Forget v. Quebec (Attorney General)

Forget v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
1988-09-01
Report
[1988] 2 SCR 90
Case number
19091
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Quebec
Subjects
Administrative law
Appeal
Notes
SCC Case Information: 19091
Decision Content
forget v. quebec, [1988] 2 S.C.R. 90
Attorney General of Quebec Appellant
v.
Nancy Forget Respondent
and
Office de la langue française Mis en cause
and
Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec Mis en cause
indexed as: forget v. quebec (attorney general)
File No.: 19091.
1987: December 14; 1988: September 1.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for quebec
Appeal ‑‑ Moot issue ‑‑ Respondent unable to obtain remedy sought whatever outcome of appeal ‑‑ Whether issue moot ‑‑ Whether issue raised sufficiently important for Court to rule on its merits.
Administrative law ‑- Regulations ‑‑ Discrimination ‑‑ Subdelegation ‑‑ Knowledge of French necessary to obtain a permit from a professional corporation ‑‑ Regulations creating presumption of appropriate knowledge of French for candidates who have taken three years of instruction in French at secondary level or later ‑‑ Persons unable to benefit from the presumption must pass a French test prepared by a committee ‑‑ Whether Regulations discriminatory and contrary to s. 10 of the Charter of human rights and freedoms ‑‑ Whether Regulations discriminatory from an administrative standpoint ‑‑ Whether Regulations contain unauthorized subdelegation of powers ‑‑ Charter of the French language, R.S.Q. 1977, c. C‑11, ss. 35, 114(d) ‑‑ Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, (1977) 109 G.O. II 4627, ss. 2(a), 3.
In order to practise her profession as a nursing assistant in Quebec, respondent needs a permit from the Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec. Under section 35 of the Charter of the French language, a professional corporation may not issue permits "except to persons whose knowledge of the official language is appropriate to the practice of their profession". This section also empowers the Office de la langue française to provide, by regulation, for the holding of examinations and the issuance of certificates. Section 2(a) of the Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation creates a presumption of appropriate knowledge of French for candidates who have "taken at least three years of full time instruction given in French, at the secondary level or later". Persons not having this training‑‑like respondent‑‑had to hold a certificate establishing their working knowledge of French based on an examination. Under section 3 of the Regulations, the examinations are prepared by a committee in accordance with the criteria determined by the Office de la langue française.
Unable to pass the written French examination, respondent presented a motion in the Superior Court for a declaratory judgment declaring ss. 2(a) and 3 of the Regulations void and declaring her exempt from any written test which is clearly unrelated to the practice of her profession. In her motion, respondent maintained that (1) ss. 2(a) and 3 are discriminatory and contrary to s. 10 of the Charter of human rights and freedoms; (2) ss. 2(a) and 3 are discriminatory because s. 35 of the Charter of the French language does not empower the Office de la langue française to enact regulations that distinguish between classes of candidates; and (3) s. 3 contains an unauthorized subdelegation of powers. The Superior Court dismissed the motion. On appeal, a majority of the Court of Appeal allowed the appeal but solely to invalidate ss. 2(a) and 3 of the Regulations.
Between the hearing and the judgment of the Court of Appeal, s. 35 of the Charter of the French language was amended, inter alia, by incorporating a modified version of s. 2(a) of the Regulations. The requirement for a knowledge of French appropriate to practise a profession in Quebec has not been altered, however, and the regulations adopted under the former section have neither been repealed nor replaced.
Appellant asked this Court to declare ss. 2(a) and 3 of the Regulations valid. Respondent for her part added a new conclusion to her motion and asked this Court to declare that she is entitled to practise her profession without having to take a French test. In view of the amendment to s. 35, the question of whether the issue had become moot was raised by the Court.
Held (Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be allowed.
(1) Whether Issue Moot
Per Beetz, McIntyre, Lamer, Le Dain and La Forest JJ.: This issue is not moot. Though respondent cannot obtain the remedy sought because she is not disputing the validity of s. 35 of the Charter of the French language, the discrimination issue she raises is sufficiently important for this Court to rule on its merits. Despite the amendment made to s. 35, ss. 2(a) and 3 of the Regulations have not been repealed and remain in effect. Further, the fact that the distinctions created by the Regulations are now in s. 35 does not mean that they cease to be discriminatory, if such is the case. The question of discrimination remains therefore very important and present.
