Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development)

Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development)
Court (s) Database
Federal Court Decisions
Date
2018-05-23
Neutral citation
2018 FC 530
File numbers
T-1107-13
Notes
A correction was made on May 24, 2019.
Reported Decision
Decision Content
Date: 20180523
Docket: T-1107-13
Citation: 2018 FC 530
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 23, 2018
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
LA FÉDÉRATION DES FRANCOPHONES DE LA COLOMBIE-BRITANNIQUE
Applicant
and
EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA AND THE CANADA EMPLOYMENT AND INSURANCE COMMISSION
Defendants
and
THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Intervener
and
THE ATTORNEY GENERAL OF BRITISH COLUMBIA
Intervener
JUDGMENT AND REASONS
I. Overview
[1] This is an application filed under subsection 77(1) of the Official Languages Act, R.S.C., 1985, c. 31 (4th Supp) [OLA], pursuant to which the Fédération des francophones de la Colombie-Britannique [FFCB] argues that the defendants violated Parts IV and VII of the OLA and subsection 20(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11 [Charter], under a federal-provincial agreement on employment assistance services, entered into under section 63 of the Employment Insurance Act, SC 1996, c 23 [EIA]. Part IV of the OLA deals with communications with and services to the public delivered by federal institutions, while Part VII requires that federal institutions ensure that “positive measures” are taken to enhance the vitality of English and French communities.
[2] More specifically, the FFCB alleges that the defendants, Human Resources and Social Development Canada [HRSDC], now Employment and Social Development Canada [ESDC], and the Canada Employment Insurance Commission [Commission] failed to meet their linguistic obligations toward British Columbia’s official language minority community [OLMC], the French linguistic minority, in entering into and implementing the Canada – British Columbia Labour Market Development Agreement signed in February 2008 [Agreement].
[3] In the spring of 2011, the FFCB filed several complaints with the Commissioner of Official Languages [Commissioner] [1] alleging two main breaches of the OLA. Firstly, the change in the employment assistance service delivery model developed and implemented by the Government of British Columbia under the Agreement would hinder the development and vitality of the French-speaking minority community in the province. Secondly, the French-language employment assistance services provided in British Columbia would no longer be of equal quality or would no longer be available with the new model under consideration. Pursuant to his investigation under Parts IV and VII of the OLA, the Commissioner’s final investigation report issued in April 2013 found that the defendants had failed to meet their obligations under the OLA. Following receipt of the Commissioner’s final investigation report, the FFCB filed the current application in August 2013.
[4] The FFCB is seeking an order from this Court declaring that employment benefits and support measures available under the Agreement run counter to subsection 20(1) of the Charter and Parts IV and VII of the OLA. The FFCB also wishes to obtain an order directing ESDC and the Commission to comply with Part IV of the OLA by providing benefits and measures of equal quality for the French-speaking community, and to take the necessary steps (in terms of benefits and measures available under the Agreement) to meet the requirements of Part VII of the OLA. The FFCB also asks the Court to order the establishment of follow-up mechanisms, in collaboration with the French linguistic minority, to ensure compliance with the language obligations resulting from the Agreement and Part VII of the OLA.
[5] This case therefore deals with the scope and interpretation of Parts IV and VII of the OLA in the context of a transfer payment agreement between the federal government and a provincial government for the administration of employment support services to help workers re-enter the work force. The Commissioner intervened in the proceedings to argue how, in his opinion, the sections of the OLA at issue in this case should be interpreted. After the service of a notice of constitutional question on the Attorneys General of all provinces (pursuant to section 57 of the Federal Courts Act, RSC 1985, c F-7), the Attorney General of British Columbia [AGBC] also intervened in this case.
[6] The FFCB’s application raises the following main issues:
Under the Agreement, does British Columbia provide employment assistance services “on behalf of” ESDC and the Commission within the meaning of section 25 of the OLA, making these federal institutions subject to Part IV of the OLA?
