Choquette v. Canada (Attorney General)

Choquette v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-09-27
Neutral citation
2024 FC 1529
File numbers
T-496-19
Decision Content
Date: 20240927
Docket: T-496-19
Citation: 2024 FC 1529
[ENGLISH TRANSLATION]
Ottawa, Ontario, September 27, 2024
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
françois choquette
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] In this application for judicial review under section 18.1 of the Federal Courts Act, RSC 1985, c. F-7, the applicant, François Choquette, takes issue with the Final Report of the Commissioner of Official Languages [Report] in which the Commissioner dismissed Mr. Choquette’s complaint.
[2] Essentially, Mr. Choquette takes issue with the scope of the investigation into his complaint. In his view, the investigation conducted by the Commissioner of Official Languages was unreasonable in that it focused on section 41 of the Official Languages Act, RSC 1985, c 31 (4th Supp) [Act or OLA], to the detriment of an investigation that would have addressed the specific responsibilities of the Minister of Canadian Heritage under section 43 of the Act. Because, according to the applicant, the Commissioner did not meaningfully grapple with the issues raised, his conclusion was not reasonable.
[3] It should be noted at the outset that this application for judicial review is to be decided on the basis of the Act as it stood at the time the investigation took place. The Act has since been considerably amended, and the new version came into force on June 20, 2023 (RS 2023, c 15). Section 41 has been amended by adding numerous new subsections, while subsections (2) and (3) have been adjusted. A new article 41.1 has been added. Section 42 as it stood at the time of the Commissioner’s investigation no longer exists and has been replaced with a section relating to the conduct of Canada’s external affairs and the promotion of French in Canadian diplomatic relations. A new section 42.1 recognizes the role played by the Canadian Broadcasting Corporation. Section 43 has also been amended. Although it is subsections 41(1), 41(2) and 43(1) that will be given significant consideration, I am reproducing sections 41 to 43 as they were at the time:
Government policy
Engagement
41 (1) The Government of Canada is committed to
(a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development; and
(b) fostering the full recognition and use of both English and French in Canadian society.
41 (1) Le gouvernement fédéral s’engage à favoriser l’épanouissement des minorités francophones et anglophones du Canada et à appuyer leur développement, ainsi qu’à promouvoir la pleine reconnaissance et l’usage du français et de l’anglais dans la société canadienne.
Duty of federal institutions
Obligations des institutions fédérales
(2) Every federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments under subsection (1). For greater certainty, this implementation shall be carried out while respecting the jurisdiction and powers of the provinces.
(2) Il incombe aux institutions fédérales de veiller à ce que soient prises des mesures positives pour mettre en œuvre cet engagement. Il demeure entendu que cette mise en œuvre se fait dans le respect des champs de compétence et des pouvoirs des provinces.
Regulations
Règlements
(3) The Governor in Council may make regulations in respect of federal institutions, other than the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer, office of the Conflict of Interest and Ethics Commissioner, Parliamentary Protective Service or office of the Parliamentary Budget Officer, prescribing the manner in which any duties of those institutions under this Part are to be carried out.
(3) Le gouverneur en conseil peut, par règlement visant les institutions fédérales autres que le Sénat, la Chambre des communes, la bibliothèque du Parlement, le bureau du conseiller sénatorial en éthique, le bureau du commissaire aux conflits d’intérêts et à l’éthique, le Service de protection parlementaire ou le bureau du directeur parlementaire du budget, fixer les modalités d’exécution des obligations que la présente partie leur impose.
Coordination
Coordination
42 The Minister of Canadian Heritage, in consultation with other ministers of the Crown, shall encourage and promote a coordinated approach to the implementation by federal institutions of the commitments set out in section 41.
42 Le ministre du Patrimoine canadien, en consultation avec les autres ministres fédéraux, suscite et encourage la coordination de la mise en œuvre par les institutions fédérales de cet engagement.