In any event, even if the appeal were pointless so far as respondent is concerned, the question of whether the issue is moot should be determined in light of the appellant's, not the respondent's, interests. If this Court refuses to address the issue, the Court of Appeal judgment will stand. The Government of Quebec has an interest in a ruling by this Court on the validity of its actions since the Regulations were adopted. Moreover, these are generally applicable provisions; the problem of discrimination therefore does not affect respondent alone, but may arise in respect of every professional candidate. The issue is therefore not moot so far as Quebec is concerned and this Court has a duty to consider it on its merits.
Per Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. (dissenting): Respondent did not dispute the validity of s. 35 of the Charter of the French language. The declaration of invalidity of ss. 2(a) and 3 of the Regulations, even if affirmed by this Court, would therefore not have the effect of requiring the professional corporation mis en cause to admit respondent to the practice of her profession or of enabling respondent to practise her profession without being first required to establish that she had "knowledge of the official language appropriate to the practice of [her] profession". Whether appellant wins or loses, respondent will not be able to practise her profession without holding a certificate of appropriate knowledge of the official language provided for in s. 35 and in the Regulations still in effect. It is further clear that in terms of the legislation, which has now been substantially amended, the question can only be an academic one. Consequently, since the appeal has become irrelevant and as there is no important point of law to be decided which would be in the public interest or in the interests of the sound administration of justice, there is no basis to rule on the merits of this appeal.
Per Dickson C.J. (dissenting): The appeal should be quashed. However, were it necessary to decide, I would agree with the reasons of the majority on the merits.
Per Wilson J. (dissenting): The appeal is moot and should be quashed. A finding of mootness, however, is not necessarily a barrier to this Court's deciding the case on the merits instead of quashing it. It is in the discretion of the Court. If the majority of the Court decided to exercise its discretion in favour of hearing the case on the merits, I would have agreed with its disposition on the merits.
(2) Discrimination and Subdelegation
Per Beetz, McIntyre, Lamer, Le Dain and La Forest JJ.: It appears from s. 10 of the Charter of human rights and freedoms that three elements are necessary to establish discrimination: (1) a "distinction, exclusion or preference", (2) based on one of the grounds listed in s. 10 , and (3) which "has the effect of nullifying or impairing" the right to full and equal recognition and exercise of a human right or freedom. In this case, s. 2(a) and 3 of the Regulations are not discriminatory or contrary to s. 10 of the Charter since the distinction made by s. 2(a) does not meet the third criterion. The distinction between candidates benefiting from the presumption of appropriate knowledge of French and those who must take the test is based on language, one of the criteria found in s. 10 . The two groups of candidates that result from this distinction are divided generally along language lines. However, in view of the undisputed requirement of s. 35 of the Charter of French language that candidates have a knowledge of French, Regulations that make distinctions to take account of the language skills of individuals do not impair the right to full equality. "Non‑francophones" are not prohibited from joining a professional corporation on grounds that are arbitrary and have nothing to do with the required aptitudes. On the contrary, the Regulations enacted by the Office de la langue française allow them to show that they possess the necessary skills to be admitted to a professional corporation.
Sections 2(a) and 3 of the Regulations are not discriminatory from an administrative standpoint either. Section 35 of the Charter of the French language empowers the Office de la langue française to enact regulations that distinguish between classes of candidates. In giving the Office the right to establish by regulation various methods of assessing knowledge of French, including the holding of examinations and issuing of certificates, this section by implication has conferred on the Office the power to make such a distinction. The presumption made in s. 2(a) of the Regulations is reasonable and justified in the context of the objective sought by s. 35 and it is not for this Court to alter it.
Section 3 of the Regulations does not contain an unauthorized subdelegation of powers when it provides that the tests will be prepared by a committee since s. 114(d) of the Charter of the French language expressly authorizes the Office de la langue française to create committees to assist it in carrying out its function. This committee's function is purely administrative and consists essentially in preparing examinations reflecting the knowledge of French appropriate to the exercise of each profession in accordance with the criteria determined by the Office. The fact that s. 3 does not specify a passing grade is not a sufficient basis for concluding that there was an unauthorized subdelegation.
Cases Cited
By Lamer J.
Applied: Johnson v. Commission des affaires sociales, [1984] C.A. 61; City of Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; referred to: Kruse v. Johnson, [1898] 2 Q.B. 91; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114.