Have ESDC and the Commission taken “positive measures” to fulfil their duties under Part VII of the OLA, specifically section 41?
If there is a finding of breach or noncompliance with the OLA, what should the appropriate remedy be?
How should the costs be awarded?
[7] For the reasons that follow, the FFCB’s application must fail. I am of the view that, under the circumstances, Part IV does not apply to the Agreement between the federal government and British Columbia because the delivery of employment assistance services stipulated in the Agreement is a valid exercise of the province’s legislative authority and, therefore, British Columbia is not acting “on behalf of” a federal institution. Also, I am satisfied that, in view of the proper interpretation of subsection 41(2) of the OLA and the evidence in the record, the federal institutions involved had taken “positive measures” within the meaning of Part VII of the OLA when the FFCB filed its complaint with the Commissioner. Since there was no breach or noncompliance with the OLA when the FFCB filed its complaint, the Court cannot order a remedy. However, the FFCB is entitled to its costs under the circumstances.
[8] Of course, the Court’s decision responds first and foremost to the particular facts of this case. However, for both Part IV and Part VII of the OLA, the FFCB’s application raises issues that may have further implications. The parties have pointed this out to the Court. With respect to Part IV, the defendants stated that the interpretation proposed by the FFCB and the Commissioner could undermine all federal-provincial labour market development agreements currently in place in Canada. With respect to Part VII, the FFCB and the Commissioner indicated that the interpretation of section 41 could have implications for the duty of all federal institutions to take positive measures to implement the federal government’s commitment to enhance the vitality and development of linguistic minorities and promote both official languages. The Court has considered these issues in preparing these reasons.
II. Background
A. The parties
[9] The FFCB is a non-profit organization that has been representing British Columbia’s French-speaking community since 1945. Its members include many Francophone organizations and groups.
[10] ESDC, formerly known as HRSDC, is the federal department responsible for developing, managing and delivering social programs and services that contribute to the development of human resources in Canada and to the skills of Canadians and social development in Canada. This includes employment insurance services. For its part, the Commission derives its jurisdiction from the Department of Employment and Social Development Act, SC 2005, c. 34, and is responsible for administering the EIA and producing an annual Employment Insurance Monitoring and Assessment Report, which the responsible minister tables in Parliament. ESDC and the Commission are both federal institutions within the meaning of section 3 of the OLA.
[11] The role of the primary intervener in this case, the Commissioner, is to ensure that federal institutions fulfil their legal language obligations and to receive complaints filed under the OLA alleging breaches or failures to comply with these obligations. The second respondent, the AGBC, represents the Province of British Columbia, which is party to the Agreement entered into with ESDC and the Commission. It seems to me important to note that while the FFCB’s application raises a constitutional question of jurisdiction between Parliament and the provincial legislatures, and although labour market development agreements are closely analogous to the Agreement are now in place in all provinces and territories in Canada, no provincial Attorney General other than the AGBC has intervened in the case.
B. The Agreement
[12] The Agreement at issue in this case was signed in February 2008 and deals with employment assistance programs and services in British Columbia. It stipulates that ESDC and the Commission will contribute financially to the costs of the province’s employment assistance programs and services and related administrative costs, provided they are “similar” to the employment benefits and support measures established by the Commission in accordance with the EIA, and consistent with the purpose of Part II of the EIA and the guidelines set out in subsection 57(1).
[13] Before the Agreement was signed, HRSDC and the Commission, in conjunction with the province, were solely responsible for the delivery of employment assistance services in British Columbia. In fact, in 1997, following the amendments to the EIA pursuant to the reform of Canada’s employment insurance system, HRSDC and the Commission signed a first co-management agreement with British Columbia on the development of the labour market in the province. Under the agreement, British Columbia assumed certain responsibilities with respect to employment assistance services. Pursuant to the agreement, the province had a role in designing and managing employment benefits and support measures, and in operating the National Employment Service [NES], but was not involved in the direct delivery of services resulting from these measures or the NES. Under the 1997 agreement, several Francophone member organizations of the FFCB received funding to provide employment assistance services to Francophone client groups. The various Francophone organizations provided both “assisted” and “non-assisted” services. The so-called “assisted” services allowed clients to search for work independently or with the help of an employment counsellor, using support provided by data banks. The so-called “non-assisted” services included meetings between counsellors and the client, the organization of group workshops, job fairs, and assistance provided by a guidance counsellor. For their part, ESDC and the Commission retained primary responsibility for establishing and implementing employment benefits and support measures, including providing the necessary financial support to any person or organization responsible for directly providing services in British Columbia.
