T-1721-01
2003 FC 1048
Le Forum des maires de la Péninsule acadienne (Applicant)
v.
The Canadian Food Inspection Agency (Respondent)
Indexed as: Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.)
Federal Court, Blais J.--Fredericton, New Brunswick, June 25; Ottawa, September 8, 2003.
Official Languages -- Judicial review of respondent's decision to transfer four seasonal inspector positions from Shippagan to Shediac -- Commissioner of Official Languages finding transfer in violation of Official Languages Act (OLA) -- Although not bound by them, Court should take Commissioner's conclusions into account -- Transfer of positions made without taking into account respondent's obligations under either OLA, Part IV (duty to offer bilingual services to public) or Part VII (to consult minority official language community) -- Court's jurisdiction to deal with violations of Part VII, provide remedies discussed -- Appropriate remedy herein including specified positive measures with respect to respondent's obligations under OLA.
The Canadian Food Inspection Agency transferred four seasonal inspector positions from its office in Shippagan, in northeastern New Brunswick, to the office in Shediac, in southeastern New Brunswick. The applicant filed a complaint with the Commissioner of Official Languages, alleging that the administrative reorganization of the respondent was being carried out to the detriment of the French-speaking region of northeastern New Brunswick. The Commissioner conducted a detailed investigation based on the Official Languages Act (OLA) provisions concerning the delivery of services to the public in the language of their choice (Part IV), the provisions in relation to the advancement of English and French (Part VII), and on the spirit of the OLA and the intention of Parliament. In her report, the Commissioner recommended that the defendant review the delivery of inspection services in the Acadian peninsula to ensure that they are offered and made available in both official languages; ensure that all decisions regarding the delivery of these services support the development of the Francophone community; and revise its national Official Languages Policy to take account of the government's commitment as set out in Part VII of the OLA.
This was an application for judicial review of the respondent's transfer decision. The issues were whether the transfer of the positions was made without taking into account the respondent's obligations under the OLA; and, what was the fair and appropriate remedy having regard to the circumstances?
Held, the application should be allowed.
The Commissioner stated in the Report that it seemed obvious that the relocation of employees from Shippagan and the subsequent restructuring within the respondent did not systematically take into account the respondent's obligations under Part IV of the OLA. While not bound by the Commissioner's conclusions, the Court should take them into account particularly as they were not seriously contradicted by the respondent and they were correct (see Rogers v. Canada (Department of National Defence) (2001), 201 F.T.R. 41 (F.C.T.D.)). The de facto violation of the rights under Part IV of the OLA was confirmed.
The respondent argued that the Court lacked jurisdiction to deal with alleged violations of Part VII of the OLA under Part X. Subsection 77(1) in Part X provides a remedy for violation of the rights and duties under certain sections of the OLA, but does not refer to Part VII. However, as held in Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46 (F.C.T.D.), remedies under section 18.1 of the Federal Court Act are always available for breaches of parts of the OLA that are not covered in subsection 77(1) of the OLA.
The Commissioner held that the particular regional and historical context in the Acadian peninsula meant that Part VII of the OLA at the very least created an obligation on the respondent to consult with the minority official language community before making its decision. That the respondent received a number of letters did not amount to a consultation process. And the respondent seems to have acknowledged this failure by seeking clarification of how to comply with Part VII.
With respect to the determination of the fair and appropriate remedy having regard to the circumstances, the Supreme Court of Canada stated in R. v. Beaulac, [1999] 1 S.C.R. 768 that "language rights that are institutionally based require government action for their implementation and therefore create an obligation for the State". Therefore, the transfer was set aside, in accordance with the powers to grant the relief that is considered appropriate and just under subsection 77(4), and the respondent was ordered to take certain specified positive measures with respect to its obligations under the OLA.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 20(1).
