Commissioner of Official Languages v. Employment and Social Development

Date: 20220128

Dockets: A-182-18

A-186-18

Citation: 2022 FCA 14

[ENGLISH TRANSLATION]

CORAM:

NOËL C.J.

DE MONTIGNY J.A.

RIVOALEN J.A.

Docket: A-182-18

BETWEEN:

THE COMMISSIONER OF OFFICIAL

LANGUAGES

Appellant

and

EMPLOYMENT AND SOCIAL

DEVELOPMENT CANADA AND THE

CANADA EMPLOYMENT INSURANCE

COMMISSION

Respondents

and

THE ATTORNEY GENERAL OF BRITISH

COLUMBIA, THE ASSOCIATION DES

JURISTES D’EXPRESSION FRANÇAISE

DU NOUVEAU-BRUNSWICK AND THE

QUEBEC COMMUNITY GROUPS

NETWORK

Page: 2

Interveners

Docket: A-186-18

BETWEEN:

LA FÉDÉRATION DES FRANCOPHONES

DE LA COLOMBIE-BRITANNIQUE

Appellant

and

EMPLOYMENT AND SOCIAL

DEVELOPMENT CANADA AND THE

CANADA EMPLOYMENT INSURANCE

COMMISSION

Respondents

and

THE ATTORNEY GENERAL OF BRITISH

COLUMBIA, THE ASSOCIATION DES

JURISTES D’EXPRESSION FRANÇAISE

DU NOUVEAU-BRUNSWICK AND THE

QUEBEC COMMUNITY GROUPS

NETWORK

Interveners

Heard at Vancouver, British Columbia, on October 27 and 28, 2021.

Judgment delivered at Ottawa, Ontario, on January 28, 2022.

REASONS FOR JUDGMENT BY:

THE COURT

Date: 20220128

Dockets: A-182-18

A-186-18

Citation: 2022 FCA 14

Docket:A-182-18

Appellant

CORAM:

NOËL C.J.

DE MONTIGNY J.A.

RIVOALEN J.A.

BETWEEN:

THE COMMISSIONER OF OFFICIAL

LANGUAGES

and

EMPLOYMENT AND SOCIAL

DEVELOPMENT CANADA AND THE

CANADA EMPLOYMENT INSURANCE

COMMISSION

Respondents

and

THE ATTORNEY GENERAL OF BRITISH

COLUMBIA, THE ASSOCIATION DES

JURISTES D’EXPRESSION FRANÇAISE

DU NOUVEAU-BRUNSWICK AND THE

QUEBEC COMMUNITY GROUPS

NETWORK

Page: 2

Interveners

Docket: A-186-18

BETWEEN:

LA FÉDÉRATION DES FRANCOPHONES

DE LA COLOMBIE-BRITANNIQUE

Appellant

and

EMPLOYMENT AND SOCIAL

DEVELOPMENT CANADA AND THE

CANADA EMPLOYMENT INSURANCE

COMMISSION

Respondents

and

THE ATTORNEY GENERAL OF BRITISH

COLUMBIA, THE ASSOCIATION DES

JURISTES D’EXPRESSION FRANÇAISE

DU NOUVEAU-BRUNSWICK AND THE

QUEBEC COMMUNITY GROUPS

NETWORK

Interveners

REASONS FOR JUDGMENT OF THE COURT

INTRODUCTION......................................................................................................................... 4

THE FACTS.................................................................................................................................. 6

DECISION UNDER APPEAL................................................................................................... 29

Page: 3

POSITIONS OF THE PARTIES .............................................................................................. 37

A.

The appellants and their supporting interveners ............................................................ 37

 The FFCB....................................................................................................................... 37

 The Commissioner ......................................................................................................... 40

 The AJEFNB.................................................................................................................. 41

 The QCGN ..................................................................................................................... 41

The respondents and the Attorney General of B.C. ....................................................... 42

 ESDC and the Commission............................................................................................ 42

 The Attorney General of B.C......................................................................................... 45

B.

ANALYSIS AND DECISION.................................................................................................... 46

A.

B.

C.

D.

Standard of review ......................................................................................................... 46

Interpretation of language rights .................................................................................... 46

Part IV of the OLA......................................................................................................... 47

Part VII of the OLA ....................................................................................................... 50

 The context surrounding Part VII................................................................................... 51

 The purpose of subsections 41(1) and (2)...................................................................... 52

 The wording of the provisions in Part VII ..................................................................... 55

 The interpretation of the trial judge................................................................................ 57

Was the obligation under Part VII met?......................................................................... 65

 The complaints............................................................................................................... 65

 The Commissioner’s report............................................................................................ 66

 Are the complaints well-founded? ................................................................................. 67

 What would be an appropriate and just remedy in the circumstances? ......................... 74

E.

DISPOSITION ............................................................................................................................ 77

Page: 4

INTRODUCTION

[1]

The Fédération des francophones de la Colombie-Britannique and the Commissioner of

Official Languages (the appellants, and the FFCB and the Commissioner, respectively) are both

appealing a decision (2018 FC 530) rendered by Justice Gascon of the Federal Court (trial judge)

whereby the FFCB’s application for a remedy pursuant to subsection 77(1) of the Official

Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the OLA), was dismissed.

[2]

The proceeding arises from four complaints endorsed by the Commissioner alleging that

the respondents, Human Resources and Skills Development Canada (HRSDC), since renamed

Employment and Social Development Canada (ESDC), and the Canada Employment Insurance

Commission (the Commission) (collectively the respondents or the federal institutions) failed to

meet their language obligations under Parts IV and VII of the OLA and under subsection 20(1)

of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), in entering into and

implementing the Canada–British Columbia Labour Market Development Agreement signed in

February 2008 (the Agreement). The Agreement was entered into pursuant to section 63 of the

Employment Insurance Act, S.C. 1996, c. 23 (the EIA).

[3]

The trial judge refused to grant the remedy sought by the FFCB, finding that under the

Agreement, British Columbia (B.C. or the province) was not acting “on … behalf” of ESDC and

the Commission as required under section 25 of Part IV of the OLA and that these entities took

sufficient positive measures to fulfil their duties under Part VII, specifically section 41.

Page: 5

[4]

In support of its appeal, the FFCB maintains that on the basis of the law and the evidence

the trial judge was bound to conclude that the Agreement as well as the employment benefits and

support measures that it authorizes violate subsection 20(1) of the Charter and Parts IV and VII

of the OLA.

[5]

The Commissioner takes issue with the portion of the decision that deals with Part VII.

He maintains that although the trial judge correctly stated the principles applicable to the

interpretation of language rights, he did not take into account Parliament’s intention to make

federal institutions accountable for their obligations under Part VII on a case-by-case basis.

[6]

The respondents ask that we dismiss the appeals on the ground that Part IV does not

apply to B.C. and that the evidence supports the trial judge’s conclusion that they took sufficient

positive measures to satisfy the obligation under Part VII of the OLA.

[7]

The Attorney General of B.C., in his capacity as intervener, asks that we uphold the trial

judge’s decision, whereas the Quebec Community Groups Network (QCGN) and the Association

des juristes d’expression française du Nouveau-Brunswick (AJEFNB) invite us to set it aside,

each substantially agreeing with the position of the parties they support.

[8]

For the reasons set out below, we are of the view that the trial judge correctly concluded

that Part IV of the OLA and subsection 20(1) of the Charter do not apply to B.C. in its

implementation of the Agreement. However, he misinterpreted the obligation cast upon federal

institutions under Part VII of the OLA.

Page: 6

After conducting our own analysis on the basis of the applicable legal test, we conclude

that the federal institutions failed to meet their obligation towards B.C.’s French linguistic

[9]

minority community under Part VII of the OLA and that the complaints are to that extent well-

founded. It follows that the appeals, insofar as they pertain to the breach of the Part VII

obligation, must be allowed.

[10] The relevant provisions of the EIA, of the OLA and of the Charter, as they read at the

time of the complaints, are appended to these reasons.

THE FACTS

[11] The battle waged by B.C.’s French linguistic minority community with respect to

language rights in relation to employment assistance services in the province dates back to the

1990s. It is worthwhile to go back to its origins and trace its history up to the filing of the

complaints in 2011 in order to understand the issues involved.

[12] In 1993, the federal government announced its intention to conduct a major reform of

social programs across the country. One of the goals was to establish a new approach to

employment assistance services that would be more coordinated, that would be locally managed

and that would better meet the needs of local communities. The ultimate purpose was for the

federal government to withdraw from this field of activity in favour of the provinces, while

providing the financial support that would allow them to assume this role. This initiative

ultimately led to the adoption of the EIA on June 30, 1996.

Page: 7

[13] Part II of the EIA provided for the various partnership models envisaged by the reform.

Subsection 57(3) authorized the Commission to establish employment benefits and support

measures (benefits and measures) under three types of intergovernmental agreements:

 a co-management agreement that provided for greater cooperation between the two levels

of government. Under this type of agreement, the Commission retained responsibility for

establishing and ensuring the provision of benefits and measures. There was therefore no

transfer of funds, but the province was involved in the design and management of the

benefits and measures, usually through a joint management committee (subs. 57(2) of the

EIA);

 an agreement allowing the Commission to mandate the provinces to administer the

benefits and measures themselves “on … behalf” of the Commission (s. 62 of the EIA);

 a full devolution agreement under which provinces had to design and administer their

own benefits and measures, with federal financial support, provided that the measures

introduced by the provinces were “similar” to those offered by the Commission and

consistent with the purpose and guidelines set out in Part II of the EIA (s. 63 of the EIA).

[14] When the EIA was enacted, it was clear that the OLA would apply to the delivery of

employment assistance services in the provinces under the first type of agreement since the

Commission continued to assume this responsibility directly, as well as under the second type of

Page: 8

agreement since in this context the provinces were required to act “on … behalf” of the

Commission within the meaning of section 25 of the OLA (see also the Affidavit of Mark

Goldenberg, paras. 79 to 81, Appeal Book, p. 6292). As we shall see, the application of the OLA

to the third type of agreement was not as clear, and the matter was settled a few years later by the

courts, which held that the OLA did not apply to employment assistance services provided by the

provinces under this type of agreement (Lavigne v. Canada (Human Resources Development),

2001 FCT 1365, [2002] 2 F.C. 165 [Lavigne FC], affd. in Lavigne v. Canada (Minister of

Human Resources Development), 2003 FCA 203, (2003) 308 N.R. 186 [Lavigne FCA]). As will

be seen, the FFCB takes issue with the correctness of those decisions in the context of the present

appeals.