[14] Under the February 2008 Agreement, the Government of British Columbia assumed the lead role in the development and administration of employment benefits and support measures under Part II of the EIA, in particular, those that helped employment insurance clients re-enter the labour force. Pursuant to the Agreement and in accordance with section 63 of the EIA that underlies it, the federal government funds the cost of benefits and measures established by the Government of British Columbia. However, the province is now responsible for delivering employment assistance service programs funded by federal employment insurance funds and has primary responsibility for the delivery of benefits and measures. The Commission pays British Columbia approximately $300 million annually for employment programs established by the province under the Agreement [2] .
[15] The Agreement and the Annexes contain about 50 pages. The main facts in this case can be summarized as follows: In terms of its objectives, the first expectations of the preamble to the Agreement indicate that Canada and British Columbia:
[...] agree on the importance of the development of a skilled workforce and to the rapid re-employment of unemployed British Columbians;
[...] support the vision of a provincial labour market development system, based on predictable funding to support British Columbia’s economic growth, the creation of employment opportunities and reduction in the “productivity gap” through responsive and appropriate labour market services that build on the skills, abilities and potential of British Columbians;
[...] support the creation of a cohesive, made in British Columbia system of services focused on addressing labour market challenges facing employers and employees across British Columbia; [and]
[...] agree that they should to the extent possible, reduce unnecessary overlap and duplication in their labour market development programs.
[16] I also believe it is useful to reproduce the purpose of the Agreement, described in Article 2.1 as follows:
2.1. The purpose of this Agreement is to:
(a) implement, within the scope of Part II of the EI Act, new Canada-British Columbia arrangements in the area of labour market development that will enable British Columbia to assume an expanded role in the design and delivery of labour market development programs and services in British Columbia, to benefit clients;
(b) provide for cooperative arrangements between Canada and British Columbia to reduce overlap and duplication in, and to harmonize and coordinate the delivery of, their respective employment programs and services; and
(c) provide for the transfer of affected federal employees to British Columbia.
[Emphasis added]
[17] British Columbia Benefits and Measures provided under the Agreement are described in greater detail in Articles 1.1, 1.2, 3.3 and 3.4 of the Agreement and Articles 3.3 and 3.4 of Annex 1. Essentially, benefits include employment services (in the form of wage subsidies and work experience), self-employment assistance, skills development and the earnings supplement. For their part, the province’s measures include employment assistance services, labour market partnerships, support for research and innovation.
[18] Three provisions deal with the language obligations of the parties to the Agreement. Under Article 5.2 of the Agreement, British Columbia agrees to provide access to BC Benefits and Measures and carry out the functions of the National Employment Service “in either of Canada’s official languages where there is a significant demand for the provision of the assistance, or the performance of those functions, in that language.” This is the language clause. Article 5.3 of the Agreement requires that British Columbia use as a guideline the criteria for determining what constitutes “significant demand” as set out in the OLA and the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 [Regulations]. Finally, under Article 5.4 of the Agreement, British Columbia “agrees to consult with representatives of the official language minority communities in British Columbia on the provision of its BC Benefits and Measures under [the Agreement].” This is referred to as the consultation clause.
[19] The Agreement also provides for periodic evaluations of its implementation, exchange of personal information (including the language of communication, language of service and language of the intervention received) between the province and federal government, publication of an annual report submitted to Parliament by ESDC, and the creation of a Management Committee to oversee the operation of the Agreement.