By L'Heureux‑Dubé J. (dissenting)
Sun Life Assurance Co. of Canada v. Jervis, [1944] A.C. 111; Archbald v. Delisle (1895), 25 S.C.R. 1; McKay v. Township of Hinchinbrooke (1894), 24 S.C.R. 55; Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Attorney‑General for Alberta v. Attorney‑General for Canada, [1939] A.C. 117; The King ex rel. Tolfree v. Clark, [1944] S.C.R. 69; Coca‑Cola Co. of Canada Ltd. v. Mathews, [1944] S.C.R. 385; Re Collins and The Queen (1973), 13 C.C.C. (2d) 172; Re Cadeddu and The Queen (1983), 41 O.R. (2d) 481; Vic Restaurant Inc. v. City of Montreal, [1959] S.C.R. 58; Switzman v. Elbling, [1957] S.C.R. 285; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange, [1967] S.C.R. 628; Re: Objection to a resolution to amend the Constitution, [1982] 2 S.C.R. 793.
Statutes and Regulations Cited
Act to amend the Charter of the French language, S.Q. 1983, c. 56, ss. 9, 50.
Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12, ss. 10 [am. 1978, c. 7, s. 112], 16, 17.
Charter of the French language, R.S.Q. 1977, c. C‑11, ss. 35, 114(a), (d).
Professional Code, R.S.Q. 1977, c. C‑26, ss. 1(f), 36(p).
Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, O.C. 2851‑77, (1977) 109 G.O. II 4627 [now R.R.Q. 1981, c. C‑11, r. 2], ss. 2 to 11.
Authors Cited
Abella, Rosalie S. Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada, 1984.
Proulx, Daniel. "Égalité et discrimination dans la Charte des droits et libertés de la personne: étude comparative" (1980), 10 R.D.U.S. 381.
APPEAL from a judgment of the Quebec Court of Appeal, [1984] C.A. 492, 7 Admin. L.R. 268, setting aside a judgment of the Superior Court, J.E. 82‑704. Appeal allowed, Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting.
Pierre Lemieux and André Gaudreau, for the appellant and the mis en cause the Office de la langue française.
Julius Grey and Lynne‑Marie Casgrain, for the respondent.
Monique Beaudoin, for the mis en cause the Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec.
The following are the reasons delivered by
1. The Chief Justice (dissenting)‑‑I agree with my colleague Justice L'Heureux‑Dubé and for the reasons she gives, I would quash this appeal on the ground that it is moot. I should add, however, that I have also considered the reasons of my colleague Justice Lamer and were it necessary to decide, I would agree with his disposition of the substantive issues raised by the appeal.
English version of the judgment of Beetz, McIntyre, Lamer, Le Dain and La Forest JJ. delivered by
2. Lamer J.‑‑This appeal is concerned with the validity of ss. 2(a) and 3 of the Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, O.C. 2851‑77, (1977) 109 G.O. II 4627 (hereinafter the Regulations) adopted by the Office de la langue française (hereinafter the Office).
3. L'Heureux‑Dubé J. has summarized the facts and the judgments of the lower courts. I will therefore not repeat them here. With respect for the contrary view, I am of the opinion that the issue is not moot and moreover that the appeal should be allowed.
4. L'Heureux‑Dubé J. concluded that this Court should not rule on the merits of the issue, as whatever its outcome respondent could not obtain the remedy sought, namely the right to practise her profession. Respondent is not disputing the validity of s. 35 of the Charter of the French language, R.S.Q. 1977, c. C‑11, which requires knowledge of French appropriate to the practice of a profession. She is only challenging the validity of the Regulations providing for various methods of assessing such knowledge. Accordingly, even if she wins her case, respondent would not have the right to practise her profession in view of the undisputed requirement contained in the Act. Respondent's main argument in support of the invalidity of the Regulations was that they are discriminatory and contrary to the Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12. The discrimination issue is central to these proceedings; though in the case at bar the alleged victim cannot obtain the remedy sought, the issue she raises is in my opinion sufficiently important for this Court to rule on it. The new s. 35 of the Charter of the French language now substantially reproduces the content of s. 2(a) of the Regulations. However, the grounds of challenge put forward by respondent do not all become moot on that account. Despite the amendment made to s. 35 of the Act, ss. 2(a) and 3 of the Regulations have not been repealed and remain in effect. Further, the fact that the distinctions created by the Regulations are now in the Act does not mean that they cease to be discriminatory, if such is the case. The question of discrimination remains therefore very important and present.