Specific mandate of Minister of Canadian Heritage
Mise en œuvre
43 (1) The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to advance the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to
43 (1) Le ministre du Patrimoine canadien prend les mesures qu’il estime indiquées pour favoriser la progression vers l’égalité de statut et d’usage du français et de l’anglais dans la société canadienne et, notamment, toute mesure :
(a) enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development;
a) de nature à favoriser l’épanouissement des minorités francophones et anglophones du Canada et à appuyer leur développement;
(b) encourage and support the learning of English and French in Canada;
b) pour encourager et appuyer l’apprentissage du français et de l’anglais;
(c) foster an acceptance and appreciation of both English and French by members of the public;
c) pour encourager le public à mieux accepter et apprécier le français et l’anglais;
(d) encourage and assist provincial governments to support the development of English and French linguistic minority communities generally and, in particular, to offer provincial and municipal services in both English and French and to provide opportunities for members of English or French linguistic minority communities to be educated in their own language;
d) pour encourager et aider les gouvernements provinciaux à favoriser le développement des minorités francophones et anglophones, et notamment à leur offrir des services provinciaux et municipaux en français et en anglais et à leur permettre de recevoir leur instruction dans leur propre langue;
(e) encourage and assist provincial governments to provide opportunities for everyone in Canada to learn both English and French;
e) pour encourager et aider ces gouvernements à donner à tous la possibilité d’apprendre le français et l’anglais;
(f) encourage and cooperate with the business community, labour organizations, voluntary organizations and other organizations or institutions to provide services in both English and French and to foster the recognition and use of those languages;
f) pour encourager les entreprises, les organisations patronales et syndicales, les organismes bénévoles et autres à fournir leurs services en français et en anglais et à favoriser la reconnaissance et l’usage de ces deux langues, et pour collaborer avec eux à ces fins;
(g) encourage and assist organizations and institutions to project the bilingual character of Canada in their activities in Canada or elsewhere; and
g) pour encourager et aider les organisations, associations ou autres organismes à refléter et promouvoir, au Canada et à l’étranger, le caractère bilingue du Canada;
(h) with the approval of the Governor in Council, enter into agreements or arrangements that recognize and advance the bilingual character of Canada with the governments of foreign states.
h) sous réserve de l’aval du gouverneur en conseil, pour conclure avec des gouvernements étrangers des accords ou arrangements reconnaissant et renforçant l’identité bilingue du Canada.
Public consultation
Consultation
(2) The Minister of Canadian Heritage shall take such measures as that Minister considers appropriate to ensure public consultation in the development of policies and review of programs relating to the advancement and the equality of status and use of English and French in Canadian society.
(2) Il prend les mesures qu’il juge aptes à assurer la consultation publique sur l’élaboration des principes d’application et la révision des programmes favorisant la progression vers l’égalité de statut et d’usage du français et de l’anglais dans la société canadienne.
I. The facts
[4] The facts giving rise to the filing of a complaint with the Commissioner of Official Languages are the following.
[5] Mr. Choquette claims that the Act was violated in connection with an [translation] “agreement” between the Minister of Canadian Heritage and Netflix. The Act sets out obligations for the government (s 41), and more specifically for the Minister of Canadian Heritage (s 43), regarding the promotion of official languages. These obligations were allegedly violated in what was in fact a Netflix investment agreement reached under the Investment Canada Act, RSC 1985, c 28 (1st Supp).
[6] It was on September 28, 2017, that an [translation] “agreement” was announced under which Netflix would invest $500 million dollars in original productions in Canada over the next five years. In addition, Netflix was to invest $25 million dollars to support French content on the Netflix platform through a market development strategy in Canada. This announcement appears to have been made in parallel with the roll-out of the federal government’s strategy for cultural and creative industries in a digital world.
[7] The day after the Netflix investment agreement was announced, the Minister of Canadian Heritage, in a radio interview, declared that [translation] “not only do we have an additional $500 million in our ecosystem for our producers, but we also have a $25 million development strategy for the Quebec market”. The sum of $500 million dollars does not include an investment threshold for French-language productions. This view of the investment is confirmed in an op-ed, published on September 30, 2017, in La Presse, under the Minister’s signature (Applicant’s Record, Tab 3B)).
[8] Mr. Choquette’s complaint was not long in coming. He was then a Member of Parliament. I reproduce his complaint here as it appears on the record. It is dated November 2, 2017, and it seems to be unequivocal:
[translation]
Complaint about the agreement between Netflix and the Government of Canada
(Our Ref.: 2017-1705-EI)
The agreement between the government and Netflix does not consider linguistic minority communities. This clearly contravenes Part VI (Participation of English-speaking and French-speaking Canadians) and Part VII (Advancement of English and French) of the Official Languages Act.