[20] Although the Agreement was initialled in February 2008, the Commission remained responsible for providing employment benefits and support measures until February 2, 2009, the date British Columbia began assuming responsibility. To ensure the continuity of employment assistance services until its Employment Program of British Columbia [EPBC] was fully implemented, the Province of British Columbia then entered into temporary agreements with Francophone organizations. These agreements were essentially identical to those previously entered into between ESDC and these organizations and were already in place. British Columbia then developed a new employment assistance service delivery model, called a “one-stop shop” model, where a single regional agency became responsible for all employment assistance services, including French-language services, in each region of British Columbia. As a result, Francophones were no longer served by organizations whose primary purpose was to meet the needs of the French‑speaking community. As part of the province’s Business Transformation Project [BTP], it was decided not to renew funding for Francophone organizations. British Columbia informed affected organizations of this decision in September 2010.
[21] The FFCB has voiced its concerns with respect to services for Francophones since the Agreement was first considered in 2007. According to the FFCB, the “one-stop shop” model was the complete opposite of the “by and for” model, which was the only one that could provide the French-speaking community with employment assistance services of equal quality. Within a “by and for” model, the French-speaking community is responsible for providing employment assistance services to Francophones. In discussions and consultations that began with the federal government and the province as soon as the Agreement was considered, and which continued after it was signed, the FFCB proposed an alternative to the “one-stop shop” model, which was based on a consortium responsible for delivering all French-language employment assistance services in the province, thus maintaining the “by and for” approach. However, British Columbia decided not to use the model presented by the FFCB. The FFCB also voiced its concerns to the federal government during this period.
C. EPBC
[22] In March 2011, just before its new Employment Assistance Services Program (EPBC) came into force, British Columbia issued a call for tenders for service delivery in each region identified for service delivery in “one-stop shops.” In this new program, Francophones are identified as a “specialized population.” In addition, some parts of British Columbia, such as Victoria, Nanaimo, Vancouver, Abbotsford, Chilliwack, Kelowna, Kamloops, Penticton and Prince George, are identified as areas where the province must provide services in both English and French. I note that there were in fact 14 areas in British Columbia (including 6 in Vancouver) where demand was significant, and therefore employment assistance services had to be available and equivalent to services in English under the Agreement.
[23] The EPBC finally came into force on April 2, 2012. With the introduction of BC’s new employment assistance service delivery model, all employment programs established by the province are now operating under the “one-stop shop” model, in which larger regional service delivery organizations are contracted by the Government of British Columbia. These organizations have been designated to provide the full range of employment assistance programs and services in each British Columbia geographic service area as a result of province-wide requests for proposals, including programs and services provided by the province to the French linguistic minority. Agreements that have been entered into with the various organizations include a clause stipulating the terms and conditions of services to be delivered in French.
[24] Since Francophone organizations, which were previously funded, did not have the institutional capacity to deliver the full range of services in both official languages using a “one-stop shop” model, they were only able to participate in the call for tenders as subcontractors for English-language organizations. For example, the Société francophone de Victoria [SFV] was subcontracted to provide French-language services in the Victoria area; Collège Éducacentre [Éducacentre] was subcontracted in the Chilliwack area; and La Boussole – Centre communautaire francophone [La Boussole] became a subcontractor for the Vancouver Downtown Eastside, Vancouver Midtown, Vancouver Northeast, Vancouver South and Vancouver Westside areas. All these organizations are members of the FFCB and provide French-language services to unemployed people. The SFV is the only organization that operates in a satellite office, which means that French-speaking clients are referred to it, whereas Éducacentre and La Boussole assign a French-speaking employment counsellor to work within the English-speaking organization that provides employment assistance services.
[25] According to the FFCB, when British Columbia began providing employment benefits and support measures under the Agreement as part of its EPBC and with its “one-stop shop” model, ESDC and the Commission no longer ensured that French-language employment assistance services of equal quality were available in British Columbia where there was significant demand for these services.