| Canadian Food Inspection Agency Act, S.C. 1997, c. 6, s. 3. |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5). |
| Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 2, 3 (as am. by S.C. 2002, c. 7, s. 224), 20, 21, 22, 24, 25, 26, 27, 28, 31, 32, 33, 34, 35, 36, 37, 38, 41, 42 (as am. by S.C. 1995, c. 11, s. 27), 43 (as am. idem, s. 28), 44 (as am. idem, s. 29), 44, 45, 77. |
cases judicially considered
applied:
Rogers v. Canada (Department of National Defence) (2001), 201 F.T.R. 41 (F.C.T.D.); Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212; (1999), 181 D.L.R. (4th) 441; 18 Admin. L.R. (3d) 243; 31 Admin. L.R. (3d) 174; 3 Imm. L.R. (3d) 1; 250 N.R. 326 (C.A.); Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46; 194 F.T.R. 181 (F.C.T.D.); R. v. Beaulac, [1999] 1 S.C.R. 768; (1999), 173 D.L.R. (4th) 193; 121 B.C.A.C. 227; 134 C.C.C. (3d) 481; 238 N.R. 131.
considered:
Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586; (2001), 199 F.T.R. 196 (T.D.): Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; (1990), 123 N.R. 83 (C.A.).
appearances:
Jean-Marc Gauvin for applicant.
Marc A. Deveau for respondent.
solicitors of record:
Godin, Lizotte, Robichaud, Guignard, Shippagan, New Brunswick, for applicant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for order and order rendered by
[1]Blais J.: This is an application for judicial review under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] of a decision by the respondent transferring the positions of four seasonal inspectors from the town of Shippagan to the town of Shediac.
FACTS
[2]The applicant is an unincorporated agency that includes the mayors of all the municipalities in the Acadian peninsula, with a mandate to defend the common interests of that community.
[3]The respondent was incorporated under federal law, the Canadian Food Inspection Agency Act [S.C. 1997, c. 6], assented to March 20, 1997.
[4]In the fall of 1999 the respondent transferred four seasonal inspector positions from its office in Shippagan, situated in the Acadian peninsula in northeastern New Brunswick, to the office in Shediac, situated in the southeastern part of the province. This transfer, it says, was necessitated as a result of a review of the activities related to the inspection work in the Shippagan area, a review primarily motivated by the decline in the fishing industry in the Acadian peninsula and by the transfer of unprocessed fish products from Shippagan to the processing plants in southeastern New Brunswick. The resettlement of the Shippagan employees helped to further balance the workload of the inspectors between the two offices, the respondent says.
[5]In October 1999, the applicant filed a complaint with the Commissioner of Official Languages (the Commissioner), alleging that the administrative reorganization of the respondent was being carried out to the detriment of the French-speaking regions of northeastern New Brunswick. In support of its allegations, the applicant referred in particular to the transfer of the four inspectors from the Shippagan office to the Shediac office.
[6]The applicant argued that the decision made by the respondent had an impact not only on the service to the public and its capacity to respect the right of the employees in the Shippagan office to work in French, but also on the economy of the region.
[7]Pursuant to this complaint, the Commissioner investigated and in July 2001 tabled the Investigation of a complaint concerning the Canadian Food Inspection Agency's reorganization of its office in Shippagan, New Brunswick (the Report).
[8]The Commissioner conducted this detailed investigation under Part IX of the Official Languages Act [R.S.C., 1985 (4th Supp.), c. 31] (OLA). The investigation was based on the OLA provisions concerning the delivery of services to the public (Part IV of the OLA), the provisions in relation to the advancement of English and French (Part VII of the OLA), and on the spirit of the OLA and the intention of Parliament.
Recommendations of the Report
[9]The Report recommends that the defendant, within six months following the publication of the report:
| (a) review the delivery of inspection services in the Acadian peninsula to ensure they are offered and made available in both official languages, in accordance with the requirements of Part IV1 of the Official Languages Act; |
| (b) ensure that all decisions regarding the delivery of these services support the development of the Francophone community and the recognition and use of French to the full extent of its mandate, in accordance with Part VII2 of the OLA; |
| (c) revise its national Official Languages Policy to take account of the government's commitment as set out in Part VII of the OLA. |
[10]On September 28, 2001, the applicant commenced this proceeding under Part X of the OLA, subsection 77(1).