Mélanie Joly has stated on several Quebec media platforms that the $25 million envelope would be dedicated to the development of Quebec-only French-language content (interview with Paul Arcand on 98.5 FM). The information has been confirmed by Netflix. As it told radio host Paul Arcand on 98.5 FM. This revelation was confirmed by Netflix in a press release issued on October 10, in which the French-speaking community outside Quebec was completely forgotten.
Francophone communities outside Quebec are completely excluded from this agreement. The minority francophone cultural industry is concerned about this agreement.
Source: https://onfr.tfo.org/entente-canadanetflix-le-double-discours-de-la-ministere-joly
François Choquette
November 2, 2017
As the applicant himself states in his memorandum of fact and law, his complaint essentially criticizes Canadian Heritage’s failure to [translation] “consider official language minority communities in the Netflix agreement” (para 13).
[9] The Commissioner’s investigation follows. An investigator contacted an official at Canadian Heritage on December 7 and 29, 2017. He asked questions about the Netflix [translation] “agreement” and pointed out that subsection 41(2) of the Act imposes a duty on federal institutions to take positive measures to implement the commitment made under subsection 41(1). Canadian Heritage also has a special duty under section 43 of the Act. The investigator inquired about the existence of Canadian Heritage’s analysis of “positive measures” to promote the advancement of official languages, as well as the “positive measures” taken as part of the Netflix [translation] “agreement”.
[10] The answers to the questions provided on February 8, 2018 did not seem to satisfy the Commissioner's investigators. On the one hand, the Investment Canada Act, which was at issue for Netflix’s proposed investment, limited the disclosure of information; on the other hand, there were complaints that the answers received did not contain information useful to the consideration of Part VII (where sections 41 to 43 were found) of the Act.
[11] In March 2018, the investigators continued to complain of insufficient information. Additional information still did not satisfy the investigators, thus allowing them to decide the merits of the complaint. Despite further documents sent by Canadian Heritage in May 2018, the lead investigator stated being satisfied that the complaints were well-founded on May 15, 2018. He prepared his preliminary report.
[12] This first draft of the report has not been found, but it does appear that the investigator concluded that the complaints were well-founded; it would include reference to section 43 of the Act since his superiors asked him to withdraw any reference to this section. Here are two passages reported by the applicant in paragraphs 24 and 25 of his memorandum. They are taken from an exchange between two public servants who appear to be commenting on the first draft of the report prepared by the lead investigator. As can be seen, the second passage responds to the first. Both passages mark the agreement between them:
Remove all reference to 43 – I don’t think our arguments are strong enough for including this and in general, I don’t think we need it. They have obligations under 4b1 for their programs just like any other fed institution and this is our strongest argument.
[translation]
[I]t seems to me that 43.1 [sic] was not investigated. I don’t know why he wanted to take it into account. I noted it on page 1 of the report as well. . . .It’s an investigation that, as you say, deals with [Canadian Heritage’s] obligations under sections 41 and 42.
[13] The second version of the preliminary report still concluded that the complaints were well-founded but made no mention of section 43. It is dated May 22, 2018. On May 23, my colleague Justice Gascon rendered his decision in Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development), 2018 FC 530, [2019] 1 FCR 243 [Fédération des francophones de la Colombie-Britannique]. This prompted the Assistant Commissioner of Official Languages to say that it was necessary to discuss whether the draft was still valid.
[14] Additional questions were sent by the Commission’s investigators to Canadian Heritage. They were interested in the “positive measures” being taken in general. The relevant part of the e-mail sent by the investigator on July 31 reads as follows:
[translation]
You mention in your previous answers that [Canadian Heritage] is taking several positive measures (generally speaking) to enhance the vitality and support the development of [official language minority communities], and to foster the full recognition and use of both English and French in Canadian society (in accordance with section 41 of Part VII of the [OLA]).
a. Please provide recent and specific examples of positive measures taken by [Canadian Heritage] to enhance the vitality and support the development of [official language minority communities] in Canada (with supporting evidence and documentation, if applicable).
b. Please provide recent and specific examples of positive measures adopted by [Canadian Heritage] to foster the full recognition and use of both English and French in Canadian society (with supporting evidence and documentation, if applicable).
[15] A preliminary investigation report was submitted to the applicant on October 3, 2018: complaints about the Netflix agreement are unfounded. “Positive measures” have been taken by Canadian Heritage to foster the development and vitality of official language minority communities to promote the status of English and French. The commitment under section 41 requires that “positive measures” be taken, but these “need not relate to any specific program, decision or agreement of the federal institution”. Canadian Heritage has taken positive measures, in keeping with its commitment under Part VII of the Act. The preliminary report was sent to the applicant for comment.