[15] Following the publication of the bill that led to the adoption of the EIA, official language

minority communities with the support of the Commissioner expressed concerns about their fate

if this third option were chosen. Shortly before the bill became law, the Commissioner wrote the

Minister of HRSDC pointing out that the bill did not reflect or take into account the commitment

made by the federal government to enhance the vitality and support the development of official

language minority communities, pursuant to Part VII of the OLA (ibid, Exhibit MG-7: Appeal

Book, pp. 7174 and 7175).

[16] It was in response to these concerns that the guideline now set out in paragraph 57(1)(d.1)

of the EIA was added to the bill to require participating provinces to provide service recipients

with “availability of assistance under the benefits and measures in either official language where

there is significant demand for that assistance in that language”. The clauses that were inserted to

Page: 9

give effect to this guideline in the devolution agreements that were subsequently signed with the

provinces and territories came to be known as “linguistic clauses”.

[17] Despite the addition of this guideline, the French linguistic minority community in B.C.

remained fearful of the potential effects of a full devolution agreement. A few months after the

enactment of the EIA, the president of the FFCB, Diane Côté, wrote to the then Minister of

HRSDC, Pierre Pettigrew, expressing concern about the potential harm to this community:

[TRANSLATION]

In British Columbia, past experience with the ability, and even the

willingness, of British Columbia government authorities to provide

adequate mechanisms to meet the aspirations of the Francophone

community gives us reason to believe that the level of service

provided to our community will only deteriorate if labour market

development programs are entrusted to the province. For example,

section 530 of Canada’s Criminal Code allows for a trial in the

official language of the accused’s choice. However, the

administration of the courts is the responsibility of the provincial

Ministry of the Attorney General, and the latter is still unable,

seven years after the legislative provisions providing for it came

into force, to respond adequately to this language right. You will

therefore understand that without an administrative agreement that

clearly guarantees and defines the language rights of the

French-speaking population in British Columbia, we are quite

justified in having concerns about the province’s commitment on

this issue.

(Affidavit of Duncan Shaw, Exhibit DS-18: Appeal Book,

pp. 9804 and 9805)

[18] One of the areas of concern was that, under the third option, there was no obligation on

the provinces to enhance the vitality and the development of official language minority

Page: 10

communities, as required by section 41 of the OLA, and no recourse to the Commissioner was

provided in this regard. The FFCB’s letter ends as follows:

[TRANSLATION]

. . . We fear that the situation will be most difficult for the

French-speaking population in British Columbia if the agreement

currently being negotiated does not include precise language

regarding the parties’ responsibilities in language matters. We ask

that you intervene immediately with your negotiators to give them

specific instructions on the necessary elements with respect to

language rights that should be an essential condition for signing an

agreement with British Columbia.

I believe that the government must act on this issue and reiterate its

commitment to Canada’s linguistic duality by ensuring that such

administrative agreements leave no room for interpretation by the

provinces as to the services we are entitled to expect in our official

language.

(ibid)

[19] These concerns were alleviated somewhat two months later when the federal government

and B.C. initially opted to sign a co-management agreement (Canada–British Columbia Labour

Market Agreement (1997)) which, as noted above, ensured the continued application of the OLA

in the delivery of employment assistance services in B.C.

[20] This co-management agreement was entered into on April 25, 1997, and was in effect for

just over ten years. Under the terms of the agreement, the federal government retained

responsibility for the establishment of benefits and measures while B.C. participated in their

design and management. B.C. was also involved in setting objectives and priorities (Final

Investigation Report of the Office of the Commissioner of Official Languages dated April 2013,

Page: 11

p. 3; Affidavit of Hovan Baghdassarian, paras. 45 to 59: Appeal Book, pp. 2298 and 2699 to

2702).

[21] The services offered by the Commission under the co-management agreement

complemented certain employment programs already offered by B.C. (Affidavit of Hovan

Baghdassarian, paras. 8 to 21: Appeal Book, pp. 2687 to 2692). To avoid duplication of financial

assistance, clients eligible for both were referred to HRSDC by the province (Affidavit of

Duncan Shaw, paras. 96 and 104: Appeal Book, pp. 8644 and 8646).

[22] Under the linguistic clause (art. 7.2 of the co-management agreement), clients in certain

areas where demand was significant (i.e. Vancouver (including New Westminster), Victoria,

Abbotsford, Chilliwack, Penticton, Prince George, Kelowna, Kamloops and Nanaimo) could be

served in both official languages (Affidavit of Viviane Beaudoin, para. 10: Appeal Book,

pp. 4391 and 4392).

[23] The provision of “employment assistance services” was carried out primarily through

specific organizations involved in the community, with the financial support of the Commission.

In order to ensure that these services were available to members of the French linguistic minority

community in their language, the Commission provided funding to Francophone organizations

(Affidavit of Hovan Baghdassarian, para. 60; Affidavit of Duncan Shaw, paras. 62, 67 and 70 to

72: Appeal Book, pp. 2702 and 8636 to 8638).

Page: 12

[24] Following the entry into force of the co-management agreement, the participation of

Francophone organizations increased substantially and became an important tool for the

promotion of linguistic duality in the province. Francophone organizations took great pride in

developing a wide range of assisted and unassisted services that they offered to members of the

Francophone community seeking employment (Affidavit of Réal Roy, para. 10; Affidavit of

Duncan Shaw, paras. 73 to 75: Appeal Book, pp. 1825, 8638 and 8639).

[25] As regards unassisted services or “self-service” activities, Francophone organizations

provided tools to job seekers such as computer resources giving them access to databases for job

searches and the preparation of applications, a library of reference material and job banks

tailored to Francophones (Affidavit of Christian Francey, paras. 35, 36 and 44; Affidavit of

Yvon Laberge, paras. 27 to 31; Affidavit of Tanniar Leba, para. 13; Affidavit of Lise Morin,

paras. 6 to 8: Appeal Book, pp. 415, 418, 778, 779, 1559, 1697 and 1698).

[26] Clients of the Francophone organizations also had access to multiple “assisted” services

and activities; they were referred to in this way because they were offered under the supervision

of employment counsellors. These included the following:

 Case management: an employment counsellor or coach would meet with the client to

identify the client’s employment needs. Together with the client, the counsellor would

develop a return-to-work action plan and would follow up with the client. Assistance

could be provided, for example, in résumé preparation or career planning, but also in

Page: 13

applying for employment insurance benefits. Follow-up included in-person and telephone

meetings as well as communication of new job opportunities.

 Group workshops: job search and career planning group workshops were organized and

covered topics such as skills development, cover letter/résumé preparation, networking

and interview techniques.

 Online services: clients were given the opportunity to communicate virtually with an

employment counsellor.

 Job fairs: once or twice per year, job fairs were organized in Vancouver to bring together

French-speaking employees and potential employers that offered a bilingual work

environment.

 Employment cafés: as a networking activity, an employer could be invited to give a

presentation to individuals interested in the field.

 Regional response: an employment counsellor based in the major centres could travel to

more remote areas, as needed, to provide employment assistance services in French in

that community.

Page: 14

 Guidance counsellors: a guidance counsellor was available to answer questions about

employment status or career choices and to help understand and overcome obstacles to

job searches.

(Affidavit of Christian Francey, paras. 37 to 44; Affidavit of Yvon Laberge, paras. 32 to

43; Affidavit of Tanniar Leba, paras. 14 and 15, Affidavit of Lise Morin, paras. 9 to 15:

Appeal Book, pp. 416 to 418, 779 to 781, 1559, 1698 and 1699)

[27] The FFCB, the recognized representative of the interests of the French linguistic minority

community in the province, had a lot to do with this. Five organizations, all members of the

FFCB, received funding from the Commission for their involvement in the provision of

employment assistance services: Collège Éducacentre (Éducacentre), Société francophone de

Victoria (SFV), La Boussole – Centre communautaire francophone (La Boussole), Centre

francophone de services à l’emploi de l’Okanagan (CFSEO), and Centre d’intégration pour

immigrants africains (CIIA). These organizations served different areas, specifically, Vancouver,

Victoria, Prince George, Kelowna, Penticton and New Westminster. While distinct from each

other, they shared as a common thread their fundamentally Francophone character.

[28] At the time of the coming into force of the EIA, the role of these organizations in B.C.

was still in its infancy. It was through the partnership with HRSDC following the signing of the

co-management agreement that some of these organizations were able to open their doors and

others to expand the scope of their services. To this end, the organizations entered into annually

renewed contracts with HRSDC, which described in detail the employment assistance services

that they were to offer to the Francophone linguistic minority community and providing for the

Page: 15

necessary funding (Affidavit of Christian Francey, paras. 7 to 9; Affidavit of Yvon Laberge,

paras. 18, 19 and 23; Affidavit of Tanniar Leba, paras. 8 to 10; Affidavit of Lise Morin, paras. 2

to 5; Final Investigation Report of the Office of the Commissioner of Official Languages dated

April 2013, pp. 1 and 3; Affidavit of Duncan Shaw, para. 75, Exhibits DS-9 and DS-14: Appeal

Book, pp. 407, 408, 776, 777, 1558, 1559, 1697, 2296, 2298, 8639, 9266 to 9394 and 9558).

[29] Despite the co-management agreement and the continued involvement of Francophone

organizations in the delivery of employment assistance services, an eventual full devolution to

B.C. remained an issue of concern. Indeed, the co-management agreement provided that B.C.

could make a request towards that end at any time, if it saw fit to do so (art. 17.3 of the co-

management agreement).

[30] On January 12, 1998, the FFCB sent a letter to HRSDC outlining the safeguards it

expected in the event of full devolution and asked the Minister to [TRANSLATION] “undertake not

to sign any agreement with B.C. which does not provide for measures to meet the requirements

of Part VII of the Official Languages Act, particularly section 41” (Affidavit of Duncan Shaw,

Exhibit DS-18: Appeal Book, pp. 9806 and 9807). The letter states that the [TRANSLATION]

“Francophone community’s immediate concern is that the provincial government does not

appear willing to put in place a mechanism of cooperation that would have the effect of better

identifying the needs of our community and proposing initiatives to address them.”

