [of an impugned measure or decision]…taking full account of social, political, economic and historical factors”: Withler v. Canada (Attorney General), 2011 SCC 12 (CanLII), [2011] 1 S.C.R. 396 at para. 39.

[115] Two decades ago in Beaulac, the Supreme Court cemented substantive equality into our understanding of language rights. The Supreme Court put it this way (at paras. 22 and 24):

Equality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning. This Court has recognized that substantive equality is the correct norm to apply in Canadian law.

[…]

This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State [citations omitted]…It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.

[116] Since Beaulac, restrictive interpretations of language rights have evaporated in favour of a purposive approach infused with the principle of substantive equality: Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1 (CanLII), [2000] 1 S.C.R. 3 at para. 31; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 (CanLII), [2002] 2 S.C.R. 773 at para. 22; DesRochers v. Canada (Industry), 2009 SCC 8 (CanLII), [2009] 1 S.C.R. 194 at para. 31; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21 (CanLII), [2015] 2 S.C.R. 139 at paras. 29-30; Warren J. Newman, “Understanding Language Rights, Equality and the Charter: Towards a Comprehensive Theory of Constitutional Interpretation”, (2004) 15 Nat’l J. Const. L. 363 at p. 394.

[…]

[119] Take employees who—unlike others in a particular work unit and their supervisors—are forced always to operate in their less-preferred language or are made to feel uncomfortable using their official language of choice. Will these employees be as well placed or as comfortable as others to persuade their work units to adopt, say, a bold and innovative plan? Will these employees feel as confident in taking the initiative and becoming leaders among their colleagues? Will they be as able or as comfortable in performing the linguistic gymnastics needed to notify supervisors, tactfully, professionally and respectfully, about a colleague’s underperformance on a project? Will the employees be able to use as well or as comfortably an idiom or expression with no origin or parallel in the employees’ cultural or linguistic background? If these employees are questioned about a recent dip in productivity, will they be as well-placed or as comfortable to convey to their supervisors the emotional stress caused by a recent family tragedy?

[120] These employees may be able to perform competently in their work units. But can it be said that they truly enjoy substantive equality? Translations of office memos and bilingual computer software may treat employees identically, but by themselves do not necessarily achieve the goal of substantive equality. Language equality in the workplace cannot be measured solely by whether employees can comfortably raise their hand in a meeting, understand an email, or dialogue with a supervisor. In the end, proper and linguistically appropriate staffing in the right places is an essential step on the road to substantive equality.

[121] It is no answer to say that some sort of accommodation can be arranged to assist an employee or to minimize prejudice, such as involving a person who can speak the employee’s preferred official language when necessary. Accommodation and temporary fixes fall short of full recognition and affirmation of the language right. See Beaulac at paras. 24 and 45; Industrielle Alliance, Assurance et Services Financiers Inc. v. Mazraani, 2017 FCA 80 (CanLII) at paras. 22-23; DesRochers at para. 31; Tailleur v. Canada (Attorney General), 2015 FC 1230 (CanLII) at para. 82. Nor do accommodation and temporary fixes advance or fulfil the goal of substantive equality: ibid. and Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321. Relying upon accommodation and temporary fixes—treating the exercise of language rights like an exception or anomaly to be tolerated and managed when necessary—tears at the notion of equal status, membership and belonging that lies at the core of the concept of equality. The vision of substantive equality, deployed in Beaulac, “cannot be accomplished by [reacting to a situation] and then muddling through as best as one can given the existing resources”; instead, Beaulac requires that the “government conduct itself as though it is linguistically a part of both official language communities”: Denise G. Réaume, “The Demise of the Political Compromise Doctrine: Have Official Language Use Rights Been Revived?”, (2002) 47 McGill L.J. 593 at p. 620.

[122] In many settings, all languages, whether official or not, are often tolerated, perhaps grudgingly by some. But more than grudging tolerance is required for official languages. To breathe life into their status as official languages, both French and English must be not only tolerated but also embraced, encouraged and promoted: Michel Bastarache, Language Rights in Canada, 2d ed. (Cowansville: Éditions Yvon Blais Inc., 2004) at p. 6; see also Leslie Green, “Are Language Rights Fundamental?”, (1987) 25 Osgoode Hall Law Journal 639 at p. 660.