[16] On October 19, 2018, the applicant criticized the preliminary report. Claiming to have received legal advice, Mr. Choquette submitted further comments on November 23, 2018: the Commissioner’s conclusions were unreasonable since, he said, [translation] “the report deals incompletely with the complaint under Part VII of the OLA”. This preliminary report does not deal with section 43, which, according to the Commissioner, would impose specific, binding obligations on Canadian Heritage. These are different from those set out in section 41, the applicant said.
[17] A meeting with officials from the Office of the Commissioner of Official Languages [OCOL] on December 13 did not produce the results the applicant had hoped for. The officials confirmed that the arguments raised did not alter the conclusion reached in the preliminary report.
[18] The Report, which is the subject of the application for judicial review, came on February 21, 2019. Given that positive measures were taken by Canadian Heritage, Mr. Choquette’s complaint had to be dismissed.
II. The decision under judicial review
[19] The decision states that the investigation took into account Part VII and the spirit of the Act. It specifically refers to subsections 41(1) and (2) and paragraph 43(1)(f) as part of the legal framework applicable in this case. The purpose of the investigation was indeed to determine whether Canadian Heritage had complied with its obligations under Part VII of the Act.
[20] The decision, which is 17 pages long, sets out the problems posed by online video streaming services, which are [translation] “fundamentally transforming the television viewing habits of Canadians” (decision, para. 5.1.1). The fact that the vast majority of content offered is in English is seen as an obstacle to the flourishing and survival of the country’s francophone culture. It is therefore deemed essential that these platforms offer more French-language content. But these platforms also entail risks for Canadian culture as a whole in the digital environment.
[21] The report situates Netflix’s investment in the face of this problem:
[translation]
In the context of the launch of Creative Canada, on September 28, 2017, Minister Joly announced the signing of an investment with Netflix under which the company will create Netflix Canada, its first production house outside the United States, and invest a minimum of $500 million in original productions in Canada over the next five years. Entered into under the Investment Canada Act, the investment includes a further $25 million in French-language content, based on a market development strategy for Canada. Specifically, as Netflix has confirmed, this additional sum is intended to support various cultural events and organizations that encourage diverse new Canadian talent, including women, Francophones and Indigeous peoples.
In some of the Minister’s first public speeches about the Netflix investment, she indicated that the $25 million would be dedicated to Quebec cultural content. In other speeches, the Minister made no mention of this sum, stating that the objective would be to ensure that Netflix meets its commitment to invest $500 million in Canadian productions. Netflix’s Director of Global Public Policy, Corie Wright, did mention the $25 million in a public statement and said it will be used to “ensure Netflix Canada reaches vibrant Canadian production communities, including the French-language community in Quebec.” Finally, on November 2, 2017, during an appearance before the House of Commons Standing Committee on Canadian Heritage, Guylaine Roy, Associate Deputy Minister of PCH [Canadian Heritage] and Director of Investments under the Investment Canada Act, stated that “[t]he 25$ million recognizes the effort that will be made to work in the francophone markets. In particular, it is to bring francophone producers in Quebec and outside Quebec closer to Netflix, and to give them the opportunity to do so-called pitch days, or to have a more direct contact. It is a recognition that beyond the 500$ million there is a specific effort that has been made to approach Francophone markets. We have made the point to Netflix that in Canada there are two markets.”
(Decision, para 5.1.2, p 5.)
[22] The Report describes the complaint that was investigated as involving Canadian Heritage. The complaint was about the inconsistency of the discourse in regards to Netflix’s investment of $25 million dollars. While the Act makes it an [translation] “obligation to foster the full recognition and use of both English and French in society” (decision, para 5.2), this equality should be reflected in the Netflix investment. It is alleged that this would have required a much higher sum than the 25 million announced.
[23] The Commissioner also acknowledges that the complaint alleges a lack of language clauses, as it will be difficult to enforce French content without them. The absence of a clause targeting official language minority communities in the Netflix [translation] “agreement” would make Canadian Heritage in violation of Part VII of the Act.
[24] Canadian Heritage responds that positive measures have been taken to meet its obligations under Part VII. Indeed, the decision describes a number of initiatives claimed by Canadian Heritage. It cites the Action Plan for Official Languages – 2019-2023: Investing in Our Future, which is a “horizontal platform of new initiatives implemented by seven federal partner institutions and coordinated by PCH” (decision, para 5.3.1.). Over $346 million dollars was invested in official languages support programs in 2017-2018, seeking to support official language minority communities, aiming to promote the use of English and French within Canadian society.