D. Complaints to the Commissioner
[26] In the spring of 2011, after the Agreement was signed but well before the EPBC came into force, the FFCB filed a complaint with the Commissioner, stating: 1) that FFCB members were in the best position to identify and meet the French-speaking community’s employment assistance service needs; 2) they were no longer receiving funding; 3) that despite the linguistic clause contained in the Agreement, maintenance of French-language services was not guaranteed; 4) that English and French employment assistance services were not equivalent; and 5) that ESDC denied having an obligation to intervene on behalf of the French-speaking community. Although the FFCB’s main complaint was not dated, the parties stated at the hearing before the Court that the date of the complaint to the Commissioner was June 15, 2011.
[27] In its complaint, the FFCB first denounced the elimination of employment assistance services in five centres in British Columbia formerly provided to Francophones through agreements with Francophone organizations. Secondly, it pointed out that the Agreement contained a language clause that the federal government had to ensure compliance by guaranteeing the maintenance of French-language services where warranted by significant demand. Third, according to the FFCB, ESDC denied all responsibility and showed a lack of diligence by failing to assume its responsibilities to the French-speaking community.
[28] Between January and June 2011, the Commissioner received a total of four complaints regarding the ESDC and the Commission’s conduct under the Agreement. The complainants all claimed that the change in the employment assistance service delivery model developed and implemented by the Government of British Columbia would hinder the development and vitality of the French-speaking minority community in British Columbia. They also argued that French-language employment assistance services would no longer be of equal quality to services provided in English or would not be available after the new model was introduced.
E. Commissioner’s report
[29] The Commissioner issued his final investigation report in April 2013, which found that employment centres in the province of British Columbia did not provide services of equal quality in both official languages. In his report, the Commissioner noted that ESDC did not ensure, as was required under section 25 of the OLA, that employment assistance services resulting from the implementation of the Agreement be actively offered by the province in both languages at employment services centres where there was significant demand. The Commissioner also determined that, with respect to its language obligations under the Agreement, ESDC had not “fully” discharged its responsibilities under Part VII of the OLA and had not taken “the necessary measures” to help British Columbia meet the language requirements specified in the Agreement. Also, according to the Commissioner, ESDC had not set up accountability mechanisms that would have made it possible to verify the extent to which British Columbia complied with the language clauses of the Agreement. The Commissioner also determined that, despite consultations with representatives of the FFCB and the OLMC, ESDC had not demonstrated that it had evaluated the impact of the implementation of the new employment assistance service delivery model on the vitality of the French-speaking community in British Columbia.
[30] Based on his investigation and findings, the Commissioner made a series of recommendations to ESDC indicating the steps that the Commissioner thought ESDC needed to take to meet its obligations under the Parts IV and VII of the OLA. These recommendations included taking the steps needed to ensure the active offer of French-language services in designated bilingual employment centres and on the WorkBC website, as well as establishing concrete positive measures to mitigate the negative impact of the implementation of the new employment assistance services model on the vitality of the French-speaking community in British Columbia. In November 2015, while the application filed by the FFCB was already underway in this Court, the Commissioner issued his final follow-up report on his April 2013 recommendations. In this follow-up report, the Commissioner stated that, despite significant improvements, a lack of equivalence in French-language employment assistance services still persisted in British Columbia, and that the concrete positive measures taken by ESDC under Part VII of the OLA remained inadequate.
F. The FFCB’s application before the Court
[31] The FFCB filed its application for remedy under section 77 of the OLA in June 2013.
[32] In its legal recourse, the FFCB argued that when the Agreement and the EPBC came into force, there was a decrease in employment assistance services provided by Francophone organizations in British Columbia as well as a decrease in French‑speaking clients due to lower funding. It added that employers found it more difficult to recruit French-speaking employees in the province. The Agreement had a detrimental effect on the vitality of the French-speaking community in British Columbia and on the delivery of French-language employment assistance services, since designated bilingual employment centres did not provide services of equal quality in French, both in the field and on the Internet. There was no active offer and, therefore, there was a failure to comply with both the substantive equality and the formal equality stipulated under the OLA.
