T-1909-04
2005 FC 987
Raymond Desrochers and Corporation de Développement Économique Communautaire CALDECH (Applicants)
v.
Industry Canada, the Government of Canada and the Attorney General of Canada (Respondents)
and
Official Languages Commissioner (Intervener)
Indexed as: Desrochers v. Canada (Industry) (F.C.)
Federal Court, Harrington, J.--Ottawa, May 16 and 17; July 15, 2005.
Official Languages -- Application for remedy under Official Languages Act (Act), s. 77(4) for breach of rights -- Industry Canada responsible for Community Futures Program under which funds locally operated not-for-profit Community Futures Development Corporations (CFDCs) -- CFDCs delivering variety of programs, services regarding community economic development, small business growth -- Applicants based in Penetanguishene in Simcoe County where French linguistic minority -- CFDC in Penetanguishene, North Simcoe, independent contractor, but FedNor, arm of Industry Canada created to administer program, having ultimate control -- Applicants filing complaint with Official Languages Commissioner that Industry Canada failed to provide equal services in French under Community Futures Program -- Commissioner finding Industry Canada in breach of Act, s. 22 -- Whether Act applicable to case -- Whether French-speaking minority in northern section of Simcoe County being offered services equal to those of English-speaking majority under Community Futures Program -- Act having quasi-constitutional status, imposing requirements on federal institutions -- Part IV of Act "Communications with and Services to the Public" applicable, not Part VII "Advancement of English and French" -- North Simcoe rendering services on behalf of Industry Canada -- Industry Canada statutorily obliged to ensure North Simcoe providing equal services in both official languages under Act, s. 25 -- "Equal" not necessarily identical -- Public's right to obtain services in French restricted to institutions; not extending to dealing with individuals in French -- Evidence showing North Simcoe complying with requirements of Act.
Constitutional Law -- Charter of Rights -- Language Rights -- Application for remedy under Charter, s. 24 for breach of language rights -- No evidence rights breached -- Community Futures Development Corporation (North Simcoe) providing equal services in French and English on behalf of Industry Canada.
This was an application for a remedy under subsection 77(4) of the Official Languages Act (Act), for breach of rights and, in the case of the applicant Raymond Desrochers, under section 24 of the Canadian Charter of Rights and Freedoms (Charter) for breach of his language rights. Raymond Desrochers is the president of his co-applicant Centre d'avancement et de leadership en développement économique communautaire de l'Huronie (CALDECH), a not-for-profit corporation, the aim of which is to ensure greater participation by the region's French speakers in the local economy. In 2000, Raymond Desrochers and CALDECH complained to the Official Languages Commissioner that Industry Canada had breached its obligations under the Act by failing to provide equal services in French with respect to its Community Futures Program, a still current small-business-oriented program, which provides information, counselling and financing, community economic development and strategic planning. Under the program, Industry Canada funds locally operated not-for-profit Community Futures Development Corporations (CFDCs). The CFDC serving Penetanguishene, where Raymond Desrochers and CALDECH are based, is known as North Simcoe Community Futures Development Corporation/Simcoe Nord Société d'aide au développement des collectivités (North Simcoe). The Office of the Commissioner of Official Languages agreed with the thrust of the applicants' allegations. It made four recommendations to Industry Canada and followed up in June 2003 and in August 2004. The Office reported that despite improvement, the French-speaking community in the northern part of Simcoe County was still not receiving equal services with respect to the Community Futures Program. Following the filing of the 2004 report, Raymond Desrochers and CALDECH commenced proceedings against Industry Canada in the Federal Court asking that Industry Canada compensate CALDECH for the cost of rendering past Community Futures Program services and seeking future funding. The issues were: whether the Official Languages Act or Charter applied and, if so, whether any rights had been breached; and whether the French-speaking minority in the northern section of Simcoe County was being offered services equal to those of the English-speaking majority under the Community Futures Program.
Held, the application should be dismissed.
Subsections 16(1) and 20(1) of the Charter constitutionally protect the use of French and English "in all institutions of the Parliament and government of Canada." The Official Languages Act has been characterized as having quasi-constitutional status, meaning that the written text must be interpreted in a manner particularly sensitive to our unwritten Constitution and to the history of English- and French-speaking minorities. The Act is more than just a statement of principles--it imposes practical requirements on federal institutions.
Although the Official Languages Commissioner's reports into the applicants' complaints dealt with Part IV, "Communications with and Services to the Public" and Part VII, "Advancement of English and French" of the Act, Part VII did not apply in this case. Under the Act, section 22, a federal institution has the duty to ensure that any member of the public in Canada can communicate with and receive available services from federal institutions in either official language where there is a significant demand. There is a significant demand in the northern part of Simcoe County. Moreover, it was agreed that both applicants are members of the public and that "service" means equal service. Under section 25, that duty is extended to persons or organizations providing services on behalf of the institution. The Commissioner argued that since Industry Canada was directly providing the services, under section 22, it had the duty to ensure that the public could communicate with and obtain available services from it in either official language. Industry Canada argued that it did not deal with the ultimate beneficiaries of the Program and that North Simcoe provided services not on its behalf but for FedNor, the arm of Industry Canada created to fund community projects and other initiatives and to administer the Community Futures Program throughout northern and rural Ontario. North Simcoe is an independent contractor, but FedNor has ultimate control. Therefore, the principle that a private entity is subject to the Charter and to the Act when it performs a governmental action or implements a specific governmental policy or program so long as the government retains responsibility for the entity applied in this case. North Simcoe was implementing a specific governmental policy or program, the Community Futures Program. As a result, under section 25 of the Act, Industry Canada was statutorily obliged to ensure that North Simcoe provided equal services in both official languages the same as if it was providing the services itself. Since section 25 applied, section 22 did not apply. When it entered into an agreement with North Simcoe, Industry Canada could not contract out of its official language and Charter obligations.
The issue of whether Industry Canada, as a federal institution, failed to ensure that the services provided and made available by North Simcoe were equal in English and in French under section 25 of the Act had to be examined on the facts in place when the proceedings were filed in October 2004. At that point, North Simcoe had a bilingual receptionist, a French-speaking loan officer, a French-speaking loan committee and a number of French-speaking directors. It also had a bilingual library and website. Three incidents regarding French services were worth mentioning. The receptionist working at North Simcoe was bilingual but the employees' direct line could only be accessed in English. It was not a requirement that North Simcoe's employees be bilingual. Providing the telephone numbers of unilingual English speakers did not constitute a breach of the Act. North Simcoe's Director General was unilingual Anglophone. The distinction between a federal institution and an individual must be drawn. The public has the right to deal with North Simcoe in French but not with certain individuals. Finally, according to the Commissioner's reports, North Simcoe offered training sessions in English only. Despite attempts to offer workshops and seminars in French, they were usually cancelled due to lack of participation. Each information session North Simcoe offered did not have to be bilingual. "Equal" does not necessarily mean identical. The evidence was insufficient to establish that there was a breach of Part IV of the Act or of any Charter rights.
The Commissioner's 2004 report stated that services offered in French by North Simcoe were not of equal quality to those provided in English. Moreover, it stated that additional measures were still needed to produce tangible results in order that North Simcoe fully respect the Act. The concept of "equal" and the intensity of North Simcoe's obligations had to be established to determine whether North Simcoe fully complied with the Act's requirements. Raymond Desrocher's concept of "equal service" reflected his fear of assimilation. In fact, he wanted North Simcoe to be a culturally French institution run by a French minority. However, equal service does not require that an institution be run by the official language minority. Section 22 of the Act requires a federal institution to communicate in both languages and to render equal services in both languages. Under section 25, a third party who renders those self-same services is subject to the same obligation, not to a different obligation. The intensity of North Simcoe's obligation could be no greater than the obligation falling upon Industry Canada itself. An obligation of result is more intense than an obligation of means, which is satisfied if objective best efforts are used. North Simcoe was able to communicate with the public in French and it provided equal services, even though it was not as successful as the applicants had wanted. If Industry Canada was not satisfied with North Simcoe's results, it could withdraw its mandate, fund additional staff or administer the program directly. Much of what the applicants sought pertained to Part VII of the Act. Decisions in that regard, such as funding CALDECH to carry out the responsibilities of a CFDC throughout Simcoe County, could only be made by Parliament and the Executive, not by the courts.
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], ss. 15(1), 16(1), 20(1), 23, 24, 32.
| Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 133. |
| Department of Industry Act, S.C. 1995, c. 1, ss. 4(2), 8. |
| Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 2, 3 "federal institution", 21-33, 41, 77(4), 91. |
cases judicially considered
applied:
Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 4 F.C.R. 276; (2004), 243 D.L.R. (4th) 542; 324 N.R. 314; 2004 FCA 263; leave to appeal to SCC granted [2004] C.S.C.R. No. 449 (QL); Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285; (2004), 244 D.L.R. (4th) 277; 325 N.R. 369; 2004 SCC 60; Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773; (2002), 214 D.L.R. (4th) 1; 289 N.R. 282; 2002 SCC 53; Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201; (2005), 250 D.L.R. (4th) 421; 331 N.R. 256; 2005 SCC 14; Gilbert v. British Columbia (Forest Appeals Commission), [2005] BCCA 117; [2005] B.C.J. No. 408 (QL); Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; (1997), 151 D.L.R. (4th) 577; [1998] 1 W.W.R. 50; 38 B.C.L.R. (3d) 1; 96 B.C.A.C. 81; 218 N.R. 161.
distinguished:
Lavigne v. Canada (Human Resources Development), [2002] 2 F.C. 164; (2001), 228 F.T.R. 185; 2001 FCT 1365; affd (2003), 308 N.R. 186; 2003 FCA 203.
referred to:
Lalonde v. Ontario (Health Services Restructuring Commission) (2001), 56 O.R. (3d) 505; 208 D.L.R. (4th) 577; 38 Admin. L.R. (3d) 1; 89 C.R.R. (2d) 1; 153 O.A.C. 1 (C.A.); 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; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 40 C.R.R. 100; 93 N.R. 183; Quigley v. Canada (House of Commons), [2003] 1 F.C. 132; (2002), 43 Admin. L.R. (3d) 218; 220 F.T.R. 221; 2002 FCT 645; Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46; 194 F.T.R. 181; 2001 FCT 239; Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; [1999] 9 W.W.R. 380; (1999), 67 B.C.L.R. (3d) 213; 127 B.C.A.C. 287; 50 B.L.R. (2d) 169; 11 C.C.L.I. (3d) 1; 47 C.C.L.T. (2d) 1.
APPLICATION for remedy under subsection 77(4) of the Official Languages Act for breach of rights and, in the case of the applicant Raymond Desrochers, under section 24 of the Canadian Charter of Rights and Freedoms for breach of his language rights. Application dismissed.
appearances:
Ronald F. Caza and Joël M. Dubois for applicants.
Alain Préfontaine and Marie-Josée Montreuil for respondents.
Pascale Giguère and François Boileau for intervener.
solicitors of record:
Heenan Blaikie LLP, Ottawa, for applicants.
Deputy Attorney General of Canada for respondents.
Office of the Commissioner of Official Languages, Legal Affairs, Ottawa, for intervener.
The following are the reasons for order rendered in English by
[1]Harrington J.: To wake up each morning to this question: Shall I give up the struggle and allow myself to be assimilated? According to Raymond Desrochers, that is what it is like to be a Franco-Ontarian, or at least one living in Simcoe County.
[2]Mr. Desrochers is the president of his co-applicant Centre d'avancement et de leadership en développement économique communautaire de l'Huronie (CALDECH), a not-for-profit corporation whose aim is to ensure greater participation by the region's French speakers in the local economy.
[3]Back in 2000, Mr. Desrochers and CALDECH complained to the Official Languages Commissioner that Industry Canada was in breach of its obligations under the Official Languages Act [R.S.C., 1985 (4th Supp.), c. 31]. Briefly put, they claimed that Industry Canada did not offer equal services in French with respect to its Community Futures Program, a still current small-business-oriented program which provides information, counselling and financing, community economic development and strategic planning.
[4]Industry Canada does not directly provide the service and financing, but rather funds locally operated not-for-profit Community Futures Development Corporations (CFDCs) of which there are some 61 in northern and rural Ontario. The one serving Penetanguishene, where Mr. Desrochers and CALDECH are based, is situated in Midland and is now known as North Simcoe Community Futures Development Corporation/Simcoe Nord Société d'aide au développement des collectivités (North Simcoe).
[5]At the time of the 2000 complaint, it was alleged that North Simcoe was unable to provide adequate service in French, much less equal to the service it offered in English. Industry Canada responded by funding CALDECH to the tune of $25,000 a month over a series of short-term contracts, so that it could carry out at least part of the services covered by the Community Futures Program. Industry Canada also commissioned an independent study which ranked 16 Ontario CFDCs which provided bilingual service. Four were deemed satisfactory, seven average and five inadequate. North Simcoe fell within the average range. That report was current as of 2001.
[6]In its September 2001 report, the Office of the Commissioner of Official Languages agreed with the thrust of the applicants' allegations and made four recommendations to Industry Canada. It followed up in June 2003 and again in August 2004. Although the Office is of the view that the situation has considerably improved, it reports the French-speaking community in the northern part of Simcoe County is still not receiving equal service with respect to the Community Futures Program.
[7]Mr. Desrochers and CALDECH took proceedings in this Court in October 2004 against Industry Canada with the view of obtaining recourse for alleged breaches of the Official Languages Act and, at least in the case of Mr. Desrochers, breach of Charter [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]] rights. Many of the allegations boil down to the belief that the linguistic minority in the northern part of Simcoe County cannot properly benefit from a community development program offered by an English, or at least an Anglo-dominant, organization. They ask the Court to order that Industry Canada compensate CALDECH for the cost of in fact rendering Community Futures Program services in the past, and to fund it in the future, at least until such time as Industry Canada personally takes over management of the program or until North Simcoe or some other organization is fully alive and sensitive to the needs and aspirations of the Francophone community.
[8]Industry Canada takes the position that the Official Languages Act does not apply because the services offered by North Simcoe are not services rendered on its behalf. Nevertheless, it says that in its contract with North Simcoe it follows Treasury Board directives. It has required North Simcoe to render equal service in French and, at least by the time the proceedings were instituted last year, North Simcoe was in full compliance with the Act. Consequently, in order to avoid unnecessary expense and duplication, it no longer funds CALDECH.
[9]The Commissioner was given leave to intervene in order to make representations limited to Part IV of the Official Languages Act, the part which deals with "Communications with and Services to the Public."
[10]The facts will be set out and considered in greater detail in order to better appreciate the issues and to keep in mind the law which must be applied to the facts.
ISSUES
1. Does the Official Languages Act apply in whole or in part? If so, which parts and which sections thereof apply?
2. Is the French-speaking minority in the northern section of Simcoe County being offered equal service to that of the English speaking majority under the Community Futures Program? If not, what is the appropriate remedy?
3. Were the applicants' Charter rights being violated? If so, what is the appropriate remedy?
[12]I shall deal in turn with the Official Languages Act, the facts and the meaning of equal service, before coming to a conclusion.
OFFICIAL LANGUAGES ACT
[13]The Constitution Act, 1867 [30 & 30 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1 [R.S.C., 1985, Appendix II, No. 5]], says practically nothing about the use of the English and French languages. Section 133 provides that either may be used in debates in Parliament and in the Quebec legislature, in Canadian and Quebec courts and that the Acts of the Parliament of Canada and the legislature of Quebec are to be printed and published in both languages.
[14]An earlier version of the Official Languages Act was enacted in 1969, a version which does not concern us in this case. It is the Canadian Charter of Rights and Freedoms, which constitutionally protects a more broadly based use of French and English "in all institutions of the Parliament and government of Canada" and New Brunswick. Subsections 16(1) and 20(1) provide:
16. (1) 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.
. . .
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) there is a significant demand for communications with and services from that office in such language; or
(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.
[15]Section 23 of the Charter deals with minority education rights. Section 24 provides that anyone whose rights or freedoms have been infringed may apply to court to "obtain such remedy as the court considers appropriate and just in the circumstances."
[16]Section 32 states:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
[17]This is the backdrop to the current Official Languages Act, an Act recently analyzed in its eleven parts by the Federal Court of Appeal in Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), [2004] 4 F.C.R. 276, leave to appeal to the Supreme Court granted [[2004] C.S.C.R. No. 449]. The case before me must take into account Part IV, "Communications with and Services to the Public", Part VIII, "Responsibilities and Duties of Treasury Board in Relation to the Official Languages of Canada", Part IX, "Commissioner of Official Languages", and Part X "Court Remedy".
[18]This case is not concerned with Part VII, "Advancement of English and French". Section 41 of the Act, which falls within Part VII, provides:
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.
[19]The Federal Court of Appeal clearly stated in Forum des maires, that Part VII is facultative only. It is a declaration of intention and, unlike other parts of the Act, does not give rise to rights and remedies. This distinction must be borne in mind at all times as the Official Language Commissioner's reports into the applicants' complaints deal with both Part IV, which is the primary focus of this case, and Part VII.
[20]All statutes are subject to the modern standard of statutory interpretation. In Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285, Deschamps J. said at paragraph 5:
The approach to statutory interpretation is well-known (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42). A statutory provision must be read in its entire context, taking into consideration not only the ordinary and grammatical sense of the words, but also the scheme and object of the statute, and the intention of the legislature. This approach to statutory interpretation must also be followed, with necessary adaptations, in interpreting regulations.
[21]The Official Languages Act has been characterized as having quasi-constitutional status which means that one interprets the written text in a manner particularly sensitive to our unwritten Constitution and to the history of English- and French-speaking minorities.
[22]The purpose of the Official Languages Act is set out in section 2 thereof:
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.
[23]As noted in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, at paragraphs 22-23:
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] 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. . . .
. . .
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. For instance, in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, at p. 386 (see also Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586 (T.D.), at pp. 602-3), the Federal Court of Appeal said:
| 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 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." [Emphasis added.] |
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.
[24]More recently, and although speaking of minority language education rights in Quebec, in Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, the Supreme Court stated at paragraphs 4 and 5:
Before ss. 16 to 23 of the Canadian Charter came into force, s. 133 of the Constitution Act, 1867 already contained a rudimentary language rights scheme. In addition, legislation that was quite broad in scope, although it did not have constitutional status, had been implemented by the federal government and by a number of provinces: this legislation included the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), enacted by the Parliament of Canada in 1969; the CFL in Quebec and the Official Languages of New Brunswick Act, S.N.B. 1969, c. 14 (see M. Bastarache, "Introduction", in M. Bastarache, ed., Language Rights in Canada (2nd ed. 2004), 1, at pp. 21-23). These legislative schemes govern situations in which not only individual rights, but also the existence of language communities and the manner in which those communities perceive their future, are in issue.
Owing to the existence of these two levels of social and legal relationships, the establishment of rules to govern language rights is a sensitive issue. First, the members of the minority communities and their families, in every province and territory, must be given the opportunity to achieve their personal aspirations. Second, on the collective level, these language issues are related to the development and existence of the English-speaking minority in Quebec and the French-speaking minorities elsewhere in Canada. They also inevitably have an impact on how Quebec's French-speaking community perceives its future in Canada, since that community, which is in the majority in Quebec, is in the minority in Canada, and even more so in North America as a whole. To this picture must be added the serious difficulties resulting from the rate of assimilation of French-speaking minority groups outside Quebec, whose current language rights were acquired only recently, at considerable expense and with great difficulty. Thus, in interpreting these rights, the courts have a responsibility to reconcile sometimes divergent interests and priorities, and to be sensitive to the future of each language community. Our country's social context, demographics and history will therefore necessarily comprise the backdrop for the analysis of language rights. Language rights cannot be analysed in the abstract, without regard for the historical context of the recognition thereof or for the concerns that the manner in which they are currently applied is meant to address.
[25]In addition to the many cases cited therein see also the decision of the Ontario Court of Appeal in Lalonde v. Ontario (Health Services Restructuring Commission) (2001), 56 O.R. (3d) 505 (English version).
DOES THE OFFICIAL LANGUAGES ACT APPLY?
[26]The Department of Industry Act, S.C. 1995, c. 1, gives the Minister [subsection 4(2)] "powers, duties and functions . . . relating to regional economic development in Ontario and Quebec". More particularly in accordance with section 8:
8. The Minister shall exercise the powers and perform the duties and functions assigned by subsection 4(2) in a manner that will
(a) promote economic development in areas of Ontario and Quebec where low incomes and slow economic growth are prevalent or where opportunities for productive employment are inadequate;
(b) emphasize long-term economic development and sustainable employment and income creation; and
(c) focus on small and medium-sized enterprises and the development and enhancement of entrepreneurial talent. [My emphasis.]
[27]This has led to the creation of FedNor, Industry Canada's arm which funds community projects and other initiatives to improve the economic and social well-being of northern Ontario. It also administers the Community Futures Program throughout northern and rural Ontario. Believing that the communities themselves should be the ones making decisions, it supports 61 CFDCs which, in turn, deliver a wide variety of programs and services in relation to community economic development and small-business growth.
[28]Since Industry Canada does not deal directly with the ultimate beneficiaries of the Community Futures Program, it takes the position that the Official Languages Act, more particularly Part IV thereof, has no application because the public is not in communication with a "federal institution". Part IV, sections 25-33, provides that any member of the public in Canada has the right to communicate with and receive available services from federal institutions in either official language within the National Capital Region or where there is significant demand. It is common ground that there is significant demand in the northern part of Simcoe County. In accordance with section 22, Industry Canada, as a federal institution, "has the duty to ensure that any member of the public can communicate with and obtain available services from [it] in either official language." It is not disputed that both applicants are members of the public and that "service" means equal service (R. v. Beaulac, [1999] 1 S.C.R. 768, at paragraphs 22-25).
[29]However, section 25 goes on to provide:
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.
[30]Industry Canada submits that North Simcoe is not providing services "on its behalf." Therefore, if I fully grasp the argument, the applicants have no standing to claim that the Official Languages Act has been breached.
[31]Although the Official Languages Commissioner is of the view that Part IV applies, she agrees that section 25 does not. She submits that section 22 applies, i.e. that Industry Canada is directly providing the service. The Office of the Commissioner opined in 1999 with respect to two complaints concerning CFDCs operating in the Magdalene Islands and the Gaspé Peninsula in Quebec. The Office simply said:
[translation] In light of the explanations provided, in our opinion the Community Futures Development Corporations (CFDC) in question were not acting as a [sic] third parties under contract with Canada Economic Development (CED) within the meaning of section 25 of the Act.
[32]Whatever those explanations may have been, nothing has been explained to me which would oust the application of the Act.
[33]If North Simcoe is not rendering services for Industry Canada, for whom is it acting? True, North Simcoe makes decisions on loan applications and in the advice it gives, but there are general parameters issued by FedNor which indemnifies North Simcoe with respect to salaries and overhead and which funds the loan account. Scott Merrifield, FedNor's Planning Director, was cross-examined on his affidavit. Although it is clear that North Simcoe is not a Crown agency, and is an independent contractor able to deal with matters unrelated to the Community Futures Development Program, and although it enjoys independent initiative with respect to that program, ultimate control rests with FedNor. Detailed reports must be submitted. If the plan is not satisfactory to FedNor, FedNor is entitled to withdraw its mandate. Indeed, the contracts are of short-term duration, and then renewed.
[34]"On its behalf" "pour leur compte", the words used in section 25 of the Official Languages Act, are somewhat vague. A recent decision very much on point is Gilbert v. British Columbia (Forest Appeals Commission), 2005 BCCA 117; [2005] B.C.J. No. 408 (QL), a decision of the British Columbia Court of Appeal. The Court said (at paragraph 20):
Dictionary definitions make it clear that the term "on behalf of" includes or means "for the benefit of".
[35]In my opinion, the answer is to be found in the decision of the Supreme Court in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. That case dealt with medical care in British Columbia, more specifically a failure to provide sign language facilities in hospitals. The applicants invoked their equality rights under subsection 15(1) of the Charter and section 32 thereof, which provides that the Charter applies to the Parliament and government of Canada. The case dealt with circumstances in which a private institution could be considered as the government for purposes of the Charter. A "federal institution" as interpreted in section 3 of the Official Languages Act:
3. . . .
"federal institutions" . . . includes any of the following institutions of the Parliament or government of Canada:
. . .
(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,
. . .
(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,
[36]It is not necessary to determine whether North Simcoe falls within any of the enumerated institutions, because the list is not exhaustive. In Eldridge, it was first established that subsection 15(1) had been violated, at least if the medical services had been furnished by the government. The Court noted that it was possible for a legislature to give authority to a body that is not subject to the Charter or, as in this case, the Official Languages Act. Nevertheless, there are organizations which, in some respects, may exercise delegated government powers or be responsible for the implementation of government policy. It was held that such entities in performing that particular action are part of "government" within the meaning of section 32 of the Charter. La Forest J. said at paragraph 42:
It seems clear, then, that a private entity may be subject to the Charter in respect of certain inherently governmental actions. The factors that might serve to ground a finding that an activity engaged in by a private entity is "governmental" in nature do not readily admit of any a priori elucidation. McKinney [McKinney v. University of Guelph, [1990] 3 S.C.R. 229] makes it clear, however, that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that actually implements the program, it is government that retains responsibility for it. The rationale for this principle is readily apparent. Just as governments are not permitted to escape Charter scrutiny by entering into commercial contracts or other "private" arrangements, they should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities. In McKinney, I pointed to Slaight, supra, as an example of a situation where action taken in furtherance of a government policy was held to fall within the ambit of the Charter. I noted, at p. 265, that the arbitrator in that case was "part of the governmental administrative machinery for effecting the specific purpose of the statute". "It would be strange", I wrote, "if the legislature and the government could evade their Charter responsibility by appointing a person to carry out the purposes of the statute"; see idem. Although the arbitrator in Slaight [Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038] was entirely a creature of statute and performed functions that were exclusively governmental, the same rationale applies to any entity charged with performing a governmental activity, even if that entity operates in other respects as a private actor; see A. Anne McLellan and Bruce P. Elman, "To Whom Does the Charter Apply? Some Recent Cases on Section 32" (1986), 24 Alta. L. Rev. 361, at p. 371. [My emphasis.]
[37]He went on to say at paragraph 43:
In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. [Underlining in original.]
He added that although the hospitals in that case were funded on a lump sum basis, which is also the case here, and not a "fee for service" basis, they were not entirely free to spend the money as they chose. Likewise, North Simcoe does not have unfettered use of the funding it receives from Industry Canada/FedNor.