[25] Other programs mentioned include the Canada Media Fund, to monitor issues related to audiovisual production, and the Collaborative Agreement for the Development of Arts and Culture in Francophone Minority Communities of Canada. In addition to Canadian Heritage, other partners include the National Arts Centre, the Canada Council for the Arts, the National Film Board of Canada, the Canadian Broadcasting Corporation, Telefilm Canada and the Fédération culturelle canadienne-française. The TV5 program is a unique showcase for French-language productions on the international market.
[26] The Commissioner then turns to the Netflix investment. Having noted the existence of confidentiality rules concerning the investment under the Investment Canada Act (the test applied is that of the likelihood that the proposed investment constitutes a net benefit to Canada), the Commissioner sets about explaining how the obligations of Part VII of the Act are taken into account. It reads as follows:
PCH explained the process by which Part VII obligations are taken into account in the context of major investment proposals in the Canadian cultural sector, such as the case with the Netflix proposal. The Cultural Sector Investment Review (CSIR) Branch administers the Investment Canada Act with respect to the acquisition or creation of cultural businesses in Canada by non-Canadians. During the evaluation of planned investments in the Canadian cultural sector, CSIR examines, among other things, the compatibility of proposed investments with national cultural policies and with official languages obligations, and the benefit to OLMCs [official language minority communities] resulting from investments. If relevant, the investor is informed of the importance of ensuring the availability of cultural content in both official languages and, as a result, he can propose commitments for OLMCs, as needed, to demonstrate the net benefit for Canada.
Finally, PCH noted that it is important to remember that, as part of the announcement of its investment in Canada, Netflix has committed to invest at least $500 million over the next five years in original Canadian productions, which will be distributed on Netflix’s global platform. As part of this investment, Netflix will continue to work with producers, production companies, broadcasters, creators and other Canadian partners to produce original Canadian content in both French and English.
The federal institution mentioned that Netflix is also committed to supporting Canadian content in French on its platform through a market development strategy for Canada. Focusing on a $25-million investment, this strategy will include producer presentation days, recruitment activities and other promotional and market development activities. PCH mentions that this investment must be seen as a positive measure adopted by the federal institution in the context of the Netflix investment in Canada.
(Decision, para 5.3.1, pp 8‒9.)
[27] It should also be noted that not only are the details of the agreement confidential, but no documents have been made available to prove that the obligations of Part VII of the Act will in fact be taken into account. It is therefore only on a case-by-case basis that Canadian Heritage officials determine whether the legal obligations for which the investor is responsible have been met.
[28] The Commissioner then proceeds to determine whether Canadian Heritage has met its obligations, and more specifically that of “supporting the vitality and development of OLMCs and advancing the equality of status and use of English and French within Canadian society” (decision, para 6.1).
[29] Noting that it is an obligation of means to take positive measures without hindering the development and vitality of these communities or the use of the official languages in Canada, the Commissioner concluded that positive measures had been taken (subsection 41(2) of the Act). Not only has Canadian Heritage demonstrated several positive measures, but no clear and convincing evidence has been put forward of any specific negative impact resulting from the fact that minority communities would not be specifically targeted by the agreement. The Commissioner stated as follows:
Based on the information that is publicly available, it is, however, unclear whether Netflix considers that the additional $25 million which it pledged to invest in Francophone content will be devoted to Quebec content only or to content from OLMCs as well. Although there is no specific obligation under Part VII of the Act for the $25 million commitment to also target OLMCs, the investigation determined that the information on whether or not OLMCs will benefit from the aforementioned commitment to French content was inconsistent. It is unclear to what extent Netflix was informed of the specific needs of Francophone communities outside of Quebec, and PCH did not provide any information to clarify these elements during the investigation, even though it was asked to do so. The institution stated in its response that, when it is relevant, an investor is informed of the importance of ensuring the availability of cultural content in both official languages and, as a result, he can propose commitments for OLMCs. However, no indication was given of whether Netflix was explicitly informed of the needs and interests of OLMCs outside of Quebec. Although this lack of clarity in terms of what the Netflix proposal includes does not constitute a violation under Part VII of the Act since there is no clear proof of harm to OLMCs having occurred, PCH is encouraged to take into account the needs of OLMCs and provide clarity to the public with respect to the $25 million pledge in the Netflix investment proposal and for whom it is intended (e.g., beneficiaries).