Page: 16

[31] On June 11, 1998, after learning that B.C. had officially requested the full devolution of

labour market development measures, the FFCB again raised its concerns with

Minister Pettigrew:

[TRANSLATION]

The past and present actions of our provincial government leaders,

led by Premier Glen Clark, cannot help but raise serious concerns

about the level of service in our official language that the

provincial government would provide. The way to alleviate our

concerns is to include specific clauses in any devolution agreement

that address the issue of the application of the Official Languages

Act.

(ibid: Appeal Book, pp. 9812 and 9813)

[32] The letter reiterates that specific guarantees are required [TRANSLATION] “because of the

high risk that once the provincial government is responsible for delivery of the measures . . . it

will not respect the services to which we should have access in our language.” The FFCB

concluded by stressing that, in the absence of sufficient guarantees, it would be preferable for the

federal government to remain responsible for its share of employment assistance services in

B.C.:

[TRANSLATION]

If the provincial government cannot be persuaded to accept a

maximum level of responsibility for applying the Official

Languages Act, I would like to know if it would be possible for the

federal government to remain responsible for measures inherent to

the development of labour markets for the Francophone

community. . . .

I believe that you have had the opportunity to understand the

unfavourable political context in which British Columbia’s

Page: 17

Francophone community finds itself and to see the lack of

consideration, in any form, that we receive from provincial

political authorities. Without strong leadership on your part,

Canada will not be able to pride itself of its official bilingual status

from coast to coast.

(ibid)

[33] The Minister replied on August 26, 1998, indicating that for each province that opts for a

full devolution, the agreements provide for [TRANSLATION] “firm commitments on official

languages” and that this was a [TRANSLATION] “priority” in the negotiations. In particular, he

explained that the linguistic clauses would require that programs and services be offered in

English upon request in Quebec and in both official languages in New Brunswick to reflect the

particular circumstances of each province (ibid: Appeal Book, pp. 9810 and 9811).

[34] This response raised significant concerns, the FFCB being of the opinion that the content

of the linguistic clauses should rather be geared to address the fragility of the linguistic minority

community in the province where the devolution takes place. In its October 16, 1998 letter, the

FFCB wrote the following:

[TRANSLATION]

It goes without saying that if the agreement were limited to

linguistic clauses that reflect the prevailing linguistic reality of the

provincial government, the content would be meagre for the

Francophone community of our province. For us, it is important

that the Francophone public have access to quality services in their

language, and have recourse to the Commissioner of Official

Languages in cases where service is not available.

Moreover, I would like you to confirm that special initiatives for

our development, such as the Éducacentre training project, the

Chambre de commerce franco-colombienne’s entrepreneurship

Page: 18

centre or the Francophone associations’ employment projects, will

always be accessible in accordance with the spirit of section 41 of

the Official Languages Act. . . .

(ibid: Appeal Book, pp. 9814 and 9815)

[35] In his February 18, 1999 response, the Minister of HRSDC referred again to the linguistic

clause and explained that the official language minority community in B.C. has nothing to worry

about:

[TRANSLATION]

. . . I can only restate my firm intention to ensure that a new

Canada-British Columbia labour market development agreement

will ensure that programs and services are available in French

where demand justifies it.

. . . As I have personally assured you, your community will be

informed of the linguistic clauses in any future Canada-British

Columbia agreement before that agreement is signed.

(ibid: Appeal Book, pp. 9816 and 9817)

[36] Shortly before then, in April 1998, the Task Force on Government Transformations and

Official Languages was established following a recommendation made by the Commissioner.

The Task Force, in conducting its review, became aware of the particular situation of the French

linguistic minority community in B.C. and it shared its observations with Minister Pettigrew:

[TRANSLATION]

During these consultations, almost all the associations visited

identified labour market development agreements as being one of

the most important transformations to have occurred within

government in recent years that impacts significantly on official

Page: 19

language minority communities. I would like to draw your

attention more particularly to the representations made by the

FFCB concerning talks between your Department and British

Columbia to allow the province to take more responsibility for

active employment measures supported by employment insurance

funds.

Indeed, FFCB representatives expressed to the Task Force

members their deep concern regarding access, in French, to the

services and programs concerned once responsibility for delivery is

transferred to the province. The FFCB raises British Columbia’s

political context and how little consideration the provincial

government gives to the Francophone community. It would like a

firm commitment on your part that you will require the province to

undertake to respect the Official Languages Act. It is not the role of

the Task Force to interfere in the ongoing negotiations with British

Columbia. We feel it is appropriate, however, for your Department

to require a firm commitment from the province with regard to

providing programs and services in French.

The Task Force cannot ignore this request and we are sharing it

with you, knowing that your kind attention can be counted on,

regarding the way forward on this matter.

(Affidavit of Mark Goldenberg, Exhibit MG-16: Appeal Book,

pp. 7519 and 7520)

[37] The Minister of HRSDC responded to the Task Force by restating his commitment

[TRANSLATION] “to ensuring that the rights of official language communities are protected in all

agreements” and, with regard to B.C., that if an agreement were to be signed, it would include

[TRANSLATION] “clear commitments that will allow access to programs and services in both

official languages where the significance of the demand warrants it” (ibid: Appeal Book,

pp. 7521 and 7522).

[38] These exchanges came to a standstill for a time before resuming in full force eight years

later following the tabling in the House of the March 19, 2007 budget. On that occasion, the

Page: 20

federal government announced that it was offering a complete transfer of employment assistance

programs to all provinces that had yet to sign a full devolution agreement.

[39] On April 27, 2007, the FFCB sent an email to HRSDC’s Skills and Employment Branch,

expressing the concerns raised in the province by the start of the federal-provincial negotiations

towards a full devolution of employment assistance programs in favour of B.C. The email

explains the importance of the continued participation of the Francophone organizations in order

to meet the needs of the Francophone community:

[TRANSLATION]

Through the federal government’s support for official language

communities, through the support of your Department, a certain

number of Francophone organizations offer a broad . . . range of

employment services—some for years, including at the Collège

Éducacentre and at La Boussole, and others recently negotiated,

including at the Centre d’intégration des immigrants africains.

These support programs are essential for our community, and their

effectiveness no longer needs to be demonstrated. The figures are

available for consultation, as you know.

We believe that the relationship between the Francophone

community and the provincial government is good. The

Intergovernmental Relations Secretariat, through the Office of

Francophone Affairs and its minister, has opened up many doors

for us, but there is no doubt that this devolution of power could be

catastrophic and call into question all of this programming. We

know that during negotiations, the federal government can impose

a linguistic clause designed to twist the arm of the provincial

government and the provincial department(s) that will be

responsible for managing these programs. This clause must be

legally enforceable, and the provincial government must not be

able to ignore it. We also know that in British Columbia, unlike in

New Brunswick, our community has no official status; everything

is left to the discretion and good will of the provincial government.

We also know, from experience, that even federal funds destined to

provide services to Francophones are not always allocated to

Page: 21

Francophone organizations for the delivery of these services. The

Francophone immigration file in our province is the most flagrant

example of this. I would like to start the dialogue and share these

concerns with you. I know that in British Columbia, some

employees in your Department are already aware that the

Francophone community is ready to do everything in its power to

ensure that the programs that we successfully deliver will not be

threatened or questioned in any way. I have received a few calls,

which allowed me to share the determination of the entire

Francophone community.

(Affidavit of Réal Roy, Exhibit B: Appeal Book, pp. 1889 and

1890)

[40] On May 14, 2007, the president of the FFCB sent another letter, this time directly to the

Minister of HRSDC at the time, Monte Solberg. The letter reiterated the importance of the

ongoing participation of Francophone organizations in the delivery of employment assistance

services in B.C.:

One of the success stories of our community is related to a

partnership we have developed over the years with the federal

government, with the ministry you are now in charge of, Human

Resources and Social Development. Employment related programs

as designed by your ministry have being [sic] offered by

Francophone staff in Francophone institutions for the last 15 years.

The number of Francophone service providers has increased every

year and the number of Francophone clients supported in a crucial

period of their lives is also growing constantly.

. . .

We would like to believe that during the negotiations that will take

place, you will include a linguistic clause that the province has an

obligation, a duty to respect, an executory clause that could not be

overridden. The provincial ministry managing those programs

would bear the same responsibility as its federal counterpart

previously did.

It is true that the Francophone community of British Columbia is

supported by its provincial government and by the Minister

Page: 22

responsible for Intergovernmental Affairs, the Honorable John van

Dongen.

But we are aware that the devolution of powers has its drawbacks,

the funding of Francophone immigration services remains an issue

for our community, as you well know. In British-Columbia

settlement services for Francophone immigrants are still

exclusively the responsibility of service providers from the

community at large.

(ibid: Exhibit C: Appeal Book, pp. 1892 and 1893)

[41] Three months later, Minister Solberg reiterated the position taken by the federal

government over the years, namely that a linguistic clause corresponding to the text of

paragraph 57(1)(d.1) of the EIA would ensure the protection of B.C.’s Francophone linguistic

minority community (ibid, Exhibit D: Appeal Book, p. 1895).

[42] The last noteworthy exchange during the period that led to the full devolution took place

at a meeting in September 2007, when the FFCB tried to alert federal officials in charge of the

final negotiations to the particular plight of the French linguistic minority community in B.C. and

to the importance of including an [TRANSLATION] “airtight” linguistic clause in an eventual

agreement (ibid, Exhibit E: Appeal Book, p. 1899).

[43] The full devolution of employment assistance services finally took place a few months

later. The Agreement was signed by the parties (B.C. being represented by its responsible

minister and Canada being represented by the Commission and HRSDC) on February 20, 2008.

The Agreement provides that it will become effective on February 2, 2009, a date that coincides

with the date on which the co-management agreement ceases to be in effect (arts. 2.4 and 3.1 of

the Agreement). B.C. was the second last jurisdiction in the country to assume full and exclusive

Page: 23

responsibility for employment assistance services, Yukon being the last (Affidavit of

Mark Goldenberg, paras. 119 and 120: Appeal Book, p. 6300).