APPLICANT'S SUBMISSIONS
[11]The applicant notes that the OLA applies to the respondent under section 3 [as am. by S.C. 2002, c. 7, s. 224] of the OLA and section 3 of the Canadian Food Inspection Agency Act, as an agent of Her Majesty in Right of Canada.
[12]Citing the Commissioner's conclusion to the Report,3 the applicant argues that the respondent failed to take the OLA into account when it made the decision to transfer the four positions. At most, it argues, the Agency never took the OLA into account in its organizational or administrative decisions in respect of the Shippagan office.
[13]The applicant alleges that the decision made by the respondent is contrary to law because it was of no assistance in resolving the situation in so far as Part IV of the OLA is concerned and thus encouraged the continuation of this breach. There was work or there was going to be work within the near future for the inspectors who were transferred, it argues, since the Commissioner had concluded that the respondent had not considered the other industrial activities in the Acadian peninsula or the recommendations of the research reports on the social and economic situation in the peninsula. (Report, at page 5.)
[14]The applicant further submits that the failure to consider Part VII of the OLA when making the decision makes the decision unlawful and void ab initio.
[15]In November 2001, more than three months after the Report was tabled and more than two years after the applicant had filed its complaint, some users of the respondent's services were still complaining about the difficulty in obtaining documents or services in French. (Applicant's Record, at page 91.)
[16]The applicant contends that the respondent has failed to correct the official languages situation or to show how it was implementing the recommendations of the Commissioner.
Aim of the application
[17]The applicant asks that the Court order:
(a) the re-establishment in the town of Shippagan, New Brunswick, of the seasonal inspectors positions transferred by the respondent to the town of Shediac, New Brunswick, in the fall of 1999;
(b) that the four individuals affected by this transfer may be reinstated in their positions in the town of Shippagan if they so desire, with the same conditions they would have, were it not for the transfer; and
(c) the costs of the applicant.
RESPONDENT'S SUBMISSIONS
[18]Concerning Part IV of the OLA, the respondent submits that there is no evidence before the Court that would demonstrate a violation. In the alternative, even if the Court were to agree that there was a violation of Part IV, there is no causal connection between the violation and the remedy that is sought.
[19]The respondent submits that there is no evidence of a violation of Part V4 of the OLA. The regions of Shediac and Shippagan are both designated bilingual for the purposes of Part V. The respondent's employees in these two regions can communicate in the language of their choice. In the alternative, even if the Court were to agree that there was a violation of Part V, there is no causal connection between the violation and the remedy that is sought. The respondent submits that there is no evidence before the Court that would demonstrate a violation of Part V of the OLA.
[20]I would like to draw attention to the fact that the applicant does not base this application on a breach of Part V, apart from mentioning that the respondent's decision had an impact on the rights of the employees in the Shippagan office to work in French. (Applicant's Record, at pages 2 and 3.)
[21]The respondent submits that it has complied with the spirit of Part VII of the OLA.
ISSUES
| [22]1. Was the transfer of the positions in question made without taking into account the respondent's obligations under the OLA? |
| 2. What is the fair and appropriate remedy having regard to the circumstances? |
ANALYSIS
| 1. Was the transfer of the positions in question made without taking into account the respondent's obligations under the OLA? |
| (A) Was the transfer of the four employees made without taking into account the respondent's obligations under Part IV of the OLA? |
[23]Like subsection 20(1) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], Part IV of the OLA provides that 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.
[24]The Commissioner states in the Report that it seemed obvious to her that the relocation of employees from Shippagan and the subsequent restructuring within the respondent did not systematically take account of the respondent's obligations under Part IV of the OLA.5 The Commissioner maintained her findings in the Report even after the reactions of the respondent.6
[25]In its memorandum, the respondent argues that the Report cannot be the basis for the conclusion sought by the applicant in regard to Part IV, since the Commissioner herself says that her Report "was not intended to examine the entire issue of the language of services provided by the Agency".
[26]Let us restore this partial statement in its context. What the Commissioner states, at page 5 of her Report, instead reads as follows:
Although our investigation was not intended to examine the entire issue of the language of services provided by the Agency, we must pass on some of our observations on this issue. [Emphasis added.]