(Decision, para 6.2, pp 9‒10.)
In addition, the Commissioner encourages the adoption of a best practice to better identify the potential negative impacts of investment proposals in the cultural sector and on the status of English and French in Canadian society.
[30] The decision also discusses comments made by Mr. Choquette regarding the investigation conducted. He complained that details of the Netflix investment had not been obtained. As for the interpretation to be given to Part VII of the Act, the complainant argued for a broad and liberal interpretation of Part VII. This would make the “clear and compelling evidence” test inappropriate; in the same vein, the interpretation of “positive measures” as sufficient is too generous. This practically frees federal institutions from their obligations, rendering Part VII ineffective.
[31] Mr. Choquette also complained that the Commissioner had not conducted his investigation in light of section 43 of the Act, which deals specifically with Canadian Heritage’s obligations. According to the applicant, the obligations in section 43 are more important than those in section 41. This would be the case for paragraph 43(1)(f), which requires the Minister to take such measures as the Minister considers appropriate “ to encourage and cooperate with the business community […] to offer services in both English and French and to foster the recognition and use of both languages ”. He also argued that the Investment Canada Act does not require that the Netflix “agreement” not be disclosed.
[32] The Commissioner rejects these submissions. Of particular relevance to our case is the response regarding the application of section 43. He states that the investigation conducted took into account Part VII in its entirety, including of course section 43. In fact, he quotes paragraph 43(1)(f) of the Act. The legal framework within which it operated refers specifically to section 43(1), in paragraph 2 of the decision.
[33] Positive measures “do not have to specifically target a particular federal institution’s program, decision-making process, initiative, or Office of the Commissioner of Official Languages Final Investigation Report 14 even the specific factual situation that gave rise to a complaint with the Office of the Commissioner” (decision, para 7.3). In other words, each initiative does not have to be measured individually, as federal institutions have a general obligation to take positive action. Canadian Heritage has satisfied the Commissioner that several positive measures have been adopted by the Commissioner. The duty to do no harm had not been breached, since the evidence did not establish that any harm had been caused to minority “communities”. Accordingly, the Commissioner concluded that his “investigation did not uncover evidence that harm has occurred in relation to OLMCs or the status of both official languages with respect to the Netflix investment agreement” (decision, para 8). Even though clear and compelling evidence that harm had occurred was not presented in relation to either of the commitments of section 41 in relation to the Netflix investment proposal, it does not preclude that negative or adverse effects will ever occur. It is understood that new complaints could be filed.
[34] Nonetheless, the Commissioner expresses concerns about online streaming services. He makes the following proposal in paragraph 8 of the decision:
I therefore encourage the federal institution to consider taking positive measures moving forward in consideration of the needs and interests of OLMCs with regard to the specific challenges they are facing with respect to on-line streaming services. More particularly, in the context where increased on-line streaming has the potential to have negative impacts on Francophone communities outside of Quebec which are now required to Office of the Commissioner of Official Languages Final Investigation Report 15 compete on a global platform and market where the language by default is more often than not English, PCH is in a privileged position as a federal institution that coordinates many programs for the benefit of OLMCs to be able to analyze these impacts on communities and develop concrete measures to enhance their vitality and development.
III. The parties’ arguments
A. The applicant
[35] The error that led to an unreasonable decision within the meaning of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov], is alleged to be the failure to investigate and address section 43 in the Commissioner’s Report.
[36] Section 43 imposes [translation] “additional” obligations on the Minister of Canadian Heritage. The applicant's attention is drawn to paragraphs 43(1)(a) and (f), which are among the measures (the list is not exhaustive) to be taken by the Minister.
[37] The applicant sees a different obligation between section 41 and subsection 43(1). In the case of paragraph 41(2), the federal institution ensures that positive measures are taken to implement the commitment made in subsection 41(1), whereas subsection 43(1) refers instead to the taking of measures.
[38] The applicant also sees a different objective between the two provisions. Subsection 41(1) speaks in terms of “enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development, and fostering the full recognition and use of both English and French in Canadian society”. Subsection 43(1) is instead worded as taking measures to “advance the equality of status and use of English and French in Canadian society”. Mr. Choquette sees a more binding obligation in subsection 43(1) because additional measures are prescribed. He notes that paragraph 43(1)(a) corresponds to the general commitment of subsection 41(1), but that the other paragraphs, and particularly paragraph 41(1)(f) (encourages companies to provide their services in both official languages), are more restrictive. It follows, argues the applicant, that ignoring these specific obligations renders the decision unreasonable.
