Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development)

Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development)
Court (s) Database
Federal Court of Appeal Decisions
Date
2022-01-28
Neutral citation
2022 FCA 14
File numbers
A-182-18, A-186-18
Notes
A correction was made on December 20, 2023
Reported Decision
Decision Content
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
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
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
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
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
B. The respondents and the Attorney General of B.C. 42
- ESDC and the Commission 42
- The Attorney General of B.C. 45
ANALYSIS AND DECISION 46
A. Standard of review 46
B. Interpretation of language rights 46
C. Part IV of the OLA 47
D. 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
E. 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
DISPOSITION 77
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.
[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.
[9] 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 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.
[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 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 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 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 Development 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, 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).
[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 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.
-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 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.”
[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 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 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 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 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 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 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 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, 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 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.
[52] In a letter sent in January 2011 to the Minister of HRSDC at the time, Diane Finley, the FFCB was indignant about the devastat