5. However, and more importantly, even if the appeal were pointless so far as respondent is concerned, it is not respondent who is appealing the Court of Appeal judgment. It is the Attorney General of Quebec who is appealing from that decision: the question of whether the issue is moot is determined in light of the appellant's interests. If this Court refuses to address the issue, the Court of Appeal judgment declaring void the relevant sections of the Regulations, both under administrative law and under the Charter of human rights and freedoms, will stand. I consider that the Government of Quebec has an interest in a ruling by this Court on the validity of its actions since the Regulations were adopted. Moreover, these are generally applicable provisions: the problem of discrimination does not affect respondent alone, but may arise in respect of every professional candidate. In my view, therefore, the issue is not moot so far as Quebec is concerned and it is our duty to consider it on its merits.
6. The questions raised by this appeal are as follows:
(1) Are sections 2(a) and 3 of the Regulations discriminatory:
‑‑ contrary to the Charter of human rights and freedoms?
‑‑ from an administrative law standpoint?
(2) Does section 3 of the Regulations contain an unauthorized subdelegation?
1‑‑Discrimination
7. Charter of human rights and freedoms
8. Respondent argued that s. 2(a) of the Regulations, which creates a presumption of appropriate knowledge of French for candidates who have taken at least three years of instruction in French since the secondary level, and s. 3 of the Regulations, which provides for a test, are discriminatory and inconsistent with ss. 10 and 16 of the Charter of human rights and freedoms. At the time in question, s. 10 read as follows:
10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin, social conditions or the fact that he is a handicapped person or that he uses any means to palliate his handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
9. Before going any further, I should mention that respondent based her allegations of discrimination on ss. 10 and 16 of the Charter. In my opinion, ss. 10 and 17 are the only provisions which can be applied in the case at bar. Section 16 prohibits discrimination by an employer, which is not the case here. It is section 17 that covers the right of a person to be admitted to any professional corporation without discrimination, and this is what respondent is claiming:
17. No one may practise discrimination in respect of the admission, enjoyment of benefits, suspension or expulsion of a person to, of or from an association of employers or employees or any professional corporation or association of persons carrying on the same occupation.
10. It appears from s. 10 of the Charter and the decision in Johnson v. Commission des affaires sociales, [1984] C.A. 61, with which I agree on this point, that three elements are necessary to establish discrimination: (1) a "distinction, exclusion or preference", (2) based on one of the grounds listed in the first paragraph, and (3) which "has the effect of nullifying or impairing" the right to full and equal recognition and exercise of a human right or freedom.
11. The first criterion is undoubtedly met. By creating a presumption of appropriate knowledge of French, s. 2(a) of the Regulations distinguishes between two classes of candidates: those who, benefiting from this presumption, will not have to submit to a test to assess their level of knowledge of French, and those who, as they cannot rely on the presumption, must take the test specified in s. 3 of the Regulations.
12. Is this distinction however based on one of the grounds mentioned in the first paragraph of s. 10 of the Charter? The Court of Appeal is silent on the point. In this Court, appellant argued that the distinction created by s. 2(a) of the Regulations is based not on the mother tongue or language of use of the person alleging discrimination, but on the language of the instruction received by that person. In his submission, each of the grounds of discrimination listed in s. 10 of the Charter constitutes an essential attribute of the person. "Language" in the sense of this provision means a person's language of origin or use, but cannot include the language of instruction. Respondent, for her part, maintained that the Charter must be liberally construed and that the language of instruction is a prohibited ground of discrimination in the same way as the language of origin or of use. She added that otherwise a clear advantage would be given to francophones as a group, though some non‑francophones would also have the same advantage.
13. I agree with appellant's argument that the grounds listed in s. 10 of the Charter all share the characteristic that they are associated essentially with the person. In an article titled "Égalité et discrimination dans la Charte des droits et libertés de la personne: étude comparative" (1980), 10 R.D.U.S. 381, Mr. Daniel Proulx defines the prohibited grounds of discrimination in the following way (at pp. 451‑52):
[TRANSLATION] To begin with . . . it can be said that a ground of discrimination means in the first place simply a particular characteristic of an individual. Contrary to what is sometimes said, therefore, it is not an unchanging, permanent or inborn characteristic. It would be hard to argue that political beliefs, religion, language or civil status, for example, can never be subject to change.