[39] The applicant again argues that it is manifest that the Commissioner did not sufficiently investigate his complaint in terms of section 43. He points to an email exchange between junior officials within the Commissioner’s Office who were reviewing the very first draft of the preliminary report prepared by the lead investigator, in which he apparently made comments about section 43. I say “apparently” because this first draft has not been found. What has come to light is an exchange in which a supervisor says that reference to section 43 is not required because it is the obligations under section 41 that constitute the “strongest argument”. His correspondent said that it was an inquiry concerning “obligations 41 and 42” (the exchange is reproduced in paragraph 12 of these reasons). It should be noted that at the time this exchange of messages took place, the opinion of the lead investigator favoured the conclusion that the complaint was well-founded. Things have obviously changed since then, since the Commissioner, after considering all the evidence, including that obtained after the Fédération des francophones de la Colombie-Britannique decision, concluded that the complaint was unfounded.
[40] Whatever the obligations under section 41, the applicant argues that the Commissioner should have considered the more specific obligations under section 43. He is not specific in this regard. It is unclear what the difference might have been. His arguments that a separate analysis was required were not accepted. No changes were made to the Report, other than to state that it was the whole of Part VII of the Act that was taken into account, which obviously includes section 43. In the applicant’s view, this is false (memorandum of fact and law, para 73).
[41] As for the argument about the reasonableness of the decision, in the administrative law sense, it is found in paragraph 75 of the applicant’s memorandum. I reproduce it in full because, in my opinion, it overstates the scope of paragraph 128 of Vavilov, from which the passages quoted in the text are taken. I will come back to this in my analysis:
[75] In Canada (Minister of Citizenship and Immigration) v. Vavilov, the Supreme Court of Canada determined that a decision is unreasonable when a decision maker’s “failure to meaningfully grapple with key issues or central arguments raised by the parties” may show whether the decision maker was “actually alert and sensitive to the matter before it”. This requirement is based on the principles of justification and transparency. It is therefore essential for a decision-maker to draft reasons with care and attention in order to “assur[e] parties that their concerns have been heard” and “alert the decision maker to inadvertent gaps and other flaws in its reasoning”.
[42] Ultimately, the failure to deal separately with article 43 is what is unreasonable. This, it seems, was the [translation] “key issue formulated by the applicant in his complaint as well as in his response to the preliminary inquiry report” (memorandum of fact and law, para 76). Since, says the applicant, sections 43 and 41 are different, the Commissioner was not indeed alert and sensitive to the matter before him.
B. The respondent
[43] According to the respondent, the issue of section 43 of the Act was never at the heart of Mr. Choquette’s complaint. Indeed, the Court reproduced it in paragraph 8 of these reasons. There is no reference to section 43. It related, for our purposes here, to Part VII of the Act. The Commissioner dealt with this in his general consideration of the complaint. This was consistent with the wording of the complaint, the nature of the obligations found in the complaint, the nature of the obligations found in Part VII, and the Commissioner’s discretion in conducting his investigations.
[44] Netflix, in seeking to incorporate Netflix Canada, had to submit to the review mechanism for major investments by non-Canadians and meet its requirements, all under the Investment Canada Act. Foreign investments in the cultural sector are reviewed by the Minister of Canadian Heritage, while those in other sectors of the economy are reviewed by the Minister of Innovation, Science and Economic Development. This is not a Canadian Heritage/Netflix agreement, but a ministerial decision taken under the Investment Canada Act. The respondent insists that what was being discussed was Netflix’s investment, which had to meet the requirements of the Investment Canada Act. This was not an agreement between Netflix and Canadian Heritage.
[45] In any event, the respondent emphasizes that the investigation conducted did not ignore section 43. As early as December 7 and 29, 2017, the questionnaire sent to Canadian Heritage by the Office of the Commissioner’s investigator included questions related to section 43, even though it was not as such at the heart of the complaint. If it was agreed to withdraw the references to section 43 after a first draft of the preliminary report, it was simply because the arguments for its application were not sufficient. It should be remembered that this first draft concluded with a positive response to the complaint. It was only after additional questions regard