[38]I find that North Simcoe is implementing a specific governmental policy or program, the Community Futures Program, and thus it is Industry Canada's duty to ensure that equal services are provided in both official languages the same as if the services were provided by Industry Canada itself. See also Quigley v. Canada (House of Commons), [2003] 1 F.C. 132 (T.D.) and Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 35 Admin. L.R. (3d) 46 (F.C.T.D.). The case of Lavigne v. Canada (Human Resources Development), [2002] 2 F.C. 164 (T.D.); (affd (2003), 308 N.R. 186 (F.C.A.)) is distinguishable. That was a case in which the federal government was supporting a Quebec employment program, which was a matter of provincial jurisdiction. In this case, we are dealing with federal jurisdiction.
[39]Thus, on this point, I agree with the applicants and not with Industry Canada and the Official Languages Commissioner.
[40]The Official Languages Commissioner is of the view that section 22 is applicable. That section applies when the federal institution is directly providing the service. Either Industry Canada is directly providing the service or it is not. On the facts of this case, since section 25 is applicable then section 22 is not.
[41]Although it argued that the Act was not applicable, Industry Canada has not taken the position that the applicants were left to their own devices. On the contrary, it says that in its contract with North Simcoe it followed the Treasury Board's policy on grants and contributions. The objective of that policy is that when grants or contributions are made to voluntary, non-governmental organizations serving members of the public of both official language communities, communications with and services are to be provided in both French and in English in accordance with the spirit and intent of Part IV of the Act. This, it says, comes to the same thing.
[42]It does not come to the same thing at all. A constitutional right cannot be reduced to what could best be charitably described as a contractual stipulation for the benefit of a third party. See Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108. Furthermore, the contracts are short-term, and policies may change. Put another way, a federal institution cannot contract out of its Charter and official language obligations.
THE FACTS
[43]This case is long on theory but short on specific facts. The facts which count are those in place when the proceedings were filed in October 2004 (Forum des maires). The question is whether as of that point in time Industry Canada, as a federal institution, failed within the meaning of section 25 of the Official Languages Act to ensure that the services provided and made available by North Simcoe were equal in English and in French.
[44]If the proceedings had been instituted in 2000, Industry Canada would clearly have been found in breach of the duty imposed upon it by section 25. At that time, North Simcoe had difficulty even answering the telephone in French. However, by the time the proceedings were taken, it had hired a bilingual receptionist, has a French-speaking loan officer, created a French-speaking loan committee and has a number of French-speaking directors. It also has a bilingual library and website. Its French component is far greater than the community as a whole. French speakers are a definite minority comprising only about 6% of the population.
[45]North Simcoe is a small organization, with only five full-time employees. It also has a number of volunteers who serve as directors and on the separate English and French loan committees. All five employees are completely at ease in English, including the two whose mother-tongue is French. The Director General, for all intents and purposes, is unilingual English.
[46]There are three specific incidents which bear mentioning, telephone service, a meeting Rosita Desroches had with the Director General, and a series of breakfast public meetings carried out only in English.
| Telephone Service |
[47]The receptionist is bilingual. She answers the phone in English with a "bonjour" at the end. However, the applicants did not really come to Court to complain about the manner in which the telephone was answered. No one has led any evidence as to what directives, if any, Industry Canada or the Treasury Board have in place with respect to answering the telephone. If one should say "Good morning, North Simcoe Nord, bonjour", so be it. Industry Canada has an ongoing duty under section 25 to make sure that equal service is provided. De minimis non curat lex (the law does not care about trifles).
[48]The other complaint related to the answering machine. In English, one can gain access to the direct line of all employees. That is not the case in French. The reason for this is that all the employees speak English, which is not surprising given the makeup of the population at large. This case is concerned with communications with and services provided by a federal institution, or an organization on its behalf. We are not directly concerned with Part V of the Act "language of work". Individuals are entitled to be unilingual. There is no obligation upon North Simcoe, or for that matter Industry Canada itself if it were providing the service, to ensure that each and every one of its employees is at ease in both official languages. It does not appear to me that providing the telephone numbers of unilingual English speakers constitutes a breach of the Act. I cannot even say that it breaches the spirit of the Act, as no evidence was led as to Industry Canada or Treasury Board policies. Even if this did constitute a breach, then the answer would be to abbreviate the English directory accordingly.
| Rosita Desroches |
[49]Rosita Desroches and Victor Brunelle wished to discuss a project. They specifically asked to meet with the Director General, Deborah Muenz. Ms. Desroches knew perfectly well that Deborah Muenz was unilingual because she was her (Ms. Muenz') French teacher! In an effort to get North Simcoe's English speakers up to speed, Ms. Desroches had been hired to teach French.
[50]Also attending the meeting was Lois Irvine, the French-speaking loan officer. The meeting began in French, with Ms. Irvine translating for the benefit of Ms. Muenz. After a while, Ms. Desroches simply switched to English.
[51]As far as I am concerned, Ms. Muenz was set up. There has been no objective requirement pursuant to section 91 of the Act to require the Director General of North Simcoe to speak French. Again, the distinction between a federal institution and an individual must be clearly drawn. Ms. Desroches had the right to deal with North Simcoe in French. She did not have the right to deal with Ms. Muenz in French. She could have dealt with Ms. Irvine directly or if, as alleged, she was not fully qualified, with a member of the Francophone loans committee.
| The Breakfast Meetings |
[52]Although the inquiry reports of the Office of the Commissioner of Official Languages are receivable in evidence (Forum des maires) they must be treated with caution as the inquiries are carried out behind closed doors.