[44] The Agreement is open ended and remains in place to this day. It may be terminated at

any time with two years’ notice, in which case the parties agree to work together to ensure that

services to clients will not be unduly affected or interrupted (arts. 23.0 and 24.0 of the

Agreement). The Agreement may also be amended at any time with the mutual consent of the

parties (art. 25.0 of the Agreement).

[45] With regard to the use of official languages in the provision of services, the Agreement

includes a linguistic clause pursuant to which B.C. agrees to ensure that the services being

offered are accessible in either official language where significant demand warrants (arts. 5.2 and

5.3 of the Agreement). B.C. also agrees to consult the French linguistic minority community “on

the provision of . . . Benefits and Measures” that it would be called upon to manage (art. 5.4 of

the Agreement).

[46] The transition between the signing and the coming into force of the Agreement was

extended until B.C. implemented its Employment Program of British Columbia (EPBC) and its

“one-stop shop” model in April 2012. During this period, B.C. kept Francophone organizations

involved in the provision of employment assistance services and extended their funding, which

stood around $2.4 million per year (Affidavit of Christian Francey, paras. 13 and 14, Affidavit of

Yvon Laberge, paras. 20, 21 and 23; Affidavit of Tanniar Leba, para. 11; Affidavit of Réal Roy,

Page: 24

Exhibit M; Affidavit of Hovan Baghdassarian, paras. 88 to 90, 95 and Exhibit HB-13: Appeal

Book, pp. 409, 777, 1559, 2193, 2709, 2710, 3392 and 3393).

[47] This extended transition period was used by B.C. to undertake a series of consultations at

several levels in order to improve the transformation it envisaged (Business Transformation

Project). This initiative led to consultations with the representatives of the French linguistic

minority community, as required by article 5.4 of the Agreement (Affidavit of Hovan

Baghdassarian, paras. 64 to 73; Affidavit of Duncan Shaw, paras. 170 to 173: Appeal Book,

pp. 2703 to 2706, 8663 and 8664).

[48] It was proposed under B.C.’s new model that the province be split into 73 geographic

areas and that a request for proposals be issued in order to designate single providers that would

be responsible for offering the full range of employment services in each of these areas. To

qualify, the single providers had to have the capacity to serve a variety of specialized

populations, including Francophones, immigrants, persons with disabilities, Indigenous peoples

and youth (Affidavit of Christian Francey, paras. 19 and 24 to 27; Affidavit of Yvon Laberge,

paras. 45, 51 to 57 and Exhibit H; Affidavit of Tanniar Leba, paras. 25 and 26: Appeal Book,

pp. 411 to 413, 782 to 784, 1486 to 1551, 1561 and 1562).

[49] In order to preserve their role in the provision of employment assistance services to

B.C.’s linguistic minority community, the five Francophone organizations proposed that they

form a consortium whose function would be to offer a distinct model designed “by and for” the

Francophone community. The consortium would be funded by a separate envelope. This

Page: 25

proposal was presented in September 2010 and promptly rejected by B.C. in the following month

(Affidavit of Christian Francey, paras. 18 and 20 to 23; Affidavit of Yvon Laberge, paras. 46 to

50; Affidavit of Tanniar Leba, paras. 27 to 30; Affidavit of Réal Roy, paras. 52 to 55 and Exhibit

P: Appeal Book, pp. 410 to 412, 782, 783, 1562, 1563, 1839, 1840 and 2206 to 2213).

[50] According to B.C., the consortium was not necessary in order to ensure services in

French because the single providers would assume this responsibility in each area where this

requirement had to be met. B.C. instead suggested that the Francophone organizations could

attempt to offer their services pursuant to subcontracting agreements with the single providers

(Affidavit of Tanniar Leba, paras. 31 and 32; Affidavit of Réal Roy, paras. 57 to 62 and 75;

Affidavit of Hovan Baghdassarian, paras. 76 to 81 and Exhibit HB-10: Appeal Book, pp. 1563,

1840 to 1842, 1846, 2706, 2707 and 3326 to 3338).

[51] In the fall of 2010, B.C., relying on a series of reasons pertaining to efficiencies,

informed five of the centres that were staffed by the Francophone organizations that they would

no longer be receiving funding (Affidavit of Yvon Laberge, para. 24; Affidavit of Tanniar Leba,

para. 33; Affidavit of Lise Morin, para. 17; Affidavit of Réal Roy, para. 56, Exhibit Q; Final

Investigation Report of the Office of the Commissioner of Official Languages, pp. 1 and 4,

Affidavit of Hovan Baghdassarian, Exhibit HB-15: Appeal Book, pp. 778, 1563, 1700, 1840,

2215, 2296, 2299 and 3421 to 3468). The FFCB again asked the federal government to

intervene.

Page: 26

[52] In a letter sent in January 2011 to the Minister of HRSDC at the time, Diane Finley, the

FFCB was indignant about the devastating consequences that the closure of the five centres

would have on the French linguistic minority community. The Minister responded five months

later, entirely avoiding the issue surrounding the continued participation of the Francophone

organizations. Minister Finley indicated that the linguistic clause would be respected and invited

the FFCB to raise issues pertaining to the method of delivery of employment assistance services

with the B.C. government:

. . .

The Government of Canada expects that the Government of British

Columbia will honour its official language commitments under the

Canada-British Columbia LMDA. Human Resources and Skills

Development Canada officials have received assurances from the

provincial government on several occasions that it will continue to

provide French language labour market services where numbers

warrant.

Should you continue to have concerns related to labour market

service delivery in British Columbia, I would encourage you to

contact the Minister responsible, the Honourable Harry Bloy,

British Columbia Minister of Social Development and Minister

Responsible for Multiculturalism.

. . .

(Affidavit of Réal Roy, Exhibit U: Appeal Book, pp. 2237 and

2238)

[53] It became clear to everyone, following this last response, that only a good will gesture on

the part of B.C. could have allowed the Francophone organizations to preserve their role in the

provision of employment assistance services in the province. Indeed, the linguistic clause, which

the federal government brandished over the years as the ultimate response to the concerns of

Page: 27

Francophone organizations, did not require B.C. to preserve their participation in any way. The

only obligation imposed on B.C. by this clause was to ensure that the services would be available

in both official languages at the point of contact with the public, where demand warrants

(arts. 5.2 and 5.3 of the Agreement).

[54] A few days after receiving Minister Finley’s response, the FFCB filed its complaint with

the Commissioner. It is worth reproducing the essential components of the complaint in full:

[TRANSLATION]

. . .

Please accept this letter as a complaint filed by the FFCB with the

Office of the Commissioner of Official Languages further to the

cancellation, in five B.C. centres, of employment services

previously offered to Francophones through agreements signed

with the Department of Human Resources and Skills Development.

It affects La Boussole in Vancouver, Kelowna, Penticton and

Prince George and the Centre d’intégration des immigrants

africains in New Westminster.

Further to the devolution of federal government powers to the

provincial government under a bilateral agreement, the British

Columbia Ministry of Social Development notified these

organizations of the withdrawal of their funding in 2011 and of the

fact that they would no longer be able to offer employment

services to Francophone clients.

The signed agreement, however, contained a linguistic clause to

the effect that the federal department must ensure compliance by

guaranteeing that services are maintained, the importance of which

is well established. The demand for these services remains pressing

even when there are now no organizations that can meet this

demand.

The federal Department of Human Resources and Skills

Development accepted no responsibility and demonstrated a lack

of commitment. This provincial decision, which Ottawa cannot

ignore, is a serious infringement of the rights of Francophones in

Page: 28

British Columbia. This decision will have devastating

consequences for Francophones and on the community in which

these individuals live and will negatively affect the development

and vitality of our community.

. . .

(Affidavit of Réal Roy, Exhibit CC: Appeal Book, pp. 2271 and

2272)

[55] Three other complaints had been filed in the preceding months. Like the one filed by the

FFCB, each target the end of the funding for the Francophone organizations and their resulting

disengagement, to the detriment of the French linguistic minority community (Affidavit of Serge

Dancoste, Exhibit A; Affidavit of Tanniar Leba, Exhibit B; Affidavit of Duncan Shaw, Exhibits

DS-38 and DS-39: Appeal Book, pp. 337 to 339, 1576, 10281 to 10288).

[56] It should be noted that after the complaints were filed, the attempts made by the

Francophone organizations to continue their activities, within the model introduced by B.C. in

April 2012, failed miserably. Some obtained occasional subcontracts, but scant funding led to the

dismissal of almost all of their employees. Even the SFV, the only one of the five Francophone

organizations that obtained a subcontract to operate its own centre, was forced to dismiss half of

its employees and sublet part of its office space.

[57] After conducting his investigation, the Commissioner concluded that the complaints were

well-founded under both Part IV and Part VII of the OLA. According to his final report,

published in April 2013, HRSDC did not ensure, as required under Part IV of the OLA, that B.C.

was in fact offering employment assistance services in both official languages in the areas where

there was significant demand. As for Part VII, the Commissioner concluded that the federal

Page: 29

institutions were aware of the concerns of B.C.’s linguistic minority community but did not

bother to assess the potential impact that the model envisaged by B.C. would have on the vitality

of the Francophone community following the signing of the Agreement. Moreover, the federal

institutions took no measures in order to allow them to counter the negative impact of the

implementation of the Agreement in the event that it would adversely affect B.C.’s French

linguistic minority community (Final Investigation Report of the Office of the Commissioner of

Official Languages dated April 2013, pp. 17 to 19: Appeal Book, pp. 2312 to 2314).

[58] The application before the Federal Court was filed in August 2013 but was suspended to

allow the parties to explore the possibility of a settlement. The matter was finally heard in May

2017, and the decision dismissing the application was rendered on May 23, 2018. The appeals

were set to be heard in May 2020 on consent, but the public health crisis intervened before they

could be heard. The parties subsequently insisted on the appeals being argued in person with the

result that the hearing did not take place until October last.

DECISION UNDER APPEAL

[59] The trial judge’s reasons consist of 157 pages and 300 paragraphs. The following is a

summary of the essential points.

[60] The trial judge notes at the outset of the analysis that two agreements were signed by the

Government of Canada and B.C. in February 2008—the other being the Canada–British

Columbia Labour Market Agreement—but that only the one involving labour market

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development (the Agreement) was at issue before him (Reasons, para. 14). He explains that at

the time, funding approximating $300 million was paid annually by the federal institutions to

B.C. pursuant to this Agreement.