[33] The FFCB submitted that it followed from the case law of the Supreme Court that British Columbia employment benefits and support measures, the pith and substance of which are intended to maintain ties with the labour market, fall within the exclusive jurisdiction of the Federal Government under subsection 91(2A) of the Constitution Act, 1867, 30 & 31 Victoria, c 3 (U.K.), reproduced in RSC 1985, Schedule II, No. 5 [CA 1867]. The FFCB maintained that, since the benefits and measures of the province established under section 59 and subsection 60(4) of the EIA fall within exclusive federal jurisdiction, obligations under subsection 20(1) of the Charter and sections 22 and 25 of the OLA are incumbent upon ESDC and the Commission. British Columbia, which is responsible for administering employment benefits and support measures under the Agreement, did so “on behalf of” ESDC and the Commission within the meaning of section 25 of the OLA, and ESDC and the Commission were required to ensure compliance with the Charter and Part IV of the OLA. Furthermore, according to the FFCB, ESDC and the Commission exercised a degree of control over the management, administration and evaluation of the benefits and measures covered by the Agreement, and it follows that British Columbia provides its employment assistance services “on their behalf.” In addition, the FFCB claimed that ESDC would also have an obligation, under Part VII of the OLA, to ensure compliance with the language obligations flowing from the Agreement, thereby fulfilling the commitment to enhance the vitality and promote the development of the French-speaking community.
[34] In terms of remedies for these various alleged breaches of the OLA, the FFCB asks the Court to:
Declare the rights at issue with respect to Parts IV and VII of the OLA;
Declare that Part IV applies to the employment assistance services provided for in the Agreement;
Order the federal institutions concerned to propose an implementation plan as part of a Doucet-Boudreau type of structural order (see Doucet-Boudreau v Nova Scotia (Minister of Education)) 2003 SCC 62 at paras 60 and s), where the defendants would demonstrate what they did to comply with Part IV of the OLA;
Declare that what the defendants did was not sufficient to fulfil the obligation to take the positive measures described in Part VII of the OLA;
Set out parameters and indicators describing positive measures that would enable defendants to comply with subsection 41(2) of the OLA;
Order the defendants to develop and implement formal and permanent monitoring mechanisms to ensure compliance with Part VII of the OLA;
Order the defendants to require the province to fully comply with the Agreement and use monitoring mechanisms to which they are entitled under the Agreement; and
Award costs to the FFCB, considering the right to costs provided for in section 81 of the OLA when an important and new principle is raised.
G. Relevant Acts
[35] The EIA and the OLA are the two main acts at the centre of this dispute.
(1) EIA
[36] The relevant provisions of the EIA are found in Part II, the purpose of which is “to help maintain a sustainable employment insurance system through the establishment of employment benefits for insured participants and the maintenance of a [national employment service]” (section 56). To lighten the text, sections 56 to 63 of Part II of the EIA are reproduced in their entirety in Appendix I to these reasons. Below is a summary of its contents.
[37] Sections 58, 59 and 60 of the EIA describe the types of employment benefits and support measures that the Commission may establish. For example, employment benefits aim to help unemployed persons or persons whose employment insurance benefits have ended within the previous 60 months to find employment, by encouraging employers to hire them and encouraging them to accept employment, helping them start businesses or become self-employed, providing them with employment opportunities and helping them obtain skills for employment. For their part, NES support measures are intended to help and support employment assistance services, the various labour market partners (employers, associations, organizations, etc.) as well as research and innovative projects.