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada.

St-Onge v. Canada (Office of the Commissioner of Official Languages) (C.A.), [1992] 3 FCR 287, 1992 CanLII 8671 (FCA)

Tailleur v. Canada (Attorney General), 2015 FC 1230 (CanLII)

[...]

[43] Section 36 of the OLA further clarifies the rights of employees in prescribed regions, including prescribed bilingual regions like the Montréal region where Mr. Talleur works. The minimum duties of federal institutions are set out at subsection 36(1) while additional duties are contained in subsection 36(2). These provisions, which it is necessary to reproduce in this case, read as follows: [...]

[44] Subsection 36(2), therefore, creates a positive duty for federal institutions to take measures to establish and maintain work environments that are conducive to the effective use of both official languages.

[…]

[58] If section 31 of the OLA clearly establishes that Part IV takes precedence over Part V, it does not do so absolutely but to the extent that the provisions of Part V are inconsistent with the provisions of Part IV. In fact, the French version of the section speaks of “dispositions incompatibles de la partie V” while the English version of the OLA provides that Part IV prevails “to the extent of the inconsistency”. Interpreted jointly and with a meaning common to the two versions, this section clearly states that the window of inconsistency that section 31 refers to is limited. Indeed, Part IV will only take precedence to the extent of the inconsistency that has been identified. How can this inconsistency be measured without first identifying its nature and scope (and therefore analyzing the duties of federal institutions under Part V)?

(b) Scope of subsection 36(2)

[61] What remains to be determined now is the scope of subsection 36(2). The French version of this subsection requires federal institutions to take “toutes autres mesures possibles” to establish and maintain work environments that are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees. The English version of this subsection uses the expression “such measures . . . as can reasonably be taken”.

[62] We will first analyze the scope of the words “toutes autres mesures possibles”. At the hearing, Mr. Tailleur agreed with the Commissioner’s position that subsection 36(2) requires federal institutions to take [translation] “any other measures that it is reasonable to take” to establish and maintain work environments that are conducive to the effective use of both official languages. The Attorney General submits, for his part, that the OLA requires only that [translation] “reasonable” measures in the circumstances be taken and that there is no real difference between the two linguistic versions of the OLA. He notes that the term “reasonable” is used a number of times in the OLA and that it is translated in various ways in French (sometimes as “raisonnable”, “justifié. dans les circonstances” or “indiqué”). Consequently, the expression “mesures possibles” in the French version of subsection 36(2) should be interpreted in the same way and would correspond more closely to the concept of [translation] “reasonable measures”.

[63] There is certainly an ambiguity between the French and English versions of subsection 36(2) of the OLA, and the Court concurs with the interpretive approach and principles of interpretation put forward by the Commissioner. Moreover, the parties recognize that, where there is a difference in the terms used, “differences between two official versions of the same enactment are reconciled by educing the meaning common to both” (Daoust at para 26, citing Pierre-André Côté, Interpretation des lois, 3d ed. (Montréal: Thémis, 1999) at p 410).

[64] In this case, the common meaning of both linguistic versions of subsection 36(2) of the OLA is the one that refers to taking any other measures that it is reasonable to take since all the measures that are reasonable to take are possible measures, but all the possible measures are not necessarily measures that it is reasonable to take.

[…]

[67] In summary, in light of the review of Parliament’s intent at the basis of Part V of the OLA on language of work, the Court is of the opinion that the correct interpretation of subsection 36(2) of the Act is, in fact, that federal institutions must take any other measures that it is reasonable to take, in addition to those already set out at subsection 36(1) of the OLA. These measures must assist in establishing and maintaining, in a realistic and practical manner, work environments that are conducive to the effective use of both official languages and accommodate the use of either of those languages by employees. The term [translation] “reasonable” presupposes an objective standard, and the measures adopted must therefore be able to be justified objectively.

[68] However, the Commissioner goes further in the interpretation he is suggesting for subsection 36(2) and in the scope of the duty conferred on federal institutions with respect to language of work. According to the Commissioner, federal institutions must not only consider the reasonable measures they could implement but must consider all measures. Accordingly, there is a certain universality in what federal institutions must weigh in terms of reasonable accommodation measures they must consider to ensure that their employees’ language rights are respected. In the Commissioner’s view, federal institutions cannot simply choose the measures that suit them best and are not too restrictive but must consider all measures that would enable them to meet the objective of subsection 36(2) and then weed out those that are not reasonable.

[69] Implementing the duty under subsection 36(2) of the OLA would therefore require an almost holistic approach by federal institutions. The Commissioner even argues that there is a certain reverse onus on federal institutions, which should adopt a proactive approach.

[70] The Court does not accept this last component of the interpretation of subsection 36(2) of the OLA proposed by the Commissioner. First, this interpretation is not consistent with the French and English versions of the Act. The English version speaks of “such measures” not [translation] “all measures”; only the French version speaks of “touts” other measures. The meaning common to both versions of subsection 36(2) is therefore not the universality of measures.

[71] Moreover, considering the concrete, substantive dimension of the measures that is apparent from Parliament’s intent, the duty in subsection 36(2) cannot reasonably mean that a federal institution must look at everything that could be imagined in terms of measures. On the contrary, subsection 36(2) only requires federal institutions to consider all reasonable measures. It is difficult for the Court to see how, in the interpretation and practical application of the OLA, the reading of this section can be divided by separating the component “toutes” from the concept of “raisonnables”.

[72] The two-stage approach advocated by the Commissioner would impose far too onerous a burden on federal institutions by requiring them first to comb the universality of possible measures and then to reduce everything to the measures that it is reasonable to take. What the OLA imposes is a duty to take all possible reasonable measures, and there is no need, either in the interpretation or implementation of this duty, to segment it or break down its elements. Instead of a step-by-step approach that would distort the duty imposed by the OLA on federal institutions, the Court is of the opinion that it is important to emphasize the [translation] “reasonable” component because that is the essence and foundation of the duty under subsection 36(2). If a measure is not reasonable, the federal institution does not have to adopt it. This interpretation reflects the common meaning that emerges from the two versions of the Act, and it is consistent with Parliament’s intent as revealed by the parliamentary debates and the legislative history of Part V of the OLA that are cited.

[73] Also, in order to comply with the requirements of subsection 36(2), it is sufficient for a federal institution to demonstrate that it considered all reasonable measures to enable its employees to work in the official language of their choice.

(c) Whether measures are [translation] “reasonable”

[74] Lastly, it remains to be determined what is [translation] “reasonable” and how, in each circumstance, a federal institution can fulfil its duty and justify why an alternative measure would not be acceptable because it is unreasonable. The Commissioner notes that this a positive duty imposed on federal institutions: it is not just an obligation of means, and a federal institution has the burden of explaining why an accommodation measure would not be reasonable. The Commissioner takes the position that three relevant criteria must be looked at to determine whether the implementation of a measure by a federal institution satisfied this condition. The Court concurs with this opinion while specifying, however, that these criteria are not necessarily exhaustive.

[75] A liberal and purposive interpretation, consistent with the preservation and development of official languages in Canada, identifies a list of factors that may be considered in determining whether a measure taken by a federal institution to satisfy the requirements of the OLA is reasonable. These criteria are not exhaustive, but they certainly include the following: (i) the significant, serious operational difficulties that the measures may create, (ii) a demonstrable conflict with Part IV of the OLA and the federal institution’s duties to the public and (iii) the fact that the implementation must not create a conflict with the institution’s mandate.

[…]

[79] Therefore, a measure will not be reasonable if implementing it causes a conflict, clearly demonstrated by the federal institution, with the mandate of the institution. Although the Governor in Council has not yet adopted a regulation under paragraph 38(2)(b), this provision sheds light on the type of measures that could be excluded from the possible reasonable measures to be considered by the federal institution.

[…]

[81] For the reasons stated above, the Court is of the opinion that subsection 36(2) does not require a proactive universal approach that would oblige a federal institution to first consider all possible measures and then isolate those that are reasonable. Rather, the Court concludes that to comply with the requirements of subsection 36(2) of the OLA a federal institution must, in the same vein, consider and adopt all measures that it is reasonable to take to establish a work environment conducive to the use of both official languages. Whether the measures are reasonable will depend on the circumstances of each case, but a specific measure will not be reasonable if it imposes significant or serious operational difficulties on a federal institution or if implementing it would cause a demonstrable conflict with Part IV of the OLA on language of service or with a federal institution’s mandate. This in an interpretation of the OLA that is in harmony with the meaning common to the English and French versions of the Act and that reflects the objectives of Parts IV and V.

[82] The Court adds the following observation. The Attorney General contends that, in determining whether a federal institution has taken reasonable measures, consideration must be given to the bilingual nature of the position of an employee whose duties and tasks require the use of French and English. The Court cannot accept this argument. This is not a factor to consider in determining whether a measure taken by a federal institution to meet the requirements of subsection 36(2) of the OLA is reasonable. First, both Part IV and Part V must be given a liberal and purposive interpretation consistent with the preservation and development of Canada’s official languages. Second, a federal institution cannot circumvent its language of work duties under Part V of the OLA simply by resorting to bilingual employees. The language proficiency of individuals should not be a factor in determining language rights. Moreover, the Court notes in this regard the Supreme Court’s comments in Beaulac at para 45:

[45] In the present instance, much discussion was centered on the ability of the accused to express himself in English. This ability is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity. It would indeed be surprising if Parliament intended that the right of bilingual Canadians should be restricted when in fact official language minorities, who have the highest incidence of bilingualism (84 percent for francophones living outside Quebec compared to 7 percent for anglophones according to Statistics Canada 1996 Census), are the first persons that the section was designed to assist.

[…]

[99] Mr. Tailleur raises, among other things, the fact that the CRA did not conduct appropriate studies and analyses to determine the risks associated with his proposed solution of transferring calls. Mr. Tailleur argues, in effect, that there is no evidence before this Court on the impact of transferring calls because the CRA did not analyze the implementation of an alternative system to reroute calls to bilingual employees.

[100] The Court does not agree. The evidence clearly establishes that Mr. Tailleur’s alternative is not reasonable because it would invariably lead to unequal service between Anglophone and Francophone taxpayers. In fact, the CRA has already adopted a number of measures that it was reasonable to take to respect the rights of its call centre agents to work in the language of their choice. However, the transfer of calls proposed by Mr. Tailleur is not, in the Court’s view, a measure that can reasonably be taken within the meaning of subsection 36(2) of the OLA.

[…]

[108] Pursuant to subsection 36(2) and the interpretation proposed above, a measure will not be reasonable if its implementation would be in conflict with a federal institution’s duties under Part IV of the OLA. This factor is determinative in this case. The CRA’s duty is to provide equal service (meaning substantive equality) to Canadian taxpayers. When taxpayers call the CRA, they choose the French or English line and exercise at that point their choice of official language in which they wish to be served. The alternative measure proposed by Mr. Tailleur would create inequality in that some Anglophone taxpayers would experience additional delays waiting until a bilingual agent is available to deal with their file. Considering the CRA’s duty to ensure that members of the public receive service of equal quality in either official language (sections 22 and 24 of the OLA), the transfer of calls proposed by Mr. Tailleur is inconsistent with Part IV.

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[112] In terms of notes to the file, these adaptations were not reasonably possible. The solution adopted by the CRA requiring that notes in the “notepad” be written in the taxpayer’s official language is within the bounds of reasonableness. But the duty under subsection 36(2) to take measures that can reasonably be taken is not a duty to take all imaginable measure or to allow CRA’s employees to always use the language of work of their choice. On the contrary, this duty is circumscribed by the constraints in Part IV.