[27]The respondent further argues that the Report cannot be the basis for the conclusion sought by the applicant in regard to Part IV of the OLA and does not establish any causal relationship between the alleged violation and the desired remedy since, as the Report states, "It may well be that the problems related to the delivery of services to the public predate the staff reductions at the Shippagan office".
[28]Once again, the respondent makes what I would characterize as a selective argumentation by basing its submissions on incomplete sentences. In fact, what the Report says is that if it is the case that these problems existed prior to the staff reductions, "then the Agency's recent decisions have not remedied the situation".
[29]The respondent, by its actions, must therefore bear some share of responsibility.
[30]The respondent further submits that the Report, which does not come from a tribunal capable of ruling on the appropriate interpretation of the OLA, does not release the applicant from its onus of establishing by a preponderance of evidence that there was in fact a violation of the rights under the OLA.
[31]However, in Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586 (T.D.), Mr. Justice Heneghan states [at paragraphs 59-60]:
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:
The 1998 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 of 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."
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. [Emphasis added.]
[32]In Rogers v. Canada (Department of National Defence) (2001), 201 F.T.R. 41 (F.C.T.D.), Nadon J., while not in agreement with Heneghan J., took the report into account [at paragraph 40]:
The fact of the matter is that the OCOL concluded that the language requirements for the position were justified. In my view, that determination was a correct one. I am obviously not bound by the OCOL's determination (In T-195-97, Heneghan J., as I have already indicated . . . ruled in favour of the applicant. . . .I simply wish to state that I cannot agree with Heneghan J.'s conclusion that the OCOL's report "can be accepted as evidence that a breach of the Act has occurred". In my view, it is up to this Court to decide, on the evidence, whether there has been a breach of the Act. The answer to that question cannot be given on the basis of the OCOL's report and conclusion. The conclusion that a breach of the Act has occurred, in any given case, must be reached after the judge has heard and weighed the evidence advanced by both parties, but on the evidence before me, I agree with the conclusion reached by the OCOL. [Emphasis added]
[33]Consequently, I am of the opinion that this Court should take account of the conclusions of the Commissioner's Report, given that on the one hand the respondent has not seriously contradicted them and on the other hand I agree with these conclusions.
[34]I am especially of this view because, like the conclusions of the Report, during his cross-examination the respondent's executive director, Régis Bourque, acknowledged that when the decision that is the subject-matter of this application for judicial review was made, it was based on the workload in the northeastern region of the province. The official languages question was considered only after the tabling of the Report of the Commissioner.7
[35]It is therefore possible for this Court to confirm8 the de facto violation of the rights under Part IV of the OLA.
| (B) Was the transfer of the four employees made without taking into account the respondent's obligations under Part VII of the OLA? |
[36]The respondent argues that this Court does not have jurisdiction to deal with alleged violations of Part VII of the OLA under Part X. If the Court does have jurisdiction, the respondent argues, Part VII does not create any rights that are enforceable by the courts. In the alternative, if the Court has jurisdiction and if Part VII does create some rights, the courts must demonstrate restraint when dealing with the type of polycentric decision we have here.
[37]Part X of the OLA, entitled "Court Remedy", provides in subsection 77(1) a remedy for a violation of the rights and duties under certain sections of the OLA. Subsection 77(1) provides:
77. (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part.
[38]It should be noted that subsection 77(1) of the OLA does not refer at all to Part VII of the OLA, entitled "Advancement of English and French". This deliberate omission by Parliament indicates that subsection 77(1) does not allow a court remedy for a violation of Part VII of the OLA.
[39]In Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (Viola), the Federal Court of Appeal held [at page 387]:
. . . the 1988 Official Languages Act does not create new jurisdictions other than those, vested in the Commissioner of Official Languages and the Federal Court Trial Division, which it creates expressly.