[61] According to the trial judge’s reading of the complaints, they were aimed at the new

employment assistance services program (the EPBC) and the “one-stop shop” model

implemented by B.C. in April 2012 (Reasons, paras. 22 to 25). After identifying these two

initiatives as the source of the complaints, he reviews the Commissioner’s final report, which

concluded that the complaints were well-founded (Reasons, paras. 29 and 30).

[62] The trial judge then addresses the application filed by the FFCB and describes the

applicable legal regime and the principles that guide the interpretation of language rights

(Reasons, paras. 31 to 53). He continues by explaining why, in assessing the validity of the

complaint filed by the FFCB, he must limit his review to the facts as they stood at the time it was

filed (Reasons, paras. 66 to 82). He concludes this discussion by faulting the FFCB for having

filed its complaint hastily, given that the EPBC and the “one-stop shop” model were introduced

after it was filed (Reasons, para. 83).

[63] The judge then examines the complaints in the light of Part IV of the OLA and asks

whether, for the purpose of the Agreement, B.C. is acting “on … behalf” of the federal

institutions as these words appear in section 25. He first dismisses the FFCB’s argument that

unemployment insurance is an exclusive federal jurisdiction. In so doing, he relies on Lavigne

FC, as affirmed by Lavigne FCA, and explains why, in his view, these decisions were not

Page: 31

overtaken by the Supreme Court’s decisions in Reference re: Employment Insurance Act (Can.),

ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669 [Reference re EIA], and Confédération des

syndicats nationaux v. Canada (Attorney General), 2008 SCC 68, [2008] 3 S.C.R. 511 [CSN]

(Reasons, paras. 87 to 89 and 101 to 118).

[64] Rather, the trial judge concludes that the measures contemplated by the Agreement come

within concurring jurisdictions. They fall under both the federal jurisdiction over unemployment

insurance under subsection 91(2A) and the provincial jurisdictions under subsections 92(13) and

(16) and section 93 of the Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C.

1985, App. II, No. 5 (Constitution Act, 1867). Thus, both the federal government and the

provinces, including B.C., can legitimately act within the field of activity covered by the

Agreement under their respective jurisdictions (Reasons, paras. 146 to 151).

[65] The fact that the benefits and measures contemplated by the Agreement are not provided

under a B.C. statute, contrary to the situation in Lavigne FC, does not change the fact that

employment assistance services provided under the Agreement are within B.C.’s jurisdiction

considering the mandate given by the province to the minister who signed the Agreement on its

behalf (Reasons, para. 151).

[66] The trial judge also rejects the Commissioner’s argument that even if there is concurrent

jurisdiction, the analysis of the “degree of control” that the federal institutions exercise over B.C.

pursuant to the Agreement—following this Court’s analysis in DesRochers v. Canada, 2006

FCA 374, [2007] 3 F.C.R. 3 [DesRochers FCA]—leads to the conclusion that they exercise

Page: 32

sufficient control to hold that B.C. is acting “on [their] behalf”. In his view, if control exists, it is

essentially financial (Reasons, paras. 90 to 94). The provisions of the Agreement and the manner

in which the benefits and measures are administered by B.C. do not support the conclusion that

B.C. is acting under the control of the federal institutions (Reasons, paras. 158 to 178).

[67] The trial judge then addresses the question as to whether B.C., by creating and offering

its own benefits and measures under the Agreement, is exercising its own legislative authority.

He concludes that such is the case (Reasons, paras. 119 to 134) since the “Commission only

funds these measures: it does not determine, deliver or administer them” (Reasons, para. 135; see

also para. 138).

[68] In short, the Agreement is a funding agreement pursuant to which transfer payments are

made for the development of the labour market in the province and under which the management

of employment assistance services is left under the exclusive control of the province, which

provides them in the course of a valid exercise of its own jurisdiction. It follows that B.C. is

acting neither “on … behalf” of the federal institutions nor under their control. Consequently,

Part IV of the OLA does not apply to it (Reasons, paras. 180 to 182).

[69] The trial judge then addresses the complaints with Part VII in mind. In his view, there is

no doubt that the federal institutions were subject to the obligation set out in Part VII and that

this continues to be the case, even in the context of the Agreement. He concludes, however, that

according to his interpretation of subsection 41(2) of the OLA and his assessment of the

Page: 33

evidence, the federal institutions took sufficient positive measures to meet this obligation

(Reasons, paras. 183 to 185).

[70] After refusing the Commissioner’s invitation to use the policy adopted by Canadian

Heritage (Guide for Federal Institutions on Part VII (Promotion of English and French) of the

Official Languages Act, 2007 (the Guide)) as a tool of statutory interpretation (Reasons,

paras. 186 and 187), he summarizes the parties’ arguments (Reasons, paras. 188 to 201). The

trial judge begins his analysis by emphasizing the distinction between Part IV and Part VII of the

OLA. In his view, Part VII, in contrast with Part IV, enacts duties but does not create

corresponding rights (Reasons, para. 204). Moreover, subsection 82(1) does not give Part VII

paramountcy over any other legislation, contrary to other parts of the OLA, particularly Part IV

(Reasons, para. 205).

[71] The trial judge then turns to the text of subsections 41(1) and (2) of the OLA. In his view,

the duty to take “positive measures” (“des mesures positives”, with emphasis on the use of the

word “des” in the French text) is undefined and signals that some deference must be given as to

the choice of the measures (Reasons, para. 208). Moreover, the measures must be “positive”, that

is, meant to have a positive effect. That said, “[t]here is no explicit or implicit threshold

in subsection 41(2). The subsection simply imposes a general duty to take ‘positive measures’”

(Reasons, para. 210). Moreover, “the qualifier ‘positives’ (in the French text) [is used] without

providing further clarification or restrictions” (Reasons, para. 213).

Page: 34

[72] The trial judge continues his textual analysis by pointing to the second sentence of

subsection 41(2), which makes clear that the implementation of Part VII must be carried out

while respecting the jurisdiction and powers of the provinces (Reasons, para. 218). He goes on to

reject the Commissioner’s submission that, in order to meet the obligation under Part VII, federal

institutions must be attentive to official language minority communities and must assess the

impact of their decisions on those communities. According to the trial judge, this approach was

rejected by the Federal Court in Fédération des communautés francophones et acadienne du

Canada v. Canada (Attorney General), 2010 FC 999, [2012] 2 F.C.R. 23 [FCFA] (Reasons,

paras. 216, 217 and 242).

[73] The trial judge then turns to subsection 41(3) of the OLA, which provides that the

Governor in Council may make regulations “prescribing the manner in which any duties of those

institutions under this Part are to be carried out” (Reasons, para. 219). In his view, the fact that

no regulations have been adopted means that the obligation under Part VII lacks the specificity

needed to require federal institutions to take specific measures (Reasons, paras. 220 and 221).

According to him, this is the view that was expressed by Senator Jean-Robert Gauthier, who

sponsored the bill that led to the adoption of An Act to amend the Official Languages Act

(promotion of English and French), S.C. 2005, c. 41 (Act to amend the OLA, 2005) (Reasons,

paras. 222, 230 to 232 and 293).

[74] In the trial judge’s view, the general duty to act does not create an obligation to take

“measures that would directly ensure the vitality of the English and French linguistic minority

communities or the advancement of both official languages” (Reasons, para. 226). That

Page: 35

obligation would be too specific. Even the corollary duty “to act in such a way so as not to

hinder” remains vague and imprecise: “without regulations specifying its scope and scale,

subsection 41(2) cannot include the requirement of increased specificity or connection with

particular programs or factual situations . . .” (Reasons, paras. 227 and 235; see also paras. 249 to

253). Moreover, the obligation under Part VII could not be “directly related to the specific

factual framework of the complaint filed with the Commissioner . . .” (Reasons, para. 244).

[75] Finally, the trial judge considers whether, in light of the general obligation under

Part VII, the FFCB’s complaint was well-founded at the time it was filed, that is, on June 15,

2011 (Reasons, para. 259). On the basis of his reading of the complaint, the negative measures at

issue would have been taken by B.C., not by the federal institutions. Specifically, the negative

impact on the French linguistic community is attributable to the implementation by the province

of the EPBC and its “one-stop shop” model (Reasons, para. 281), neither of which were in place

on June 15, 2011 (Reasons, paras. 282 to 288).

[76] In any event, the trial judge concludes that sufficient positive measures were taken by the

federal institutions prior to June 15, 2011. These include the insertion of the consultation clause

in article 5.4 of the Agreement, the consultations that took place thereafter, the guidelines

provided by Canadian Heritage and various initiatives taken by ESDC within its institutional

mandate. In order to highlight the importance he attributes to these measures, he writes (Reasons,

para. 276):

There is a vast watershed of measures. The flow starts further

upstream with principles and guidelines at the level of Canadian

Page: 36

Heritage and ESDC. It cascades downward, subsequently irrigating

an array of more local initiatives . . . .

[77] In the trial judge’s view, these measures, together with the linguistic clause, contributed

“positively to the vitality and development of the French-speaking community in [B.C.] . . .”,

such that the obligation under Part VII was met (Reasons, para. 260; see also paras. 261 to 279).

[78] At the end of his analysis, the trial judge recognizes that these measures do not remedy

the specific problem pertaining to B.C.’s decision to do away with the participation of the

Francophone organizations. The trial judge also recognizes that positive measures to counter this

adverse effect would have contributed even more to the growth and vitality of the Francophone

linguistic minority community in B.C. However, in the absence of regulations specifying their

obligation under Part VII, the federal institutions could not be sanctioned for their omission

(Reasons, para. 268).

[79] The trial judge therefore dismissed the FFCB’s application under Part VII. His ultimate

conclusion is that “there was no failure to comply . . . when the FFCB filed its complaint . . .”

(Reasons, para. 299).

Page: 37

POSITIONS OF THE PARTIES

A.

The appellants and their supporting interveners

The FFCB



[80] According to the FFCB, the trial judge erred in law in his application of both Part IV and

Part VII. Had he adopted the correct interpretation of either part, he would necessarily have

found that the complaints had merit at the time they were filed (Memorandum of the FFCB,

paras. 66 to 88).