[38] Subsection 57(1) of the EIA outlines guidelines for establishing employment benefits and support measures under Part II of the Act. These legislative guidelines include: 1) harmonization with provincial employment initiatives to avoid duplication; 2) reduction of dependency on unemployment benefits; 3) co-operation and partnership with other governments, employers and community organizations; 4) flexibility for implementation at the local level; 5) commitment by persons receiving assistance under the benefits and measures; and 6) a framework for evaluating the success of the assistance provided. A specific legislative language guideline (in paragraph 57(1)(d.1)) was added to the Act at the request of the Commissioner at the time. It provides for “availability of assistance under the benefits and measures in either official language where there is significant demand for that assistance in that language.”
[39] Part II of the EIA provides the federal government and the Commission with various options for delivering employment assistance services. Under a first option, described in section 59, the Commission may establish employment assistance services. In this case, it acts as an institution of the federal government. A second model is described in section 62, which expressly stipulates that the Commission may “enter into an agreement or arrangement for the administration of employment benefits or support measures on its behalf” by a third party, including another government or government agency in Canada (such as a province). Under this model, the province provides employment assistance services “on behalf” of the federal government and is financially compensated accordingly. Another option, set out in subsection 57(3) of the EIA, is a co-management agreement for the development, management and evaluation of the Commission’s benefits and measures with the benefits and measures administered by ESDC, in complementarity with the province’s benefits and measures and programs. In this scenario, the province collaborates in the development and implementation of federal measures in the province but does not take responsibility for them. Lastly, a final model is described in section 63 of the EIA. In this situation, the federal government withdraws from employment assistance services and allows provincial authorities to take over. Section 63 stipulates that the Commission may, with the approval of ESDC, enter into an agreement with a provincial government that provides for the payment of a financial contribution for costs of benefits or measures that are “similar” to those established by the Commission and are consistent with the purpose and guidelines of subsection 57(1) of the EIA.
[40] Historically, four provinces and one territory, including British Columbia in 1997, have signed a co-management agreement to provide employment assistance services. However, at the time of the FFCB’s application, contribution agreements under section 63 of the EIA (the last model mentioned above) had been signed and were now in place with every province and territory in Canada. In fact, the preamble and Article 14.1 of the Agreement expressly state that the Agreement with British Columbia was entered into under section 63 of the EIA.
(2) OLA
[41] The OLA is a federal statute whose purposes include “ensuring respect for English and French as the official languages of Canada and the equality of status and equal rights and privileges as to their use in all federal institutions” (Thibodeau v Air Canada, 2014 SCC 67 [Thibodeau SCC] at para 9). It also aims to clarify the powers and obligations of federal institutions with respect to official languages, and to support the development of English and French linguistic minority communities in Canada. In fact, “the OLA and its regulations form a comprehensive statutory regime that governs all matters related to language rights within federal institutions” (Norton v Via Rail Canada, 2009 FC 704 [Norton] at para 61).
[42] The OLA contains several parts. Parts I to VI of the Act establish a series of language rights in many contexts, including: debates and proceedings of parliament; legislative and other instruments; administration of justice; communications with the public; and language of work. More specifically, Part IV deals with communications with the public and the right for members of the public to be served by federal institutions in the official language of their choice. Part IV, section 21 provides for the right of members of the public to communicate with and receive services from federal institutions in the official language of their choice. Under section 22, federal institutions have a duty to ensure that members of the public can communicate with their offices and receive services of equal quality in either official language where there is significant demand for communications and services in that language. Section 25 stipulates that federal institutions have a duty to ensure that services provided to the public by third parties on their behalf are provided in either official language in any case where those services, if provided by the institution, would be required under Part IV to be provided in either official language. Section 27 provides that federal institutions’ duty in respect of communications and services in both official languages applies in respect of oral and written communications and in respect of any documents or activities that relate to those communications or services. Finally, section 28 adds that federal institutions are required to ensure that their communications and services are actively offered in both official languages.
[43] Parts VII and VIII of the OLA describe the obligations and responsibilities of federal institutions in enhancing the vitality and development of English and French linguistic minority communities in Canada. Part VII is entitled “Advancement of English and French.” