La Fédération Franco-Ténoise v. Attorney General of Canada

La Fédération Franco-Ténoise v. Attorney General of Canada, 2006 NWTSC 20

Date: April 25, 2006

Court file: S.C. S-0001-CV-2001000345

SUPREME COURT OF THE NORTHWEST TERRITORIES

Between:

Fédération Franco-Ténoise, Éditions Franco-Ténoises/L’Aquilon, Fernand Denault,

Suzanne Houde, Nadia Laquerre, Pierre Ranger and Yvon Dominic Cousineau

Plaintiffs

- and -

The Attorney General of Canada, the Attorney General of the Northwest

Territories, the Commissioner of the Northwest Territories, the Speaker of the

Legislative Assembly of the Northwest Territories and the Languages

Commissioner of the Northwest Territories,

Defendants

Commissioner of Official Languages for Canada

and the Association franco-yukonnaise

Interveners

________________________________

Reasons for Ruling

By the Honourable Justice M.T. Moreau

________________________________

ii

Table of Contents

page

Table of contents ................................................................................................................ i

I.

Introduction............................................................................................................ 1

II.

Justiciability and the exclusion of evidence ................................................................ 1

A.

B.

C.

Background of the judicial proceedings of the Supreme Court of the NWT.......... 1

The arguments............................................................................................. 7

Analysis ....................................................................................................... 8

III.

IV.

The issue of the application of the Charter in the NWT ..............................................10

The interpretation principles applicable to the NWT OLA.............................................12

A.

B.

C.

D.

The historical context of language rights in the NWT.......................................12

The demographic, geographic and social context of the NWT OLA....................21

The philosophic and legal context of the NWT OLA .........................................24

The nature and interpretation of the current obligations under the regime of the

NWT OLA....................................................................................................28

V.

The implementation of the NWT OLA........................................................................36

A.

B.

C.

D.

E.

F.

G.

H.

I.

The Bastarache report..................................................................................36

The Perrault report ......................................................................................39

The New Economy Development Group study.................................................40

Languages Commissioner Harnum.................................................................41

The Lutra and Associates Ltd report...............................................................46

The policy and guidelines (the "PGD" ) ..........................................................47

Languages Commissioner Tutcho ..................................................................50

The studies carried out by the FFT ................................................................50

The forum on French in the NWT ..................................................................51

The post-forum discussions ..........................................................................52

Languages Commissioner Tatti......................................................................52

The Special Committee for the Review of the NWT OLA...................................53

J.

K.

L.

(i)

Progress report.................................................................................53

(ii)

Final report.......................................................................................54

M.

N.

O.

The GNWT's response to the Special Committee's final report ..........................56

The Terriplan study.....................................................................................59

Summary and observations...........................................................................60

VI.

The allegations of infringements ..............................................................................62

A. The allegations against the NWT LC ..............................................................63

(i)

(ii)

the FFT's allegations: the language of the annual reports......................63

the other allegations concerning the NWT LC.......................................64

iii

(iii)

the Territorial Defendants evidence ...................................................65

B.

C.

The allegations concerning the former Department of Natural Resources, Wildlife

and Economic Development..........................................................................67

(i)

(ii)

the allegations of the plaintiff, Fernand Denault ...................................67

the Territorial Defendants' evidence....................................................68

The allegations concerning the Department of Health and Social Services .........69

(i)

the allegations of the plaintiff, Suzanne Houde, concerning the Stanton

Regional Hospital ..............................................................................69

the other evidentiary elements presented by the Plaintiffs concerning

health services in French in Yellowknife...............................................72

the allegations of the plaintiff, Pierre Ranger, concerning health services in

Hay River .........................................................................................75

the rest of the Plaintiffs' evidence concerning health services outside

Yellowknife.......................................................................................75

the Territorial Defendants' evidence concerning the recruitment of health

professionals ....................................................................................78

the recruitment of Francophone health professionals and the GNWT's

affirmative action policy.....................................................................81

the Territorial Defendants' evidence concerning health services in French 81

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

(a)

(b)

(c)

Stanton Hospital.....................................................................81

the Office of Public Health.......................................................85

Head Office............................................................................85

(viii) Observations: Ms. Houde's allegations.................................................86

(ix) the allegations against the Inuvik office...............................................87

(a)

(b)

(c)

the allegations of the plaintiff, Suzanne Houde..........................87

the allegations of the plaintiff, Nadia Laquerre ..........................90

the remainder of the Plaintiffs' evidence concerning the Inuvik

office ....................................................................................91

the Territorial Defendants' evidence concerning Ms. Houde's claim92

the Defendants' evidence concerning Ms. Laquerre's claim .........94

(d)

(e)

D.

E.

The allegations concerning the Department of Transportation..........................94

(i)

(ii)

(iii)

the allegations of the plaintiff, Yvon Dominic Cousineau........................94

the allegations of the plaintiff, Suzanne Houde.....................................97

the remainder of the Plaintiffs' evidence concerning the Department of

Transportation..................................................................................97

The allegations concerning the DECE.............................................................99

(i)

the allegations of the plaintiff, Yvon Dominic Cousineau........................99

(ii)

the remainder of the evidence concerning the DECE...........................100

(a)

(b)

(c)

the Prince of Wales Heritage Centre.......................................100

Aurora College .....................................................................101

the Head Office....................................................................102

F.

The allegations concerning the Legislative Assembly of the NWT....................103

(i)

records and journals........................................................................103

Hansard.........................................................................................104

the language of the debates and their broadcast................................105

the remainder of the Plaintiffs' evidence concerning services in French at

(ii)

(iii)

(iv)

iv

the Assembly..................................................................................106

the Territorial Defendants' evidence concerning services in French at the

Assembly .......................................................................................106

(v)

G.

H.

The allegations concerning the Department of Public Works...........................107

(i)

(ii)

the allegations of the plaintiff, Nadia Laquerre ...................................107

the evidentiary elements of the Territorial Defendants........................107

The other departments of the GNWT and government organizations...............108

(i)

the Department of Justice................................................................108

the Department of the Executive ......................................................109

the FMSB .......................................................................................110

the Department of Finance...............................................................110

agencies, commissions and boards ..................................................111

(ii)

(iii)

(iv)

(v)

I.

The allegations concerning Government advertisements in the newspaper,

L’Aquilon...................................................................................................111

(i)

(ii)

the years 1993 to 1997....................................................................111

the FFT study of advertisements (October 1998 to February 1999) and its

campaign of complaints ..................................................................112

the FFT study of advertisements published in October 1999 ................113

the study undertaken by L’Aquilon regarding advertisements published

from 1994 to 2002 ..........................................................................113

summary and observations ..............................................................115

(iii)

(iv)

(v)

J.

The status of the active offer of services in French in the NWT.......................116

(i)

the "Operation Polaroid" studies.......................................................116

(a)

(b)

(c)

(d)

Operation Polaroid 1.............................................................116

Operations Polaroid 2 and 4 ..................................................117

Operation Polaroid 3: Federal services in French in the NWT 120

the admissibility of the Polaroid studies ..................................120

(ii)

the study by the Office of the Commissioner of Official Languages for

Canada ..........................................................................................124

signage on government buildings .....................................................125

Web sites.......................................................................................125

the single-window concept...............................................................126

(iii)

(iv)

(v)

K.

L.

Ethnolinguistic vitality.................................................................................127

Observations on the evidentiary elements concerning the allegations of

infringements and their context...................................................................132

VII. The exhaustion of internal recourses .......................................................................134

VIII. The Plaintiffs' standing...........................................................................................139

IX.

Infringements established by the evidence..............................................................141

A.

The allegations established and the obligations imposed under the regime of the

NWT OLA..................................................................................................142

(i)

(ii)

the NWT LC's annual report and the language of communication.........142

Fernand Denault's claim: the former Department of Natural Resources,

Wildlife and Economic Development..................................................144

v

(iii)

(iv)

(v)

Nadia Laquerre's claim: the Department of Health and Social Services .148

Suzanne Houde's claims: the Department of Health and Social Services 150

Pierre Ranger's claim: the Department of Health and Social Services ...153

the FFT's claim : the Legislative Assembly .........................................154

(vii)

(viii) the claims concerning L'Aquilon: the Departments and other Government

organizations..................................................................................159

(ix)

the claims concerning the offices......................................................160

(a)

Yvon Dominic Cousineau: the office of the Department of

Transportation ....................................................................160

Suzanne Houde: the office of the Department of Transportation 162

Nadia Laquerre /FFT: the office of the Department of Public Works162

(b)

(c)

(x) Conclusion about the infringements ......................................................163

(xi) The impact of the other evidentiary elements ........................................163

B. The sources of the infringements ......................................................................165

(i) At the Territorial level ............................................................................165

(a) The NWT OLA as a source of the problem...................................165

(b) The PGD as a source of the problem...........................................166

(c) The other sources of the problem...............................................171

(ii) At the Federal level...............................................................................174

C. The means of defence .....................................................................................177

X.

Suitable and fair redress .......................................................................................178

A.

B.

Declarative orders and affirmative measures regarding language rights .........179

The claims against the Territorial Defendants ...............................................182

(i) Orders of a specific nature .....................................................................182

(ii) Damages .............................................................................................188

(iii) The quantification of compensatory damages .........................................190

(iv) The applications for punitive or exemplary damages................................191

a) Fernand Denault .........................................................................191

b) Nadia Laquerre...........................................................................192

c) Suzanne Houde...........................................................................192

d) Pierre Ranger ............................................................................193

e) Yvon Dominic Cousineau..............................................................193

f) The FFT......................................................................................194

g) The FFT's other applications for damages ....................................194

h) L’Aquilon....................................................................................195

(v) Punitive or exemplary damages ............................................................196

C. The claims against the AGC...............................................................................203

D. The defence of prescription...............................................................................205

E. Costs...............................................................................................................205

F. Seize the court with the file ...............................................................................207

XI.

Conclusion...........................................................................................................209

1

I.

Introduction

This matter raises the issue of the nature and the scope of the linguistic obligations of the

Government of the Northwest Territories (GNWT) as well as of the Federal Government in the NWT.

The reasons that follow analyze the history of language rights in the NWT, their geographic,

demographic and social context, the efforts devoted to the implementation of language rights since

the 1980s, the specific allegations of breaches of the Plaintiffs’ language rights, the defences

pleaded as well as the fair and suitable remedies that are called for in this matter.

II.

Justiciability and the exclusion of evidence

The Territorial Defendants argue that the general and global allegations in the amended statement

are not justiciable and that the evidence that does not arise from specific allegations by individual

plaintiffs should be excluded. This issue must be settled from the very beginning. This issue is

raised by the Territorial Defendants in their defence; it is at the core of several applications that

preceded the trial as well as of numerous objections to questions posed by the Plaintiffs during the

trial and it raises the issue of the very limits of the jurisdiction of the Court in this matter. To

properly appreciate the course of the debate, it is necessary to engage in a detailed review of the

procedures that were followed and the steps that were ordered, both before and during the trial.

A.

Background of the judicial proceedings in the Supreme Court of the NWT

The Plaintiffs submitted their statement to the Supreme Court of the NWT on October 9, 2001. On

January 17, 2002, the Attorney General of Canada (AGC) submitted their defence and cross-claim.

The Territorial Defendants submitted their defence on February 28, 2002.

The examinations for discovery took place in June, July and September 2003. During the sessions,

the attorney for the Plaintiffs invited the attorney for the Defendants to ask supplementary questions

regarding other allegations of breaches committed by the GNWT. The attorney for the Defendants

declined this invitation, while pointing out that the Plaintiffs would have to amend their statement in

order to add the allegations in question if they intended to plead them during the action that had

been initiated. This is what the Defendants did around August 15, 2003. On October 10, 2003, the

Territorial Defendants indicated that they would not consent to some of these amendments, which

they described as “too vague and imprecise”. By a notice of motion dated October 14, 2003, the

Plaintiffs asked the Court to authorize the proposed amendments and to order that the costs arising

from resuming the examinations for discovery be assumed by the Territorial Defendants. The

Territorial Defendants argued that the Plaintiffs could have used the previous examinations for

discovery to ask questions regarding the allegations in question.

In a letter dated November 11, 2003 addressed to Justice Foisy, management judge for the trial, the

attorneys for the Territorial Defendants indicated that the proposed amendment still lacked details.

By an order dated December 17, 2003, Justice Foisy nevertheless authorized the amendment,

without deleting some allegations that the Territorial Defendants deemed to be “too vague and

imprecise”. The Justice noted that, to the extent that some of the allegations lacked specificity, the

resumption of the examinations for discovery would allow the Territorial Defendants to determine

2

their specific nature. The Justice refused to require the Territorial Defendants to assume the costs

of the resumption of the examinations for discovery, deeming that their position was not

unreasonable. The additional examinations for discovery concerning the new allegations followed

and the Territorial Defendants submitted their amended defence on September 14, 2004.

During a preparatory conference held during September 2004 before Justice Veit, the attorneys for

the Territorial Defendants flagged their intention to request a more detailed and specific disclosure

of the allegations appearing in the amended statement. A notice of their application to that effect

was served on the Plaintiffs December 7, 2004. On February 25, 2005, the Plaintiffs served a

response to this application notice.

On March 9, 2005, the Plaintiffs applied for an order to remit the matter to trial to Justice Veit. The

Territorial Defendants indicated that the matter could not be tried before September 2005. On

March 14, 2005, Justice Veit issued an order setting the trial date for September 2005. The order

provided for a 30-day hearing and reserved to the Territorial Defendants the possibility of submitting

an application for additional clarifications.

On March 29, 2005, I presided over a preparatory conference. I then set April 14, 2005 for the

hearing on the application for additional clarifications submitted by the Territorial Defendants. I also

set April 14, 2005 as the final date for the submission of any objection to the documentary evidence

proposed by the Official Languages Commissioner for Canada (the “OLC for Canada”) and for the

disclosure of the parties’ lists of witnesses. I ordered the parties to serve to each of the other

parties, a list of the documents that they intend to present as evidence during the trial, as well as

their position on the “admissibility, the authenticity and the makeup” of the documents, as well as

on the veracity or the accuracy of their content. The Plaintiffs should serve their list of documents

before May 16, 2005; the Defendants, before June 15, 2005. The Defendants had to indicate their

position regarding their position on the Plaintiffs documents before June 15, 2005 and the Plaintiffs

had to indicate their position regarding the Defendants’ documents before June 30, 2005. The

Territorial Defendants must serve the affidavits that they wish to submit as evidence in the trial

before June 15, 2005.

On April 14, 2005, one of the Defendants, the AGC, applied for an order requiring the parties to

provide, to each of the other parties, the identity of each witness whom they intended to call during

the trial and, for each of these witnesses, a summary of the expected testimony for each witness.

Presented in accordance with Rule 326 of the Rules of the Supreme Court of the Northwest

Territories, R-010-96, this application was aimed at setting the schedule for the trial to allow the

parties to prepare their evidentiary elements and to determine which witnesses they would present

in response to the witnesses for the other parties. The AGC asked that the deadline provided for in

the Rules at this stage be shortened.

Presenting an application to obtain additional and more specific details, the Territorial Defendants

argued that the Plaintiffs response to their request for greater details: (i) did not allow the Territorial

Defendants to know the nature of the precise allegations to which they had to respond; (ii) did not

ensure that the Territorial Defendants would not be taken by surprise during the trial; (iii) did not

allow the Territorial Defendants to know which evidentiary elements they should have to provide for

in order to respond to the Plaintiffs’ allegations; (iv) did not facilitate the proper conduct of the trial.

3

The Territorial Defendants argued that the amended statement did not limit itself to specific

allegations and set out numerous judicial conclusions and global or general allegations. They also

noted that the amended statement puts in issue some administrative and legislative modalities that

the Territorial Defendants had adopted to meet their obligations in the area of language rights. In

particular, the Territorial Defendants opposed the allegations to the effect that the implementation

of language obligations was totally incomplete in the NWT and that the level of French language

services offered by the GNWT was very low. They also opposed the allegations to the effect that no

regulations had been promulgated to implement the Official Languages Act R.S.N.W.T. 1988, c. O-1

(the “Official Languages Act of the NWT”) that the Official Languages Policy and the Official

Languages Guidelines (the “OLG”) are unconstitutional because they are less demanding than the

Canadian Charter of Rights and Freedoms and the NWT OLA by resorting to “designated regions”

and the development of criteria governing the translation of unidentified forms and public

documents are incompatible with the obligations of the Territorial Defendants and that the OLG

must bind more organizations, without the organizations in question being identified.

In their February 24, 2005 response to the request for greater details, the Plaintiffs argued that they

were not obligated to disclose the evidence that they would be presenting at the trial.

According to the Plaintiffs, the allegations demonstrate a systemic problem caused by the partial and

haphazard implementation of language obligations of the NWT. They state that the specific

allegations are presented to demonstrate a particular breach requiring a specific remedy, as well as

to illustrate the systemic problem. In their opinion, the Territorial Defendants had deliberately

adopted a very narrow approach to the series of examinations, despite an invitation to ask more

questions. According to the Plaintiffs, they must establish a prima facie case and then it is up to the

Territorial Defendants to demonstrate that the OLG meets the requirements of the Official

Languages Act of the NWT and of the Charter. They argued that Defendants are merely trying to

discover what the Plaintiffs’ evidence is. The Plaintiffs say that it is impossible for them to provide

an exhaustive list of the incidents where the GNWT failed to meet its obligations. Moreover, several

of the elements being sought (for example, a list of documents intended for the public, some of

which were translated into French) would only be known to the Territorial Defendants.

On April 14, 2005, I ordered that the specific allegations relating to the documents served between

the parties be identified and I set the deadlines as June 15, 2005 for Defendants and June 30, 2005

for the Plaintiffs for the conveying of objections regarding the admissibility of the documents from

the opposing parties. The order also provided that the serving between parties of the lists of

witnesses and the summaries of the testimonies had to be carried out before May 31, 2005 by the

Plaintiffs and before June 21, 2005 for the Defendants. It also set that the serving of notices of

amendments to the list of the Plaintiffs’ witnesses had to take place before June 30, 2005. With the

consent of the Territorial Defendants, the order suspended their motion to obtain more details with

greater specifications but the order granted the Territorial Defendants until June 21, 2005 to

indicate whether the Plaintiffs’ list of witnesses and the summaries provided sufficient clarifications

to the amended statement. The order also made provision that, if a notice of motion for particulars

were presented, it would be heard during the preparatory conference scheduled for July 11, 2005.

On May 16, 2005, the Plaintiffs disclosed their list of documents and on May 31, 2005, they

4

disclosed their list of witnesses, their summaries of their testimonies and the duration of their

evidence in chief.

The Territorial Defendants expressed their dissatisfaction about the Plaintiffs’ list and summaries.

On July 11, 2005, they asked the Court to strike any allegation of a general nature and to limit the

issues to be litigated to specific allegations identified in the amended statement. Regarding this, the

Territorial Defendants argued that a trial is not a commission of inquiry and that many of the

Plaintiffs’ allegations of a general nature could not be the subject of a trial. The function of the

Court, they said, is to settle issues of fact and of specific laws, based on one or more allegations of

specific and defined breaches. However, according to the Territorial Defendants, the Plaintiffs

intend to argue numerous allegations of incidents that were neither identified nor pleaded in the

amended statement and which relate to individuals who are not plaintiffs, who had been subject to

examinations for discovery and about whom no documentation had been either identified or

exchanged between the parties.

The Plaintiffs responded that the specific allegations in the amended statement related to almost all

areas of activity of the GNWT and of the Government of Canada as far as services and

communications in French in the NWT are concerned, that it has always been this way and that the

GNWT has been aware of this fact since the start of this case. According to the Plaintiffs, it is

normal that individuals other than the parties called upon to testify during a trial, with a party

having the right to engage in examinations for discovery and without a prior exchange of

documents.

For her behalf, the OLC of Canada has stated that it would be up to the Court to determine if the

evidence presented during the trial is sufficient to establish the precise and particular responsibilities

of each government to justify the granting of damages. If allegations of facts were struck at this

stage of the suit, the Plaintiffs could not present an overall picture of the situation they were

evoking. The Intervener noted that the Court enjoys a very broad general jurisdiction. In her

opinion, each breach of the Act realised by the Plaintiffs constitutes a cause of action in and of itself

pursuant to Section 32 of the NWT OLA. All these causes of action have a common element and

raise the same fundamental issue: the scope of the language obligations of the governments of the

NWT and of Canada. Out of concern for saving time and resources, these causes were compiled

and, together, they demonstrate the existence of a systemic problem.

For the reasons outlined in the July 15, 2005 ruling (2005 NWTSC 62), I rejected the application for

the striking or the limiting of the allegations. I ordered that the Plaintiffs provide greater particulars

to the summaries of testimonies already disclosed, no later than July 20, 2005. I set August 15,

2005, as the deadline for the disclosure, by Defendants, of their supplementary list of witnesses and

the summaries of their testimonies.

In a letter dated July 29, 2005, the Territorial Defendants advised the Court that they would not be

in a position to comply with the deadline set in the July 15, 2005 order. They argued that this

inability was due to the incomplete nature of the clarifications and the documents disclosed by the

Plaintiffs.

In a letter to the Court dated August 12, 2005, the Territorial Defendants indicated that they had

5

submitted a notice of appeal of the July 15, 2005 ruling.

The Territorial Defendants submitted an application to the Court of Appeal to obtain a stay of

proceedings until the appeal could be hear. This application was rejected on August 24, 2005:

Fédération Franco-ténoise vs the Attorney General of Canada, [2005] N.W.T.J. No. 99, 2005

NWTCA 6.

In a letter to the Court dated August 26, 2005, the Territorial Defendants requested a hearing for

the following purposes: (i) ask for an adjournment of the trial for at least three weeks, for which the

hearing at been scheduled for September 6, 2005 and (ii) establish a new schedule for the serving

of the documents as required by the July 15, 2005 order. Maître Tassé stated that the Territorial

Defendants could not identify the documents and the witnesses that they intended to present in

response to the some dozen new witnesses that the Plaintiffs intended to call. He maintained that

the evidence offered by these witnesses was not admissible in law since they were not plaintiffs

themselves and they would not be testifying about specific incidents described in the amended

statement. The Territorial Defendants wish to obtain more particulars and more documents, carry

out the examinations for discovery of the witnesses, receive any commitment from the Plaintiffs that

might arise from this process and complete the inquiries with the GNWT regarding these new

allegations.

On August 30, 2005, I heard the application for adjournment and extension of the deadlines set by

the July 15 order. During this hearing, the Territorial Defendants also presented their objections to

the allegations formulated against certain governmental organizations. I denied the application for

adjournment because the Plaintiffs were not seeking remedies on behalf of the witnesses who were

not plaintiffs. I noted that, in March 2005, the Territorial Defendants had indicated to Justice Veit

that they would be ready to start the trial in September 2005, without presenting any other

conditions other than a request for additional particulars. I expressed the opinion that the problems

anticipated by the Defendants could be settled in the framework of the trial itself and, if

adjournments proved to be necessary, the Court would be in a position to grant them during the

trial. I ordered the Territorial Defendants to serve their additional documents, the lists of additional

witnesses and summaries or testimonies no later than September 12, 2005, granting them the

possibility of applying to remit a revised list, if necessary, during the presentation of the Plaintiffs

evidence. I gave the Territorial Defendants until September 2, 2005 to submit their memorandum,

specifying that they could request (as could the other parties) to remit a supplementary

memorandum at the end of the presentation of the evidence. Finally, I deferred to the trial the

objections that Defendants had raised regarding the allegations concerning certain governmental

organizations.

The trial began on September 6, 2005, as scheduled. The Court heard the testimony of 51

witnesses over a 31-day period.

At the very beginning of the trial, the Federal Defendant and the Territorial Defendants submitted

two notices of motion to obtain an order authorizing them to amend their respective defences to

include a defence of limitation of action. They argued that the question of limitation was not

realised by the alleged particular cases in the amended statement; in their opinion, limitations was

relevant to the allegations of systemic problems as well as the method used for quantifying the

6

damages used in the Plaintiffs memorandum. I authorized the Defendants to amend their defences

(2005 NWTSC 108).

The Territorial Defendants also raised an objection to the questions put to their witnesses regarding

French-language services offered by the city of Yellowknife. According to the Territorial Defendants,

municipalities were not mentioned in the amended statement at any time and they did not

correspond to the “institutions” of the GNWT mentioned therein. In a decision rendered on

September 12, 2005 (2005 NWTSC 106), I determined that the questions and the arguments

regarding services offered by the municipalities were not relevant to the litigation.

The Territorial Defendants also objected to questions dealing with the language of work in the NWT

public service. I accepted the Defendants’ objection as no allegation had been made in the

amended statement regarding services offered by the GNWT to its employees and because the issue

had taken the Defendants by surprise.

On October 7, 2005, I rendered a decision concerning an application for a late intervention by the

Workers’ Compensation Board of the NWT (2005 NWTSC 85). I rejected the application for an

intervention for the reason that the Court was not beginning ask nor was required to rule, in this

case, on specific conclusions regarding agencies, commissions and boards and for the reason that

the Plaintiffs were not seeking remedies from these organizations.

The Territorial Defendants presented only one application for an adjournment during the trial in

order to prepare the cross-examination of Ms. Rémillard, a witness for the Plaintiffs. This application

was accepted. During the cross-examination of the Territorial Defendants second witness,

Mr. Stewart, the attorney for the Territorial Defendants objection to the questions asked of this

witness regarding the state of French-language services in the Department of Finance’s Office of

Statistics. This objection argued that these services were not the subject of a specific allegation in

the amended statement. I decided that the Plaintiffs’ attorney had the right to pursue the

questioning but under two conditions: an allegation relevant to the subject addressed by the

questions had to appear in the amended statement and be raised in the Plaintiffs’ evidence and the

witness had to be the person responsible for the implementation, in his/her office, of the obligations

arising from the NWT OLA. I granted an adjournment to the Territorial Defendants in relation to the

cross-examination of Mr. Stewart, their witness, to allow them to prepare Mr. Stewart to reply to the

questions authorized by the foregoing criteria.

Except for the situations I just described, the trial proceeded without incident.

B.

The arguments

The Territorial Defendants continued to argue that the general and global allegations in the

amended statement are not justiciable and that the evidence that does not related to the individual

plaintiff’s particular allegations should be excluded.

The Territorial Defendants argue that, under the approach of the NWT OLA and the Charter, the

jurisdiction of the Supreme Court of the NWT is limited to determining whether, in the specific cases

detailed in the amended statement, there has been a specific breach of the Defendants’ legislative

7

or constitutional obligations. In their opinion, the amended statement must detail any allegation of

a breach of the legislative or constitutional provisions that is likely to be the subject of a trial before

a court of law and the persons who are alleging that they have been harmed must be named as

parties to the matter as plaintiffs. The Territorial Defendants based their argument on the wording

of ss. 24(1) of the Charter and 32(1) of the NWT OLA, which read as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been

infringed or denied may apply to a court of competent jurisdiction to obtain such

remedy as the court considers appropriate and just in the circumstances.

32. (1) Anyone whose rights under this Act or the regulations have been infringed or

denied may apply to a court of competent jurisdiction to obtain a remedy that the

court considers appropriate and just in the circumstances.

The Territorial Defendants state that, because of ss. 24(1) of the Charter, the infringement or the

denial of a right is a prerequisite for a judicial remedy pursuant to ss. 32 (1). It follows that the

infringement or the denial being reproached must be specifically pleaded: Operation Dismantle v.

The Queen [1985] 1 S.C.R. 441 on p. 481.

Moreover, Defendants argued that our adversarial system is based on the possibility that a

defendant be made aware of the nature of the allegations made against him and, regarding these,

present a full and complete defence against them. To that end, the system provides certain

fundamental mechanisms: the submission and the serving of pleadings, the exchange of lists of

relevant documents, the production of these documents and examinations for discovery. According

to the Territorial Defendants, it is not enough to make general descriptions of allegations and to

elaborate on them through the exchange, three months before the trial, by means of lists of

witnesses and summaries of the testimonies; it is the pleadings that define the relevance of the

testimonies, not the other way around. The witnesses and the testimonies do not serve to define

the allegations; they serve to establish the merits or otherwise of the allegations contained in the

statement. Decisions relating to the Charter can not be issued in a factual vacuum. The

presentation of facts is not just a formality; on the contrary, it is essential to the proper examination

of the issues being raised: McKay v. Manitoba, [1989] 2 S.C.R. 357, pp. 361 et 362; Danson v.

Ontario (Attorney General), [1990] 2 S.C.R. 1086, p. 1101; Grier v. Alberta Association of

Optometrists, [1991] A.J. No. 1043 (B.R.); Sibbeston v. Canada (Attorney-General), [1987]

N.W.T.J. No. 128 (C.S.); Fédération franco-ténoise et al. v. the Attorney General of Canada

et al., Justice Foisy’s reasons, November 8, 2002 (S.C. NWT). The Territorial Defendants are basing

themselves on the following rulings regarding the adequacy or otherwise of the briefing dealing with

the jurisdictions of courts of law: Keene v. British Columbia, [2003] B.C.J. No. 2338, pp. 17, 22,

26-29 (C.S.); Harris v. Canada, [2004] A.C.F. No. 1304, p. 4 (1^stinst.); Pellikaan v. Canada,

[2002] 4 C.F. 169, s. 13 (1^stinst.); Catellier v. Manitoba, [1986] M.J. No. 599, p. 2 (B.R.);

Dumont v. Canada (1991), 91 D.L.R. (4th) 654 (C.A. Man.).

Thus, according to the Defendants, the evidentiary elements presented to the Court should be

limited to the facts necessary to establish test cases expressly alleged in the amended statement.

For their part, the Plaintiffs state that the allegations expressed in the amended statement touch

8

upon almost all the areas of activity of the GNWT and of the Government of Canada dealing with

French-language services and communications in the NWT. The Plaintiffs refer to their amended

statement, stating that the cases mentioned therein are not isolated cases and the Plaintiffs say that

they want to show that the Defendants are only meeting their language obligations in the NWT in a

completely haphazard manner.

C.

Analysis

Some of the rulings invoked by the Territorial Defendants deal with motions to strike or pre-trial

hearings on points of law. These rulings are not relevant at this stage of the proceedings. This

case also differentiates itself from judgements such as Operation Dismantle, supra, in s. 82,

where no pleadings had detailed the very nature of the alleged infringement and McKay, supra,

where no evidentiary element had been presented to support the complaint. In this case, rather, it

is about allegations to the effect that certain well-recognized rights have been infringed upon and

that the evidentiary elements support these allegations.

I have already mentioned that, according to the Defendants, systemic infringements that taint the

administrative implementation of rights and freedoms are not justiciable. In the judgement Little

Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120, the plaintiffs had alleged that

numerous errors had been committed by the officials and that these errors arose from a systematic

targeting of Little Sisters’ importations in the Vancouver Customs Mail Centre. The trial judge had

noted a high error rate and had concluded that systemic causes were the reason (in s. 6). While

disagreeing with some issues, all the members of the court considered that the act had been applied

in an unconstitutional manner and that the appellants had been targeted. No criticism was made

about the conclusion that the trial judge had reached to that effect. Moreover, the majority

emphasized that the appellants were put in the position of supplicants to the government in a 15-

year crusade to obtain the entry into Canada of expressive material (s. 37).

As far as the means of establishing the existence of a systemic problem is concerned, it is

appropriate to refer to judgements that invoice the Charter. Concerning this, the Supreme Court of

Canada does not advocate limiting matters to facts that are part of the context of the allegations. In

McKay, supra, Justice Cory notes the following, on p. 361:

Charter cases will frequently be concerned with concepts and principles that are of

fundamental importance to Canadian society. Decisions on these issues must be carefully

considered as they will profoundly affect the lives of Canadians and all residents of Canada.

In light of the importance and the impact that these decisions may have in the future, the

courts have every right to expect and indeed to insist upon the careful preparation and

presentation of a factual basis in most Charter cases. The relevant facts put forward may

cover a wide spectrum dealing with scientific, social, economic and political aspects. Often

expert opinion as to the future impact of the impugned legislation and the result of the

possible decisions pertaining to it may be of great assistance to the courts.

(In the same vein, see Danson, supra, s. 30 and 32.)

This is particularly true when the court must settle issues concerning language rights. We should

9

remember that the objective to protect official language minorities will only be achieved when all

members of the minority can exercise independent and individual rights that are justified by the

existence of the community: R. v. Beaulac, [1991] 1 S.C.R. 768, s. 20. In my view, it would be

absurd and expensive for all members or even a large number of members of the community to

become plaintiffs in order to establish the scope of infringement on individuals and, consequently,

on the community.

On the other hand, what the Defendants are asking of the Court is to settle the factual allegations

without noting their context, an approach that would effectively lead to the factual vacuum deplored

in the McKay ruling, supra. The Court has no intention of doing the work of a commission of

inquiry; its role is rather to judge the merits of the factual allegations in the context of all the

evidence. That being said, the Territorial Defendants contend that the Plaintiffs are alleging isolated

cases and even, in some cases, fabricated ones. Unless the allegations are evaluated in their

context, the court runs the risk of misunderstanding the impact of the alleged violations as well as

ordering, if any, inappropriate or ineffective remedies. I am not convinced of the merits of the

restrictive approach advocated by the Defendants in this case.

The background of the above case highlights the framework that the court imposed to avoid the

Defendants being taken by surprise. The amended statement sets out the allegations according to

which there exists a systemic problem. In response to the request for more particulars, the Court

orders the full disclosure of the facts that the Plaintiffs intended to present as evidence. The

summaries of testimonies exchanged between the parties were then used to frame the examination

of the witness during the trial. The Defendants were authorized, during the hearings, to ask for

adjournments to better prepare their responses to the allegations laid out in the summaries of

testimonies. In addition, on several occasions, the Court limited the questions that the Plaintiffs

could ask in certain areas in order to address the Defendants’ concerns. In their final presentation,

the Defendants did not suggest that they would have wanted to have other witnesses testify to

respond to the Plaintiffs’ evidence. In light of all the steps that were taken, it is difficult to imagine

how the Territorial Defendants could have suffered damage that would justify excluding evidentiary

elements.

For the reasons that I have just enumerated, I reject the arguments of the Territorial Defendants to

the effect that the general and global allegations in the amended statement are not justiciable and

that evidence not arising from specific allegations by the individual plaintiffs should be excluded.

III.

The issue of the application of the Charter to the NWT

The Plaintiffs maintain that the GNWT, in its entirety, is an institution of the Parliament or of the

Government of Canada, such that the Territorial Defendants are subject to s. 16 to 20 of the

Charter. The Plaintiffs are seeking, inter alia, a statement to the effect that the Canadian

government is responsible for ensure that the language rights under s. 16 to 20 of the Charter

(para. 59 of the amended statement) are respected. The Plaintiffs argued that the Federal

Government can delegate its powers and responsibilities to another entity, but it cannot abdicate

them. Then, they maintain that any infringement of language rights in the NWT engages the joint

and several liability of the Government of Canada and the Territorial Defendants.

10

According to the Plaintiffs, the rationale behind this judicial recourse is precisely to clarify the

constitutional status of the three territories and to determine who has the ultimate responsibilities as

far as language rights are concerned. They maintain that the Court cannot avoid settling the issue

in terms of the Charter in this litigation, since they are alleging that the Federal Government is

responsible pursuant to the requirements of the Charter. In their opinion, it is probable that the

issues raised in this litigation will be raised again. Regarding this, the Plaintiffs referred to the

following words of P.W. Hogg in Constitutional Law of Canada, loose-leaf edition (Scarborough:

Carswell, 1997), pps. 56-21:

The courts have often articulated counsels of restraint of this kind [to decide cases

on non-constitutional grounds where possible], but they have also frequently

disregarded them. If a constitutional issue has in fact been fully argued on the basis

of an adequate factual record, and if the issue is likely to recur, there is much to be

said for deciding the issue then and there, even if the case could be disposed of on a

non-constitutional or narrower constitutional basis. A decision takes advantage of

argument and evidence that would otherwise be wasted, in the sense that fresh

argument and fresh evidence would be needed in a later case where the issue

recurred. And a decision settles the issue, providing certainty and rendering

relitigation unnecessary. Therefore, in the appropriate case, a court is not to be

faulted for basing its decision on reasons that are more expansive than are strictly

required to give judgment.

For their part, the Territorial Defendants state that they are bound by the NWT OLA and the

obligations that are imposed on them by that Act are difficult to distinguish from those required by

the Charter. In their opinion, only if there were no OLA in the NWT or if the NWT were seeking to

abrogate, that the issue of the application of the Charter would become relevant.

The Territorial Defendants recognize that, by adopting its own act, the Legislative Assembly of the

NWT ensured the same protections and obligations granted by the Charter and the Official

Languages Act, R.S. (1985), s. 31 (4^thsuppl.) of Canada (“OLA of Canada”), and this, because the

purpose of the Act and the fact that it cannot be amended without the consent of the federal

Parliament. Therefore, the resolution of this litigation would not require the Court to determine

whether s. 16 to 20 of the Charter apply to NWT or not. The Territorial Defendants emphasize that

the courts must demonstrate restraint if it is possible to settle litigation on constitutional grounds.

In support of this proposition, they cite the following words from P.W. Hogg, supra, p. 56-21:

A case that is properly before a court may be capable of decision on a non-

constitutional ground or a constitutional ground or both. The course of judicial

restraint is to decide the case on the non-constitutional ground. That way, the

dispute between the litigants is resolved, but the impact of a constitutional decision

on the powers of the legislative or executive branches of government is avoided.

(Along the same lines, see: R.J. Sharpe, “Mootness, Abstract Questions and Alternative Grounds:

Deciding whether to Decide” in Charter Litigation (Toronto: Butterworths, 1987), p. 329; LSUC v.

Skapinker, [1984] 1 S.C.R. 357, p. 383; and Skote-Graham et al. v. The Queen, [1985] 1

S.C.R. 106, pp. 121 and 122.)

11

The AGC recognizes that, as far as the Plaintiffs are concerned, knowing whether or not the Charter

applies is an important concern. That being said, the AGC supports the Territorial Defendants’

arguments. He added that the issue becomes theoretical once the Court will have decided if the

Plaintiffs had to exhaust the internal recourses created by the NWT OLA, determine which

allegations of breaches have been established by the evidence and decide on the appropriate

remedies, taking the circumstances into account, for each of the breaches of the obligations of the

NWT OLA established by the evidence.

After examining the Territorial Defendants’ amended defence, I note that they do not blame their

inability to meet their obligations under the NWT OLA to any problems at the federal level.

Moreover, no counterclaim has been lodged by the Territorial Defendants against the AGC.

According to the Territorial Defendants, their obligations flowing from the NWT OLA must be

analyzed as a function of the “challenges of governance” that they face. The Territorial Defendants

indeed maintained that, in light of the evidence, the Court could ascertain that they could not be

held responsible for the reductions in Federal Government funding but they only made that

argument during the course of the trial.

In my view, before being able to decide if the resolution of this litigation requires the applicability of

the Charter, we must know which allegations of infringements of the Plaintiffs’ language rights have

been established by the evidence, what the source is of the identified infringements and finally,

which entities are responsible for those infringements.

But before addressing that analysis, it is necessary to place the NWT OLA in its historical and

philosophical context, in order to specify the principles applying to the interpretation of that Act and

establish the framework for the analysis of the breaches of that Act raised by the Plaintiffs. In

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, the Supreme Court of

Canada pointed out (on p. 208) that judicial interpretation has a responsibility to reconcile

sometimes divergent priorities and interests and to be sensitive to the future of language

communities. The Court emphasized that the social, demographic and historical context of our

country necessarily constitutes the backdrop of the analysis of language rights and that this analysis

cannot take place in the abstract with no regard for the context of the recognition of those rights

and to the concerns to which their current means of application are supposed to address.

IV.

The interpretation principles applicable to the NWT OLA

A. The historical context of language rights in the NWT

It is a well-known fact that various Aboriginal groups have been occupying the NWT for centuries.

Indeed, the NWT and Nunavut distinguish themselves from Canada’s other provinces and territories

by the presence of an Aboriginal majority (62% in 1991 in the NWT _ FFT, doc. No. 198) who speak

various Aboriginal languages. Even in 1991, 8.7% of the population of the NWT indicated that they

neither spoke nor understood English or French (FFT, doc. No. 198, p. 10).

Francophones have been present in the NWT since 1784 (FFT, doc. No. 113), and they participated

significantly to their development. Before the NWT became a distinctive entity, there existed a

12

rudimentary and unofficial bilingualism: C.-A. Sheppard, The Law of Languages in Canada; Study

No. 10 by the Royal Commission on Bilingualism and Biculturalism (Ottawa: Information Canada,

1971), on p. 82.

At the time of Canada’s creation in 1867, s. 133 of the Constitution Act of 1867 established a regime

of legislative and judicial bilingualism:

133. Either the English or the French language may be used by any person in the

debates of the houses of the Parliament of Canada and of the Houses of the

Legislature of Quebec; and both those languages shall be used in the respective

records and journals of those houses; and either of those languages may be used by

any person or in any pleading or process in or issuing from any court of Canada

established under this Act, and in or from all or any of the courts of Quebec.

Acts of the Parliament of Canada and of the Québec Legislature must be printed and published in

both languages.

Section 146 of this same Act provides for the admission of the NWT to Canada.

In 1868, the British Parliament adopted the Rupert’s Land Act, 1868 (U.K.), 31-32 Vict., s. 105 to

authorize Canada to acquire the rights of the Hudson’s Bay Company to Rupert’s Land and to the

NWT.

In 1869, the adoption of an Act for the temporary government of Rupert's Land and the North-

Western Territory when united with Canada (1869), 32-33 Vict., ch. 3 (Canada), S.C. 1869, ch. 3,

establishing the first form of government.

Manitoba was created in May 1870 from these territories by the Manitoba Act, 1870, 33 Vict., s. 3

(Canada). Section 23 of that act formally recognized French and English as Official Languages:

23. Either the English or the French language may be used by any person in the

debates of the Houses of the Legislature and both those languages shall be used in

the respective Records and Journals of those Houses; and either of those languages

may be used by any person, or in any Pleading or Process, in or issuing from any

Court of Canada established under the Constitution Act, 1867, or in or from all or any

of the Courts of the Province, The Acts of the Legislature shall be Printed and

published in both those languages.

Section 35 of that act provides for the appointment of a Lieutenant Governor:

35. And with respect to such portion of Rupert's Land and the North-Western

Territory, as is not included in the Province of Manitoba, it is hereby enacted, that

the Lieutenant-Governor of the said Province shall be appointed, by Commission

under the Great Seal of Canada, to be the Lieutenant-Governor of the same, under

the name of the North-West Territories, and subject to the provisions of the Act in

the next section mentioned.[An Act for the Temporary Government of Rupert's Land,

13

and the North-Western Territory when united with Canada].

Under the above provisions, the Governments of the NWT and of Manitoba are combined and share

a bilingual administration. The Lieutenant-Governor is located in Winnipeg and he is assisted by a

consulting committee on the Northwest. In 1873, this committee was made up of five Francophone

members. The meetings took place in both languages and the bills were printed in English and

French: see E. Aunger, “The Mystery of the French Language Ordinances: An Investigation into

Official Bilingualism and the Canadian North-West, 1870 to 1895 “ (1998) 13 Canadian Journal of

Law and Society 89 (“Mystery”); “Justifying the End of Official Bilingualism: Canada’s North-West

Assembly and the Dual-Language Question, 1889-1892” (2001) 34 Canadian Journal of Political

Science 451.

The NWT were admitted to the Union in accordance with an imperial decree (Rupert’s Land and

North-Western Territory Order, June 23, 1870, R.S.C. 1970, app. II, n^o9). Pursuant to this decree,

the Parliament has power and authority over all the territories:

It is hereby ordered and declared by Her Majesty, by and with the advice of the Privy

Council [] that the said North-Western Territory shall be admitted into and become

part of the Dominion of Canada upon the terms and conditions set forth in the first

hereinbefore recited Address, and that the Parliament of Canada shall from the day

aforesaid have full power and Authority to legislate for the future welfare and good

government of the said Territory.

Section 2 of the Constitution Act, 1871 (U.K.), 34-35 Vict., s. 28 empowers the parliament to create

new provinces. Section 4 provides for Parliament to establish provisions concerning peace, order

and good government on any territory not at the time being part of a province.

In 1875, the Act for the temporary government of Rupert's Land and the North-Western Territory

when united with Canada was replaced by the Northwest Territories Act, 1875, S.C. 1875, s. 49.

This act ended the joint administration. From that point, the Territories and Manitoba had distinct

Lieutenants-Governor and consultative committees. The Northwest Territories Act, 1875 made no

provision for language guarantees.

The first versions of Section 110 appeared in 1877 in the Act to amend the "North-West

Territories Act, 1875, 1877, 40 Vict., s. 7:

11. Either the English or the French language may be used by any person in the

debates of the said Council, and in the proceedings before the Courts, and both

those languages shall be used in the records and journals of the said Council, and

the ordinances of the said Council shall be printed in both those languages. .

This amendment was presented to the Senate of Canada by Senator Girard of Manitoba. According

to Senator Girard, the adoption of this amendment was desirable because there were as many

Francophones as Anglophones in the NWT. The amendment was poorly received by the Federal

Government, according to whom it was preferable to leave this issue to the local government to

14

determine: see R. v. Mercure, [1988] 1 S.C.R. 234, p. 250.

The 1878 orders from the NWT Council are the first to have been printed for the general public and

they were published in both languages. This practice continued until 1892 (Sheppard, supra, p. 83),

albeit dilatorily (Aunger, “Mystery”, supra).

The 1877 amendment was enacted again in 1880, in s. 94 of the Northwest Territories Act, 1880,

S.C. 1880, s. 25. In 1886, it became s. 110 of c. 50 of the R.S.C.

In 1888, the Federal Government amended the Northwest Territories Act to establish a legislative

assembly made up of 22 elected members and three appointed judicial experts (S.C. 1888, c. 19).

In July 1889, the Honourable D’Alton McCarthy announced his intention to propose the deletion of

the provisions for the use of French as an official language in the Assembly and the courts of the

NWT. This statement provoked a genuine national political crisis (Aunger, “Mystery”, supra). The

proposal became a bill in 1890. As a result of this bill, the Assembly had the power to regulate its

deliberations as well as the modalities applicable to the transcription and the publication of its

proceedings. This bill died on the order paper but a compromise, proposed by Sir John Thompson

during the same year, appeared shortly after in an amendment (1891, 54-55 Vict., c. 22) in s. 110

of the Northwest Territories Act. According to this amendment, the Assembly could still use either

English of French in its debates as well as in cases before the courts of law; both languages would

be used for the drafting of the proceedings and the journals of the Assembly and all ordinances

would be printed in both languages. However, after the next election to the Assembly, the latter

could regulate, by proclamation, its deliberations, the related proceedings as well as the publication

of those proceedings.

In 1892, the Honourable Frederick Haultain proposed that English become the sole official language

of the Acts and the proceedings. His resolution was adopted by the Assembly of the NWT but the

Lieutenant-Governor, the Honourable Joseph Royal, did not sign the order to that effect. French

disappeared from use in the Assembly starting in 1892, but it maintained its official status until

1906.

The Yukon Territory Act (1898), 61 Vict., c. 6, created a separate territory named “Yukon Territory”.

Two new provinces, Alberta and Saskatchewan, were created from the NWT in 1905.

A year later, s. 110 of the Northwest Territories Act was abrogated by a federal act, the Act

respecting the Revised Statutes of Canada, 1906, S.C. 1907, (1907) 6-7 Ed. VII, c. 43.

It seems that, afterwards, the status of French in the NWT was not questioned until 1969, at the

time of the proclamation of the federal legislation on official languages.

In 1963, in light of the independantist sentiment that was manifesting itself in Quebec, the Federal

Government set up the Royal Commission on Bilingualism and Biculturalism (Laurendeau-Dunton) to

study the status of French and English in Canada. In 1969, Parliament adopted the first Official

Languages Act, S.C. 1968-69, c. 54, which declared the equal status of French and English in all the

15

institutions of Parliament and of the Government of Canada. The Royal Commission completed its

work in 1970. That same year, the federal Office of the Commissioner of Official Languages was

created.

In 1970, Parliament abrogated the Northwest Territories Act by adopting the Northwest Territories

Act, R.S.C. 1970, c. N-22 (“NWTA”). This act does not address the status of French.

In 1974, the Federal Government granted funding to the GNWT (as it did to other Canadian

jurisdictions) so that French-language courses (and Aboriginal-language courses) could be offered in

the schools in the NWT. This funding was provided through Canada-NWT Agreement Protocol –

Education in the language of the minority and education in the second language (1974-1079)

(Progress report – Special Committee for the Review of the NWT OLA, FFT document. No. 146).

The first legal challenge program was launched in 1978. That same year, the Franco-ténoise

community created the Association culturelle franco-ténoise.

On June 20, 1978, Bill C-60 was tabled in the House of Commons. The proposed act was entitled

The Constitutional Amendment Act and it was intended to extend language rights. For example, s.

14 grants the right to participate in the debates and the work of Parliament and of all the provincial

legislatures in French or in English. This is also the spirit underpinning s. 19, which recognizes the

right to communicate in French or in English with federal and provincial organisms. The provinces

opposed this bill and the parties eventually negotiated an agreement under which it is left to each

province to submit itself to the language obligations of s. 16 to 20 of the Charter : B. Pelletier “Les

réticences des provinces face à la reconnaissance de droits constitutionnels relatifs à l’usage des

langues officielles” (1991), 51 R. du B. 247, on p. 263.

In 1979, a legal advisor from the Office of the Commissioner of Official Languages of Canada, Maître

Robert Buchan, and the legal advisors of the Department of Indian Affaires and Northern

Development exchanged letters in which they discussed the OLA of Canada and its applicability to

ordinances from the Territorial legislative assemblies. In a letter dated April 20, 1979, Maître

Buchan expressed the opinion that the Federal Act did indeed apply to Territorial ordinances.

The Constitution Act, 1982, which includes the Canadian Charter of Rights and Freedoms, was

proclaimed on April 17, 1982.

The issue of the status of French in the Territories was raised before Justice Bladon in the matter

St.-Jean v. R., Yuk. C Terr, June 1983, unreported (see the reference made to this ruling in the

ruling on the appeal (1986), 2 Y.R. 116 (C.S.)). Justice Bladon refused to dismiss the accusations

because the violation ticket was not written in French.

In a Record of Decision of the Federal Cabinet dated March 20, 1984, a report arising from a

meeting of March 15, 1984 on the status of English and French in the Yukon and in the NWT, the

following measures were announced therein: the tabling, before March 21, 1984 of a Bill (C-26) to

amend the Yukon Act and the NWTA to insert the following provisions equivalent to s. 16 to 20 of

the Charter, the amendment to the OLA of Canada with the objective of subjecting the governments

and assemblies of the Yukon and the NWT to s. 2, 3, 4, 5, 10 and 11 of that Act, imposing on the

16

OLC of Canada a duty to report to the Parliament and to the Territorial Assemblies on issues

affecting the Territorial governments, the establishment of a four-year deadline for the translation of

Territorial ordinances and regulations and a declaration of a clarification to the effect that no

provision of the Yukon Act and of the NWTA forbids the Territorial governments from providing

services in Aboriginal languages and to confer rights and status to such languages (FFT,

doc. n^o187). Bill C-26 states notably that French and English are official languages of the Territories

and have the equal status, rights and privileges as far as their use is concerned in the institutions of

the Territorial Council and government. By this statement, the Federal Government wanted to

eliminate the uncertainty regarding the status of bilingualism in Territories since the St.

Jean matter (see undertaking arising from examination for discovery of Mr. James Moore (for the

AGC)).

Tabled on March 21, 1984, Bill C-26 was not well received in the Territories where it is perceived as

infringing in an area of Territorial jurisdiction. However, the Executive Council of the NWT deemed

it to be an opportunity to promote Aboriginal languages and to obtain additional federal funding: see

“ Official Languages Policy Northwest Territories and Yukon” (AGC, doc. No. 1723). The NWT

wanted the Federal Government to withdraw Bill C-26 where it applied to the NWT. They wished to

replace it with a Territorial act. Pursuant to that Act, French would become an official language and

Aboriginal languages would be granted special status. On May 16, 1984, a Territorial Bill was

tabled.

In view of the GNWT’s opposition to Bill C-26, the Government of Canada entered into an agreement

with the GNWT on June 28, 1984, the very same day as the proclamation of the Official Languages

Ordinance, S.N.W.T., 1984, s. 2 (which became the NWT OLA). As a result of this agreement, the

Government of Canada assumed, year after year, in perpetuity, all the costs related to the provision

of French language services to the public and all the costs relating to the implementation of French

as an official language in the NWT. In addition, the Federal Government consented to allot to the

GNWT, for the time period from 1984 to 1989, an amount of $16 M for the preservation and the

promotion of aboriginal languages. S. 10 of the agreement stipulates that negotiations would start

in 1988-1989 to determine the financial contributions that would be remitted in subsequent years for

aboriginal languages.

The Government of Canada agreed not to have Parliament adopt Bill C-26 before the Legislature of

the NWT adopted its own Act. Also, Bill C-26 would be amended to stipulate that the NWT OLA

could not be amended without the approval of Parliament, and that Parliament would not amend

NWTA or the NWT OLA without prior consultation with the NWT.

The commentary tabled as evidence by the Federal Defendant (AGC, doc. No. 1724), a commentary

that was prepared in the framework of the second reading of Bill C-26, June 29, 1984, attests to the

issues at stake:

The right to deal with the Federal Government in one’s own official language is now

part of the supreme law of the land. It is clearly and irrevocably provided for in the

Constitution. To quote my colleague, the Minister of Transport representing

Winnipeg – Fort Garry: “Language rights are a fact of life in Canada and an essential

part of our federation.”

17

Mr. Axworthy, of course, was addressing the Manitoba issue when he used those

words in this House. But I am sure he will agree with me that his sentiments apply

across Canada and especially in the territories, which are under federal jurisdiction.

Unfortunately, the applicability of the official languages provisions in Sections 16 to

20 of the Canadian Charter of Rights and Freedoms has been brought into question

in the territories. The doubts that this has raised and the possible legal ramifications

are unacceptable to this government. That is why we have these amendments

before us today [...].

Action is required now to avoid protracted litigation over language rights and

uncertainty as to the validity of territorial ordinances and legal procedures taken

hereunder. There must be no doubt about federal policy and I am moving quickly to

establish a clear legal basis for that policy.

As the House is aware, Yukon and Northwest Territories fall under the jurisdiction of

Parliament. This is provided for in the Constitution Acts of 1867 and 1982. Among

other things, these acts give Parliament the authority to make provisions of the

Official Languages Act and the language provisions of the Charter of Rights and

Freedoms apply in territories under its jurisdiction.

We must act upon this authority. In strict legal terms, federal official languages

protection may not apply to the courts and councils of the territories or to territorial

institutions of government. That’s why I am moving to establish that legal basis by

amending the Acts which serve as the constitutions for the territories.

[...]

The territorial governments have been given the opportunity to consider and bring

forward their own ordinances on provision of bilingual services. I am pleased to

inform the House that following intensive discussions with the Government of the

Northwest Territories, a territorial ordinance has been enacted making French an

official language of the N.W.T. [...]

This accomplishes by way of territorial legislation what Bill C-26 was intended to do

by way of federal legislation. Accordingly, since we have accomplished our purpose

in the N.W.T., we see no need to have Bill C-26 apply to that territory, other than to

provide that the territorial languages ordinance cannot be amended or repealed

without the concurrence of the Parliament of Canada.

We also hope to work with the territories to develop feasible schedules for

implementation of bilingual protection and services. Our goals are to preserve the

principle of bilingualism and avoid major disruptions in the process of government.

[...]

18

[...]

I also want to eliminate any misgivings in the territories about the costs of instituting

bilingualism. The Federal Government is prepared to assume all additional costs

associated with introducing bilingualism. This is a matter of national importance, and

the national government must accept financial responsibility for it.

Finally, Mr. Speaker, I would like to address a question that has received much

attention since we announced our plans to bring bilingualism to the territories: that

is the question of whether numbers warrant it. Opponents to the legislation have

used the argument that there simply are not enough Francophones in the territories

to justify the expense of providing French services.

If I may, I would like to quote from a speech made by the Prime Minister in this

House during the debate on the Manitoba resolutions. At that time, Mr. Trudeau

said:

I think it is fundamental to our existence as a people and, indeed, to

our survival as a nation that we say no matter how small the

minority, if they have rights, these rights will be respected.

These words, I believe, sum up the issue of bilingualism in the territories. What is

important is that Francophones have rights... rights which have been earned over

the years... rights which are enshrined in our Constitution.

I call on all Members to ensure that these rights are protected in the laws of Yukon

and the Northwest Territories.

In 1988, Parliament tabled Bill C-72, to amend the OLA of Canada in order to respect sections 16 to

20 of the Charter. Several improvements came into existence. Among those were clauses that deal

with the notion of the “active offer” and which granted paramountcy to OLA of Canada over any

other Act, granting it, for all practical purposes, the status of a quasi-constitutional law. Parliament

also introduced the following provisions: in s. 3, the institutions of the Council and the

administration of the NWT are excluded from the definition of the term “federal institution” and, in s.

7, ordinances issued by the NWT are excluded because of their public and general nature. The Bill

also contained amendments to the NWTA announced in the 1984 agreement. Other than these

amendments, the bill contained s. 43.1 and 43.2, provisions intended to prevent any amendment to

or abrogation of the NWT OLA to which Parliament had not consented did not attenuate enshrined

rights.

In the proceedings of the Legislative Committee on Bill C-72, proceedings dated March 23, 1988

(FFT, doc. No. 233), the Honourable Raymon Hnatyshyn, Minister of Justice, stated the following

(pp. 1:19, 1:20):

The Bill implements the 1984 language agreement reached with the Northwest

Territories. First of all, Section 3 specifically excludes the institutions of the

19

Territorial Council or administration from the definition of federal institution, thus

recognizing the promulgation of the Territorial Ordinance on official languages [...],

and s. 90 stipulates that the Ordinance cannot be amendment so as to reduce the

protection granted to language rights and services with the approval of Parliament,

which would take the form of an amendment to the Northwest Territories Act.

[...]

There is no real alternative to entrenchment. The purpose of this process is to

protect minority rights from unilateral infringements by the majority, be it Parliament

or a Legislature.

[...] In conclusion, the Bill concerning official languages respects the Constitution. It

offers a legislative framework, the components of which are reasonable and

balanced with a view to the future. In this, the Bill properly reflects Canada’s

linguistic reality and the aspirations of those who are part of it. As I stated the other

day when I tabled Bill C-72, I am certain that it will lead to increased equality of

opportunity for all Canadians.

Then, on March 29, 1988, Minister Hnatyshyn made the following statement (p. 4:12):

Certain principles guide us. First of all, the constitutional imperative. The

amendments made to the Constitution in 1982 regarding official languages obligate

us to table Bills demonstrating that we are making a reasonable effort to respect the

constitutional imperative [...].

On August 3, 1990, the Minister of Justice of the NWT, the Honourable Michael Ballantyne, wrote to

the federal Minister of Justice. In that letter, the Minister for the NWT asked the federal minister, in

accordance with the requirements of ss. 43.1, to agree to table a bill intended to amend the NWT

OLA. The proposed amendment with defer the implementation of the NWT OLA from January 1,

1991 to March 31, 1991. The NWT OLA was amended in October. As a result of this amendment,

the requirement to translate the laws into French was postponed until April 1, 1992. All laws in

effect in the NWT were published in French and in English prior to January 1, 1992. In a letter

dated February 7, 1992, the Minister of Justice of the NWT, the Honourable Dennis Patterson,

informed the federal Minister of Justice that “despite the excellent assistance received”, the GNWT

would not be able to meet the requirements of the NWT OLA regarding the publication of

regulations and other subordinate instruments before March 31,1992. the Federal Government

decided that the Territorial laws were at risk and that they must adopt a concordant amendment as

soon as possible (AGC, doc. No. 1733).

In light of this historical overview of language rights in the NWT, it is clear that the NWT OLA is the

result of a delicate political compromise: (i) the NWT OLA was adopted to resolve the uncertainty

surrounding the status of official bilingualism in the NWT; (ii) its background attests to the federal

commitment to promote respect for official language rights throughout the country; (iii) through its

entrenchment, its provisions have been sheltered from unilateral infringements by a majority in the

Assembly; (iv) its adoption as law in the NWT respected the local concerns about the legislative

20

autonomy of the NWT; and (v) the NWT used it as an opportunity to preserve and promote

aboriginal languages through Territorial legislative measures and a federal funding commitment.

B.

The demographic, geographic and social context of the NWT OLA

The Territorial Statistician, David Stewart, stated that the current population of the NWT is 42,957

habitants. He also reported on certain demographic data gathered during the Statistics Canada 2001

census. According to these data, 950 persons (representing 2.5% of the population of the NWT)

declared French to be their mother tongue and, of those individuals, 670 resided in Yellowknife. As

for the population with French as their mother tongue, it remained relatively stable between 1976

and 2001. Moreover, 33.7% of persons with French as their mother tongue speak French “most

often” in their homes. Relatively stable since 1986 (36.0%), this percentage is higher than that

found in the Western Canadian provinces, except for Manitoba (however, and still based on those

same data, not as high as that of the two other territories). Mr. Stewart added that 24.2% of

persons in that category (French as the mother tongue) spoke French regularly in their homes.

Mr. Stewart also noted that the number or persons who knew French in 2001 totalled 3,165 (that is,

8.5% of the population) and that 22.3% of these individuals were younger than 15 years of age.

According to Mr. Stewart, the number of young people able to speak French can be attributed to

immersion programs.

To explain that only a small proportion of the population with French as their mother tongue speak

French most often in the home (33.7%), Mr. Stewart emphasized that the percentage of exogamous

marriages is very high in the NWT. Of the 235 women in the NWT with French as their mother

tongue, 62% had a spouse whose mother tongue was not French. Mr. Stewart pointed out that this

rate was comparable to that of provinces with smaller Francophone populations.

As far as the mobility of the Francophone population is concerned, Mr. Stewart indicated that 33%

of person who indicated French as their mother tongue were not residents of the NWT five years

earlier. This percentage is equivalent to six times the rate noted in most of the provinces. The NWT

is second (after the rate compiled for Nunavut) in terms of the nation. However, under cross-

examination, Mr. M. Stewart stated a comparable rate, but slightly lower (27%), as far as the

migration of population of the NWT with English as their mother tongue.

Daniel Lamoureux, Director-General of the FFT from 1993 to 2003, testified that the rate of

Francophone assimilation exceeds 50%. However, when he was cross-delaminated by the AGC and

confronted with the data compiled by Statistics Canada and presented in the document “Portrait of

the Francophone communities of the Northwest Territories”, Mr. Lamoureux acknowledge that,

between 1971 and 1996, the decline in French as mother tongue was 1.1% in the NWT while it was

1.5% for Canada as a whole and that the decline in French as the language spoken at home was

0.7% in the NWT whereas it was 1.5% for Canada (excluding Quebec, where French is the mother

tongue and the language spoken at home for the majority of the population). According to

Mr. Lamoureux, the mobility of the Francophone population makes it less vulnerable to the forces of

assimilation. He acknowledged that exogamous marriages may be one of the causes of the decline

in the use of the French language in the NWT.

21

Gerald Lewis Voytilla has been the Comptroller-General for the NWT since 1993. He has been the

Secretary to a sub-committee of the Executive Council of the GNWT, the “Financial Management

Board Secretariat” (FMBS), since 1991, and he is the principal advisor to the Government regarding

financial matters. Mr. Voytilla outline the geographic, demographic, social and political challenges

facing the GNWT. According to the Territorial Defendants, an appreciation of these challenges is

essential to the evaluation of their efforts to implement official bilingualism in the NWT since 1984.

Mr. Voytilla noted that the NWT represented one-sixth of the land mass of Canada and that the

population of the NWT lives in difficult climatic conditions and is spread over more than 30

communities, most of them small and isolated. This dispersion of the population requires the

creation of a multiplicity of service centres, including 30 health centres. In such a context,

infrastructure services are underdeveloped. But, that’s not all. Because of the difficult climatic

conditions, the physical maintenance of the installations associated with the infrastructure services

represents a major challenge. When qualified personnel need to be hired to provide governmental

services in the various communities, the recruitment of such personnel is fraught with particular

difficulties, given the distance, the isolation and the climate. Concerned about maintaining a stable

labour force, the GNWT spends significant amounts in training its employees..

Mr. Voytilla pointed out that the geographic, climatic and demographic situation in the NWT presents

enormous economic challenges. Inter alia, the cost of merchandise and services is higher than

elsewhere in Canada. As for basic commodities such as fuel, they are subject to rapid fluctuations.

The NWT is experiencing some positive economic developments, for instance, the diamond mines,

which are providing 15% of the worldwide production of this stone. Another favourable element is

seven-billion-dollar gas pipeline (currently undergoing public hearings) for the MacKenzie River

delta. On the other hand, the Federal Government currently holds most of the NWT’s natural

resources (the attribution of royalties to the NWT is currently being negotiated) and the GNWT must

expend considerable amounts to organize their exploitation. The construction of a gas pipeline will

require a multitude of additional infrastructure services. Airports and roads will be needed. Some

twenty thousand additional workers will have to be hired, a number that greatly exceeds the

capacity of the NWT’s labour forces. Mr. Voytilla noted that expansion of the population will

increase the incidence of social problems.

Mr. Stewart provided the statistical summary of the social challenges that the GNWT must face: (i) a

rate of about 44% (about 50% in 2004-2005) of secondary school graduates among 18-year olds in

2000-2001, compared to a rate of 76% for Canada; (ii) a rate of infant mortality that is twice that of

the Canadian rate; (iii) a rate of excessive alcohol consumption, teenage births, homes with six or

more individuals and violent crimes that is seven times that of the Canadian rate.

Mr. Voytilla also highlighted another factor that makes the provision of government services even

more complex and difficult: the variety and the dispersion of languages and cultures in the NWT.

The fact that nine Aboriginal languages have official status, the existence and the governing of

seven distinct aboriginal regions and the Aboriginal land claims make it necessary to engage in

significant consultations and joint actions.

Mr. Voytilla noted that the GNWT has adopted a policy of affirmative action towards the Aboriginal

peoples. In his opinion, this policy has a favourable impact on the public service. The latter is at

22

the same time: (i) more effective since it attracts people who are aware of the situation in the

North; (ii) a more equitable composition since, other than in the public service, the NWT offers very

few employment offers to the education segment of the population; and (iii) more economical since

it costs less to pay for labour from the North than to have persons come from the outside and then

train them. Finally, Mr. Voytilla emphasized that in the NWT, the government exercises its power by

consensus and that this means of government inherently creates challenges to governing. The

Members and the standing committees are involved in all levels of decision-making and government

by consensus prolongs the Assembly’s decision-making process.

According to Mr. Voytilla, these various challenges lead to conflicting pressures and, in a situation

where resources are limited, the GNWT has to make choices. This being said, during his cross-

examination, Mr. Voytilla acknowledged that, under the 1984 Canada-NWT Agreement, the Federal

Government has the contractual responsible to fund French-language services and communications

in the NWT. However, he added that this funding provides for “maximums”, that the Federal

Government has not accepted all the requests for funding submitted by the GNWT, that the GNWT

had to absorb some costs for French-language services and that some expenditures related to

French are hard to forecast. However, when it came time to supply examples of supplementary

costs covered by the GNWT, the only case that Mr. Voytilla was able to relate was that of the cost of

the construction of a French school, an expenditure that relates to s. 23 of the Charter and that this

had been provided for in a separate cooperation agreement concluded with the Federal

Government.

The Plaintiffs opposed the admissibility of a particular table prepared by Mr. Stewart’s office. Their

objection dealt with the methodology used to draw up this table. The latter suggested a connection

between language skills and the employment rate. This assertion was based on a census carried

out throughout the NWT in 2004. Mr. Stewart pointed out that: (i) his office has been carrying out

this same study every five years, for the last 20 years; (ii) his office followed the advice of Statistics

Canada regarding the size of the sample surveyed (over 9,000 individuals 15 years of age and over);

(iii) his office used a “mixed” methodology approved by Statistics Canada for censuses in the NWT

– the communications regarding the census were carried out by means of random telephone calls in

the larger communities while, in the smaller communities, these communications were done by

means of personal interviews carried out with between 500 to 600 respondents. Even if the sample

is less representative where the larger communities are concerned (where, among those 15 years

and old, about 1 resident in 13 was enumerated) than in the smaller communities (where the

enumeration is almost total, I note that no evidence was submitted to contradict these figures and

that, according to the evidence, Statistics Canada used the results of similar censuses in the past, a

factor that tends to establish the reliability of the methodology that was uses. For these reasons, I

have concluded that the results of the census in question are admissible as evidence.

These results show that, among the 2,700 person enumerated who were at ease using French

conversationally and whose ages were between 18 and 64, 2,352 were employed and 59 (or 2.5%)

were unemployed. Mr. Stewart remarked that, in the context of a normal economy, bearing in

mind migration and job changes, an unemployment rate of 5% represented full employment. On

the hand, he continued, the rate of unemployment among the aboriginal population enumerated

was 20.6% (or 1.868 persons). The preceding table allows us to conclude that, in the NWT, there is

an imbalance between French-seeking parsons and Aboriginals as far as the unemployment rate is

23

concerned.

C.

The philosophical and legal context of the NWT OLA

In R. v. Beaulac, supra, the Supreme Court of Canada examined the scope of s. 530 of the

Criminal Code, which provides for a trial to be held before a judge and jury who speak the official

language of the accused (or both official languages). Justice Bastarache, speaking for the majority,

remarked (p. 14) that the power to make laws regarding the use of official languages is not formally

inscribed in ss. 91 and 92 of the Constitution Act, 1867. Rather, it is a power that is ancillary to the

exercise of the legislative authority of the Parliament or of the provincial legislatures in areas

assigned to them.

Justice Bastarache noted (p. 15) that, when it examined the guarantees under s. 133, the Court

adopted, from the beginning, a liberal and purposive interpretation of language rights. Regarding

this, the judge cited the following rulings: Jones v. Attorney General of New Brunswick, [1975]

2 S.C.R. 182; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1);

Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2 ), and the

Reference re Manitoba language rights, [1985] 1 S.C.R. 721. However, in 1986, three rulings

dealing with language rights before the courts seemed to approve a more restrictive approach,

favouring the legislative process and presenting it as an appropriate way of promoting the equality

of the official languages: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Société des

Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education,

[1986] 1 S.C.R. 549; et Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449.

Justice Bastarache cites (p. 16) certain passages of Chief Justice Dickson’s reasons in Société des

Acadiens. In dissent on the constitutional question, Justice Dickson quoted his own comments in

Reference re Manitoba language rights (page 744) regarding the importance of language

rights:

Section 23 of the Manitoba Act, 1870 is a specific manifestation of the general right

of Franco-Manitobans to use their own language. 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.

In Beaulac, supra, Justice Bastarache noted (p. 17) that, immediately after those three rulings, the

Court seemed to depart from its restrictive position and reaffirmed the importance of language

rights as supporting official language communities and their culture. Concerning this, the judge

cited the following rulings: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Mahe v.

Alberta, [1990] 1 S.C.R. 342; le Reference re Manitoba language rights, [1992] 1 S.C.R. 212;

and the Reference re Public Schools Act (Man.), ss. 79(3), (4) et (7), [1993] 1 S.C.R. 839.

In Mahe, Chief Justice Dickson expressed the reasoning of a unanimous court. On pp. 362 to 364

24

of these reasons, his words are in harmony with the notion of s. 23 of the Charter when he stated in

his dissenting reasons on Société des Acadiens, supra :

The general purpose of s. 23 is clear: it is to preserve and promote the two official

languages of Canada, and their respective cultures, by ensuring that each language

flourishes, as far as possible, in provinces where it is not spoken by the majority of the

population. The section aims at achieving this goal by granting minority language

educational rights to minority language parents throughout Canada.

My reference to cultures is significant: it is based on the fact that any broad guarantee of

language rights, especially in the context of education, cannot be separated from a

concern for the culture associated with the language. Language is more than a mere

means of communication, it is part and parcel of the identity and culture of the people

speaking it. […] The cultural importance of language was recognized by this Court in

Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 748-49

[...].

[...]

A further important aspect of the purpose of s. 23 is the role of the section as a

remedial provision. It was designed to remedy an existing problem in Canada, and

hence to alter the status quo.[...]

In my, view the appellants are fully justified in submitting that "history reveals that

s. 23 was designed to correct, on a national scale, the progressive erosion of

minority official language groups and to give effect to the concept of the `equal

partnership' of the two official language groups in the context of education.

[emphasis by Justice Dickson].

Justice Bastarache summarized the effect of these rulings in p. 20 of Beaulac:

These pronouncements are a reflection of the fact that there is no contradiction

between protecting individual liberty and personal dignity and the wider objective of

recognizing the rights of official language communities. The objective of protecting

official language minorities, as set out in s. 2 of the Official Languages Act, is

realized by the possibility for all members of the minority to exercise independent,

individual rights which are justified by the existence of the community. Language

rights are not negative rights, or passive rights; they can only be enjoyed if the

means are provided. This is consistent with the notion favoured in the area of

international law that the freedom to choose is meaningless in the absence of a duty

of the State to take positive steps to implement language guarantees [references

omitted].

In p. 21, Justice Bastarache emphasizes that this interpretative context is important to properly

understand language rights and to determine the scope of s. 530 of the Code. In p. 24, the judge

25

states the following on the subject of “political compromise” to which previous rulings of the Court

had referred:

Though constitutional language rights result from a political compromise, this is not a

characteristic that uniquely applies to such rights. A. Riddell, in "À la recherche du temps

perdu: la Cour suprême et l'interprétation des droits linguistiques constitutionnels dans les

années 80" (1988), 29 C. de D. 829, at p. 846, underlines that a political compromise also

led to the adoption of ss. 7 and 15 of the Charter and argues, at p. 848, that there is no

basis in the constitutional history of Canada for holding that any such political compromises

require a restrictive interpretation of constitutional guarantees. I agree that the existence of

a political compromise is without consequence with regard to the scope of language rights.

In 1998, in the Reference concerning Quebec’s succession, [1998] 2 S.C.R. 217, the Court had the

opportunity to make a statement on the fundamental nature of the Canadian Constitution and its

underlying principles. The Court noted that the proclamation of the Constitution Act of 1982

removed the last vestige of British authority over the Canadian Constitution and reaffirmed Canada’s

commitment to the protection of its minority, aboriginal, equality, legal and language rights, and

fundamental freedoms as set out in the Charter.

The Court continued by discussing the four fundamental principles of the Canadian Constitution,

federalism, democracy, constitutionalism and the rule of law, as well as respect for minorities.

According to the Court, these four principles function in symbiosis inspiring and nourishing the

words of the Constitution, of which they are the implicit premises. None of these principles can be

defined in isolation from the others and none of these principles may exclude the application of any

other (p. 49). The Court noted that these principles are invested with a powerful normative force

and may give rise to very abstract and general obligations or to obligations that are more specific

and precise in nature (p. 54).

Regarding the principle of federalism, the Court noted it facilitates the pursuit of collective goals by

cultural and language minorities who make up the majority in a given province (p. 59). Democracy

expresses the sovereign will of the people but it must be considered in the context of other values,

for example, federalism, which means that various and equally legitimate majorities can coexist in

various provinces and territories, as well as at the federal level. The federal system allows different

provinces to implement policies adapted to the concerns and the interests of their population.

However, thanks to the Canadian democratic community, citizens pursue and achieve their goals at

the national level through Federal Government acting within the limits of its jurisdiction (p. 66).

As far as the principle of the protection of minority rights, the Court emphasized “[...] a constitution

may seek to ensure that vulnerable minority groups are endowed with the institutions and rights

necessary to maintain and promote their identities against the assimilative pressures of the majority”

(p. 74). Some constitutional provisions are the result of historical compromises but that does not

mean that they are not based on the broader principle linked to the protection of minorities that is

clearly reflected in the relevant provisions of the Charter (p. 79). The Court noted that the three

other constitutional principles inform the scope and the operation of the specific provisions that

protect the rights of minorities but that the principle of the protection of minorities continues to

influence the application and interpretation of our Constitution (p. 80). The Court noted the

26

protection of minorities was one of the key elements that motivated the adoption of the Charter

(p. 81).

In Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, Justices Major and

Bastarache reiterated, on behalf of the court, the observations in Beaulac regarding school rights.

According to this position, S. 23 of the Charter is intended to remedy, on the national level, the

progressive historical erosion of official language groups and to make these two official language

groups equal partners in the area of education. The provincial governments, for their part, must do

that which is practically possible to maintain and promote teaching in the language of the minority

(pp. 24 et 25). The Justices observed that “ as with other provisions of the Charter, s. 23 has a

redressing function” and that, consequently, it is important to understand the historical and social

context of the situation to be corrected (p. 25).

In Lalonde v. Ontario (Health Services Restructuring Committee) (2001), 56 O.R. (3d) 577,

the Ontario Court of Appeal drew inspiration from the unstated premises of the Constitution and the

principles from Beaulac to interpret the provisions of the French Language Services Act, R.S.O.

1990, s. F.32.

Very recently, in Charlebois v. Saint John (City), [2005] S.C.R. No. 77, the Supreme Court of

Canada pronounced itself on a provision of New Brunswick’s Official Languages Act . Even though

there were four justices who dissented regarding the denial of the appeal, all the members of the

Court acknowledged the principle, expressed in Beaulac, of adopting, in all cases, a liberal and

purposive interpretation of constitutional language guarantees and legislated language rights (p. 23

and 39).

Finally, it is important to quote the Interpretation Act, R.S.N.W.T. 1988, s. I-8, which provides for

the following:

10. Every enactment shall be construed as being remedial and shall be given such fair,

large and liberal construction and interpretation as best ensures the attainment of its

objects.

.

D.

The nature and the interpretation of the current obligations under the

regime of the NWT OLA

In Lalonde, supra, the Ontario Court of Appeal noted (p. 137) that, in the Beaulac ruling, the

approach that governs the interpretation of language rights conferred by ordinary laws is assimilated

under the approach used to interpret constitutional guarantees.

This observation is even truer in the case of laws deemed to be quasi-constitutional for example, the

OLA of Canada, R.S.C. 1985, s. 31 (4^thSuppl.). As Justice Gonthier pointed out for the Court in

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

on p. 786, the OLA of Canada is an important legislative response to the obligation imposed by the

Canadian Constitution concerning bilingualism in Canada. On p. 788, Justice Gonthier approvingly

quotes the following remarks of the Federal Court of Appeal in Canada (Attorney General) v.

Viola, [1991] 1 F.C. 373, on p. 386:

27

The 1988 Official Languages Act is not an ordinary law [] To the extent that it is

the exact expression of the recognition of the official languages endorsed in

paragraphs 16(1) and 16(3) of the Canadian Charter of Rights and Freedoms, it shall

obey the rules of interpretation of that Charter as they have been defined by the

Supreme Court of Canada. To the extent, moreover, where it constitutes an

extension of the rights and guarantees recognized in the Charter, and by its

preamble and by its object defined in its Section 2, by its paramountcy over other

acts established in its paragraph 82(1), it is part of that favoured categories of laws

deemed to be “quasi-constitutional” that express “certain fundamental goals of our

society” and which must be interpreted “in such a way as to promote the general

policy considerations that underlie them”.

[Emphasis mine.]

Nor is the NWT OLA, itself, an ordinary law. Firstly, it is important to point out that the wording of

the language guarantees of s. 16 to 20 of the Charter and that of the equivalent provisions in the

NWT OLA are very similar. The following provisions of the NWT OLA and of the Charter are at issue

in this litigation (the provisions of the NWT OLA are in italics):

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.

[]

(3) Nothing in this Charter limits the authority of Parliament or a legislature to

advance the equality of status or use of English and French.

4. Chipewyan, Cree, English, French, Gwich’in, Inuinnaqtun, Inuktitut, Inuvialuktun,

North Slavey, South Slavey and Tåîchô are the Official Languages of the Northwest

Territories.

5. To the extent and in the manner provided in this Act and any regulations under

this Act, the Official Languages of the Territories have equality of status and equal

rights and privileges as to their use in all government institutions..

13. Nothing in this Part shall be construed as preventing the Commissioner, the

Legislative Assembly or the Government of the Northwest Territories from granting

rights in respect of, or providing services in, any Official Language in addition to the

rights and services provided in this Act and the regulations..

17. (1) Everyone has the right to use English or French in any debates and other

proceedings of Parliament.

6. Everyone has the right to use any Official Language in the debates and other

proceedings of the Legislative Assembly..

28

18. (1) The statutes, records and journals of Parliament shall be printed and

published in English and French and both language versions are equally

authoritative.

7(1) Acts of the Legislature and records and journals of the Legislative Assembly

shall be printed and published in English and French and both language versions are

equally authoritative.

19.(1) Either English or French may be used by any person in, or in any pleading in

or process issuing from, any court established by Parliament.

9.(1) Either English or French may be used by any person in, or in any pleading in

or process issuing from, any court established by the Legislature..

[]

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.

11.(1) Any member of the public in the Northwest Territories has the right to

communicate with, and to receive available services from, any head or central office

of a government institution in English or French, and has the same right with respect

to any other office of that institution where:

a) there is a significant demand for communications with and services from the office

in that language; or

b) it is reasonable, given the nature of the office, that communications with and

services from it be available in both English and French.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been

infringed or denied may apply to a court of competent jurisdiction to obtain such

remedy as the court considers appropriate and just in the circumstances..

32.(1) Anyone whose rights under this Act or the regulations have been infringed

or denied may apply to a court of competent jurisdiction to obtain a remedy that the

court considers appropriate and just in the circumstances.

29

Section 43.1 of the NWTA has a somewhat similar effect to that of s. 52(1) of the Constitution Act,

1982 as far as language guarantees are concerned:

52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is

inconsistent with the provisions of the Constitution is, to the extent of the

inconsistency, of no force or effect.

43.1 Subject to section 43.2, the ordinance entitled the Official Languages Act, made

on June 28, 1984 by the Commissioner in Council, as amended on June 26, 1986,

may be amended or repealed by the Commissioner in Council only if the amendment

or repeal is concurred in by Parliament through an amendment to this Act.

Section 8 of the NWT OLA corresponds to s. 12 of the OLA of Canada:

12. All instruments directed to or intended for the notice of the public, purporting to

be made or issued by or under the authority of a federal institution, shall be made or

issued in both official languages.

8. Subject to this Act, all instruments in writing directed to or intended for the notice

of the public, purporting to be made or issued by or under the authority of the

Legislature or Government of the Northwest Territories or any judicial, quasi-judicial

or administrative body or Crown corporation established by or under an Act, shall be

promulgated in English and French and in such other Official Languages as may be

prescribed by regulation..

Upon reading the above-cited provisions of the NWT OLA and of the NWTA, it is clear that they

represent a legislative response to the Charter initiative aimed at promoting and protecting both

official languages throughout Canada.

As with the provisions of other quasi-constitutional laws (for example, the OLA of Canada), the

preamble of the NWT OLA expresses” certain fundamental objectives of our society” (Justice La

Forest comments in the ruling Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84,

p. 89 and reiterated in Viola, supra). This preamble reads in part as follows:

[...] desiring to establish English and French as Official Languages of the Northwest

Territories having equality of status and equal rights and privileges as Official

Languages;

believing that the legal protection of languages will assist in preserving the culture

of the people as expressed through their language;

desiring that all linguistic groups in the Northwest Territories should, without regard

to their first language learned, have equal opportunities to obtain employment and

participate in the institutions of the Legislative Assembly and Government of the

Northwest Territories, with due regard to the principle of selection of personnel

30

according to merit;

believing that preserving the use of Official Languages, and enhancing those

languages, is a shared responsibility of language communities, the Legislative

Assembly and the Government of the Northwest Territories; [...]

The same applies to its purpose, defined notably in s. 5 and 6.

The primacy of the NWTA over the other NWT acts is clearly established under ss. 43.1, supra.

Indeed, when the federal principal adopted ss. 43.1 of the NWTA, they entrenched a regime of

obligatory bilingualism in the NWT. Moreover, by committing itself to assume, in perpetuity, all the

costs associated with the provision of governmental services in French, by means of a funding

agreement, the Federal Government demonstrated its intention to solidly anchor a regime of official

bilingualism in the NWT.

Thus, in view of the similarity of these provisions and the corresponding provisions of the Charter, in

view of the entrenchment through the NWTA and in view of the fundamental nature of the language

rights it protects, the NWT OLA is part of that privileged category of laws said to be quasi-

constitutional, laws that must be interpreted in a manner to promote the considerations of general

policies that underlie them. I am of the opinion that the NWT OLA must be interpreted to recognize:

(i) the underlying principles of the Constitution, in particular federalism and the protection of

minorities; (ii) its redressive object, in the light of the historic context of institutional unilingualism

that persisted in the NWT for over seventy years and in light of the federal bilingualism program at

the national level reflects all the language provisions of the Charter, and (iii) the provision in p. 25 of

the Beaulac ruling stating that language rights be “[...] in all cases interpreted purposively, in a

manner consistent with the preservation and development of official language communities in

Canada[...]” and in light of the importance of language rights “[...] a fundamental tool for the

preservation and protection of official language communities where they do apply” [emphasis by

Justice Bastarache].

Such an interpretation concerns “language security”. As Justice Bastarache noted in “L’égalité

réelle des communautés de langue officielle du Canada [True Equality of Official Language

Communities in Canada], an address that he gave at the annual convention of the Association of

French Speaking Jurists of Ontario in Paris, on July 1, 2005, and which was submitted to the Court

by the Territorial Defendants:

When one is overly tempted to measure the scope of rights as a function of the

number of speakers who are claiming them, one is concurrently distancing oneself

from the idea of collective rights and language security. Inevitably, one returns [to]

a notion of the greater interest of the majority and the evaluation of rights using a

cost-benefit analysis. This is doubtless natural but we must recognize that this is

often interpreted by the minority as a form of coercion.

According to the COL for Canada, an Intervener, language rights impose on institutions that

are subject to them the need to achieve a specific result: true equality of status and of use

of the language in question. Indeed, governmental obligations regarding official languages

31

constitute “obligations of result”, a concept by which the principal must obtain a precise and

determined result, without which he will not have met his obligation. The obligation of

result differs from the “obligation of means”, which is only an obligation to use the means

that are normally likely to produce a particular result. In such a case, the principal is not

held to achieving the result in question. The duty arising from the obligation of means is

less intent and less stringent than that of the duty arising from the obligation of result: see

P.A. Crépeau, L’intensité de l’obligation juridique ou des obligations de diligence, de résultat

et de garantie (Cowansville : Éditions Yvon Blais, 1989), pp. 4-5 and 11; Roberge v.

Bolduc, [1991] 1 S.C.R. 374, p. 396.

The OLC of Canada also pointed out that, when subject to an obligation of means, the principal is

essentially committing to practicing the due diligence that any reasonable person would practice (the

concept of the “reasonable man”); the principal is judged based on the efforts made to achieve the

result and not the actual achievement of the result. On the other hand, in the case of obligation of

result, the principal is held to a specific result and only the failure to achieve that result places the

principal in default, regardless of the efforts he may have made to achieve it: J. Bellissent,

Contribution à l’analyse of the distinction des obligations de moyens et des obligations of result: à

propos de l’évolution des ordres de responsabilité civile (Paris : LGDG, 2001), pp. 12 and 13.

In p. 22 and 24 of Beaulac, Justice Bastarache states, where language is concerned, true equality

is the applicable standard in Canadian law. According to the Justice, the principle of true equality

“ [...] provides in particular that language rights that are institutionally based require government

action for their implementation and therefore create obligations for the State; [...]. It also means

that the exercise of language rights must not be considered exceptional, or as something in the

nature of a request for an accommodation”.

The OLC of Canada referred to the ruling in Thibodeau v. Air Canada, [2005] A.C.F. No. 1395 (1^st

inst.). She noted that, in that case, Air Canada had invoked the maxim “what cannot be helped must

be endured” to justify that, at the time of the alleged incident, they did not have enough bilingual

personnel to meet its linguistic obligations. Air Canada argued that this situation had occurred

despite its efforts (which it described as “reasonable”) which it deployed to offer language training

to its employees.

As far as the obligations or means and result are concerned, Justice Beaudry (in p. 33 to 35 of

Thibodeau) adhered to the definitions adopted by a Messrs. Crépeau et Bellissent. The Justice

referred to Quigley v. Canada (House of Commons), [2003] 1 F.C. 132 (1^stinst.), that dealt

with s. 25 of the OLA of Canada. The judge noted (in s. 41) that in this matter, the Federal Court

had deemed that there was an obligation of result, for the House of Commons, in s. 25, when it

concluded that the House had failed in its obligation by failing to ensure that the debates be offered

in both official languages.

Justice Beaudry acknowledged (in p. 46) that the quasi-constitutional nature of the OLA of Canada

“appears to be undeniable” and that this Act must be granted a broad and liberal interpretation.

Section 2 of the OLA of Canada confirms the principle of true equality enunciated in Beaulac, a

principle that requires governmental measures for the implementation of language rights and which

creates positive obligations for the State. Being of the opinion that the rights arising from the OLA

32

of Canada “are deemed to be part of a constitutional guarantee: and that Air Canada’s obligations

under the Air Canada Public Participation Act (the “ACPPA”) is an obligation arising from Part IV of

the OLA of Canada, Justice Beaudry concluded (p. 48) that Air Canada’s obligation under the regime

of p. 10(2) of the ACPPA is an obligation of result.

The OLC of Canada reiterate these comments to affirm that the obligations arising from the NWT

OLA are obligations of result and that the actions of the Territorial Defendants must meet the

requirements of true equality. As the obligations in question are obligations of result and as they

have a quasi-constitutional nature, the various “challenges of governance” raised by the Territorial

Defendants do not justify a less stringent interpretation as far as they are concerned.

For their part, the Territorial Defendants submit that the “true equality” evoked in Beaulac must be

distinguished from “perfect equality” or from “absolute equality”. As an example, the Territorial

Defendants referred to the right to communicate with the head office of government institutions in

one or other of the official languages, a right provided for under ss. 11(1) of the NWT OLA. They

maintain that this right does not force the GNWT to ensure that any official likely to be reached by

an individual must be, at any time, immediately and with no regard to the attendant costs, be in a

position to provide the service in question, in both official languages, perfectly equally.

According to the Territorial Defendants, public authorities are responsible for the means by which

they will satisfy the obligations imposed on them by the NWT OLA. They say that this responsibility

is accompanied by discretionary powers as to how they are going to meet them. In support of this

statement, the Territorial Defendants referred to Mahe, supra, on p. 376, where there is an issue of

requirements imposed by the courts regarding minority education:

It is not possible to give an exact description of what is required in every case in

order to ensure that the minority language group has control over those aspects of

minority language education which pertain to or have an effect upon minority

language and culture. Imposing a specific form of educational system in the

multitude of different circumstances which exist across Canada would be unrealistic

and self-defeating. [...] It is up to the public authorities to satisfy these general

requirements. Where there are alternative ways of satisfying the requirements, the

public authorities may choose the means of fulfilling their duties.

The Territorial Defendants also pointed out the reasons offered by Justices McLachlin and Iacobucci,

on behalf of the majority of the Supreme Court of Canada, in the matter of R. v. Mills, [1999] 3

S.C.R. 668, p. 712 :

Courts do not hold a monopoly on the protection and promotion of rights and

freedoms; Parliament also plays a role in this regard and is often able to act as a

significant ally for vulnerable groups. [...] If constitutional democracy is meant to

ensure that due regard is given to the voices of those vulnerable to being overlooked

by the majority, then this court has an obligation to consider respectfully

Parliament's attempt to respond to such voices.

According to the Territorial Defendants, the standard imposed on them in terms of the provision of

33

French-language services and communications is that of good faith and reasonableness. They state

that this standard leaves room for a certain degree of discretion. When they chose the means to

meet their obligations in the area of language rights, they must take into account the following

factors: the particular situation of the NWT, its demographics, the costs involved, the challenges

presented by the recruitment and retention of staff and the significance of the demand. For

example, they have to make the following choices: create designated bilingual positions or grant

premiums to their bilingual employees; entrust the implementation of the NWT OLA to a centralized

administration or assign this implementation to individual departments; adopt regulations or adopt a

policy and guidelines. The Territorial Defendants refer to the Bastarache Report, a study carried out

by Maître Michel Bastarache (later Justice of the Supreme Court of Canada) commissioned by the

GNWT (with the financial help of the Secretary of State). In their opinion, even though this report

discarded the hypothesis of perfect equality and advocated “reasonable” means of providing service,

there was no question of achieving an identity {sic} between French and English in communications

and the provision of services.

A final argument by the Territorial Defendants relates to the terms “significant demand” and “nature

of the office” in s. 11 of the NWT OLA. In their opinion, these terms, which are not defined, favour

the exercise of discretion as to the measures to be taken to make them operational.

In reply, the Plaintiffs emphasized that they were not challenging the right of the GNWT to choose

the means with which to meet their obligations. However, they do attack the results obtained. In

their opinion, the regime currently in existence in the NWT is one of accommodation and it does not

respect the stipulations in the Beaulac ruling which require the adoption of positive governmental

measures. According to the Plaintiffs, true equality is the assurance that, at each point of service to

the public: an active offer is made for services in French, the time required for providing those

services is similar in both French and English and the documents and forms intended for use by the

public that are available in English should also be available in French.

We should note that it is the NWT OLA that spells out the language guarantees at issue. The NWT

OLA does not contain any provision equivalent to s. 1 of the Charter, and the Defendants, in view of

their position that s. 16 to 20 of the Charter do not apply to the NWT, did not present any argument

regarding the merit of s.1. I agree that the principal has some manoeuvring room when fulfilling

their quasi-constitutional obligations. This principle invoked by the Territorial Defendants was

recently reiterated by Justice Charron, on behalf of the majority on the Supreme Court, in

Charlebois, supra, in p. 15. This being said, the Assembly did pass legislation and it is incumbent

on the Court to determine if the Plaintiffs have been injured in terms of the rights conferred upon

them by the NWT OLA. I have concluded that the language rights guaranteed by the NWT OLA

create obligations of result, within the definition attached to this kind of obligation, without depriving

the Territorial Defendants of the choice of the means to be taken to achieve the prescribed result.

Moreover, I am not of the opinion that true equality is not equivalent to absolute equality. If that

were the case, the Supreme Court, in Beaulac, would have advocated a fully bilingual system of

criminal law for British Columbia.

However, the flexibility regarding the choice of methods is circumscribed by the wording of the

applicable legislative provisions. Thus, s. 7, which concerns official languages of the “Acts of the

Legislature and records and journals of the Legislative Assembly”, seems clear to me. It does not

34

require a “reasonable effort”; it requires a result, that is, bilingualism in the documents issued by

the Assembly. It is the same for the “all instruments in writing directed to or intended for the notice

of the public, purporting to be made or issued by or under the authority of the Legislature or

Government” as stipulated in s. 8.

As for ss. 11(1), it does not mean that each employee at the head office of a governmental

institution must be bilingual. However, this observation does not imply the absence of a

requirement to achieve the result in question – that is, the possibility, for the public, to communicate

with governmental institutions and to obtain service from them in French. The governmental

apparatus merely has the choice of the means it uses to achieve that result.

As the Territorial Defendants have noted, ss. 11(1) attaches conditions – “significant demand” or

“the nature of the office” – to the application of the principle of true equality and these conditions

allow for inequality in some cases. Indeed, the English version of paragraph 11(1)b) includes the

reservation “reasonable” as a criterion of the nature of the office. In light of this observation, it is

clear that, where the act does not explicitly state such a reservation, the guarantees are not reduced

to guarantees of accommodations instituted through reasonable efforts.

Justice Wilson noted in Singh v Minister of Employment and Immigration, [1985] 1 S.C.R.

177, that the guarantees of the Charter would certainly be illusory if it were possible to ignore them

simply for reasons of administrative convenience.

I am, therefore, of the opinion that to show that they have met their obligations under the NWT

OLA, the GNWT cannot simply content itself with saying that they acted “in good faith” or that they

“have taken reasonable steps”. The following factors exclude such a solution : (i) the quasi-

constitutional nature of the language rights guaranteed by the NWT OLA; (ii) the need in all cases

to interpret them as a function of their purpose, in a manner compatible with the maintenance and

the expansion of official language communities of Canada and to redress the wrongs of the past;

(iii) the need, to fully implement these rights, for positives governmental measures to be taken for

their implementation and (iv) the wording of the provisions of the NWT OLA, which emphasizes and

specifies exceptions to the conditions of the principle of equality. For the abovementioned reasons,

I have concluded that the obligation arising from the NWT OLA are obligations of result, and that the

intended result is not perfect or absolute equality but true equality – an equality that the Assembly

has chosen to guarantee by adopting this Act.

As Justice Beaudry noted in Thibodeau, supra, in p. 65:

[...] in terms of evidence, the lack of result creates a presumption of fault and places

on the defendant's shoulders the burden of demonstrating that the failure to perform

derives from a cause that is not attributable to the defendant. The mere fact of

identifying absence of fault is not sufficient to exonerate the defendant from liability.

The defendant must identify, by a preponderance of evidence, the existence of force

majeure, or that the victim prevented the obligation from being performed, failing

which the defendant will be liable for the non-performance.

The allegations of infringements of the NWT OLA must be evaluated in light of the aforementioned

35

principles of interpretation.

In view of the fact that several witnesses referred to reports and consultations carried out since the

proclamation of the NWT OLA, it is appropriate to review the background of the implementation of

this Act to better understand the allegations of specific breaches. This approach also reflects the

order of the presentation of the evidence during the trial.

V.

The implementation of the NWT OLA

A. The Bastarache Report

After concluding the Canada-NWT agreement in 1984, the GNWT asked Maître Bastarache to

prepare a report concerning “ [...] the development of an implementation plan for the application of

the Official Languages Act” [Maître Bastarache, Implementation of the Official Languages Act in the

Northwest Territories, October 1987 (the “Bastarache Report”), p. xxvii]. The author was tasked

with “writing a report defining the legal requirements of the Official Languages Act “and to propose

“policies and guidelines that would allow each department and government organization to set up a

program of services in both official languages” (Summary, p. xxxvii).

Over more than 400 pages, the Bastarache Report analyzed the obligations imposed on the GNWT

by the NWT OLA regarding the legislative process, the judicial system and the public service. In his

examination of the legislative process, the report concluded that there was an obligation to use

French or English “in the debates and other proceedings” and an obligation to use these two

languages in “acts, minutes and journals”. The report proposed that the texts of all public

documents, such as public notices, signs, forms and documents providing information of a general

nature be bilingual.

As far as the judicial system was concerned, the report concluded that the term “court” included

administrative courts exercising quasi-judicial functions and that the right to “use” a language

included the right to use one or other of the official languages, the court having, for its part, the

power to resort to any reasonable means to allow them to understand the parties.

After examining the question of public services, the report noted that the NWT OLA imposes, in

principle, three obligations: (i) bilingualism within all the headquarter services; (ii) bilingualism

within local services where justified by demand and (iii) bilingualism within certain services, because

of their very nature, regardless of demand. The reported noted that during the first few years of

the implementation the NWT OLA, “[...] we will have to actually offer services wherever there is a

potential demand” (p. xxix).

The Bastarache Report acknowledges the difficulties associated with the introduction of bilingualism

in the NWT’s public service but he does identify three elements essential to the establishment of a

clear policy: language training, the classification of “bilingual” positions and translation resources.

As far as training is concerned, the report proposes the use of language evaluation tests to make it

possible to classify positions and a mechanism to determine when language training is necessary.

On the subject of the classification of positions, the report proposes that the Department of

Personnel adopt, within the deadlines of a specific schedule, clear guidelines (notably regarding the

36

language requirements of each position), criteria for the designation of bilingual positions, rules

regarding the rights of employees and provisions concerning the responsibilities of deputy-ministers.

The report also proposes setting up a centralized translation service with the Department of Culture

and Communications, as well as the development of guidelines to determine (inter alia) which

documents should be translated.

Most of the 298 recommendations in the report deal specifically with each government department

and organization. However, Maître Bastarache pointed out that “[...] it is not possible for each

department to provide a full range of services, even in regions where there is a concentration of

Francophones, and that in many cases, a centralized information system will be the best way of

providing direct access to government services in French” (p. xxxi). However, the author is careful

not to present the centralized system as a referral service: “[the central information system] will be

responsible for obtaining the information for the client and transmit it to him/her or to find the

official able to provide the service in French, by ensuring that the official communicates directly with

the client” (p. xxxi).

The report splits the services of each government department and organization into two categories:

“intragovernmental” and “public”. In the case of services provided to the public, the report

proposes the creation of positions designated bilingual. The report makes a distinction between

central services “where the requirement for bilingualism is absolute” and regional services “where

the requirement would depend on demand or the nature of the service” (p. xxxii). Maître

Bastarache recommends the creation of 79 bilingual positions and the elimination of 36 existing

positions. As a result he arrives at a number of 43 new bilingual positions.

Maître Bastarache noted some actions that the GNWT had already undertaken during the

preparation of his report: the creation of bilingual positions at the Department of Justice and at the

Department of Culture and Communications, the initiation of the process of translating Acts,

regulations and procedural rules as well as the appointment of a official language coordinators in

each Department and in each governmental organization.

The objective of the Bastarache Report was to develop an implementation plan establishment and

preservation of institutional bilingualism within the GNWT. This being said, in document entitled Le

français dans les Territoires du Nord-Ouest de Radisson à aujourd’hui {French in the Northwest

Territories from Radisson to Today} (March 1999), Maître Daniel Mathieu, legal advisor to the Office

of the Commissioner of Official Languages of Canada, in Ottawa, remarked that Maître Bastarache’s

recommendations “[...] aim to recreated, in the Territories, the federal administration that exists in

Ottawa. [...] This approach did not take into account the demographic, political, geographic and

financial reality of the Canadian North. It was based on a judicial and idealistic notion of the

equality of the two official languages. It attempted to achieve in the immediate future, a titanic task

for such a small public administration” (p. 17).

I will return to the recommendations of the Bastarache Report later in the ruling.

Mr. Robert Galipeau, an official engaged in the implementation of the NWT OLA for over fifteen

years, is currently special projects coordinator at the new Official Languages Divisions created in

April 2005 at the Department of Education, Culture and Employment (“DECE”). From the time he

37

started his job as head of the translation section, in 1989, Mr. Galipeau has cooperated with a

Federal Government official to ensure the implementation of the NWT OLA. During his testimony,

he stated that the Bastarache Report had been distributed to all the deputy-ministers and official

language coordinators of the various departments. However, Mr. Galipeau qualified the

implementation of the report and its recommendations by the GNWT as “very partial”. He pointed

out that most of the recommendations that were adopted concerned the Department of Justice.

Mr. Marc Cleveland is the Deputy-Minister of DECE (he is responsible for the implement of the

NWT OLA in the GNWT) and a member of the management committee for the federal-territorial

agreements on funding of government services and communications in French. During his

testimony, he stated that he had not read the Bastarache Report but that is was a reference

document and that personnel in his department referred to it from time to time.

One last point: during his examination for discovery, Mr. Dan Daniels (Acting Assistant Deputy-

Minister for DECE from September 2002 until June 2004) had undertaken to communicate the list of

298 recommendations in the Bastarache Report that had been implemented. The Territorial

Defendants had not followed up on that undertaking. However, they did describe the

Bastarache Report as “[...] an important tool in the development of an administrative and statutory

regime in the NWT for official languages. The legislative process that was set up was very similar to

the one proposed by Bastarache. Some of the measures that were implemented by the courts and

by hospitals can also be found in his report”.

Of the 298 recommendations in the Bastarache Report, 31 dealt specifically with the legislative

process. According to the evidence, the recommendations concerning the tabling of bills and written

motions for the amendment of bills in English and French were adopted but this was not the case for

the recommendations dealing with the translation of Hansard and on the use of simultaneous

interpretation for the presentation of oral motions and the reading of motions.

The evidence established that, among the recommendations about hospitals, the one that stated

that each hospital should be ready at any moment to provide, in French, general information,

ambulance services and emergency services has not been implemented. As far as the Courts are

concerned, again, according to the evidence, there has been no follow-up to the recommendation

that the Supreme Court and the Territorial Court create at lease one bilingual judicial group

comprised of one judge, one stenographer or legal secretary, interpreters as well as the necessary

staff to handle the work of such a group.

38

B.

The Perreault Report

For its part, the FFT had commissioned a report from Denis Perreault aimed at proposing an order of

priority for the Francization of government sectors as a result of the adoption of the NWT OLA.

Published in 1988, this report contained 68 recommendations. In the health area (which the author

deemed to be a priority), the report recommended that a Francophone always be available in the

admitting rooms and the emergency rooms of hospitals, as well as in the dispensaries, that

admittance forms for hospitals and that medical reports be available in French, that there be a

Francophone nurse in hospitals, emergency rooms and dispensaries, that Francophone physicians be

available on a permanent basis throughout the NWT, that a team of flying nurses be available to

serve small communities, that a bilingual individual be designated for each work shift at the

Yellowknife hospital and that at least one Francophone nurse and one Francophone physician be

permanently based at the Fort Smith hospital.

The Perrault report also recommends that the GNWT institute a 1-800 government information line

for Francophones and that each department designate at least one bilingual position to provide

information and the required services in French. It recommends that each department draw up a

list of Francophone officials and that the GNWT had a hiring policy favouring Francophones. It

recommends that the GNWT disseminate its documents, publications and information in French,

establish consultation and audit mechanisms, the creation of an ombudsman position and the

allocation of funding to allow the FFT to hire a permanent investigator, who would be given the

responsibility of tracking the implementation plan for the NWT OLA and the promotion of French in

the NWT. The report also presented numerous recommendations on the Francization of government

services in the regions.

The Bastarache and Perrault Reports were important planning tools since they advocated a package

of measures that addressed all government communications and services in the NWT. This said, as

we shall see, the GNWT chose to favour a decentralized approach to the setting up, the

management and provision of government communications and services in French over the years

since 1984.

C.

The Study by the New Economy Development Group

Pursuant to the 1984 Canada-NWT agreement, the Federal Government and the GNWT entered into

a series of annual agreements to cover the implementation costs of the NWT OLA. During the first

few years of the agreement, the costs mostly related to the translation of Acts and regulations.

In accordance with the 1991-1994 cooperation agreement, the GNWT commissioned a study

(funded by the Federal Government) to evaluate to what extent the objectives of the agreement had

been met regarding the provision of services in French and the implementation of French as an

official language in the NWT.

The conclusions of the study are based on community surveys, interviews with key stakeholders

(such as the FFT) as well as analyses of programs. Here are some of them:

•

The community survey has shown that English is making inroads at the expense of

39

French and these findings suggest that specific actions aimed at reversing this trend

may be warranted and could possibly be addressed by a future Cooperation

Agreement (p. xxvi).

•

Health and justice-related services are perceived to be more widely available than

other types of government services. While awareness of service availability in some

areas is low, demand is high among those who know that the service exists (p. xx).

Most key stakeholders and respondents from the community survey are satisfied

with existing efforts to provide services in French. There are still areas where

services in French are perceived to be less available but this may be linked to low

demand for these services (p. xxvii).

•

The evaluation identifies considerable support for the development of a more

significant role for the Francophone community in the overall design and

implementation of the Agreement. The identification with the community of

desirable program outputs and mutually agreed upon priorities is perceived to be an

important priority (p. xxvii).

•

[...] the absence of standards of service has been pinpointed as a factor hindering

the understanding of how each of the Agreement’s activities or programs contributes

to the support of French and Aboriginal languages and communities (p. xxi).

D.

Languages Commissioner Harnum

Holder of a Masters in Linguistics, interpreter and teacher of interpretation, fluent in English, French

and Inuktitut, Ms. Betty Harnum was appointed as the first Languages Commissioner of the NWT

(NWT LC) in December 1991. Her appointment was the result of an amendment made to the NWT

OLA in 1990. Ms. Harnum worked doggedly to define the standards for her position and to promote

its function. During her four-year mandate, Ms. Harnum:

•

established the positions, policies, procedures and a database for the Commission;

consulted the OLC of Canada at the time and participated in meetings of the

International Ombudsman Institute;

•

retained the services of a legal advisor to prepare her advice;

in correspondence emanating from her office, included a card indicating a 1-800

number and actively offering translations services into the other official languages;

•

met with each member of the GNWT to explain her role;

established a policy for carrying out her own inquiries into the departments and

agencies of the GNWT.

40

In her testimony, Ms. Harnum stated that the resolution of complaints represented a large part of

her work. On the other hand, she also undertook inquires on her own initiative. As such, she

carried out informal surveys within the GNWT to evaluate the level of French-language services.

From the very beginning of her mandate, Ms. Harnum detected some resistance among officials in

the departments and agencies from which she was seeking information. She pointed out some

mistakes in the text of the NWT OLA to the Department of Justice. The Minister claimed that the

consent of the Federal Government was needed to amend the Act. Ms. Harnum argued that federal

consent was not necessary if the amendments did not diminish the guarantees within the Act but

the mistakes in the text of the Act were only corrected more than a decade later, and only after the

recommendations of a special legislative committee.

However, under cross-examination, Ms. Harnum acknowledged that, despite her differences of

opinion with the Government, the latter did not prevent her from performing her work.

Ms. Harnum proposed that the mandate to monitor the implementation of the NWT OLA be removed

from the Department of Culture and Communications at that time, to be entrusted to the

Department of the Executive, that department being, in her opinion, in a better position than the

former to direct other departments regarding other language initiatives. The GNWT accepted her

recommendation and established the Official Languages Unit within the Department of the Executive

in June 1993. After this, Ms. Harnum met regularly with the officials of the Unit in addition to

sending them a copy of each complaint she had received along with copy her response. These

exchanges were intended to coordinate the efforts of the various offices concerned.

In the first annual report (1992-1993) that she tabled in the Assembly, in accordance with s. 23 of

the NWT OLA, Ms. Harnum noted that significant sums had not been expended by the GNWT

despite the fact that officials had constantly complained that they lacked resources. Ms. Harnum

emphasized that the GNWT is required to provide, as an annex to the Canada-NWT Cooperation

Agreement, a list of specific projects planned for the year. She deplored the fact that the signature

of these annexes was delayed, arguing that this delay led to: (i) delays in the allocation of the

required funds, delays that had repercussions on the provision of services and the implementation of

the programs in question; (ii) repeated cases of “lapsed funds”: (the mandatory return to the

Federal Government of funds unexpended at the end of the fiscal year). Ms. Harnum did note that

it was possible for the GNWT to transfer funds between projects, up to a maximum de 25%, without

having to obtain the consent of the Federal Government.

In that report, Ms. Harnum emphasized that she had asked the GNWT to provide explanations

regarding the following points: (i) the application of the NWT OLA to government agencies and

commissions; (ii) the obligation of private providers of government services to respect the NWT

OLA; (iii) the documents and instruments that should be available to the public in French, and (iv)

the definition of the terms “significant demand” and “nature of the office” in the context of the NWT

OLA. Ms. Harnum also presented a request to obtain a list of the head offices of department.

The report described the results of two informal surveys carried out by her office in 1992. The first

survey took the form of a questionnaire. About 5,000 copies of the questionnaire were distributed

to employees of the GNWT and of three agencies. This questionnaire was intended to identify the

41

degree of familiarity that officials had of the NWT OLA, their attitude to it, the ability of their office

to offer services in French and their needs in terms of language. The results of this informal survey

were not challenged during the cross-examinations of Ms. Harnum. She compiled the 1,304

responses (21% of the officials) received. About one-third of the responses expressed a desire to

learn French and about half expressed a desire for the Government to offer language training to

improve services to the public. Almost one-quarter of the responses received (329) indicated that

they had an ability to speak French.

The second survey also took the form of a questionnaire as well as interviews. It was addressed to

officials responsible for the management of the policies of the departments and three government

agencies. This survey dealt with the degree of familiarity with the NWT OLA and about the

existence of policies within the departments and the agencies regarding this Act. Three

Departments did not respond to the questionnaire, the Executive, Culture and Communications and

Transport. According to Ms. Harnum, these were three important departments in terms of the

provisions of government services in English and French.

Most of the 27 other departments and agencies responded that: (i) they had neither policies nor

guidelines in their organization concerning official languages; (ii) they did not know the specific

provisions of the NWT OLA that applied to them; (iii) they were under the impression that there was

a lack of funds for the provision of services and programs in the various official languages, and (iv)

their employees could not readily identify the officials who were receiving a bilingual bonus. Some

departments said that they did not know that they could ask for funding. Others were aware of the

existence of these funds, without however knowing how their organization dispensed them. The

officials in government agencies were uncertain whether or not the NWT OLA applied to their

organization.

According to the Territorial Defendants, the methodology and the conclusions of Ms. Harnum’s last

survey lacked scientific rigour. The responses to the questionnaires were not submitted in evidence

as such. As for the Office of the Commissioner, they only used very general descriptions (notably

“several” and “some”) in the summary of the responses to the survey. For these reasons, I am not

in a position to draw specific conclusions from the survey. However, I can conclude that the Office

of the Commissioner painted a broad portrait of the implementation of the NWT OLA and, according

to this portrait, among the officials responsible for departmental policies, there existed a lack of

familiarity with this Act and the means for implementing it. As Ms Harnum noted on p . 130 of her

annual report for 1992-1993, “[...] it appears that GNWT has to do some work to develop an

awareness of and supportive framework for this initiative within its departments, boards and

agencies”. This being said, from the Commissioner’s first survey, I gather that in 1992, the public

service of the NWT not only had a considerable number of persons able to express themselves in

French but also a reasonable number of persons interested in receiving French language training.

In her 1992-1993 annual report, Ms. Harnum addressed herself to the GNWT and made

30 recommendations to them, several of which were based on the results of the two surveys. Here

are some of those recommendations:

•

the adoption of regulations to clarify the issue of the application of the NWT OLA to

agencies and commissions;

42

•

the clear identification of documents that need to be translated into French;

the adoption, as soon as possible, of guidelines regulating the application of the

NWT OLA;

•

the adoption of a policy of “active offer” to identify, using signage, pins and public

announcements, those offices offering services in official languages other than

English;

•

the communication of clear directives to Departments and institutions about the

steps to be taken to develop and fund their planned activities;

monitoring the funding provided through the Cooperation Agreement regime, in

order to avoid the lapsing of funds and the reallocation of funds to other projects.

In her testimony, Ms. Harnum stated that her report was only repeating the comments found in the

New Economy study, to the effect that officials were unfamiliar with the NWT OLA and according to

whom there was a lack of clear directives from deputy-ministers regarding its application.

According to Ms. Harnum’s testimony, the 1992-1993 annual report that she tabled in the Assembly

was written in English but she asked to have it translated into French. When the Speaker of the

Assembly rejected her request, she had a summary of the report prepared in French and in some

official aboriginal languages.

In its response to the 1992-1993 annual report, the GNWT indicated that adopting guidelines would

be just as effective as adopting regulatory provisions. According to the Territorial Defendants, Ms.

Harnum acknowledged in her annual report that poorly considered regulatory provisions might lack

flexibility and, consequently, might restrict rather than increase the rights and privileges in question.

This being said, I note that the Harnum report had also recognized that the NWT OLA itself, in s.

34, recommended the adoption of regulatory provisions regarding the designation of the

government institutions that are subject to the Act. Even before having received Ms. Harnum’s

1992-1993 report, the GNWT recognized the need to clarify the application of the NWT OLA.

Indeed, in the activity plan related to the negotiation of the 1991-1992 Cooperation Agreement, the

Department of Culture and Communications planned for the following activity: “Continue, in concert

with the other departments, the draughting of guidelines concerning the application of the Official

Languages Act and the provision of services in French.” Another five years would pass before the

GNWT would finally adopt a policy and guidelines concerning these matters.

In her 1993-1994 annual report, Ms. Harnum described the process she had developed to deal with

complaints sent to her office: (i) first, ensure that the plaintiff had undertaken all possible steps to

resolve the complaint before submitting it to the NWT LC; (ii) next, undertake an informal inquiry,

then, should the conflict not be resolved, carry out a formal inquiry. In the absence of regulatory

provisions or guidelines on who is subject to the NWT OLA, the report endeavoured to identify those

agencies and commissions that are governed by this Act. To that end, the report bases itself on

criteria established by the NWT LC herself.

43

In her 1993-1994 report, the NWT LC summarized the activities of the year that attest to her

proactive visions of her role. As such, she resolved the great majority of complaints; she responded

to several hundred requests for information; she distributed promotional documents; she

participated in interviews with the media; she gave speeches; she attended meetings of language

community organizations and she carried out a study of the criteria for or the measuring of language

skills. While she encouraged the Assembly and the GNWT to complete the implementation of her

previous year’s recommendations, the NWT LC also carefully acknowledged the value of some of the

GNWT’s efforts, notably the production, in cooperation with her office, of an information brochure

on the NWT OLA and the more effective management of funds from the cooperation agreement.

Nevertheless, the NWT LC reiterated a complaint on which she had already been very insistent in

her previous year’s report, that is, the absence of clear directives regarding the implementation of

the NWT OLA.

Ms. Harnum’s 1994-1995 report described a study carried out by her office on the funding of

language services. According to the report, funds from the agreement that ended in 1989 that had

lapsed would have been sufficient to fund French services for an additional two years. Moreover, for

each year where the 1991-1995 Agreement applied, significant sums of money had not been spent.

According to a table submitted as evidence by the Territorial Defendants, the funding allocated by

the Federal Government for the French component of the cooperation agreements were $ 2.491 M

for 1990-1991, to $4.0 M in 1991-1992, $4.3 M$ in 1992-1993 and to $4.05 M in 1993-1994. As

for the lapsed funds recorded during those same years, they totalled $1.16 M in 1991-1992, $0.981

M in 1992-1993 and $1.588 M in 1993-1994.

According to Mr. Cleveland’s testimony, about $5 M intended for French services have been returned

to the Federal Government between 1986 and 2003. However, this situation mostly occurred in the

first few years of the cooperation agreements. Over the years, management of the funds had

improved and the problem was essentially resolved in 1994-1995. I note, however, that 1994 was

the year that the Federal Government reduced funding for the agreement, reducing it from $4.05 M

to $2.462 M. Ms. Harnum had made the following observation on p. 151 of her 1992-1993 report:

“The Secretary of State has already announced cuts to their funding for the next few years. [...]

When these cuts were announced, in light of the fact that GNWT had lapsed money every year

under the Secretary of State agreements, it was difficult to provide convincing arguments that the

cuts would affect the delivery of services and programs in the NWT.”

Mr. Louis Chagnon, Director at the Department of Canadian Heritage for Manitoba and Nunavut

(and acting director for Saskatchewan and the NWT) as well as being co-chair of the management

committee for the cooperation agreement currently being negotiated, described the negotiation

process in his testimony. On this subject, he confirmed that the Federal Government takes into

account unspent funding in its performance evaluation of the GNWT.

Mr. Chagnon offered some possible explanations for the NWT’s lapsing of funds year after year.

This reality may have been due to the failure to achieve planned activities and the delay in signing

agreements, situations which, in his opinion, led to “bottlenecks” in the funding. Mr. Chagnon also

acknowledged that , for a Northern government, a region where the cost of government services is

44

very high, it was legitimate to hesitate to transfer funding intended for other purposes to meet

language obligations while waiting for federal funding to be granted. But he did note that during

the 1990s, the GNWT had demonstrated a “chronic lack of long-term planning”. This situation had

improved over the years. Mr. Chagnon emphasized that, since 1997-1998, a very small amount of

the $1.6 M allocated for French services pursuant to the cooperation agreements, had been

returned. His department sees this as an indication that the amount allocated is close to the needs

to be met and an indication that this amount is sufficient for projects that the GNWT is in a position

to implement on a regular basis.

According to Mr. Chagnon, the Federal Government had informed the GNWT that better long-term

planning was necessary, because of federal budgetary restrictions, funds being returned and the

GNWT’s needs and that these were the factors explaining the reduction in federal funds allocated for

French services in the 1994-1995 fiscal year. Mr. Chagnon acknowledged that, at that time, neither

the GNWT nor the Federal Government had a proper evaluation of the amount required for the

provision of French language services. Ms. Harnum noted that this situation could be largely

explained by the absence of central planning or an effective central management.

In her annual report for 1994-1995, Ms. Harnum noted that, on the tenth anniversary of the

adoption of the NWT OLA, she was still waiting for the GNWT to adopt guidelines for its application.

Such guidelines, she emphasized, had in fact been promised by the Premier over two years earlier.

Ms. Harnum had recommended to the Assembly that it insist on guidelines being established as

soon as possible. Her report also provided a summary of her activities. They were not limited to

dealing with complaints. They included appearances before the Finance Committee and the

government committee responsible for official languages activities.

Mr. Lamoureux testified that, given the “dramatic” cuts made to federal funding in 1994-1995, it

was difficult to maintain the momentum that Ms Harnum had generated in the official languages

programs.

E.

The Lutra and Associates Ltd. Report

Commissioned by the GNWT and published in July 1996, the purpose of this report was to evaluate

the impact of the Canada-NWT cooperation agreements concluded after the adoption of the NWT

OLA. The report noted the creation of new positions in the language area, occupied by new

professionals. It also notes the existence of an infrastructure designed to facilitate communication

with the communities. However, the report observed that some language groups are dissatisfied

with their participation in the decision-making process. This dissatisfaction, the report specifies, is

mostly about the planning and the allocation of resources.

The report noted the following developments, relating them to previous agreements:

•

from 1984 to 1991: period dedicated to the translation of bills and regulatory

documents as well as the creation of the language office;

from 1991 to 1994: period of the highest level of contributions remitted by the

Federal Government to increase French language services; a vast range of services

45

was offered in all departments; French also progresses in the areas of signage,

announces, services provided in hospitals and the allocation of funds for community

purposes;

•

from 1994 to 1996: period marked by the reduction of funds intended for

translations services and at the Department of Justice and by the reduction in the

number of GNWT’s employees receiving the bilingual bonus (from 75, in 1993-1994,

to 53).

According to the Lutra report, the cooperation agreements made it possible to meet the obligations

required by the NWT OLA. The report also considered that, through their community component,

the agreements provided support for participation of members of the Franco-ténoise community in

cultural activities. However, the report found that the agreements had some shortfalls: (i) a

perception that several government agencies and departments were reticent to provide services in

French, a perception that conveyed a subtle message to Francophones: “It is a problem to use

French”; (ii) the absence of guidelines making it possible to identify authorized expenditures; (iii) a

reticence, among Francophones living in a largely aboriginal community, to request French language

services.

The report also raised some planning problems – familiar ones:

1. A lack of clear priorities and overall planning

The implementation of the Agreements was pursued in the absence of a

comprehensive assessment of language needs throughout the NWT, and of

overall implantation plans for each of the Agreements. As a result, there is

the view that resources have not been well utilized.

The report recommended promoting cooperation between Francophone and Aboriginals, the

appointment of an ombudsman to counter the negative attitudes towards French, the designation of

bilingual positions in the health area and the participation of organizations such as the FFT in the

negotiation of the cooperation agreement. The report concluded as follows:

[...] there is a need for the GNWT to demonstrate leadership and active commitment

to working cooperatively with the Francophone community to mitigate impacts

associated with reduced funding to ensure that key language needs are met.

F.

Policy and Guidelines (PGD)

In July 1995, the Department of the Executive’s Official Languages Unit circulated, for consolation,

the preliminary version of a manual of guidelines concerning official languages. Two years later, in

September 1997, the Executive Council approved the final version of this document. During the

same month, the Official Languages Unit was replaced by an Official Languages Office was set up

within DECE.

The following statement appears in the introductory paragraph of the policy: “It is the policy of the

46

Government of the Northwest Territories that the public have reasonable access to government

programs and services in the official languages.” The FFT considers that the condition of

“reasonability” violated both the letter and the spirit of the NWT OLA. The polity entrusted to

individual departments the responsibility for language programs and services that would apply within

their departments, as well as to agencies, commissions and boards under their control. The

introduction to the manual specifies that the Guidelines “determine the minimal standards for the

delivery of services in the official languages” and that they “do not override the obligations in the

area of official languages” arising from the NWT OLA and any “other Territorial Act”. In its analysis

of the PGD, the FFT noted the following point:

Rather than making them subject to the Government’s “legal obligations” (which

goes without saying), it would have been beneficial if they had detailed the means of

application. Such an approach would have avoided any contradiction between

“minimal guidelines” and “legal obligations”, the former being ex officio invalidated

by the latter in the event of conflict, with no alternative solution being offered in that

event. (FFT, doc. No. 046(a), p. 13)

The PGD confirmed that all designated offices are required to inform the public about the services

offered in an official language, whether by means of signs, verbal greetings or in their

correspondence. As an annex, they present a table indicating the councils, commissions and

agencies bound by their provisions. This table differs from the list of government organizations

previously identified by the NWT LC, Ms. Harnum, in her 1993-1994 report. The PGD designates the

four regions (or zones) of the NWT in which the services of the GNWT may be provided in French:

Fort Smith, Hay River, Iqaluit and Yellowknife. Thus, the PGD imposes territorial limits on the

application of ss. 11(1) of the NWT OLA.

In Statistics Canada’s 1996 census, the following data on the distribution of the great majority of the

Francophone population of the NWT can be found:

Centre

Francophone Population

Total Population

18,000

2,500

Yellowknife

Fort Smith

Hay River

Inuvik

660

60

75

40

25

20

3,600

3,300

Fort Providence

Fort Simpson

760

1,260

According to the FFT, the PGD apply the NWT OLA in an uneven manner: they identify designated

offices that must provide services to the public in French. However, they establish distinctions

47

between regions as far as this obligation is concerned. In Yellowknife, all offices that offer services

to the public must offer them in French, whereas in Fort Smith and Hay River, both also located in

zones designated for French, only certain identified offices providing services to the public are

obligated to offer them in French.

The PGD deals with the provision of interpretation services during hearings and public meetings. In

the case of a hearing, services must be provided if, in the opinion of the government organization,

the service is in the “public interest, is important or beneficial to the participants”. In its preliminary

analysis, the FFT noted that no guideline may restrain the scope of the provisions the NWT OLA in

the case of judicial, quasi-judicial and administrative tribunals of the NWT. In the case of public

meetings, the PGD prescribe interpretation services in a designated region when the purpose of the

meeting is to determine public opinion about significant amendments to acts, regulations or policies

or when the meeting dealings with projects that may have major repercussions on a community.

Under the category “public documents”, the PGD groups documents “designed to inform or educate

the public about various programs and services”. The translation of such documents may be

mandatory in a designated region. This is the case when “requests are made in a continuing and

frequent manner by members of the public who speak an official language other than English” and

when “the nature of the material is of great importance for the health or safety of the public”.

Untranslated documents must specify that translations “may be provided upon reasonable demand”.

The FFT rejected this definition of the notion of a public document and the conditions of their

translation which, in their opinion, limited the scope of application of the OLA of the TNO.

The PGD also deal with forms relating to regulations and that must be completed by the public.

They dictate that it is that it is up to departments, councils, commissions and agencies to determine

which of their forms are “commonly used” to determine which ones need to be translated.

According to the FFT, these provisions contravene the stipulations of the NWT OLA concerning

prescribed forms. Again, according to the PGD, a form must be translated if “the public has

frequently made requests for translations”. Bilingual versions of other forms may have to be printed

in designated offices. This is the case when they are frequently used by the public and when their

translation into French is frequently requested by the public.

As far as the publication of employment offers for positions located in regions designated for the use

of French, the PGD stipulate that they must appear in French in a French language newspaper. As

for requests for proposals or tender calls, they must be published in French in a French newspaper

“in a region that includes a region designated French”. The FFT rejected the geographic regions

established in this manner. In their opinion, economic realities require entrepreneurs to work

outside their own region. The FFT also challenged the coverage of the provision in question, as it

excludes five agencies identified by the NWT LC in her 1993-1994 report as being government

institutions.

Finally, the PGD incorporate provisions regarding signage on buildings housing a GNWT office.

According to those provisions, the new signs placed outside such buildings and the main signs inside

the buildings must be worded in all the official languages of the designated region.

48

G.

Language Commissioner Tutcho

Ms. Judi Tutcho was appointed NWT LC in June 1996. She was not summoned to appear at the

trial. Her 1995-1996 annual report was only written in English and it is very brief: Ms. Tutcho had

been appointed Commissioner about three months after the start of the fiscal year. One year later,

Ms. Tutcho tabled her report for the year ending March 1997. This report is also in English only.

The Tutcho report does not fail to acknowledge that, in September 1997, 14 years after the

adoption of the NWT OLA, the GNWT adopted the PGD governing the provision of government

services in French. Moreover, Ms. Tutcho noted the GNWT’ s dilatory practices in providing answers

to even simple requests for information – on the role and the responsibilities of official language

coordinators, for example. The report recommended that the GNWT develop an implementation

plan: (i) for the PGD, and (ii) in documents from departments, agencies and commissions, of an

active offer to communicate information in one or more official languages. Finally, Ms. Tutcho

recommended that the GNWT develop a plan to promote official languages and a general system of

accountability to guide all governmental authorities, their rank notwithstanding, concerning

language issues.

H.

The studies carried out by the FFT

The FFT carried out a study of advertisements, tender calls and offers for government employment

offers that had not appeared in French in the newspaper, L’Aquilon (French-language weekly that is

distributed throughout the NWT) between October 15, 1998 and February 15, 1999. The purpose of

this study was to show that the GNWT had been lax in these matters in its implementation of the

NWT OLA.

The FFT also carried out a study of advertisements that had not appeared in the Aquilon from

October 1^stto October 29, 1999 but which had appeared in Anglophone newspapers. The goal of

this study was to determine if there had been an improvement regarding the publication of

government advertisements in L’Aquilon.

The FFT commissioned studies dealing with active offers and the availability of government services

and documents in French from the departments and the agencies of the NWT. These are the

“Polaroid” studies, the first of which was carried out in 1999. Similar studies were carried out in

2003 (“Polaroid 2”) and in 2005 (“Polaroid 4”).

In March 2000, the OLC of Canada carried out a follow-up of a 1994 study of her office. The

purpose was to determine to what extend the federal offices in the NWT designated bilingual that

were offering high quality services in English and French.

L’Aquilon itself undertook a study after the legal recourse was initiated. This study aimed at

comparing, on one hand, the number of advertisements published by the departments and agencies

of the GNWT in the L’Aquilon during 1994 to 2002, and, on the other hand, the number of

advertisements of this type that appeared in an English-language newspaper, also distributed

throughout the NWT.

These studies will be the subject of detailed commentaries later in this ruling.

49

I.

The Forum on French in the NWT

In March 1999, thanks to funding assistance ($50,000) from the cooperation agreement, the FFT

organized a two-day forum. This forum gathered together a variety of stakeholders from the

communities as well as representatives of the GNWT, the Federal Government and Franco-Canadian

communities in the NWT. The primary objective the meeting was to inform and sensitize the

participants concerning the state of services in the NWT and, secondly, to determine the direction of

measures to be taken in the future regarding these matters. According to Mr. Lamoureux, this

questioning was necessary because the FFT had exhausted all possible political and medial options

as far as the GNWT was concerned.

The FFT sent a series of recommend emanating from the forum to all departments of the NWT.

Among other things, the FFT advocated: (i) the amendment of the NWT OLA to define the terms

“institution” and “head office” or to identify these institutions and offices; (ii) the provisions of all

government services to the public in French, at a level equal to those provided in English, in all the

regions with a Francophone concentration (Yellowknife, Hay River, Fort Smith, Inuvik); (iii) the

provision of health and social services, transport, tourism, justice and safety to the public in French

throughout the Territory, regardless of the demand; (iv) the establishment, by regulation, of a policy

of active offer of services in French; (v) the creation of a Languages Office responsible for the

implementation of the NWT OLA and its regulations, as well as setting up a centralized French-

language document and reference centre, with a 1-800 number, administered by the FFT; and (vi)

the training of GNWT employees regarding language rights and the means of providing services in

French. Among the recommendations affecting the Government of Canada, the following

recommendations can be found: (i) that the GNWT demand that the Federal Government respect its

commitment to assume the totality of the costs resulting from the full application of the NWT OLA

where French is concerned; (ii) that the funding intended for community projects (the PDPC) are

maintained, with a budget corresponding to 20% of the total envelope allocated to the French

element of the Canada-NWT Cooperation Agreement.

The forum also recommended the creation of a cooperation committee comprised of a

representative of Heritage Canada, a representative of DECE, a delegate of the FFT and another

representative from the Franco-ténoise community. This committee should work towards the

application of the Forum’s recommendations and act as an issue table regarding the Canada-NWT

agreements dealing with French. This recommendation was not a new one. The Lutra Report itself

had noted the need for closer cooperation between the GNWT and the Franco-ténoise community as

far as the cooperation agreements were concerned.

Finally, the Forum recommended that the FFT contemplate taking legal measures to ensure that the

rights of the Francophone community are respected.

Mr. Lamoureux acknowledged, during his cross-examination, that the Forum resulted in the

following conclusion: the Forum did “[...] not make it possible to demonstrate that the GNWT did not

respect the Charter in its application of the NWT OLA”. Mr. Lamoureux also acknowledged in his

examination for discovery that the Forum had made it possible to learn that the GNWT was

receptive to the improvement of French-language services.

50

J.

The post-Forum discussions

At the end of the Forum in March 1999, at the same time as they were engaging in discussions

regarding recourse to the courts, the FFT was pursuing its efforts to find a solution to its issues

regarding the implementation of the NWT OLA with the GNWT through political means:

•

they advocated the creation of a cooperation committee, a demand that was rejected

by the Assistant Deputy-Minister of DECE;

on March 15, 1999, they submitted to the NWT LC, a complaint alleging the PGD

reduced the scope of the NWT OLA;

•

they sought meetings with the Minister and the Deputy-Minister of DECE;

their representatives continued to meet with representatives of the GNWT during the

spring and summer of 1999.

In a letter dated July 9, 1999 to the FFT, Mr. Cleveland replied to the recommendations that

emanated from the Forum. He proposed holding consultations to the FFT and he indicated that the

GNWT was working on developing an implementation plan for the provisions of French-language

services to the public. To that end, he added, he would take into account the Forum’s

recommendations and he would consult the Francophone community. Mr. Cleveland noted that the

Forum’s recommendations should be submitted to the Assembly at the time of the review of the

NWT OLA by a special legislative committee required by that Act. He added that it would take time

to find satisfactory solutions to all the problems raised during the Forum. According to Mr. André

Légaré, the then-president of the FFT, this letter contained neither a clear commitment on behalf of

the GNWT nor “anything concrete” to resolve “the problematics” at issue. In September 1999, the

General Assembly of the FFT approved the launching of a legal action then, in January 2000, the

Plaintiffs initiated the first action before the Federal Court.

K.

Languages Commissioner Tatti

Ms. Fibbie Tatti was appointed NWT LC in July 2000. Her annual report for 2000-2001 was

published in French and in English. A consulting committee was established by the Office of the

Commissioner in 2000. The committee was comprised of members of the various language

communities; the FFT was a part of it. Ms. Tatti hired a liaison officer as well as an administrative

assistant. She also tried to fill the position of research analyst. Ms. Tatti noted that some officials

did not have an in-depth knowledge of the NWT OLA and that others were reticent to provide

information requested by her Office. She recommended that the departments of the GNWT offer

workshops to their personnel about the NWT OLA and about the role and responsibilities of the NWT

LC.

Ms. Tatti was not summoned to appear at the trial. During the examination for discovery held in

July 2003, she had indicated that she had recommended (as did her predecessors) that the

government implement an action plan for languages but that she had received no response.

51

L.

The Special Committee for the Review of the NWT OLA

Pursuant to s. 29 of the NWT OLA, the Assembly (or a committee created for that purpose) was

obligated to proceed with an examination of the Act and its implementation during the Session

taking place after December 31, 2000. A special committee for the review of the NWT OLA

comprised of Territorial Members (the “Special Committee”), was established in November 2000.

The Special Committee was charged with submitting amendments to the NWT OLA during the

mandate of the Assembly and to examine: (i) the extent to which the objectives enunciated in the

preamble to the NWT OLA had been achieved; (ii) the rules, policies and administrative procedures

established by the GNWT to guide the implementation and interpretation of the NWT OLA; (iii) the

effectiveness of the NWT OLA with the general public as well as with the government agencies and

departments charged with providing the services; and (iv) the role and responsibilities of the NWT

LC. The work of the Special Committee was coordinated by Mr. Benoit Boutin, who acted as

Official Languages Coordinator for the DECE from 1998 to 2001.

(i)

Progress Report

The Special Committee held public hearings and solicited comments from the organizations. The

brief submitted by the FFT proposed that the NWT OLA be amended and harmonized with its federal

counterpart, the NWT OLA override all other Territorial laws, regulations be attached to the NWT

OLA and an implementation plan of the NWT OLA be developed and an adequate budget be

dedicated to achieving this plan. The FFT offered its cooperation with that plan.

The Special Committee presented a progress report in June 2002. The report noted that the use of

French in the NWT seemed to be declining. The position of language coordinator, which was

planned to be a part of each department and many agencies, was, in most cases, a part-time job.

As for the duties associated with this function, they only represented an infinitesimal part of the

duties of another position. In its progress report, the Special Committee proposed, inter alia, the

following measures: the reinforcement and the amendment of the NWT OLA to insure its application

to all agencies and entrepreneurs providing government services; the clarification of this Act by

means of regulatory provisions and policies; the tightening up of the formal links between the

GNWT and the language communities; the designation of an organization that would be charged

with the implementation of the NWT OLA and which would be directly responsible to the Assembly

for its implementation; changing the role of the NWT LC – to reinforce it , if necessary – and the

setting up of a single-window service centre.

After the submission of its progress report, the FFT withdrew its cooperation with the Special

Committee. Deploring the fact that it consisted only of MLAs, the FFT described the Committee as

“political” and its recommendations as “cosmetic”. According to Mr. Boutin, the withdrawal of the

FFT did not affect the work of the Special Committee.

(ii)

The Final Report

The final report of the Special Committee was published on March 3, 2003. Therein, the Committee

emphasized the importance of the link between language and culture. The report referred to the

52

words of linguist David Crystal in his book entitled Language Death (Cambridge: Cambridge

University Press, 2000). Mr. Crystal listed the reasons for preserving languages threatened with

disappearance, notably the fact that language expresses identity and it one of the most essential

components of cultural expression. His comments reflect those that had been made by Chief Justice

Dickson ten years earlier in the Mahe ruling, supra.

The final report of the Special Committee highlighted (on pp. 166 and 167) the six main factors

which, according to David Crystal’s thesis, contribute to the success of the revitalization of a

language. According to Mr. Crystal, a language on the brink of disappearing will progress if:

1.

2.

3.

its speakers increase its prestige within the dominant community (through

the media, signage and the use of that language in daily life, notably in

business and in public administration);

its speakers increase their wealth relative to the dominant community

(whence the need for funding for the implementation of revitalization

activities);

its speakers increase, in the eyes of the dominant community, their

legitimate power that they enjoy within the society (through international

protocols, laws);

4.

5.

6.

its speakers have a strong presence in the school system;

its speakers can write their own language;

its speakers can use electronic technology.

The Special Committee concluded that the NWT OLA did not adequately define language rights. The

reason: the absence of regulatory provisions that would clarify for the purposes of ss. 11(1) the

term “significant demand”, “justified” or “nature of the office”. According to the Committee, this

situation produces confusion, frustration and contradictory interpretations of the Act. The

Committee emphasized that the Act itself provides for the adoption of regulatory provisions to

facilitate its interpretation and its implementation. The Committee felt that the promulgation of

regulatory provisions relating to official languages must be a priority. Such provisions would have

the effect of guiding departments, boards, commissions and agencies of the GNWT responsible for

the areas of public health and safety. “This type of regulation”, opined the Committee” should have

been brought into existence a long time ago”.

The Special Committee noted that the NWT LC can only make recommendations (by means of her

annual reports) and that her recommendations “for the past ten years have, to a great extent, been

ignored”. She may appear in court, on behalf of a plaintiff or as a party in any action, but only with

the permission of the court (s. 26(2) of the NWT OLA). It is true that the NWT LC has the mandate

to investigate any legitimate complaint received (s. 21(1)); however, she does have the power to

call witnesses, to produce summons to appear or to impose remedies or sanctions.

53

In 2003, some amendments were made to the NWT OLA pursuant to recommendations of the

Special Committee. The recommendations that were accepted were the following:

•

recognize, in the preamble, the important role of language communities in the

preservation and development of languages;

increase the independence of the NWT LC by excluding him/her from the public

service and create the authority to name an acting NWT LC;

make the submission of a reply by the Assembly within 180 days following the

tabling of the annual report of the NWT LC mandatory;

designate a minister with the authority to ensure that the NWT OLA is applied and

who will be required to submit an annual report to the Assembly.

However, other recommendations of the Special Committee did not enjoy the same fate. This was

the case for the following recommendations: the creation of regulations to clarify and define the

provision of services for workplace health and safety; the definition of “active offer” by means of

reputations in the area of health and social services and by means of policies in all other services

and the adoption of a regulation identifying those government organizations that are required to

comply with the NWT OLA. Regarding these recommendations, only one initiative was submitted in

evidence during the trial. This was a draught of regulatory provisions identifying the government

organizations bound by the NWT OLA, a draught which, according to Mr. Boutin, was in the hands of

the DECE. However neither Mr. Daniels, nor Mr. Boutin was aware of any proposed regulations or

draught policies for the provision of services and the definition of active offer.

The Special Committee also examined management issues. Concerning these, the Special

Committee recommended the creation of a Language Secretariat; the development by the

responsible department of an implementation plan for the entire GNWT; an evaluation and an

“accountability framework” based on the model in use by the Treasury Board of Canada, which

requires the identification, gathering and constant analysis of data dealing with the effects and

results. The Special Committee drew the following conclusions:

The planning, management and accountability framework for the implementation of

the OLA and Aboriginal languages in education is weak to non-existent. [...] There is

a significant lack of political and management accountability with respect to the

implementation of the Act and Aboriginal languages in education and limited direct

and formal involvement of the language communities. [...] Official languages

program and service delivery has been uncoordinated and generally inadequate, in

spite of some project successes.

The Special Committee expected that the development of such an implementation plan would be

completed in 2003-2004.

Finally, as far as management is concerned, the Special Committee recommended that the language

communities should be fully consulted about the action plan and evaluation framework of the

54

cooperation agreements and that flexible multiyear agreements be negotiated.

To improve the provisions of government services, the Committee recommended that the

responsible department ensure that all departments and organizations adequately implement the

active offer adequately as well as the procedures for gathering statistics related to demand and the

provisions of services and that bilingual positions be favoured for front-line services. The Special

Committee also recommended the implementation of a single-window pilot project with a 1-800

number. According to Mr. Boutin, this pilot project has been included in the GNWT’s requests

regarding the cooperation agreement currently being negotiated.

The Special Committee dealt with the promotion of official languages. They recommended that the

minister responsible provide support to the Francophone community to help it develop and

implement a social marketing plan. Mr. Daniels stated that, as far as he knew, no such project had

been undertaking. No such project was presented in evidence.

M.

The GNWT’s Response to the Special Committee’s Final Report

In September 2003, the GNWT submitted a response to the final report of the Special Committee.

In this response, the GNWT indicated that the PGD would be revised to clarify the intentions and

expectations of the Government concerning the active offer. The response also specified that the

departments would evaluate the additional costs associated with the development of regulatory

provisions and policies on the active offer. During the trial, no revision project regarding the active

offer was submitted in evidence. This said, the GNWT distributed, to all departments, a CD-ROM

containing standardized active offers. An explanatory note indicated the phrases that had to appear

in any documentation intended for the public.

Mr. Daniels contributed to the preparation of the GNWT response to the final report of the Special

Committee. At the time, he was acting Assistant Deputy-Minister of DECE. He testified that among

the recommendations of the Special Committee involving additional costs, there are several that are

part of the negotiations of the cooperation agreement between the Federal Government and the

NWT. Rather than accepting the recommendation concerning the creation of bilingual positions for

front-line employees, the GNWT indicated that it would undertake an evaluation of the bilingual

bonus and that it would study ways of increasing the number of front-line employees who receive it.

According to Mr. Daniels, the announced evaluation (in 2003) has not yet been carried out.

In its reply to the final report of the Special Committee, the GNWT stated that it would examine the

obligations of government organizations to comply with the NWT OLA. The GNWT would start by

updating the PGD, and then it would draught regulatory provisions. However, two years later,

during the trial, Mr. Daniels qualified the updating of the PGD as a ‘” work in progress”, specifying

that it required additional resources. Mr. Daniels did not say anything more on the subject.

As I noted above, the GNWT adopted the amendments to the NWT OLA recommended by the

Special Committee. These amendments were incorporated in a draught bill attached to the final

report. As for the DECE, they followed a recommendation of the Special Committee and set up two

new boards: the Aboriginal Languages Revitalization Board and the Official Languages Board.

55

Comprised of representatives from all the official language communities, the Official Languages

Board is responsible for advising the Minister regarding the provisions and administration of the

NWT OLA as well as the provision of services in the official languages. These two Boards have

inherited the promotional role that was formerly entrusted to the NWT LC. As for the Consulting

Board to the NWT LC, it was dismantled. According to Mr. Daniels, the two new organizations can

communicate directly with the DECE. The GNWT also accepted a recommendation that smaller-

scale evaluations of the NWT OLA be carried out every five years.

Upon the recommendation of the Special Committee that a complete, multiyear implementation plan

for the NWT OLA be developed and that this plan include an evaluation framework based on the

model of the Federal Government’s Treasury Board, the GNWT responded as follows:

The GNWT recognizes the need to consult with communities on the action plan and

the accountability framework linked to the Cooperation Agreement [...]. [T]he

GNWT undertakes to consult the official language communities, every year, before

updating the action plan at the start of each [fiscal year].

And further on in the GNWT’s reply:

Departmental plans should clearly reflect the importance assigned to official

languages by the GNWT. We shall ask the departments, commissions, boards and

agencies to identify their plans to implement the recommendations [of the Special

Committee] and to produce a report on the status of their official language activities

[my emphasis].

Regarding the preceding passages, I have concluded that the GNWT did not undertake to develop a

complete multi-annual implementation plan that would govern all departments and all agencies as

was recommended by the Special Committee.

About this, I note that, in a letter dated July 9, 1999 addressed to the FFT after the March 1999

Forum, that is four years before the publication of the final report of the Special Committee,

Mr. Cleveland had indicated that the GNWT was “currently” working on the development of an

implementation plan for the provisions of services to the public in French. During the trial, under

cross-examination, Mr. Cleveland was asked about the existence of an overall plan for the

implementation of French-language services. However, to that question, Mr. Cleveland replied that

he could not pull a book from the shelf to describe the functions of each official on that subject,

while emphasizing that the government supported the provision of services based on a legislative

framework and large-scale government planning. Mr. Cleveland noted the existence of specific

plans. About this, he mentioned, one hand, the cooperation agreements that defined the specific

objectives and which are updated periodically to reflect changes in priorities and, on the other hand,

the activity plans. According to Mr. Cleveland, the obligation to submit annual reports on

departments constituted an accountability mechanism for the expenditure of funds. This mechanism

contributed significantly to planning efforts.

The existence of an overall plan for the implementation of services in French was raised directly

during the examination for discovery of Mr. Daniels. Having been asked if such a plan existed,

56

Mr. Daniels offered the following reply:

The Government of the NWT is – through the Co-Op Agreement, goes through an

annual exercise with each of the departments, by which the departments state how

they would like to – or what they can do in the area of official languages, in terms of

delivery of services. And the funding is allocated to each of those departments to try

to fulfill those obligations. [...]

Questioned about the existence of a document describing such an overall plan, Mr. Daniels stated

the following:

The framework would be under the Canada-NWT Co-operation Agreement that

states the broad objectives of the services in French. [...] [T]hat is the primary

document and, as I mentioned earlier, there’s the annual review process that we go

through with each of the departments, in which they identify how they will – the

need for resources to deliver services in French.

The attorney for the Territorial Defendants also replied to some of the questions posed to

Mr. Daniels in examination for discovery. To the question as to whether the GNWT, including its

departments, commissions and agencies, had completed an implementation plan for the NWT OLA

and of the PGD, the attorney for the Territorial Defendants answered as follows:

I don’t think there’s any specific documents. [...] I’m not aware of any specific

implementation plan that would encompass all of the government’s various efforts

and initiatives in this area [...] but clearly those efforts and initiatives are described,

with respect to the various government departments and agencies, in all the [861]

documents that are before you.

After the examination for discovery of Mr. Daniels in February 2005, the Territorial Defendants

provided the following undertaking following a question on the development of an implementation

plan:

The GNWT is currently identifying the services available to the public and the

available bilingual human resources. A secretariat, as recommended in the report of

the Special Committee for the Review of the OLA, will work with the departments

and agencies in order to ensure the development of implementation plans as

recommended by the Special Committee.

[my emphasis].

Upon examination of Mr. Daniels testimony, I have concluded that no schedule was set for this

process.

In light of all the preceding items of evidence, I conclude that the GNWT did not distinguish

between the implementation plan and the plans that had been previously been used in negotiating

funding arrangements with the Federal Government. All the GNWT was doing, was to add the

accountability framework required by the Federal Government.

57

Mr. Chagnon, for his part, clarified the terminology applicable to the various plans associated with

the negotiations of the funding agreements. He specified that the “action plan” is essentially the

attachment to the cooperation agreement “which describes the deliverables during the term of the

agreement and the associated amounts”. The “implementation plan” is “the broad framework in

which these actions will take place over the years”; this is “everything that is planned in terms of

activities over a longer period of time, with schedules and milestones”. The action plan is “a sub-

component of the grand implementation plan” of the government, a plan which, according to

Mr. Chagnon, the Federal Government never received from the NWT. Mr. Chagnon also

distinguished between the implementation plan and the “evaluation plan”, designed to analyze

actions that had already been carried out. He testified that the Federal Government asks for overall

implementation plans from the GNWT “to have an idea of the funding required over a given period

of time because to be able to pry funding loose, it is useful to know what to expect in subsequent

years so that we can … so that we have time to go to Cabinet. It is a very long process to go to the

Federal Cabinet. So, we needed those schedules so that we could do that”.

I conclude that the overall plan recommended by the Special Committee, that is, a complete

multiyear implementation plan, does not exist. I also conclude that, in the GNWT, the negotiation of

cooperation agreements continues to be based on activity reports and action plans received from

each department and each agency.

N.

The Terriplan Study

In 2003, Canadian Heritage and the GNWT sponsored an evaluation of the 1999-2004 Canada-NWT

Cooperation Agreement. Entrusted to the Terriplan consulting firm (in association with Martin

Spigelman Research), this evaluation had the following objectives: measure the successes of the

implementation of the Agreement and the related areas of activity, determine what progress had

been achieved in accomplishing the goals of the agreement, identify the strengths and weaknesses

of the Agreement as well as the challenges to be face and recommend changes likely to improve the

effectiveness and the impact of the agreement. The Terriplan Study mostly examined aboriginal

languages “given that, comparatively speaking, they face greater challenges than does the French

language”. The report was published in March 2004, some six months after the submission by the

GNWT of its response to the final report of the Special Committee.

According to the report, “in general all the language communities are very satisfied with the

agreement”; however, “the Franco-ténoise community does not feel that the Agreement has

changed very much as far as the quality of all the services provided in French is concerned”. After

having noted the complexities of the information gathering system and the “possibly inadequate

level of funding”, the report made the following observation: “The funding levels and priorities must

reflect a longer-term vision of the communities as well as their short-term needs”. Among its

recommendations to the GNWT are the following:

•

negotiate a new five-year agreement starting in 2005-2006 providing for a

mechanism to deal with issues of implementation and management;

provide for a mechanism to intensify the participation of language communities in

58

the agreement renewal process while respecting its bilateral nature (government to

government);

•

improve and reinforce the administration and execution of the Agreement by

establishing clear guidelines concerning proposals and reporting needs, so as to

simplify the formalities and to allow the governments to meet the needs of the

signatories to the Agreement in a timely manner;

•

define more clearly the role of language coordinators within departments;

provide an orientation to GNWT staff on policies concerning official languages.

The Terriplan Report highlights those initiatives it deems to be “successful”: the provision of

translation services by the Department Justice, the provision of round-the-clock interpretation

services at Stanton Hospital, within half an hour following a request and the organizing of

awareness workshops and activities.

O.

Summary and observations

After having taken cognizance of the evidentiary elements relating to the implementation of the

NWT OLA, I have elucidated the following points:

1.

The distance, isolation, climate and dispersion of communities are challenges to be faced in

the provision of government services and communications in the NWT. Moreover, the GNWT faces

economic and social challenges as well as challenges of governance.

2.

Published in 1987, the Bastarache Report presented an overall plan for the implementation

of the NWT OLA. The GNWT’s obligations under the regime of the NWT OLA are analyzed therein

as a function of the following areas: the legislative process, the judicial system and the public

service. The author recommends the establishment of a centralized information centre, the

objective of which would be to provide direct access to government services in French as well as the

creation of positions designated bilingual. For its part, the GNWT favoured a decentralized approach

to the implementation of services in French within the government. Its implementation of the report

was “very partial”.

3.

In the New Economy Study (the evaluation of the 1991-1994 Canada-NWT Cooperation

Agreement), it was noted that the demand for services increased when their existence was known.

The study also deplored the lack of standards concerning services in French.

4.

The annual reports of the NWT LC Harnum indicated that, over the years, funds from the

cooperation agreements had been repeatedly returned to the Federal Government. Ms. Harnum

recommended that the GNWT clarify: (i) through regulatory provisions, the implementation of the

NWT OLA to government organizations; (ii) the application of the NWT OLA to private suppliers of

government services and (iii) the definition of the terms “significant demand” and “nature of the

office”. Ms. Harnum recommended that the GNWT develop an implementation framework for the

NWT OLA in its departments, boards and agencies.

59

5.

The problem of lapsed funds had repercussions on the funding of GNWT services and

communications. It contributed to a significant reduction of Federal financing starting in 1994-1995.

The lapsing of funds resulted notably in a chronic lack of long-term planning.

6.

Published in 1996, the Lutra Report noted the following shortcomings: (i) the absence of

guidelines concerning expenditures relative to official languages; (ii) the absence of an overall

evaluation of official language needs, and (iii) the absence of an overall plan for the implementation

of the cooperation agreement and, as a corollary, deficiencies in the use of available resources. The

report also recommended that the GNWT work in cooperation with the Franco-ténoise community.

7.

Until September 1997, no policy or guidelines had been issued to clarify the application of

the NWT OLA. This situation continued despite the following factors: (i) the development of

guidelines by the GNWT had been provided for in the framework of the negotiations for the 1991-

1992 cooperation agreement; (ii) the need to clarify the application of the NWT OLA had been

stated in the 1992-1993, 1993-1994 and 1994-1995 annual reports by the NWT LC. One of the

goals expressed by the PGD was to ensure “reasonable access” for the public to government

services and programs in the official languages. The PGD perpetuated the decentralized approach to

the extent that individual departments and agencies received the responsibility for the province of

programs and services in French, notably the translation of forms At the same time, the

responsibility for the implementation of the NWT OLA was removed from the sphere of the central

authority of the government (Department of the Executive) when the GNWT entrusted it to the

DECE.

8.

Reiterating the theme of the reports of the previous NWT LC, the 1996-1997 report from LC

of the NWT Tutcho recommended that the GNWT develop a plan for promoting official languages

and an overall accountability framework that would guide authorities at every level of government

regarding language issues.

9.

The March 1999 forum reiterated a 12-year old recommendation from the Bastarache

Report. The recommendation was that the GNWT establish a central documentation and reference

service in French, equipped with a 1-800 number. This forum raised once again the

recommendation of the 1992-1993 report from the NWT LC Harnum that GNWT employees receive

training in the area of language rights. The forum also recommended setting up a cooperation

committee. This recommendation was merely repeating in practical terms the comments in the

1996 Lutra Report to the effect that closer cooperation should be established between the GNWT

and the Franco-ténoise community concerning the cooperation agreements.

10.

In her 2000-2001 report, NWT LC Tatti reiterated some observations that had been

formulated earlier by Ms. Harnum. These observations noted that some officials were not familiar

with the NWT OLA. In light of this observation, NWT LC Tatti recommended that the departments

of the GNWT offer workshops about the NWT OLA to their staff. Moreover, echoing the words of

her two predecessors, NWT LC Tatti recommended that the government implement an action plan

for official languages.

11.

Published in March 2003, the final report of the Special Committee for the Review of the

NWT OLA concluded that the implementation of the NWT OLA was undermined by the significant

shortfalls in the area of political and managerial accountability. The provision of programs and

services in official languages were generally not coordinated and, when they were, it was usually

inadequately. The Committee recommended the following: the adoption of regulatory provisions

and a formal implementation plan for official languages in order to reinforce the principle of

accountability within departments and to clarify policies that are applicable to all interested parties;

the implementation in all government departments and organizations, of an adequate active offer

and an of an audit system to monitor it as well as the implementation of a single-window pilot

project.

12.

Published in March 2004, the Terriplan Study noted that the funding levels and priorities

must reflect the shorter-term needs of the communities and be guided by a longer-term situation in

the communities.

In the next section, I will apply myself to the analysis of the allegations of particular breaches of the

Plaintiffs’ language rights. For the purposes of this analysis, I will keep in mind the historical context

of the implementation of the NWT OLA, the principles of interpretation that are applicable as well as

the particularities of the NWT context.

VI.

The allegations of infringements

Paragraphs 37 to 42 of the amended statement contain allegations dealing with the particular

complaints of the individual plaintiffs who, according to para. 43 : (i) constitute breaches of their

rights pursuant to s. 16 to 20 of the Charter and/or of s. 14 of the NWT OLA, and (ii) are only typical

cases, several other similar cases were brought to the attention of the NWT LC in the form of

complaints or of cases of which the FFT was made aware.

A.

The allegations against the NWT LC

(i) the FFT’s allegations: the language of the annual reports

Mr. Lamoureux reported on two incidents concerning the annual reports produced by NWT LC

Tutcho.

Mr. Lamoureux testified, as is alleged in para. 37 of the amended statement, that he had called the

office of NWT LC on November 17, 1999; he was answered in English. He asked for a French

version of the 1997-1998 annual report. Later that same day, Ms. Tutcho indicated to him that a

French version of her report did not exist and that the NWT OLA did not obligate her to produce her

report in French. He did no submit a complaint to the Office of the Commissioner about this.

However, he testified that the FFT submitted a complaint to the NWT LC on August 29, 1998

because she had not produced a French version of her 1996-1997 annual report (published in

March 1998). Ms. Tutcho responded to the complaint in English on September 24, 1998, explaining

that legally she was not required to publish report in French, since it was not a document covered

by s.11 of the NWT OLA. Her report having been tabled in the Assembly, she suggested that a

request to obtain a copy in French be made to the Speaker of the Assembly, Mr. David Hamilton.

61

According to Mr. Lamoureux, the tenor of Ms. Tutcho’s response to the complaint was such that that

the FFT did not feel like Commissioner Tutcho was acting as a defender of the interests of the

Franco-ténois community.

As Ms. Shannon Gullberg, the current NWT LC noted, the first and second annual reports from

NWT LC Tutcho were produced in English with an active offer (if you want information in French,

please contact us). According to Ms. Gullberg, the primary objective of these annual reports is to

render accounts to the Assembly. However, it is clear in examining the text of the reports that they

have a broader readership. For example, in the introduction to NWT LC Tutcho’s 1996-1997 report,

the following can be found:

The Official Languages Act seeks to provide a linguistic safety net by ensuring that

citizens are able to deal with government in any of the Official Languages of the

NWT as provided for in the Act. That is why there is a constant need to hear the

views and the concerns of the citizens and to explain the Official Languages Act and

the role of this Office to them. Part of my job is to take the Act to the people.

Later in the introduction, NWT LC Tutcho thanks the volunteers who take an interest in language

issues. I am of the opinion that the report is intended as much for the public as it is for the

Assembly.

Mr. Robert Galipeau, the Head of the official languages section of the DECE at the time,

confirmed that if NWT LC Tutcho had wished to produce a French version of her report, she could

have used the DECE’s translation services.

NWT LC Gullberg noted that since 1998-1999, the Office of the Commissioner has had the practice

of publishing the annual reports in French.

It is clear from the evidence that the absence of a French version of the annual report is not an

isolated situation. The FFT tried to resolve the problem by submitting a complaint (in French). The

NWT LC replied to the complaint in English, justifying her actions despite the existence of an active

offer in her report allowing for the possibility of obtaining a French version and continued to publish

her report in English the following year. Therefore, it is understandable, in my view, that the FFT

would doubt her good faith as an arbiter dealing with complaints brought against institutions of the

government, bearing in mind the manner that she dealt with a complaint aimed at her own office.

The fact that the FFT asked for a French version of the annual report of the NWT LC after submitting

its amended statement, as well as with other allegations of breaches, does not excuse the breach if

the NWT LC had the obligation to produce her annual report in French. I will deal with this issue

later on in this ruling.

(ii)

The other allegations concerning the NWT LC

The Plaintiffs alleged in s. 55 and 56 of the amended statement that the Office of the NWT LC had

committed several general breaches and they submitted evidence to justify the fact that they had to

have recourse to the judicial option rather than submitting complaints to the Office of the

62

Commissioner, as provided for by the NWT OLA.

On June 18, 1998, NWT LC Tutcho responded (in a letter written in French, but which identified her

own office in English) to general questions posed by the FFT about the PGD, that is, whether or not

they respected the rights of Francophones She replied that this question “is still subjective” and

invited the FFT to obtain legal advice on the subject. I accept the uncontradicted testimony of Mr.

Lamoureux to the effect that he had interpreted Ms. Tutcho’s response as a commitment by the

NWT LC to obtain a legal opinion on behalf of the FFT. In a letter written in French, dated June 23,

1998, she dealt with the meaning of the term “government institution” in a reply to a letter from the

FFT and indicated “[...] if you have a specific complaint to make, I can certainly investigate it [...]”

Afterwards, the FFT lodged a complaint to the effect that the PGD did not respect the NWT OLA.

Ms. Tutcho replied on December 7, 1998 (in English, this time) that the complaint was too general

and she asked that the specific areas of non-compliance be identified.

Mr. Daniel Auger, President of the FFT at the time, testified that the FFT did not pursue the issue

but he did deplore the fact that the NWT LC never made a formal statement on the validity of the

PGD.

Mr. Lamoureux described the Office of the NWT LC during Ms. Tutcho’s mandate that it was a

“referral service”; the NWT LC was content to direct the numerous complaints submitted to her

office by the FFT (regarding government advertisements that did not appear in the Aquilon

newspaper) to the departments and agencies in question. He was reminded under cross-

examination that the previous NWT LC, Ms. Harnum, had indicated in her 1992-1993 report that she

used a similar mechanism to handle complaints, that is, she would write to the Deputy-Minister of

the department in question. But I note that two additional elements in the approach used by NWT

LC Harnum which, according to the evidence, were not adopted by NWT LC Tutcho: (i) she would

send a copy of her letter to the Deputy-Minister in question to the Official Languages Unit of the

Department of the Executive (the department responsible for the implementation of the NWT OLA at

that time) to ensure the coordination of efforts as well as the appropriate and complete nature of

the departmental replies; (ii) she often met with the Official Languages Unit to follow up on

complaints, and (iii) on her own initiative, she carried out investigations on the status of French-

language services in departments and agencies.

In describing her mandate and her functions in her 1996-1997 report, Ms Tutcho identified, inter

alia, the following subjects:

•

Monitoring the use of official languages within GNWT departments and

agencies to ensure their compliance with the spirit and intent of the Official

Languages Act,

•

Handling complaints and conducting inquiries about the use of official

languages [...].

However, the evidence indicates that Ms Tutcho did not carry out any audits of her own initiative in

1996-1997 (see “Figure VI” in the 1996-97 report). She carried out a special study and produced a

report in March 2000 on the issue of the privatization of government services after the privatization

63

of the aboriginal languages sections of the Languages Bureau in 1996.

Concerning Ms. Tutcho’s successor, NWT LC Tatti, Mr. Lamoureux acknowledged under cross-

examination that Ms Tatti had asked the Department of Transportation to reply to a complaint

lodged by the FFT on behalf of the plaintiff, Yvon Dominic Cousineau, regarding communications

and services at the Department of Transportation, that she had not only seen to the resolution of

the complaint but she had also asked the Department to provide a list of all their manuals that had

been translated into French, an approach that Mr. Lamoureux himself described as “vigorous”. In

her 2000-2001 annual report, Ms Tatti reproduced the results of a study carried out by her office on

the distribution of funds from the Canada-NWT Cooperation Agreement. However, Ms Tatti had

indicated during the examination for discovery that she had not undertaken any investigations on

her own initiative regarding the status of French-language services in the NWT.

I note that NWT LC Ms Tatti was appointed to her position barely a few months prior to the General

Meeting at which the FFT approved the legal recourse.

(iii)

The Territorial Defendants’ evidence

During the examinations for discovery held in July 2003, Ms Tatti indicated that there were no

bilingual positions in her office, that there was no message in French on her office voice mail, that

the information on her Web site was primarily in English but that a complete overhaul of her Web

site was underway. She could not confirm whether the plan was for the Web site to be in French

and English. Since her appointment three years earlier, she had not met with the departmental

language coordinators because she only dealt with their Ministers and Deputy-Ministers directly.

However, she had not met with them regularly to discuss official languages.

The situation regarding French-language services in the Office of the NWT LC does not seem to

have improved since 2003. Ms Gullberg testified that since she took office as the acting NWT LC in

the summer of 2004, her office had been consolidated with the offices of four other commissions

with a mandate to deal with complaints from the public about the GNWT. Since the summer of

2005, the receptionist who provides services for the five offices is Anglophone and the message on

her voice mail is only in English. However, Ms Gullberg, herself an Anglophone reached an arranged

with an employee of the Human Rights Commission for the latter to help her deal with complaints or

requests for services in French. Ms Gullberg noted that since the opening of the Office of the

Commissioner in 1992, most of time French personnel were on staff but no position at the office had

been designated bilingual. I note that a an employment offer for the position of executive secretary

for the Office of the NWT LC advertised only in an English newspaper on February 17, 2000

described the duties of the position as follows: “ [...] the general administration of the Office of the

Language Commissioner; [...] preparing and composing routine correspondence; [...] preparing [...]

reports [...]”, and the requirements of the position included notably: “[...] answer inquiries of a

general nature; [...] have the ability to speak English and one other NWT official language would be

an asset.” [Emphasis mine.] The ability to express oneself in French was neither a requirement nor

a preference associated with the position.

Ms Gullberg is an attorney in private practice and she fulfills her functions of the NWT LC under a

part-time contract. Since she took office, she has received two telephone calls regarding French-

64

language services and no formal complaint. She confirmed that her Office’s Web site was still in

English only. She testified that she expected to correct that situation shortly.

Ms Gullberg described her responsibilities, which consist of responding to complaints, working on the

Office’s Web site, preparing the annual report and promoting official languages (despite the transfer

to this latter and its associated budget to the DECE as part of the recent amendments to the NWT

OLA). She did not identify the projects that she planned to undertake of her own initiative to verify

the status of government services in French. She indicated that no individual or any office could

monitor all the issues dealing with language, particularly if no complaints are lodged. She added

that she would resolve any complaint lodged with her office. She is in the office to settle issues as

they occur. She does not belief that she had any particular control over the decisions to create a

bilingual receptionist position for her office and the other consolidated offices. She had not read any

studies on the impact of the availability of government services on the perceptions of individuals

about their language, nor about the additional clarifications. She has no written work plan for her

office for 2005-2006. Her functions as NWT LC represents perhaps 10% of her work time.

I conclude that the current NWT LC believes that she plays more of a reactive role as far as the

evaluation of the status of services in French from the GNWT is concerned. I note that NWT LC

Harnum, in her 1992-1993 annual report, had quoted the following comment from the 1992 annual

report of her federal counterpart, Mr. Goldbloom: “Complaints, those grains of sand in the

machinery of government, are in fact, the particles from which pearls are formed. They are an

essential feedback mechanism which allows organizations to improve service delivery to Canadian

citizens”. But as Mr. Lamoureux remarked, one does not build an implementation plan on

complaints.

B.

The allegations concerning the former Department of Natural Resources,

Wildlife and Economic Development

(i)

the allegations of the plaintiff, Fernand Denault

Mr. Fernand Denault is a native of Québec who has been living in Yellowknife since 1971. From

1984 to 1990, he was president of the organization which became the FFT during his mandate. He

once again assumed the position of president of the FFT in 2000, a position he still occupies.

Mr. Denault testified, as is alleged in s. 38 of the amended statement, that, for several years, he has

been receiving a questionnaire in English to complete (the “Hunter Harvest Questionnaire”) from the

Department of Natural Resources, Wildlife and Economic Development (which has been divided into

two departments since April 2005). He testified that he received the English questionnaire in June

1999, wrote in a corner of the questionnaire “en français s.v.p.”{in French, please} and sent it back

to the department, but did not keep a copy. He received no answer or a French version of the

questionnaire. However, around September 1999, he received a second questionnaire in English

identical to the first that was not accompanied by any offer of a French version. He tried to reach

the official languages coordinator of that department by telephone twice on November 19, 1999 but

he was unable to reach a Francophone employee; the message on the first voice mailbox that he

reached was only in English. He thought he had found that number from the telephone directory.

65

He called another number the same day, thinking he had reached the head office of the Department

of Wildlife Service. A woman answered in English, indicating that an employee able to speak French

would be back on Monday (the next working day). He did not pursue his inquiry. The attorney of

the Territorial Defendants challenged Mr. Denault’s refusal to wait one working day to solve the

problem with a Francophone official considering that he had already waited several months after

receiving the second questionnaire before contacting the Department. Mr. Denault obtained and

filled in a form prepared by the FFT to document requests for services in French made to

departments and agencies. He filled in the form the same day he made the telephone calls and

during the same period when other requests for services were similarly documented by other

individual plaintiffs. He denied wanting to “create” a situation in which there would be an

infringement of his rights. He had not lodged a complaint about this situation with the Department

nor with the NWT LC at the time, Ms Tutcho. The latter, in his opinion, was mostly busy promoting

aboriginal languages.

Mr. Denault alleged that his right to government services in French was infringed three times:

(i)

when he received on two occasions, in June and around September 1999, a

questionnaire written only in English with no active offer for a French version;

(ii)

when he was greeted by a message recorded only in English when he attempted to

communicate with the Department’s languages coordinator on November 19, 1999;

and

(iii)

when he was greeted in English when he placed another telephone call to the

Department on November 19, 1999.

Mr. Denault emphasized that it was not a question of understanding the questionnaire since it is

bilingual. But he qualified these incidents as attacks on his dignity and his sense of identity, adding

that they made him feel like “a second-class citizen”.

(ii)

the Territorial Defendants’ evidence

Ms Judy McLinton is the manager of the communications and public affairs services as well as

being the official languages coordinator for the Department. She was not aware of the fact that the

“Hunter Harvest” questionnaire had been returned by Mr. Denault with a request, written in the

corner of the document, for a French version. Ms McLinton stated that if she had indeed received

that note, she would have had the questionnaire translated into French; a French version of the

questionnaire did not exist in 1999. Despite her role as official languages coordinator and her

familiarity with Mr. Denault’s allegations pleaded in the amended statement, she testified that she

did not know if a French version of the questionnaire existed now or if an active offer of a French

version is included in the English version. She confirmed that one of the telephone numbers dialled

by Mr. Denault in November 1999 was that of the administrative assistant in the Department’s

policy, legislation and communications division, which does not offer any services to the public. The

other telephone number is that of the communications and public affairs manager for the

Department, a position that was vacant in November 1999. She did not know if that number

appeared in the telephone directory.

66

In examining the allegations in the context of French-language services offered by the department

in question, Ms McLinton testified that there was no policy in her department to determine which

documents will be translated into French. However, since she took over the position in January

1999, fishing and hunting licences are provided in French and in English. She identified several

leaflets published in French by her Department. Some older publications contain her Department’s

logo in English. She confirmed that the French version of the 2005 edition of the hunter’s guide is

being prepared and that the fisher’s guide is available in French. Her Department translated a

leaflet into French after they received a request for it. She estimated that less than 70% of the

documents published in English by her Department are translated into French. However, she

pointed out the only the text of certain ad hoc documents is translated into French. She replies in

French to any correspondence addressed to the Department in French.

Ms McLinton estimates that the duties of official languages coordinator take up about 10% of her

time. Her office is located in the head office of the Department but here is no receptionist. While

the public can reach the Department by telephone or be e-mail, most of the calls are transferred to

regional offices. Her Department’s Web site to which the public can have access is in English only.

An employee of the Department in Yellowknife who receives the bilingual bonus can be reached on

demand and, in his absence, it is possible to communicate with a French employee of the

Department in Norman Wells who also receives the bilingual bonus. Ms McLinton did not know if

the bilingual employee in Yellowknife answers the telephone in French but she indicated that there

was no policy requiring it. Neither this employee nor the bilingual employee in Norman Wells

occupy a front line position or answer a telephone line intended for the public.

Ms. McLinton affirmed that there was no audit system for services and communications or any

implementation plan for the NWT OLA within her Department. She does not receive any instructions

from her Deputy-Minister regarding official language coordination.

I accept Mr. Denault’s description of his communications with the Department in question and their

impact, and I accept that the questionnaire was not accompanied by an offer of a French version.

Moreover, Mr. Boutin confirmed that the DECE had translation services available for such

documents.

As for the English greetings that Mr. Denault received on the telephone, Ms McLinton confirmed

that her service received calls from the public. Mr. Denault pursued his attempts to communicate

with the coordinator and reached a person who offered service in French the next business day. I

conclude that Mr. Denault used the telephone directory to reach the Department. In addition, I note

that the process described by Ms McLinton to obtain access to the services of a bilingual employee in

Norman Wells when the bilingual employee in Yellowknife is not available.

C.

The allegations concerning the Department of Health and Social Services

(i)

the allegations of the Plaintiff Suzanne Houde concerning the

Stanton Regional Hospital

67

Ms Suzanne Houde’s allegations appear in s. 39 of the amended statement. Ms Houde is a native

of Quebec and lived in Kingston, in Ontario, for three years before taking up residence with her

family in Yellowknife in 1997. Ms. Houde testified that she has been to the Stanton Hospital in

Yellowknife several times since 1997 to have several health problems treated. During this period,

on several occasions, she received treatment from physicians able to express themselves in French

but had rarely been treated in the emergency room by a Francophone physician or nurse. She also

testified that she rarely received the services of an interpreter at the hospital but she acknowledged

that Ms Regina Pfeifer (head of language services at the hospital) or a replacement had acted as

an interpreter for her on several occasions. She continues to have troubles understanding English

and expressing herself in that language.

I accept the testimony of Ms Houde’s spouse, Mr. André Légaré, who stated that at the time of the

first visits to hospital with his spouse, in 1997, they asked for the services of an interpreter. Even if

the hospital asserts that the service is available, this is either not the case or one has to wait a long

time. He described this problem as “omnipresent” from 1997 to 1999, but since then, he had been

able to observe a slight improvement. Mr. Légaré testified that he had volunteered to interpret

despite the fact that he did not know the medical terminology. For him, waiting for an interpreter

only aggravated his wife’s already stressful situation.

Mr. Légaré accompanied his wife to the hospital when he could. He noted that during their frequent

visits, the hospital staff recognized them and, since he himself could speak English, Hospital

personnel would “volunteer him” to act as an interpreter. Because of this, he stopped asking for an

interpreter. His wife discussed the interpretation problem with Ms Pfeifer, but did not lodge a formal

complaint with the NWT LC before participating in this litigation.

Ms Houde describe a series of visits to the emergency room, the first taking place on May 23, 1997,

shortly after her arrival in the NWT, to have an injury to her leg treated. No interpreter being

available, her husband had to translate for her and to sign the consent form to obtain health care

services, As no interpreter was present for her appointment with a physiotherapist after her visit to

the Hospital, the appointment was postponed.

The next day, Ms Houde returned to the emergency room suffering from an acute headache. She

explained that she had “mal au coeur” [Translator’s note: while this expression translates

literally as having pain or discomfort in the heart, it is merely an idiom – the heart is not

involved] meaning that she felt like vomiting. However, personnel in the emergency room had her

undergo an electrocardiogram. The Hospital had reached an interpreter by telephone and Ms Houde

had tried to explain to him that there was nothing wrong with her heart but that she needed an

intravenous solution; the physician later confirmed that her heart was normal and that it was indeed

a migraine. During the trial, she emotionally described her fear that during that visit to the

emergency room that she would be given medication for the heart when it was a completely

different problem.

The evidence did not establish the staff at the hospital misunderstood Ms Houde at the time of this

visit in light of the following circumstances: (i) under cross-examination, Ms Houde admitted that

she had been suffering from high blood pressure for a long time; (ii) the Hospital’s notes about that

visit indicate that she was complaining of nausea and also a “slight tightness in her chest last

68

evening, none at present; [...] heartburn”; (iii) the Hospital’s notes highlighted personal details

which only she was in a position to provide about a brother who had suffered a heart attack at the

age of 34. Ms Houde herself acknowledged under cross-examination that is was perhaps not

unreasonable for the hospital, given the symptoms that she had described, to have her undergo an

electrocardiogram.

Ms Houde did not allege that she had been misunderstood during other visits to the Stanton

Hospital.

Ms Houde testified that during some of her visits to the hospital, she asked for the assistance of an

interpreter, but the hospital did not provide one. Even when she did have the help of an interpreter,

she wondered if he “was going to say the right thing:, which she described as “very stressful”. For

that reason, she took to returning to Quebec once a year for her medical visits.

The Hospital’s July 3, 1997 notes indicate that an interpreter was not present during Ms Houde’s

visit to her doctor the same day, that she was not accompanied by an interpreter and that there

were communication problems. These notes also indicate that her physician wanted to send her to

an orthopaedist and that Hospital staff were to make sure that an interpreter would be present for

that appointment. However, the July 16, 1996 letter from her doctor to the orthopaedist indicated

otherwise: ”Thank you very much for agreeing to see this very pleasant French lady, whom I hope

will be accompanied by her husband, as she is unable to speak any English”.

Ms Houde went to the hospital on May 7, 1998 because of a migraine. The Hospital’s notes confirm

that her husband was present and acted as interpreter but was unable to stay for the whole visit.

Ms Houde presented herself for allergy tests on June 22, 1998. The consent form for the tests,

explaining the risks and reactions associated with the tests, was written in English only was signed

by Ms Houde and her husband, who is identified as “interpreter”. However, Mr. Légaré’s signature

did not appear in the section of the form that confirmed that he interpreted the information to the

best of his knowledge, that the patient fully understood the information and the importance of the

form. In this situation, the Hospital was content to rely on Mr. Légaré, who had no medical

experience, to translate information to the patient concerning the risks arising from the tests and did

not observe the prescribed formalities for situations where interpreters are involved in the

translation of these forms.

Another consent form, in English only, dated April 15, 2002 explaining the risks and reactions

associated with a heart test, was signed by Ms Houde and, in the section for the interpreter, by her

husband. Ms Houde testified and I accept this testimony, that Mr. Légaré had to translate this form

because no interpreter was available.

Another consent form, once again in English only, dated June 26, 2002 explaining the risks and

reactions associated with an X-ray examination by injection, was signed by Ms Houde, but the form

does not indicate whether or not it was translate, the section reserved for the interpreter not having

been filled out.

In addition to her visits to the hospital, the emergency room or to undergo tests, Ms Houde was

69

hospitalized four times at the Stanton Hospital starting in 1997. She underwent a laparoscopy on

January 28, 2000. Both physicians who performed the surgery were Francophones. She testified

that her husband accompanied her to the hospital but that he could not stay with her after the

surgery. Ms Pfeifer translated the consent forms for the surgery. The Hospital’s notes written at

9:20 (more than an hour before the start of the surgery) indicated that Ms Houde’s spouse could not

stay during the two hours of post-surgical recovery and that the patient did not understand English.

Despite this, according to Ms. Houde’s uncontradicted evidence, there was no interpreter in the

recovery room after the departure of the two physicians. She asked for medication but the nurse

did not understand her; according to Ms Houde, she had to “suffer”. She acknowledged under

cross-examination that she had not suffered any medical consequences or complications because of

the absence of an interpreter in the recovery room during this few hours. However, I accept that

this incident caused unnecessary stress and suffering to a woman who already had problems with

anxiety for which she was taking medication, according to the Hospital’s notes recorded during this

hospitalization and before her surgery.

Ms Houde was hospitalised from April 23 to 27, 2000 for pyelonephritis. During the trial, she

indicated that she did not remember if she had obtained the services of an interpreter. During the

examination for discovery, she confirmed that she had indeed has access to an interpreter. The

Hospital’s notes confirm that Ms Pfeifer acted as an interpreter to provide instructions for her release

from the hospital. Ms Pfeifer also acted as interpreter to provide the instructions for her release from

the hospital at the time of Ms. Houde’s hospitalization on July 20, 2000. The evidence does not

show any breach in terms of the service of an interpreter as afar as these two hospitalizations are

concerned.

Ms Houde was hospitalized with abdominal pain on June 19, 2002; her spouse acted as interpreter.

However the Hospital’s notes indicate: “Speaks mostly French however can understand English. [...]

Speaks English only fairly but understands why she is here and understands tests will be done”.

However, a considerable number of the Hospital’s notes concerning previous visits by Ms Houde

confirm her problems of understanding and her need for an interpreter.

Ms Pfeifer was an employee of the Stanton Hospital from 1999 to 2002 as the official languages

coordinator. She testified that she served as interpreter for Ms Houde about seven times and that

she had accompanied her to appointments with specialists and in clinics. She had given Ms. Houde

her pager number for after-hours communication, in case of an emergency. She tried to find a

replacement when she herself was not available. In view of the number of visits to the hospital by

Ms Houde as reflected in her medical file, I accept Ms. Pfeifer testimony to the effect that she acted

as interpreter about seven times. I also accept Mr. Légaré and Ms. Houde’s testimonies that Mr.

Légaré acted as interpreter several other times.

Ms Houde testified that she returned to Quebec in July 2002 to undergo a hysterectomy. She was

concerned about possible complications and decided to undergo the surgery in an environment

where medical care was available in French. She underwent the surgery on September 22, 2002

and returned to Yellowknife on October 30, 2002, after about a month of convalescence. She

produced as evidence airplane tickets purchased using Aeroplan points, at a value she estimated to

be $1500. Mr. Légaré confirmed that his spouse was afraid to have the hysterectomy in Yellowknife

because of the lack of language services at the Stanton Hospital. He testified that for him and his

70

wife, that separation had been difficult, especially because she had undergone a major surgical

intervention and he had only been able to stay with her in Quebec for eight days.

(ii)

the other evidentiary elements presented by the Plaintiffs

concerning health services in French in Yellowknife

Several individuals testified about the state of French-language services in health centres in

Yellowknife and elsewhere in the NWT. Their testimonies were not the subject to an application for

damages but they are admissible to provide a context for the Plaintiffs’ allegations in the area of

health care, more specifically to address the argument that the alleged breaches are not isolated

cases.

Mr. Fernand Denault testified that when he presented himself to the reception desk at the hospital

for his appointments for diabetes in 2000 and 2001, he had the habit of saying “bonjour”. If the

hospital replied to him in English, as was the case except for a few occasions, he would continue in

English. He never asked for an interpreter because he speaks English well. However, he was able

to obtain Francophone medical care from his family physician.

His spouse, Ms. Johanne Denault, is a native of Quebec who did not understand English well

when she moved to Yellowknife in 1971. Since then, she has been involved in Francophone

organizations. She has been an employee of the Department of Health and Social Services of the

GNWT for 24 years.

Ms Denault testified that there has been English and French signage present in the reception area of

her department and on every floor of the building for several years now. The Department asked her

to provide French-language services for approximately ten years and she received the bilingual

bonus during this period. She answered several calls during the year and translated a few letters.

But, of the six Francophone employees in her Department, only two of them are currently identified

as being able to provide services in French. While acknowledging that there is a labour shortage in

the public sector of the NWT and that 30% of physicians recently left Yellowknife, Ms. Denault was

of the opinion that her Department could fill some of the doctor and nursing positions designated

bilingual. She recently underwent a mammography; the technician, detecting her French accent,

greeted her in French but continued the intervention in English.

Mr. Alain Bessette, Director-General of L’Aquilon newspaper, is a native of Quebec and came to

Yellowknife in 1990. He testified that, over the years, he has been to the Stanton Hospital after

sport-related accidents. In 1993, with the assistance of the official languages coordinator, a

Francophone nurse interpreted a physiotherapist’s instructions. But after comments were made at

the time of his second visit to the Hospital about the fact that he was able to speak English, he

stopped asking for services in French indicating that “I am not the type to cause trouble”.

Ms. Francesca Rémillard, originally from Quebec, arrived in the NWT in October 2002. She

described her English-language skills as “rather non-existent”. She made an appointment at the

“Great Slave Medical House” clinic on July 19, 2004. Ms. Laura Seddon, Manager of

Communications from 1998 to 2004 at the Department of Health and Ms. Denise Canuel, Chief of

Policy and Government Affairs for the same department, confirmed that the clinics in the NWT are

71

under the responsibility of the Department of Health and Social services in the GNWT.

Ms. Rémillard testified that she had been greeted at the clinic’s reception in English, that there were

no signs in French and that the appointment card that the clinic gave her was in English. She asked

at the reception if anyone spoke French and they replied in the negative. Although the clinic had

scheduled an interpreter for her appointment, she was unable to translate to English some of the

medical terms used by Ms. Rémillard, who had a certain amount of knowledge of medical

terminology because of her job in electrical depilation. She testified that she was stressed when she

was unable to make herself understood by the physician. Her testimony about the emotional effect

of not being able to take advantage of health services in her own language was clear and was

reminiscent of the feelings of anxiety expressed by Ms. Houde about the same thing. After the

appointment, the doctor sent her to the Stanton Hospital for a blood test. The interpreter gave Ms.

Rémillard her card so that she could schedule an appointment and have an interpreter during these

tests. She tried to reach the interpreter by telephone later, left a message on her voice mail but did

not get an answer.

Ms. Rémillard testified that upon arrival at Stanton Hospital for the tests, no one at the reception

was Francophone but that a secretary who spoke a bit of French helped her to fill in the forms

(written in English) for the tests.

When she went back to the clinic, she preferred to ask her husband, who speaks English, rather

than an interpreter, to accompany her for a gynaecological examination because the presence of a

third person for that type of examination was “not at all pleasant”. She felt that being able to

consult a Francophone doctor or nurse would have been much more reassuring.

Mr. Léo Paul Provencher, Director-General of the FFT since July 2003, testified that he

accompanied Ms. Diane Fortin to the Stanton Hospital on November 2, 2003, the latter having

injured herself. He asked for service in French but he did not obtain it.

Ms. Arlette Fonteneau, a native of France, arrived in Yellowknife from Montreal in February 1998

to fill the position of director of the local Francophone daycare centre. She speaks very little English.

She testified that, at each of her visits to the Stanton Hospital, the greeting at the reception was in

English. She had to resort to the use of an interpreter, which prolonged her visits but this service

was never refused.

Ms. Fonteneau testified that the hospital notes concerning her visit on July 12, 2005 for a stress

test, indicated as symptoms “chest pain spreading to ribs”, whereas she had explained to the

technician that she had chest pains radiating into her breasts. She confirmed under cross-

examination that some of her ribs are located beneath the breasts and if there was indeed a

misunderstanding, she did not suffer any consequences. I conclude that it was not established by

the evidence that there was a misunderstanding about her symptoms.

Ms. Brigitte Bergeron has been teaching at the Saint Cyr francophone school in Yellowknife since

1999 and is responsible for student support programs. She testified that it has only been for the

past two years that a Francophone public health nurse has been visiting the school. She noted that

the public health nurse’s position is not designated bilingual. The other nurses who come to the

72

school to administer vaccinations are not Francophones.

Mr. Yvon Dominic Cousineau described services provided in English only at the Hospital during the

birth of his daughter in January 2002, but he admitted that he did not ask for service in French.

(iii)

the allegations of the Plaintiff Pierre Ranger concerning health

services in Hay River

These allegations appear in s. 41 of the amended statement. Mr. Pierre Ranger is a native of

Québec who has been living in the NWT for 21 years. He could manage in English when he arrived

in the NWT but stated that is English is not “100%”. He testified that in November 1999, he went to

the H.H. Williams Memorial Hospital in Hay River after have suffered a back sprain at work. A

medical report on his hospital file confirmed his visit on November 12, 1999 and the nature of his

complaint. He was greeted at the hospital reception in English. Despite the presence of an active

offer sign in three official languages (including French) and his request to obtain service in French, I

accept his testimony to the effect that the hospital had indicated that no translator was available.

Mr. Ranger completed the Workers’ Compensation Board forms, written in English, regarding the

accident that he suffered. He testified that when his attorney wrote to the Board in French and in

English to obtain a copy of his file, that agency replied to him in English only.

He testified candidly that after the November 12, 1999 accident, he also obtained and filled in the

form “Request for Service in French” prepared by the FFT for the purposes of litigation. He knew

prior to November 12, 1999 that the FFT wished to launch a lawsuit and that they were looking for

persons prepared to be plaintiffs. He was president of the Association francophone de Hay River at

the time. He affirmed that he would not have made a request for service in French at the Hay River

hospital if it had not been for the FFT suit and that he only made that request for the purposes of

the litigation. He stated and I accept his testimony that he had not “invented” his injury for the

purposes of the litigation. That being said, not having had the intention of exercising his right to an

interpreter for the purposes of the litigation, it is not surprising that he described his experience at

the hospital as being only “a bit frustrating”.

Mr. Ranger testified that he did not complain to the Department of Health and Social Services or to

the NWT LC as a result of the incident.

The Territorial Defendants submitted in evidence French versions of a series of forms used by the

Workers’ Compensation Board, notably the worker’s accident report.

(iv)

the rest of the Plaintiffs’ evidence concerning health services

outside Yellowknife

Mr. Claude Doucette is a teacher residing in Fort Smith, a village with a population of about

2,500 people, 60% of whom are Aboriginal. He did not doubt the 2001 data from Statistics Canada

indicating that there was a population of 65 people with French as their mother tongue in Fort Smith

but he estimated that some 100 to 120 residents of the village are Francophones. I accept this

testimony on this subject, given that he has been living in that community for over ten years.

73

According to Mr. Doucette, once you leave the reception area of the health centre in Fort Smith,

where the service is in French, everything else takes place in English. He was only treated once by

a Francophone physician.

Ms. Marie-Christine Aubrey is a native of France and she has been living in Fort Smith since

1991. She responded to an advertisement stating that a bilingual position was open at the Fort

Smith health centre in January 1992 and passed the oral and written French examinations. She has

been working since February 1992 at the health centre as a receptionist and coordinator of French

language services. The centre consolidates several health services. She is filling the only bilingual

position at the centre and receives the bilingual bonus. A Francophone nurse at the centre also

receives the bilingual bonus.

As soon as she took over the position of coordinator of French-language services, Ms. Aubrey (i)

familiarized the centre’s staff about her services; (ii) displayed signs in French about the active offer

in the clinic, the hospital and in her office; (iii) established a budget for the purchase of French

magazines for the patients; (iv) set up a round-the-clock interpreter service totally made up of

volunteers after normal business hours, and (v) ensure that there was an active offer on the

telephone and in person at the centre. She remarked that when she greets Francophones in their

own language, they speak to her in French.

Ms. Aubrey testified that 50% of her salary is included in the $50,000 annual budget allocated for

French language services at the centre comes from the Canada-NWT Cooperation Agreement and

that the rest is paid by the health centre. In her opinion, the management of the centre is doing as

much as possible to attract Francophone doctors and nurses. She acknowledged that recruitment is

a challenge to be faced, that doctors at the centre only have three-month contracts and that, if

there were a choice to be made, it would be preferable to have access to a Francophone doctor or

nurse rather than a French-language reception service.

For a while when she first took on the job, Ms. Aubrey kept track of the number of requests she was

receiving for services in French but she had to give up that exercise because of the requirements of

her position. At the time, she was receiving three or four requests for services a day and she

receives more now. She acknowledged that that the figure that she had for 1992-1993, i.e. 1,847

requests for services in French were not limited to medical services. She pointed out that, in

addition to the Francophone population of Fort Smith, the older Métis in the region spoke to her in

French. She added: “Because it is a small community, I am very well-known. It’s a service that I

offer them and which they use. So, that is why this number reflects that and I had indeed

mentioned it to Official Languages, not just to the Francophones”.

The situation described by Ms. Aubrey supports the conclusions of the New Economy study,

according to which the demand for service in French increases once the service is known. She

invested a lot of energy to ensure that there were French language services at the health centre

despite the small number of Francophones at Fort Smith, and her services are used regularly.

Ms. Nadia Laquerre, a native of Quebec, lived in the NWT from 1997 until November 2003, when

she returned to Quebec. She was living in Fort Smith at the time of the birth of her two children.

74

She had decided to give birth at home with the help of a Francophone midwife, because there were

no Francophone doctors in Fort Smith and the process that she chose was for her, more human.

Ms. Lorraine Taillefer is a native of Quebec and has been living in Hay River since 1990. She is

the principal of the Francophone Boréale school. During two extended stays in the hospital in Hay

River for the birth of her children, born in 1994 and 1996, the medical and nursing services were

only available in English, a situation that still persists today, as far as she knew personally, given

that she goes to the hospital several times a week.

Mr. Claude Gervais is a native of Quebec who moved to Inuvik in 2001. He is employed as the Fire

Commissioner for the Department of Municipal Affairs and is a safety consultant for new buildings.

Inuvik is not a zone designated for French by the PGD. However, Mr. Gervais pointed out the recent

accelerated level of commercial and residential development in Inuvik, which he believes has 3,500

residents, 40 to 55 of them Francophones, and the plans for the eventual construction of a gas

pipeline in the Mackenzie Delta. Since his arrival in Inuvik in 2001, three residential districts have

been built as well as 75 to 80 residential buildings, two hotels, a prison and a college. The outdoor

sign on the hospital built in 2003 is in English only but signs in four official languages (including

French) can be found inside the hospital. The telephone greeting for appointments is in English.

Ms. Anne Church, a native of New Brunswick, a nurse, arrived in Inuvik in 2000. She is the

coordinator of continuing education for the Inuvik campus of Aurora College. She testified that the

hospital in Inuvik currently has a Francophone doctor as well as an X-Ray technician but that the

greeting at the hospital is in English most of the time. Despite her professional experience in

medical care, questions about her personal health worry her and she prefers to discuss them with a

Francophone physician or technician. However, she has never had the impression of being poorly

understood when she received medical care.

Ms Church acknowledges the acute problems in recruiting medical personnel in Canada but

emphasizes that one cannot expect to recruit Francophone personnel without first making the

request. She notes the current presence at the hospital of three bilingual medical students. She

proposed that the hospital offer short-term contracts to physicians and nurses until such time as the

positions designated as bilingual can be filled.

Ms. Church offered her services as a bilingual nurse when she arrived in Inuvik, but she was told

that they had no position to fill. Ms. Lynn Elkin, Assistant Deputy-Minister of human resources for

the FMBS, indicated that she was not aware of that incident and was hesitant to discuss such a

specific case in the framework of a public trial. I am of the opinion that this reluctance on Ms.

Elkin’s part regarding a specific incident is not an indication that other factors may have influenced

the reply from the Inuvik Hospital to Ms. Church’s employment application.

75

(v)

the Territorial Defendants’ evidence concerning the recruitment of

health professionals

According to Ms. Denise Canuel, $150 M will be reserved over the next five years for a nation-wide

improvement to health services and she is currently working on a management plan for the three

Territories. She added that the Prime Minister and the provincial Premiers have recognized, at the

time of the unveiling of this project in 2004, the challenges associated with offering health services

in minority language communities as well as the fact that recruitment problems are more acute in

the Far North. She affirmed that the Federal Government has committed itself to draw up a 10-year

plan to face this challenge.

Dr. André Corriveau, Chief Medical Officer for the NWT who is also responsible for public health at

the Department of Health and Social Services, confirmed the existence of a global shortage of

physicians and nurse. He noted the challenges associated with recruiting professional personnel in

the North in view of the geographic and professional isolation, which is even more acute in the small

communities. He summed up the factors that aggravate the problem of recruiting Francophone

physicians in the NWT:

•

the North is competing with other regions of Canada to obtain the services of

physicians;

the NWT maintains connections mainly with the University of Alberta, in Edmonton,

among other Western universities, where the number of Francophone students is

limited;

•

Quebec universities already have connections with their own regions which limits the

number of students from those universities available to go practice elsewhere in the

country;

•

Quebec’s new Francophone graduates tend to work in remote regions of their own

province rather than elsewhere in the country;

recruitment in remote regions requires the expenditure of additional funds.

According to Dr. Corriveau, the best way of recruiting physicians in the North is “word of mouth”,

combined with a fair degree of persistence. It is preferable that Francophones take charge of

recruiting Francophone doctors to ensure that the interested candidate is aware of the presence of a

Francophone community.

Dr Corriveau noted that there is no permanent doctor in Fort Smith and that travelling doctors are

filling three of the six physician positions at the Hay River Hospital. His Department signed an

agreement with Edmonton’s “Capital Health Authority” to ensure the health of patients who are

residents of the NWT; in fact, about 98% of the specialists who provide treatment in the NWT come

from Edmonton. There are no contacts in Québec or in Ontario for the purposes of French-language

consultations in the NWT. Dr Corriveau could not remember any case where the GNWT had covered

the travel costs for a patient to go to a medical centre located any farther than Edmonton, even

76

though the NWT health insurance card is accepted throughout Canada. However, in his opinion, it

is preferable to establish connections with specialists who are geographically more accessible.

Dr Corriveau emphasized that it is very difficult to establish equivalence criteria for foreign doctors,

since most of them would have to redo their internship.

According to Dr. Corriveau, the problem in recruiting nurses is even more serious: several

communities such as Inuvik have no permanent nurse and the turnover rate is 80%. However, the

problem of equivalence criteria for foreign doctors does not apply in their case. In fact, recently,

some nurses from the Philippines have been recruited to the NWT. It is equally difficult to recruit

pharmacists and X-ray technicians.

Ms. Elkin (the Assistant department of Human Resources responsible for the provision of human

resource services for all departments) repeated Dr. Corriveau’s comments about the geographic and

professional challenges in recruiting health professionals to the Far North. She cited the turnover

rate of medical personnel of 22% in 2004 in the NWT. In fact, nurses make up the largest part of

that figure. She noted that salaries in the NWT are comparable, or even much higher than, salaries

in other regions of the country. In Yellowknife, there are 29 positions for doctors but 12 doctors

have left there positions over the past year and seven or eight the previous year. She also testified

that the situation is even more acute where specialists are concerned: only two-thirds of the 21

specialist positions are filled at the moment. She described the case of a Yellowknife

ophthalmologist who took an extended holiday, which forced an 80-year old retired colleague to fill

his position during his absence. She noted that two pharmacist positions at the Stanton Hospital

have not been filled for the past two years.

Ms. Elkin testified that her office is making efforts to recruit doctors and nurse by participating in job

fairs, by publishing employment offers in newspapers directed at nurses and distributed throughout

Canada and by recruiting nurses abroad. However, she could not indicate how often health

professional positions were advertised in the Francophone press in Québec, explaining that she had

not looked at the numbers for three years. She did not know if physician positions were advertised

in the Francophone press elsewhere in Canada. The GNWT carries out recruitment of doctors in

New Brunswick, but she could not confirm if Francophone doctors are targeted. She pointed out the

participation of bilingual people from the NWT such as Dr. Corriveau at job fairs in the past.

Mr. Thomas Charles Parker, previously Assistant Deputy-Minister at the Department of Health

and Social Services, is now the Director-General at Stanton Hospital. He reiterated Ms. Elkin’s

observations about the dearth of medical specialists in the NWT as well as those of Dr. Corriveau

about the challenges posed by geography and climate in the recruitment of health professionals to

the NWT.

He outlined the two main means of recruiting physicians at the hospital: advertisements in the

Canadian Medical Journal and the Hospital’s participation in job fairs (including three in Québec over

the past 12-18 months).

He highlighted the difficulties associated with the recruitment of nurses from the South, but he did

note the existence of a training program for nurses at Aurora College which allows for the training of

77

25 to 30 graduates a year. He hopes that the hiring of nurses already living in the community will

reduce the turnover rate. His hospital advertises positions in journals aimed at nurses as well as in

the most widely read Anglophone newspaper outside the NWT and in French in L’Aquilon as well as

in New Brunswick.

Dr. Corriveau acknowledged the critical importance from the physicians’ point of view, to understand

the information conveyed by the patient and, from the patient’s point of view, to understand the

information communicated by the doctor. He himself worked almost his entire career in minority

communities where he had to work with interpreters and he noted the difficulties associated with

the use of interpreters “to obtain the correct information and that can make an enormous difference

in terms of the decisions we have to make”. His comments are bolstered by the experiences

described by Ms. Houde and Ms. Rémillard. Despite my conclusion that there had been no

misunderstanding about their care, both admitted that they had the impression of having been

misunderstood.

In the case of Ms. Houde, during her visit to the emergency room on May 24, 1997, the services of

an interpreter could be obtained but only by telephone, which made it very difficult to explain each

step of the hospital’s interventions concerning her care. During other visits, she had to depend on

her spouse to explain her symptoms to the health professionals and, on several occasions, for him

to explain to her the risks associated with a medical action, even though he had no medical training.

In the recovery room, she was without an interpreter, a situation the hospital was aware of before

her surgery. It is not surprising then and I accept this testimony, that Ms. Houde was worried when

it became an issue of major surgery and that she preferred to undergo that surgery in Québec. In

the case of Ms. Rémillard, she had noted some difficulties with the interpretation of terminology at

the clinic, she did not have an interpreter who was also a nurse during a personal medical

examination and she had difficulty reaching an interpreter when she needed one for her tests at the

hospital.

The testimonies of Dr. Corriveau, Ms. Elkin and Mr. Parker clearly established the difficulties of

recruiting health care professionals are more acute in the North. However, the evidence did not

establish that there exists a systematic process in the Human Resources Division of the Department

of Health and the regional administrations that specifically target the recruitment of Francophone

professionals. Mr. Parker did not know if his employee who is responsible for recruitment speaks

French. Ms. Elkin was not in a position to say how many Francophone physicians were practicing in

the NWT. According to Ms. Denault’s testimony, bilingual personnel are underutilized within the

Department of Health. Even though Ms. Elkin indicated that officials and local Francophone

physicians have already participated in job fairs for physicians in Quebec, there was no indication

that there was a concerted plan to reach Francophone professionals at job fairs that regularly take

place in Quebec as well as in New Brunswick.

78

(vi)

the recruitment of Francophone health professions and the GNWT’s

affirmative action policy

According to Ms. Elkin, the GNWT’s affirmative action policy adopted in 1989 gives first priority to

the hiring and promotion of its Aboriginal employees and then to non-Aboriginal persons who are

native to the NWT, to long-term residents and to disabled persons. For some positions, the priority

is given to Aboriginal females. Ms. Elkin explained the purpose of this policy to ensure

representation of the Aboriginal population within the Government, to provide opportunities for

employment and advancement for long-term residents and to remedy the historic under-

representation of disabled persons in the public service. She testified that Aboriginals represent

from 31 to 32% of the public service of the NWT for the past ten years and that the goal is to raise

this number to 50%.

The Plaintiffs are demanding the creation of positions designated bilingual within the Government

and, in particular, within health services. For Ms. Elkin, the creation of positions designated bilingual

would have a paralyzing effect on the affirmative action policy. She noted that the front-line

positions would be the most affected, that is, the less specialized positions for which there are better

opportunities to hire Aboriginals. She favoured the flexibility associated with providing a bilingual

bonus. In her opinion, the creation of bilingual positions meant that a position would have to be left

vacant pending the hiring of a bilingual employee. In terms of the health sector, recruitment

problems already posed a great challenge, the designation of bilingual positions did not represent,

according to Ms. Elkin, either a practical or an effective solution.

(vii) the Territorial Defendants’ evidence concerning health services in

French

Health services in the NWT are managed by eight regional administrations (“Regional Authorities”),

one of which consists solely of the Stanton Hospital, under the responsibility of the Department of

Health and Social Services.

(a)

Stanton Hospital

Mr. Parker testified that the Stanton Hospital is the referral centre for the NWT; patients who need

specialist services are transferred to the Stanton from primary care regional centres. The Hospital

sends its patients to Edmonton for specialized care that is not offered in the NWT.

The Hospital’s official languages coordinator reports to the Director of Patient Care who, in turn,

reports to Mr. Parker. According to the Coordinator’s job description provided by Mr. Parker, this

role seems to be well defined, since he or she:

•

speaks French and English;

is responsible for the interpretation of the PGD, signage, the promotion of the

Hospital in the Francophone community and the promotion of services in French

among Hospital staff;

79

•

can be reached (by cellphone) during the day to act as interpreter or to obtain this

service;

prepares a schedule for the services of competent French interpreters after normal

hours, who are paid for their services;

•

organizes interpreter services for patient appointments with specialists;

is responsible for the allocation of the bilingual bonus to employees;

presents quarterly activity reports and end-year reports to the Director of Patient

Care which, Mr. Parker, in turn, reviews and forwards to the Department of Health

and Social Services.

Mr. Parker noted that thanks to Ms. Pfeifer’s efforts, signage in several official languages announces

the availability of language services at the Hospital’s entrance and inside the hospital. He did

acknowledge that the outdoor sign which identifies the Hospital is only in English.

Mr. Parker described the process that must be followed to obtain the services of an interpreter at

the Hospital: the request is sent by an employee at the reception to the official languages

coordinator or, in her absence, the employee can consult the list of about ten employees of the

Hospital who receive the bilingual bonus and who are able to help or to interpret almost on site.

These employees are also identifiable as being bilingual by a card on their desks and by pins that

they wear (supplied by the FFT). One of the 2004 quarterly reports written for the purposes of

obtaining funding pursuant to the cooperation agreement confirmed the implementation of bilingual

greetings on the voice mail of these bilingual employees. The waiting time for interpreter service,

according to this activity report, is less than 30 minutes. In the spring of 2005, the Hospital

developed a list of all its bilingual employees (notably five doctors and 11 nurses) in addition to

three bilingual employees at the Yellowknife health administration. The Hospital has adopted the

practice of asking its new employees if they speak languages other than English.

Mr. Parker testified that, last year, the Hospital set as an objective, the translation into French of all

its forms, since most of them are intended for the general public. He expects to distribute bilingual

forms throughout the Hospital before the end of 2005.

Mr. Parker indicated that the position of languages coordinator, the only position designated

bilingual in the Hospital, was vacant from July to October, 2005. The Hospital has the intention of

designating other positions as bilingual, mainly at points of entry, except for doctor and nurse

positions, in view of the recruitment problem.

Mr. Parker noted that since he took office two years ago, he had not received any formal complaints

regarding French services at the Hospital and that two informal complaints lodged by the same

patient against the Hospital were settle by the languages coordinator. He pointed out that he had

received several positive comments about the language services offered by the Hospital.

The quarterly activity and end-year reports are completed using a form divided into distinct sections

80

that deal with elements of the active offer (signage, greetings, messages, and forms), objectives,

performance indicators, results and the audit of the quality of the services. These activity reports

recognize the importance of implementation plans, indicated in the section “Outcome”: “Authority

has a work plan/implementation plan, which guides their activities for the delivery of French services

to the public. This plan outlines ongoing activities as well as areas for growth improvement”. The

activity reports probe the level of compliance of the administration in question with the cooperation

agreement and with the Financial Administration Act, R.S.N.W.T. 1988, ch. F-4, asking the following

questions in particular: “Does your financial report show a variance? One goal of this agreement is

to spend the requested funds fully. If your expenditures are lower than your budget, please explain

and provide a brief explanation how this will be addressed in the coming year. Does your Authority

have the ability to track the number of language service requests?”

The Stanton Hospital’s quarterly reports for 2004 report on the Hospital’s initiatives concerning

languages, notably the adoption of an audit system for French services, the offer of courses in

conversational French, an awareness campaign, the translation of a booklet for the obstetrics unit

and the preparation of financial data for the period in question. The end-year report however, did

note the lack of Francophone staff able to offer direct services directs, particularly at the Hospital’s

reception area. Mr. Parker acknowledged that these same shortfalls exist in the emergency room

and in the clinic. Telephone calls to the Hospital are answered in English (except by those

employees who receive the bilingual bonus and the official languages coordinator). According to

Mr. Parker, the Hospital’s Web site is being revised but it was not clear from his testimony whether

there was a specific plan to create a bilingual Web site. Answers to correspondence received in

French are sent in French; however, Mr. Parker did not know if the Hospital’s letterhead is available

in French. An active offer for a French version is not included in English correspondence sent out by

the Hospital.

As far as language training for Hospital staff is concerned, Mr. Parker testified that the orientation of

new employees includes a presentation on French language services and the Hospital staff can

obtain directives on CD-Rom regarding French. He acknowledged that the interpreters do not have

diplomas but he indicated that they receive a certain amount of training; he did not specify if this

training is in the form of mandatory and/or regular sessions.

Ms. Pfeifer has been the consultant regarding official languages for the Policy, Legislation and

Communications Division of the Department of Health and Social Services since March 2003. From

fall 1999 to June 2002, she coordinated language services and profession development at the

Stanton Hospital and half her salary came from the Canada-NWT Cooperation Agreement funding.

Her position was designated bilingual. She was the Hospital’s main resource for interpretation

services but she has no professional training as an interpreter.

Obviously, Ms. Pfeifer has diligently fulfilled her duties as coordinator; she ensured that there would

be signage throughout the Hospital making an active offer of services in French and she prepared a

list of Hospital employees who were prepared to act as interpreters. As soon as she took office, she

familiarized herself with the NWT OLA and the PGD, and she met with the Section Head of Language

Services at DECE. She facilitated two training sessions for the Hospital’s management team about

the PGD, held sessions on this subject for new employees and has given some training courses in

French for Hospital staff. She inventoried forms uses by the Hospital and had forms intended for the

81

public translated into French. She also ensured that the Hospital’s logos were translated into

French. In 1998, prior to her taking office, the Hospital had prepared education leaflets in French

dealing with the pre- and post-surgical process; Ms. Pfeifer updated them and had other leaflets

translated.

In 2000, Ms. Pfeifer updated the Practical Guide for Medical Interpreters, a basic tool previously

published by the Hospital, which explains the various systems of the human body and she ensure

that it was distributed to all Hospital employees receiving the bilingual bonus, as well as to

community health centres and the Fort Smith health centre.

The quarterly activity reports prepared by Ms. Pfeifer reported on all her activities, the number of

hours of interpretation and the employees assigned to interpretation. An end-year report for 2000-

2001 highlighted the publication of advertisements for nursing positions in L’Aquilon as well as in the

Francophone press in Quebec and New Brunswick.

Ms. Pfeifer confirmed that the Hospital enters an agreement with the Department of Health and

Social Services each year for funding French services at the Hospital using funds from the Canada-

NWT Cooperation Agreement. It was clear, in her opinion, that the available funds are limited,

despite the lack of a preset limited.

Ms. Pfeifer did not develop an overall plan for the implementation of the NWT OLA at the Hospital.

She stated that the personnel at the Hospital’s reception at the time were not bilingual. The year-

end reports reflect the lapsing of unexpended funds exceeded $13,000 for each year she occupied

the Coordinator’s position notably because of projects that were not carried out before the

translation stage and because the turnover of personnel reduced the amounts spent on the bilingual

bonus.

The audit programs and measures set up at the Stanton Hospital demonstrate the benefits

associated with the designation of a bilingual position for a hospital’s official languages coordinator

with a clearly-defined role and duties. The evidence did not indicate in any way that the services of

the coordinator are underutilized (in the sense of inadequate demand) at the Stanton Hospital or in

the Fort Smith health centre. Ms. Pfeifer’s experiences at Stanton and those of Ms. Aubrey at Fort

Smith demonstrate that some elements or tools contribute to obtaining effective language services

offered by government institutions: (i) the designation of an individual able to express themselves in

French as an official languages coordinator; (ii) the allocation of a budget that would make it

possible to offer and promote French services; (iii) the adoption of measures to audit the status of

services in French.

(b)

the Office of Public Health

Dr Corriveau testified that all documents from his office are translated into French; his office sends

texts to the communications centre, which coordinates their publication. A lot of the information

about public health is available in French through leaflets on the Web site. Dr Corriveau felt that

this translation process has been well established by a committee will be maintained even in his

absence.

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(c)

Head Office

Ms. Laura Seddon has been acting Deputy Secretary for departmental communications and protocol

for the Department of the Executive since September 2004, but from 1998 to 2004, she was

responsible for communications for the Department of Health and Social Services. Ms. Seddon

testified that the Regional Health Authorities sign annual cooperation agreements with the

Department for the funding of French services. It is these Authorities (and not the Department) that

identify their projects and the funds needed to implement them. Under cross-examination, the

attorney for the Plaintiffs pointed out the considerable gap between the amounts provided on an

annual basis for French health services in Fort Smith ($50,000) and that allocated for Hay River

($5000). However, these two centres are located in zones designated for French and both of these

have a hospital. Ms. Seddon explained that the Department does not impose on Regional Health

Authorities the adoption of a minimum budget for French services; it is the Authorities themselves

that identify the best way to meet their needs in terms of language services and establish the

necessary financial resources to offer these services. Given this decentralized approach, it is not

surprising that there are these significant differences between the funding of French services from

one region to another.

Ms. Seddon testified that her office was located in the Department’s head office when she was

responsible for communications on behalf of the Department and that the public could communicate

with the head office. However, this was not a direct point of service for health care. She could not

confirm if there was a bilingual reception service at the head office but an employee within the

Department could offer direct services in French. Her Department replied to all French

correspondence in French.

She pointed out the dearth of resources, time and staff are all factors that prevented the

development of the Web site in French when she was working at the Department.

Ms. Pfeifer, a consultant for official languages at the head office of the Department of Health and

Social Services is responsible for the cooperation agreements for French services. Her position is

not designated bilingual but her salary is completely paid for from funding from the Canada-NWT

Cooperation Agreements. Her predecessor in that position was not bilingual. She is the one who

took on the responsibility for preparing budgetary requests for language services for the entire

health system. The Regional Authorities send her their activity reports and their proposed budgets;

she compiles and then sends a global summary of activity and budget for the entire Department to

the DECE which, in turn, completes the activity reports and budgets for all Government departments

and agencies and negotiates the total funding amount that will be allocated by the Federal

Government for French services.

Ms. Pfeifer described recent initiatives by her Department in terms of French services: (i) the

development of a Department Web ministerial site, almost completely in French, where information

can be found on the provision of services, leaflets, application forms and reports in French; (ii) the

adoption by the communications section of a policy ensuring the translation into French of any

document intended for the public; (iii) the recent publication and distribution throughout the NWT of

a compendium of health information in English, accompanied by a bilingual offer of a French

versions followed by, several months later, the publication of a French version that was advertised in

83

the Francophone media and distributed to Francophone organizations and to regional authorities;

(iv) the setting up in May 2004 of a “NWT info-care” service, a 1-800 line that provides the public, in

French and in English, 24/7, of information on health questions, offered by nurse, advertised in

bilingual leaflets distributed top all households in the NWT and through the Francophone media.

Ms. Pfeifer noted that this service receives fewer than five calls a month in French compared to

some 300 to 500 calls in English.

Ms. Pfeifer does not have a receptionist but there is a sign indicating that her office is bilingual and

her greeting on her voice mail is in French and English. She uses a French logo in her French

correspondence. She receives the bilingual bonus as do two employees at head office.

Ms. Pfeifer reiterated Ms. Seddon’s comments to the effect that the Department can only make

recommendations to the Regional Health Authorities regarding services in French; they cannot

impose their will. She recently met members of the Hay River administrative steering committee to

encourage them to create a French services coordinator position.

It is clear from the evidence that, in the absence of the power to impose minimum standards for

French services and communications in each Authority, the level of French in health care varies from

one region to the other.

(viii) Observations: Ms. Houde’s allegations

When I review Ms. Houde’s allegations in the context of all the evidence regarding the status of

language services at the Stanton Hospital, first, I note that Ms. Houde is an individual with a very

limited knowledge of English and who is of an anxious nature where health matters are concerned.

Her testimony to the effect that the greeting at the reception, the clinic and the emergency room at

the Stanton Hospital was in English is supported by several witnesses (Mr. Provencher, Mr. Bessette,

Ms. Rémillard and Ms. Fonteneau) despite the presence of signs offering services in French. She

was rarely treated by a Francophone doctor or nurse at the Stanton Hospital emergency room. An

interpreter was not available for some of her visits to the physician and the Hospital expected her to

take care of obtaining the services of an interpreter for a consultation with an Anglophone

orthopaedist. The interpreters used by the Hospital had no professional training as interpreters or

any training in medical terminology. The Hospital had gotten into the habit of designating Mr.

Légaré ex officio as interpreter during her visits to the emergency room and to complete consent

forms for tests and interventions. He had no medical training. On one occasion, Ms. Houde was left

alone without an interpreter in a recovery room.

These experiences made her anxious and she decided to use Quebec’s health services for her

annual examinations and tests and to undergo major surgery.

84

(ix) the allegations against the Inuvik office

(a) the allegations of the Plaintiff Suzanne Houde

These allegations appear in s. 39 of the amended statement and they were energetically debated by

the Territorial Defendants. As soon as Ms. Houde arrived in Yellowknife from Ontario and for a

period of two years, her given name was almost constantly misspelled “Susanne” rather than

“Suzanne” in her medical file at the Stanton Hospital. Her medical file revealed that: (i) she

continued to use her Ontario health insurance card for some time and (ii) that her given name was

incorrectly spelled on the imprint on her Stanton Hospital identity card (the blue card). The Stanton

Hospital form dated May 7, 1998 is the first (legible) document that indicates her new NWT health

insurance number, the same number that was used in a July 30, 1999 laboratory report from the

Regional Health Council. However, her given name was still misspelled in these two documents.

I note that the Stanton Hospital’s first form on which her given name was typed correctly is that of

December 7, 1999. In November 1999, her given name appeared correctly on the imprint of the

Hospital’s blue card (see the November 12, 1999 X-ray report). On the other hand, her given name

is still spelled incorrectly on another hospital identify card appearing on a Hospital consent form

dated January 27, 2000. The conclusion that the Hospital was using at one time two different

identity cards for Ms. Houde is supported by the presence, on the same page of the document

“Physician Standing Orders “ of January 28, 2000, the imprints of two identity cards, one indicating

her given name as being “Susanne” and the other being “Suzanne”. It seems that starting on

January 28, 2000, the card confusion was almost fixed because we no longer see the imprint of the

card with the given name “Susanne” appearing on her medical file, except on a hospital form dated

almost three years later (06/03/03). It is clear that the mistake in the Hospital files was not caused

by a misspelled health insurance card issued by the NWT, since the mistake appears in Hospital

documents even before Ms. Houde had received her NWT health insurance card.

Ms. Houde testified in fact, that her name had been correctly spelled on her Ontario health

insurance card (which was not presented in evidence at the trial). She had used that card for

several months after her arrival in the NWT before obtaining an NWT health insurance card. I

accept her testimony to the effect that the mistake in her given name was made at the time of her

first visit to the hospital and at the time of the creation of blue card.

Ms. Houde testified that her given name was misspelled as “Susanne” on the first health insurance

card that she received from the GNWT. However, this card was not produced in evidence, Ms.

Houde having indicated that she had lost it. Her attorney tried to obtain it from the office

responsible for the issuance of health insurance cards in Inuvik (“the Inuvik office”), but the Inuvik

office does not keep copies of cards that have already been issued. Taking into account the other

documents submitted as evidence, detailed hereafter, I accept her testimony to the effect that she

indeed received a health insurance card indicating that her given name was “Susanne”.

Ms. Houde testified that the spelling mistake on her health insurance card had cause her stress each

time she went to the Stanton Hospital and it had created confusion when she received treatment

during her annual visits to the physician in Quebec. However, it has not been established by the

evidence that she tried to fix this problem before July 30, 1999 (when she signed a name-change

85

form), taking into account her answers about this subject during the examinations for discovery and

the fact that, during the trial, she did not remember the date she informed the Inuvik office of the

mistake.

Moreover, the evidence does not show that her health insurance card was reproducing the “English

version” of her given name rather than being a mere typographic error. Thus, I conclude that there

was no language infringement that would be the basis of a claim for damages by Ms. Houde in

relationship to her health insurance card for the period from 1997 to July 30, 1999.

A staff member at the Hospital helped Ms. Houde to fill in a bilingual name-change application form

on July 30, 1999, making a note “wrong spelling on my name” on the form that Ms. Houde signed.

In reply to the question as to why she did not fill in the form herself in French, Ms. Houde explained

that: “The lady knew that I only speak French, she spoke English, she is the one who wrote it”.

She did not receive a reply to her July 30, 1999 request, although it is clear that the Inuvik office

received the form on August 5, 1999 since the form presented in evidence bore the office stamp

indicating that date. Ms. Houde confirmed under cross-examination that she had received telephone

messages in English from the Inuvik office. In my view, the use of English by the Inuvik office was

justified in the case of the calls made to Ms. Houde, because the July 30, 1999 form was completed

in English. Ms. Houde testified that she called the Inuvik office but “there they only speak English,

we couldn’t understand each other, I hung up. It was pointless.” She went through this exercise

“maybe two-three-four times, I don’t remember” but she was unable to obtain service in French.

During one of these calls, the Inuvik office gave her a number in Yellowknife which she dialled “but

it took almost a year before getting my card”.

Having received no answer to her first request for a change to her name, Ms. Houde filled in (in

English) a second name-change form with the help of a member of the hospital staff. There is not

date on the form. Ms. Houde explained that she filled in this second form in English because “the

lady speaks only English, then she told me to write just like that. In Inuvik they only speak English

so the lady wanted me to write it in English”.

The Inuvik office received the second form on November 18, 1999, as attested to by the seal that

specifies that date on the document. Ms. Houde called the Inuvik office the same day to pursue her

inquiries. Under cross-examination, she denied having made the November 18 call at the behest of

Mr. Lamoureux of the FFT as a basis for the litigation, even though the call was placed during that

same period, November 1999 during which the other forms requesting French services had be

completed by the other the Plaintiffs in this litigation. I note that the November 18^thcall was one of

several calls made by Ms. Houde with the goal of reaching someone who could communicate with

her in French and cannot be separated from the others calls in order to conclude that this had been

done for suspicious reasons. As Mr. Légaré had indicated, the problem had already occurred and

was still ongoing on November 18, 1999.

Ms. Houde received an English form from the Inuvik office on January 5, 2000 asking her to provide

several pieces of information. The Territorial Defendants suggested that having already received

from Ms. Houde two name-change forms completed in English, the Inuvik office had a perfectly

good basis to correspond with her in English. However, Mr. Légaré testified that Ms. Houde had

received the same form before November 18, 1999 as the one dated January 5, 2000. He

86

explained that he sent the latter in November to the Inuvik office, without filling it in, accompanied

by a note indicating that Ms. Houde did not speak English but he had not kept a copy of these

documents. It is clear according to the evidence that the Inuvik office sent a document to Ms. Houde

in November 1999. In fact, another envelope sent by the Inuvik office to Ms. Houde, bearing a

postal date stamp of November 23, 1999, was presented in evidence. I accept Mr. Légaré’s

testimony to the effect that her spouse had received a first form asking her (in English) to provide

information in this envelope.

I also accept Mr. Légaré’s testimony to the effect that he sent in the uncompleted form to the Inuvik

office with a note about the language difficulties and that the Inuvik office continued to send

documents in English to Ms. Houde. Mr. Légaré testified that when they received the same form in

English once again, now dated January 5, 2000, from the Inuvik office, he thinks that he sent it back

by facsimile, again not filled in, accompanied this time by the following note: “ Mme. Baxter - Pour la

seconde fois, je vous écris pour vous dire que je ne lit [sic] pas et je ne parle pas l’anglais. Veuillez

donc me faire parvenir ce formulaire en français {Ms. Baxter – for the second time, I am writing you

to tell you that I do not read and I do not speak English. Therefore, please send me a form in

French}”.

I accept Mr. Légaré’s version of events. I note that the Inuvik office used Mr. Légarés facsimile

number to communicate with him on February 23, 2000. I conclude that he did return the January

5, 2000 form by fax, which allowed him to return his original note (a yellow Post-It note) as well as

the January 5 form and to submit these two documents in evidence.

Having received another communication from Mr. Légaré in French, the Inuvik office nonetheless

replied in English in a fax dated February 23, 2000, essentially asking for the same information as in

the form dated January 5, 2000.

Mr. Légaré answered the February 23, 2000 fax by a fax written in English on March 6, 2000. He

explained his choice of language under cross-examination:

Answer:

In order to achieve a conclusion, we had to understand each other correctly

and the only way [to] do this, it seemed clear, it was unfortunately to

indicate it in English.

Question :

Answer

You said absolutely nothing about your request that the information be sent

to you in French?

We had already asked for communications, and unfortunately without result.

You had a nail but once it’s in the wall, what do you want me to tell you?

Ms. Houde testified that she did not complain to the NWT LC about her problem with her health

insurance card.

87

(b)

the allegations of the Plaintiff Nadia Laquerre

Ms. Laquerre testified that she had received from the midwife a form called “Registration of Live

Birth” after the birth of her second child on May 25, 2002 on which the given name “Océane” was

correctly written. She signed the document on July 22, 2002 and sent it to the Inuvik office. The

document was accepted by the Inuvik office on August 13, 2002 and it was returned to her. Since

she wanted to register her child in a registered education savings plan (the “Gradu-Action

program”). as she had done for her elder child, she applied to the Federal Government, during the

month of August, 2002, for a Social Insurance number for Océane. She included in her application

the “Registration of Live Birth” that she had received from the midwife. Her application was

returned to her instructing her to include the original birth certificate.

Ms. Laquerre then realized that she had not yet received a birth certificate from the Inuvik office.

She telephone the Inuvik office from her residence in Fort Smith in January 2003 and she was

answered in English. She asked if anyone could speak French and she received a negative reply.

She continued in English. She called the Inuvik office again a month later and once again, she was

greeted in English. She again asked if someone could answer in French and she received the same

reply. She continued, in English, to pursue her request for a birth certificate. The Inuvik office

suggested that she contact Yellowknife. Yellowknife indicated that this was a special case because of

the accent on her child’s first name. In the absence of a follow up by the Yellowknife office, Ms.

Laquerre complained to her MLA who, at the time, was the Minister of Health and Social Services,

the Honourable Mr. Miltenberger. Shortly thereafter, she received an e-mail explaining that the

technology did not allow for the printing of the “e with the acute accent” in her daughter’s name.

Until such time as the problem could be fixed, the department provided her with a wallet-sized

certificate, issued March 31, 2003, free of charge, but without the acute accent. The certificate

itself was in the English language and in an Inuit language.

According to Ms. Laquerre, the federal office refused to accept the wallet-sized certificate. She met

with Ms. Pfeifer in May 2003 to try to resolve the problem and finally, on July 6, 2003, she received

the birth certificate (legal size), with the acute accent, but written only in English. Then, she

registered her child for the Gradu-Action program but, because of the delay in her application, she

lost the benefits for the first year. She therefore claimed damages for the loss of benefits, plus

interest, totalling $2,140.72, a loss caused, in her opinion, by the delays of the Inuvik office.

Ms. Laquerre indicated during the examination for discovery that she had received two documents,

the wallet-sized birth certificate and the legal-size birth certificate at the same time But at the trial,

she point out that she had also indicated during the examination for discovery that she had lost her

notes summarizing the incident. After her return to Quebec, she found her notes. After reviewing

them, she realized, which I accept, that she had received the birth certificate (issued on June 6,

2003 as indicated on the certificate ) after the wallet-size (issued March 31, 2003).

By mistake, Ms. Laquerre brought to the trial from Quebec the documents relating to the Gradu-

Action for her eldest which she only realized during her cross-examination. However, I accept Ms.

Laquerre’s testimony to the effect that she registered Océane in the same program, in light of the

undertakings that she had to make to obtain the documents needed for that purpose.

88

As far as her claim for damages for her financial loss is concerned, Ms. Laquerre submitted in

evidence a Web page form the Bank of Montreal that describes the Gradu-Action program. She

indicated that it was not written in the Web site documents that is was possible to make a

retroactive registration. She made no inquiries about this. I conclude that the impossibility of

making a retroactive registration was not established by the evidence. For this reason, Ms. Laquerre

did not establish a loss of benefits in the Gradu-Action program due to delays caused by the Inuvik

office. I will examine her claim for damages based on her allegation of an infringement of her right

to government communications and services in French later in this ruling.

(c)

the remainder of the Plaintiffs’ evidence concerning the

Inuvik office

Mr. Léo Paul Provencher telephoned the Inuvik office in June 2003 and he was answered in English.

He consulted the Department of Health’s Web site in the fall of 2003 but he was unable to print a

French form (an application for registering for the health insurance plan). He telephoned the Inuvik

office to explain the problem and he was again spoken to in English. He succeeded in obtain the

French from Ms. Pfeifer and later, he received a temporary card, which was bilingual except that the

NWT logo on the card as well as the expiry date were only in English. The logo of his permanent

bilingual card is in English only.

Mr. Claude Doucette of Fort Smith submitted in evidence the birth certificate for his son, François.

About seven years, he applied to the Inuvik office in order to change the certificate to include the “c

cedilla” but that office indicated to him that this was impossible due to a software problem . He did

not follow-up on the matter.

Ms. Arlette Fonteneau telephoned the Inuvik office in 1998 to obtain a health insurance card. The

office staff spoke only English. She had to ask the FFT secretary to communicate with the office on

her behalf.

Mr. Yvon Dominic Cousineau noted that the birth certificate for his daughter born in January 2002

was issued on February 7, 2002 in English and Inuktitut only. He did not ask for a bilingual

certificate.

(d)

the Territorial Defendants’ evidence concerning Ms. Houde’s

claim

Ms. Diane Baxter is the coordinator of the registration section for the health services

administration and the Registrar-General for civil status at the Department of Health and Social

Services. She testified that if the first form applying for a change in name presented by Ms. Houde

(dated July 31, 1999 as is indicated by her office seal dated August 5, 1999) had not been

accompanied by documents verifying the spelling of the name, her office would have returned the

document and would have asked for a birth certificate to be provided. I note however that the

required for a birth certificate is not among the information requested by her office in the January 5,

2000 form, an identical version of which was received by Ms. Houde in November 1999.

Ms. Baxter indicated that she had not read the note sent by Mr. Légaré explaining that Ms. Houde

89

did not speak English. She testified that the first time that Ms. Houde’s problem was brought to her

attention was in April 2005, and she had not had the opportunity to discuss it with the employee in

the office responsible for this file since the latter had left her position. I note however that the

allegations about this subject appear in the amended statement submitted in December 2003.

Ms. Baxter testified that beginning in April 1998, when she started to work at the Inuvik office, until

2002, no member of the office staff spoke French. If a note indicating a Ms. Houde’s lack of

understanding of English had been received in her office, it would have been sent to the

communications section for the preparation of a French reply.

In an e-mail dated August 29, 2003 addressed to Ms. Houde’s attorney, another member of the

staff, Ms. Elizabeth Lepper, had indicated to her that her office did not retain copies of health

insurance card that had been issued. She added: “We are unable to provide you with either her

card as it appeared prior to her name change, or after”.

Pages obtained from the computer were attached to Ms. Lepper’s e-mail, gathering together the

data on Ms. Houde. Under “Patient Name History “, we note the name “Houde Susanne” and

beneath it, “Houde Suzanne”, which confirms that the Inuvik office had indeed misspelled her

given name and had changed it later. In her e-mail, Ms. Lepper explained: “It appears that the

name change took place shortly after she was registered in 1997, and a corrected card would have

been sent out by then. [...] Each time a client’s name is updated, the name is automatically added

on the name history page, and our system automatically sends a new card. Unfortunately, our

computer system does not footprint the date a new health care card is sent out, or the date the

name is changed. However, she did renew in February and another card was sent shortly

thereafter”.

Ms. Baxter testified that she did not agree with Ms. Lepper that a card containing a typographical

error had been sent to Ms. Houde, nor that the database does not retain the date of a name

change. She explained that the date of a name change appears beside the words “Ethnicity Last

Upd.” as “27/JUN/1997, the screen not having enough space to indicated “Name Change and

Ethnicity Last Upd. According to Ms. Baxter, as indicated on the screen, the mistake in Ms. Houde’s

given name was corrected on June 27, 1997, that is, the same day and, therefore, only one health

insurance card was issued, the card with her name spelled correctly.

In her e-mail, Ms. Lepper had indicated: “Due to space restrictions, our office keeps documents on

file for only two years. I am afraid that any document we may have regarding Ms. Houde’s name

change have long been archived”. Under cross-examination, Ms. Houde’s attorney asked Ms. Baxter

if she had checked the archives. She answered that her office would not have kept copies

concerning this matter. The original copies of the documents dealing with the name change would

have been returned to Ms. Houde, since, based on her observations, it was not necessary in 1999 to

change the health insurance card since only one card, on which Ms. Houde’s given name was

correctly spelled, had been issued by her office.

I accept Ms. Houde’s testimony, supported by Ms. Lepper’s e-mail, to the effect that she received a

health insurance card from the Inuvik office on which her name was incorrectly spelled. I note that

Ms. Baxter indicated under cross-examination: “ If the system had performed properly, it would

90

have sent out a card with a Z”. I conclude that it is likely that two cards with two different spellings

of Ms. Houde’s given name were issued.

According to Ms. Lepper’s e-mail, since Ms. Houde renewed her health insurance card in February,

2000, she would have received a new card. Ms. Baxter confirmed that all cardholders in the NWT

received new cards in February, 2000. If this is indeed the case, one wonders why Mr. Légaré

persisted in sending information about his spouse by facsimile on March 6, 2000. I accept Mr.

Légaré’s testimony to the effect that several months passed before the problem was resolved.

I concluded that Ms. Baxter’s office received Mr. Légaré’s note after November 23, 1999 indicating

Ms. Houde’s language difficulties and did not follow the practice described by Ms. Baxter of sending

the note to the Yellowknife office to obtain a translation and a French response. Rather, Ms. Baxter

sent another form in English on January 5, 2000. During this period, Ms. Houde was unable to

reach a staff member who spoke French because, at the time, no one at the Inuvik office spoke

French. Mr. Légaré returned the second form with a note by fax expressing the same language

problems and Ms. Baxter answered him in English on February 23, 2000. Mr. Légaré, frustrated by

the delays, decided to settle the matter in English, so the delays that occurred after February cannot

be attributed to language problems. I conclude, however, that between the end of November 1999

and March 2000, Ms. Houde and Mr. Légaré were unable to obtain service in French from the Inuvik

office.

(e) the Defendants evidence concerning Ms. Laquerre’s allegations

Ms. Baxter confirmed that, in 2002, her office did not have the software to print a birth certificate

with French accents. The software existed in Yellowknife but the process took longer. She

confirmed that the Inuvik office completed a total review of its forms and, since March 2005, prints

bilingual certificates (with a bilingual logo).

Ms. Baxter testified that from 1998 to 2001, no member of her office could express themselves in

French. Between 2002 and 2004, three members of her office spoke French. Since 2004, no one in

her office can express themselves in French; requests for services in French are sent to the

Department’s communications office. There are no bilingual positions in her office and no employee

receives the bilingual bonus. Her office is on the Web site of the Department of Health and Social

Services and application forms for all kinds of certificates are available in French and English.

Her office receives most of the requests for certificates by telephone (a 1-800 line). The message

on the voice mail is in English only; a request for a message in French was presented to her by the

department and she is waiting to get help to make the recording. Members of the public rarely

come to her office.

I accept Ms. Laquerre’s testimony to the effect that she was unable to receive service in French from

the Inuvik office despite the fact that, between 2002 and 2004, three members of that office spoke

French, according to Ms. Baxter.

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D.

The allegations concerning the Department of Transportation

(i) the allegations of the Plaintiff Yvon Dominic Cousineau

These allegations appear in s. 42 of the amended statement and were vigorously debated. Mr. Yvon

Dominic Cousineau is a native of Quebec who moved to Yellowknife in 1998. In 2001, he took a

private course to obtain his Class 1 professional truck driver’s permit. Two manuals were given to

him for the course, one on the operation of air brakes and the other, the professional truck driver’s

manual, was published by a private company. He went to the transportation office in Yellowknife

and was greeted in English. He asked if the two manuals were available in French and after an

investigation carried out by the office and by Mr. Galipeau, Chief (at the time) of DECE’s official

languages section, he was only able to obtain the manual on the operation of air brakes in French,

the latter from New Brunswick. At the end of his course, he went to the transport office and he

asked if he could take his examinations on the two manuals in French. A member of the office staff

indicated that he could obtain a translation of the examinations in two or three days. He testified

that when he presented himself for the examinations several weeks later, they were not available in

French. Mr. Cousineau indicated (during examination in chief):

My reaction was, “Oh! Okay, but I want to at least try to pass them in English. I

don’t want to wait three days. I’m here, I took the time to come here, I want to take

the chance of passing them. You never know, I may be able to pass them and then

we won’t have to take that step.” What I did, I did the tests. The air brake, I

passed it because I had studied it in French. So the references in English, it was

easier, but the handbook, I didn’t pass it. So, I went back two or three days later to

pass the handbook in French because it was translated during that time.

[emphasis mine]

However, Mr. Cousineau stated in reply to a rather leading question asked under redirect

examination that he had passed the air brake test in French “on the first try”.

The confusions as to whether he wrote only one or both examinations in English was not resolved

under cross-examination:

[...] told me that the two tests were only available in French – in English but I wrote

– he made me write the one in French. No, I know that you don’t understand but he

had it in French. He told me that it was not available in English but he looked into it

then he had the one in French , the air brake, which I passed. But he told me for

the handbook, it was going to take two to three days.

Mr. Cousineau later identified the air brake and the professional truck driver tests in evidence, both

in French, which he had written and that were both dated the same day, April 19, 2001. Based on

these documents submitted in evidence, the attorneys for the Territorial Defendants suggested to

him that, in fact, he had written both tests in French on April 19, 2001:

Answer:

if the two dates are the same, maybe, but that doesn’t mean

92

that, when I went there, they weren’t available in French

quite simply. If they had been available in French, I wouldn’t

be here, sir.

Question:

Okay, but you said, sir, under oath, sir, that you had passed

the test in English two days, two or three days earlier, but I

am saying to you, sir, that if you had passed the air brake

test not just wrote but passed the air brake test in English

two or three days before, you wouldn’t have had to redo it on

April 19, 2001 in French. Am I right?

Answer:

Yes.

Question:

So, you did not write the test in English in – for any of the

tests on April 17, 2001. Isn’t that so?

Answer:

Could you repeat that, please?

Question:

You did not write the test in English on April 17, 2001, Mr.

Cousineau.

Answer:

Question:

Answer:

Question:

Answer:

Wrote it in English!

Yes.

You mean do the test in English?

Yes.

Yes, I gave it a try.

I note the following exchange, which took place later during the cross-examination:

Question:

Answer:

So, how do you explain, Mr. Cousineau, that you did the test

in French on April 19, 2001, the air brakes test?

Well, sir, it has been four years after all, it’s been awhile, and

even when I wrote that letter, after two-three weeks – I don’t

know how much time it took – I may have forgotten that I

had not passed it or that I did pass it, quite simply.

During the examination in chief, the attorneys for the Territorial Defendants pointed out a previous

statement to Mr. Cousineau, that is his letter dated April 24, 2001 addressed to Mr. Lamoureux.

This letter was among the 265 documents submitted by the Plaintiffs in the form of a CD ROM

(exhibit No. 1) contingent on specific objections raised as to their admissibility. The attorneys for

the Territorial Defendants objected to the admissibility of the letter for purposes of veracity,

93

describing it as a “previous consistent statement”. The attorney for the Plaintiffs stipulated that he

was submitting this document in evidence only to indicate the steps that Mr. Cousineau took to

lodge a complaint with the NWT LC. I judged the previous statement to be admissible for this

purpose only and “on other bases depending on the tenor of the cross-examination”. After the

cross-examination, Mr. Cousineau’s attorney did not re-question the admissibility of the letter for

other purposes and did not follow up with his client (or the Court) on the question of its veracity.

Mr. Cousineau’s letter of April 24, 2001 is therefore admissible only for the purpose of establishing

the steps taken by Mr. Cousineau to lodge his complaint.

The English manual and tests were the subject of a complaint by the FFT, on behalf of

Mr. Cousineau, addressed to NWT LC Tatti on May 10, 2001. The latter brought the matter to the

attention of the Deputy-Minister of Transportation.

Mr. Daniel Auger, Superintendent at the Department of Transportation (and former president of the

FFT) made some inquiries in August 2001 concerning Mr. Cousineau’s complaint. He testified that

“the people in place” did not know if the professional truck driver manual existed in French.

However, an employee of the Department brought to his attention that a computerized version

existed in French but it did not contain any drawings and diagrams that were in the English version.

So, it had to be used in conjunction with the English version, a situation that persists to this day.

Given the submission into evidence by the Plaintiffs of the French tests completed by Mr. Cousineau

on April 19, 2001, I reject his testimony that he completed the two tests in English on a previous

date. However, I conclude that: (i) the greeting at the transport office was in English only; (ii) the

staff of that office was not aware of the availability of the air brake manual in French before

consulting the official languages section and (iii) he was unable to obtain the computerized French

version of the professional truck driver’s manual since the staff at the transport office and Mr.

Galipeau were not aware of its existence.

(ii)

the allegations by the Plaintiff Suzanne Houde

Ms. Houde’s allegations concerning the Department of Transportation’s drivers’ licence bureau in

Yellowknife appear in s. 39 of the amended statement. She testified that she was not able to

benefit from the services of an interpreter to obtain her driver’s licence in 1997 and that her spouse

had to act as interpreter. When she renewed her licence four or five years later, she asked if

anyone spoke French at the office. She was answered in the negative. Her spouse was not with

her. She was able to manage with the staff of the office but the experience, according to her, made

her feel excluded.

(iii)

the remainder of the Plaintiffs’ evidence concerning the Department

of Transportation

Ms. Arlette Fonteneau presented herself at the drivers’ licence bureau in Yellowknife in 1998 and

asked to be served in French but they could not do that. She had to bring one of her employees

from the daycare centre to complete the application form for a driver’s licence. However, to renew

her driver’s licence in 2003 or 2004, she was able to obtain service in French.

94

Mr. Alain Bessette asked to write his driver’s licence test in French in March or April 1990 but he had

to write it in English with the help of an interpreter (Mr. Galipeau). However, two years ago, he was

able to obtain service in French from that office.

Mr. Daniel Lamoureux testified that he went to the offices of Quick Mail Plus, a private agency

responsible for issuing driver’s licences and licence plates in Yellowknife, on November 3, 1998 (one

year before the submission of the statement). The staff at that office could not offer service in

French to renew his driver’s licence or provide him with a French version of the “NWT Driver’s

Manual”. As a result of this incident, he lodged a complaint with NWT LC Tutcho on January 5,

1999.

Mr. Claude Doucette testified that he knows the person at the reception in the driver’s licence office

in Fort Smith and that she does not speak French; the service at that office is only in English,

despite the fact that the application form for a driver’s licence is bilingual.

Ms. Marie-Christine Aubrey confirmed that when she communicated recently in Fort Smith with the

driver’s licence office, she spoke to a Francophone employee who helped her renew her driver’s

licence in French.

Ms. Lorraine Taillefer applied in Hay River for a driver’s licence in November 2001, but did not

receive any service in French. She did not ask for it because she knew that the office employee did

not speak French.

Mr. Fernand Denault testified that his current driver’s licence, overall, is not bilingual since the

GNWT logo and the title “Northwest Territories”, which are pre-eminent on the card, are only in

English. He acknowledged that, other than these exceptions, the card is bilingual.

Mr. Daniel Auger, Assistant Deputy-Minister of Transport since 2004, testified that the individual

who administers the practical vehicle driver’s test is not Francophone; one can bring an interpreter

to the test but at one’s own cost. He testified that in 2004, 3,400 people passed the written vehicle

driver’s test and that less than 1% of this total wrote it in French. Only 10 driver’s manuals in

French were purchased in Yellowknife in 2004.

As is the case with health care matters, Mr. Auger confirmed that it is up to each department to take

the measures deemed to be appropriate to implementation the PGD. He stated that, in principle,

the departments are in a better position to identify the services they should provide in French and

that a decentralized approach is not necessarily a sign of bad faith. But, he did note that there is no

overall plan for the implementation of the PDG in his department or any mechanism to analyze and

audit services in French and to gather statistics regarding the use of French services at the

Yellowknife licence bureau, except where manuals are concerned.

In 2001, the Department of Transports hired a private agency, Quick Mail Plus, to manage the

services of the driver’s licence bureau but it was not possible to obtain services in French. Prior to

the privatization of the bureau, a Francophone employee offered service in French. The office was

reintegrated into the Department in 2002 and it was at this time that Mr. Auger decided to designate

three office positions as bilingual. The position was advertised in the NWT and Montreal press and a

95

Francophone resident of Yellowknife was hired in the spring of 2003, after the first round of hiring.

In light of Mr. Auger’s testimony regarding the absence of French services at the Yellowknife licence

bureau between 2001 and the spring of 2003, I accept Ms. Houde’s testimony to the effect that she

was unable to receive service in French at this bureau to obtain and later, to renew, her driver’s

licence. The presence of a bilingual employee since the spring of 2003 has improved the availability

of service in French at this office frequently visited by the public, in light of the testimonies of Mr.

Bessette and Ms. Aubrey. The designation of this position as bilingual ensures the continuity of

front-line service in French.

E.

The allegations concerning the DECE

(i) the allegations of the Plaintiff Yvon Dominic Cousineau

These allegations appear in s. 42 of the amended statement. After three months experience as a

professional truck driver, Mr. Cousineau decided to register for an apprentice electrician program in

September 2002. He had to pass an entrance exam; when he asked for a French version of the

examination for the apprenticeship office in Yellowknife, he was told that the exam was not available

in French. Mr. Cousineau testified that he failed the exam the first time but that he passed it after

taking it again immediately thereafter. Under cross-examination, he stated that during the

examination for discovery in February, 2004, that he could not remember if he had asked to take

the exam in French.

The apprenticeship bureau indicated that all apprenticeship courses were offered in English only. At

the time, there was no private firm of electricians in Yellowknife that offered apprenticeship in

French. So, he passed his first year of apprenticeship with an Anglophone company. In August,

2003, his Anglophone employer filled in a form written only in English to confirm his hours (“time

credit sheet”), but neither his employer nor himself asked for a French version of the form. The

certificate confirming his apprenticeship status was written only in English but he did not ask for a

French version. He indicated that he suffered stress because of the fact that he could not take his

apprenticeship courses nor write his examinations in French. But he did not asked to take his

apprenticeship courses in French and he did not try to find out if it would have been possible to take

his training and courses in another province. On the other hand, this option was not offered to him.

Ms. Judith Sharp has been the registrar for DECE’s apprenticeship program for 23 years. She

testified that the apprenticeship program is only offered in English in the NWT, mostly for workplace

safety reasons. The entrance examination for the apprenticeship program was only available in

English in 2002 and that is still the case today; it includes a reading component to ensure adequate

understanding of English, since the apprentices work in English in the NWT.

Ms. Sharp testified that she did not receive a request from Mr. Cousineau to write his apprenticeship

program entrance exam in French. She noted that, based on her review of Mr. Cousineau’s file that

he passed with a 70% mark. Thus, he did not have to rewrite the test and his indicates that he only

wrote the exam once. He did not complete the first level course and his apprenticeship contract was

terminated in October 2003.

96

According to Ms. Sharp, if Mr. Cousineau had asked if it were possible to do all his apprenticeship

training in French, he could have written the entrance exam and completed the technical element of

his training in New Brunswick, since there is funding from the Canada-NWT cooperation agreements

for such programs. He did not enquire about this possibility nor did he ask for a French certificate

confirming his status as an apprentice.

I conclude that Mr. Cousineau did not establish through the evidence that he had asked to write his

entrance exam in French nor that he failed that exam the first time, in light of his answers during

the examination for discovery. The latter revealed , in 2004, some problems of recall regarding

some aspects of the events, particularly when Ms. Sharp’s testimony is taken into account. I note,

however, that the apprenticeship program forms are available only in English, that the DECE did not

convey to Mr. Cousineau that he could obtain a French version of the entrance exam or that he

could participate in a subsidized French language apprenticeship program elsewhere in Canada.

(ii)

the remainder of the evidence concerning the DECE

In my view, the elements of evidence related to the institutions that were not the subject of an

allegation of a specific breach in the amended statement are relevant to illuminate the context of the

Plaintiffs’ allegations and, if infringements of their language rights are established by the eve, it can

help the Court to formulate suitable and fair remedial measures and to prevent the recurrence of

these breaches.

(a)

Prince of Wales Northern Heritage Centre

Ms. Lorraine Taillefer testified that her school in Hay River borrows educational kits from the Prince

of Wales Northern Heritage Centre (the POW Centre) in Yellowknife but: (i) the materials are written

in English only and (ii) she has to order them in English from lists written in English. She did not ask

for French lists. Her students were welcomed and had a tour of the POW Centre in French in 2005.

However, the materials uses for their activities were written only in English.

The POW Centre) activity reports in French provided to the official languages section for 1999-2001

provide a summary of the Centre’s activities and services in French: student visits in French,

questionnaire distributed to teachers to evaluate there educational needs in French, advertisements

of programs in French in L’Aquilon newspaper. According to the 1999-2000 activity report, there

exists a real demand for French resources at the Centre. The hiring of a French student from

Montreal ensured that a significant number of French tours by Francophone and immersion schools

(24 visits totalling over 600 students). This report notes that the recording of a bilingual message

on the Centre’s official language coordinator’s voice mail in 1999 was well received by the public and

French messages are left on it.

Mr. Chuck Arnold, the DECE’s director of culture et heritage and the Director of the POW Centre),

mentioned that a part-time Francophone employee is once again responsible for distributing to NWT

teachers this year a questionnaire to evaluate their educational needs in French.

Mr. Arnold indicated that the leaflets at the POW Centre), other than some older editions, are

produced in French, in accordance with a policy adopted by the Centre that requires that all leaflets

97

be translated into French. The majority of exhibitions have been in place since 1979 and most have

them have English didactics, except for some temporary exhibitions have French didactics. He

expects that, after the renovations (underway), all the exhibitions will have French didactics. The

audio guide for the exhibitions is available in French, as well as visits to the Centre (with 24 hours

advance notice, as is the case for English tours). A bilingual employee is available on site to

communicate with the public in French and several other employees can express themselves in

French. One person is employed part-time during the school year to present school programs in

French and some educational products in French can be borrowed.

The POW Centre’s Web site is in English but a project to update the site has started, which will

include the translation of the site’s content into French. The POW Centre logo is in French.

However, Mr. Léo Paul Provencher noted the pre-eminence of the NWT’s English logo on the

exterior the POW Centre sign, which is written in several official languages. The telephone greeting

at the Centre is in English as well as the message on the main voice mailbox. The greeting at the

Centre’s reception is in English but visitors who ask for service in French are directed to

Francophone employees. Documents and correspondence issued by the Centre do not contain an

active offer to provide a copy in French. The Centre does not keep systematically keep statistical

data on requests for services and communications in French. Mr. Arnold noted however that he had

not received any complaints regarding French services at the POW Centre over the past few years.

Despite the fact that Mr. Arnold stated the intent of continuing to hire bilingual employees at the

POW Centre, none of the 26 employees of the Centre currently receives the bilingual bonus. The

official languages coordinator for the Centre was temporarily transferred to another office in August

2004 and she will not return until August 2006. There was no indication that another employee was

replacing her.

The services in French offered by the POW Centre demonstrate a willingness by its management to

try to reach the Francophone public, particularly Francophone students. However, no action plan or

policy to correct the shortfalls that have been identified was presented in evidence. For example,

the designation of a position dedicated to French visits and programs as a bilingual position would

ensure the continuity of this frequently used service. On the other hand, the adoption by the POW

Centre of a policy that ensures the translation of leaflets is an example of an institutional response

which ensures the continuity of this service.

(b)

Aurora College

Ms. Anne Church testified that Aurora College’s programs are dispersed over three campuses -

Inuvik, Yellowknife and Fort Smith – the head office being in Inuvik, where Ms. Church is the

coordinator of continuing education since August 2000. The College is managed by a board of

governors under the direction of the DECE. Based on Ms. Church’s uncontradicted observations, the

College operates only in English: its Web site is in English; an official languages coordinator has not

been appointed and Ms. Church herself has received no training or any information about a NWT

OLA or the PGD.

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(c)

Head Office

The DECE is responsible for the implementation of the NWT OLA in all departments and agencies,

for the negotiation of the Canada-NWT cooperation agreements and for the management of all the

funds from those agreements.

Mr. Robert Galipeau was section head for the official languages section at DECE from 1997 to 2005.

He testified that members of the public can reach the Department’s head office by telephone and in

person. The employee at the reception is not bilingual but can transfer a request for service in

French to a Francophone employee within the Department. The message on the reception’s voice

mailbox is in French (as well as the message on Mr. Galipeau’s voice mail) but there are no signs at

the reception making the active offer of services in French. The Department’s Web site is not yet

completely translated into French but he expects that the work will be completed by next year. The

managers and the employees of the GNWT do not receive regular training concerning the NWT OLA,

the PGD nor about the role of managers regarding language services from the GNWT.

Mr. Mark Cleveland, Deputy-Minister of DECE, indicated that he replies in French to any

correspondence in French sent to him and the logo identifying his Department in his correspondence

is now bilingual. A member of the public can communicate with his offices but these contacts are

infrequent. Direct services to the public are not offered by his office. An active offer for a French

version appears on some of the documents emanating from his office but not on allegation his

correspondence. There is no policy concerning languages of telephone greetings and his assistant

answers the telephone in English. There is no policy ensuring the translation of the Web site into

French.

Mr. Cleveland indicated that five members of his Department receive the bilingual bonus. Upon their

arrival in the DECE and periodically thereafter, if necessary, staff and managers are given a general

orientation regarding Government policies, including the PGD.

Mr. Benoit Boutin is the official languages coordinator for the DECE. He testified that his Division

offered very few services to the public, but he did indicated that about 60% of his office’s workload

is devoted to community organizations (30% of which is to Francophone communities) and 40% to

translation. The FFT’s management communicates with him but his meetings with community

organizations rarely take place in his office. His own greeting on the telephone, in person and by

message is bilingual. His assistant is not bilingual but four employee of his Division are

Francophones. He stated that there was no signage at the reception area for his office offering

services in French or any French reception service. However, he recognizes the importance of a

bilingual greeting and the active offer of service in French.

Mr. Boutin testified that the three translator positions in his Division are designated bilingual. His

position is not designated bilingual but he receives the bilingual bonus. His Division’s letterhead and

the logo on correspondence are bilingual but his Division did not distribute bilingual letterheads and

logos to other departments and agencies. According to Mr. Boutin, it isn’t their role to do that and

French logos are available if other departments wished to use them. The activity reports and the

annual report for his Department written for the purposes of the Canada-NWT Cooperation

Agreements are in French and in English. He indicated that a translation project in French of all of

99

the GNWT’s Web sites is part of the negotiations for the next agreement. His department does not

undertake an audit of the translations of forms used by other departments; according to Mr. Boutin,

“ we’re not the police”. The forms for his own Department are not all translated into French. This

being said, he has not received any written complaints about French services in his Division; only

one complaint, communicated verbally, was settled.

F.

The allegations dealing specifically with the Assembly appear in s. 51 and 52.

(i) the records and journals

Allegations concerning the Legislative Assembly of the NWT

Section 7 of the NWT OLA imposes on the Assembly the obligation to print its records and journals

in French and in English.

Mr. Tim Mercer, Clerk of the Legislative Assembly, testified that the following instruments, created

by the legislative process are presented and/or adopted in French and in English by the Assembly:

•

bills;

motions to amend bills;

votes and proceedings;

orders of the day, which constitute the Assembly’s daily activities;

announcements of the schedule of sittings of the Assembly, committee meetings and

public hearings dealing with bills;

•

documents dealing with public relations and other communications intended for the

public;

information intended for tourists and visitors to the Assembly.

Mr. Mercer defined the term “votes and proceedings” as follows: “It is the official record of the

Legislative Assembly”. This includes: (i) decisions and actions taken by the Assembly and (ii) the

minutes of meetings, decisions, statements (but not the stenographer’s notes) and documents

tabled during the sessions. In his opinion, the English word “journal”, in parliaments across Canada,

typically describes the recording of votes and proceedings over a defined period. Normally, one

year. The “journal” as described by Mr. Mercer, is not published in the NWT because, according to

him, it would simply repeat the content of the votes and proceedings. Mr. Mercer indicated that the

practice of publishing either the votes and proceedings, or the “journals”, or both, varies from

province to province.

It is clear in reading the extract from the votes and proceedings submitted in evidence that the

votes and proceedings do not reproduce the contents of the verbal exchanges that take place during

the sessions of the Assembly but rather describes in very general terms the subjects of the

speeches. For example, one cannot determine from the votes and proceedings of the October 18,

1996 session any specific idea of the content of the discussions. “Mr Picco made a statement

concerning the future reductions and the difficulties which await the 13^thLegislative Assembly”.

100

As for the documents submitted to the as that are not part of the list mentioned above of documents

available in French and in English, for example, a petition presented by a Member, these are,

according to Mr. Mercer, filed in the Legislative Library without translation.

(ii)

Hansard

S. 52 of the amended statement alleges that the Assembly’s documents et journals are rarely

available in French. The Plaintiffs submit that Hansard is a document that the Assembly is required

to publish in French and English pursuant to s. 7 of the NWT OLA.

Mr. Mercer explained that Hansard is an almost verbatim record of the speeches and debates of the

Assembly, prepared under the authority of the Speaker of the Assembly. But according to Mr.

Mercer, Hansard is merely a transcription of a speech during which documents are tabled in the

Assembly, whereas the votes and procedures contain the true list of the tabled documents.

In the case of the NWT, Mr. Mercer noted that, except for one session in 1992, between 1992 and

1996, the votes and procedures were published by the Assembly in English and in French. Neither

of these versions was published from 1996 until January 2005. During these years, Hansard (in

English) was the only publication where the results of the votes in the Assembly could be found.

Mr. Hamilton reinstituted the practice of publishing the votes and procedures in French and in

English starting in January 2005.

Hansard is published by a private company that entered into a contract with the Speaker of the

Assembly, who pays for it. According to Mr. Mercer, this publication, as well as the income from

subscriptions, belongs to the Assembly. The staff of the Assembly and government departments are

among the subscribers. Mr. Mercer confirmed that members of the public have access to Hansard

and that it is available on the Assembly’s Web site.

According to the budgetary forecasts issued by the GNWT for the purposes of negotiating the 1989-

1990 cooperation agreement in the area of French services (on p. 10): “It is the opinion of the

Government of the Northwest Territories that Hansard has to be printed and published in English

and French”.

The minutes of a September 6, 1989 meeting of the Federal and Territorial negotiating teams for

the cooperation agreement reflect the following exchange on this subject: “The NWT believe that

they have the obligation to translate [...] but Canada does not share that opinion [...]”. In the

minutes (found in the documents of the Attorney General of Canada of a meeting held the next day,

a discussion about simultaneous translation [sic] and the translation of Hansard: “ Neither one nor

the other seem to be strictly legal obligations according to the legislative and constitutional articles

governing the requirements of the parliamentary process (Hansard is a transcription of the debates

and not a “journal” of the House) [...] a legal action to require them would however certainly be

possible in view of the equality of status give to both languages and the right of the public to have

access to institutions in their language”.

According to the GNWT’s activity report for fiscal year 1989-1990 prepared for the purposes of the

cooperation agreement, Hansard was not translated into French.

101

In the estimates issued by the GNWT for 1991-1992, “translation of the debates of the Assembly

and the journal of the debates” can be found (on p. 2), but there is no indication that Hansard was

translated.

The analysis of the issue of the language of publication and the dissemination of Hansard will follow

later in the ruling.

(iii)

the language of the debates and their dissemination

Mr. Mercer testified that Management Board of the Assembly adopted a policy on the language of

the workplace for the Assembly in December 1999, which is described in a manual of the Board’s

policies published only in English and intended, according to him, only for the Members of the

Assembly. He did confirm, however, that some of these policies are published on the Assembly’s

Web site but he has never received a request for a French version of this manual.

Mr. Mercier clarified that the policy adopted in 1999 does not affect the translation of documents

created by the legislative process, which are published in French and English.

The policy lists three categories of languages for the purposes of the procedures of the Assembly: (i)

essential language - the Member has no ability to express himself in English or his ability is limited

and it is necessary to use another official language in the Assembly, he may have a certain degree

of familiarity with English but prefers to use another official language. In that case, all the

proceedings of the Assembly and the committees shall be interpreted for the Member by means of

simultaneous interpretation and all documents deemed to be essentials shall be provided to him in

his official language. Mr. Mercer indicated that there is currently no Member of the Assembly in this

category; (ii) provisional language –the Member speaks English fluently but prefers to use another

official language; simultaneous interpretation is provided as well as the translation of documents

with a reasonable advance notice (since simultaneous interpretation is not available on site).

According to Mr. Mercer, four hours notice usually suffices; (iii) non-essential language – the

Member indicates he has the ability to express himself in that language. Interpretation of the

proceedings in that language will generally not be provided but with reasonable notice, his office will

try to meet a request for interpretation.

According to this same policy, the debates of the Assembly are interpreted simultaneously into

French for the purposes of media broadcast once a week. A period that covers 90 minutes of the

Assembly’s debate is broadcast the same night in English and twice the next day in two other official

languages, in turn, on an equal basis. The result is that French as the same degree of importance

as Aboriginal languages for the purposes of the broadcasting of the debates.

During the trial, the Plaintiffs raised the issue of the simultaneous interpretation of the Assembly

debates. However, there was no specific allegation in the amended statement that could be

specifically linked to this subject as was the case for Hansard. On the other hand, there was no

evidence presented regarding a Member or another person whose request for simultaneous

interpreter had been refused.

102

(iv)

the remainder of the Plaintiffs evidence concerning services in

French in the Assembly

Mr. Léo Paul Provencher (Director General of the FFT) submitted in evidence a series of photographs

of the exterior and interior of the Assembly ‘building taken in July 2005. he noted that the text of

some signs in the parking lot is only in English (“reserved”; “courier parking only”; “contractor

parking only”) as well as other signs inside the building (e.g., temporary signs and other signs for

the purpose of fire, safety, etc.). I accept Mr. Mercer’s testimony to the effect that most of the

outside and inside signs, as well as the didactics on the exhibitions, are in French.

No allegation of a specific breach was raised by the Plaintiff regarding the language used for guided

tours of the Assembly.

(v)

the Territorial Defendants evidence concerning services in

French in the Assembly

Mr. Mercer is responsible for the implementation of the NWT OLA at the Assembly. He indicated

that he had not received any complaints about services in French.

His office does not keep any statistics regarding the requests for services in French. Located in the

Assembly building, his office maintains a reception service accessible to members of the public

(provided the individual is accompanied by a security officer); the greeting in person and on the

telephone is in English only. There is no sign offering the service in French. The security service is

provided by a private company under contract with the Speaker of the Assembly and it makes no

active offer in French, but the personnel are asked to direct any requests for French to a bilingual

employee. Visitors’ tags are in English but, according to Mr. Mercer, they are used for security

purposes and he has never received any requests for bilingual tags. The text of the leaflets

displayed in the public areas of the building are in French and English.

Any request for service in French is transmitted to the Director of Research Services, a position

designated bilingual according to Mr. Mercer and, if he is not available, to the public affairs officer

(who organizes the guided tours of the Assembly in French) or to Mr. Mercer.

The Deputy Clerk is the official languages coordinator for the Assembly. No training programs in

French (or any formal audit of the language skills of an employee who occupies a post designated

bilingual) are offered to staff and managers. The Speaker of the Assembly indicated during

examination for discovery that he uses a bilingual letterhead in his correspondence (as does Mr.

Mercer). The latter does not make an active offer of a French version in his English correspondence.

The Assembly’s Web site is mostly in English. According to Mr. Mercer, a few months ago, the

Speaker of the Assembly (based on his recommendation) had decided to increase the number of

documents in French on the site. However, Mr. Hamilton indicated during the examination for

discovery in 2003 that the documents in English were undergoing translation and that his office was

working on a new graphic image for a bilingual site.

103

Even if the availability of guided tours of the Assembly is well established and that most of the signs

inside and outside the building are in French, it is clear from the evidence that the Assembly has not

systematically addressed the issue of the active offer of services in French by telephone, in person,

in writing and on the Web site.

G.

the allegations concerning the Department of Public Works

(i) the allegations of the Plaintiff Nadia Laquerre

These allegations appear in s. 40 of amended statement. During an audit carried out by the FFT on

the status of services in French offered by the GNWT, Ms Nadia Laquerre, as community

development officer for the Association francophone de Fort Smith, telephoned the Public Works

office in Fort Smith on November 12, 1999 to check their business hours. She was greeted in

English and she was not offered the possibility of speaking to a Francophone employee. She could

not say if the office in Fort Smith was a head office.

(ii)

the elements of evidence of the Territorial Defendants

Ms. Charlotte Babicki is the official languages coordinator at the Department of Public Works.

Ms. Babicki testified that her duties as official languages coordinator only require a few hours a

month. Her Department generally provides services to other government departments. Of the 260

employees of the Department, only nine serve the public and they are all in two services: (i)

supplying fuel for 15 small communities; (ii) safety inspections and the granting of mechanical and

electrical work permits. None of these services received requests for services in French.

At the Department’s reception, the greeting in person and on the telephone is in English. There are

no signs at the reception to indicate the possibility of being served in French. Two employees of the

Department receive the bilingual bonus, and reception staff are asked to refer requests for services

in French to these employees. According to Ms. Babicki, the reception has never received any

requests for services in French, or any complaints about this.

Ms. Babicki developed a one page plan for the implementation of the NWT OLA in her Department,

which she then sent to Mr. Galipeau in the Official Languages Division. This document was not

submitted in evidence. No training about the NWT OLA et la PGD is offered to Departmental

employees. Ms. Babicki answers in French (using an English logo) to correspondence sent to her in

French. There is no active offer for translation into French of correspondence sent in English. Part

of the Department’s Web site is in French. Ms. Babicki is waiting for direction from the Official

Languages Division as well as funds to finish the translation of the Web site into French.

H.

The other departments of the GNWT and government organizations

104

In s. 35 of the amended statement, the Plaintiffs allege that French service is “negligible” in several

departments, boards, agencies and commissions but no individual plaintiff or the FFT have alleged

infringement of language rights by them. However, some elements of the evidence submitted

regarding services in French in this departments are relevant to evaluate the merit of the allegations

that the problems raised are of a systemic nature and that there has been a lack of good faith on

behalf of the department and to determine a suitable and fair remedy should the Court reach the

conclusion that there were breaches of the Plaintiffs’ language rights.

(i)

the Department of Justice

Mr. Don Cooper is the Deputy-Minister of the Department of Justice and he is responsible for the

implementation of the NWT OLA and of the PGD in his Department. According to his testimony,

there is no active offer as far as the greeting or the signage in French at his office is concerned.

The positions for the translators and their manager are designated bilingual; it is the same for the

Clerk of the Court. He did not know if the translation of a thousand designated government forms

had been achieved. No official training programs are offered to the staff of his Department who

wish to learn French. The language skills of the employees who receive the bilingual bonus have

not been the subject of a formal evaluation process. This is in fact the case within the GNWT as a

whole, according to the testimony of Mr. Daniels during examination for discovery. Mr. Cooper

replies in French to the French correspondence that he receives from members of the public but he

uses an English letterhead. None of the documents intended for the public contain an active offer of

a French version. He was not aware of a draught of a regulation that describes government

institutions for the purposes of the NWT OLA.

Mr. Reginald Tolton is the Assistant Deputy-Minister of Justice. He testified that, in general, signs

in the courthouse and in the registries are in French, English and Tåîchô and that it is the same for

employment offers and tender calls.

He noted that all the forms and certificates that emanate from his Department’s registries have been

translated into French and they are available on the Web site.

The forms required by the Criminal Code and the program for the execution of maintenance orders

are offered in French. A campaign promoting the new Act on protection from domestic violence was

recently launched in French and English.

An agreement with a private company will be signed shortly to provide interpreter services by

telephone in cases of requests for service in French directed at his Department.

There are no positions designated bilingual in the legal aid services and none of the six attorneys

employed by this service speaks French. There are no positions designated bilingual in family

services or in victim services. In the past, some registry employees could express themselves in

French but this is not the case at present. Mr. Tolton made the following observation about this:

“People come and go”. One clerk of the Territorial Court is Francophone. There is no bilingual

judge resident in the NWT but several assistant judges are bilingual. Other than the publication of

some announcements from his Department, he has received no complaints concerning French

services in his Department over the past few years.

105

(ii)

the Department of the Executive

Ms. Seddon, Acting Assistant Secretary for the departmental communications and protocol for the

Department of the Executive since September is responsible for interdepartmental communications

and planning. According to Ms. Seddon, the Deputy-Minister of each Department is responsible for

the implementation of a communications policy within his department. Ms. Seddon is responsible

for orienting new communications staff, which includes official language coordinators for the

departments. This orientation includes a discussion of the NWT OLA and of the PGD. Ms. Seddon

presides over an interdepartmental working group on communications and she organized, in March

2005, a discussion session on official languages. The official languages coordinator for her

Department prepares an annual report that summarizes her Department’s activities, from direct

services to the active offer. He also engages in consultations with the DECE’s Official Languages

Division in order to identify projects and to ascertain the need for resources within that same

Department.

The head office of the Department of the Executive (and its only office) is in Yellowknife. A sign

inside the building is written in three languages, including French (the NWT logo is in English).

According to Ms. Seddon, her Department works mainly with the other departments and does not

deal directly with the public; it does however communicate with the public from its head office and

replies to rare communications from the public. The department’s Web site is mostly in English; a

project to translate the site is being developed and its implementation will depend on the resources

that will be allocated under the cooperation agreement.

Ms. Seddon could not confirm if the greeting at the office’s reception was made in French but she

indicated that the requests for services in French (about one a month) are transmitted to a bilingual

employee, the only one among the 60 staff members of the Department receiving the bilingual

bonus. Documents emanating from her Department and which are intended for the public are

written in French and English. Her Department is responsible for press releases issued by the Prime

Minister’s Office and they are not always bilingual. A French logo is used for French correspondence

and it is available as well as a letterhead with the names of the various departments. The active

offer of a French version accompanies any reports from her Department.

The evidence established that the Departments of Justice and the Executive are aware of the need

to implementation bilingualism for their communications with the public. Of particular interest is the

availability of software for the logo and departmental letterheads in French, a piece of software that

could easily standardize the practices that vary from department to department as far as written

communications from the government intended for the public are concerned.

(iii)

the FMBS

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Mr. Lou Voytilla, Secretary to the FMBS whose principal mandate is the management of the GNWT’s

finances, testified that two of his employees in the Human Resources Division who receive the

bilingual bonus annual report able to respond to requests for services in French. However, his

office, which has 280 employees throughout the NWT, does not offer any service to the public and

does not have a reception service at its head office. Its only interactions with the public are

announcements of employment offers. Mr. Voytilla did not remember a single telephone request

addressed to his Department for service in French. The FMBS’s telephone greeting is made in

English and their Web site, even though it is accessible to the public, is mainly intended for public

servants and is not completely bilingual.

Ms. Lynn Elkin (Assistant Deputy-Minister for Human Resources employed at the FMBS) noted that

his Department recently hired a services officer and an employee responsible for wages and

benefits, both bilingual, when the Department took over responsibility for the Commission scolaire

de division.

(iv)

the Department of Finance

There is no specific allegation against this Department in the amended statement. However, Ms.

Fonteneau testified that, in 1998, as Director of a daycare centre, she had to fill in the “Payroll Tax

Act Remittance Return” form provided by the Department of Finance. This form provides a 1-800

number for persons interested in obtaining a French version; she asked for and obtained the form in

French, but the following year, she once again received the English form. As she did want to have

to repeat the exercise every year and wait each time to receive a French form, she has chosen to

complete the English form since 1998.

Mr. David Stewart, the Territorial Statistician, testified that his nine-employee office is administered

b the Department of Finance. He is responsible for the implementation the NWT OLA in his office,

but he did not make any request for funding for services and communications in French. A bilingual

employee left his office during the past year, but no request for services in French has been

received since. The public can communicate with his office to obtain statistics but the primary role

of his office is to provide statistics for the purpose of government planning. Members of the public

rarely come to his office, which in fact does not have a reception area; telephone calls are taken

directly by the employees. Over the past 18 years, no member of the public has requested a

document in French. His office’s Web site is only in English. Correspondence emanating from his

office is written in English but it is mainly for the attention of the other departments of the GNWT.

(v)

Agencies, commissions and boards

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There is no specific allegation against these organizations in the amended statement. The attorneys

for the Workers’ Compensation Board and the Housing Board applying for intern or status during the

trial. For reasons already expressed in my ruling denying their application for intervention, I am

rendering no order that might bin these government organizations directly and individually. This has

no impact on the responsibility of the Territorial Defendants regarding the implementation of the

NWT OLA, an Act that binds all departments and all branches of the GNWT, the office of the

Assembly and “any there organization designated in the regulations”. There is currently no

regulation in effect that would make it possible to clarify this issue. During the hearing on the

applications for intervention by the Workers’ Compensation Board and the Housing Board, their

attorneys maintained that these organizations acknowledge that they are bound by the NWT OLA,

but not necessary by the provisions of the PGD (even though these two organization appear in the

tables appended to the PGD). Their position reflects the tenor of numerous replies to a

questionnaire on official languages that the Special Committee (see p. 219 of the final report)

circulated to all the departments and organizations listed in Table A, appended to the PGD. Of the

24 replies obtained from the departments and agencies, only 46% of the respondents thought that

the PGD was relevant.

I.

The allegations concerning government advertising in L’Aquilon

newspaper

(i)

the years 1993 to 1997

These allegations appear in s. 44 and 45 of the amended statement. Published monthly starting in

1986, bimonthly starting in 1989 and weekly starting in 1993, L’Aquilon now has a press-run of

about 1,000 copies and is distributed throughout the NWT, as well as copies in Acadia and Europe.

Mr. Alain Bessette was the Director-General in the early 1990’s and then, after an absence of several

years, resumed those functions in 1995. He is still the Director-General.

In 1993, L’Aquilon examined the annual amounts provided for in the Canada-NWT Cooperation

Agreement budget for advertisements in French from the Department of Personnel ($70,000$) and

Transportation ($24,000). The Director of the newspaper wrote to the MLA, the Honourable Tony

Whitford to point out that the newspaper had received none of these allocated sums. In his January

4, 1994 reply, the Minister of Transportation, the Honourable John Todd, indicated that there were

eight official languages in the NWT and to grant fair and equal treatment to all official languages, he

would need an additional budget of $144,000$. Mr. Todd added that the Department of the

Executive was currently formulating a policy regarding advertisements for the GNWT as a whole. In

her testimony, Ms. Harnum pointed out the irony of that reply in which Mr. Todd mentions the need

to obtain supplementary funding at a time when the GNWT was returning substantial amounts of

funding to the Federal Government.

Afterwards, the management of the newspaper asked NWT LC Harnum her opinion of Mr. Todd’s

reply. She invited L’Aquilon to lodge a complaint and offered to carry out research into the legal

aspect of the question as to whether the Department of Transportation was respecting the NWT

OLA.

In a letter written in French, L’Aquilon then informed the Premier at the time, the Honourable Nellie

108

Cournoyea, and then lodged a complaint with the NWT LC in February 1994. Ms Cournoyea replied,

in a letter written in English, under an English letterhead, a copy of which was sent to all

departments of the GNWT, that the writing of directives is a complex matter and that departments

had been advised to implementation projects provided for in the Cooperation A. No response from

the NWT LC was submitted in evidence.

(ii)

the FFT’s study of advertisements (October 1998 to February

1999) of the FFT and its campaign of complaints

Mr. Lamoureux testified that the FFT launched a vigorous campaign to correct the situation

regarding the publication in L’Aquilon of an insufficient number of Government announcements, be

they tender calls, employment offers and other public announcements. The FFT lodged a series of

complaints with NWT LC Tutcho, about one year after the implementation of the PGD and one year

before the FFT adopted a formal resolution aimed at initiating a lawsuit. Between October 1998 and

February 1999, this organization lodged 46 individual complaints with the NWT LC to expose 151

incidents of the non-publication of announcements in L’Aquilon (despite their publication in an

English newspaper in the NWT) by various government departments, agencies, commissions and

boards.

Some organizations were the subject of repeated complaints: i.e., the Director of Elections, the

Department of Health and Social Services, the Department of Transportation, the department of

Justice, the “Nunavut Arctic College”, Aurora College, the Department of Municipal Affairs, the Legal

Services Board and the Workers’ Compensation Board. On February 21, 1999 the Department of

Transportation responded to a complaint dated January 21, 1999, reassuring the FFT that

henceforth, any announcement published by the Department would respect the requirements of the

NWT OLA. However, on February 19, 1999, another complaint was submitted concerning three

announcements published only in English in the same month by this same Department. In one of

these cases, the DECE had omitted to publish in L’Aquilon a job offer for an assistant in French

education

In his March 9, 1999 response (in English),the Deputy-Minister of Natural Resources, Wildlife and

Economic Development at the time, Mr. Joseph Handley, indicated that his Department had

informed Inkit Ltd (the company responsible for the publication of announcements for his

Department) that any requests received from his Department for the publication of announcements

should appear in L’Aquilon. Since Inkit was under contract with the GNWT for placing the great

majority of advertisements, this simple solution should have been able to resolve overall the

problem of the publication in French of government advertisements. However, according to Ms.

Elkin, since May 2005, her Department is responsible for all recruitment advertisements for

departments and they deal with a private company to advertise all government positions.

This is an example of an effective follow-up by an official languages coordinator who used her own

initiative in dealing with complaints presented by the FFT concerning advertisements from the

Department of Public Works: Ms. Babicki had noted in July 1998 that her Department was spending

very little on French-language advertisements and she conveyed her concerns to the public servant

responsible for these. In addition, she circulated a memorandum reminding all superintendents and

regional directors of her Department of their obligations regarding the publication of

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announcements. Finally, she continued to check L’Aquilon each week to ensure that advertisements

from her Department had been published therein.

(iii) the study by the FFT of advertisements published in October 1999

Mr. Lamoureux testified that in October 1999, the FFT had done a follow-up on the complaints

lodged previous to determine if the complaints procedure had contributed to promoting the

publication of government advertisements in French, but he acknowledged under cross-examination

that the objective of this follow-up was to provide material for the lawsuit. Mr. Lamoureux provided

an account of all the government advertisements published in the English press from October l1-29,

1999 that had not appeared in L’Aquilon. The results: out of some one hundred advertisements

published in the English-language press, one-half had not appeared in L’Aquilon. He concluded that

neither the lodging of complaints nor the March 1999 Forum had improved the situation. He did not

submit a complaint about these incidents, having concluded that it would be “a useless waste of

energy”.

Mr. Lamoureux acknowledged under cross-examination that the application of the PGD to the 50

advertisements that had not been published in L’Aquilon in October 1999 would bring the number of

“infractions” down to 17, nine of which from organization, the other infractions representing no

more than two “infractions” per department.

(iv) the study undertaken by L’Aquilon regarding advertisements

published from 1994 to 2002

According to Mr. Bessette, even after the adoption of the PGD, the volume of sales from government

advertisements in L’Aquilon improved very little, even though the costs associated with placing

advertisements in L’Aquilon were less than those in the weekly “NewsNorth”».

After the submission of the lawsuit, Mr. Bessette carried out a systematic evaluation of the number

of government advertisements published (in English) in NewsNorth and the number of these same

advertisements (in French) in L’Aquilon for the period between 1994 and 2002. I accept the data

presented by Mr. Bessette, the research for which having been carried out by an individual under

his direction, the relevant pages from NewsNorth having been submitted in evidence and the

attorneys for the Territorial Defendants having had the opportunity to verify the issues of L’Aquilon

upon which Mr. Bessette had based his results. Mr. Bessette remarked that he results of the study

indicate a fairly generalized attitude of government organizations not to publish their advertisements

in French: for each advertisement that appeared in L’Aquilon, there was one that didn’t. However,

the study does not analyze the data in relationship to the obligations of government organizations

governed by the PGD.

Using these data, Mr. Bessette evaluated the financial losses. First of all, he evaluated lost profits (i)

by calculating the number of lines and columns represented by an advertisement written in English

but reduced to its true size and (ii) by multiplying the results obtained by $1.05 or $1.10 per line

(the applicable rates during the years that were the subject of the study). Them he calculated the

costs associated with the production of a more voluminous newspaper because of the larger number

of advertisements (i) by estimating an increase of four pages in 24 issues (that is, half the issues

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published every year) for a total of $200 per issue and (ii) by adding $20 in additional mailing costs,

which gave him a total additional annual coasts of $5,280. He did not subtract the costs associated

with the preparation of additional advertisements since this preparation would not require more than

a half-hour per issue. In his estimate, the costs of the study totalled about $2,000 for each year

surveyed, which gives a total of $18,000.

Mr. Bessette calculated the loss of income from the advertisements as follows:

Lost income

Costs

Net income lost

$103,920

1994:

1995:

- $5,280

- 5,280

=

$109,200

95,740

90,460

1996:

102,646

98,864

113,131

79,081

63,257

81,568

100,354

- 5,280

=

97,366

93,584

1997:

1998:

107,851

73,801

1999:

2000:

57,977

2001:

76,288

2002:

95,074

Sub-total:

$796,321

$18,000

Plus costs of study:

Grand total:

$814,321

According to Mr. Bessette, the quality of the newspaper suffered during the years evaluated since, in

addition to his administrative responsibilities, he had to see to the content of the newspaper with

only one employee who worked 70% of the time worked by a fulltime worker. It was only in 1999

that the newspaper was able to allow itself to hire another employee, to improve the quality of the

content and to take an interest in community development. In her opinion, one part of the

significant reduction in losses in 1999 was attributable to instructions, given by Mr. Handley to Inkit,

to publish all the advertisements from his Department in French in L’Aquilon. He was able to hire

another employee in 2001, but because the losses were increasing in 2001 and in 2002, he had to

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fire another employee in July 2003. He indicated that the situation improved slightly in 2004 and

2005, and he expects to hire another employee in 2006.

Mr. Bessette pointed out that the numbers compiled by the GNWT that represent the amounts

expended in the years 2001 to 2005 correspond to his own calculations reflecting the reduction in

government advertisement revenues of about $20,000 between fiscal years 2002-2203 and 2003-

2004 and their increase in 2004-2005. The publication of advertisements seemed to improve for

several years after the submission by the FFT of 46 complaints to the NWT LC, but began

deteriorating aging in 2002 (and in 2003, according to the GNWT’s figures).

Under cross-examination, Mr. Bessette indicated that he was aware of the campaign of complaints

launched by the FFT in 1998-1999. He had not followed the recommendations of some departments

to communicate directly with them should there be insufficient advertisements published in

L’Aquilon. He did not lodge any complaints with the NWT LC after the submission of a series of

complaints by the FFT.

Mr. Bessette also acknowledged that (i) the 1987 Bastarache Report had evinced some hesitations

regarding the application of the NWT OLA to tender calls: “A tender call does not exactly constitute

that a head office of an institution of the Council or the Government offers to the general public

[...]” and that (ii) some of the advertisements published during the years surveyed concerned areas

that were not designated bilingual under the PGD.

(v)

summary and observations

It is clear that even after having brought the problem to the attention of officials in 1993 and in

1994, L’Aquilon had to carry out its own research on the effectiveness of advertisements placed in

French. It is equally clear that the problem was not limited to a given period or location. Judging

from most of the responses that the FFT received after lodging their complaints, the managers of

departments and agencies acknowledged that the NWT OLA obligated them to publish their

advertisements in French but that their employees were not well informed about their obligations.

Even after the submission of formal complaints with the NWT LC and interdepartmental discussions

on this subject, the problem still persisted in some departments. The obvious solution is the one

adopted by the Department of Natural Resources, which consists in alerting the private company

responsible for placing 95% of government advertisements that they must ensure that the

advertisements be published in French. This systematic approach is not complicated and does not

depend on the audit efforts of the official languages coordinators like Ms. Babicki. The GNWT seems

to have adopted this solution in 2005.

J.

The status of the active offer of services in French in the NWT

The Plaintiffs produced their evidentiary elements dealing with the status of services in French in

government offices in order to support their argument that the alleged breaches of there rights to

communications and services in French constitutes a systemic problem in the NWT and that these

are not isolated incidents.

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(i)

the “Operation Polaroid” Studies

The admissibility of the Polaroid studies commissioned by the FFT was vigorously debated in terms

of their relevance, their “double hearsay” aspect and the reliability of the methodology used to

gather the data. Concerning the issue of their relevance, the evidentiary elements about the status

of the active offer and services in French at points of government service in the NWT can help the

Court to situate the allegations of the individual Plaintiffs and of the FFT in an actual context; are

these allegations isolated or, to recall the words of Mr. Lamoureux, do they demonstrate the

existence of “widespread shortfalls”? If these allegations established the existence of infringements

of the Act, what is the source of these breaches? Then, what are the most effective solutions?

Would a particular solution constitute an effective remedy to a given breach or is there a need for a

solution that applies to a more fundamental problem, should those breaches be symptoms only?

In attacking the methodology used to carry out the studies, the Territorial Defendants presented

evidentiary elements to show that the studies were not reliable indicators of the status of services in

French in the NWT that could be used to influence the decision of the Court. I will analyze each of

these studies in turn.

(a)

Operation Polaroid 1

Ms. Sylvie Francoeur coordinated the study commissioned by the FFT in January 1999 (“Polaroid 1”)

on the availability (and not the quality) of services in French in the GNWT. Before she undertook

this study, Ms. Francoeur had a Masters in Public Administration and she had three years experience

as a consultant with the firm of Nadeau, Beaulieu and Associates of Moncton. The FFT drew up a list

of seven departments and 17 agencies in four régions, i.e. Yellowknife, Fort Smith, Iqaluit and

Inuvik (the latter, to her knowledge, was not located in a zone designated by the PGD). She

developed the methodology, prepared the control files and compiled the results of the study. The

pollsters gathered data by means of telephone calss and visits to offices of the GNWT during a

single day, February 11, 1999. They asked simple questions, asked for service or a document in

French. The telephone numbers came from the telephone directory.

Ms. Francoeur consulted the PGD to formulate the questions and situate the results in relationship to

the Government’s commitments. She particularly noted Guidelines 3 and 4 dealing with the active

offer: Inform the public that a service is offered in an official language by various means: sign, word

of greeting or correspondence” and Guidelines 6 and 7 dealing with the translation of documents:

“Public documents must be translated into the official languages of the designated regions when

frequent and persistent requests are made [...] and the nature of the material is important for public

health and safety”.

The study targeted some departments in particular, i.e. the Department of Health and Social

Services, the DECE and the Department of Natural Resources and Wildlife. Ms. Francoeur point out

that, as a control measure, none of the pollsters were involved in the French community, nor were

they employees of the g. They attended the same training session, received the same information

and the same instructions at the same time to ensure the uniformity and the objectivity of their

data.

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Operation Polaroid 1 gathered the following data, based on communications with 50 offices:

•

60% of the offices were designated or were located in regions designated by

the PGD;

•

98% of the offices did not offer a French greeting (49 offices out of 50);

47% of the offices visited had displayed that service in French was available;

14% of Government staff can express themselves in French;

75% of the documents (representing 56% of the requests) were not offered

in French within 24 hours following the request;

•

42% of the staff who answered urged the pollsters to speak English.

Under cross-examination, Ms. Francoeur stated that the study was not a double-blind survey, which

is the ideal situation for a survey since neither the pollster not the individual being surveyed are

aware of the nature or the goal of the survey. She point out that, indeed, it was not a survey and

that the concerns relating to the objectivity of the results were mitigated by the control measures

that were used. Since it was not a survey, no margin of error was applied to the results. The results

of the study were not weighted to take into account the true frequency of requests for the service or

the document in question. However, she argued, in reading the Guidelines, that the frequently of

use is not a condition for their application. Ms. Francoeur acknowledged that the results of the

study assumed the existence of an English version of the documents requested at the points of

service in question, but she emphasized that they were documents in actual use.

She acknowledged that the Polaroid 1 study does not make it possible to determine which of the 50

points of service that were reached, offered the services or documents requested and which did not.

Moreover, the offices located outside of the designated zones were not isolated nor were those

offices that only offer their services to other departments.

(b)

Operations Polaroid 2 and 4

Mr. Marc Haentjens is one of the founders of the ACORD company, a consultin and research firm

that specializes in issues affecting Francophone minoirites. He received a Masters In Commercials

Studies in Paris. In April 2003s, the FFT commissioned a study (“Polaroid 2”) to update the results

of Polaroid 1. This second study used the same methodology used in Polaroid 1, except that it (i)

replaced the personal interviews with telephone calls made by a pollster in Ottawa; (ii) only asked

for documents (for which the availability in English had been verified this time) and (iii) eliminated

the study of offices now located in Nunavut.

The FFT selected the 60 offices most likely to receive a request for services from the Francophone

community: 44 were located in Yellowknife and the others in Fort Smith, Hay River and Inuvik.

These offices were broken down into the following categories: information offices, head offices and

offices of a mandatory nature (specific nature for all the NWT). The FFT chose the questions to be

asked. I note that the choice of offices or questions was not criticized by the Defendants during the

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cross-examination of Mr. Lamoureux. The data were gathered between Mother tongue 13 and 14,

2003 by a pollster with experience into telephone surveys; she recorded her observations on card

regarding language of greetings, the language in which she could formulate her request and the

availability of the product. She succeeded in communicating with a person at 48 of the 60 offices

(12 voice mailboxes) and was able to make her request with 41 offices, 6 offices having promised to

call back and one office having hung up.

Operation Polaroid 2 brought to light the following data:

•

Bilingual or French greeting: 0 offices (out of 48 offices);

Respondents able to answer in French: 8 offices (out of 47);

Service in French after transferring the call: 13 offices (out of 41);

Bilingual or French document available immediately: 10 offices (out of 41);

Bilingual or French document “might be available”: 4 offices (out of 41);

Document available in English only: 14 offices (out of 41).

Mr. Haenjtens concluded that the results did not differ very much from the data obtained trough

Operation Polaroid 1 in 1999. The active offer had not improved and the availability rate for French

documents was still fairly low. He also noted that went the people who answered the phone

referred the researcher to the GNWT’s general Web site, the latter was in English except for a list of

French resources listed under the tab “Official Languages”.

In May 2005, Mr. Haentjens carried out the Polaroid 4 study to update the Polaroid 2 study. The

same pollster called the same offices and asked the same questions; the answers were record on

the same research card used on May 10 and 11, 2005. She succeeded in reaching 53 of the 60

offices. She was able to speak to a person in the case of 49 offices, 4 offices having promised to

call back.

Operation Polaroid 4 gathered the following data:

•

Bilingual or French greeting: 2 offices (out of 53 offices);

Respondents able to answer in French: 4 offices (out of 53);

Service in French after transferring the call: 20 offices (out of 49);

Bilingual or French document available immediately: 13 offices (out of 49);

Bilingual or French document “might be available”: 3 offices (out of 49);

Document available in English only 30 offices (out of 49).

Mr. Haentjens concluded that there had no been significant improvements in terms of services in

French and that the accessibility of products (documents) in French was still very uncertain: “Even if

it [the accessibility] is somewhat improved with the development of on-line services, we can still

observe that it also still has far to go to meet the established policy”.

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He particularly mentioned the Fort Smith Health Centre and the Offices of the Hay River and Inuvik

Fire Commissioners which were able to offer direct service in French. I note that Ms. Aubrey is the

receptionist at the Fort Smith Health Centre and that Mr. Gervais is the officer for the Inuvik Fire

Commissioner.

The Defendants criticized the methodology employed by Mr. Haentjens in the Polaroid 2 and 4

studies. First of all, according to the Defendants, the list of offices selected had been the subject of

a selection favoured by one of the Plaintiffs, the FFT. However, no element of the evidence

indicated that the offices chosen did not fall within the three categories established by

Mr. Haentjens. In rebuttal, Mr. Conrad Winn, professor in communications at Carleton University

and President of “Compass Research”, a research firm dealing with surveys, pointed out that he

would be incapable of reproducing the results of Polaroid 2 and 4 because the reasons justifying the

choice of offices or the precise criteria leading to that choice lacked clarity or were based on the

interests of the client. I note that is very difficult to compare the results of Polaroid 1 with the

results of Polaroid 2 and 4, given that the offices chosen and the documents requested were

different. But in the case of Polaroid 2 and 4, the offices chosen and the documents requested were

the same.

Mr. Winn pointed out some of the advantages of double-blind surveys: for example, they make it

possible to avoid the respondent giving the answer that he thinks the pollster wishes to hear and to

avoid the pollster communicating his opinion on the subject of the survey. He described the

Polaroid studies as “investigations”, a description completely in accordance with that used by Ms.

Francoeur. According to Mr. Winn, these investigations do not reflect the frequency of demand,

which is a fundamental principle of any survey. In addition, it treats all the offices chosen equally

rather than assigning more weight to the responses from offices that communicate with the public

most often. However, Mr. Haentjens had clearly indicated that it was not about evaluating the

demand but rather the ability of offices to meet a demand.

The Territorial Defendants observed that there was no way to correct the results of the study should

the Court conclude that an office or an agency included in the study is not required to serve the

public in French. Mr. Winn also mentioned that the size of the sample was a factor which reduced

the reliability of the results. In his opinion, to succeed at quantitative research, 30 respondents

would be the acceptable minimum for a point of service, but he acknowledged that 50 or 60

respondents would be suitable for an overview of all the points of interaction. He indicated that a

sample of 50 is a bit weak; he could not therefore conclude that the results of a study of some fifty

offices was not valid as a whole. Finally, Mr. Winn pointed out that no control measures were to

verify the results and that inquiries consisting of several calls to the same office at different times

and on different days would have produced more reliable results that the methodology that was

used.

(c)

Operation Polaroid 3: Federal services in French in the NWT

The Plaintiffs presented this evidence for the purposes of comparison and not as a basis for the

demand for damages from the AGC.

Mr. Haentjens undertook to verify the services in French in Federal offices in the NWT that were

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designated bilingual. He established the list of these offices based on another list, prepared by the

Treasury Board, of the 30 bilingual offices or points of service. The survey took place by telephone

on June 11 and 12, 2003 and consisted only in a request for documents. Out of 49 calls, personal

communications were finally established in the case of 22 calls (communication with an individual

was immediate in the case of 18 calls) and the pollster was able to ask for the documents from 19

offices.

Operation Polaroid 3 gathered the following data:

•

Personal greeting in English or bilingual: 6 calls (out of 18 calls);

Voice mail with a bilingual message: 6 calls (out of 8 greetings by recorded

message);

•

First respondent able to communicate in French: 7 calls (out of 18 calls);

Bilingual or French document: 13 offices (out of 19).

Mr. Haentjens pointed out that the use of voice mail is more widespread in the guidelines. He

observed, as far as the active offer was concerned, “a more firmly-based reflex” that was found in

the offices of the GNWT, a greater availability of documents in French but insufficient human

resources.

As the Territorial Defendants underscored in the case of the Polaroid 3 study, all the federal offices

that were selected specifically designated bilingual; moreover, the Federal Government benefits

from economies of scale and from the services of offices located outside the NWT.

(d)

the admissibility of the Polaroid studies

After having determined that these studies are relevant to the allegations of the individual plaintiffs

and of the FFT, it remains to be decided if they must be excluded from the evidence because of their

double hearsay aspect (neither the responders from the government offices or the pollsters testified

on this subject) and of the methodology used to gather the data.

On the issue of hearsay where surveys and statistics are concerned, the text by Sopinka et al., The

Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) indicates the following (“Opinion

Evidence”; 12.115 to 12.116) :

12.115 Certain hearsay information upon which an expert relies has the hallmarks of

necessity and trustworthiness. Surveys and similar statistical data come within this

category. The Supreme Court of Canada in Saint John (City) v. Irving Oil Co.,

[1966] S.C.R. 581, considered the admissibility of the opinion of an expert land

appraiser testifying as to the value of expropriated property. It was argued that his

opinion was inadmissible on the ground that it was hearsay based upon calculations

made from unrecorded interviews by the expert with forty-seven persons who were

involved in land sales in the area, and who were not called as witnesses at trial.

Ritchie J., speaking for the Court, feared that if such evidence was excluded because

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of its hearsay foundation, “then the proceedings to establish the value of land would

take on an endless character as each of the appraiser’s informants whose views had

contributed to the ultimate formation of this opinion would have to be individually

called” [at 592]. He then went on to examine the relationship of the interview data

to the expert’s final opinion and concluded as follows:

To characterize the opinion evidence of a qualified appraiser as

inadmissible because it is based on something that he has been told

is, in my view, to treat the matter as if the direct facts of each of the

comparable transactions which he has investigated were at issue

whereas what is in truth at issue is the value of his opinion.

The nature of the source upon which such an opinion is based

cannot, in my view, have any effect on the admissibility of the

opinion itself. Any frailties which may be alleged concerning the

information upon which the opinion was founded are in my view only

relevant in assessing the weight to be attached to that opinion...

12.116 Surveys and public opinion polls conducted by experts have been received by

Canadian courts even though such evidence consists of data compiled outside the

court room. Appellate Courts in Manitoba [R. v. Prairie Schooner News Ltd.

(1970), 75 W.W.R. 585 (Man.C.A.)] and Ontario [R. v. Times Square Cinema

Ltd., [1971] 3 O.R. 688 (C.A.)] and a district court in Alberta [R. v. Pipeline News,

[1972] 1 W.W.R. 241 (Alta.Dist.Ct.)] have indicated a willingness to accept expert

evidence of surveys relating to community standards in obscenity prosecutions as

long as it can be demonstrated that approved statistical methods and social research

techniques have been employed. With respect to this kind of evidence, the courts

have been more concerned about the procedures and techniques utilized by the

experts than they have been about the hearsay aspect of such evidence. [But see

Building Products Ltd. V. B.P. Canada Ltd. (1961), 36 C.P.R. 121 (Ex.Ct.).]

However, the failure to follow proper methodology for survey research, for example

failing to select the proper sample population, are grounds for excluding the results

of the survey [National Hockey League v. Pepsi-Cola Canada Ltd. (1995), 2

B.C.L.R. (3d) 3 (C.A.); see A. Bryan et al, “Public Attitudes Toward the Exclusion of

Evidence: Section 24(2) of the Canadian Charter of Rights and Freedoms” (1990), 69

Can. Bar Rev. 1., for a description of survey methodology.]

Jusrice Gibson expressed similar concerns in his ruling on receiving in evidence the results of a

survey dealing with the issue of the confusionin a suit concerning intellectual property: see the

ruling : Big Sisters Assn of Ontario c Big Brothers of Canada, [1997] A.C.F. No. 627 (1^stinst.)

(conf. [1999] F.C.J. No. 809 (C.A.)), citing in p. 52 a passage from a ruling by Justice MacFarland in

the decision Sun Life Assurance Co. of Canada v. Sunlife Juice Ltd. (1988), 22 C.P.R. (3d)

244 (H.C.J. Ont.) on pages 248 and 249 :

Questions of fact must be determined as a function of the evidence and the only

[evidence] submitted to the Court is a survey that was carried out in a professional

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manner by experts in their field, which has proven more useful than if we had, in an

archaic manner, paraded a number of witnesses chosen randomly to fill the exact

same function as the pollster. The survey is by far more effective and beneficial for

the Court. I believe it constitutes a very relevant piece of evidence.

According to Justice Gibson, if the evidence offered by the survey in this case had less weight than if

it had been extracted from a survey that had benefited from more time and resources, it still

constituted the best evidence for the Court.

In the matter R. v. Boles (1985), 57 A.R. 232, requests the authorization to deny an appeal (1985),

58 N.R. 309 n, the Alberta Court of Appeal deemed admissible pursuant to ss. 30(1) of the Canada

Evidence Act, R.S.C. 1970, ch. E-10 (now tenant R.S. 1985, ch. C-5) documents from an hotel in

India that confirmed the presence of some of the alleged conspirators, despite their aspect of double

hearsay (information supplied by the client of the hotel and recorded by an employee; neither was

summoned to the trial).

On the other hand, in the matter Alberta Egg Producers Board v. Donszelmann, [2004] A.J.

No. 1148, 2004 ABQB 715, Justice Johnstone deemed certain statistical data inadmissible because

(inter alia) of the fact that the witness was not in a position to attest to the methodology used for

gathering them.

In the matter Kirkbi AG v. Gestions Ritvik Inc., [2002] A.C.F. No. 793 (1^stinst.) (conf. on other

means [2004] 2 R.C.F. 241 (C.A.) and [2005] A.C.S. No. 66 (C.S.C.)), concerning the question of

the effect of the methodology used in surveys on their admissibility, Justice Gibson cited in p. 90 the

following passage from the ruling Canada Post Corp. v. Paxton Developments Inc. (2000), 9

C.P.R. (4th) 429 (C.F.) (au s.16) :

In the ruling Joseph E. Seagram & Sons Ltd v. Seagram Real Estate Ltd. [...]

Justice MacKay described as follows how to use survey data:

"The question of admissibility and reliability of surveys of public

opinion polls has been the subject of debate in numerous trade mark

cases. However, after considering the jurisprudence concerning this

matter, I understand the general principle to be that the admissibility

of such evidence and its probative value are dependant upon the

relevance of the survey to the issues before the court and the

manner in which the poll was conducted; for example, the time

period over which the survey took place, the questions asked, where

they were asked and the method of selecting the participants[...].

[references omitted]

Considering, on the one hand, that it is almost impossible to summon to the Court the respondents

to each study and that the verification cards used in the case of each study was completed at the

same time as the questions were asked and, on the other hand, that the number of offices reached

and the calls made to those offices were limited, that there was no way to distinguish one office

chosen from the other, and that some methodologies applicable to surveys were not used (i.e. –

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double blind surveys, measurement of the frequency of personal exchanges with the offices, the

absence of weighting of the results, the impossibility of reproducing the results), I conclude that the

Polaroid studies are nevertheless admissible as evidence. The studies illuminate the general context

of the specific allegations concerning the active offer and the institutional response to requests for

services in French. If the infringements of the Plaintiffs language rights are established by the

evidence, the studies may help the Court to formulate the means of remedy can be applied

effectively. However, I recognize that the recitative value of these studies is limited in light of the

factors listed above.

I also recognize the difficulty raised by the Territorial Defendants relative to the impossibility of

adjusting the results if some offices are excluded because they have no personal exchanges with the

public or they are located outside the designated zones. I retain, however, the result of the studies

reporting on the absence of the active offer in almost all of the GNWT offices chosen, an indication

that the problems alleged by the Plaintiffs regarding the active offer of services in French are not

isolated problems.

The fact that the Polaroid studies reveal the existence of a problem that is not an isolated one but is

widespread is supported by the responses to the questionnaire that the Special Committee (p. 219

of the final report) circulated in the departments and agencies listed in Table A of the PGD. Of the

24 answers received:

•

67% of the respondent exercised no monitoring of the application of the NWT

OLA and the PGD;

Most of the respondents have no procedure making it possible to provide the

public with services in the official languages when there is no speaker of one

or other of these languages on site;

•

63% of the respondents do not keep track of the language services they

provide, blaming it on a lack of human resources and an insufficient number

of requests for such services;

42% of respondents have no have any guiding principle allowing them to

transfer the obligation to preserve language rights in the framework of the

provisions of services that are either contracted out or privatized;

79% of respondents currently have no plan for the implementation of the

provision of services to communities (Terriplan Consultant, 2002).

I am drawing no specific conclusion regarding any particular department or office as far as these

data are concerned, in view of the absence of information on the methodology used but, as with the

Polaroid studies, the answers to the questionnaires throw light on the general context of the specific

allegations.

(ii)

Study by the Official Languages Commissioner for Canada

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Mr. Michel Wissell is employed by the Official Languages Commissioner for Canada since 1989.

Before taking over his current position as senior investigator in Ottawa, he was the Head of the

Complaints Centre and Deputy Director of investigations. Mr. Wissell described the follow-up –

dated March 2000 – of a study by the Office of the Commissioner in 1994 on services in French

offered in the NWT by federal offices designated bilingual. The follow-up studied the services

offered in 21 of the 39 federal offices designated bilingual, that is, the departments “that concern

the community”. The offices received a general notice about the study and the investigators knew

the objectives of the study. It is interesting to note that the Territorial Defendants did no opposed

the admissibility of the results of this follow-up despite the fact that: (i) the study was not a double-

blind one; (ii) the Francophone community had participated in the choice of offices, and (iii) Mr.

Wissell himself did not write nor approve the content of the study.

The study evaluated, inter alia, the active offer and the knowledge that the officials of the offices

designated bilingual and their employee have of their obligations regarding bilingual greetings and

services. The study identified improvements at some levels and deteriorations in other. None of the

21 offices offered bilingual greetings in person and 55% offer a bilingual greeting on the telephone.

The bilingual ability of an office was deemed to be insufficient in 50% of the offices that were

studied. Mr. Wissell acknowledged that there were differences between the Federal Government and

the GNWT:

•

the Federal Government has been working under a regime of governmental

bilingual since 1969;

the Federal Government benefits from greater financial and human resources

but still has difficulties in obtaining the services of qualified personnel;

the Federal Government does not have an affirmative action policy regarding

the hiring of Aboriginals or the challenge of managing 11 language

communities;

•

the Federal Government can fill temporary gaps using 1-800 numbers from

outside the NWT and offer service through these numbers.

(iii)

Government building signage

Mr. Wayne Nesbitt was the manager of Department of Public Works buildings until May 2005 and

was responsible for the interior signage of government buildings in Yellowknife (except for the

Stanton Hospital, the Assembly and agencies). His office receives requests for signs for other

department and he is guided by the Guidelines. However, he emphasized that it is ultimately up to

each department to decide which signs will be in French. He explained that when the GNWT is the

owner of a building, the exterior signs are in three languages, English, French and Dogrib. Despite

this, the exterior sign designating the Arthur Lang Building, a government building, is only in

English. When the GNWT is the sole lessee of a building, the exterior signs are in English, in the

absence of another arrangement with the lessor.

To illustrate the alleged breaches in terms of signage, Mr. Lamoureux (of behalf of the FFT)

submitted in evidence several photographs taken in 2001 of exterior and interior signs of buildings

occupied by departments of the GNWT.

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For his part, Mr. Galipeau submitted in evidence several photos taken in 2005 which illustrate the

presence of French on several signs installed inside Government buildings, such as the buildings for

the Departments of Health, Education, Justice, Municipal Affairs and Tourism, as well as the Housing

Corporation.

The evidence established that the situation represented by these photos has improved over the

years; however, English logos can still be found on bilingual or trilingual signs (Municipal Affairs)

and there are buildings where the signs are still in English (exterior sign for the NWT Power

Corporation, the exterior and interior signs at Aurora College). The FFT did not lodge any complaint

on this subject with the NWT LC.

(iv)

the Web sites

Mr. Lamoureux check the NWT LC’s Web site in 1999 and it was only in English, except for a

sentence in all the official languages indicating how to obtain information in another official

language. Mr. Claude Doucette, a teacher of computer sciences in Fort Smith, who has a lot of

experience in computer systems, had consulted the Web sites of the GNWT and its departments and

agencies over the past six years in the framework of his work as a teacher. According to his

uncontradicted testimony, Web sites are effective and economical way of making the active offer.

He pointed out that the active offer, whether it be made by signage, a Francophone employee at the

reception desk or on a Web site, “this says that my language and culture are being respected”. He

check the GNWT’s Web site in June 2005 and noted the lack of French language information.

Mr. Léo Paul Provencher checked the GNWT’s Web site in May 2005. he noted that the home page

is only in English. However, the site of the Department of Health and Social Services contains

several resources in French as does the Web site of the Energy Corporation. Mr. Lamoureux noted

that, in 1999, the Assembly’s Web site was only in English and, according to Mr. Provencher, this

situation has not changed, except for a reference to “other languages”, Mr. Marc Haentjens noted in

the Polaroid 4 study (May 2005) that the GNWT’s general Web site displays only in English, even

though one can find in several sections of the site, some information in French. He made the

following observation: “[...] the sites related to the Government of the NWT do not seem to be

governed by a clear policy in terms of language of access”.

(v)

the single-window concept

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This concept of a centralized system for government information, services and documents is not a

new one and, according to Mr. Chagnon, it was successful in Manitoba. I note that the single-

window service is a direct service, which differs from the 1-800 information service (referral) offered

by the NWT in the early 1990s. Inspired in this direction by Maître Bastarache in his 1987 report,

the FFT proposed the adoption of a single-window service in its statement of aspirations arising from

its Marc 1999 forum and, again in 2001, in a letter addressed to the official languages division of the

Treasury Board Secretariat of Canada. I accept Mr. Lamoureux’s testimony that the concept was

raised during several discussions with Territorial officials, notably, during at least four meetings in

2002 and 2003 between the FFT, Mr. Daniels and Mr. Cleveland. According to Mr. Lamoureux,

these discussions did not produce any serious reports by the time he had left the organization in

June 2003. The Special Committee on the Review of the NWT OLA endorse a single-window pilot

project in 2003.

The GNWT commissioned a study of the single-window concept. The study, carried out by Conroy

Ross Consultants in 2004 defined 44 types of front-line services that could be offered by using a

central service and they recommended that the GNWT set up a pilot project in Yellowknife as well as

a 1-800 number to serve the les regions.

According to the study (p. 42):

While piloting a SW [single-window] Centre is not a panacea with which to address

the GNWT’s official language obligation, it does represent an important step in this

process and can provide all citizens with the ability to access territorial and federal

government services in one central location.

And on page 25:

In summary, the GNWT can take several steps to improve service delivery in French

in communities outside of Yellowknife, without incurring great cost, simply by

harnessing the talent of current GNWT employees. More specifically, the GNWT

could increase the number of services provided in French and improve service

delivery to Francophones by focussing on active offer of service instead of the

current passive approach that requires the public to ask for the service and then

accept the resulting delays.

[emphasis mine]

In his testimony, Mr. Galipeau indicated that he had prepared a request for funding for the pilot

project of a single-window in Yellowknife for the purposes of the Department of the Executive.

According to Mr. Cleveland, the project is part of the current negotiation of a new cooperation

agreement with Canadian Heritage.

K.

Ethnolinguistic vitality

The Plaintiffs allege the following in s. 47 of the amended statement: “The Plaintiffs, as well as the

Francophone community of the NWT, are suffering an irreparable loss because of the lack of

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communications and services in French. The communication and the provisions of services in

French has a symbolic and a real impact on the dignity, the well-being and the feeling of belong of

the French community of the NWT [...]. The absence of government communications and services in

French hinders the viability of the French language and of the Franco-ténoise community.” The

Plaintiffs presented two expert witnesses to explain the role of governments in maintaining

Ethnolinguistic vitality.

Mr. Rodrigue Landry is the Director-General of the Canadian Institute for Language Research in

Moncton. Holder of a Masters in Education and a Doctorate in Educational Psychology, he was a

member of the Faculty of Education Sciences at the University of Moncton from 1975 to 2002 and

Dean of that faculty from 1992 to 2002. His 120 publications since 1985 almost all deal with the

linguistic vitality of communities in minority situations.

I concluded that it he was able and competent to express expert opinions on linguistic socialization,

linguistic motivation, linguistic insecurity, feelings of belonging, identity commitment, the dimensions

of the actual language experience in the actual language experience in the public and private

domain and the link between existence or non-existence governmental organizations governmental

institutions and the ethnolinguistic vitality of the Franco-ténoise community.

At the start of his testimony, Mr. Landry explained that ethnolinguistic vitality has structural factors

of the society that promotes the development of a language group as a distinct and active entity in a

situation of contact with one or more other groups. He described the three main categories of

factors that influence ethnolinguistic vitality: (i) demographic factors, notably the number of people

using the langue, their proportion in relationship to the majority, exogamous marriages, immigration

and emigration; (ii) institutional support; the more institutions support a language group, the better

its chances for survival (iii) the status of the language, that is, if the language is known.

Mr. Landry also described the four “capitals” that contribute to ethnolinguistic vitality:

(i) demographic capital (the number of speakers); (ii) political capital (political representation,

presence within the public service, government services); (iii) economic capital (language of work,

control of industries and commerce); and (iv) cultural capital education programs, media, Internet,

cultural organizations). In his expert report, Mr. Landry made the following observation: “The more

a minority group has strong vitality, the greater is the probability of language socialization and

psycholinguistic development that favours the continued used of the group’s language. When the

ethnolinguistic vitality of the minority is weak, it is the language of the majority exogroup that is

likely to dominate situations of language contacts. In this context, bilingual is “subtractive”, that is

the acquisition of the language of the majority exogroup is linked to the lost of the language of the

minority endogroup.

Mr. Landry made a distinction between objective ethnolinguistic vitality, that is, that which can be

observed and quantified with the help of statistical data, for example, the presence of the language

on a sign, and subjective ethnolinguistic vitality, that is, what the individual interiorizes in the

context of life experience.

Mr. Landry explained that the social context influences the language experience, the private (family,

friends to the public (stores, government services). The public aspects of the language experience,

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that is, the institutions and the linguistic landscape (language of signage), are principally associated

with subjective ethnolinguistic vitality subjective, to the way the member of the group perceives the

vitality of the group, whereas socialization pf a more “private” nature (family, social network and

school) is mostly associated with the development of ethnolinguistic vitality and language skills.

In his report, Mr. Landry remarked that government influences all kinds of life experience:

An important part of the influences of language socialization is the result of

government presences because of the authority and the power of government to act

in numerous social areas: childhood services, schooling, postsecondary studies,

health, social services, culture, justice, the economy, science and technology, public

services, etc.

According to Mr. Landry, a situation of “diglossia” occurs when the language governmental

organizations use is that of the majority or the “status” language dominates the social institutions

and the State’s official activities. The more the actions of the government have the effect of making

a language visible and vital, the more the legitimacy of this language is recognized and the more the

members of the language group perceive there group as have a strong vitality. But Mr. Landry

pointed out the following:

The actions of government not only have a determining role on the life experience

and the perceptions of the members of the language group but also on the very

legitimacy of the language of the group. A language that is not used in the public

domains of a society is perceived as being illegitimate, that is, as having no

recognition within the society. This situation leads the members of the group to

gradually abandon their language and to seek to integrate themselves into the

dominant language group.

As far as the influence that the nation-state exercises on ethnolinguistic vitality, Mr. Landry

described four broad ideological orientations: (i) pluralism, that is, the explicit recognition and the

strong validation of minorities, a situation in which the State plays an active support role to their

development; (ii) civicism, that is, the recognition of minorities;, however the State considers the

development of minorities is part of the private sector; only those languages recognized by the State

receive formal support; (iii) assimilationism, that is, the State wishes to assimilate minorities to

promote their integration into society, the rationale being a “better social cohesion”; and (iv)

ethnicism, that is, the rejection of a minority group and the maximization of the social divide

between the minority group and the dominant group.

I have concluded that the obligations arising from the NWT OLA are obligations of result. To look at

this once again from an ethnolinguistic perception, the test of the NWT OLA represents, in my view,

a clear intention on the part of the framers of the bill to adopt a pluralist orientation as far as

language rights are concerned. The interpretation by the Courts that guaranteed rights create

obligations of result corresponds perfectly with the pluralist nature of the NWT OLA.

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Moreover, I have already pronounced myself on the necessity to provide an institutional context to

the allegations of breaches in the area of government communications and services. Mr. Landry

further clarifies that point as follows:

It is very difficult to evaluate the impact of a few incidents of failure to respect

language rights on the psycholingusitic development of an individual, or on there

assimilatory effect. Nevertheless, [...] the more the inaction and the omissions of

government lead the non-recognition of a group, the more the members of the

group tend to see their language as having an inferior even illegitimate status.

Mr. Landry pointed out the incidents described by the Plaintiffs may be perceived as isolated

situations with no serious long-term consequences for the Francophone community, or “ as

symptomatic indications of a trend or a more generalized situation. If this is the case, these

incidents seem to reflect a governmental ideological positions that is rather “civic [...] “; the

government forces language groups other than the Anglophone language group to accept their true

inferior status or to try through their own initiatives to validate the presence of their group, a

situation of diglossia.

According to Mr. Landry, there is a disconnect between the pluralist ideology reflected by the NWT

OLA and the actions of the Government (as they are described by the Plaintiffs and in the Polaroid

studies. The ideology of equality of status of the two languages has little impact if it is not reflected

in its application and it life experience:

Even though very few government actions that can be deemed to be openly

assimilatory in their intentions are reported in the Plaintiffs statement, the lack of

action or the limited effort to openly promote the flourishing of a minority may have

an assimilatory effect that is just as powerful.

Mr. Landry noted that 84% of the Franco-ténoise had entered into an exogamous marriage and that

less than 20% of the children born of these marriages speak French. The rate of assimilation

(according to Statistics Canada data for 2001) is 63% (individuals whose mother tongue is French

who do not use French most often in the home), this figure being comparable to that found in the

other province s west of Manitoba (provinces that do not have laws equivalent to the NWT OLA).

Based on these figures and presuming the veracity of the Plaintiffs allegations, Mr. Landry concluded

that the ethnolinguistic vitality of the Franco-ténois is weak. However, he did not undertake

empirical research to evaluate through interviews, surveys and questionnaires the subjective

ethnolinguistic vitality of the Franco-ténois. Although holding this opinion, he recognizes the

pluralist nature of some of the GNWT’s actions, notably the bilingual signage in several government

centres and the presence of cultural organizations and media that receive government support.

Mr. Landry underscored that one index of assimilation is the fact (established by the evidence) that

a very small proportion of the population asks for service or a product in French (for example, a

vehicle driver’s manual). This is not a reason not to provide the service. Several officials testified

that they had never received formal complaints regarding the level of services in French, particularly

at the Stanton Hospital, at the Department of Justice and at the Assembly. But, according to Mr.

Landry, is not enough to judge the situation based on this criterion; the reaction may simply consists

126

of what he called, in English “learned hopelessness”, a reaction reflected in the evidence in this

case. In the cases of Mr. Bessette and Mr. Denault, after having asked once or twice to be served in

French at the Stanton Hospital, they refused to insist. This reaction is also the one described by Mr.

Légaré when the Stanton Hospital asked him to acknowledged as an interpreter for his wife during

their visits to the emergency room; he would simply accept to take on that role, given the waiting

time associated with a request for an interpreter.

During the cross-examination, when it was suggested the language problem in the NWT was very

complex, Mr. Landry responded that more the problem is complex, more it is necessary to have an

overall plan that reaches the community (the private aspect) and the government (the public aspect)

in order to find solutions.

Mr. Edmund Aunger, who has a Masters Degree in international relations and a Doctorate in Social

Sciences, has been, since 1976, a full professor in political sciences at the St. Jean Campus of the

University of Alberta. He is a member of the Board of Directors of the Canadian Institute for

Research into Linguistic Minorities and the author of numerous publications on minority language

rights.

I concluded that he was suitable and competent to express expert opinions on language governance

and its repercussions on the vitality of official language minorities, in particular, in Western Canada.

Echoing the terminology used by Mr. Landry, Mr. Aunger qualified the language regime of the

Canadian government was “pluralist” since the latter promotes post official languages. He explained

that a regime is “effective” when the State makes a genuine use of the minority language, and

“ineffective” in the opposite case. For example, he qualified New Zealand’s language regime as

“ineffective”, even though the 1867 Maori Language Act recognizes Maori as an official language,

the language of the State is almost exclusive English. He added that an effective regime can be

situated on a scale, from a balanced effective regime to an unbalanced effective regime. In a

balanced regime, such as in Belgium, the State makes an effective (genuine) and equal use of the

minority language. In an unbalanced regime, the State makes an effective but unequal use of the

minority language.

Mr. Aunger recalled the three factors described by Mr. Landry, which play a key role in the vitality of

a minority community: (i) the status of the language, a situation that becomes diglossic when a

language is relegated to private live (“low language”) and occupies an inferior status to the

language used in public affairs (“high language”); (ii) institutional completeness, that is access to a

complete range of institutional services in their language, and (iii) the demographic factors, that is

the number and proportion of people using the language as compared to the majority.

Mr. Aunger made the following observation:

A language regime that is effective and balanced in its use of the minority language

increases its institutional completeness and thus, its linguistic vitality. In a modern

society, institutions using a minority language constitute a vital element in the

survival of the linguistic community and its retention of its language. Such

institutions can be social, economic, cultural but also political. A regime that is

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ineffective or very unbalanced reduces institutional completeness and thus, the

vitality of the community of speakers. So, in effect, when institutional completeness

is low, the assimilatory pressure is high, allegation things being equal.

Mr. Aunger acknowledged that a dispersed population as well as certain sociological factors of

private life, notably, (in order of importance) exogamous marriage, friends, neighbours, relations

and family, business persons and workplace companions, all play a role in assimilation.

Mr. Aunger criticized the Territorial Defendants’ suggestion to the effect that the role of government

in assimilation can be evaluated in relation to the number of contacts or communications between

the citizen and the State. This approach, according to Mr. Aunger, minimizes the role of the State

and does not take into account the solidly-based hypothesis that the status of the language, or the

recognition of its status by the State, is very important to its survival; we cannot say the same

simply by counting the number of contacts between the individual and government offices.

No expert evidence was submitted to challenge Messrs. Landry and Aunger’s opinions concerning

the structural factors that favour the development of a language group and the importance of a

pluralist government approach to support the maintenance of the ethnolinguistic vitality of official

language minorities. I accept their opinions on these subjects.

Several ordinary witnesses describe the impact of the government breaches in the area of services

and communications in French. Mr. Denault qualified these alleged breaches concerning him as

attacks on his dignity and his sense of identity, attacks that made him feel “like a second-class

citizen”.

Ms. Taillefer testified that in her Francophone school and at home, she tries to instil in children a

sense of pride in their language and to delivery the message that they have the right to be served in

their language, but this message is not consistent because of the deficiency in language services.

Ms. Taillefer did, however, acknowledged under cross-examination that most of her daily life takes

place in English, given that she frequents the Anglophone private sector. She nonetheless indicated

that in a bilingual Territory, she expects to receive government services in French: “If I go to Hay

River for a service, at the hospital, to renew my driver’s licence, give birth to my daughters, the

services are not the same. In that sense, no, I do not feel like an equal citizen because I do not

have the right to the same service to which an Anglophone is entitled [...].” She gave the following

answer to the suggestion that, in fact, she has very little contact with government institutions

compared to the private sector, referring to the Mr. Aunger’s opinion: “Can I give a time to

language? Because public services are only a small part of my life, well, that, that is part of my

assimilation or my children or students? I have a lot of problems separating that into time. It’s a

life, it’s a global experience, it’s a harmony. I sorry, but no, I cannot separate this time into small

packages. It is time”.

According to Mr. Doucette, the active offer indicates that one’s language and culture are respected.

Ms. Laquerre testified that the alleged breaches concerning her represented “the beginning of a

great deception”, that there should exist such a law in the NWT that promises services in French,

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but that it was impossible to receive them everywhere: “This attacks, in a certain way, my human

dignity as a minority Francophone. One feels rejected by the host community, one feels almost

ashamed to speak a different language and not to be able to make oneself understood when we

were promised that we would be understood, And a certain – a certain inferiority compared to the

masses, there”.

The observations of these ordinary witnesses about their experiences seem to confirm the concerns

of the expert witnesses regarding the effects of a civic approach by a government to language

rights.

L.

Observations on the evidentiary elements concerning the

allegations of infringements and their context

The allegations of infringements regarding services in French described by the Plaintiffs are the

result of the framework of a decentralized approach to the provisions of government services in

French, preferred by the GNWT over the years since its adoption of the NWT OLA. Departments and

agencies act individually: they determine their needs, decide on the initiatives they will undertake

and prepare their own budgets. Then the DECE presents this amalgam of individual activity plans to

the Federal Government to obtain funding. In this decentralized planning model, the departments

and agencies are not required to be accountable to the DECE (Mr. Boutin: “We’re not the police”).

The evidence shows that the level of “Francization “of government communications and services

varies from department to department. There are no positions designated bilingual in various

departments, offices and institutions that communicated regularly with the public, notably the

Department of the Environment and Natural Resources, the Registry Office in Inuvik, the Languages

Commissioner and the POW Centre. The evidence does not indicate that where a position is

designated bilingual, that the services offered in French are underutilized; in fact, Ms. Aubrey’s

experience reveals the contrary. Services in French are not the subject of periodic audit, except for

the Department of Health, which instituted a system of standardized forms to draw up activity plans

for the regional authorities, and the periodic audits by Ms Babicki of her Department’s

advertisements appearing in L’Aquilon. Where interpreters are used most often, that is in hospitals,

they do not have the benefit of professional training in interpretation or in medical terminology. The

process of recruitment of health professionals does not systematically target Francophone

professionals.

However, the evidence shows the effectiveness of a systematic approach to the implementation of

French services in some areas, for example:

•

the development of criteria for the position of Official Languages Coordinator

(as was done at the Stanton Hospital);

the use of positions designated bilingual for front line services (as at the

reception at the Fort Smith Health Centre and at the driver’s licence office in

Yellowknife);

•

the use of pre-printed quarterly activity reports that include specific and

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detailed performance factors (such as those used by the Department of

Health and Social Services) for the purpose of audit and accountability;

•

the delegation of certain duties to a permanent committee rather than to

individual employees (such as the translation of information material by the

Office of Public Health).

I accept the opinions of the expert witnesses, Messrs. Landry and Aunger concerning the importance

of the role that government must play in the maintenance of the ethnolinguistic vitality, opinions

reflected in the testimony of ordinary people when they described the personal repercussions of

deficient communications and services. The opinions of experts also highlighted the importance, on

one hand, of examining the allegations of breaches in daily life and not in an isolated manner, and,

on the other hand, in case of infringement of language rights, to formulate effective remedial

measures that recognize and reinforce (i) the elements of ethnolinguistic vitality (the status of the

language, the institutional completeness and the demographic factors) and (ii) the remedial goals of

the NWT OLA.

However, the Court is still required to analyze the allegations in their judicial context. Do the

allegations of breaches constitute infringements of language rights guaranteed by NWT OLA and/or

the Charter?

The Court would not be required to answer this question if the Plaintiffs were required to exhaust all

internal recourses provided for by the 0LA of the NWT before seeking a judicial resolution.

VII. The exhaustion of internal recourses

The Territorial Defendants submit that the Court should not exercise its discretionary power to deal

with allegations that were not the subject of a complaint to the NWT LC, because the Plaintiffs are

obliged to exhaust all internal recourses and that the procedure for complaints is the most

appropriate one. They raised this argument regarding the Plaintiffs allegations as well as those of

new witnesses.

The Defendants noted that the purpose of the NWT OLA is to guarantee to citizens, on one hand,

respect for their language rights and, on the other hand, the possibility of exercising an effective

and accessible recourse in the case of an infringement or an omission by the governmental

institution. The role of the NWT LC is to ensure that the NWT OLA is respected. By creating the

position of Languages Commissioner, the Government apparatus of the NWT equipped itself to

detect and to rectify its own mistakes through timely and rapid intervention that addresses the

particular circumstances of the situation.

Section 20 of the NWT OLA confers on the NWT LC the power to investigate, either on her own

initiative or as a result of a complaint she will have received. Section 21 requires her to deal with

any legitimate complaint she receives about an action or an omission of a governmental institution,

by determining the status of a specific case of breach of an Act or a Regulation on the status or the

usage of official languages or the spirit of the NWT OLA and the intent of the legislator. According

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to the Defendants, the effectiveness and flexibility of this procedure clearly distinguishes it from the

costs, delays and formalities associated with a juridical recourse.

Section 32 of the NWT OLA also grants injured parties recourse before a competent court:

32(1) Anyone whose rights under this Act or the regulations have been infringed or

denied may apply to a court of competent jurisdiction to obtain a remedy that the

court considers appropriate and just in the circumstances.

(2)

The Languages Commissioner may:

a)

appear before the Supreme Court on behalf of any

person who has applied under subsection (1) for a

remedy; [...].

the Territorial Defendants submit that the recourse to the courts to obtain reparation can or should

be used only after exhausting the mechanism of first recourse provided for by the NWT OLA, in this

case, the procedure relating to complaints. They argue, therefore, that any allegation that has not

been the subject of a complaint to the NWT LC should be dismissed because the Plaintiffs did not

exhaust their internal recourses. They state that courts prefer cooperation and conciliation.

The Plaintiffs allege in s. 56 of the amended statement that “the Franco-ténois have lodged

numerous complaints with the Office of the Commissioner in accordance with the said Act, with no

result and no remedy”. They submit that “this legislative and administrative mechanism is

completely ineffective, does not protect their rights in any way, constitutes a façade that

demonstrates the bad faith of the Government of the NWT in the provisions of services in French

and even contributions to the exhaustion of the limited human and financial resources of the Franco-

ténois”.

The Territorial Defendants submit that among the specific allegations pleaded in the amended

statement, only two of them have been the subject of complaints to the NWT LC, that is, the

complaints lodged in 1998 and in 1999 regarding governmental advertisements that did not appear

in L’Aquilon and the complaint lodged by Mr. Cousineau in May 2001 regarding the language of the

professional driver’s manual and the examinations for a Class 1 Driver’s Licence.

I note that the FFT had also lodged a complaint with the NWT LC in August 1998 alleging that she

had not published a French version of her 1996-1997 annual report. The NWT LC replied to the

complaint on September 24, 1998, in English, explaining that she was not legally required to publish

her report in French since it was not a document covered by Section 11 of the NWT OLA. The NWT

LC was reproached for the same breach in s. 37 of the amended statement regarding her 1997-1998

annual report. I conclude that the general issue of the language of the annual report was indeed

the subject of a complaint to the NWT LC. I also note the large number of complaints (46

complaints alleging 151 violations of the NWT OLA) lodged in 1998 and 1999 to the NWT LC

concerning the issue of governmental advertisements.

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The Territorial Defendants pointed out that in the case of the complaints regarding advertisements

in L’Aquilon, NWT LC Tutcho forwarded those complaints to the relevant departments for them to

reply to them: several departments acknowledged their omission and undertook to rectify the

situation. She also reported to the FFT on March 31, 1999, in which she evaluated the complaints

lodged on November 18, 1999. She concluded her report by indicating her intention, on one hand,

to examine, with the Assembly, the necessity to ensure that their employees, GNWT’s employees,

and those of boards and agencies recognize their obligations pursuant to the NWT OLA and the PGD

and, on the other hand, to consider the resources available to ensure that their actions will comply

with these provisions.

In the case of the 2001 complaint concerning Mr. Cousineau, the Territorial Defendants contend that

NWT LC Tatti completely fulfilled her obligations, having received the complaint, having brought it to

the attention of the department concerned, had asked for a response, having followed-up if a

response was not given within a timely deadline and having obtained commitments to the effect that

the Government respected its obligations regarding the complaint. The Department of

Transportation confirmed the availability of all the instruction manuals and written exams related to

the obtaining of a Class 1 driver’s licence in the French language. The Office of the Commissioner

communicated with Mr. Lamoureux to follow-up and the latter informed her that Mr. Cousineau had

obtained his licence.

According to the Territorial Defendants, the NWT LC engaged the governmental apparatus and

obtained concrete responses to complaints concerning L’Aquilon and Mr. Cousineau; if the Plaintiffs

had disagreed with the actions or conclusions of the NWT LC, they were free to ask for a new

examination by presenting arguments or, if necessary, by submitting a request for a judicial review.

The Territorial Defendants state that upon reading the responses received from the governmental

apparatus, the NWT LC was entitled to expect that, on one hand, the Government would respect its

commitments and that, on the other hand, the Plaintiffs address themselves to the government

authorities or to the NWT LC again in cases where their commitments were not respect. Given that

no complaint was lodged alleging the Government persisted in neglecting its obligations, the

Territorial Defendants contend that the NWT LC cannot be reproached for not having acted on this.

That said, the evidence clearly established that the FFT lodged other complaints after November 18,

1998, until late February 1999, concerning neglect regarding the advertisements in L’Aquilon.

Moreover, according to the evidence, the NWT LC did not provide an individual or overall response

to these complaints. Mr. Cleveland, the Deputy-Minister responsible for the PGD, indicated in a

letter dated March 8, 1999 and addressed to the FFT that he had received several calls from the

NWT LC or from other Deputy-Ministers regarding the complaints about the advertisements in

French. The letter indicates that “any concern regarding the application of the policy and guidelines

should be addressed to the relevant Deputy-Minister or, in the case of a public organization, the

Director-General” [emphasis mine].

Mr. Lamoureux testified that, from the FFT’s point of view, this letter was just: “window dressing” -

an attempt by Mr. Cleveland to divert the FFT’s complaints into the departmental labyrinths, where

several officials who did not know their obligations pursuant to the NWT OLA and the PGD (as was

in fact acknowledged by NWT LC Tutcho in her letter of March 31, 1999).

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For his part, Mr. Cleveland explained that his March 8, 1999 letter was simply inviting the FFT to

communicate directly with departments and agencies about the French advertisements to avoid

bureaucratic delays. In his opinion, it was clear, when he reviewed the complaints and wrote his

letter, that the process established by the PGD has not been appropriately followed. Afterwards, he

initiated interdepartmental discussions in order to sensitize departments to their obligations

regarding the publication of advertisements. He explained that he was not attempting to sever

communications between the FFT and the NWT LC but rather he was looking for a mechanism to

accelerate the resolution of complaints.

Mr. Cleveland’s March 8, 1999 letter was related to a directive enjoining them to communicate

directly with departments. In addition, this directive did not limit itself to questions about

advertisements but referred to “any concern regarding the application of the policy and guidelines”.

It is not surprising that the FFT interpreted these words as an attempt to discourage them from

having recourse to the procedure regarding complaints. As there exists no evidence that would

demonstrate that the Office of the Commissioner responded to the series of complaints lodged by

the FFT after November 18, 1998 relative to advertisements in L’Aquilon, it is not surprising that the

FFT did not see the complaints procedure as an effective solution to the failures for which it held the

GNWT responsible, as far as communications and services in French were concerned.

Also , some of the responses provided by the Government as a result of the complaints about

advertisements referred to the issue of costs (for example, the replies from the Director for Elections

and from the NWT Power Corporation), a concern that revealed their misunderstanding of the

commitments by the Federal Government pursuant to the 1984 Canada-NWT Agreement. The

response from the NWT Power Corporation to a complaint in February 1999, illustrates this:

One important aspect of the Corporation’s practice is that it has to conduct its affairs

[...] in the most cost-effective ways. This is because all the Corporation’s costs are

passed on to the customers. [...] [W]e look for value and exposure to the business

audience that we need to communicate with. L’Aquilon’s relatively small subscription

base, and the emphasis on culture, does not make it an obvious choice for the

Corporation to use [...]. The Corporation acknowledges it has obligations under the

Official Languages Act. It also has to acknowledge its obligations to customers, and

will look at all available options, which might include L’Aquilon, to satisfy these

obligations. In this context, I would welcome a sales call from L’Aquilon [...].

Even though NWT LC Tutcho alluded to taking into consideration available resources to ensure the

respect of the NWT OLA in her March 31, 1999 response to the complaints lodged on November 18,

1998, she also reiterated Mr. Cleveland’s thesis favouring direct communication between the FFT

and the heads of departments:

Your complaints have certainly highlighted significant concerns that need to be

addressed. However, you should note that in many of the responses to your

complaints, many department heads were very receptive to dealing with you directly

in regards to any concerns you might have. You would likely have found that your

complaints would have been dealt with more quickly and efficiently if you dealt with

the department directly.

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It is therefore perfectly understandable under these circumstances that the Plaintiffs were not

convinced of the usefulness of lodging individual complaints to the NWT LC.

The doctrine of the exhaustions of internal recourses is based on a set of considerations, including

the effective use of judicial resources and the preservation of the integrity of the administrative

processes. Even in the absence of a privative clause, the courts tend be reserve and do not intrude

into the affairs of an organization when the latter may still be in a position to correct its errors by its

own means. The factors to be considered in the context of this analysis include the appeal process,

the composition of the organization, its powers and the way in which it exercises them, the authority

of an earlier ruling, expeditiousness and cost: Harelkin v. University of Regina, [1979] 2 SCR

561, pp. 588, 595 and 596; Canada (Auditor) v. Canada (Department of Energy, Mines and

Resources), [1989] 2 S.C.R. 49, pp. 92, 95 and 96; R. v. Consolidated Maybrun Mines Ltd.,

[1998] 1 S.C.R. 706, s. 26, 27, 36, 38, 42 and 43; Canadian Pacific Ltd v. The Matsqui Indian

Band , [1995] 1 S.C.R. 3, p. 34; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 ,

p. 609.

I note that the powers of the individual filling the office of NWT LC are circumscribed by ss. 20(2) of

the NWT OLA; she may submit reports and make recommendations. When the recommended

measures are not taken by the department or organization in question, the NWT LC can only make a

report to the Assembly. The NWT OLA contains no privative clause or any mechanism allowing for

an appeal of the NWT LC’s recommendations. Nevertheless, one would expect that the NWT LC

should be in a position to investigate a complaint quickly without incurring significant costs.

For its part, the OLC of Canada pointed out that, contrary to s. 77 of the OLA of Canada, the NWT

framer of the bill carefully did not indicate that it would be absolutely necessary to have lodged a

complaint with the NWT LC to be able to initiate legal action pursuant to the NWT OLA. If he had so

wished, the framer could have used the same language as the OLA of Canada, as was done

numerous other times in the NWT OLA, and providing a mechanisms to deal with complaints as a

perquisite for the actions provided for in s. 32 : see Vicrosanno Inc. v. Canada, [2002] F.T.C.

1999 (1^stinst.), s. 22.

The evidentiary elements that establish the large number of complaints lodged about the alleged

infringements by numerous departments and agencies regarding advertisements, illustrate the

problem, in this case, of an approach that requires the exhaustion of internal recourses. The

Plaintiffs allege that this is a systemic problem, the proof of which is established by specific cases.

My analysis of the specific allegations of infringements by the GNWT, in the context of the other

allegations from the individuals who are not plaintiffs and the Polaroid 1 study, indicates that the

problems raised by the Plaintiffs are not the result of isolated incidents. I have difficulty seeing how

the NWT LC, in view of her obligations and limited powers would be in a position to effectively

resolve a problem of this magnitude. In her June 18, 1998 letter, the NWT LC indicated to the FFT

in reply to some questions asked about the PGD, that these provisions were “of great help” in

carrying out her duties. But if these provisions are at the root of the infringements of the NWT OLA,

as the Plaintiffs submit, lodging individual complaints would not be an effective means to resolve the

general question of their legality since NWT LC Tutcho reviewed these complaints under the PGD

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(see her March, 1999 report). She also indicated her reticence to raise general issues of

interpretation when the FFT lodged a complaint regarding the legality of the PGD.

The Territorial Defendants point out that only one complaint was lodged with NWT LC Tatti.

However, I note that the Plaintiffs had brought their initial statement before the Federal Court on

January 25, 2000, almost six months before the appointment of Ms. Tatti to her position. It is

therefore not surprising that once this litigation presented, the Plaintiffs did not resume the

complaint procedure.

I note that for some of the series of complaints submitted to NWT LC Tutcho, the FFT had actively

advocated, through letters and meetings, governmental measures to attack the problems related to

the problems of the implementation of the NWT OLA. An information kit distributed to the

participants in the March 1999 forum included a series of letters written over the years to various

representatives of the GNWT and to the Minister of Heritage Canada about the reduction of funds

allocated to French services and communications and denouncing the absence of regulations or a

formal application framework of the NWT OLA.

Finally, as the Special Committee observed, the NWT LC’s recommendations submitted during the

first ten years of the existence of that position, were, to a large extend, disregarded by the GNWT.

I conclude that the Plaintiffs were not obligated, under the circumstances in this matter, to continue

to make use of the complaints procedure before initiating the litigation given that: (i) that s. 32 does

not require this recourse as a prerequisite for legal action; (ii) that NWT LC Tutcho and Deputy-

Minister Cleveland favoured direct recourse to departments; (iii) that neither NWT LC Tutcho or the

departments in question responded systematically to all the complaints lodged regarding the

advertisements and, in the case of some governmental organizations, the omissions that were the

subject of complaints, were repeated; (iv) that there was no evidence of DECE establishing a follow-

up procedure, as had been the case during NWT LC Harnum’s mandate (who would provide a copy

of all complaints to the Official Languages Unit); (v) that NWT LC Tutcho evaluated complaints in

terms of the PGD, which provided very little hope that the fundamental issues raised by some of the

allegations of breaches would be resolved in an effective manner in the framework of the complaints

procedures, and (v) that NWT LC Harnum’s recommendation were largely ignored by the GNWT.

Taking into account all these circumstances, I reject the Defendants’ argument that the

Plaintiffs were under an obligation to exhaust their internal recourses before initiating a judicial

recourse in question.

VIII. Plaintiffs’ standing

The Territorial Defendants contend that the FFT cannot act in the name of the Franco-ténois,

citing the ruling by the Supreme Court of Canada in The Canadian Council of Churches v.

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Canada, [1992] 1 S.C.R. 236. They iterate that a public interest group, such as the FFT,

can only have standing in certain specific conditions.

The majority justices in the ruling Department of Justice (Canada) v. Borowski, [1981] 2

S.C.R. 575, on a p. 598, described the conditions to be met to establish standing:

[...] [to establish status as a plaintiff in a suit seeking a declaration that

legislation is invalid, if there is a serious issue as to its invalidity, a person need

only to show that he is affected by it directly or that he has a genuine interest

as a citizen in the validity of the legislation and that there is no other

reasonable and effective manner in which the issue may be brought before the

Court.

After the adoption of the Charter, the Supreme Court of Canada stated that the courts can, in

the exercise of their discretionary power, recognize standing that is in the public interest to the

person who intended to challenge as much the exercise of administrative authority as a the

wording of an Act: Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212

(C.A.), in par. 48, application for authorization to appeal denied [2000] C.S.C.R. n^o45,

citing Finlay v. Canada (Department of Finances), [1986] 2 S.C.E. 607, in par. 31 to 36.

As far as the first condition is concern, I consider that serious issues are raised in this case.

As for the second condition, the FFT’s purposes reflect its power to represent the interests of

the Franco-ténoise community in this litigation: “[...] promote, encourage and defend the

French Canadian cultural, political, economic, social and community life to the Federal

Government and the Government of the NWT”. It is clear, in view of the scope of these

purposes, that the FFT has a real interest in the recognition of minority language rights in a

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legal setting. In view of the similarity of the FFT’s objectives and those of L’Aquilon, I

recognize that L’Aquilon also has a real interest in the issues under litigation.

But the FFT and L'Aquilon also contend that, as bodies corporate, they have standing to act

as victims of infringements of their language rights. Ss. 32(1) of the NWT OLA gives the

right to recourse to “Anyone whose rights under this Act [...] have been infringed or denied”.

Standing is clearly established in the case of persons such as Ms. Houde: the matters at

issue are serious ones and Ms. Houde is alleging personal breaches of her language rights.

There is no other reasonable or effective way to bring the courts’ attention to these issues.

For their part, FFT and L'Aquilon contend that the expression “anyone whose rights have been

infringed” includes bodies corporate if the latter is the victim of an infringement or a denial of

rights guaranteed by the NWT OLA.

It is clear that bodies corporate have standing to access to the courts. Ss. 11(1) of the NWT

OLA uses the expression “[l]e public a, aux Territoires du Nord-Ouest, le droit d'employer le

français ou l'anglais pour communiquer [...]” [“ Any member of the public in the Northwest

Territories has the right to communicate [...]” [emphasis mine.]

Referring to the almost identical wording of ss. 20(2) of the Charter (“[Any member of the

public in New Brunswick has the right to communicate [...] in English or French”), P. Foucher

and G. Snow, in “Le régime juridique des langues dans l'administration publique au

Nouveau-Brunswick” (1983) 24 C. of D. 81., on p. 85, analyse the scope of the term “public”:

We believe that the public designates all members of society that makes use of

government services, including bodies corporate, partnerships and associations

to which it is possible to legal capacity.

[...] [T]he ordinary definition of the term public denotes and opposition

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between the client and the debtor of the obligation, in this case the citizen and

the government. Thirdly, the English version uses the turn of phrase “Any

member of the public”, an expression that clearly individualizes the holder to the

right and distinguishes the holder from the public in general. The right is

thereby granted to every person in New Brunswick, even a corporate one, who

deals with the government of that province [...].

In light of the wording of the English and French versions of ss.11(1) and the remedial

purposes of the NWT OLA, I conclude that the term “public” in ss. 11(1) of the NWT OLA

includes the FFT and L'Aquilon. Since the FFT and L'Aquilon, as bodies corporate,

communicate with the government and receive services from it, and they maintain that their

rights in terms of services and communications with the Government have been infringed

upon, they have a true interest in the issues raised in this procedure and, ss.32(1) of the

NWT OLA also grants them the right to recourse. In addition, there is no other effective

means to bring to the attention of the courts the issues in question that are proper to them.

In the ruling Daniels v. Canada (Department of Indian Affairs and Northern

Development), [2002] 4 C.F. 550 (1^stinst.) dealing with a motion to strike, the action having been

brought by two individual plaintiffs as well as the Congress of Aboriginal Peoples representing the

Metis and non-status Indians throughout Canada. The Congress submitted that it had tried to

engage in negotiations with the Federal Government on behalf of its members and the latter had

refused to negotiate in good faith. The Congress than contended that they had suffered special

damage of a unique kind , which gave it standing in its own right. After having analyzed the

relevant case law, prothonotary Hargrave made the following observation (on p. 575):

If the plaintiffs' rights have been infringed and here there is an arguable case for it,

they ought not to be denied just because there may be many others who have rights

which have been infringed in a similar manner. Rather, those others are also

entitled to relief.

While the Daniels ruling deals with a motion to strike, I am of the opinion that the same principles

apply in this matter. The FFT and L'Aquilon allege that they suffered special damages of a unique

kind, giving them the de jure right to act. The fact that there may be numerous other persons

whose rights have been infringed in a similar manner does not prevent the FFT and L'Aquilon from

bringing suit against the Defendants.

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The question of the FFT and L’Aquilon’s right to act was raised in the framework of claims for

damages. I will deal with these arguments in the section on remedies.

IX.

Breaches established by the evidence

According to the Plaintiffs, the alleged breaches demonstrate that there exists a systemic problem in

French communications and the provision of French services in the NWT. These infringements

would not only contravene the NWT OLA but also s. 16 to 20 of the Charter. The Plaintiffs also

contend that the Government of Canada is violating its commitments under the OLA of Canada, on

one hand, by excluding the NWT from the application of that Act and, on the other hand, by not

introducing in the NWT bilingualism of the same quality.

According to the Defendants, it is not necessary to decide if s. 16 to 20 of the Charter apply to the

NWT. The relevant provisions of the NWT OLA are identical to the corresponding provisions of the

Charter.

To judge the merits of these arguments, we must first determine, pursuant to the NWT OLA, which

allegations of breaches have been established.

A.

The allegations established and the obligations imposed under the NWT

OLA

(i)

the NWT LC’s annual report and the language of communication

In s. 55 of their amended statement, the Plaintiffs allege the following:

55. the Languages Commissioner is responsible for ensuring the recognition of

language rights and respect for the spirit of the Official Languages Act of the NWT.

However, despite this, the Languages Commissioner does not offer services in French

and only publishes her annual report in English. The Plaintiffs contend that the

Languages Commissioner must serve the public in French: the Office of the

Commissioner is the head or central office, either an institution of Parliament or of

the Government of Canada, or an institution of the Legislative Assembly and of the

Government of the NWT and, in addition, constitutes an office of these institutions

where the use of French is justified by the nature of the office, as stipulated in article

20 of the Charter and article 14 of the Official Languages Act of the NWT.

The failure to publish a French version of the 1997-1998 annual report was not an isolated situation,

In fact, the FFT had tried to resolve the problem by lodging a complaint about the previous year’s

report. I note, however, that since 1998, the NWT LC has adopted the practice of publishing her

report in French and English.

I am required to interpret the provisions of the NWT OLA as a function of their objective, in a

manner that is compatible with the maintenance and development of the French community in the

NWT, and bearing in mind that language rights constitute an essential tool for the maintenance and

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the protection of the Francophone communities.

The position of NWT LC was created by an amendment to the NWT OLA in 1990 (s. 18). In s. 20 of

this version of the NWT OLA, a provision allowing the appointment of personnel necessary for the

proper operations of the Office of the Commissioner. Regular staff appointed in this manner were

expressly deemed to belong to the public service for the purposes of the Public Service Act. In ss.

19(3), provision was made for the Commissioner to have the rank and powers of a Deputy-Minister.

ss. 20(1) read as follows:

20(1) It is the duty of the Languages Commissioner to take all actions and measures

within the authority of the Languages Commissioner with a view to ensuring

recognition of the rights, status and privileges of each of the Official Languages and

compliance with the spirit and intent of this Act in the administration of the affairs of

government institutions.

Currently, the person filling the position of NWT LC is appointed by the Commissioner of the NWT,

on the recommendation of the Assembly, in accordance with s. 15. She exercises her powers and

the functions attributed to her under the NWT OLA. ss. 20(1) remains unchanged.

S. 8 and 11 of the NWT OLA read as follows:

8. Subject to this Act, all instruments in writing directed to or intended for the notice

of the public, purporting to be made or issued by or under the authority of the

Legislature or Government of the Northwest Territories or any judicial, quasi-judicial

or administrative body or Crown corporation established by or under an Act, shall be

promulgated in[…] French ….

11.(1) Any member of the public in the Northwest Territories has the right to

communicate with, and to receive available services from, any head or central office

of a government institution in English or French, and has the same right with respect

to any other office of that institution where:

a) there is a significant demand for communications with and services from the office

in that language; or;

b) it is reasonable, given the nature of the office, that communications with and services

from it be available in both English and French.

The position of NWT LC is “prescribed by regulation”, as provided for in s. 8. However, the

Territorial Defendants submit that the NWT LC’s annual report is not covered by s. 8. In their

opinion, this document is not addressed to the public; rather it is intended for the Speaker, who

tables it in the Assembly in accordance with ss. 23(1). When I examined the content of the NWT

LC’s reports, which were submitted in evidence, I concluded that they were intended for a broader

readership than just the members of the Assembly and that they were intended for the general

public.

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I am also of the opinion that, in 1997-1998, the position of NWT LC was the head or central office of

a government institution for the purposes of ss.(11(1)It follows that the NWT LC was required to

present a French version of her annual report to meet the duty to facilitate French communication

and services.

I conclude that, by not publishing her 1997-1998 annual report in French, the NWT LC contravened

her obligations under the requirements of s. 8 and ss 11(1) of the NWT OLA.

The Territorial Defendants note that, since the 2003 amendments made to the NWT OLA

(R.S.N.W.T. 2003, c. 23), ss. 15(2) states that the NWT LC may not be a member of the public

service.

As I have already noted, since the creation of the prostitution of NWT LC, ss. 20(1) of the NWT OLA

requires the holders of this position, to take all actions within their jurisdiction to ensure the

recognition of the rights, the status and the privileges attached to the French language as well to

ensure that the spirit of the NWT OLA and the intent of the framers of the bill are respected in all

areas that relate to the administration of the affairs of governmental institutions.

I believe that the NWT LC has been publishing her report in French since 1998-1999 because she

recognizes that she is subject to a legislative obligation to do so.

The Plaintiffs submitted in evidence letters n English that the NWT LC sent out in response to the

FFT’s complaints about French services and communications. I believe that, at the time these

letters were written, the Office of the Commissioner was the head office of a government institution

and, as such, under the prescription of ss.(11(1), the public had the right to communicate with the

NWT LC in French and to receive services in that language. This conclusion is in harmony with the

obligation to ensure respect of the spirit of the NWT OLA that ss. 20(1) imposes on the NWT LC.

The refusal to communicate in French thus contravenes ss.(11(1) of the NWT OLA.

The communications in question preceded the 2003 amendments. The Defendants submit that the

2003 amendments change the status of the NWT LC and, consequently, her duties. According to

the Plaintiffs, the NWT Languages Commissioner has a government vocation since the functions she

carries out are of a governmental nature, that she implements a governmental policy and that she

must account to the Assembly. I consider that the 2003 amendments did not change the

Commissioner’s mandate or principle function. Ss. 20(1) still requires the ability and the willingness

to serve the public in French. For the services being offered to be effective and respectful of the

status of French as an official language, the Office of the Commissioner must be able to

communicate with the beneficiaries of these services. (I note elsewhere that, in the regulation

project, the list of organizations subject to ss.(11(1) includes the Office of the Commissioner)

(ii)

Fernand Denault’s claim: the former department of Natural

Resources, Wildlife and Economic Development

Mr. Denault twice received a questionnaire from this department that was solely in English, with no

active offer of a French copy. This was the case in June 1999, then around September 1999.

Translation services were available in DECE.

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Even if the questionnaire was to be used for the Department’s information purposes, this document

induced the citizen to supply an answer (that is, engage in a communication). Ss. (11(1) of the

NWT OLA provides Mr. Denault the right to communicate with the Department about this

questionnaire, but the form did not contain any indication of an active offer. During her testimony,

Ms. McLinton said that she did not know if the situation had been corrected since 1999.

On November 19, 1999, Mr. Denault tried to telephone the Department’s official languages

coordinator to discuss the issue. However, Mr. Denault was unable to reach a French employee at

the time. Moreover, during his first attempt, he received unilingual English vice mail message.

When Mr. Denault called the Department the second time, his request for service in French was

deferred to the next business day. According to Ms. McLinton, a Francophone departmental

employee in Norman Wells would be available then to respond to the request for service in French,

should the French employee in Yellowknife not be able to do so.

Based on the evidence presented, I conclude that Mr. Denault did not receive service in French and

was not able to communicate in French with the head office of the institution in question.

The Defendants contend that, as far as the “active offer” is concerned, the PGD is more generous

than the NWT OLA and the Charter, and they refer to Guideline No. 3. According to the

Defendants, the issue of the “active offer” is not covered by ss.(11(1) of the NWT OLA or in ss.

20(1) of the Charter, and their provisions do not impose any obligation for an “active offer”.

S. 5 of the NWT OLA reads as follows:

5. To the extent and in the manner provided in this Act and any regulations under

this Act, the Official Languages of the Territories have equality of status and equal

rights and privileges as to their use in all government institutions.. [emphasis mine.]

Thus, even though S. 5 prescribes equality, we must examine the NWT OLA and its regulations to

determine the nature of the obligation targeted in this case.

S. (11(1) guarantees the right to use French to communicate with the head or central office of

government institution. I see nothing in the NWT OLA that restricts that right.

In view of the principles of interpretation in this case, I consider that S. 5 enunciates the principle of

true equality, a principle that requires the government to take measures to satisfy the obligations

imposed by the NWT OLA. I hesitate to even use the expression “active offer”: in my view, this

notion implies an additional step. In Beaulac, supra, Justice Bastarache clearly explained that

language obligations include a duty to supply the means to make use of this language right. The

“active offer” is an integral part of these rights. A unilingual English greeting can not satisfy the

obligation described in ss.(11(1) of the NWT OLA. Such a greeting presupposes the ability of the

entitled unilingual French person to understand English; moreover, it does not present the bilingual

person with a real choice between English and French.

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Consequently, in order for the principle of true equality enunciated in s. 5 to be respected, an

effective service must be ensured and ss.(11(1) must be implemented according to its intended

scope, from the very start, it is essential that the public receive clear and effective information on

how they may avail themselves of this right.

S. 5 also refer to regulations made under the Act. As for para. 34e) of the NWT OLA, it allows the

Commissioner in Executive Council to make regulations to take any action “respecting the active

offer for the provision in an Official Language of available services from a head, central, regional,

area or community office of a government institution, where such services are to be provided to

members of the public in that official language under subsection 11(1) or (2)”.

To date, the Commissioner in Executive Council has chosen not to exercise this power. Rather, the

PGD was adopted. In s. 11 and 12 of his amended defence, the Commissioner argues the Executive

Council adopted the PGD to ensure the implementation of the NWT OLA and that the PGD respects

the NWT OLA and is just as effective as regulations would be.

The Territorial Defendants acknowledged that the PGD can in no way change the rights guaranteed

by the NWT OLA; in case of a conflict between the NWT OLA and the PGD, the Act has primacy.

They submit that the PGD constitutes an internal document made available to the government

administration and officials to guide them in the provisions of services and that this document has

no limiting legal value as concerns individuals whose rights are guaranteed by the NWT OLA.

Consequently, according to the Territorial Defendants, an examination of the allegations of breaches

of the NWT OLA under ss. 32(1) of the NWT OLA must be carried out as a function of the NWT OLA,

not of the PGD.

Like the Territorial Defendants, I consider that the PGD is only a policy. Moreover, I note that there

are no provisions for sanctions in the event it is breached: Ainsley Financial Corporation et al. v.

Ontario Securities Commission et al. (1994), 21 O.R. (3d) 104 (C.A.); Lamoureux v. Alberta

(Securities Commission), [2002] A.J. No. 1300, 2002 ABCA 253. In addition if there is a conflict

between the PGD and the NWT OLA, The Act has primacy: Sander Holdings Ltd. v. Canada

(Minister of Agriculture), [2005] A.C.F. No. 31 (C.A.F.); Independent Contractors &

Business Assn. (British Columbia) v. British Columbia (1995), 6 B.C.L.R. (3d) 177 (C.S.).

That said, I consider that in this case, the Court is justified in asking itself if there has been a

violation of the PGD and if these provisions are in accordance with the NWT OLA. First, in their

defences, the Territorial Defendants allege that the PGD is in compliance with the NWT OLA and

that, by following its provisions, they acquitted themselves of their obligations. Secondly, according

to some courts, the directives are subject to judicial monitoring when they are used to justify the

exercise of a power that infringes on individual rights: see for example, Nguyen v. Canada

(Department of Employment and Immigration) (1993), 16 Admin. L.R. (2d) 1 (C.A.F.),

regarding the denial of authority to appeal (1994), 17 Admin. L.R. (2d) 67n (S.C.C.). Thirdly, this

Court must determine the source of the breaches of the NWT OLA. We remember that some

officials of the GNWT have testified that they had based themselves on the PGD to guide their

actions and that, afterwards, they had referred to them to justify their actions. Fourthly, the PGD

could prove to be relevant to the allegations of bad faith that have been made.

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Guideline No. 3 applies to each department, agency, commission and board of the GNWT listed in

Table A. Yet, in the English version of this table, it is indicated that the guideline applies “to all

GNWT departments and to the boards and agencies listed in Schedule A”.

Guideline No. 3 provides that when the public has access to services, they must be informed, by a

sign, a word of welcome or correspondence, that certain services are offered in more than one

official language. Concerning the greeting, Guideline No. 3 provides that an employee should

address the public in each of that office’s official language that he speaks and, when a member of

the public speaks a language that he has the right to use but which the employee does not speak,

communication in that language must be allowed either by direct means, or by facilitation, or

through the services of an interpreter (refer to Guideline No. 4).

Guideline no. 3 also indicates that any correspondence with a member of the public must take place

in the latter’s official language. When the language of preference is not known, the correspondence

will be done in English with a statement allowing the individual to indicate the official language of

his choice for any future communication.

In this case, the evidence shows that Mr. Denault did not receive any greeting indicating that

communication with the head office of the department could be done in French. In addition, no

statement accompanied the questionnaire, nor appeared on the questionnaire, that would have

allowed Mr. Denault to indicate a choice to communicate in French. Consequently, the Department

in question did not comply with the NWT OLA nor did it follow the measures described in the

relevant guidelines on which the Defendants are basing themselves. Moreover, there is no evidence

to show that the problem with the form has been corrected.

As far as Mr. Denault’s call to the Department, the Territorial Defendants point out that there was no

urgency and that Mr. Denault could have called on the following working day.

Mr. Michel Wissell has a great deal of experience as an investigator with the Office of the

Commissioner of Official Languages for Canada. Mr. Wissell clearly defined the purpose of the active

offer, a purpose that, in my view, is in harmony with the remedial aspects of the NWT OLA and with

the principle enunciated in Beaulac, supra, by which government institutions must provide the

means that will allow those who have language rights can avail themselves of them.

According to Mr. Wissel, the purpose of making an active offer (through a sign, a personal greeting

or a message) is to ensure that the individual feels comfortable when asking for a service. It is a

sign of respect. There cannot be a request for French services if there is not, as a corollary, an

active offer. Mr. Wissel listed four steps involved in an active offer from the government. In my

view, these steps express, in practical terms, the obligation of the government to take positive steps

to implement the language rights recognized in Beaulac. These are the steps: (i) dissemination, for

the attention of the public, information indicating where they can obtain the service in question (for

example, the telephone directory); (ii) displaying singes and indications in French outside and inside

government buildings; (iii) in offices, the presence of bilingual booths and the offer of bilingual

forms and (iv) at the counter and/or on the telephone, the practice of a bilingual greeting. As Mr.

Wissell noted, if the chain of these steps is severed, there is a chance that a member of the public

may communicate in English to request the service. Mr. Wissel also pointed out the importance of

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the presence of bilingual employees “at the nerve centre of a service” In this manner, delays and

the problems associated with the use of interpreters, who lack the knowledge that the front line

personnel possess in the field in question, are avoided.

In this case, the evidence forces me to note such a rupture in Mr. Denault’s case and to conclude

that there was a breach of the obligation, provided for under ss. 11(1) of the NWT OLA, to provide

the public with the means to exercise their right to communicate in French. The elements that lead

me to make such a conclusion are the following: the absence, on the form, of an indication as to the

possibility and the means to avail himself of the right to communicate and reply in French, the

unilingual English greeting, the impossibility of communicating in French with the Department’s

official languages coordinator and the office of service on the next working day.

As for knowing if the number dialled by Mr. Denault was not intended for service to the public, I

conclude that it is up to the department to properly inform the public on the means of

communicating with its head office. If there had of been an effective active offer system, Mr.

Denault could have made use of it.

While Beaulac obligates the GNWT to adopt positive measures, the GNWT may choose those

means that will allow them to meet such an obligation. This being said, the principle of true equality

requires and effective means, that allows the entitled person to exercise it. In the context of

ss. 11(1), the greeting (by telephone and/or in person) must be carried out in French and in English

so that the public may exercise an actual choice.

(iii) Nadia Laquerre’s claim : the Department of Health and Social

Services

Ms. Laquerre had to wait more than 10 months and deal with several government officials to obtain

a birth certificate with the correct spelling of her child’s name. A software problem, which still

persisted 19 years after the adoption of the NWT OLA, was the reason for this wait. It has only

been since March 2005 that all the official certificates from the Inuvik office have been issued in

French and English.

Ms. Laquerre made two telephone calls to the Inuvik office, and one call to the Department in

Yellowknife, receiving no greetings in French. Since 2004, there has been no French employee at

the Inuvik office and no position has been designated bilingual.

The French version of s. 8 applies to “instruments in writing”. In his 1987 report, Maître Bastarache

expressed the opinion that this provision deals with all government documents intended to be

communicated to the general public and, generally speaking, these documents include those that

are connected to the provision of government services to the general public (on p. 10).

The Petit Robert gives the following definition to the word “acte”:

Acte: (Acte dit instrumentaire). Pièce écrite qui constate un fait, une convention, une

obligation. Acte de vente. Actes de l'état civil (de naissance, de mariage, de décès).

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Acte sous seing privé, notarié, authentique. Dresser, établir, signer un acte.

[emphasis mine.]

The English version of s. 8 uses the expression “ instruments in writing “. In the Oxford English

Dictionary, the term “instrument “ is defined as follows:

Instrument: [...] a. Law. A formal legal document whereby a right is created or

confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed,

charter, or record, drawn up and executed in technical form, so as to be of legal

validity. [Emphasis mine.]

Black’s Law Dictionary gives the following definition the term “instrument”:

Instrument: [...] A written document; a formal or legal document in writing, such as

a contract, deed, will, bond, or lease. [...] Anything reduced to writing, a document

of a formal or solemn character, a writing given as a means of affording evidence

[...]

[emphasis mine.]

In light of these definitions, we can conclude that the framers of the bill intended to cover all formal

or official documents.

A birth certificate is an official government document, making it possible to gain access to several

government services in Canada. It attests to the identity, the age, the sex and the nationality of the

person in question. This document is demanded in various contexts. Here are some that the Court

was in a position to identify: passport applications, health services, social insurance numbers,

driver’s licence and school registration. The birth certificate is an extract, certified to be a true copy,

of the regulatory data appearing on the registration filed in the office of the Registrar General: Vital

Statistics Act R.S.N.W.T. 1988, ch. V-3, s. 1. While issued by an office, it is “deemed to emanate”

from the GNWT itself, so that it can possess the status of an official document.

S. 8 applies to documents “addressed to the public” (“directed to or intended for the notice of the

public”»). Pursuant to s. 38 of the Vital Statistics Act, birth certificates are admissible in evidence

and, in the absence of evidence to the contrary, attest to the registered facts. Because of their

public nature, they have been admissible for a very long time: see Wyer v. Wyer, [1947] O.R.,

pp. 292 to 299. Also the usefulness of a birth certificate is based on its public nature. This

certificate proves, to the eyes of the world, the facts recorded thereon.

For the above reasons, I conclude that birth certificates are instruments in writing that are

addressed to the public and to which S. 8 applies.

According to the evidence, the Inuvik office is the central service point chosen by the Department

for issuance any official certificate. This office is charged with producing certificates in accordance

with s. 8 of the NWT OLA. In other words, the Department is meeting its obligations pursuant to s.

8 through the intermediary of this office, which acts as the official registry for official certificates

relating to the legal status of individuals. The functions of this office are indeed those of a central

146

office of a governmental institution. Consequently, to respect the remedial nature of the NWT OLA

and the prescriptions enunciated in Beaulac, this office must provide services to the public in

French, and communicate with the public in French, in accordance with ss. 11(1). Should my

conclusion be in error, I am of the opinion that it would be completely unreasonable to argue that

the nature of this office does not justify the use of English and French. This opinion is based on the

fact that this office has the status of an official registry and issues certificates regarding the legal

status of individuals.

I conclude that the issuance of a birth certificate in English only infringed on Ms. Laquerre’s rights

guaranteed under s. 8 of the NWT OLA. As for the absence of a greeting in French at this office

which is a head office of the Department, this constitutes a breach of Ms. Laquerre’s rights as

recognized under ss. 11(1) of the NWT OLA.

As for the delay associated with the issuing of a certificate bearing the appropriate accents, a

considerable delay that was the result of software problems, I conclude that this contravenes ss.

11(1) of the NWT OLA. This conclusion is based on the application of the principle of true equality

and of the principle which creates an obligation of results. The Territorial Defendants did not prove

that this delay was due a factor beyond their control, or that the victim had prevented the execution

of the obligation within the meaning of the Thibodeau ruling, supra ; the software was already

installed in Yellowknife.

(iv) Suzanne Houde’s claims: the Department of Health and Social

Services

Several times, over the years, Ms. Houde presented herself at the Stanton Hospital reception and

emergency room and was greeted in English only. These incidents occurred despite the presence of

French language welcome signs. Ms. Houde’s testimony is supported by the evidence that there

were no positions designated bilingual at the Hospital’s reception. Ms. Houde has rarely been

treated by a French doctor or nurse in the emergency room. There was no interpreter available

during some of her visits to the doctor. Moreover, the Hospital felt that it was up to her to make the

necessary arrangements to be helped by an interpreter during a consultation with an Anglophone

orthopaedist. As for the interpreters which the Hospital would use, they had not received any

professional training in interpretation or any formal education in medical terminology. The Hospital

got into the habit of having her husband, Mr. Légaré, act as interpreter. This was the case during

visits – frequent – by Ms. Houde to the emergency room and it was the case when it was necessary

to fill in consent forms relating to tests and interventions that she had to undergo. Mr. Légaré had

no training in medical terminology. On one occasion, Ms. Houde was left alone, without an

interpreter, in a recovery room and she was unable to convey her request for medication.

Pursuant to para. 11(1)b) of the NWT OLA, the public has the right to use French to communicate

with any office of a government institution and to receive services from such an office, in places

where the use of French is justified by the nature of the office. Very few of the evidentiary elements

that were presented dealt with the process of compiling the list of institutions, boards and agencies

in the PGD, where hospitals can be found (Table A). According to the Territorial Defendants,

Guideline No. 2, which deals with designated offices, ensures the implementation of the obligation

147

provided for in para. 11(1)b). The Department of Health and Social Services and the Stanton

Hospital even acknowledged that, because of the nature of the “office of a government institution”

of this establishment justifies French having the status of official language and be used in the

provision of its services. Such an acknowledgement can be found in the evidence presented by the

Territorial Defendants regarding the implementation of the NWT OLA in hospitals (signage, the list

of interpreters as well as the identification of Francophone employees), the fact that Guidelines No.

2 (designated offices) designates any office providing health services and the fact that Guideline No.

3 and Guidelines No. 4 (active offer, provision of services) apply to hospitals. Such an

acknowledgement is completely logical, in view of the importance of the vocation in question in the

lives of citizens.

For the services in this case to reach the degree of effectiveness described in Beaulac, it is not

enough to announce a policy of bilingual by means of signage; the means have to be offered to

make it possible to exercise this right to French communication and services. If a patient’s family

member is entrusted or is left to fulfil the important function of interpreter of the patient’s symptoms

or the communications and instructions from doctors and nurse, this does not meet the language

obligations of the institution to the Francophone patient. Likewise, if the interpreters that are being

used do not have the required skills or recognized training in medical terminology, the hospital fails

in its language obligations in an area where precision is a priority.

The Territorial Defendants rely on the PGD. Guideline No. 4 provides for the provision of services in

French through direct services, facilitation services or interpretation services. However, according to

the evidence, Ms. Houde made several visits to the hospital with no access to any of these

mechanisms. The Hospital reception, the emergency room and the reception at a medical clinic are

“the nerve centres” of these institutions, to borrow Mr. Wissel’s term. In my view, the positive

obligations of these institutions include both the presentation of a greeting in French at its key

health service points and the ability to effectively help individuals who have to fill in forms and to

guide Francophone patients to other services within the hospital. If, after specific and continuous

efforts to recruit Francophone personnel, the hospital must absolutely resort to the services of an

interpreter to meet its obligations, the interpreter in question must demonstrate that he has, first of

all, a good knowledge of French, determined by means of standardized verifications and, secondly,

recognized training in medical terminology.

By calling upon Mr. Légaré, a member of the patient’s family, to translate the consent forms, the

hospital did not meet its obligations toward Ms. Houde. Mr. Légaré had no training as an interpreter

or in medical terminology and the hospital had no way of checking that the various words on the

consent form had indeed been translated properly.

The Stanton Hospital also failed in his language obligations when they used the services of an

interpreter by telephone in the emergency room. The Stanton Hospital is the hospital of referral for

all the Territories, the “nerve centre” of all NWT hospitals. It is clear that, in the context of an

emergency room, this approach does not constitute an effective way of providing the required

service. In fact, in such a situation, the interpreter is not in a position to interpret the gestures that

accompany the patient’s oral communications and which emphasis some of her statements (for

example, to indicate the affected parts of the body). It follows that the patient cannot be confident

that he or she had been correctly understood.

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More generally, the Plaintiffs contend that the services of an interpreter cannot meet the obligation

to communicate in French or to obtain service in French. They argue that only unilingual

Francophones will have to resort to an interpreter; this service would not be useful to bilingual

people. According to the Plaintiffs, resorting to an interpreter must be the exception; moreover, to

have the right to proceed in this manner, the hospital must be certain that it does not diminish the

communication or the service in question.

I agree with this analysis. In “Le droit à la prestation des services publics dans les langues

officielles” (Mr. Bastarache (dir.), Les droits linguistiques au Canada, 2^nded. (Montréal: Les Éditions

Yvon Blais Inc., 2004)), on p. 289, the authors N. Vaz and P. Foucher make the following

observation:

The office must [...] be in a position to provide the service. This ability is acquired,

on an oral level, by the presence of bilingual staff, simultaneous or consecutive

interpretation being impractical and often provides a service of lesser quality [...].

Resorting to interpreters must be evaluated in terms of the following objectives: remedy the faults

of the past; recognize the equal status of French (s. 5 of the NWT OLA) and promote its

development, achieve the pluralist goals of the Act identified by Mr. Landry and satisfy the

obligations of result that flow from them. In light of these objectives, the use of interpreter is a

rather civic and diglossic response that does not convey to the Francophone or a bilingual member

to the public who wishes to express himself and be understand by a government organization in

French, that this language has equal status.

Situations will occur where having to use an interpreter will be necessary but his approached should

be a last resort and a temporary solution. It does not replace the obligation to communicate and to

provide services in French. I echo the comments made by Justice Beaulieu in Dehenne v.

Dehenne (1999), 47 O.R. (3d) 140 (S.C.J.), in s. 14 and 15. In this ruling, the judge states that

the right to the use of French is not a right to an interpreter. In my view, unless it has been

demonstrated that specific and continuing efforts have been made to recruit bilingual employees, if

the need is filled by signing a contract with an organization such as “Cantalk”, in Winnipeg, a

company that offers interpretation services in some hundred languages, then the obligations under

the NWT OLA are not fulfilled and the objectives therein are not achieved. What is required is not

absolute equality. This being said, it is necessary to try to provide a front-line service in French as

well as to aim to provide a bilingual professional presence (doctors, nurses, technicians and

pharmacists) in each hospital.

I conclude that there was a breach of the language rights guaranteed to Ms. Houde under S. 11 of

the NWT OLA. This conclusion is based on the following facts: (i) on several occasions, during 1997

and the following years, Ms. Houde was deprived of a French greeting at the Stanton Hospital; (ii)

several times, Ms. Houde was induced by the hospital to rely on the interpretation skills of her

spouse and, in some cases, she had to depend on her husband’s translation of consent forms; (iii)

Ms. Houde was encouraged to make her own arrangements for the interpretation services that she

needed for a consultation with an orthopaedist, and (iv) Ms. Houde did not have the benefit of the

services of an interpreter in the recovery room.

149

I have already concluded that, at the Inuvik Registry Office, between November 1999 and March

2000, no French greeting or service had been offered to Ms. Houde or to her spouse when they had

tried to correct Ms. Houde’s health card. I also conclude that this office is a head office of an

institution of the GNWT. Moreover, as the GNWT considers hospitals to be “offices of government

institutions” the nature of which justifies the use of French, the nature of the Inuvik office

concerned in this issue, that is, the issuance of cards that give access to hospitals, justifies the use

of French as an official language in the provision of these services. As I have already concluded, for

there to be an effective service, it is necessary that, from the very beginning, the means by which

those who are entitled can exercise their right be clearly spelled out to the public. Additionally,

there has to be an effective way of availing oneself of these rights. As far as Ms. Houde is

concerned, the evidence shows that such a communication was repeatedly omitted and that she was

not directed to Francophone officials. These facts constitute breaches of ss.(11(1).

(v)

Mr. Pierre Ranger’s claim: the Department of Health and Social

Services

On November 12, 1999, at the H.H. Williams Hospital in Hay River, an active offer was displayed in

three official languages (including French) and Mr. Ranger asked to be served in French. Despite

this offer and this request, Mr. Ranger was not served in French. I repeat that, if the hospital offers

a service, as its nature requires it to do, as Guideline No. 2 and Table A recognize, the service being

offered must be available. The situation described constitutes, therefore, according the GNWT’s

own criteria, a breach of ss.(11(1) of the NWT OLA.

(vi) Yvon Dominic Cousineau’s claim: the DECE

Mr. Cousineau had to make his own inquiries to the DECE to find a French version of the manuals

and exams for apprentice electricians. The apprenticeship office is located in the same building as

Mr. Cleveland, the Deputy-Minister of Education’s office. I consider this to be the “head office” of a

government institution. (I note elsewhere that, in the proposed regulations, the list of organizations

subject to ss. (11(1) includes the Apprenticeship and Trade Certification Board.)

Pursuant to ss.(11(1), the public has the right to receive services in French from the head or central

offices of government institution. The department’s manuals and exams are documents that fall into

the category of the provision of services to the public. In order to respect the remedial aspects of

the NWT OLA and the prescriptions in Beaulac on the adoption of positive measures, the public

must be informed about the availability of a French version of the manuals and tests in question.

Guideline No. 3 provides for the presentation of an active offer by departments. Without an active

offer, there can be no demand for such documents in French. This reality highlights the dilemma

that presents itself as soon as we define the term “significant demand” as a function of the number

of requests presented rather than as a function of the population that is likely to benefit from the

right in question. As Mr. Landry pointed out, the absence of a demand or a limited demand for

French communications and services may arise from the fact that the public is used to not being

served in French. Consequently, in my view, to achieve the remedial objective of the NWT OLA as

fully as possible, it is necessary to promote an approach by which the definition of “significant

demand” is referring to the population that is likely to benefit from this recognized right. Such an

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approach has to prevail at least during the initial steps in the implementation of the rights

guaranteed by the NWT OLA.

Because Mr. Cousineau was able to take his two tests in French, the breach of his rights (that is, the

absence of an active offer of a French version) was remedied.

Mr. Cousineau also pointed out, in the framework of the apprenticeship program, there was no

French form or a French apprenticeship certificate. I note that the certificate confers official

apprenticeship status and the form sets out the components necessary to meet the eligibility criteria

imposed by the GNWT. Thus, both documents are vested with official status and are intended for

the public. Therefore, I concluded that these two documents should be issued in both languages

pursuant to s. 8.

On the other hand, the DECE did not inform Mr. Cousineau that he could take the apprenticeship

program in New Brunswick in the framework of a program that was subsidized by the GNWT. Ms.

Sharp testified that, if Mr. Cousineau had asked a question about that, she would have informed him

of the New Brunswick program and he could have participated in it. I am of the opinion that this

program is a service of the DECE and that, where it was concerned, an active offer was required

pursuant to ss.(11(1). The public will not ask for it if they don’t know it exists.

In my view, these breaches are infringements of the NWT OLA.

(vii) The FFT’s claim: the Legislative Assembly

In s. 52 of the amended statement, the Plaintiffs allege that the Assembly’s records and journals

are rarely available in French. Alternatively, they allege that the Assembly is the head office of an

institution of Parliament or of the Government of Canada. It communicates with the public and

serves it through its laws, its archives, its records and journals (s. 53).

This is governed by ss. 7(1) of the NWT OLA, which reads as follows:

7.(1) Les lois promulguées par la Législature ainsi que les archives, comptes rendus

et procès-verbaux de l'Assemblée législative sont imprimés et publiés en français et

en anglais, les deux versions des lois ayant également force de loi et celles des

autres documents ayant même valeur.

[7.(1) Acts of the Legislature and records and journals of the Legislative Assembly

shall be printed and published in English and French and both language versions are

equally authoritative.]

Hansard is only published in English. Is it covered by the expression “archives, comptes rendus et

procès-verbaux” (in English “records and journals”) in S. 7 of the NWT OLA?

The Territorial Defendants contend that Hansard is not covered by S. 7. In support, they refer to,

on one hand, Mr. Mercer’s comments, in his testimony regarding Hansard’s origins and, on the other

hand, to Beauchesne's Rules & Forms of the House of Commons of Canada with Annotations,

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Comments and Precedents, 6th ed. (Toronto: Carswell, 1989), on p. 7:

Motions, amendments, references to committees, and the three readings of bills

come under the term of “proceedings in Parliament”. They are the means used to the

end that a matter may be considered and disposed of by the House. The word

“proceeding” is derived from the verb “to proceed”, which means “to advance” or “to

carry on a series of actions”. Members take part in the proceedings usually by

making speeches; however, many proceedings take place without any debate.

Speeches are not essential; they either help or hinder a proceeding, but they are not

a proceeding. The verbatim report of Members’ speeches is in Hansard but this is not

an official record of the House proceedings. The official record of proceedings is

found in minutes of the sittings which are printed and distributed daily under the title

of Votes and Proceedings and are published after prorogation under the title of

Journals of the House of Commons.

In Forest v. Manitoba (Registrar of Court of Appeal), [1977] M.J. No. 106 (C.A.), Chief Justice

Freedman, who expressed the opinion of the majority of the Court, stated that he was of the opinion

that, in S. 23 of the Manitoba Act, 1870, the expression “records and journals” – as in S. 133 –

includes Hansard. These days, the Hansard covering the Manitoba Legislative Assembly is published

in both official languages.

It is the same for New Brunswick’s Hansard; S. 8 of the Official Languages Act, S.N.-B. 2002, c. O-

0.5 within the scope of the publication of “records, journals and reports of the Legislative Assembly

and its committees”.

As for the Hansard for Parliament, it is published in both official languages, despite the comments

described in Beauchesne and even if there is no explicit mention of “Hansard: in the OLA of Canada

nor in its governing regulations. S. 4 of the OLA of Canada reads as follows:

4(1) English and French are the official languages of Parliament, and everyone has

the right to use either of those languages in any debates and other proceedings of

Parliament.

(2) Facilities shall be made available for the simultaneous interpretation of the

debates and other proceedings of Parliament from one official language into the

other.

(3) Everything reported in official reports of debates or other proceedings of

Parliament shall be reported in the official language in which it was said and a

translation thereof into the other official language shall be included therewith.

S. 5 of the OLA of Canada provides that Parliament’s “journals and other records” shall be kept,

printed and published in both official languages. The French version of the NWT OLA uses the same

language.

One point that should be noted: for S. 7 of the NWT OLA, the territorial lawmakers chose the

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expression “archives, comptes rendus et procès-verbaux” (“records and journals”) rather than the

expression “archives, procès-verbaux et journaux”, found in s. 133 of the Constitution Act, 1867.

The Bastarache Report noted that it was uncertain whether or not Hansard should be published in

French and English pursuant to the NWT OLA. This uncertainty arises from the fact that the

publication of Hansard, even in English, is not mandatory. In pp. 9 and 10 of the report, Maître

Bastarache reiterates, on this subject some comments made by Justice Deschênes in Québec

(Attorney General) v. Blaikie, [1978] S.C. 37. From this point of view, in the context of S. 133

of the Constitutional Act, 1867, the journals include a record of the debates held in the House the

previous day and which is published pursuant do an order by the Assembly. The votes and

proceedings cover everything that the Assembly must accomplish or its supposed to accomplish, but

they do not include everything that is said, un less there are explicit directives to the contrary. As

for the registries,, they consist in fact of “archives”. The registries include all the documentation

relating to bills that have been presented to the Assembly and adopted. Justice Deschênes did not

decide if Hansard should be considered as a “journal”.

Maître Bastarache is of the opinion that Hansard is an official document of the Assembly and that

any changes to such a document be voted upon by the House. He concluded that, if Hansard is not

part of the “records and journals” covered by S. 11 (now S.7), it is part of the “instruments in

writing directed at the public” covered in S. 12 (now S. 8).

I note that, under the rules of the Assembly, in effect since April 1, 1993 and which were recently

amended in 2002, provision is made for Hansard to be published and that this publication shall be

the responsibility of the Speaker of the Assembly:

HANSARD

103 (1) A printed transcript of the deliberations and proceedings of the Assembly and

Committee of the Whole, known as the “Hansard”, shall be compiled, edited, printed

and distributed under the authority of the Speaker. [Emphasis mine}

These rules show that the Assembly intended to confer an official aspect to Hansard and to increase

its dissemination. If that were the not the case, I would have trouble explaining the strict provisions

that have been enacted regarding its editing and the changes to its contents:

103 (4) The Clerk shall provide for the editing of the transcript in accordance with

the following:

(a) revisions shall be limited to correcting grammar, spelling and punctuation,

ensuring that the correct parliamentary forms are observed, and minimizing

repetition and redundancies;

(b) revisions shall not include material alterations or amendments which would in any

way tend to change the sense of what has been spoken;

(c) the Transcript shall remain an accurate and, as far as possible, an exact report of

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what was said;

(d) a Member has no right to alter the report of any speech or remarks attributed to

him or her in any way, and the Speaker shall determine whether or not a Member’s

suggested correction shall be admitted;

(e) unless a Member can demonstrate to the satisfaction of the Speaker that he or

she has been misreported, a Member may not change the sense of anything that he

or she has been recorded as having said. A Member is not permitted to make any

insertion as an afterthought nor to strike out a passage which he or she regrets

having spoken. [emphasis mine]

The Grand dictionnaire anglais-français Larousse translates the English term “records” [“of

government, police, hospital “ by the term “archives”. For the English term “journal”» [Jur.], it

offers “procès-verbal”. As I pointed out, the French versions of S. 7 uses an additional expression: “

compte rendu”. However, in the Grand dictionnaire anglais-français Larousse, this term is assigned

“report” as an English equivalent relative to the context of records of conversations, meetings,

meetings and professional visits; on the other hand, for the more formal context of a hearing, the

dictionary proposes “court session record “ [emphasis mine], a term that can thus be included in the

term “records “ of the English version of S. 7. For the term “compte rendu”, Le Petit Robert refers

to the entry “compte (II)”, where they list the following elements: exposé, rapport, récit, relation;

compte rendu d'une mission; compte rendu d'un spectacle, d'un livre. As for Harrap’s Shorter:

Dictionnaire anglais-français, it proposes “minutes “ as the English translation of “compte rendu “.

On a fact sheet on their Web site, the Legislative Assembly describes Hansard in the following

manner:

[...] [L]e Hansard est le compte rendu quotidien des travaux de l’Assemblée

législative.

[« The edited Hansard is the official verbatim report of the proceedings of the

Legislature. »]

[emphasis mine]

Mr. Mercer explained that this fact sheet was drawn up based on the ordinary meaning of the terms:

it was not intending to create legal obligations.

In my view, the meaning of the term “compte rendu” corresponds perfectly to the nature of the

Hansard kept and published in the NWT. In addition, such an interpretation complies with the rules

of interpretation of entrenched language rights: it respect the rule of fundamental interpretation to

the effect that the intent of the legislator must be determined and it takes into account the fact the

lawmakers adopted an additional and slightly different term that that which appears in S. 133 of the

Constitutional Act of 1867.

For these reasons, I conclude that, whatever the origins of Hansard may be, this publication

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currently constitutes an official record of the work of the Legislative Assembly and that, as a result,

Hansard is covered by the expression “records and journals” in S. 7 of the NWT OLA.

If I am wrong, I am still of the same opinion that Hansard is included in the expression “instruments

in writing directed to or intended for the notice of the public, purporting to be made or issued by or

under the authority of the Legislature [...] “ in S. 8 of the NWT OLA. My point of view is based on

the following considerations: (i) Hansard is printed for the members of the Assembly and the public

in general – as described in the aforementioned fact sheet – and it is disseminated on the

Assembly’s Web site and available in libraries; (ii) because of the quasi-constitutional nature of the

NWT OLA, these provisions must receive an interpretation that promotes the maintenance and the

development of official language minorities; (iii) in its rules of procedures, the Assembly expresses

its intention that, to the extent possible, the transcription of the debates presents an exact and

accurate report of what has been said, and by that fact, Hansard takes on an official character and

(iv) Hansard serves as a means of communication for the daily activities of the Assembly and this

function is in harmony with democratic principles and the protection of minorities which underlie the

Constitution.

Mr. Mercer stated – and the Territorial Defendants pleaded in their amended defence – that the

entire issue of the management, monitoring and dissemination of the Assembly’s internal procedures

and documents is privileged. I note that the Assembly itself promulgated the NWT OLA and that

they did not insert any provision attaching conditions or restrictions to the application of S. 7.

Therefore, if there is indeed privilege, the Legislative Assembly ended it: see Roberts v.

Northwest Territories (Commissioner), [2003] 1 W.W.R. 98 (N.W.T.S.C.), in s. 8. While the

means that the Assembly chooses to maintain its records of its daily activities are covered by the

Assembly’s privilege, when it decides to produce Hansard in English as an official report, it must also

produce it in French. This obligation may be inferred, first, from the interpretation to the effect that

the expressions in S. 7 of the NWT OLA establish obligations of result and, secondly, the principle of

interpretation requiring the respect of the remedial intention of this Act and promoting the

maintenance and the development of the Francophone community of the NWT.

During the trial, the Plaintiffs raised the issue of the simultaneous interpretation of the Assembly

debates. Conversely, the amended statement does not make any particular allegation that can be

specifically linked to such an issue. No evidentiary element was presented to establish that an MLA

or anyone else was had a request for simultaneous interpretation refused. In the absence of

evidence, I believe that the Court should not rule on this issue.

In s. 53 of the amended statement, the Plaintiffs address the broadcasting of the debates. They

allege that the Assembly is the head office of an institution of Parliament and that it is required to

communicate with the public in French pursuant to S. 16 and 20 of the Charter. I accept that the

Assembly is a head office of a government institution. In line with the definition that S. 1 of the

NWT OLA gives to the expression “government institution” and Table A of the PGD, this expression,

in ss. 11(1) of this act includes the Office of the Assembly. In my view, broadcasting constitutes a

service or a communication of the Assembly. As is the case with Hansard, the decision to broadcast

the debates is covered by the Assembly’s privilege; however, once the Assembly decides to

broadcast or authorize their broadcast, by other entities, in English, the principle of true equality

intervenes at that point and requires equivalent broadcast in French.

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(viii) the claims concerning L'Aquilon: Government Departments and

other organizations

I conclude that, in 1993 and 1994, l’Aquilon had drawn the attention of officials to the omissions in

their practices regarding the placing of advertisements in French and that, later, this newspaper had

to carry out its own research into the matter. This problem was not an isolated case.

Most of the departments and other organizations that responded to the complaints lodged by the

FFT in 1998 and 1999 acknowledged that they were required to publish their advertisements in

French; on the other hand, their employees were not well informed about the subject. Even though

a series of formal complaints, highlighting this problem, had been submitted to the NWT LC, and

even tough interdepartmental discussions had been held on this subject, the problem persisted in

some departments.

According to the Bastarache Report, it would be easy to argue that S. 8 provides for the

promulgation of employment offers in both official languages: they would be considered to be

instruments in writing addressed to the public or intended to be brought to their attention.

I agree to say that the wording of S. 8 – “ instruments in writing directed to or intended for the

notice of the public, purporting to be made or issued by or under the authority of the Legislature or

[GNWT] or any […] quasi-judicial or administrative body or Crown corporation established by or

under an Act, shall be promulgated in English and French and in such other Official Languages as

may be prescribed by regulation – includes employment offers and invitations to tender, these

documents being formal notices intended for the public. S. 8 requires that these instruments be

promulgated, but does not deal with all the forms that their dissemination might take.

Once the announcements are promulgated, the GNWT has the choice of their means of

dissemination. This being said, the organizations listed in s. 8 are subject to the principle of true

equality and, in my view, as soon as one of these organizations commits itself to publishing and

advertisement in an English newspaper, it must, in order to respect this principle, also publish it in a

French newspaper. According to the evidence, publication in L’Aquilon would certainly have been

the easiest way to achieve such an objective in terms of the Francophone public. If my conclusion

on the application of s. 8 regarding government advertisements is in error, I consider that the

employment offers and the invitations to tender constitute invitations to communicate and, as such,

are subject to ss.(11(1).

In light of these facts, we note how important it is to adopt a coordinated approach that can connect

the entire government apparatus. In the case of the advertisements, a simple solution was

available: through a directive from the GNWT’s central authority – the Unit, prior to September

1997, and the DECE, afterwards – the private company that had been giving the responsibility for

placing the significant majority of the government advertisements – at the time, it was Inkit – to

have them published in French in L’Aquilon. We remember that this solution proved effective in

dealing with the omissions noted in the publication of advertisements on behalf of the Department

of Natural Resources. A solution of this kind is all the more appropriate since it does not depend on

the efforts of individual audits or of the good will of specific employees.

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Guideline No. 8 establishes the following rule: when an employment opportunity for a position

located in a region designated for French appears in English, the advertisement must appear in

French in a French newspaper. If the employment offer is for a position that requires knowledge of

English and French, this offer must also appear in French in a French newspaper. Pursuant to

Guideline No. 9, when a proposed project, advertised in English, is to be carried out in a region

designated for French, bids and invitations to tender related to it must appear in French in a French

newspaper. If they provide for geographic or other limitations to the obligations arising from S. 8,

these guidelines contravene S. 8, because these obligations are not subject to the conditions that

appear in paragraphs 11(1)a) and b). Additionally, regarding any employment offer or invitation to

tender emanating from a head or central office, these limitations contravene ss.(11(1) of the NWT

OLA.

The Territorial Defendants did not submit any evidence establishing that the advertisements not

published in L'Aquilon were still communicated in the French language by some means other than

this newspaper. The breaches that I noted constitute infringements of the NWT OLA.

(ix) claims concerning the offices

(a)

Yvon Dominic Cousineau: the office of the Department

of Transportation

The greeting at the Bureau of Transportation, located in Yellowknife, was in English only when Mr.

Cousineau asked of the professional driver’s manual and the tests for the Class “1” driver’s licence

were available in French. The evidence is insufficient as to the question of knowing if this office was

part of the head office of the Department of Transportation.

Guideline No. 2 (designated offices) applies to “all departments, agencies, commissions and boards

[of the GNWT] listed in Table A”, and the Bureau of Transportation does not appear on it. Never

the less, this Guideline seems to intended for all offices in Yellowknife that provide services to the

public, Therefore, according to the criteria established in the PGD, I consider that the Bureau of

Transportation is subject to ss.(11(1) of the NWT OLA because of the “nature of the office” to

provide services to the public.

Moreover, according to Guideline No. 1, Yellowknife is a region designated for French. The

Territorial Defendants maintain that the designation of regions is the mechanisms that the GNWT

used to responded to the criterion of “significant demand” that appears in paragraph 11(1)a) of the

NWT OLA and the identification of designated offices meets the criterion of “nature of the office”

Even if I am incorrect and that Guideline No. 2 does not apply to the Bureau of Transportation in

Yellowknife, given that the GNWT acknowledges that Yellowknife is a region designated for French

based on the criterion of significant demand (Guideline No. 1), the condition for significant demand

is met. The GNWT cannot remove itself from its obligations as provided for in paragraph 11(1)a) by

invoking another Guideline related to the nature of the office. If the French version of ss.(11(1) is

not clear about this, the English version settles the issue:

11.(1) Le public a, aux Territoires du Nord-Ouest, le droit d'employer le français ou

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l'anglais pour communiquer avec le siège ou l'administration centrale des institutions

gouvernementales ou pour en recevoir les services. Il a le même droit à l'égard de

tout autre bureau de ces institutions là où, selon le cas :

a) l'emploi du français ou de l'anglais fait l'objet d'une demande importante;

b) l'emploi du français et de l'anglais se justifie par la vocation du bureau.

11.(1) Any member of the public in the Northwest Territories has the right to

communicate with, and to receive available services from, any head or central office

of a government institution in English or French, and has the same right with respect

to any other office of that institution where

(a) there is a significant demand for communications with and services from the

office in that language; or

(b) it is reasonable, given the nature of the office, that communications with and

services from it be available in both English and French.]

[emphasis mine]

If the framers of the law had wished to limit the obligation by excluding certain offices that serve the

public despite a significant demand or the nature of the office justifying the use of French, the

criteria provided for in paragraphs 11(1)a) and b) would be cumulative.

Before they consulted the official languages section, the staff of the Bureau of Transportation in

Yellowknife was not aware of the availability of a French version of the air brakes manual. Mr.

Cousineau was unable to obtain the manual he was seeking – even though it was available. The

reason: at the time Mr. Cousineau presented his request, neither the staff of the Bureau of

Transportation with whom Mr. Cousineau had communicated, nor Mr. Galipeau, of the Official

Languages Section, were aware of the existence of a computerized version in French of the

professional trucker’s manual.

The question in this case does not concern the obligation to publish the manual in French, but rather

the obligation to make it available once published. True equality requires that the means be

provided so that the public can avail itself of its right to access to these resources. There was a

break in the chain of steps to that end and, as such, a breach of ss.(11(1) of the NWT OLA.

I conclude that the fact that Mr. Cousineau was not greet in French and the fact that he was unable

to receive the professional driver’s manual in French, which had been published but was not

available, constitute breaches of the rights guaranteed to Mr. Cousineau guaranties by ss.(11(1).

(b)

Suzanne Houde : the office of the Department of

Transportation

Ms. Houde was unable to avail herself of the services of an interpreter in 1997 at the driver’s licence

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bureau in Yellowknife, or to receive services in French in 2001-2002 to renew her licence. For the

same reasons, the lack of these services in French contravenes ss.(11(1) of the NWT OLA.

(c)

Nadia Laquerre /FFT: the office of the Department of Public

Works

Ms. Laquerre was not greeted in French on the telephone at the Department of Public Works in Fort

Smith, a region designated for French and her call was not transferred to another office of the

Department where she could be offered service in French. The Territorial Defendants state that that

department does not provide services to the public and, therefore, was not subject to the obligations

under ss.(11(1). The evidence established that the only service provided to the public by this

department is the distribution of gasoline to some isolated communities in the NWT, (a service that

is not offered by the office in Fort Smith) and inspection services.

According to ss.(11(1) of the NWT OLA, the pubic has the right to use French in communicating with

the head or central office of government institutions or to receive services from them. In addition,

the public has the same right in regards to any office of these institutions where the use of French

or English is the subject of significant demand or the use of English or French is justified by the

nature of that office. The English version use the expression” has the right to communicate with

and to receive available services from [...] “. I am of the opinion that to respect the principles of

interpretation applicable to language rights, even if an office does not offer direct service to the

public, the public has the right to communicate in French with that office if there is a significant

demand. One can imagine various circumstances where the public would be justified in

communicating with a local office of Public Works, for example, to complain about actions by the

latter that affect the public.

Fort Smith is a region designated by the GNWT for French. The Territorial Defendants contend that

this designation is a means to define “significant demand”. Therefore, according to their own

definition, the public has the right to use French to communicate with the offices located in that

region, and the lack of communication in French in this case constitutes a breach of paragraph

11(1)a).

The evidence showed that Ms. Laquerre, at the time an employee of the FFT, contacted this office

on behalf of the FFT to determine if they were able to communicate with her in French. Her

complaint is, in fact, the FFT’s complaint.

(x) Conclusion regarding the breaches

I do not accept the Territorial Defendants’ argument that the breaches established by the evidence

are isolated and mundane. In my view, they indicate the existence of a serious and widespread

problem in the NWT concerning the implementation of the rights in question. Nor do I accept that

these breaches are the result of a campaign against the Territorial Defendants, as the latter has

argued. The evidence establishes that the breaches are cases isolated in time or by their nature and

that they are limited to well-defined localities. Moreover, the evidence presented by the Defendants’

witnesses does not reveal that the GNWT practice a systematic approach – even in the context of a

decentralized management of government responsibilities prescribed by the NWT OLA – and that

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the breaches that have been established are only exceptional cases.

As to the issue of the banality of the breaches, I accept the opinion of the expert, Mr. Landry,

according to whom the influence of the government on the vitality of an ethnolinguistic group,

especially a small and vulnerable one like that in the NWT in this matter, must not be

underestimated. The importance of this influence is demonstrated in some of the testimony

presented in evidence by the Plaintiffs dealing with the effects of the breaches in question.

In view of the nature, the diversity and the seriousness of the observed breaches, I conclude that

they reflect a problem with the implementation of the rights in question, that the problem is serious

and widespread in the NWT and that isolated remedial measures that would only address these

particular cases, would not constitute an effective remedy.

(xi) The impact of the other evidentiary elements

The other evidentiary elements, including those presented by the Defendants, only reinforce this

conclusion. For example, the Plaintiffs contend that the GNWT’s approach to its obligations in terms

of signage is lacking. In s. 33 of their amended statement, they note that one of the sources of this

problem is Guideline No. 11, that only covers those organizations listed in Table A regarding the

obligation for signage. They allege that, in this aspect, the PGD is not in compliance with ss.(11(1),

which requires an “active offer”. The photos submitted in evidence by the Defendants show that the

signage situation has improved over the years; however, we can still see, on one hand, English

logos on bilingual or trilingual signs and, on the other hand, unilingual signs on government

buildings.

Mr. Wayne Nesbitt testified that each department is ultimately responsible for signage and that it is

up to the departments to decide which signs will be in French. He explained that if the GNWT is the

owner of a building, the exterior signage is in three languages, English, French and Dogrib.

Notwithstanding this, the exterior sign designating the Arthur Lang Building, a government building,

is only in English. When the GNWT is the sole lessee of a building, the exterior signs are in English

in the absence of a special arrangement with the landlord.

Signage is an important aspect of the “active offer”, allowing the public to avail itself of the

language rights provided for in S. 11. It is not just a tool by which unilingual Francophones can find

the office and the service they need; signage is also an invitation to communicate in the official

language of one’s choice since it indicates to all individuals who are entitled that they can use

French in their communications with the GNWT and in making use of the services they offer. This

obligation extends not only to head or central offices, but also wherever there is a significant

demand or where the nature of the office justifies the use of French. Wherever Table A and

Guideline No. 11 of the PGD limit the obligation in question to designated offices, there is a breach

of ss.(11(1).

The evidentiary elements dealing with the breaches regarding the active offer and services in French

at various offices reinforce my conclusion that the problems in that area are far from being isolated

cases. The signage is bilingual inside the Stanton Hospital but lacking in the premises where the

consolidated offices of the Languages Commissioner and the other Offices of Commissions are

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located. The greeting in person and on the telephone is bilingual in come offices (notably that of

Ms. Ms. Pfeifer at the Department of Health), but only in English in the vast majority of other

government offices (notably at the Wildlife Service as well as the driver’s licence bureaux in Hay

River and Fort Smith). The front-line employee are able to express themselves in French in some

offices or centres (at the driver’s licence bureau in Yellowknife, the Fort Smith health centre); but it

is not the case in several other offices that have daily contact with the French public (the Stanton

Hospital, the Inuvik Health Services Registry, the Inuvik hospital, the Office of the Assembly).

Access to an interpreter in the health centre is not assured each time someone requests one (the

Stanton Hospital, the Hay River health centre, the Inuvik hospital). The recruitment of public

servants does not promote the bilingual of the candidate, clearly and systematically, in those areas

where there is daily contact with the Francophone public.

These other evidentiary elements also show the absence of a systematic approach to dealing with

correspondence in French (logos, active offer of a French version) and the availability of French

information by means of Web sites. The latter are very lacking in several departments, despite the

intention expressed in 1995 by the GNWT to create a Web site in French (to replace the 1-800

number). During his examination for discovery in July 2003, Mr. Daniels indicated that the GNWT

had not adopted a policy on Web sites. He confirmed that each department was responsible for its

own Web site. This being said, Mr. Daniels indicated that discussions had been begun on the

possibility of adopting a more uniform approach to Web sites. Over two yeas later, such a

systematic approach has not yet been adopted, even though Web sites are a simple and economical

way of presenting the active offer, according to the Mr. Doucette’s uncontradicted testimony. The

GNWT’s Web site, as well as that of most of the departments, are largely only in English.

The evidence also revealed the lack of availability of documents that had already been translated:

driver’s manuals, at the Department of Transportation (Mr. Cousineau); forms, at the Workers’

Compensation Board (Mr. Ranger); forms intended for employers from the Department of Finance

(Ms. Fonteneau). In their documents intended for the public, several departments omit to indicate

that the document in question is available in French. Some official documents are available in

English and in English but other official documents are not completely bilingual (e.g., driver’s

licences).

The Polaroid studies simply support the observations of the individual plaintiffs (and the testimony of

the Defendants’ witnesses) who limned a picture of generalized shortcomings regarding greetings in

French on the telephone (in person or by voice mail) and in person in government offices.

B. The sources of the infringements

It remains to determine the source – or sources – of the infringements established by the evidence.

(i) At the Territorial level

In s. 17 of the amended statement, the Plaintiffs allege that one of the sources of the problem is

that the NWT’s linguistic regime, as it is worded and applied, does not respect the requirements of

the Charter. For their part, the Defendants insist that it is not necessary to determine if the Charter

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applies, since the relevant obligations prescribed by the NWT OLA are identical to the corresponding

provisions of the Charter et of the OLA of Canada.

It is necessary, from the beginning t examine the elements of the NWT’s linguistic regime in order to

determine the merit of these arguments.

(a) the NWT OLA as the source of the problem

The provisions of the NWT OLA relating to the allegations established by the evidence are S. 5, 7

and 8 as well as ss.(11(1). Upon reading S. 5 and 7 as well as ss.(11(1) of the NWT OLA, it is

evident that their wording follows, almost word for word, the wording of S. 16 and 18 and of ss.

20(1) of the Charter. S. 8 of the NWT OLA echoes the wording of S. 12 of the OLA of Canada.

S.(11(1) of the NWT OLA applies to the head office, central administration and some offices of

government institutions. The original version of the NWT OLA does not contain any definition of the

term “government institution”. Since the amendments made to the Act in 2003, S. 1 of the NWT

OLA defines the term as follows:

"government institution" means a department or ministry of the Government of the

Northwest Territories, the Office of the Legislative Assembly, and an agency, board,

commission, corporation, office or other body designated in the regulations.

S. 34 of the NWT OLA provides that the Commissioner in Executive Council may promulgate

regulations in order to take measures that he deems necessary for the application of the Act,

including designating organizations that are “government institutions”, To date, no regulation has

been promulgated in the NWT to designate these organizations. During the trial, the Territorial

Defendants referred to a proposed regulation that would do this. However, no specific date for the

promulgation was given.

In the absence of a regulation, this definition in S. 1 is more restrictive than the definition that the

Plaintiffs are proposing and which is based on rulings dealing with the interpretation of ss. 20(1)

(“institutions of Parliament and of government”) and 32(1) (“legislature and [...] government “) of

the Charter. That said, for the purposes of the analysis of the breaches established by the evidence

and the sources of these breaches, we must take into account the obligations as they existed at the

time of the infringements, that is, prior to the 2003 amendments.

We should also note that, in s. 20 of the amended statement, the Plaintiffs have point out that the

French version of S. 8 of the NWT OLA requites that instruments in writing intended for the public

be [..] promulgated in French or in English [...]”. [Italics mine.] The framers of the act have since

corrected this fault.

Since the provisions in effect at the time of the infringements are very similar to the provisions of

the Charter and of the OLA of Canada, and since they are of a quasi-constitutional nature, these

provisions are subject to the same rules of interpretation as those of the Charter and of the OLA of

Canada. I consider that there is no conflict between tees provisions and the corresponding

provisions of the Charter and of the OLA of Canada. To echo the words of Justice Binnie, speaking

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for the majority in Little Sisters Book and Art Emporium v. Canada (Department of

Justice), supra, at s. 44: “it is perfectly possible to apply this legislation in a manner that respects

the rights guaranteed by the Charter”. It follows that, to settle the issue of the Territorial

Defendants’ responsibilities, it is not necessary to raise the issue of whiter or not s. 16 and 18 and

ss. 20(1) of the Charter, and S. 12 of the OLA of Canada, apply to the NWT. In other words, even if

we suppose that S. 16 and 18 and ss. 20(1) of the Charter as well as S. 12 of the OLA of Canada

apply to the NWT, their provisions add nothing to the analysis of the infringements at a Territorial

level.

For these reasons, I reject the argument that the NWT OLA is one of the sources of the

infringements of the language rights in question at the Territorial level.

(b) The PGD as a source of the problem

The NWT did not set up any regulations to implement the NWT OLA. Rather, the GNWT adopted

the PGD, signed in 1997 and revised in 1998, which deals with the provisions of services in the

official languages. The Plaintiffs allege that from the beginning, the PGD was invalid and illegal

because it was not adopted as a regulation.

According to the Territorial Defendants, the PGD is only an internal document made available to

government administration and officials to guide them in the provisions of services and this

document has no binding legal status as far as those benefiting from the rights guaranteed by the

NWT OLA are concerned. Consequently, any examination of allegations of breaches of the NWT

OLA must be carried out as in reference to the NWT OLA and not in terms of the PGD. However,

the Territorial Defendants nevertheless maintain that the PGD is as effective as a regulation and in

fact it is preferable to a regulation because it is more flexible.

The parties did not present any case law in support of their arguments regarding the issue of

whether the Commissioner in Executive Council is required to act be means of regulations.

S. 34 of the NWT OLA provides for the following:

34. The Commissioner, on the recommendation of the Executive Council, may make

regulations[...]. [Emphasis mine.]

Ss. 28(2) of the Interpretation Act of the NWT provides for the following:

28(2) L'obligation s'exprime essentiellement par l'indicatif présent du verbe porteur

de sens principal et, à l'occasion, par des verbes ou expressions comportant cette

Notion. L'octroi de pouvoirs, de droits, d'autorisations ou de facultés s'exprime

essentiellement par le verbe « pouvoir » et, à l'occasion, par des expressions

comportant ces notions.

[28(2) The expression "shall" is to be construed as imperative and the expression

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"may" as permissive.]

In the ruling French v. Canada Post Corp., [1988] 2 F.C. 389 (1^stinst.) on p. 395, conf. [1988]

F.C.J. No. 531 (F.C.A.), the Court rejected the argument that the Canada Post Corporation was

required to regulate rather than to act using administrative methods. The Court determined that the

power to regulate, per se, does not limit the general ability to act in an area. (See also Maple

Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2; cf. Québec (Commission

de santé et de la securité du travail du Québec) v. Papeterie Reed Ltée, [1988] R.J.Q.

1199 (C.A.) and Québec (Commission de santé et of the securité du travail du Québec) v.

Papeterie Reed Ltée v. Duranceau, C.A.M., 500-09-000317-792, January 19, 1984 (J.E.

84-361), two rulings dealing with labour law).

Justice Binnie, speaking for the majority in Little Sisters Book and Art Emporium v. Canada

(Department of Justice), supra, made the following Arts. 71 :

I do not believe that there is some constitutional rule obligating Parliament to

prescribe by means of an Act (as the Appellants contend) rather than a regulations

(as provided for by Parliament in para. 164(1)j)) or even a department directive or

an institutional practice, on how Customs must treat explicit material protected by

the Constitution. Parliament has the right to act, taking for granted, that the texts of

the Act it adopts “shall be applied [...] in a manner in accordance with the

Constitution” by officials.

We should remember that, at the time of the submission of the statement, there was no definition of

“government institution” in S. 1 that refers to regulations. In view of the wording of S. 34, and in

the light of the principles stated in the above rulings, in my view, the power to make regulations, at

the time of the breaches, was an optional rather than a mandatory power.

Guideline No. 8 provides that if an employment offer for a position located in a region designated for

French appears in English, the advertisement must appear in French in a French newspaper. An

employment offer for a position requiring knowledge of English and French must also appear in

French in a French newspaper. Guideline No. 9 provides that if a proposed project, advertised in

English, is to be carried out in a region designated for French, requests to bid and tender calls must

appear in French in a French newspaper. If they provide for geographic or other limitations to the

obligations arising from S. 8, these guidelines contravene ss. 11 (1). Once the advertisements have

been set up, the GNWT has the choice of the means of disseminating them. Once the organizations

listed in S. 8 undertake to publish advertisements in an English newspaper, they must, in my view,

to respect the principle of true equality, also publish them in a French newspaper. If I am incorrect

and that S. 8 does not apply to government advertisements, I consider that these employment

offers and tender calls constitute invitations to communicate and are, as such, subject to ss.(11(1)

of the NWT OLA.

According to the main allegation that the Plaintiffs presented regarding the PGD, that it dilutes the

rights conferred by the NWT OLA. The Plaintiffs allege that, to the extent that the PGD is less

onerous than the NWT OLA and the Charter, it is unconstitutional because it reduces the GNWT’s

linguistic obligations. The Plaintiffs are seeking, inter alia, in s. 59(e) of the amended statement, a

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statement to the effect that the PGD in its entirety violates S. 8, 10, 11 and 14 of the NWT OLA and

S. 16 and 20 of the Charter.

Moreover, the Plaintiffs submit that the NWT did not adopt these directives as a regulation, but

rather as a policy, because regulations would be subject to the approval of Parliament pursuant to

ss. 43.1 of the NWTA. No evidence was presented to me to support such an assertion.

The Territorial Defendants acknowledge that the Assembly and the GNWT are obligated to

communicate with there constituents in the official language of their choice and to proved services

in the official language of their choice. They also acknowledged that the PGD can in no way change

the rights guaranteed by the NWT OLA. In case of conflict between the NWT OLA and the PGD, the

Act will have primacy. Moreover, they submit that it is up to government authorities and not the

Court, to determine what constitutes “significant demand” and what represents the notion of “nature

of the office”.

The parties’ claims must be analysed in light of the breaches identified. To the extent that the PGD

led to a result which constitutes one of the breaches identified by the evidence, we can conclude

that it contravenes the NWT OLA and is part of the problem.

I conclude that some of the breaches highlight problems with the PGD, even taking into account the

implicit discretion found in paragraphs 11(1)a) and b).

We must note that the Territorial Defendants did not submit any specific evidence regarding the

process used to formulate the PGD, and this absence of evidence makes an analysis of its

compliance with the NWT OLA more difficult. The Territorial Defendants submit that Guideline No. 1

and Guideline No. 2 reflect the concepts of “significant demand” and “nature of the office”. The

Policy notes, on p. 4, that French is “mostly spoken in Yellowknife, Iqaluit, and Fort Smith and in

Hay River. In the Northwest Territories, over the years, Francophones have been using English

more and more”. This statement agrees with the designation of regions designated for French

found in Guideline No. 1. That said, in the absence of other information, the interaction between,

on one hand, and these first two guidelines and, on the other hand, the additional requirements

found in the other guidelines make the analysis very difficult. Some conclusions are nonetheless

obvious, which allows me to make the following general observations.

To the extent that the Guidelines limit the right to communications and services in dealing with a

head or central office of a government institution, they contravene ss. (11(1). For example,

Guideline 3 does only provides for a greeting in French when the employee in question speaks

French. Yet, head and central offices are required to provide the means for the public to be able to

communicate in French. This obligation is not limited by the availability of Francophone staff, a

limited demand or the nature of the head or central office. In addition, the obligation to facilitate

communication in French is incumbent on any head or central office, not just those who provide

services to the public.

Insofar as the Guidelines designate regions or establish other criteria regarding “significant

demand”, and that they add an additional requirement related to the “nature” to justify the use of

French, they contravene paragraph 11(1)a). For example, Guideline 2 (designated offices) applies

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to some offices in designated regions and only if they provide services to the public. However, once

the criterion of “significant demand” applied by designating a region for French (Guideline 1), the

offices that are located there are required to facilitate the communication and the provisions of

services in French. Likewise, once the criterion of “nature of the office” is applied by the designation

of offices, those offices are required to adhere to paragraph 11(1)b), regardless of the region where

they are located.

Insofar as the Guidelines limit the obligation to provide the means to avail oneself of the language

rights guaranteed by ss.(11(1) – which includes the “active offer” – they limit the rights guaranteed

by the NWT OLA. For example, Guideline 3 only requires that there be an active offer in French at

the time of greeting if the employee speaks French or if a member of the public speaks French in a

regions designated for French. However, in order to determine if a member of the public speaks

French and wants to use it, he must be greeted in French, since a bilingual person would be likely to

respond in English to an English greeting, according to the evidence in this case. It is the members

of the public who have the right to communicate in French, including those who are able to express

themselves in other languages. Moreover, in the case of a greeting in English, the unilingual French

person will not be able to understand what is being said to him, or to communicate with the

individual at the service point who is speaking to him in English. Therefore, without a greeting in

French, that is, the offer of an actual choice, it is highly likely that the staff member in question will

not know if a member of the public wants to communicate in French. The problem is even more

tenacious in terms of a telephone greeting, since there is no signage or correspondence inviting him

to use French.

To the degree that the Guidelines impose limits on the promulgation of instruments in writing for the

attention of the public, they contravene S. 8. For example, we cannot rely on the conditions in

Guidelines 6, 7, 8 and 9 to restrict the promulgation of instruments in writing in both official

languages. S. 8 is not subject to the criteria found in paragraphs 11(1)a) and b). In addition,

verbal translation, as enunciated by Guideline 6, does not meet the requirement that instruments in

writing be promulgated in both languages pursuant to S. 8.

Regarding this last point, I recognize the difficulty that exists in distinguishing, on one hand,

instruments in writing for the attention of the public (S. 8) and, on the other hand, other documents

used for the provisions of services to the public and communication with the public (S.(11(1)). If the

expression “instruments in writing” includes all the documents produced by government institutions,

the meaning of the term “communication “ would be limited to verbal communications. In my view,

the expressions “instruments in writing” and “promulgated” imply documents that have an official

aspect. In examining only the instruments that are the subject of allegations of breaches in this

case, I concluded, in light of the rules of interpretation applicable to language rights, that this

provision includes certificates that attest to a person’s status, as well as official government

advertisements. It is possible that some forms also have an official aspect. The official nature of a

document could arise, inter alia, from the following factors: its importance; its nature; its recipients;

the purpose of its use; or the legal framework of its promulgation. As I have already indicated,

ss.(11(1) requires that such documents not merely be promulgated but that they must be made

accessible to the public.

Regarding documents that are not covered by s. 8, ss.(11(1) requires that those emanating from the

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head or central office of an institution and which are for the attention of the public be available in

French and that, in accordance with the remedial purpose of the NWT OLA, that they be accessible.

I concluded that the manuals and tests that are the subject of some of the claims in this case are

examples of such communications. In the context of a correspondence with a member of the

public, there should be an active offer of a French version and the reply from a head office to

correspondence in French must be written in French (for example, the correspondence from

numerous departments in reply to complaints by the FFT that were forwarded to them by the NWT

LC). The categorization of documents shall be determined by the objectives of development and

remedies arising from S. 8 and ss.(11(1).

To summarized, the evidence has established that PGD is one of the sources of some of the

breaches identified by the evidence – they are part of the problems associated with the

implementation NWT OLA. However, this conclusion is only partly due to their lack of compliance

with the NWT OLA.

In addition, it is worth noting that the GNWT enacted the PGD in 1997. Some of the breaches

identified by the evidence date back to before 1997. During that time, the NWT OLA made no

provision for a definition of the term “government institution”. The evidence shows that, at least

since the presentation of the first report from the first NWT LC, Ms. Betty Harnum, in 1993, the

GNWT knew that the application of the NWT OLA was encountering some serious problems because

neither the GNWT nor the Assembly had taken a position concerning the definition of the term

“government institution”. In her report tabled in 1994, NWT LC Harnum dealt with this problem

She referred to the criteria that are generally applied in the case of ss. 32(1) of the Charter, by

proposing that those criteria be uses as benchmarks to resolve this issue. The lack of clarification

left the areas to which the NWT OLA should apply to the discretion of officials until 1997, the year

the PGD was adopted. I note, however, during their request for an intervention, some organizations

covered by the PGD contended that they did not necessarily feel that they were bound by the PGD.

The Territorial Defendants state that the PGD is effective; however, they submit that it is not

binding. For her part, the NWT LC , in practical terms, relied on the PGD to respond to complaints

and some of the officials called as witnesses – including NWT LC Tutcho – referred to the PGD to

justify their positions.

Under these conditions, I consider that the failure of the GNWT to take a position during the period

preceding 1997, and the non-binding nature of the PGD, were at the origin of much confusion and

that this confusion existed as much among those entitled to rights as among the government

stakeholders and the NWT LC, leading to an unequal and inadequate implementation of the NWT

OLA.

For all the above reasons, I conclude that this lack of clarity prior to 1997, as well as the PGD itself,

are sources of the problems associated with the implementation of the NWT OLA.

(c) The other sources of the problem

It is obvious from some of the points raised by the Territorial Defendants in defence that they have

an inadequate understanding of the rights and obligations that arise from an official languages

regime. For example, it is possible that the limited request for a manual or a test on the operation

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of a vehicle or that the absence of requests for an apprenticeship program in French, stems from

the fact that the public is not even aware of the existence of those documents or programs.

Nor can we believe that the absence of complaints lodged with a hospital administration, the

Assembly or various departments can justify the breaches in terms of services offered in these

locations. Mr. Bessette’s comments (“I am not the type to cause trouble”) testify to the

reservations of a citizen faced with the Government’s failure to recognize his language rights. The

fact that a Francophone individual or family only goes to the hospital once or twice a year, or to the

licence bureau once every four or five years does not justify the civic application of a pluralist law, to

echo Mr. Landry’s terminology.

As Justice Bastarache states in Beaulac, supra, a regime of official bilingualism is not a regime of

accommodation. I consider, therefore, that it would be contrary to the spirit of the NWT OLA to

implement based on complaints and hit or miss requests for services or documents.

We remember the 1996 Lutra study, the objective of which was to evaluate the impact of the

Canada-NWT Cooperation Agreements reached since the adoption of the NWT OLA, and which

noted that there was a lack of clear priorities and overall planning and that the implementation had

been carried out in the absence, on one hand, of a complete evaluation of the language needs

across the NWT and, on the other hand, of implementation plans for each Agreement. From this

observation, we concluded that the resources ha not been used properly. Seven years later, in

2003, the Special Committee for the Review of the NWT OLA recommended that a complete five-

year implementation plan be developed, with an evaluation framework based on the Federal

Government Treasury Board. In response to this recommendation, the GNWT acknowledged that an

implementation plan and an accountability framework were important tools to ensure the provision

of government services and that the development of such a plan was already under way.

However, for the reasons already covered, I conclude that the multiyear implementation plan for the

NWT OLA, which had been recommended by the Special Committee, never saw the light of day and

that the GNWT continues to use activity reports and action plans prepared for each department and

each organization as a basis for the negotiation of the cooperation agreements.

In addition, the absence of a regular audit process of the services and communications means that

the organizations and the individuals responsible for the implementation of the official language

regime are not in a position to make the needed improvements.

I consider that the infringements identified by the evidence stem largely from the lack of an overall

implementation plan applicable to government institutions, and from the absence of a regular and

well-established monitoring of services. Despite the recommendation of the Special Committee that

the GNWT should adopt an overall implementation plan for the NWT OLA, which only reiterated the

earlier recommendations of Maître Bastarache, the consultants, the NWT LC and of the Franco-

ténoise community, the GNWT still has not adopted one. Planning for language communications

and services is decentralized to each department and each organization. These organisms, despite

the fact shown by the evidence that they have very little training concerning their obligations arising

from the NWT OLA (in light of the experience of the 151 complaints regarding advertisements in

L'Aquilon), are charged with evaluating their own needs, preparing their own activity plans and to

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make their own evaluations of the necessary costs. This situation led, on one hand, to a lack of

coordination of the efforts and, on the other hand, hit and miss results as far as the implementation

of language rights is concerned. Mr. Boutin indicated during his cross-examination, in describing his

Department” “We’re not the police”. However, the Special Committee, after two years of study,

concluded that it is necessary to designate a department responsible for the implementation of the

application of the NWT OLA throughout the GNWT.

I according, based on the evidence, that a lack of financial resources, rather than being a cause of

this hit and miss situation, is the result of the absence of an overall plan that could be used as a

guide for the Territorial and Federal governments for the long-term needs of the Franco-ténoise

community.

The evidence showed that the Federal Government contributed over $40 million over 20 years under

the terms of the cooperation agreements, but in the significant majority of these years, the NWT did

not succeed in spending this contribution intended for services in French. In 1997, the Federal

Government even refused the request by the Premier of the NWT to transfer $100,000 to the

budget for Aboriginal languages from the $1,6 million budget allocated for services in French!

The Plaintiffs clearly noted in their memorandum that “it is up to the GNWT to ask for sufficient

funds to communicate and offer services in French in the NWT”. Mr. Cleveland testified, for the

purposes of the cooperation agreements, the GNWT determines its needs and quantifies them . He

acknowledged that it is reasonable for the Federal Government to presume that only the GNWT can

determine its needs for services. The following observation from the Plaintiffs nicely summarizes the

difficulty: Since the GNWT does not have an overall plan for the implementation of communications

and services in French, it is impossible for them to ask for the monies necessary to respect the Act

[...] several agencies and departments of the GNWT don’t even spend the money allocated for

services in French. A vision, a plan and an overall coordination were missing”.

The GNWT collates the activity plans gathered from each of its departments, which it uses in its

financial negotiations with the Federal Government and descries the amalgamation of individual

plans as an “overall plan”. Such an approach shows an absence of a global vision.

An overview of the conclusions of reports from the consultants, successive NWT Language

Commissioners and of a Special Committee highlights common themes: the need for a complete

plan for the implementation of the NWT OLA that would provide a vision and a framework to guide

the planning of services for all the NWT and to ensure their adequate and continuing funding. Such

a plan would allow the GNWT (i) to identify its long-term objectives; (ii) to establish criteria and

standards for services and programs; (iii) to help departments and agencies to plan their budgets to

ensure that they comply with the identified criteria; and (iv) to gather these cost evaluations in

order to present them in a multiyear action plan, which would have the goal of translating the

implementation plan as specific projects. An overall plan would also allow the GNWT to determine

the bilingual human resources that can be found in the various departments and agencies and to

assign them so that the services meet the goals identified in the overall implementation plan.

Mr. Chagnon testified that the Federal Government never received “the grand plan for the

implementation” that they had been requesting (even in 1989, according to the minutes of a federal

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interdepartmental meeting that referred to the absence of an overall plan – see Plaintiffs Document

No. 1856) to be in a position to forecast the long-term funding needs. He noted that, concerning

the 2005 agreement currently being negotiated, the GNWT has still not indicated the minimum

required to meet its obligations under the terms of the NWT OLA. He noted that funds were

returned in 2001-2002 and in 2002-2003 and that the Federal Government had still not received the

financial reports for the years 2003-2004 and 2004-2005. According to Mr. Chagnon, the Federal

Government’s preference would be to maintain the funding threshold of $1.6 million (per year) until

there is a “framework or plan or document” that indicates the GNWT’s long-term intentions.

In view of this evidence, I judge that a poor understanding of language rights among the people

responsible for the implementation of the NWT OLA, and the absence of an overall plan constitute

other sources of infringements established by the evidence.

(ii) At the federal level

The Plaintiffs contend that the Federal Government abdicated its ultimate responsibilities stemming

from S. 16 to 20 of the Charter concerning the implementation of a regime of bilingualism in the

NWT in 1984 and its application since. The Federal Defendant subscribed to the Territorial

Defendants’ argument to the effect that, by adopting its own Act, the Assembly of the NWT provided

for the same protections and obligations as those that are conferred by the Charter and the OLA of

Canada.

In this case, the infringements established by the evidence are likely to implead the application of S.

16, 18 and 20 of the Charter. But while Parliament is obliged to introduce a regime of official

bilingualism in the NWT, it nonetheless has room for manoeuvring by legislating on the

implementation of its obligations arising from these provisions. The linguistic obligations provided

for by the Charter do not dictate only one specific solution: Charlebois v. Saint John (City),

supra, in s. 15.

I have already concluded that there is no conflict between the wording and the interpretation of the

provisions of the NWT OLA in question, i.e. S. 5, 7, 8 and 11 the wording and the interpretation of

the corresponding provisions of the Charter and of the OLA of Canada. Therefore, even if we

presume that the Charter applies in the NWT, I am of the opinion that it would not be justified to

measure the NWT OLA by comparing it to the requirements of the OLA of Canada, i.e., the Act that

is applicable in the federal context (not Territorial). The legislatives provisions in question are not

the source of the infringements established by the evidence.

Secondly, the Plaintiffs allege that the Federal Government took no steps to ensure that the GNWT

and the Assembly complied with the NWT OLA and S. 16 to 20 of the Charter. More specifically,

they state that the Federal Government did not require the adoption of regulations to

implementation the NWT OLA, nor did it require the GNWT to offer a lever of communications and

services in French equal to its own.

I already addressed the last point by observing that the Federal Government is not required to adopt

a single unique solution regarding the implementation of the linguistic obligations provided for in the

Charter.

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As far as the fact that the Federal Government did not obligate the GNWT to create regulations is

concerned, I note that in the matter Lucas v. Toronto Police Service Board et al. (2001), 54

O.R. (3d) 715 (C. div.), request for approval to appeal denied [2001] S.C.C.A. No. 649, the applicant

contended that the Attorney General of Canada had contributed to the infringements of Charter

rights because he had not abrogated an unconstitutional provision. In rejecting this argument, the

Court declared the following (in s. 7):

The essence of the respondent's claim, as pleaded, is that the appellant is strictly

liable for the breach of the respondent's Charter rights, and, is also liable in

negligence for failing to discharge a duty of care to the respondent. Under both

approaches what constitutes the appellant, Canada, a "contributor" to the Charter

breach and what constitutes the failure of the appellant's duty of care is that s. 159

has been permitted by Canada to remain on the books notwithstanding a declaration

of constitutional invalidity by the Court of Appeal in R. v. M. (C.) (1995), 23 O.R.

(3d) 629, 98 C.C.C. (3d) 481 (C.A.). To rephrase, the essence of the claim of the

respondent is that by failing to repeal s. 159, the appellant is at once a contributor to

the Charter breach and has also failed to discharge a duty of care to the respondent

by providing a colour of right to police officers to enforce s. 159 of the Criminal Code

which has been declared unconstitutional by the Court of Appeal. In our view, there

is No cause of action against Canada either for Charter breach or in negligence

because there was No duty in either case to legislate or to repeal.

As I pointed out earlier in my ruling, the wording of S. 16 to 20 of the Charter and that of the

equivalent provisions of the NWT OLA are very similar. Moreover, the NWT OLA provides for a

flexible mechanism with wording that greatly resembles ss. 24(1) of the Charter regarding the

obtaining of an effective remedy in case of infringement. Parliament ensured that, by adopting ss.

43.1 of the NWTA, that the rights guaranteed by the NWT OLA would not be limited by abrogating

or amending it. Given those circumstances, it is clear that the NWT OLA and ss. 43.1 of the NWTA

constitute legislative responses to the Charter initiative intended to protect and promote both official

languages throughout Canada.

In view of the existence of an entrenched legislative regime in the TNO, I am of the opinion that

Parliament would have the right to act taking for granted that the provisions of the NWT OLA would

be applied by the officials of the GNWT and the other government institution subject to the

Territorial authority in accordance with the Charter, and, f not, that those who are entitled will have

effective recourse against the government responsible for the implementation of its own Act.

The Plaintiffs observed that the Federal Government accepted to amend the NWTA on two occasions

to delay the implementation of French as an official language in the NWT, without even consulting

the Franco-ténoise community. In my view, nothing proves that these amendments were at the

source of the infringements demonstrated in this case.

The Plaintiffs allege moreover, that the Federal Government did not respect its commitment,

pursuant to the 1984 agreement, to pay all the costs related to the implementation of language

rights in the NWT. They contend that the Federal Government radically reduced the funding of

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communications and services in French in the NWT starting in 1994, even though they were aware

of complaints from Franco-ténoise community regarding the shortfalls in government

communications and services in French.

The 1984 agreement is a contract between two entities (the Federal Government and the GNWT)

which, in the event of a breaches is likely to lead to judicial recourse by one or the other of the

contracting parties and not by a third party (the Plaintiffs having not pleaded in their amended

statement a fiduciary relationship or other circumstance leading to a recourse on their part

regarding the agreement). However, the GNWT did not launch any lawsuit against Government of

Canada because of a breach of the 1984 agreement nor did it raise as a possible defence the issue

of simply a lack of funding as such or a lack of funding caused by the actions of the Federal

Government, nor present any application between the defendants in this litigation. It is only during

the trial itself that the Territorial Defendants contended that (i) with one exception, they always

asked for more money than they received, (ii) that the Federal Government “holds the big end of

the stick” and that the amounts allocated are part of the framework of an overall and limited

envelope; (iii) that, in the past ten years, the GNWT has not returned any significant amounts to the

Federal Government, and (iv) that the reductions imposed in the budgets are not a result of the

GNWT’s inability to spend the amounts but rather , they are part of overall cuts throughout the

government apparatus.

I conclude, based on the evidence presented in this matter, that the dearth of funding, after the

reductions by the Federal Government of the funding under the agreement, is the result of the

absence of an overall plan and not the source of the breaches identified by the evidence.

Finally, the Plaintiffs allege that the Federal Government violated his undertaking to promote the

development of the Francophone minority in the NWT, pursuant to Part VII of the OLA of Canada,

and the progress towards the equality of status and use of French and English, as required by ss.

16(3) of the Charter. They would have committed this breach by adopting a passive approach to

the deficient situation that persists in the NWT regarding the implementation of the NWT OLA. For

reasons already invoked, Part VII of the OLA of Canada is not relevant in this case, since Parliament,

using its room for manoeuvring, chose to exclude the GNWT from its scope. As for ss. 16(3), it is in

fact Parliament’s initiative that let to the introduction of the current regime of bilingualism in the

Territories (an entrenched Act, incorporating a remedial provision similar to ss. 24(1) of the Charter

and an agreement for funding in perpetuity).

My opinion is that, given the particular circumstances and my conclusions, that it is not necessary to

settle the issue as to whether the language provisions of the Charter apply to the NWT by examining

the sources of the infringements established by the evidence are cause by breaches at the territorial

level. Their source, according to the evidence before the Court, is not at the federal level.

.

C. The means of defence

The Territorial Defendants raise the issue of the high costs and other demanding priorities (without

having pleaded them in their amended defence). In my view, even if we were to presume that

these facts constitute a defence, they have little to do with the infringements in this case. There is

no evidence establishing that the problems related to the development of an implement plan and

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those arising from the PGD – which I have established as the sources of the infringements – are due

to high costs. Moreover, the as adopted a language act imposing obligations on the Territorial

Defendants and they are required to respect them.

The Territorial Defendants pointed out the existence of a hiring policy favouring Aboriginals, in order

to promote that minority group, a legitimate priority of the GNWT, which has an impact on the

provision of services in French. I am not persuaded, in light of the evidence, that this type of policy

prevents the implementation of linguistic obligations. In particular, I do not share Ms. Elkin’s

opinion that a policy of ensuring the creation of bilingual English/French positions would have a

paralyzing effect on the affirmative action policy.

I am of the opinion that these two policies can co-exist in the context of a public service that has

2,334 positions (in addition to 2,352 positions in boards and organizations), according to the GNWT’

s 2005-2006 Estimates. For example, the use of a centralized information and document service

could reduce the number of front-line positions that would be required to offer effective service in

French. The designation of bilingual positions within departments that have constant interactions

with the public, such as the Department of Health and the Department of Transportation, would not

significantly hinder the availability of a fair number of positions for the Aboriginal population.

The Territorial Defendants also invoke a shortage of staff. Numerous witnesses described the

difficulties that the GNWT faced in trying to attract and to keep qualified, bilingual employees.

However, I consider that the evidence regarding the recruitment strategies reflects, by and large, a

fatalistic approach to this challenge.

Since the obligations provided by the NWT OLA are obligations of result, it is up to the GNWT to

establish (according to the Thibodeau ruling, supra) that they cannot satisfy their quasi-

constitutional obligations for reasons that are beyond their control. They did not succeed in doing

so through the evidence in this case.

Moreover, it is difficult for the GNWT to maintain that it “is doing its best”, in the absence of a

regular, well-established process for auditing the available services.

I add that true equality does not mean absolute equality. As Justice Bastarache emphasized in his

July 1, 2005 speech in Paris, supra, there is not “unique or miraculous” solution to all institutional

problems:

In general, equality requires structures that will reflect the particular needs and

aspirations of the minority community while taking into account the context that

characterizes the individual relations and the relations between groups within the

society.

However, it is up to the Court to order the application of remedies it deems fair and suitable to

address the individual infringements, taking into account the circumstances that let to these

infringements, and in recognizing that the NWT OLA itself provides for some limits to equality.

X.

Suitable and fair remedy

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The terms used in ss. 32(1) of the NWT OLA largely reiterate those in ss. 24(1) of the Charter, by

granting “anyone whose rights have been infringed” the right to apply to ss. 20(1) a court of

competent jurisdiction “ to obtain “a remedy that the court considers appropriate and just in the

circumstances” In the ruling Lavigne v. Canada (Human Resources Development), [1997] 1

F.C. 305 (1^stinst.), confirmed on appeal by [1998] A.C.F. No. 686, Justice Pinard observed the scope

of the powers provided for in ss. 77(4) of the OLA (Can.), a provisions that also echoes the wording

in ss. 24(1) of the Charter. His remarks (in s. 20) are therefore relevant for the purpose of

analyzing ss. 32(1) of the NWT OLA :

Just as ss. 24(1) of the Charter gives the Court broad discretionary powers to grant

remedies for an infringement of the Charter,

paragraph 77(4) of the Act also

grants the Court an equally broad discretionary power for remedies relating to an

infringement of language rights protect by the Act.

In the context of the invalidation of legislative measures by the application of S. 52 of the

Constitutional Act, 1982, the Charter led to a more dynamic interaction, which the Supreme Court

described as a “dialogue” between branches of government: see for example, Vriend v. Alberta,

[1988] 1 S.C.R. 493, s. 137 to 139; Little Sisters Book & Art Emporium v. Canada, supra, s.

268. M. Power and A. Braën, in “The Enforcement of Language Rights” (Mr. Bastarache (ed.),

Language Rights in Canada, supra), on p. 577, place this analogy in the language context, quoting

the words of K. Roach in “Constitutional and Common Law Dialogues Between the Supreme Court

and Canadian Legislatures “, (2001) 80 Can. Bar. Rev. 481, on p. 484 :

The [Supreme] Court's Charter rulings, like its common law decisions and exercises

in statutory interpretation, are best seen as starting points in a dialogue with

legislatures and society. The Court, after listening to aggrieved and often unpopular

litigants, initiates a conversation with the legislatures about important values such as

minority rights, fair process, fundamental freedoms and constitutionalism that may

have been neglected in the legislative process.

In Doucet-Boudreau v. Nova Scotia (Department of Education), [2003] 3 S.C.R. 3, the

majority justices of the Supreme Court of Canada pointed out (in s. 52) that, to decide what remedy

is appropriate and just in a given situation, the judge must exercise his discretionary power based

on his careful perception of the nature of the right and of the infringement at issue, on the facts of

the case and on the application of the relevant legal principles. The majority ruling also

acknowledged (in s. 59) that the judicial approach in dealing with remedies must remain flexible

and responsive to the needs of a given case.

The courts must bear in mind the division of the roles between the legislative, executive and judicial

branches, as was confirmed by the majority in s. 34:

[...] in the context of constitutional remedies, courts must be sensitive to their role as

judicial arbiters and not fashion remedies which usurp the role of the other branches

of governance by taking on tasks to which other persons or bodies are better suited.

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Concern for the limits of the judicial role is interwoven throughout the law. The

development of the doctrines of justiciability, and to a great extent mootness,

standing, and ripeness resulted from concerns about the courts overstepping the

bounds of the judicial function and their role vis-à-vis other branches of government.

The analysis takes these principles into account.

A.

Declaratory orders and affirmative action in language rights

The Plaintiffs are asking the Court, in s. 59 to 61 of their amended statement, to issue declaratory

orders and interlocutory and permanent orders and to grant them other forms of remedy.

In « Les dispositions de la Charte relatives aux langues officielles (s. 16 to 22) » (G.-A. Beaudoin et

E. Ratushny (ed.), Charter canadienne des droits et libertés, 4^eed. (Montréal : Wilson and Lafleur,

2005)), J. Woehrling and A. Tremblay made the following remarks (on p. 1061 and 1062):

The procedures available to the interested parties to ensure the implementation of

language rights necessitate active government intervention starting with declaratory

action. A judicial statement stating that government inaction violates guarantees

rights could, if the conditions were favourable, create sufficient moral or political

pressure so the authorities in question decide to take action [...]

However, if the appropriate response is too long in coming, other corrective

measures will be necessary [...]

On page 1063, the authors also refer to the ruling in Doucet-Boudreau, supra:

In pointing out that the rights guaranteed by s.23 of the Charter can only be

exercised if “ the number justifies it”, the majority emphasized the danger of

assimilation and, consequently, the risk that the reduction of the number of entitled

persons ceases to justify the provision of services, increases with every school year

that goes by without governments meeting the obligations imposed on them by s.

23. If these delay actions are tolerated, governments will eventually be able to

extricate themselves from their obligations in this manner. Such a situation will

sometimes force the courts to order affirmative measures intended to provide a true,

and, therefore, necessarily a diligent protection to language rights. We can point out

that this same reasoning applies to s. 20 of the Charter for cases where the right of

the public to communicate in French or in English with some federal institutions is

subordinated to a “significant demand”, a demand that is also likely to diminish with

the passage of time and the devastation of linguistic assimilation. On a broader

scale, the common purpose of all language rights – the maintenance and the

development of official language communities in Canada – will justify the affirmative

measures necessary to avoid the inaction of governments from depriving these

communities of protection against linguistic assimilation.

In the Mahe ruling, supra, the Supreme Court of Canada pointed out (in s. 95) that it was

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government inaction, and not the legislation, that was hindering the implementation of the

appellants’ guaranteed by s . 23 of the Charter, this observation applying to the litigation.

O. E. Fitzgerald, in Understanding Charter Remedies: A Practitioner's Guide (Scarborough, Ont.:

Carswell, 1994), quoting N. Gillespie in “Charter Remedies: The Structural Injunction”, (1990) 11

Advocates' Quarterly 190, on p. 213, submits that structural reforms, the purpose of which is to

remedy the infringement of collective rights attributable to the behaviour and the systemic

unconstitutional conditions, may prove useful in remedying infringements of s. 23 and 15 of the

Charter in the case of a minority being victimized by the majority, The author points out in the

Reference re Manitoba language rights, [1985] 1 S.C.R. 721, the Supreme Court of Canada

declared all of Manitoba’s laws to be unconstitutional and also issued an order providing, on 120

days notice of application, the holding of a special hearing to establish the applicable process and

schedule for the translation of unilingual Acts and the holding of subsequent hearings to ensure the

successful completion of this process.

Fitzgerald’s observations regarding the purpose of structural reforms (pp. 3-24 and 3-25) are

relevant to this case:

In the structural reform setting [...] the court cannot simply order a once only

remedy for an isolated incident, and then gracefully withdraw from the case. It must

identify the constitutional problem in its broad context and determine the appropriate

path of reform. The court must address the problem of resistance and confront its

own inability to solve the problem alone. There has to be active engagement of the

defendant institution and the court in working out the realization of a constitutional

right through a structural remedy.

The Defendants submit that, if the shortcomings being reproached have been remedied at the time

of the trial and if the complaint is no longer justified, the Court may decide to order no remedy other

than, for example, in the form of costs.

I have already indicated that the sources of the infringements of the Plaintiffs’ rights in this matter

was the persistent refusal by the GNWT to adopt an over all management plan or model, and its

decentralization of the planning to departments and particular organizations which were left free to

adopt their own activity plans, without much training, overall, regarding the provisions of the NWT

OLA. This approach had a direct impact on the allocation and the distribution of federal funds

between departments and even within departments.

For example, at the Fort Smith health centre (located in a zone designated for French by the PGD),

an amount of $60,000 is allocated annually for services in French, which include a bilingual

receptionist position. However, at the Hay River health centre (which is also in a zone designated

for French), the local administration local is only asking for $5,000 to pay for the cost of two

bilingual bonuses and the costs related to a few interpreters. At the hospital in Inuvik (which is not

located in a zone designated for French but where the obligations resulting from the “nature of the

office”, no amount is requested for services in French. Ms. Aubrey, receptionist at the Fort Smith

hospital (position designated bilingual), provides services to the public and receives three or four

calls every day in a community of only 100 to 120 Francophones, according to Mr. Doucette. At the

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Hay River hospital, services are limited to interpretation, which is not useful for bilingual patients. I

agree with the Plaintiffs’ conclusion that it is necessary to draw up a “navigational map” that

provides for standards and practices applicable to all the departments and organizations, along with

the necessary level of funding.

In my view, the PGD cannot be presented as an “overall plan” for the implementation of the

NWT OLA. Mr. Chagnon testified that an overall plan is a work plan that includes forecasts of the

expenditures associated with the plan. Even Mr. Cleveland acknowledged that there does not

exist an overall plan that he could “pull of the shelf”. Almost two years after the adoption of the

PGD, he himself alluded to the preparation of an implementation plan in the July 9, 1999 letter

that he sent to the FFT. Finally, in 2003, the Special Committee indicated on p. 274 of its final

report: “[d]espite the Official Languages Policy and Guidelines, very few departments appear to

be making an active effort to provide official language services other than English and many fall

far short of effective language revitalization practices.” [emphasis mine]. This comment echoes

the conclusions of the Polaroid studies.

Neither could the action plan associated with the federal-territorial funding agreements be

considered to be part of an overall plan, since it is nothing more than a compendium of plans

established by departments or particular organizations. As Mr. Chagnon properly pointed out, the

action plan is only a “sub-component: of an overall implementation plan and the Federal

Government has never received the latter from the GNWT.

In evaluating the 1999 funding agreement, the authors of the Terriplan study (March 2004)

indicated the following:

[...] money itself is not enough to achieve the Agreement’s objective. Unless there is

sustained political will at all levels, without leadership and a collective commitment,

unless there is a coordinated approached focussed on the sharing of responsibilities

among families, communities and the government, the trend towards the loss of

languages will continue.

Chief Justice Dickson made the following remark in s. 96 of the Mahe ruling, supra :

The courts should be loath to interfere and impose what will be necessarily procrustean

standards, unless that discretion is not exercised at all, or is exercised in such a way as to

deny a constitutional right

In my view, the infringements of quasi-constitutional rights established by the evidence require the

opening of a “dialogue: between the judicial and executive branches, the court providing some

elements of the solution while granting the executive the necessary flexibility to develop appropriate

solutions. The latter already has the tools, i.e., reports from consultants and the Special Committee.

The catch-up measures will necessarily involve additional expenditures. The Special Committee

precisely calculated (Table 8.1 of its final report) the costs associated with the plan steps

recommended in the report, which provides an example of the level of funding associated with

effective planning.

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The Plaintiffs are not contracting parties to the agreement concluded in 1984 by the GNWT and the

Federal Government. But each of them has the right to avail themselves of the rights granted by

the NWT OLA, a Territorial Act. It is therefore up to the Territorial Defendants to acquit themselves

of their obligations under the NWT OLA. Even if corrective measures will be more onerous than the

measures taken over the years since 1993, it seems to me that more effective planning by the

GNWT, establishing centralized information and document production services in the case of several

departments and organizations, may allow them to achieve savings in this area over the long-term.

The evidence also revealed the importance of the direct participation of the Francophone community

in the planning process. As the authors of various reports have already pointed out, formal

consultation between the GNWT and the Franco-ténoise community is an essential element of the

solution.

B. The claims against the Territorial Defendants

(i) Orders of a specific nature

The Federal Court of Appeal emphasized in the ruling Forum des maires of the Péninsule

acadienne v. Canada (Canadian Food Inspection Agency), [2004] 4 R.C.F. 276, that the court

must approach the issue of the granting of remedial measures that do not normally fall under the

jurisdiction of the courts with great caution. In that matter, it was an issue of the elimination of

positions and their effect on the provisions of services in French. Justice Décary indicated (in s. 74)

that the evidence of the respondent was “very thin” and was not based on concrete situations and

that the ongoing infringements were “episodic” and lent themselves poorly to judicial sanctions of

the magnitude that the appellant was seeking. In settling the request by the Forum to re-establish

the positions that were eliminated, Justice Decary made the following observations (in s. 78):

[...] There is nothing in the evidence that would warrant such an order. An order of

that nature does not normally pertain to the function or expertise of the courts where

it is not in relation to a remedy under general labour law or the remedies exercised

under Part V of the Official Languages Act (Language of Work) by an employee who

alleges that his or her rights have been infringed. In a context such as this, in which

the evidence demonstrates that the decision to transfer the positions was made in

the context of budget cutbacks and in which the complainant bases its complaint not

only on linguistic concerns but also on economic and social concerns, the Court must

be conscious that a decision on the restoration of positions normally pertains to the

executive branch of the government (see Doucet-Boudreau, supra, at paragraphs

56 and 57 of these reasons). The Court must therefore be extremely prudent and

require detailed evidence of both the actual needs of the public and the financial and

organizational capacity of the federal institution before interfering in its internal

governance..

In contrast, the evidence introduced in this matter was quite complete on many levels. For

example, it is clear that the GNWT and the Federal Government recognized the necessity to make

use of an expert consultant (Maître Bastarache) and a consultant employed by the Federal

Government (Mr. Bujold) to help the GNWT in the implementation of the NWT OLA near the end of

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the 1980s. The Bastarache report explained the need to create bilingual positions in some key

departments. The evidence established that, with out this designation of a position, independent of

the employee concerned, the provisions of services in French is inadequate and is dependent on

chance (for example, se the testimonies of Mr. Tolton, Ms. Baxter and Mr. Ranger concerning the

arrival and departure of bilingual employees at the Department of Justice, the registry office in

Inuvik and the hospital in Hay River). As far as this is concerned, I note that the Special Committee

recommended that the number of positions designated bilingual be increased and that the priority

be given to front-line services in French.

The evidentiary elements produced in this case confirm that the bilingual bonus, which is not linked

to a particular position or function but rather to the employee, does not assure a continuity of

government services in French. The evidence shows that the provision of services in French

depends on the presence of a Francophone employee in the office and this presence is often just the

luck of the draw.

The dialogue between the judicial and executive branches must provide for the elements of an

effective solution that will solve the problem revealed by the evidence. The GNWT could reduce the

chances of a position designated bilingual remaining vacant by hiring a person on contract to full the

functions associated with that position over the short term until it can be filled, as suggested by Ms.

Church (a practice that is already current, in view of the hiring of visiting physicians and nurses in

the NWT).

In the matter Société des acadiens du Nouveau-Brunswick v. Canada, [2005] F.C.A. No.

1587 (1^stinst.), in which the Federal Court dealt with, in s. 29, with the issue of the classification of

positions while responding to questions that had been submitted regarding the application of the

language provisions of the Charter to the RCMP, in New Brunswick:

In the file T-1996-01, the defendant maintained that the classification of positions is

a question of internal governance. I agree. However, this conclusion does not have

the impact given to it by the defendant on the analysis of the first issue since s.

20(2) [of the Charter] deals first and foremost with the provision of services.

However, it is only by “ricochet” that the level of provision of services has an impact

on internal administration and the classification of positions because this level of

provisions is only one of the objective factors that the Commissioner has to take into

account.

Similarly, orders of a specified nature in this matter will no doubt only have a “ricochet” effect on the

Government’s internal administration but this is necessary to ensure that the government apparatus

reacts effectively to the infringements established by the evidence in this case and to ensure the

respect of the Plaintiffs rights over the long-term. As J. Woehrling and A. Tremblay note in "Les

dispositions de la Charte relatives aux langues officielles (s. 16 to 22)”, supra, on p. 1086, the public

has the constitutional right to be served in French or in English; logically, we must then conclude

that the government has a corresponding obligation to use a sufficient number of public servants

able to communicate with the public in both languages and to provide it with bilingual services.

I note that, in litigation concerning language rights, the courts have, on several occasions,

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determined that it was necessary to prescribe specific and detailed measures: see Reference re

language rights in Manitoba (1985), supra, et Lavoie v. Nova Scotia (Attorney General)

(1988), 84 N.S.R. (2d) 387 (1^stinst.). In Lavoie, the court of first instance ordered the province to

development an education program in the language of the linguistic minority and a school

commission for the linguistic majority to designate a distinct educational establishment, to distribute

a brochure describing the educational programs and indicating the location of the establishment, to

organize a registration campaign to determine how many children would be registered in the

programs and to announce the programs in the local media.