[40]Recently, in Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212 (C.A.) (Devinat), the Federal Court of Appeal considered the scope of the provisions of Part X of the OLA. In that case, the parties were not disputing the Motion Judge's finding that subsection 77(1) of the OLA did not allow the appellant to apply to the Federal Court of Canada, since his complaint was not based on one of the sections referred to in subsection 77(1), but was based on section 20 of the OLA. The appellant argued, however, that subsection 77(5) was not limited to section 77 and that he preserved his court remedy for any other complaint that was not governed by the procedure under section 77. The appellant also submitted that subsection 77(5) provided him a right of action in the Federal Court, particularly under section 18.1 of the Federal Court Act.
[41]Subsection 77(5) reads:
77. . . .
(5) Nothing in this section abrogates or derogates from any right of action a person might have other than the right of action set out in this section.
[42]In Part VII of the OLA, section 41 states:
41. The Government of Canada is committed to
(a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and
(b) fostering the full recognition and use of both English and French in Canadian society.
[43]Also, in Devinat, supra, the Federal Court of Appeal explained that in Viola, supra, Décary J.A. had not decided the issue [at paragraphs 37-38]:
It goes without saying that Décary J.A. did not rule on the jurisdiction of "judicial" tribunals under the OLA, and did not preclude it.
We accordingly conclude that, with respect, the Motions Judge wrongly concluded that the OLA did not allow the appellant to bring the action covered by section 18.1 of the FCA for an alleged breach of section 20 of the OLA. [Emphasis added.]
[44]Consequently, and as I myself held in paragraph 91 of Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46 (F.C.T.D.), remedies under section 18.1 of the Federal Court Act are always available for breaches to parts of the OLA that are not covered in subsection 77(1) of the OLA.
[45]In its memorandum, the respondent argues that the commitment in section 41 of the OLA is political in nature (Respondent's Record, at page 339):
[translation] Government agencies are given very wide discretion in the choice of measures to be taken in response to this commitment. Even the Minister of Canadian Heritage, who is responsible for the implementation of this part of the OLA, has discretion to take "such measures as that Minister considers appropriate".
[46]Indeed, the respondent attempts to justify its decision by the declaratory rather than executory aspect of Part VII of the OLA. It argues at some length that this distinction is the basis for its claim that it has not violated that part of the Act.
[47]In her Report, the Commissioner states:
The investigation revealed that the Agency did not take these regional realities into account when it made its decision to transfer four positions from Shippagan to Shédiac and to make the Blacks Harbour office responsible for the Shippagan office. Only the elements of the reports relating to the fishery sector were considered. Nor did it consult with representatives of the official language minority community before making its decision, even though "Le Forum des maires de la péninsule acadienne" had invited Agency representatives to discuss . . . ." [Emphasis added.]
[48]Once again, as the respondent's executive director, Régis Bourque, actually admitted, Part VII of the OLA was not considered when the decision was made.
[49]In the Commissioner's opinion, the particular regional and historical context in the Acadian peninsula meant that Part VII of the OLA at the very least created an obligation on the respondent to consult the minority official language community before making its decision.
[50]Contrary to the respondent's opinion, at page 20 of its memorandum, the fact that the respondent received a number of letters from municipalities, Chambers of Commerce, companies, etc., does not amount to a process of consultation. There was no discussion or exchange with the signatories of these letters before the decision was made.
[51]At most, it is interesting to note that at page 12 of the Report, in section VI entitled "Comments from the Agency", the final paragraph seems to indicate that the respondent acknowledged this failure:
As to the implementation of the recommendation pertaining to Part VII of the OLA, the Agency would like to obtain clarification on how to comply with this part of the OLA. It also questions whether this recommendation is applicable to all future decisions or whether it applies also to the decision that was the subject of this investigation report. [Emphasis added.]
[52]Is that not an explicit acknowledgement of a breach of the requirement in Part VII?
2. What is the fair and appropriate remedy having regard to the circumstances?
[53]The applicant proposes that the restoration of the positions in the Acadian peninsula would help put the respondent in a better position to meet its requirements under the OLA and would be consistent with the reasoning of Mr. Justice Bastarache of the Supreme Court of Canada, writing on behalf of the majority in R. v. Beaulac, [1999] 1 S.C.R. 768 [at paragraph 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; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. 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. [Emphasis added.]