[81] Regarding Part IV, the FFCB submits that the trial judge erred in limiting his analysis to

section 25 of the OLA and to the question of whether B.C. was acting under the control of the

federal institutions. He was required to also consider subsection 20(1) of the Charter since the

purpose of Part IV is to give effect to this provision (Memorandum of the FFCB, paras. 13 and

14).

[82] The FFCB relies on Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R.

624, 151 D.L.R. (4th) 577 [Eldridge] and DesRochers v. Canada (Industry), 2009 SCC 8, [2009]

1 S.C.R. 194 [DesRochers SCC] which, it submits, establish the rule that federal institutions

cannot avoid their constitutional obligation by entrusting the implementation of a specific federal

program to a province. The FFCB contends that this is the precise role assigned to B.C. pursuant

to the Agreement, as it must provide the services and measures in a manner consistent with the

guidelines of the EIA (Memorandum of the FFCB, paras. 15 to 24).

Page: 38

[83] In the alternative, the FFCB, citing paragraph 51 of DesRochers FCA in support,

maintains that regardless of Eldridge, the trial judge should have found that B.C. was acting

under the control of the federal institutions given the considerable supervisory authority that they

exercised (Memorandum of the FFCB, para. 25).

[84] Thus, Part IV applies to B.C. even though it has concurrent constitutional jurisdiction to

legislate in matters relating to employment benefits. The trial judge also erred in relying on

Lavigne FC to establish that B.C. was acting within its own jurisdiction. According to the FFCB,

although Lavigne FC is authority for the proposition that a section 63 agreement does not

constitute a delegation of power to the provinces, it does not follow that “the OLA does not

apply to benefits and measures” offered by B.C. pursuant to the Agreement (Memorandum of the

FFCB, paras. 26 to 29; citing Reasons, para. 95).

[85] Regarding Part VII, the FFCB submits that section 41 of the OLA imposes concrete

obligations on federal institutions and establishes parameters that are sufficiently clear to be the

subject of review by the courts (Memorandum of the FFCB, para. 31).

[86] In this respect, the trial judge erred in concluding that the obligation cast on federal

institutions to take positive measures does not impose a specific obligation. He also erred in

giving undue weight to the absence of regulations. This approach renders Part VII meaningless

since it implies that any step taken by the federal institutions would suffice, regardless of its

relationship to the issue raised by a complaint (Memorandum of the FFCB, paras. 30 and 36 to

69).

Page: 39

[87] According to the FFCB, the obligation to enhance the vitality of linguistic minority

communities requires more than simple consultations; it requires, at minimum, that consideration

be given to their needs and concerns. To this end, the obligation set out in section 41 requires

federal institutions to adopt mechanisms to verify the impact of the measures taken. Federal

institutions may choose these mechanisms, but having none is not an option (Memorandum of

the FFCB, paras. 40 to 42 and 50 to 54).

[88] Finally, the trial judge should not have limited the scope of Part VII on the basis of his

rejection of the ratchet principle, and this, despite the decision of the Ontario Court of Appeal in

Lalonde v. Ontario (Commission de restructuration des services de santé), 56 O.R. (3d) 505, 208

D.L.R. (4th) 577 [Lalonde]. The fact that the Charter does not “constitutionalize” the measures

taken in order to advance linguistic equality (Lalonde, para. 92) does not prevent the enactment

of legislation to that effect, and that is precisely what section 41 seeks to achieve in requiring

federal institutions to act so as to enhance the vitality of official language minority communities

and not hinder them (Memorandum of the FFCB, paras. 43 to 49).

[89] As to the relief, the FFCB essentially asks that we remedy the failure of the federal

institutions to meet the obligations imposed on them by Parts IV and VII of the OLA. In

particular, it proposes that the responsibility of providing services in French be entrusted to

Francophone organizations that have a mandate to serve the Francophone community in B.C.

and that would take its needs into account (Memorandum of the FFCB, para. 91).

Page: 40



The Commissioner

[90] The Commissioner does not question the trial judge’s findings insofar as Part IV is

concerned. As to Part VII, the Commissioner emphasizes that the trial judge’s interpretation

renders the Part VII obligation too general to be justiciable. Relying on the administrative policy

published by Canadian Heritage and parliamentary debates, the Commissioner maintains that this

obligation applies in the context of every decision or initiative taken by a federal institution.

Thus, subsection 41(2) imposes an obligation to verify the impact that those decisions and

initiatives can have on official language minority communities and counter their negative impact

by the adoption of positive measures, if need be (Memorandum of the Commissioner, paras. 12

to 48).

[91] The Commissioner also refers to subsection 58(1) of the OLA and to Picard v. Canada

(Commissioner of Patents), 2010 FC 86, [2011] 2 F.C.R. 192 [Picard] to assert that only an

analysis of the precise factual situation underlying a complaint would be consistent with the

statutory mandate conferred on the courts by subsection 77(1) of the OLA and consistent with a

broad and liberal interpretation of language rights (Memorandum of the Commissioner, paras. 49

to 58; citing Picard, para. 68).

[92] Finally, the Commissioner is of the view that the government measure targeted by the

complaint is the 2008 Agreement and the negative impact that it had on the Francophone

community. It follows that facts evidencing this negative impact are relevant, whether they took

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place before or after the complaint was filed (Memorandum of the Commissioner, paras. 76 to

81; citing section 77 of the OLA).



The AJEFNB

[93] The intervener the AJEFNB generally supports the arguments raised by the appellants.

With respect to Part IV, it submits that Lavigne FC must be repudiated because that decision

allows questions relating to the division of powers to override constitutional obligations

regarding language rights (Memorandum of the AJEFNB, paras. 65 to 71).

[94] Moreover, Lavigne FC would be inconsistent with Société des Acadiens et Acadiennes du

Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383 [SANB]. According to

the AJEFNB, this decision stands for the proposition that as soon as one level of government

cooperates with another order of government by acting voluntarily in the areas of jurisdiction of

its partner, it is subject to the latter’s linguistic obligations. According to the AJEFNB, this is

what B.C. does pursuant to the Agreement (Memorandum of the AJEFNB, paras. 59 to 64).



The QCGN

[95] The intervener the QCGN shares the appellants’ vision and understanding of the Part VII

obligation and insists that this is the only interpretation that is consistent with the principle of

substantive equality and the objective set out in paragraph 2(b) of the OLA to give effect to

section 16 of the Charter (Memorandum of the QCGN, paras. 6 to 47).

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[96] According to the QCGN, the trial judge erred in concluding that Part VII cannot be used

to revive Part IV obligations. On the contrary, Part VII contemplates going beyond Part IV

obligations when such an approach is necessary to avoid harm to linguistic minority

communities and to comply with the principle of substantive equality (Memorandum of the

QCGN, paras. 48 to 58; citing Reasons, para. 206).

B.

The respondents and the Attorney General of B.C.

ESDC and the Commission



[97] According to the respondents, the trial judge correctly held that the complaint filed by the

FFCB was premature. The respondents submit that the complaint did not target the Agreement,

but was rather aimed at the anticipated reduction in funding for the Francophone organizations

and the fear that services in French would no longer be offered after the introduction of the

EPBC (Memorandum of the Respondents, paras. 35 to 41).

[98] The respondents add that B.C. cannot be made subject to the obligations imposed on the

federal institutions under Part IV of the OLA because B.C. is acting within its own jurisdiction.

Indeed, although the benefits and measures are funded by the federal institutions, they are

designed by B.C. and are not created by the Agreement or by section 63 of the EIA

(Memorandum of the Respondents, paras. 46 to 49).

[99] The absence of provincial legislation authorizing the implementation of the Agreement

does not alter the situation in any way, since the benefits and measures are offered pursuant to

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the explicit mandate given by B.C. to its Minister of Economic Development, as a signatory to

the Agreement. Since Parliament’s jurisdiction over official languages is ancillary to its areas of

legislative authority, B.C. cannot be made subject to the obligations of either the OLA or

subsection 20(1) of the Charter (Memorandum of the Respondents, paras. 50 to 59; citing R. v.

Beaulac, [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193, para. 14 [Beaulac]).

[100] The respondents maintain that the trial judge properly followed the reasoning set out in

Lavigne FC, since that decision was affirmed on appeal (Lavigne FCA) and the facts were

essentially the same (Memorandum of the Respondents, para. 69).

[101] Like the one at issue in Lavigne FC, the Agreement is a general funding framework that

does not direct B.C. as to what to do. If there are any conditions, they are derived from the

federal government’s spending power and B.C. is bound only to the extent that it agrees to abide

by these conditions. In this context, the suggestion that B.C. is acting on behalf of the

respondents disregards the division of powers and would impose on the provinces linguistic

obligations that they do not have (Memorandum of the Respondents, para. 68; Reply

Memorandum of the Respondents, paras. 33 to 37).

[102] Regarding Part VII of the OLA and more precisely subsection 41(2), the respondents

argue that in requiring federal institutions to take “positive measures” (des mesures positives in

the French text), Parliament did not intend to dictate the precise measures that they should take

or the specific methodology that they should use in order to meet the commitment to enhance the

vitality of official language minority communities (Memorandum of the Respondents, paras. 70

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to 74). Nor can the eminently important objective of the OLA be used to transform an obligation

of means into an obligation of result (Reply Memorandum of the Respondents, paras. 20 to 26).

[103] In the absence of a regulation made under subsection 41(3) of the OLA, the obligation of

federal institutions to take positive measures is subject to no specific terms or conditions.

According to the respondents, the important role that the trial judge attributes to regulations

respects the hierarchy of norms, and it is rather the courts that would be overstepping their role

and usurping the role of the executive if they were to impose specific terms (Memorandum of the

Respondents, paras. 75 to 78; Reply Memorandum of the Respondents, paras. 40 and 41).

[104] According to the respondents, the trial judge was correct in rejecting the ratchet principle,

since it is inconsistent with the broad discretion afforded to the federal institutions in choosing

the appropriate positive measures in each case. The objective of advancing substantive equality

does not have the effect of crystallizing the measures taken to the point where they cannot be

changed or replaced (Memorandum of the Respondents, paras. 79 and 80; Reply Memorandum

of the Respondents, paras. 12 to 14; citing Lalonde and R. v. MacKenzie, 2004 NSCA 10, 221

N.S.R. (2d) 51 [MacKenzie]).