In my view, it is necessary to provide for affirmative and concrete remedial measures to ensure an

effective resolution of the infringements established by the evidence in this case.

Some of these measures are intended to remedy problems arising from the PGD. The Plaintiffs have

requested a statement to the effect that the entire PGD contravenes s. 8, 10, 11 and 14 of the NWT

OLA and s. 16 and 20 of the Charter. The Defendants admit that the PGD is not valid if it does not

respect the NWT OLA and maintain that, if the PGD could be considered to be a directive, such a

statement would not be necessary. In my view, it is not necessary to make such a statement, in

view of my comments on the status of the PGD and the fact that the Territorial Defendants have

acknowledged that, in cases of conflict, the NWT OLA must prevail.

However, I deem it necessary to examine the definition of “government institution”, as the Executive

Council itself seems to have recognized in developing a proposed regulation in this area. I am

conscious of my role as judicial referee and the risk of usurping the function of the executive and

legislative branches. However, the evidence has convinced me that it is necessary that the process

already initiated by the Executive Council should lead to the adoption of regulations as soon as

possible. Until such time as a regulatory regime will not have been implementation to define

“government institution” in s. 1, confusion and uncertainty will persist among those who are

entitled, officials, boards and agencies and the NWT LC regarding those government organizations

bound by the NWT OLA. So, under the circumstances in this case, notably the fact that the NWT

OLA provides for the adoption of regulations to define government institutions and that the

Territorial Defendants have already initiated the process by writing a draft regulation on the subject,

I am of the opinion that, by imposing a deadline for this, I am not treading unduly on the functions

of the other branches of government and that this constitutes an appropriate and just remedy.

The FFT pointed out that most of the official languages coordinators for the NWT’s departments and

organizations are not French despite the favoured status granted by the NWT OLA. The expert

witness, Mr. Landry, doubted the efficacy of a unilingual English official being responsible for the

provision of services in French, since a Francophone official would be in a better position to

understand the difficulties that Francophones face. The evidence supports this observation,

Mr. Auger being an excellent example of an official who, because of its experience a member of the

Franco-ténoise community and his long experience within the government, is well placed to take

affirmative and remedial measures in his department. Even though Mr. Auger is himself an assistant

deputy-minister and not the official languages coordinator, granting a certain degree of seniority to

the latter position and favouring bilingual English-French candidates will ensure a better continuation

of government initiatives.

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Regarding the recruitment of bilingual personnel in government institutions, a focused recruitment

effort in the health area could contain the following elements (suggested either by the Plaintiffs or

arising from the evidence: (i) target groups of Francophone nurses recently graduated from bilingual

schools in Canada or Francophone countries; (ii) systematically ensure the participation of

professionals and members of the Francophone community in physician job fairs held in Québec,

New Brunswick and in Ontario; (iii) systematically ensure the regular publication of employment

offers for doctors and nurses in the Francophone media in the four corners of the country and in

Francophone professional journals and Web sites; (iv) provide for and advertise in Canadian

universities bursaries intended for Francophone students so that they can do their internship in the

Far North; (v) grant bursaries to allow French doctors to improve their skills by participating in

professional conferences outside the NWT; and (vi) ensure improved assignment of Francophone

employees within the GNWT. The evidence established that such measures are not applied

systematically.

Moreover research into new technologies and the means of funding medical services could reveal

means of bring Francophone specialists closer to there Francophone patients without either one

having to travel long distances.

These are only some examples of steps that could be taken to address the problem of recruiting

Francophone professionals. It is not of to the Court to dictate to the GNWT the means to take to

meet its obligations of result in the application of the NWT OLA. However, it is clear according to

the evidence that affirmative corrective measures are required.

For all these reasons, I declare that:

1.

2.

government institutions required to communicate in French with the public and to offer

services in French are obligated to provide the public with the means – notably an “active

offer” in French – allowing them to avail themselves of the right provided for in ss. 11(1) of

the NWT OLA;

the Languages Commissioner of the NWT has the obligation to communicate in French with

the public and to offer them services in French under the terms of ss. 20(1) et 11(1) of the

NWT OLA;

3.

4.

the Legislative Assembly has an obligation to print and publish Hansard in French, in

application of s. 7 of the NWT OLA;

employment offers and tender calls issued by the Legislative Assembly or the GNWT or any

judicial, quasi judicial or administrative organization or a Crown Corporation created under

an Act shall be written in English and French, in application of s. 8 of the NWT OLA.

I order that:

1.

the Executive Committee of the GNWT monitor the implementation and the application of the

NWT OLA;

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2.

the Commissioner in Executive Council introduce, within six months, a regulatory system

designed explicitly for the institutions bound by the NWT OLA, as a remedy and for the

purposes of the maintenance and the development of the Francophone community in the

NWT;

3.

4.

within nine months, the Executive Committee of the GNWT or its delegate set standards to

define the expressions “significant demand” and “nature of the office”, appearing in ss.

11(1) of the NWT OLA;

within a year, the Territorial Defendants draw up an overall plan for the implementation of

the communications and the provisions of services provided for by the NWT OLA within

government institutions. This plan must notably:

a) provide for all aspects of the active offer for communications and services for each

head or central office of a government institution and in each office subject to the

requirements of paragraphs 11(1)a) or b);

b) provide for the creation of a consultative or cooperative committee comprised of

representatives of the GNWT and the FFT for the purposes of consultation on the

establishment, implementation, management and promotion of the overall plan;

c) provide for systematic audit/verification {TRANSLATOR’S NOTE: “Vérification” can

be translated as ‘audit’ or ‘verification’ or ‘check’. It is unclear from the text which

measure Justice Moreau has in mind} of the services and communications for each

government institution;

d) provide for the creation of positions designated bilingual within government

institutions, notably at direct service points to the public;

e) provide for a formal, objective evaluation method of the oral and written skills in

French for employees filling positions designated bilingual;

f) favour the designation language coordinators able to speak French, in each government

institution and promote regular communication between the latter and the government

authority responsible for the implementation of language rights;

g) provide for a systematic process to identify, within government institutions, officials who

are able to understand and to speak French, thus making it possible to identify staff able to

assume positions designated bilingual and/or the rile of languages coordinator or to provide

services in French within government institutions;

h) clarify the role of the language coordinators;

i) provide orientation programs for the languages coordinators and for the employees

of government institutions regarding their obligations under the NWT OLA;

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j) undertake a systematic recruitment program for Francophone personnel

(professional and other) (notably in the areas of health, physicians, nurses,

technicians and pharmacists);

k) provide for a recourse to interpreter services as a last resort and, in the area of

health, provide for the evaluation of French interpreters according to objective

standards as weal as mandatory training in medical terminology;

l) undertake a specific plan or strategy applicable to all government institutions to

ensure that government advertisements that are published in Anglophone newspaper

in the NWT are also published in L'Aquilon or in a similar French newspaper;

m) include a detailed estimate of the costs associated with the implementation of the

overall plan, as well as the deadlines forecast for the systematic implementation of

the overall plan, in toto, within a reasonable timeframe.

5. the GNWT retain (or borrow) the services of a consultant to help with the establishment, the

implementation and the management of the initial phases of the overall plan;

6. the Legislative Assembly proceed with the publication of Hansard in French, within six months.

(ii) Damages

Redress granted in the form of compensatory damages for the constitutional infringements has the

primary objective if enshrining guaranteed rights, compensation for prior infringements and the

prevention or the deterrence of future infringements: see M. L. Pilkington, “Damages as a Remedy

for Infringement of the Canadian Charter of Rights and Freedoms”, (1984) 62 Can.Bar.Rev. 517, on

p. 535. The symbolic value of damages, even nominal ones, may serve to have the importance of

the individual rights in question recognized.: K. Roach, Constitutional Remedies in Canada (Aurora:

Canada Law Book Inc, 2005), s. 11.90; K. Cooper-Stephenson, Charter Damages Claims (Toronto:

Carswell, 1990), on p. 239. However, Professor Roach highlighted the risk that an order only

granting symbolic damages trivializing the failure to respect the obligations provided in the Charter

(under s. 11.60). The courts have the duty to balance, according the particular circumstances of

each case, the opposing interests by prescribing appropriate remedial measures likely to achieve the

objectives of the Charter: Damages as a Remedy, on p. 535.

The principle by which the victim of a constitutional infringement must obtain compensation for

losses or damages actually suffered does not seem to apply in the case of constitutional litigation

dealing with a duly adopted law (see M. L. Pilkington, “Monetary Redress for Charter Infringement”,

R. Sharpe (ed.), Charter Litigation (Toronto: Butterworths, 1987), on p. 311). Even if the court

were to declare a law as unconstitutional pursuant to the terms of s. 52 of the Constitution Act,

1982, the courts have generally refused to grant damages under ss. 24(1) of the Charter. In

Mackin v. New Brunswick (Department of Justice), [2002] 1 S.C.R. 405, the majority made

the following remarks (pp. 442 and 443):

According to a general rule of public law, absent conduct that is clearly wrong, in bad

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faith or an abuse of power, the courts will not award damages for the harm suffered

as a result of the mere enactment or application of a law that is subsequently

declared to be unconstitutional (Welbridge Holdings Ltd. v. Greater Winnipeg,

[1971] S.C.R. 957; Central Canada Potash Co. v. Government of

Saskatchewan, [1979] 1 S.C.R. 42) [...]

However, as I stated in Guimond v. Quebec (Attorney General), supra, since the

adoption of the Charter, a plaintiff is no longer restricted to an action in damages based on

the general law of civil liability. In theory, a plaintiff could seek compensatory and punitive

damages by way of “appropriate and just” remedy under ss. 24(1) of the Charter. The

limited immunity given to government is specifically a means of creating a balance between

the protection of constitutional rights and the need for effective government. In other

words, this doctrine makes it possible to determine whether a remedy is appropriate and just

in the circumstances. Consequently, the reasons that inform the general principle of public

law are also relevant in a Charter context. Thus, the government and its representatives are

required to exercise their powers in good faith and to respect the “established and

indisputable” laws that define the constitutional rights of individuals. However, if they act in

good faith and without abusing their power under prevailing law and only subsequently are

their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness

and efficiency of government action would be excessively constrained. Laws must be given

their full force and effect as long as they are not declared invalid. Thus it is only in the event

of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be

awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41

(Ont. Div. Ct.)).

To summarize, in exercising its legislative function and in acting according to the Acts and

regulations duly adopted, the government benefits from limited immunity as long as it is acting in

good faith.

This said, Ken Cooper-Stephenson, in Charter Damages Claims, supra (on p. 122) notes that, in

matters or language rights in particular, damages might be appropriate to compensate individuals

for the frustrations they have endured because of the infringement of their language rights or

because of a lack of consideration for those rights.

In Lavigne v. Canada (Human Resources Development), supra, dealing with the application of

ss. 77(4) of the OLA (Can.) (the equivalent of ss. 4(1) of the Charter), Justice Pinard underlined the

importance of the role of damages in order to ensure respect for language rights (in s. 25):

Finally, the 1988 Official Languages Act is a statute designed to create practical and

effective legal rights and obligations. To accomplish this objective, and to ensure that

the Act is indeed an effective instrument for the protection of the language rights of

Canadians, damages must be included among the realm of remedies available to the

Court under subsection 77(4). The ability of the Court to award damages is, in my

view, essential to the enforcement of guaranteed quasi-constitutional rights..

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Justice Pinard refused to order the payment of damages to compensate the applicant regarding the

loss of wages and benefits because of a lack of causal link. However, the court acknowledged that

the infringement in question had led the applicant to lodge numerous complaints with the

Commissioner of Official Languages for Canada and that his legitimate efforts to protect his

language rights had caused him considerable discomfort and a loss of enjoyment of live. The court

order the payment of $3000 in damages. Justice Pinard denied the application for punitive or

exemplary damages, the applicant not having established that the department in had acted in a

“harsh, vindictive, reprehensible or malicious” manner, citing in s. 28 the Vorvis v. Insurance

Corporation of British Columbia ruling [1989] 1 S.C.R. 1085, on pp. 1107 and 1108.

I consider that the approach adopted by Justice Pinard is instructive regarding the right to apply for

compensatory damages presented by the individuals who were harmed as a result of the breaches

of the NWT OLA.

(iii) The quantification of compensatory damages

The amount of compensatory damages that it is suitable to grant depends on the objective of the

monetary redress in this case: Constitutional Remedies, supra, in s. 11.750. An overview of rulings

in which damages have been granted for mental distress, damage to dignity and self esteem or

frustration in cases of infringements of constitutional rights, indicates that the amounts granted

ranged from $3,000 to $10,000 and that, in some cases, there were essentially symbolic amounts:

• illegal body search: Blouin v. R. (1991), 51 F.T.R. 194 (trial div.); for humiliation, injury to

self-respect, mental distress and injury to professional reputation, damages of $5,000;

• illegal arrest in the presence of spouse: Dulude v. Canada (2000), 264 N.R. 1 (F.C.A.);

for psychological harm, damages of $10,000;

• discriminatory policy regarding the Department of Health’s public assistance program: R. v.

Hutchinson, [2005] B.C.J. No. 2270, 2005 BCSC 1421; the court confirmed the orders by

which the Human Rights Tribunal had granted damages of $8,000 and $4,000 for in harm to

the dignity and self-esteem of the two applicants;

• discriminatory actions against teachers because of their sex: Ft. McMurray Catholic

Board of Education v. Alberta (Human Rights & Citizenship Commission) (2005),

45 Alta. L.R. 323; the Court of Queen’s bench confirmed the order granting damages of

$6,000 to each of the applicants for harm to their dignity and self esteem as a result of the

infringement of the Human Rights, Citizenship & Multiculturalism Act.

In the following rulings, symbolic amounts were granted as compensatory damages:

• infringement of the right to consult an attorney: Crossman v. R. (1984), 12 C.C.C. (3d)

547 (C.F.); damages of $500;

• illegal searches: Chrispen v. Kalinowski (1997), 117 C.C.C. (3d) 176 (Q.B. Sask);

damages of $500 granted to each of the plaintiffs;

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• infringement of the applicant’s rights guaranteed by para. 10b) of the Charter : Lafond v.

Purslow, [2003] B.C.J. No. 144, 2003 BCSC 23; damages of $500 in the absence of

evidence of specific damages;

• discriminatory practices: British Columbia (Superintendent of Motor Vehicles) v.

British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; the Human Rights

Tribunal granted damages of $500 in the absence of evidence of humiliation or suffering.

The Supreme Court of Canada re-established that order without commenting on the amount.

The following rulings deal with compensatory damages for infringement of language rights:

• Lavigne, supra : $3,000 (see above);

• infringement of rights protected by the OLA (Can.) regarding the language of work of a

member of the Armed Forces, causing mental suffering and stress, requiring psychiatric

treatment: Duguay v. Canada, [1999] F.C.A. No. 1548; compensatory damages of $6,000.

Because the applicant had not established a causal link between the infringement of his

language rights and his release from the Armed Forces, no compensation was ordered for

the loss of wages and benefits. The court refused to grant exemplary damages, the

applicant not having established that the behaviour of the respondent was “harsh, vengeful,

reprehensible or malicious”;

•infringement of rights protected by the OLA (Can.) regarding services (in French) of drinks

during a flight on an Air Canada subsidiary line: Re Air Canada, [2004] O.J. No. 4932

(C.S.J.); Justice Rouleau denied the appeal presented by the applicant regarding the

granting – by the adjudicator – of damages of $1,000 (bases on a single, relatively minor

infringement) and the refusal of the adjudicator to grant punitive or exemplary damages.

• infringement of rights protected by the OLA (Can.): Rogers v. Canada (Correction

Services) [2001], 2 F.C. 586 (1^stinst.); insufficient evidence to allow the court to proceed

with an evaluation of damages. The Court ordered a referral for that purpose;

(iv) Applications for compensatory damages

a) Fernand Denault

For the reasons already mentioned, I concluded that Mr. Denault’s right to receive communication or

service in French pursuant to ss. 11(1) of the NWT OLA was infringed when he received the “Hunter

Harvest” questionnaire in English with no active offer of a French version and was unable to

communicate in French with the department in question on November 19, 1999. He indicated that

such breaches had caused harm to his self-respect and his sense of personal identity.

Mr. Landry testified that the application of a pluralist language law that does not respect civic rights

hinders the linguistic vitality of the language minority and harms the self-esteem of the members of

that minority. I also accept the fact that Mr. Denault made the telephone calls in question during

the same period when other plaintiffs presented requests for services, as presented in various

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documents. I conclude that he was not trying to “create” an infringement, since he had returned

the questionnaire, in June, 1999, asking that a French version of the same document be sent to

him, before the campaign in preparation for the legal recourse. I order the Attorney General of the

NWT (AGNWT) to pay Mr. Denault compensatory damages in the amount of $750.

b) Nadia Laquerre

I have concluded that the 10-month delay preceding the issuance of a birth certificate with the

appropriate accents for Ms Laquerre’s daughter’s name, the issuance of a birth certificate in English

and the fact that she was not served in French by the Inuvik office and at the Department of Health

in Yellowknife constitute infringements of Ms. Laquerre’s rights guaranteed by s. 8 et le ss. 11(1) of

the NWT OLA. She had to engage in several actions to obtain the certificate. I have already

concluded that she did not suffer a financial loss because of the delays by the Inuvik office.

However, she testified that these incidents had harmed her personal dignity as a member of the

Francophone minority; that she had felt almost ashamed to have to speak a different language; and

that she had felt a feeling of inferiority “compared to the masses”. Taking into account the delays

as well as the steps she had to take, I order the AGNWT to pay Ms. Laquerre compensatory

damages in the amount of $1,200.

c) Suzanne Houde

I deem that the fact that having to depend on Mr. Légaré, Ms. Houde’s spouse, to interpret in the

emergency room of the hospital, as well as for the translation of consent forms, does not meet the

requirements of the NWT OLA. I also concluded that Ms. Houde had been greeted at the Stanton

Hospital on several occasions in English, that she had been left in a recovery room without an

interpreter and that she had been encouraged to make her own arrangements to obtain the services

of an interpreter for the purposes of a consultation with an orthopaedist. These incidents constitute

infringements of her rights guaranteed under ss. 11(1) of the NWT OLA. The incident in the

recovery room caused her unnecessary stress and suffering. I also retain the fact that this incident

created in her legitimate worries regarding the quality of language services she would receive if she

had to undergo major surgery. In my view, the anxiety, the frustration and the uncertainty that Ms.

Houde experienced when she tried to obtain the services in French offered by Stanton Hospital were

real and were caused by a the inadequacy of the language services offered by the Hospital.

However, there is no evidence to support the fact that these stressful situations had required

therapeutic treatment (such as in the Duguay matter, supra).

I order the AGNWT to pay Ms. Houde compensatory damages of $12,000 for what she

experienced at the Stanton Hospital, taking into account the nature of the breaches in an area as

delicate and personal as health, of their scope, their duration and their obvious effect on Ms.

Houde’s emotional health, as well as the latter’s problems with understanding English. I order the

payment of an additional amount that I am setting at $750 for the cost of her air travel to Québec,

in 2002, for surgery, for which she had to use her Aeroplan points, travel that was caused by the

inadequacy of the language services offered at the hospital.

I conclude that the Inuvik registry office infringed on Ms. Houde’s rights to communicate in French

and to receive services in French, rights guaranteed by ss. 11(1) of the NWT OLA. The experience

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was frustrating for Ms. Houde and inconvenienced her when she had to present her card, on which

her name was misspelled, in Québec. I order the AGNWT to pay her compensatory damages of

$1,200 for this infringement.

I conclude that Ms. Houde was unable to receive services in French or the services of an interpreter

at the bureau of driver’s licences in 1997, and that she thus felt “excluded”. I note that since then,

a front-line position at this bureau has been designated bilingual. Taking the circumstances into

account, I order the AGNWT to pay Ms. Houde symbolic compensatory damages of $500 for this

infringement.

d) Pierre Ranger

I deemed that Mr. Ranger’s rights guaranteed by ss. 11(1) of the NWT OLA were infringed on

November 12, 1999 at the Hay River hospital. However, I did point out that he had had no intention

of exercising his right to an interpreter, other than for the purposes of the litigation and that this

incident was only a source of frustration. In view of the fact that the hospital had affixed signs

offering the services of an interpreter and that the incident relates to health issues, I consider that

symbolic compensatory damages are appropriate and I order the AGNWT to pay M. Ranger the sum

of $500.

I note, based on the evidence, that the Workers’ Compensation Board forms which were an issue in

Mr. Ranger’s case are not posted in French on their Web site. In view of this and my refusal to

satisfy the application for intervention presented by the Workers’ Compensation Board during the

trial, an order for damages against this organization is not indicated.

e) Yvon Dominic Cousineau

I judge that Mr. Cousineau’s rights to be served in French at the Bureau of Transportation to obtain

a computerized printout (which already existed) of the professional driver’s manual were infringed.

However, the evidence did not establish that these infringements had caused Mr. Cousineau

anything other than frustration.

I also judged that Mr. Cousineau’s rights to receive a bilingual apprenticeship certificate and an

active offer in French concerning the subsidized apprenticeship program offered elsewhere in

Canada where infringed. The latter did not seek damages because of the loss of a career as an

electrician and I conclude, based on the evidence, that the incident only caused him frustration.

In view of the impact of the infringements on Mr. Cousineau (frustration) and with some problems

with his testimony (problems I have already discussed), I order the AGNWT to pay $750 to Mr.

Cousineau.

f) The FFT

I concluded that the FFT has the right, as a body corporate, to communicate in French with

government institutions and to receive services in French from them. I also judged that the right of

the DDT to receive a French version of the NWT LC’s annual report, as well as other

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communications from this office in French, had been infringed. In the case of the annual report, the

situation was corrected after 1998.

The FFT lodged a series of complaints with the NWT LC (Ms. Tutcho) and communicated with her in

French. Ms. Tutcho and several departments and organizations responded in English despite their

obligations under ss. 11(1) of the NWT OLA. As Justice Rouleau pointed out in Re Air Canada,

supra, in s. 25, the court set damages that he deemed appropriate and just in light of the of the

circumstances based on well-established legal principles and on the evidence present: “Everything is

based on the loss suffered by the plaintiff”. Since the remedial measures that I have ordered are

intend to redress the inadequate application of the NWT OLA and that the FFT’s actions

(communications with the NWT LC about her annual report and the publication of advertisements in

L'Aquilon), and that of Ms. Laquerre English calling the office of Public Works in Fort Smith, are

completely compatibles with his role and his purpose, I am of the view that it is appropriate to grant

damages for these infringements under the circumstances. The Court may, nonetheless, when

allocating costs, take into account the human and financial resources mobilised for the purposes of

these proceedings: Re Air Canada, supra, in s. 26.

g) The FFT’s other applications for damages

The FFT contends that its efforts to mobilize government offices and to prepare itself for the

purposes of this litigation deprived the Franco-ténoise community of those resources for other

purposes. I would point out that no specific evidence was produced regarding the losses that the

organization would have suffered where this is concerned. It is clear, however, that the FFT

deployed considerable efforts and engaged in very detailed preparations for this litigation. They are

claiming damages in the name of the “3200 French-speakers in the NWT who have their own rights

to communications and services in French infringed upon and denied since 1982”, asking for the

creation of a trust fund for that purpose. They are also asking the Court to grant them an amount

of $1 million per year since the proclamation of the Charter. The Plaintiffs state that, if the only

remedy that were ordered was limited to a statement, it would be to the Government’s benefit to

breach language rights as long as possible.

In response to these observations, the Territorial Defendants pout out that the advocating claims for

political and judicial rights is one of the main functions of the FFT. They contend that a significant

component of the FFT’s application for compensatory damages as prescribed (as far as the years

1982 to 1993 are concerned) and that the other part is based on arguable allegations, with no basis

in the evidence.”

Even if the granting of damages is one measure of redress that the Court can grant in cases of

infringement of language rights, I am not of the view that it would be appropriate, in this case, to

grant the damages that the DDT is seeking as compensatory damages. As I point out, the FFT did

not produce any evidentiary elements as to the losses suffered due to the infringements that the

Territorial Defendants had committed, in their opinion. I note, after an overview of the

jurisprudence regarding the granting of compensatory damages, that the sums granted are much

more conservative.

In addition, the evidence produced in this case does not establish, in my view, a sufficient causal

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link between the alleged infringements and the trust founds being sought. An effective solution to

the established infringements that would respect the separation of functions between the legislative,

executive and judicial branches would be to oblige the GNWT to clearly define and to reify the rights

guaranteed by the NWT OLA.

Finally, I am of the view that the claim for one million dollars a year since the proclamation of the

Charter (i.e., a total of $23 M) should rather be treated as an application for punitive or exemplary

damages. I will therefore deal with this claim in the concerning punitive damages, hereunder.

h) L’Aquilon

L'Aquilon claimed damages totalling $1,161,761, an amount that corresponds, according to their

calculations, to the loss of income that the weekly had incurred from 1986 to 2005 as a result of the

breaches of the GNWT’s obligation to publish government advertisements in French and Anglophone

newspapers. L'Aquilon has become an effective resource for the dissemination of government

advertisements. Moreover, according to the evidence, L'Aquilon has only been complaining formally

since 1993 about the problem of the publication of GNWT advertisements. In view of the

circumstances, I consider that L'Aquilon’s application for damages must be limited to the years 1993

to 2005. L'Aquilon is also claiming damages of $50,000 for “loss of reputation” since Francophone

business people could not depend on that newspaper to obtain information on all the GNWT’s

projects. The Defendants content that L’Aquilon cannot claim economic losses due to infringements

of a constitutional nature.

In my view, to echo Justice Décary in Forum des maires, the Plaintiffs’ evidence in this area is

“very thin”. Mr. Bessette’s general comments as to the reaction of the schools when the “youth”

page had been eliminated during a particular, unspecified period, seem rather theoretical. In

addition, no specific evidence was presented that subscriptions had been cancelled. I consider

therefore, for these reasons, that no harm to their reputation was established by the evidence.

In addition, L’Aquilon did not maintain that there was a contractual or other relationship with the

GNWT that would have obligated the GNWT to publish government advertisements in this

newspaper. Furthermore, it their application for damages for loss of income, L'Aquilon is not

attempting to assert their right, as a member of the public, to use the language of their choice in

direct communications with a government organization, nor to oblige the government to provide

services to them in the language of their choice.

As far as government advertisements intended for the public annual report concerned, it seems to

me that the purpose of s. 8 of the NWT OLA, in the context of the objectives of this act to preserve

and maintain the official language community, is to ensure the members of the Franco-ténoise have

true equality in terms of access to announcements of contracts and employment offer in the public

sector. It is only indirectly that a Francophone newspaper benefits financially from the publication of

these advertisements. This was not the objective of the lawmakers when they adopted s. 8; rather,

it is one of the effects. Similarly, the side-effect of my order dealing with government tender calls

and employment offers will no doubt benefit L'Aquilon, which is the only French weekly in the NWT,

but that is not its purpose. For this reason, I consider that the application for damages for economic

losses presented by L'Aquilon pursuant to the NWT OLA is groundless. I would also remark that it is

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the FFT that submitted, in February 1994, a complaint and, subsequently (between November 1998

and February 1999), a total of 151 complaints to the NWT LC because of the non-publication of fv

advertisements in L'Aquilon, as the advocate for the Franco-ténoise community.

Finally, I note that, in their application for damages in their amended statement, the Plaintiffs did

not invoke fiduciary principles or principles of restitution that would have imposed on the GNWT the

obligation to act to the benefit of L'Aquilon.

In view of my own conclusions, it is not necessary for the purposes of this litigation, to settle the

general question of determining whether bodies corporate cam claim damages for economic losses

as a result of infringements of a constitutional nature.

(v) Punitive or exemplary damages

The court must establish a distinction between compensatory damages and punitive damages; since

their purposes are different: L. Klar et al., Remedies in Tort, ed., looseleaf (Toronto: Carswell, 1987)

vol. 4, on p. 27-84.1, No. 10:

An award of punitive damages is based on the defendant’s conduct rather than the

plaintiff’s loss.

These damages are awarded to:

i)

punish the wrongdoer;

ii)

iii)

deter the torfeasor or others from committing a similar act; or

prevent the wrongdoer from acquiring an undue profit from his unlawful act.

For a plaintiff to have a right to punitive or exemplary damages, the evidence must establish that

the defendant has adopted an insulting, abusive, contemptuous, malicious or oppressive behaviour

intended to intensify the mental anguish of the plaintiff. As far as this is concerned, the court must

examine all the plaintiff’s behaviour, up until the end of the trial: Hill v. Church of Scientology of

Toronto, [1995] 2 S.C.R. 1130, in s. 188 to 190. The Supreme Court echoed these comments I the

context of litigation dealing with the exercise, by the State, of its powers, emphasizing that in case

of Mackin v. New Brunswick (Department of Finance), supra, in s. 79, that it is only in the

case of “conduct that is clearly wrong, bad faith or an abuse of power that damages should be

granted”.

The Plaintiffs state, in s. 48 of their amended statement, that the “omissions or the deliberate

policy” of the GNWT regarding the implementation of the NWT OLA, the adoption of the PGD, which

has the effect of restricting the obligations provided for in this Act, the particular allegations of the

individual plaintiff and the status of the requests for funding presented to the Federal Government

under the terms of the 1984 agreement demonstrate a lack of good faith by the g. The NWT LC is

also a subject of an allegation of lack of good faith, in s. 58. The Plaintiffs claim, in s. 61(e),

general, special and punitive or exemplary damages because of the “flagrant and continuous

violation” since 1982, by the Territorial Defendants, of their language obligations and with the right

of the public to communicate in French in the framework of the activities of the Legislative Assembly

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and the GNWT.

The Plaintiffs submit that the Territorial Defendants have always know what their obligations were;

it was they who commissioned the Bastarache Report, and who analyzed a variety of consultants’

report ranging from the New Economy study to the Lutra report, plus that of the Special Committee,

reports that recommended to them to implementation an overall plan. The evidence indicates that

the Federal Government also asked for such a plan for the purposes of the agreement. The

Territorial Defendants demonstrated that they were perfectly capable of carrying out government

planning (see for example, FFT doc. No. 220). According to the Plaintiffs, when dealing with a

small vulnerable community, in the process of being assimilated, the GNWT’s obligations are all the

greater. However, according to the Plaintiffs, the GNWT carried out its activities with no overall plan

for more than 20 years, which demonstrates a lack of good faith.

For their part, the Territorial Defendants state that they pursued the implementation of the NWT

OLA in good faith and in a responsible, reasonable and assiduously, despite the challenges posed by

governance in the NWT and despite the administrative complexities and the delays associated with

the obtaining of funds for the purposes of the cooperation agreements. They point out that they

continue to study new measures (proposed regulation, single-window project). They contend that,

during the trial, no evidence was produced showing that they acted in bad faith and dishonestly in

the exercise of their responsibilities in the implementation of the NWT OLA.

The Plaintiffs presented the following evidentiary elements in support of their claim for punitive

damages against the Territorial Defendants:

• The concept of a single-window, an information and document centre, which is different from a

referral centre, the creation of which had been recommended in the Bastarache report, in 1987, and

supported by the FFT in its document entitled “Aspirations”, resulting from the 1999 forum, and

again recommended by the Special Committee in 2003 and afterward was the subject of a study

commissioned by the g. I note that, almost 20 years after the introduction of this concept in the

NWT, it is still under study.

• The GNWT set up a 1-800 information line for Francophone (one of the recommendations of the

Perreault report) in the early 1990s, an initiative supported by the FFT, to whom the GNWT

entrusted the management for 14 months. The FFT reduced the expenditures associated with the

project from $13,000 and replaced the voice mail by a human voice. I accept Mr. Lamoureux’s

testimony (corroborated by Mr. Galipeau) to the effect that, when the GNWT cancelled this service

in 1995, they indicated to the FFT that they were going to replace it with a bilingual Web site. Ten

years later, the Franco-ténois are still waiting for the Web site to become totally bilingual (some

pages are displayed in French). Under cross-examination, Mr. Lamoureux acknowledged that the 1-

800 service was underused by Francophones living in the NWT (only 3% of the calls) despite the

promotional campaign launched by the FFT. The New Economy and Lutra studies indicated that this

service was ineffective because it was merely a referral service, which is precisely what Maitre

Bastarache had recommended to the GNWT to avoid, in his report.

• From 1989 to 1997, no government policy was adopted to guide the Official Languages Divisions

English dealing with documents being translated in French. Moreover, the FFT deplored the absence

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of regulations – the introduction of which the NWT LC (Ms. Harnum) had requested in 1993 – that

would have made it possible to identify the government organizations that were bound by the NWT

OLA. It was only four years later, in 1997, that the GNWT adopted the PGD. Mr. Boutin remarked

that the GNWT sent to the FFT, on June 30, 2005, for the purpose of consultation, proposed

regulations that included a longer list of organizations covered by the definition of government

institution than those mentioned in the PGD. However, as with the single-window project, no

deadline was set for the proposed regulations. Mr. Cleveland also asked Mr. Galipeau to continue to

amend the PGD, but no evidence was presented about the progress achieved on this project.

• The GNWT changed its administrative structure in order to abolish the Official Languages Unit

within the Executive. According to Mr. Galipeau, the role of the DECE, which has been managing

the implementation of the NWT OLA since 1997, is to formulate recommendations on approaches

that should be changed, but it cannot force another department to take any measures, nor to carry

out an audit of the services offered by other departments or their compliance with the NWT OLA.

Even though, since April 2005, the Director of the Official Languages Division is directly accountable

to the Deputy-Minister, the evidence does not indicate in any way that this more direct connection

with the Deputy-Minister will make it possible to resolve the problem of the responsibilities of

government institutions.

• The GNWT developed a PGD that does not respect all points of the NWT OLA. The evidence has

in fact made it possible to identify a certain number of provisions of the PGD that contravene the

NWT OLA. However, the evidence did not establish that the GNWT had shown bad faith in

establishing the PGD.

• As far as the 151 complaints lodged with the NWT LC about breaches regarding the publication of

advertisements in French in 'Aquilon in 1998 and 1999, Mr. Lamoureux testified that the fact that

the GNWT did not ensure a close follow-up on the publication of advertisements is proof of its bad

faith. A DECE directive to Inkit (and its successor) to ensure that any advertisement published in

English newspapers must also appear in L'Aquilon – a solution that was adopted by the Department

of Wildlife – would have solved this problem once and for all.

• Mr. Lamoureux pointed out, in a letter dated March 8, 1999 sent to the FFT, following-up on

complaints that the former had received about advertisements, Mr. Cleveland indicated that any

problem relating to the application of the PGD should be referred to the competent Deputy-Minister

or, in the case of a public agency, to the Director General, Mr. Lamoureux described that letter as

an attempt by Mr. Cleveland to strangle the FFT’s complaints by having them circulate “through the

labyrinths” of the departments, where many officials do not know their obligations under the NWT

OLA and the PGD. I am not of the view that this letter, as such, is proof of abusive, contemptuous

or malicious behaviour by Mr. Cleveland, in light of his explanations during the trial.

• Mr. Lamoureux testified that the GNWT had interrupted some preparations for the 1999 forum,

notably the collection, by means of a questionnaire, of information from each department regarding

services in French. According to Mr. Lamoureux, Mr. Galipeau had ordered departments not to reply

to this questionnaire, and for official language coordinators not to attend the forum. The FFT

referred to the experience of the NWT LC (Ms. Harnum), who had testified that the GNWT had

advised her to communicate directly with deputy-ministers rather than to speak directly to the

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employee of government organizations.

For their part, the Territorial Defendants pointed out that the GNWT had granted $50,000 in funding

(from federal funds provided under the agreement) for the forum’s activities, as evidence of its good

faith. While admitting that he had agreed with Mr. Lamoureux to distribute the questionnaires in

question to all departments, Mr. Galipeau explained that, when he learned of the forum’s purpose –

it had been decided to establish the basis for legal recourse rather than engage in discussion - Mr.

Cleveland had stated that, henceforth, the GNWT would speak with one voice. Mr. Galipeau

compiled the replies to the questionnaire filled in by the departments in order to prepare the speech

that he was going to give during the forum. I note, however, that the replies to the questionnaire

were not communicated to the Plaintiffs, nor presented in evidence by the Defendants.

For his part, Mr. Cleveland denied the FFT’s allegation that the GNWT wanted to hide the breaches

in the provision of services in French; it was, according to him, a delicate period, and that the

government merely wanted to convey a coherent message. As far as concerns the invitation to the

coordinators to attend the forum, Mr. Galipeau stated that, during a meeting held with the

coordinators, he had invited them but has also asked them not to participate in the deliberations,

since the GNWT wanted to speak with one voice regarding the language issues that would be

discussed there. I accept that, during a meeting with the coordinators held after the forum, Mr.

Galipeau had encouraged them to meet the representatives of the FFT individually to discuss

improving services within their departments. Mr. Cleveland also denied the allegation that

government bodies had launched a “boycott” of the forum; rather, the Government had chosen to

delegate a spokesperson, Mr. Galipeau, this type of government approach, according to him, not

being limited to language issues.

It is clear that, by the spring of 1999, frustration was high within the FFT, and relations with the

government were strained, as, in fact Ms. Gordon pointed out in her May 27, 1999 letter that she

sent to Mr. Balan, co-chair of the cooperation agreements. I accept the testimony of

Messrs. Cleveland and Galipeau that they suspected that the form was taking on the aspect of a

step in preparation for a lawsuit. It is therefore not surprising that the GNWT reacted by deciding to

speak with a single voice. Under these circumstances, I cannot conclude that the actions of the

GNWT - restricting the number of officials who would complete the questionnaire and limiting the

participation of the coordinators in the forum – were part of an abusive, contemptuous or malicious

behaviour. However, the non-disclosure by the Territorial Defendants, of the replies to the

questionnaires compiled by Mr. Galipeau for the purposes of this litigation was unjustified; they

could have acted in this manner only if the Court had granted them an order granting them

immunity, which is not the case. However, the Territorial Defendants did not produce any evidence

to that effect.

• After the forum, Mr. Cleveland rejected the FFT’s request to create a cooperation committee. In

his July 9, 1999 letter addressed to the FFT, following-up on the recommendations formulated

during the forum, Mr. Cleveland indicated that the GNWT was working on an implementation plan

for the provision of services in French. He was seeking the cooperation of the FFT, but not as an

official cooperation committee. Mr. Cleveland testified that the government did not like the idea of a

cooperation committee, deeming such a committee to be too restrictive. According to him, this

letter indicated that the Department was prepared to cooperate. For his part, Mr. Légaré, who at

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the time was president of the FFT, affirmed that the letter contained nothing concrete or any clear

commitment to solving the problem. He did, however, acknowledged that the DECE was inviting the

FFT to pursue the dialogue, that the two invitations Ms. Gordon had made to the FFT by means of

letters in April and May 1999 attested to the willingness of the government to establish a dialogue

after the forum, and that the representatives of the department had continued to meet with the FFT

in the spring of 1999. Mr. Lamoureux acknowledged, during the examination for discovery, that the

forum had made it possible to learn that the GNWT was open to the idea of improving services in

French. I can not conclude that Mr. Cleveland’s refusal to establish a cooperation committee was,

ipso facto, an abusive, contemptuous, or malicious behaviour.

• The Special Committee for the Review of the NWT OLA asked all departments, organizations and

boards covered by the PGD to reply to a questionnaire about the measures they have taken

pursuant to the NWT OLA. This step was to be followed by interviews with the responsible staff in

those organizations. However, the Deputy-Minister of DECE sent a memorandum in March 2002 to

all deputy-ministers, the Clerk of the Legislative Assembly and to the presidents of government

organizations indicating that only the deputy-ministers were to be interviewed and that the Special

Committee had accepted the DECE’s offer to distribute the questionnaires and compile the

responses themselves. According to the Plaintiffs, this was an indication of the GNWT’s intention to

centralize and control the information about the status of the implementation of the NWT OLA.

While acknowledging the constraints that such an approach imposed, Mr. Cleveland explained that

this practice was the GNWT’s usual overall approach in dealing with legislative committees. I would

point out that the Plaintiffs had already presented their lawsuit when the Special Committee had

started its work. It is therefore not surprising that the government wanted to adopt a uniform

approach regarding the status of the implementation of the NWT OLA, which is the essential

element of this litigation. I cannot conclude, under these circumstances, that these actions attest to

abusive, contemptuous or malicious behaviour.

• The FFT criticized the composition of the Special Committee (comprised of Members of the

Legislative Assembly), that it was a “political” committee that included no experts or any member of

the Franco-ténoise community. However, s. 29 of the NWT OLA provides that the review of the Act

shall be carried out by the Legislative Assembly or by one of its committees. I cannot conclude that

the composition of the Special Committee attests to abusive, contemptuous or malicious behaviour

on the part of the Assembly. Even though the FFT criticized the approach adopted by the Special

Committee, Mr. Lamoureux considered that the final report was “more substantial: and that the

research that they analyzed was more “substantial”. I am of the view that the Special Committee

carried out serious work and that its final report proposes significant elements of a solution to

resolve the problems with the implementation of the NWT OLA.

• The Plaintiffs allege that the GNWT neglected to present requests to the Federal Government for

funding – or deliberately decided not to – to support the actual costs associated with the

implementation of NWT OLA. In fact, in most of the years that followed the conclusion of the 1984

agreement, the GNWT returned monies intended for the provisions of services in French. I accept

the fact that, over the years, the amounts being returned, diminished. On the other hand, it is

impossible to evaluate the funds lapsed since 2003 or actual future needs since the GNWT has not

remitted to the Federal Government it s financial reports for these years.

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During Mr. Chagnon’s cross-examination carried out by the solicitor for the Territorial Defendants,

Mr. Chagnon answered in the affirmative, but without elaborating, to a series of questions implying,

as far as the negotiation of the cooperation agreements, that the GNWT always demonstrated the

desire to meet its obligations, willingly and with a real desire to offer more services in French, and

that the officials of the GNWT had the interests of the Franco-ténois at heart. During the re-

examination of Mr. Chagnon carried out by the solicitor for the Plaintiffs, Mr. Chagnon admitted that,

in replying to a series of general questions, he had not taken into account Ms. Gordon’s remarks in

the May 27, 1999 letter to Mr. Balan regarding the concerns of the Franco-ténoise community or the

Polaroid 1 study, or the lawsuit presented to the Federal Court in January 2000. Although Mr.

Chagnon reviewed his predecessors’ files concerning the Federal Government, I would point out that

he did not take part in the negotiations of the cooperation agreements prior to 1997, or directly prior

to 1999-2000 and 2000-2001. In view of these circumstances, I do not believe that his responses to

the general questions that were posed to him reinforce the GNWT’s position in any significant way.

However, I note that the Terriplan study concluded that the 1999 five-year cooperation agreement

plan was managed in a “reasonably effective, efficient, flexible and attentive” manner, contingent on

the improvements to be made regarding the funding and the need to develop clearer directives

regarding the reallocation of funds and to adopt a more rigorous accountability process. Moreover,

Mr. Chagnon implied that the return to the Federal Government, almost every year, of funds

provided under the cooperation agreements was essentially because of the insufficiency of the

resources allocated for the imp and management, a problem that he described as “common” in the

other provinces and territories.

• The FFT contend that the Polaroid studies describe the current situation: insufficient provision of

services in French, which often depend of the presence of a Francophone employee whose language

is not an essential condition for the position. This evidentiary element shows that the Territorial

Defendants adopted an unsatisfactory approach and have demonstrated reticence, but I can not

conclude that they also demonstrated abusive, contemptuous or malicious behaviour to the point of

justifying that the Court order the payment of exemplary damages.

• The FFT contend that certain responses to complaints regarding the advertisements not published

in French in L'Aquilon demonstrate the departments and organizations concerned have a poor

understanding of the obligations incumbent on them under the terms of the NWT OLA. Some

departments and organizations presented, in their responses, problems of costs or fiscal

responsibility despite the existence of the 1984 agreement. I cannot conclude that the ignorance or

the misunderstanding of the NWT OLA and the Agreement attest to a generally abusive,

contemptuous or malicious behaviour by the Territorial Defendants.

• the Plaintiffs allege that the NWT LC is “part of the problem” since she does not ensure an active

offer of services in French at her office and that NWT LC Tutcho demonstrated a lack of good faith

in reply to the FFT’s letters and complaints in English and by neglecting to prepare her own study

and her own report regarding each of these complaints. I am of the view that the NWT LC had the

obligation, under the terms of s. 21, to respond systematically to all the complaints that had been

lodged with her; by replying to the complaints in English when she had access to a government

translation service, she demonstrated a lack of respect for the situation of the Franco-ténois

complainants, in light of her role as prescribed in sis ss. 20(1) of the NWT OLA. However, I cannot

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conclude that her actions are evidence of abusive, contemptuous or malicious behaviour to the point

of justifying an order for her to pay exemplary damages.

• The Plaintiffs deplore that fact that no overall implementation plan was developed despite the

recommendations to that effect presented by the consultants, the NWT LC and the Special

Committee. While the GNWT has demonstrated a persistent refusal to do this, I cannot conclude

that its behaviour was intentionally abusive, contemptuous or malicious in all these circumstances,

given the observations made by consultants, in various studies over the years, regarding some

progress achieved by the GNWT in the implementation of the NWT OLA.

• The Plaintiffs point out that several deadlines set by the Court were not respected, that certain key

documents were only conveyed during the trial, that the GNWT tried on several occasions to delay

the trial and that they took issue with witnesses during cross-examination in the trial. I am not of

the view that the preparation of an aggressive defence for this trial constitutes maliciousness. Some

of the deadlines were not met because the Territorial Defendants had difficulty in gathering some

evidentiary elements and in developing arguments for the defence during the summertime. While I

did reproach, in my reasons , the Territorial Defendants for having failed to communicate certain

evidentiary elements, such as the questionnaires intended for the forum that were recovered by Mr.

Galipeau, I do not believe that they were demonstrating abusive, contemptuous or malicious

behaviour. These issues and the issues of delays will be dealt with in the section dealing with the

allocation of costs. The cross-examination of some witnesses was rigorous and the Court did

intervene, when required, during the hearing, when questions considered to be inappropriate were

asked.

For their part, the Territorial Defendants submit that GNWT demonstrated good faith in proceeding

with the translation of a large number of forms, leaflets, etc. and in creating front-line bilingual

positions at the Fort Smith health centre and the licence office in Yellowknife. Mr. Cleveland pointed

out that the March 17, 2005 letter written by the Honourable Charles Dent, DECE and addressed to

the FFT provided a report on the efforts at cooperation with the Franco-ténoise community made by

the GNWT, i.e., the establishment of a Francophone Divisional School Board, the support given to

the FFT’s activities, the unanimous adoption of the Special Committee’s recommendations related to

the amendment of the NWT OLA, the development of proposed regulations for government

institutions, the consultations on the concept of the single-window and the creation of the Official

Languages Board. However, he did point out that the GNWT’s human and financial resources were

not unlimited. He proposed the suspension of the proceedings and the appointment of competent

person to prepare a report. I note that, despite the litigation, the FFT agreed to participate in the

activities of the Official Languages Board, which was created as a result of the Special Committee’s

recommendations.

I am of the view that all the evidence regarding the actions and omissions of the Territorial

Defendants concerning the implementation of the NWT OLA and the defence presented in this case

does not establish that the Territorial Defendants acted in an abusive, contemptuous or malicious

behaviour that would justify the granting of punitive or exemplary damages.

However, neither can I excuse the GNWT’s inaction after consultants, the NWT LC and the Special

Committee had formulated numerous and specific recommendations regarding the need to ensure

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overall, centralized planning and the demands of the Federal Government in this area. It is clear

that problems persist in the absence of such planning.

C. the claims against the AGC

The Plaintiffs asked the Court to render an interlocutory order and a permanent order obligating the

Government of Canada to take any necessary measures to ensure that its delegate, the GNWT,

respects language rights. Even if we suppose that the Plaintiffs’ legal arguments concerning the

ultimate responsibility of the Federal Government are valid, the orders already rendered against the

Territorial Defendants who have the responsibility for ensuring the implementation of their own

legislative language regime. Since the evidence indicates that he alleged breaches can be

addressed effectively and completely by ss. 32(1) of the NWT OLA, it is not necessary, for the

purposes of this litigation, to settle the issue as to whether s. 16 to 20 of the Charter apply in the

NWT.

The Plaintiffs also submit, in s. 22 of their amended statement, that “the omissions or the deliberate

policy” of the Government of Canada demonstrate a lack of good on their part, for which they are

claiming punitive or exemplary damages.

In a previous section, I have already dealt with the sources of the proven breaches, of several

allegations made against the Federal Defendant. It is appropriate tot add some comments in light of

the evidence presented in this matter.

Even prior to 1984, the Federal Government had granted the NWT, pursuant to s. 16 of the NWTA,

certain powers in categories of activities similar to those found in s. 92 of the Constitutional Act,

1867. In the Canadian federation, language is not the subject of a distinctive legislative jurisdiction.

In Devine v. Québec, [1988] 2 S.C.R. 790 (in s. 14) the Supreme Court echoed the following

remarks by Prof. Hogg in Constitutional Law of Canada, loose-leaf ed (Scarborough: Carswell,

1997), on p.806 :

[...] for constitutional purposes, language is accessory to the purpose for which it is

used, and an act dealing with language is, for constitutional purposes, an act

concerning the institutions or the activities to which it applies.

I have already judged that the Federal Government has a certain freedom of action in the choice of

means to be used for the purpose of the introduction of a language regime. The evidence indicates

that the application of s. 16 to 20 of the Charter to the NWT had raised a certain degree of

uncertainty when Bill C-26 was tabled (see the text of the speech: AGC doc. No. 1724), and the

court of first instance had, in the St. Jean matter, rejected the constitutional argument that an

order emanating from the Yukon had to be written in both of Canada’s official languages. The

adoption of the NWT OLA and its entrenchment under the terms of ss. 43.1 of the NWTA allowed

the Federal Government to see to the introduction of a regime of official bilingual in the NWT, and

for the territorial government to confer official status of several aboriginal languages and to ensure

that they had a source of funding (funding provided for in s. 3 and 4 of the 1984 agreement).

In view of all these circumstances, I cannot conclude that the legislative and political solution

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advocated by the Federal Government and the GNWT in order to introduce an official language

regime in the NWT (an entrenched Act, incorporating a provision for redress similar to that of ss.

24(1) of the Charter, and a funding agreement in perpetuity) demonstrate a lack of good faith on

the part of the Federal Government, deserving of an order for punitive damages.

As far as the action or inaction of the Federal Government regarding the introduction of this

language regime, the evidence is thin regarding the negotiations of the cooperation agreements and

the pressures that the Federal Government ostensibly exercised on the GNWT; all the Defendants

adopted the position that the contractual relationship between them was not at cause in this matter.

I consider, in light of the evidentiary elements produced, that the absence of an overall plan for the

implementation that would have specified the expenditures necessary for carrying it out and that the

Territorial Government’s management problems (in view of the repetitive situation of lapsing funds)

led to a reduction of federal funding. The Federal Defendant submits that, given that the funds

remitted were returned to the Federal Government year after year, Heritage Canada could

legitimately conclude that the amounts allocated made it possible to meet the GNWT’s needs. The

evidence reveals that Heritage Canada was aware of some of the Plaintiffs complaints. The Federal

Defendant affirms, however, that in the framework of the policy of devolution, it is not up to the

federal representatives to doubt the effectiveness of the methods used by the GNWT to implement

its own law. According to the Federal Defendant: “[r]esponsible and autonomous government, the

Territories must assume the consequences of their errors of evaluation, if there are any". I could

not conclude, based on the evidence produced in this case, that the Federal Defendant engaged in

an abusive, contemptuous or malicious behaviour regarding the introduction of the official languages

regime in the NWT.

As to the issue of the AGC’s behaviour during this trial and the problems in the communication of

the evidence, the Plaintiffs did not establish that the AGC had, as far as this area is concerned,

adapted an abusive, contemptuous or malicious behaviour that would justify my ordering them to

pay punitive damages.

In view of the evidence presented regarding this issue, I cannot conclude, even were I to suppose

that the Charter applies in this matter, that the Federal Defendant acted in bad faith.

D. The defence of prescription

In view of my conclusions regarding the FFT and L'Aquilon’s claims, and the fact that all the

breaches committed against the other plaintiffs took place after 1994, it is not necessary to raise the

issue of prescription invoked by the defendants in this matter.

E. Costs

The Plaintiffs are claiming, in s. 61(g) of their amended statement, costs and expenses between

solicitor and client. The allocation of costs may, in itself, constitutes a redress that the Court

considers appropriate and just under the terms of ss. 24(1) of the Charter : M. Power and A. Braën,

“Les recours en matière de droits linguistiques”, in Bastarache, supra, on p. 591; Marchand v.

Simcoe (1986), 12 C.P.C. (2d) 140 (C.S.O.), in s. 9 and 10.

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In Arsenault-Cameron, supra, the Supreme Court of Canada reinstated the order regarding

solicitor-client costs by the judge of first instance. In Doucet-Boudreau, supra, the Supreme

Court of Canada granted costs on a solicitor-client bases for all the proceedings, having remarked

(in s. 20) that the parents, despite numerous efforts, had “constantly been victims of a denial of

rights guaranteed to them by the Charter” and that the province of Nova Scotia ‘had not respected

their corresponding obligations towards the appellant parents, even though they were fully aware of

their rights.”

I consider that the attribution of costs and expenses on the basis of solicitor client an appropriate

and just redress in this case for the following reasons:

(i) despite its limited human resources, the FFT vigorously tried to find a political solution to the

problems with the implementation of the NWT OLA before undertaking a lawsuit, by brining to the

attention of the GNWT, in numerous letters and memoranda and occasionally, numerous meetings

with government representatives, the problem with the publication of government advertisements,

by systematically lodging numerous complaints about this, by commissioning the Polaroid 1 study to

draw the attention of the GNWT and the NWT LC to the systemic nature of the problems and by

continuing to meet with representatives of the GNWT after the forum was held;

(ii) despite the recommendations of consultants, the NWT LC and the Special Committee and the

requests of the Federal Government, the GNWT has still not adopted an overall action plan and

continues to apply a decentralized approach which is doomed to failure where their language

responsibilities are concerned;

(iii) proposed regulations aimed at identifying government institutions has just been presented,

almost four years after the launching of this lawsuit before this Court and more than ten years after

the NWT LC (Ms. Harnum) brought the related problems to their attention and formulated detailed

and judicious recommendations;

(iv) the Bastarache Report, in 1987, then the Special Committee, in 2003, recommended the

creation of a single service window. Yet, this project is still being studied;

(v) the litigation raised issues of fundamental public interest regarding the interpretation and the

application of minority language rights and about issues of particular interest to the Franco-ténoise

community. The evidence revealed a high rate of language transfer in this community (63%)

despite the existence in the NWT, for 20 years, of a pluralist, legislative regime. In my view, the

Plaintiffs’ recourse was justified due to its goal of expanding the scope of the NWT OLA and to

redress the rather civic implementation of this Act; and

(vi) the Plaintiffs husbanded their resources by only hiring one solicitor for the trial – which

represents an enormous burden.

For these reasons, I am of the view that payment by the GNWT to the Plaintiffs of costs on a

solicitor-client basis is appropriate and just under the terms of ss. 32(1) of the NWT OLA for the

procedures undertaken before the Supreme Court of the NWT.

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It is true that the allegation of bath faith was not established by the evidence produced against the

Territorial Defendants and that the application for damages of several million dollars is not justified

by the evidence.

However, despite a rigorous defence, I have concluded that the infringements of the NWT OLA

revealed a systemic problem, s the Plaintiffs had maintained, and I have concluded that the principal

reason for these infringements was the persistent refusal by the GNWT to adopt an overall

implementation plan and to centralize the application of the NWT OLA, as well as the problem

caused by the PGD. This all necessitated particular and detailed remedial measures.

As far as the allegations of lack of good faith against the Defendants and the AGC, it was difficult for

the Plaintiffs to evaluate the weight of their arguments, given that the FFT was not a contracting

part to the 1984 funding agreement, that it did not have access to documents and that it had not

participated in the bilateral cooperation agreement negotiations. I accept the testimony of Messrs.

Auger and Lamoureux to the effect that they had not received clear answers when they had

questioned the representatives of Heritage Canada and the GNWT regarding the cuts in federal

funds intended for services in French since 1994. The Territorial Government was telling them that

they lacked funds and, the Federal Government, that the GNWT had received enough because they

were returning funds every year. For his part, Mr. Lamoureux had the impression that the two

governments were “passing each other the buck" as far as requested and available funds were

concerned. This confusion made the FFT mistrustful; they did not know who to approach to obtain

answers about management and funding and, in view of the possibility of litigation, the GNWT

narrowed the lines of communication.

The situation the FFT found itself in is reminiscent of the observations of the OLC of Canada in her

1980 report, quoted by Justice Monnin in Bilodeau v. Attorney General of Manitoba (1981), 10

Man. R. (2d) 298 (C.A.), in s. 50 :

The French-speaking minorities often feel that their requests for help are merely

shuttled from one level of bureaucracy to the next, almost as though there were a

deliberate intent to wear them down. There is indeed a Kafkaesque quality about

their continuing difficulty in pinning down exactly who or what is responsible for the

deficiencies that beset them. And when at last they think they have located the final

arbiter, as often as not it is only to discover that they are confronted with a new set

of hurdles.

For these reasons, I do not believe that it would be appropriate to reduce the costs attributable to

the Plaintiffs as appropriate and just redress under the terms of ss. 32(1) of the NWT OLA.

As for the costs arising from the Bessette study, even though I am not granting, in this ruling,

damages to L'Aquilon, the evidentiary elements produced by this report were vital to the proper

understanding of the problem with the publication of government advertisement, which persisted

even after the adoption of the PGD and the lodging of a series of complaints with the LC of the

NWT. I am granting reasonable equivalent costs to what third parties would have demanded for the

preparation of other studies, contingent on the production of receipts for payment.

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I settled the issue of costs granted to the Plaintiffs as redress. As far as the costs of the interveners

and the AGC, those parties are free to request a hearing, as required, to settle this issue.

F. Seizing the court of the file

The Plaintiffs asked that the court remain seized of the file to facilitate the execution of the ruling.

The Territorial Defendants contend that such an order would be the equivalent of establishing of a

“legal guardianship” in the NWT, which would be totally inappropriate, antidemocratic and

unjustified based on the evidence presented to the Court.

In Doucet-Boudreau, supra, the judge of first instance presided over several “accountability

hearings” to ensure that the government was doing its best to meet its obligations under the terms

of s. 23 of the Charter. The judge asked the province to produce accounts of the progress achieved

regarding the orders rendered by the judge, an affidavit having to be presented before each

hearing. The judge also granted the claimant parents the right to cross-examination the author of

the affidavit and to submit evidentiary elements in response.

The Plaintiffs submit that the principles set out in Doucet-Boudreau, supra, support a specific and

appropriate approach under the circumstances in this case. The court must “exercise its

discretionary power based on its prudent appreciation of the nature of the right and the

infringement at issue, on the facts and on the application of relevant judicial principles [...]” (s. 52);

the solution chosen “must be adapted to the plaintiff’s experience [...]” (s. 55), must be effective,

realistic and “respectful of the separation of functions between the legislative, the executive and the

judicial[...] (s. 56) and “equitable to the party affected by the order [...]” (s.58). The court must not

launch itself “into types of decisions or functions for which it was clearly not designed or for which it

does not have the required expertise [...]” (s. 57).

Justices Iacobucci and Arbour, speaking for the majority, pointed out the conclusion of the judge of

first instance that the government had not denied the existence or the content of the rights

guaranteed to the parents by s. 23. Rather, the government had omitted to give them priority and

had been dilatory in fulfilling their obligations, despite the existence of reports clearly showing that

the assimilation rate at reached a critical threshold (s. 63).

In addition, according to the order by the judge of first instance, the defendant was required “to do

their best”. In this litigation, the GNWT is required to achieve, according to my orders, a particular

result within a prescribed deadline.

In my view, it is not appropriate, in this case, for accountability hearings to be held. It is true that

the Plaintiffs sought to obtain a judicial ruling because of the GNWT’s inaction that has been

persisting in certain areas for several years. Moreover, the GNWT had had its disposal several

reports and recommendations that provided essentially the same status reports and conclusions as

this Court. This said, this ruling is the first to engage in an in-depth look at the nature and the

scope of language rights guaranteed by the NWT OLA. I have no reason to believe that the GNWT

will not respect my orders. As was noted by Justices LeBel and Deschamps in s.106, in the

dissenting reasons, in describing the role of the court:

202

In essence, this role is to declare what the law is, contribute to its development and

to give claimants such relief in the form of declarations, interpretation and orders as

will be needed to remedy infringements of constitutional and legal rights by public

authorities. Beyond these functions, an attitude of restraint remains all the more

justified, given that, as the majority reasons acknowledge, Canada has maintained a

tradition of compliance by governments and public servants with judicial

interpretations of the law and court orders.

According to the majority opinion in Doucet-Boudreau, it may sometimes be useful for a judge to

issue a legal timetable and for the government to ask for variations, when it is just and appropriate

to do so (s. 85). I have set timetables for the execution of my orders, a step that is in fact provided

for under R. 410 of the Rules of the Supreme Court of the Northwest Territories:

410. A judgment or an order made in an action or a proceeding that requires a

person to do a particular act other than pay money, shall state the period of time,

or the period of time after service of the judgment or order on the person, within

which the act is to be done or the date by which the act is to be done.

The timetables set out in this ruling take into account the high level of language transfer and of the

vulnerability of the Franco-ténoise community but also, of the inherent delays in any government

action. I judge, nonetheless, that it is appropriate and fair to allow that the Territorial Defendants

the right to request that the timetables be postponed should it be impossible for them to comply

with them.

XI.

Conclusion

I believe that the statements and the affirmative actions ordered by the Court take into account the

nature of the rights infringed upon, that they are useful and adopted to the Plaintiffs’ situation, that

they require legitimate means in the framework of our constitutional democracy and that they are

fair to the party addressed by the order: see Doucet-Boudreau, in s. 55 to 59.

To end, I will reiterate the following comments, spoken by Justice Bastarache in his speech entitled

“L'égalité réelle des communautés de langue officielle du Canada”, supra:

Language communities recognized that it is common history and in

the setting of cultural boundaries that the relationships between

language communities have developed and the awareness of each of

their own identity. Changing the historic relationships, attitudes and

self-perception of different groups requires a certain sense of history

and continuity. Long-term goals are needed. We have to know

where the population situates itself relative to enduring ideological

cleavages. We must, in a way, recognize much more that the

importance of numeric importance of language communities and their

geographic concentration. We have to know their habits, their ways

of communicating and their own perception of their fragility.

203

[...]

To conclude, I will simply say that establishing a language regime is a

complex task and that the success of the enterprise is never certain.

However, a well-adapted project may have an inestimable impact [...]

I want to thank the solicitors for all the parties, who presented solid arguments in this complicated

litigation.

_______________________________

__

M.T. Moreau

J.S.C.

Heard: September 6 to 9, 12 to 16, 19 to 23, 26 to, 2005, October 3 to 7, 11 to 14, 17 to 20,

2005, November 3, 4, 2005

Rendered: April 25, 2006

Me Roger J.F. Lepage

Solicitor for the Plaintiffs

And the Intervener, L’Association franco-yukonnaise

Me Alain Préfontaine

Me Marie Crawley

Solicitors for the Attorney General of Canada

Me Roger Tassé

Me Maxime Faille

Attorneys for the Attorney General of the Northwest Territories,

the Commissioner of the Northwest Territories, the Speaker of the Legislative Assembly

of the Northwest Territories and of the Languages Commissioner of the Northwest

Territories.

Me Pascale Giguère

Solicitor for the intervener, the Commissioner of Official Languages for Canada

S-1-CV 2001000345

_______________________________________

SUPREME COURT OF THE NORTHWEST

TERRITORIES

Between:

Fédération Franco-Ténoise, Éditions

Franco-Ténoises/L’Aquilon, Fernand

Denault, Suzanne Houde, Nadia

Laquerre, Pierre Ranger and Yvon

Dominic Cousineau

Plaintiffs

- and -

The Attorney General of Canada, the

Attorney General of the Northwest

Territories, the Commissioner of the

Northwest Territories, the Speaker of the

Legislative Assembly of the Northwest

Territories and the Languages

Commissioner of the Northwest

Territories,

Defendants

Commissioner of Official Languages for

Canada

and the Association franco-yukonnaise

Interveners

________________________________

Reasons for Ruling

By the Honourable Justice M.T. Moreau

________________________________

_______________________________________