[54]The applicant bases its proposal on its conformity with the statements made by the Commissioner to the President of Treasury Board, in the context of the Human Resources Modernization initiative, in September 2001:
New approaches are needed to make the official languages a living part of federal institutions. As in human resources management, we must move from an approach based largely on rules and codes to one based on values. The government must promote the official languages in a way that fosters a deeper commitment among all staff by placing greater emphasis on the cultural and social dimensions of the program, including better knowledge and appreciation of the other group's identity, a better understanding of how the presence of the other language group enriches the Public Service, and the openness to diversity that can develop from an acceptance of bilingualism.
Although an approach placing greater emphasis on values is required, we must also make it clear that these values are based on rights. Thus, while it is important to acknowledge the need for flexibility, one must ensure that the legal basis of the Official Languages Act is fully respected. [Emphasis added.]
[55]Although the respondent has recently appeared to display a growing interest in tackling the problem of delivery of services in French in the Acadian peninsula, it must be said that the complaint was filed in October 1999, close to four years ago, and that little progress has been achieved up to now.
[56]Since it is my opinion that the respondent has infringed the statutory language rights in the OLA, this application for judicial review is well founded.
[57]I adjourned the hearing to allow the parties to discuss some fair and equitable measures to be taken. Unfortunately, the parties were unable to reach an agreement.
O R D E R
[1] This application for judicial review is allowed;
[2] The decision to transfer the positions of four seasonal workers from Shippagan to Shediac is set aside;
[3] In accordance with the powers to grant the relief that is considered appropriate and just in the circumstances, under subsection 77(4) of the OLA;
| THE COURT ORDERS THAT: |
1. The respondent restore the positions of the four inspectors in the Shippagan office;
2. The respondent ensure that the conclusions of the Commissioner in the Report, dated March 2003, be implemented, and particularly recommendations 1 and 2;
3. The provision of French-language services for the region serviced by the Shippagan office be ensured;
4. The necessary staff accreditations in the Shippagan office and the language training of the Blacks Harbour staff be completed within no more than 12 months of this order;
5. The commitments made by the respondent in its proposed action plan, to undertake a series of consultations in the Acadian peninsula with a wide range of members of the minority official language community, be implemented and achieved within no more than 12 months of this order;
6. With costs to the applicant.
1 Part IV pertains to communications with and services to the public.
2 Part VII pertains to the advancement of English and French.
3 Report, at p. 6.
4 Part V pertains to the language of work.
5 Supra, note 3, at pp. 5-6.
6 Cross-examination of Régis Bourque, question 57, Applicant's Record, at p. 67.
7 Ibid: [translation] "But there is still a comment, keep in mind that we only had six months in which to develop our program, you know, which means that when the decisions were made the decisions were made based on the workload there was in the North-East of the province. . . . The official languages side, we are now in the process of reacting to that report, saying we have just received it, like you."
8 Supra, note 3, at p. 9: "Based on our investigation, we conclude that the Agency's decisions did not allow it to fully meet its obligations under Part IV of the OLA (services to the public)."
APPENDIX A
RELEVANT LEGISLATION
Section 2 of the OLA defines the purpose of the Act:
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
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Part IV concerns communications with and services to the public:
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.
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.
. . .
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.
(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.
(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;
(c) the Office of the Auditor General;
(d) the Office of the Information Commissioner; and
(e) the Office of the Privacy Commissioner.
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.
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.
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.
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.
. . .
31. In the event of any inconsistency between this Part and Part V, this Part prevails to the extent of the inconsistency.
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).
(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
(c) any other factors that the Governor in Council considers appropriate.
33. The Governor in Council may make such regulations as the Governor in Council deems necessary to foster actively communications with and services from offices or facilities of federal institutions, other than the Senate, the House of Commons or the Library of Parliament, in both official languages, where those communications and services are required under this Part to be provided in both official languages.
Part V concerns the 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.
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.
(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 ).
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
(c) ensure that,
(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.
(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.