However, and this is our second observation, the ground of discrimination is here an "essential characteristic or manifestation" of the human being. It must strongly affect the personality of an individual, either inherently (e.g. race or sex) or as the result of the free or compulsory exercise of a fundamental choice (e.g. religion or political beliefs).
14. Accordingly, the word "language" means the language of the person. As such the concept of language is not limited to the mother tongue but also includes the language of use or habitual communication. I do not see why the scope of the word "language" has to be limited to the language of origin, since this often differs from the language used by a person every day. As the grounds of discrimination mentioned in s. 10 are not unchanging characteristics of the person, there is no reason to adopt a narrow interpretation which does not take into account the possibility that the mother tongue and the language of use may differ.
15. It may accordingly be thought in the case at bar, as appellant maintained, that the distinction between candidates who do not have to take the test and those who must pass it is based not on the mother tongue or the language of use of the individual but on the instruction received. A professional candidate is exempt from the test so long as he has taken at least three years of instruction in French from the secondary level onwards, regardless of whether he is a francophone, an anglophone or an allophone (that is, his mother tongue or language of use is French, English or some other language). In the same way, a francophone who has done all his study in a foreign language will have to take the test like any non‑francophone in the same position. Seen in this way, the distinction at issue is not based on language and s. 10 would thus not apply.
16. In my view, however, this interpretation does not actually withstand a more realistic analysis of the situation. Of course, it is true that any person who has taken at least three years of post‑primary instruction in French is exempt from the test, whatever his language. Still, one has to recognize that as a general rule a person does his studies in his own language. Accordingly, most of the candidates able to benefit from the French knowledge presumption are French‑speaking‑‑for the purposes of this discussion I will call them "francophones"‑‑since they are the ones who have received their instruction in French. Conversely, as in most cases non‑francophones study in a language other than French, they are the ones who must take the test.
17. In light of the foregoing, I feel that the distinction created by the subject Regulations is based on language within the meaning of s. 10 of the Charter. The two groups of candidates that result from this distinction are divided along language lines‑‑the fact that in general their mother tongue or language of use is, or is not, French. In other words, most candidates who benefit from the presumption will be francophones, while those who take the test will be for the most part non‑francophones.
18. Of course the groups resulting from application of the Regulations are not entirely homogeneous, since as we have seen non‑francophones may sometimes do their studies in French and vice versa. Thus not all francophones will be exempt from the test, and not all non‑francophones will have to take it. The fact remains, however, that as a rule the majority in each group consists of francophones on the one hand and non‑francophones on the other, whatever limited exceptions may occur. As the groups of candidates affected by the distinction are identified along language lines, to say that the distinction is not based on language would in my opinion be adopting too narrow a construction.
19. Further, in view of the context in which this distinction is made, it would be surprising, to say the least, if it were not based on language. It must be remembered that the purpose of the presumption and test at issue here is to demonstrate that a professional candidate has an appropriate knowledge of French, as required by s. 35 of the Charter of the French language. It is only logical that the means used to establish a candidate's linguistic aptitudes will of necessity have something to do with language, otherwise the Regulations would not achieve the purpose of the Act. For instance, this would be the case if only persons of a certain political affiliation were exempt from the test. Such a distinction would obviously be arbitrary, which cannot be said of the Regulations at issue.
20. As the distinction created by the Regulations is based on language, we must now turn to the third criterion for determining whether discrimination exists, namely whether this distinction "has the effect of nullifying or impairing" the right of candidates to full equality in admission to a professional corporation. It is important to mention and to emphasize that the validity of s. 35 of the Charter of the French language, by which any professional candidate must have a knowledge of French appropriate to the practice of his profession, is not being challenged. Candidates must therefore prove they have such knowledge. In this context, is it discriminatory to require certain candidates to take a test to determine such knowledge, while others are exempted from the test? Respondent maintained that the same kind of proof should be required of everyone, as in her submission there is no reason why one group should be exempted from taking the test.