[105] The trial judge was also correct in holding that sufficient positive measures had been

taken by the federal institutions. First, ESDC consulted with members of the B.C. Francophone

community both before and after the Agreement was entered into. In addition, a commitment

was obtained from B.C. to further consult, which it did, not to mention the many other measures

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taken, independent of the Agreement (Memorandum of the Respondents, paras. 82 to 85 and 88,

citing Reasons, paras. 260 to 279 and art. 5.4 of the Agreement).

[106] In conclusion, the respondents submit that even if the Court were to find that a violation

of the OLA existed at the time the complaint was filed, no remedy should be granted since the

failure targeted by the complaint has since been remedied because French-language services that

are compliant with the Agreement are now offered in B.C. (Memorandum of the Respondents,

paras. 87 to 91).



The Attorney General of B.C.

[107] The intervener the Attorney General of B.C. chose not to appear at the hearing of the

appeal in Vancouver, but did file a memorandum. The arguments outlined are limited to Part IV

and whether B.C. was acting within its own constitutional powers when it entered into and

implemented the Agreement.

[108] Specifically, the Attorney General of B.C. argues that the FFCB wrongly asserts that

B.C., in implementing the Agreement, is giving effect to a specific federal program or acting on

behalf of the federal institutions. First, the test developed in Eldridge is used for determining

whether the Charter applies to a private entity, not to a province. Second, the intent behind

section 63 of the EIA is not to impose a federal scheme on the provinces, but rather to give them

full control over the creation and implementation of benefits and measures in matters of

employment assistance (Memorandum of the Attorney General of B.C., paras. 12 to 25; citing

Eldridge, para. 44).

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ANALYSIS AND DECISION

A.

Standard of review

[109] As we are dealing with two appeals, the standard of review established by the Supreme

Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, is applicable. It follows that

questions of law, including the determination of the applicable legal principles, are subject to the

standard of correctness while the application of those principles to the facts in issue is subject to

the standard of palpable and overriding error in the absence of an extricable legal principle. If the

trial judge conducts his analysis on the basis of the wrong legal principle, no deference is owed.

B.

Interpretation of language rights

[110] At the outset of his analysis, the trial judge reviewed the principles of interpretation

applicable to language rights (Reasons, paras. 46 to 53). He pointed out that the OLA is a

fundamental law that is closely linked to the values and rights set out in the Constitution and, in

particular, in subsections 20(1) and 16(1) of the Charter, which deal with language of service and

language of work.

[111] Therefore, “in all cases” language rights must be interpreted “purposively, in a manner

consistent with the preservation and development of official language communities” (Reasons,

para. 48, citing Beaulac, para. 25). That said, the modern approach to statutory interpretation,

which requires that the words of an Act be read in their entire context and in their grammatical

and ordinary sense harmoniously with the scheme of the Act, its object and the intention of

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Parliament, continues to apply even with respect to language rights (Reasons, para. 52, citing

Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, para. 38; Thibodeau v. Air Canada, 2014

SCC 67, [2014] 3 S.C.R. 340, para. 112; Lavigne v. Canada (Office of the Commissioner of

Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773 [Lavigne SCC], para. 25; Tran v.

Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289 and

Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, para. 21).

[112] The appellants do not question the principles of interpretation so described. Only the trial

judge’s application of these principles to the legal provisions at issue is challenged on appeal.

C.

Part IV of the OLA

[113] The obligations set out in Part IV of the OLA, including the obligation to provide

services to the public in either official language where demand warrants, apply to the provinces

when they act in the name of the federal government, or more specifically “on its behalf” (s. 25

of the OLA).

[114] Before the trial judge, the FFCB relied on Reference re EIA and CSN to argue that B.C.

was acting “on … behalf” of the federal institutions because the measures implemented under the

Agreement fall within the exclusive jurisdiction of the federal government in matters relating to

unemployment insurance (Reasons, para. 89). Instead, the trial judge concluded that the

provincial legislature has concurrent jurisdiction in such matters, citing in support the decision of

the Federal Court in Lavigne FC, as affirmed by this Court in Lavigne FCA (Reasons, paras. 87

to 118).

Page: 48

[115] The Commissioner, for his part, referred to DesRochers FCA in an effort to persuade the

trial judge that the “degree of control” exercised by the federal institutions over B.C. under the

Agreement was sufficient to hold that the province was acting “on … behalf” of those

institutions for the purposes of section 25 of the OLA (Reasons, para. 90). The trial judge

rejected this argument pointing out that the federal institutions only supplied the funding and that

the benefits and measures were provided by B.C. on its own initiative and under its own

constitutional authority. Specifically, it is B.C. that determines, delivers and administers these

benefits and measures (Reasons, para. 135) and the province agreed to abide by the conditions

set out in the Agreement in the exercise of its own legislative authority under subsections 92(13)

and (16) or section 93 of the Constitution Act, 1867. Again, the trial judge ultimately relied on

Lavigne FC and Lavigne FCA as well as paragraph 54 of DesRochers FCA to conclude that the

fact that the federal government provides the funding does not mean that B.C. is acting “on …

behalf” of the federal institutions (Reasons, paras. 158 to 178).

[116] Like the trial judge, we are of the view that Lavigne FC and Lavigne FCA preclude the

application of Part IV. However, the FFCB and the AJEFNB ask that we either repudiate these

decisions because they were incorrectly decided or ignore them on the basis that they were

overtaken by Eldridge and SANB.

[117] Like the Federal Court, we are bound by our own decisions unless they are shown to be

“manifestly wrong” (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149,

para. 10). Lavigne FC, upheld by the Court in Lavigne FCA, was decided in a context nearly

identical to the one at hand and has stood as authority for more than 20 years. Contrary to the

Page: 49

assertion made by the FFCB, Lavigne FC—at paragraphs 55 and 80 to 83—answers the precise

question of whether the OLA applies to benefits and measures provided by a province under the

type of agreement at issue in the present case (Memorandum of the FFCB, para. 29).

[118] Adopting a different tack, the AJEFNB submits that those decisions should not be relied

on because Mr. Lavigne, the complainant in Lavigne FC, was self-represented. The suggestion is

that the Court did not have the benefit of fulsome arguments. The AJEFNB maintains that

neither Eldridge nor subsection 20(1) of the Charter were brought to the Court’s attention and

adds that the Commissioner did not appear in that proceeding.

[119] These attempts to cast doubt on the correctness of Lavigne FC and Lavigne FCA are

unpersuasive. While it is true that the Commissioner did not appear, his report was part of the

record before the Federal Court, and the recommendation that it embodied was followed by the

Court (Lavigne FC, paras. 12, 13 and 68). As for subsection 20(1) of the Charter, it was indeed

raised in argument and found not to apply because, like B.C. in this case, Quebec was acting on

its own account pursuant to the agreement it had entered into (Lavigne FC, paras. 52, 95 and

105).

[120] As for Eldridge, its relevance is no more apparent today than it was when Lavigne FC

and Lavigne FCA were decided. This is because even if we were to accept that based on

Eldridge, a federal institution cannot evade its constitutional responsibilities by delegating the

exercise of its powers to a province (Eldridge, para. 42), that issue does not arise here because

B.C. is exercising its own powers under the Agreement (Lavigne FC, paras. 71 to 87; Lavigne

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FCA, para. 2). Furthermore, B.C. is not being asked to implement a “specific … program” of the

federal government (Eldridge, para. 42). Rather, it is invited to occupy exclusively a field of

activity that was previously shared with the federal government.

[121] SANB also arises in a context that is completely different from the one at hand. In that

case, the federal institution in question—the RCMP—assumed by way of contract the

responsibility of providing police services to the province of New Brunswick. That is the context

in which it was held that the RCMP was bound by the linguistic obligations imposed by the

province for which it was acting. In contrast, B.C. is acting for no one else, and the functions that

it assumes fall within its own jurisdiction.

[122] It follows that the alleged inconsistency with the jurisprudence of the Supreme Court

does not exist. Without making any assumption about the scope that the Supreme Court might

give to its own decisions if it were called upon to pronounce on the matter, those decisions do

not allow us to conclude that Lavigne FC and Lavigne FCA were wrongly decided or that the

trial judge erred in holding that he was bound by them.

[123] Therefore, the appeal relating to Part IV of the OLA must fail.

D.

Part VII of the OLA

[124] This is the first time that this Court is called upon to rule on the interpretation to be given

to Part VII in its current form.

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[125] Part VII conveys the federal government’s commitment to enhance the vitality of the

English and French linguistic minority communities in Canada and sets out the obligation of

federal institutions to take positive measures towards that end. The appellants submit that the

trial judge’s interpretation of this obligation is restrictive to the point that no effect can be given

to the federal government’s commitment.

[126] It is therefore necessary to determine the meaning to be given to this commitment and to

the obligation to take positive measures to deliver on it. To this end, we must read the provisions

embodied by Part VII in their entire context, according to the grammatical and ordinary sense of

the words, harmoniously with the scheme of the OLA, its object and the intention of Parliament.



The context surrounding Part VII

[127] The obligation set out in Part VII is part of the Government of Canada’s formal

commitment to enhancing the vitality and supporting the development of the English and French

linguistic minority communities, as an integral part of the two official language communities of

Canada, and to fostering full recognition and use of English and French in Canadian society

(Preamble to the OLA). This commitment is inspired by the principle of the protection of

minorities and the advancement of the equality of status and use of English and French set out in

subsection 16(3) of the Charter (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 161

D.L.R. (4th) 385, paras. 79 to 82; Vriend v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385,

para. 176).

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[128] In Beaulac, the Supreme Court enshrined the notion of substantive equality in our

understanding of the language rights protected by the OLA, but this notion of equality could not

at the time be transposed to Part VII of the OLA because the promise that it reflected was

political, rather than legal. This Court stated the following in Canadian Food Inspection Agency

v. Forum des maires de la Péninsule acadienne, 2004 FCA 263, [2004] 4 F.C.R. 276 [Forum des

maires], five years after Beaulac (Forum des maires, para. 39):

It is true that the protection of language rights constitutes a

fundamental constitutional objective and requires particular

vigilance on the part of the courts, and that the courts must

generously construe the texts that confer these rights, but it is also

necessary that these be rights to protect and not policies to

define. . . . [Emphasis added.]