[53]In its August 2004 report, based on follow-up interviews in February 2004, the Office of the Commissioner noted that there had been eight Breakfast and Learn Program training sessions which were only offered in English. The report also noted that attempts had been made to offer workshops and seminars in French but they were usually cancelled due to lack of participation. However, in its 2003-2004 Annual Report, North Simcoe referred to its coordination of three professional development sessions for the Francophone community in partnership with La Clé d'la Baie, a local Francophone organization. Forty-eight Francophones attended. According to the same report, some 88 people had attended the Breakfast and Learn Program.
[54]It has not been advanced that each such information session must be bilingual. If so, North Simcoe is in breach of the Act for providing some sessions in English only, and some in French only. "Equal" does not necessarily mean identical.
[55]There is insufficient evidence before me to establish that these three incidents constitute a breach of Part IV of the Official Languages Act. By the same token, there has been no breach of the Charter either.
THE LANGUAGE COMMISSIONER'S REPORTS
[56]This case is not a judicial review of the Official Language Commissioner's reports. The Commissioner is an ombudsman who reports to Parliament and who makes recommendations. Both the Commissioner and complainants may apply to the Court for a remedy and if the Court "concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances" (subsection 77(4)).
[57]The reports, as aforesaid, deal with both Part IV and Part VII. The Commissioner took the position in Forum des maires, that both Part IV and Part VII created rights which gave rise to remedies, a point it is entitled to argue again when the Supreme Court hears the Forum des maires appeal, scheduled to be heard later this year. However, the Federal Court of Appeal's decision stands as the current interpretation of the Act, and is binding upon me.
[58]In its initial report, the Officer of the Commissioner made four recommendations which were followed up in its two subsequent reports. One recommendation was that Industry Canada "examine the merits of establishing a French-language community futures development corporation in Simcoe County." That recommendation deals with Part VII of the Act, and so is beyond the scope of this case. Its first recommendation pertained to Industry Canada's obligation to:
[T]ake measures, such as requiring a satisfactory bilingual capacity at all times, to ensure that services provided to the official-language minority community of Simcoe County under the community futures program are truly equal in quality to those provided to the official-language majority, and to establish appropriate monitoring and control mechanisms accordingly.
[59]The 2004 report said: "we cannot conclude that services offered in French by the North Simcoe CFDC are of equal quality to those provided in English. We do consider, however, that bilingual services are available." I will deal with this point when considering Mr. Desrochers' complaints.
[60]It faulted North Simcoe because it has only had six Francophone clients, only one of which wanted to deal with it in French. No loan application forms have been submitted in French.
[61]It also recommended that Industry Canada review its agreement with North Simcoe to ensure that it fully takes into account the objectives of both Part IV and Part VII of the Official Languages Act. The Office is satisfied that the official language clause in the new agreement with North Simcoe and other CFDCs takes into account both parts of the Act. However "additional measures are still required to produce tangible results and thus fully respect the Act."
[62]The word "result" conjures up the civil law concept of the intensity of an obligation which I consider appropriate since the same program is in force in Quebec. An obligation of means is one which is satisfied if one uses objective best efforts. An obligation of result is more intense, limited to such defences as act of God.
[63]The other recommendation which it considers only to be partially implemented is that Industry Canada consult "the official-language minority community of Simcoe County prior to undertaking any project or concluding any agreement that could have an impact on the development of this community." There is evidence that North Simcoe has in fact consulted with the French-speaking minority. However, it has not been as successful as CALDECH, which is another example of the intensity of the obligation theory.
| Raymond Desrochers' View of Equal Service |
[64]The evidence led that equal means different was rather of a sociological and anecdotal nature. Evidence was in the form of affidavits and in some cases cross-examinations of individuals active in the community, statisticians and sociologists. This led counsel for the applicants to submit:
[translation]
26. The French from the Huronia region are different than the English majority because, inter alia, they:
(i) have less economic power in the region;
(ii) have fewer jobs and a higher unemployment rate;
(iii) have fewer institutions that are their own and are less likely to live in their mother tongue;
(iv) are less likely to work in their mother tongue;
(v) are subject to a rate of assimilation of more than 67%;
(vi) live in a region where historically Francophones have been persecuted; and
(vii) have a culture which is different.
Accordingly, in terms of community economic development, the needs of the French in the Huronia region are different than those of their English peers.
[65]Although there were slight differences of opinion, and I use that word deliberately as we are dealing with opinion, rather than hard facts, Industry Canada does not really oppose those allegations. Nor does it take issue with the fact that CALDECH, funded in large measure by government of Ontario organizations, has the ear of the Francophone community, is more successful in communicating with the Francophone community and performs worthy community service.
[66]Its position is that federal institutions, in their head offices, and where numbers require, must be bilingual. That is the government of Canada's approach.
[67]According to Industry Canada, equal service under Part IV of the Act is not nearly as philosophical or cultural as the applicants make out. There certainly is room for federal government funding of CALDECH, if it chooses, under Part VII of the Act. Indeed, the last federal funding of CALDECH, which expired 31 March this year, was from Heritage Canada under Part VII of the Act. I should also mention that Industry Canada's (FedNor) contract with North Simcoe requires it to fund CALDECH to the extent of $4,000 a year. The CALDECH/Heritage Canada funding agreement recognized:
[translation] The Minister has a mandate to encourage and support official-language minorities at the national, provincial and community levels in establishing and maintaining their institutions, developing their organizations and participating, in their own language, in the social, educational, cultural and economic life of Canadian society.