21. In my view, the right to equality set forth in s. 10 of the Charter does not mean that all candidates for a professional corporation have to be treated in the same way. Indeed, discrimination will sometimes result from equal treatment, because special features that distinguish each group will then be disregarded. Respondent moreover admitted that the mere existence of distinctions does not infringe the right to equality, so long as people having similar relevant attributes are treated in the same way. Since she is arguing that the disputed distinction is discriminatory, she must feel that all professional candidates have the same relevant attributes. Respondent's position in this regard is paradoxical, since on the one hand she seems to be saying that all candidates have the same relevant attributes, while, on the other hand, by recognizing the existence of two language groups (francophones and anglophones) she implicitly admits that they do not all have such attributes. It seems clear to me that candidates do not all have the same language skills. In view of the undisputed requirement that candidates have a knowledge of French, Regulations that make distinctions to take account of the language skills of individuals do not prima facie compromise the right to equality.
22. Equality is not an easy concept to define, and I do not think the case at bar lends itself to an exhaustive study of this concept. For the purpose of this case, I will simply cite the following passage from the Report of the Commission on Equality in Employment (1984) by Judge Rosalie Abella, which was reproduced in part in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114:
Equality in employment means that no one is denied opportunities for reasons that have nothing to do with inherent ability. It means equal access free from arbitrary obstructions. Discrimination means that an arbitrary barrier stands between a person's ability and his or her opportunity to demonstrate it. If the access is genuinely available in a way that permits everyone who so wishes the opportunity to fully develop his or her potential, we have achieved a kind of equality. It is equality defined as equal freedom from discrimination.
Discrimination in this context means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics. What is impeding the full development of the potential is not the individual's capacity but an external barrier that artificially inhibits growth.
23. Though these comments were made in an employment context, I think they are still relevant to a case involving admission to a professional corporation, as these two areas are quite closely related.
24. In the instant case non‑francophones are not prohibited from joining a professional corporation on grounds that are arbitrary and have nothing to do with the required aptitudes. On the contrary, the Regulations enacted by the Office allow them to show that they possess the necessary skills, namely an appropriate knowledge of French, to be admitted to a professional corporation. It should be borne in mind that this requirement is imposed by s. 35 of the Charter of the French language, and this provision is not being challenged. The impugned Regulations do not reject non‑francophones outright, they offer them a means of establishing that they meet this requirement. What is more, under s. 11 of the Regulations, candidates may retake the test as many times as they have to in order to pass it. Far from being an arbitrary obstacle for a professional candidate, the Regulations facilitate admission to the corporation while remaining consistent with the requirements of the Act.
25. It is true, as we have seen, that a majority of those who benefit from the presumption exempting certain candidates from taking the test will be francophones. In creating this presumption the Office thus took account of the linguistic characteristics of those governed by the Act, since there is no reason to require a test of persons who in theory should pass it easily. In any case, the fact of having taken three years' instruction in French is in itself a kind of test which candidates covered by the presumption have passed.
26. The right to equality would certainly be compromised if the test required greater knowledge of French than a person who has done three years of post‑primary studies in French would have. However this question was not raised in this Court, so we must assume that the level of knowledge required is the same for all candidates.
27. In conclusion, for all the foregoing reasons I consider that ss. 2(a) and 3 of the Regulations do not infringe the right to equality, and consequently these provisions are not discriminatory within the meaning of s. 10 of the Charter.
28. Administrative Law
29. Respondent further argued that those sections are void because they are discriminatory under administrative law. She maintained that s. 35 of the Charter of the French language does not empower the Office to enact regulations that distinguish between classes of candidates. In respondent's submission, this provision should be read as authorizing the Office either to have a test administered to all candidates or not to impose a test on anyone. The Regulations designed to assess knowledge of French should be applied to all professional candidates in the same way without distinction.
30. In theory, the power to regulate does not include the power to discriminate. Accordingly, where a statute contains no authorization, express or implied, a discriminatory regulation may be challenged and set aside. This rule was recognized by this Court in City of Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368. Speaking for the Court, Beetz J. said (at p. 404):
The rule that the power to make by‑laws does not include that of enacting discriminatory provisions unless the enabling legislation provides the contrary has been observed from time immemorial in British and Canadian public law.