This finding led the Court to conclude, at the time, that Part VII was not justiciable (Forum des

maires, para. 44).

[129] It is in the wake of this decision that subsections 41(2) and (3) were incorporated into the

OLA in November 2005 (Act to amend the OLA, 2005), and that Part VII was added to the

provisions of the OLA that may give rise to a court remedy. These amendments address the

shortcoming identified in Forum des maires and make Part VII justiciable, thereby transforming

“policies to define” into “rights to protect”.



The purpose of subsections 41(1) and (2)

[130] Subsections 41(1) and (2) set out the obligation created by Part VII. There is no need to

conduct an extensive search to ascertain their purpose. They faithfully echo the

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quasi-constitutional purpose set out in paragraph 2(b) of the OLA, namely, to support the

development of English and French linguistic minority communities and advance the equality of

the two languages. It is with this purpose in mind that we must interpret subsections 41(1)

and (2).

[131] We note that, although Part VII has been subject to judicial oversight since 2005, it was

not added to the parts listed in subsection 82(1) of the OLA that are said to prevail over

conflicting provisions of any other Act. This is because, unlike these other parts—namely Part I

(“Proceedings of Parliament”), Part II (“Legislative and Other Instruments”), Part III

(“Administration of Justice”), Part IV (“Communications with and Services to the Public”) and

Part V (“Language of Work”)—which provide for specific obligations that the legislator can

identify with precision and prioritize, Part VII can be applied to an unlimited number of

situations that do not lend themselves to that kind of exercise.

[132] Because it is impossible to identify with any precision the situations in which the

obligation set out in Part VII can apply, the legislator left it to the courts to settle any conflict

with other legislation. It remains that, like the other parts listed in subsection 82(1), Part VII

must be interpreted broadly since it shares the same purpose, namely, to support the development

of official language minority communities and to advance the equality of the two languages

(para. 2(b) of the OLA).

[133] It is helpful to consider the purpose of Part VII in light of the Supreme Court’s rich body

of case law on language rights. In Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14,

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[2005] 1 S.C.R. 201 [Solski], the Supreme Court establishes that language rights “cannot be

analysed in the abstract, without regard for the historical context of the recognition thereof or for

the concerns that the manner in which they are currently applied is meant to address” (Solski,

para. 5).

[134] With this in mind, the concerns that Part VII is meant to address are not unlike those

protected by the constitutional entitlement to minority language education (s. 23 of the Charter).

In Mahe v. Alberta, [1990] 1 S.C.R. 342, 68 D.L.R. (4th) 69 [Mahe], the Supreme Court refers to

section 23 of the Charter and explains that it seeks “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” (Mahe,

p. 362).

[135] More recently, in Conseil scolaire francophone de la Colombie-Britannique v. British

Columbia, 2020 SCC 13, 447 D.L.R. (4th) 1 [Conseil scolaire francophone de la C.-B.], the

Supreme Court refers to the purpose of this provision, stating that it “is intended not only to

prevent the erosion of official language communities, but also to redress past injustices and

promote the development of those communities” (Conseil scolaire francophone de la C.-B.,

para. 15).

[136] To be clear, the constitutional protection under section 23 of the Charter is not the same

as that under Part VII of the OLA and the two should not be conflated. Nevertheless, the OLA

has a special status and is broad in scope in that it governs situations where “the existence of

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language communities and the manner in which those communities perceive their future” are in

issue (Solski, para. 4). Given the crucial role of Part VII in promoting bilingualism (Lavigne

SCC, para. 23), preventing the erosion of language communities is also part of the objectives that

must guide the “positive measures” to be taken under subsection 41(2).

[137] Moreover, since 2005 and unlike the situation that prevailed when Forum des maires was

decided, these measures must also be guided by the standard of substantive equality (DesRochers

SCC, para. 31). As recognized by the Supreme Court, substantive equality sometimes requires

that the services received by official language minorities be different from those received by the

majority. This different treatment is based on the idea that “their particular circumstances and

needs” must be taken into account (Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1,

[2000] 1 S.C.R. 3, para. 31).



The wording of the provisions in Part VII

[138] In our view, an interpretation of Part VII that gives effect to the grammatical and ordinary

sense of the words allows for the intended purpose to be achieved.

[139] According to subsection 41(2): “Every federal institution has the duty to ensure that

positive measures are taken for the implementation” of the commitment under subsection 41(1),

namely “enhancing the vitality of the English and French linguistic minority communities . . .

and supporting and assisting their development” and “fostering the full recognition and use of

both English and French . . .”.

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[140] The phrase “has the duty”, or “[i]l incombe” in the French text, is unequivocal. It requires

federal institutions to act in order to achieve the purpose set out in paragraph 2(b) and reiterated

in subsection 41(1). The reference to “measures” (des mesures in the French text) allows federal

institutions to choose which measures to take, but the obligation to take measures is not thereby

diminished.

[141] The word “ensure” implies an obligation that is ongoing. The obligation to take positive

measures applies so long as a federal institution can act towards achieving the intended purpose.

[142] It is by the taking of “positive measures” that federal institutions are invited to act. The

intention is to mobilize the federal administration and use it in order to enhance the vitality of

official language minority communities through the decisions and initiatives that it is called upon

to take. The duty to “enhance” necessarily entails a duty not to harm, as the trial judge

acknowledged (Reasons, paras. 227 to 229; see to the same effect Canada (Official Languages)

v. CBC/Radio-Canada, 2014 FC 849, [2015] 3 F.C.R. 481, para. 33 [CBC FC], rev’d on other

grounds 2015 FCA 251, [2016] 3 F.C.R. 55).

[143] The last sentence of subsection 41(2) specifies, for greater certainty, that the

implementation of positive measures must be carried out while respecting the jurisdiction of the

provinces. It goes without saying that the federal government can only regulate official

languages in areas that are within its jurisdiction. We note that in the present case, any obligation

set out in the Agreement in order to enhance the vitality of the French linguistic minority

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community—for example, B.C.’s obligation to consult regarding the measures that it adopts—is

binding on the province only because it has agreed to comply.

[144] Lastly, subsection 41(3) allows the Governor in Council to make regulations “prescribing

the manner in which any duties of [federal] institutions under [Part VII] are to be carried out”.

The wording contemplates the making of regulations to guide the implementation of the

obligation set out in Part VII, if the executive considers it useful to do so. Moreover, it is clear

from the text of subsection 41(2) that the obligation arises under that provision and exists

independently of the adoption of a regulation.



The interpretation of the trial judge

[145] The trial judge’s interpretation of Part VII essentially renders it meaningless. In his view,

“section 41 does not impose specific and particular duties” (Reasons, para. 216), and in the

absence of a regulation specifying the “general duty” to take positive measures, this duty lacks

the specificity that it could and should have (Reasons, para. 221). It follows that the

implementation of “some positive measures” is sufficient to meet the obligation set out in

Part VII (Reasons, para. 240), and that there is no “minimum … threshold” to meet (Reasons,

para. 250). In particular, positive measures cannot be aimed at countering the adverse effect of a

specific government program or of a particular initiative because such an approach would give

the obligation a degree of specificity beyond its general scope. Moreover, this would encroach on

the discretion given to federal institutions under subsection 41(2) to adopt positive measures of

their choice (Reasons, para. 244). Again, only a regulation could allow for a particular program

or a specific situation to be targeted by a complaint (Reasons, para. 248).

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[146] With all due respect to the trial judge, his interpretation of Part VII departs from its text,

ignores its purpose and gives the regulation a significance that the legislator did not contemplate.

[147] Parliament may delegate to the Governor in Council (the executive) the power to impose

an obligation by regulation, but this is not the approach set out in Part VII. As the text indicates,

the obligation to take positive measures is derived from the OLA itself, and it is the manner in

which this obligation is to be carried out that the Governor in Council “may” prescribe by

regulation. The obligation to enhance the vitality of linguistic minority communities

contemplates concrete actions, recognizable on the basis of the intended purpose, without the

need for further specification by way of a regulation.

[148] The trial judge construes the remarks made by Senator Jean-Robert Gauthier before the

Standing Senatorial Committee on Official Languages on March 11, 2004, as going the other

way. In particular, he cites the following passage (Reasons, para. 232):

At the present time, there are no regulations governing Part VII of

the Official Languages Act. Consequently, there are none for

section 41. Having legislation without regulations is like having a

watchdog with no teeth, or such a tiny one that no one could take it

seriously. The law must be enforceable, and must therefore have

regulations. [Emphasis added by the trial judge.]

[149] The meaning to be given to Part VII does not depend on the opinion given by Senator

Gauthier, but his view is of interest given the crucial role that he played in bringing about the

2005 amendment (see in this regard Forum des maires, para. 44). We agree with the

Commissioner that Senator Gauthier cannot be taken to have said that a regulation was necessary

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in order to give effect to the obligation set out in Part VII. We note in particular the later passage

to which the Commissioner refers at paragraph 61 of his memorandum:

I think it might be useful to state that the amendment seeks only to

clarify the government’s power to pass regulations. Part VII is the

only part of the act that does not give the government the explicit

power to pass regulations. Even Part VI, which deals with

equitable participation, refers to the government’s commitment, as

does Part VII. The purpose of my amendment is to correct this

omission from the act. . . . This is a discretionary power. The

government is not required to pass any regulations. [Emphasis

added by the Commissioner.]

[150] In our view, a full reading of Senator Gauthier’s statements does not support the trial

judge’s assessment of this position.

[151] More significantly, the suggestion that a regulation is required in order for specific

measures to be taken would bring the obligation set out in Part VII to a standstill and defeat its

purpose rather than contribute to its achievement. The text of subsection 41(3) allows for a

reading that achieves the intended purpose.

[152] The suggestion that this obligation cannot target “a federal institution’s program, [a]

decision-making process, [a] particular initiative, or … a specific factual situation that may have

been the subject of a complaint” (Reasons, para. 250) is no more defensible. Indeed, it is mostly

if not exclusively in the context of a specific factual situation that questions can arise as to

whether the obligation to enhance the vitality of official language minority communities has

been met. Again, the trial judge’s interpretation of Part VII would render it ineffective.