As I see it "their institutions" and "federal institutions" are not the same thing.
[68]Mr. Desrochers' concept of "equal service" reflects his fear of assimilation.
[translation]
| Q. And we agree as francophones that even one assimilated francophone is one too many. |
| A. Yes. |
He notes that many children cannot speak to their grandparents in French. Many young people of the area are attracted to the bright lights of Toronto. He suggests, but of course cannot prove, that if they move to Toronto they lose their language, while if they move to Montréal they do not. He suggests that nearly all the Francophones who deal with North Simcoe do so in English because the service in French is not equal. Yet, the battle of the surveys between CALDECH and North Simcoe, neither of which was scientific, brings home the fact that many French business people prefer English services. In some cases this was because their employees were English, and in others because their customers were English. Many were so bilingual they were completely indifferent as to language. One has the right to be served in one's second official language, not to have a second official language, or not to be able to speak the official language of one's ancestors.
[69]Indeed, Mr. Desrochers' real complaint is that North Simcoe is bilingual.
[translation]
| Q. You are referring to North Simcoe? |
| A. North Simcoe or any other bilingual institution. When both services are offered, it is only a translation. It does not reflect our cultural values, our approach. And that CALDECH has developed an approach culturally sensitive to the Francophones and that explains why we have fifty or so initiatives. North Simcoe not only regularly receives money, but hires a Francophone and receives a bilingualism bonus. |
. . .
| A. It happens by word of mouth. Someone will come to see us because we listen carefully, we have a cultural ear in the sense that we understand what the person needs. We often meet people in their kitchens. We go to their homes. North Simcoe does not do that. We work with them and we have developed what we call a supportive approach. |
| And that is very Francophone, if you will. It is very culturally Francophone. We support them. We work with the group. |
| Q. And when you describe the services of like quality and all that from your previous answer, that was based on the premise that it takes a Francophone to grasp the cultural needs of another Francophone? |
| A. In matters of community economic development, yes. And I would say in many other fields also because I was in teaching as well. |
| So the mandate must respond to the needs of the minority. The bilingual institutions like North Simcoe by definition have their way of seeing things, the way of the majority. |
[70]Mr. Desrochers' solution is to create a majority out of a minority. In his view, the only two CFDCs in Ontario which provide equal service in French are in Hawkesbury and Hearst, where the majority of the local population is French. Thus, those institutions are culturally French. He thinks, however, that the English receive equal service there.
[71]Another sore point is that North Simcoe is based in Midland, an Anglo town, where even the local bank does not provide services in French.
CONCLUSION
[72]It may well be that a great number of Francophones prefer to deal with CALDECH, which has had greater success in reaching out to the French-speaking community. North Simcoe is not only required to deal with the French-speaking community, but also to pay attention to needs of women, youth and First Nations. I think the applicants are reading too much into sections 22 and 25 of the Official Languages Act. Without in any way segregating language from culture, I cannot agree that equal service requires that an institution be run by the official language minority, be it French in Ontario or English in Quebec. One could not make that a requirement of Industry Canada itself. Section 22 of the Official Languages Act requires a federal institution to communicate in both languages and to render equal service in both languages. A third party who renders that self-same service under section 25 is subject to the same obligation, not to a different obligation.
[73]As to the intensity of the obligation falling upon North Simcoe, which can be no greater than the obligation falling upon Industry Canada itself, it is able to communicate with the public in French and provides (equal) service. It is not as successful as Mr. Desrochers and CALDECH would like. Indeed, it is obvious that they will never be satisfied because North Simcoe is a bilingual institution, just as Industry Canada is a bilingual institution. If Industry Canada is not satisfied with North Simcoe's results, it may withdraw its mandate, fund additional staff or administer the program directly. If it does, it is not because of a breach of the Official Languages Act.
[74]In light of these findings, it is not necessary to consider appropriate remedies. However, it would not have been for me to tell Industry Canada how to organize itself, and order it to fund CALDECH. It may well be that the government of Canada's commitment to "enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development" would be well served by funding CALDECH to carry out the responsibilities of a CFDC throughout all of Simcoe County. The government may choose under Part VII of the Act to do so; this Court cannot force it to do so. In this vein, the Official Languages Commissioner notes that in Western Canada none of the equivalents to the Ontario CFDCs are required to render service in French. However, separate French-speaking organizations have been funded.
[75]The applicants have emphasized the symbolic role of institutions, particularly institutions serving minorities. It was submitted that a minority must be more collective in approach to avoid being marginalized. To integrate is to disappear. Reference was made to Hôpital Montfort in Ottawa (Lalonde). Nevertheless, one cannot simply ignore the actual words used in the Official Languages Act in order to favour a view of history, or to right wrongs. Part IV of the Official Languages Act is clear. Much of what Mr. Desrochers and CALDECH submit pertains to Part VII. Decisions in that regard are to be made by Parliament and the Executive, not by the courts.
[76]The application shall be dismissed. I do not consider it appropriate to order costs. Although the applicants did not obtain the result they sought, they did convince me that Industry Canada was statutorily obliged, under section 25 of the Official Languages Act, to see to it that North Simcoe provided equal service in French and in English.