31. After quoting the relevant passages from the remarks of Lord Russell C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, Beetz J. went on (at pp. 405‑6):
Lord Russell of Killowen accordingly distinguished between the aspect of a by‑law's political opportunity, which he referred to as its reasonableness or unreasonableness in the narrow sense, and its reasonableness or unreasonableness in the wide sense, to which he gave a negative legal definition. According to that definition, by‑laws are only unreasonable in the wide or legal sense, and ultra vires, if: (1) they are partial and unequal in operation between different classes; (2) they are manifestly unjust; (3) they disclose bad faith; and (4) they involve such oppressive or gratuitous interference with the rights of those subject to them as can find no justification in the minds of reasonable men. It is important to note that the first category of by‑laws unreasonable in the legal sense mentioned by Lord Russell of Killowen is that of by‑laws which are discriminatory in the non‑pejorative but most neutral sense of the word, and which are rendered invalid even though the distinction on which they are based is perfectly rational or reasonable in the narrow or political sense, and was conceived and imposed in good faith, without favouritism or malice.
32. In the absence of express provisions to the contrary or delegation by necessary implication, the legislator reserves the exclusive right to discriminate. The issue in the case at bar is therefore whether s. 35 of the Charter of the French language confers on the Office the power to enact regulations that distinguish between classes of professional candidates. It is clear from a reading of this provision that it does not expressly authorize the Office to distinguish by regulation between candidates who have taken at least three years' instruction in French, and benefit from a presumption of knowledge, and all others who must then take the test. Section 35 of the Act first states a duty: "[appropriate knowledge of the official language] must be [proven] in accordance with the regulations of the Office de la langue française . . . ." The procedure for proving such knowledge is left at the discretion of the Office, which may, though it does not have to, "provide [by regulation] for the holding of examinations and the issuance of certificates". Section 35 thus empowers the Office to adopt regulations enabling it to assess the knowledge of French of professional candidates. This provision does not require the Office to adopt one means only of measuring the level of knowledge of French. On the contrary, use of the word "may" clearly indicates that the legislator intended to confer a discretion on the Office as to the kind of proof it will require by regulation. Under section 35 of the Act, the Office has the power to enact any method of proof it considers necessary to assess a candidate's appropriate knowledge of French, including the holding of examinations and issuing of certificates. In giving the Office the right to establish by regulation various methods of assessing knowledge of French, the Act by implication confers on the Office the power to distinguish between classes of candidates. If the legislator had intended that knowledge of French be assessed by only one method of proof applicable to all professional candidates, he would have stated that intent clearly. For example, the statute might have imposed on the Office a duty to measure knowledge of French by holding an examination. There would then be no doubt that all candidates without distinction would have to take the test: but that is not the case here. Section 35 of the Act provides that the Office may, but is not required to, hold an examination. The test in the case at bar is not an exclusive method of proof for assessing a candidate's knowledge of French. The Office is not in any way prohibited from introducing by regulation a presumption of appropriate knowledge of French, provided that presumption is rational and reasonable. Section 35 therefore authorizes the Office to enact various methods of determining whether candidates meet the requirement of the Act, and it accordingly by necessary implication confers on the Office the power to distinguish between classes of candidates.
33. I would add that the presumption made in s. 2(a) of the Regulations, that candidates who have taken at least three years' instruction in French have a knowledge of French appropriate to the exercise of their profession, seems reasonable to me and justified in the context of the objective sought by s. 35 of the Act. Ordinarily, a person who has taken three or more years of post‑primary instruction in French will have sufficient proficiency in the official language to meet the requirement of the Act. The Office has set a period of time, namely three years, for the presumption to apply. This period is reasonable and it is not for this Court to alter it. Moreover, a presumption of this nature is justified on purely practical grounds. Why should a test be required of people who will usually pass it without difficulty? It would be better to try and facilitate the administrative process by not having candidates take the test if most of them will meet the requirements of the rule contained in s. 35 of the Act. To appreciate the wisdom of such a presumption, one need only recall the senselessness of the situation in which certain businesses, such as the newspaper La Presse, found themselves when they were required to obtain a francization certificate.
34. In conclusion, I consider that ss. 2(a) and 3 of the Regulations are not discriminatory under the Charter of human rights and freedoms nor from an administrative standpoint.
2‑‑Subdelegation
35. Does section 3 of the Regulations contain an unauthorized subdelegation of power by providing that the test will be prepared by a committee? Respondent argued that under the maxim delegatus non potest delegare, the Office cannot delegate powers conferred on i