37. Every federal institution that has authority to direct, or provides services to, other federal institutions has the duty to ensure that it exercises its powers and carries out its duties in relation to those other institutions in a manner that accommodates the use of either official language by officers and employees of those institutions.
38. (1) The Governor in Council may make regulations in respect of federal institutions, other than the Senate, the House of Commons or the Library of Parliament,
(a) prescribing, in respect of any part or region of Canada or any place outside Canada,
(i) any services or work instruments that are to be made available by those institutions in both official languages to officers or employees of those institutions,
(ii) any automated systems for the processing and communication of data that must be available for use in both official languages, and
(iii) any supervisory or management functions that are to be carried out by those institutions in both official languages;
(b) prescribing any other measures that are to be taken, 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 establish and maintain work environments of those institutions that are conducive to the effective use of both official languages and accommodate the use of either official language by their officers and employees;
(c) requiring that either or both official languages be used in communications with offices of those institutions that are located in any part or region of Canada, or any place outside Canada, specified in the regulations;
(d) prescribing the manner in which any duties of those institutions under this Part or the regulations made under this Part in relation to the use of both official languages are to be carried out; and
(e) prescribing obligations of those institutions in relation to the use of the official languages of Canada by the institutions in respect of offices in parts or regions of Canada not prescribed for the purpose of paragraph 35(1)(a), having regard to the equality of status of both official languages.
(2) The Governor in Council may make regulations
(a) adding to or deleting from the regions of Canada prescribed by subsection 35(2) or prescribing any other part or region of Canada, or any place outside Canada, for the purpose of paragraph 35(1)(a), having regard to
(i) the number and proportion of English-speaking and French-speaking officers and employees who constitute the work force of federal institutions based in the parts, regions or places prescribed,
(ii) the number and proportion of English-speaking and French-speaking persons resident in the parts or regions prescribed, and
(iii) any other factors that the Governor in Council considers appropriate; and
(b) substituting, with respect to any federal institution other than the Senate, the House of Commons or the Library of Parliament, a duty in relation to the use of the official languages of Canada in place of a duty under section 36 or the regulations made under subsection (1), having regard to the equality of status of both official languages, where there is a demonstrable conflict between the duty under section 36 or the regulations and the mandate of the institution.
Part VII concerns the advancement of English and French:
41. The Government of Canada is committed to
(a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and
(b) fostering the full recognition and use of both English and French in Canadian society.
42. The Minister of Canadian Heritage, in consultation with other ministers of the Crown, shall encourage and promote a coordinated approach to the implementation by federal institutions of the commitments set out in section 41.
43. (1) The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to advance the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to
(a) enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development;
(b) encourage and support the learning of English and French in Canada;
(c) foster an acceptance and appreciation of both English and French by members of the public;
(d) encourage and assist provincial governments to support the development of English and French linguistic minority communities generally and, in particular, to offer provincial and municipal services in both English and French and to provide opportunities for members of English or French linguistic minority communities to be educated in their own language;
(e) encourage and assist provincial governments to provide opportunities for everyone in Canada to learn both English and French;
(f) encourage and cooperate with the business community, labour organizations, voluntary organizations and other organizations or institutions to provide services in both English and French and to foster the recognition and use of those languages;
(g) encourage and assist organizations and institutions to project the bilingual character of Canada in their activities in Canada or elsewhere; and
(h) with the approval of the Governor in Council, enter into agreements or arrangements that recognize and advance the bilingual character of Canada with the governments of foreign states.
(2) The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to ensure public consultation in the development of policies and review of programs relating to the advancement and the equality of status and use of English and French in Canadian society.
44. The Minister of Canadian Heritage shall, within such time as is reasonably practicable after the termination of each financial year, submit an annual report to Parliament on the matters relating to official languages for which that Minister is responsible.
45. Any minister of the Crown designated by the Governor in Council may consult and may negotiate agreements with the provincial governments to ensure, to the greatest practical extent but subject to Part IV, that the provision of federal, provincial, municipal and education services in both official languages is coordinated and that regard is had to the needs of the recipients of those services.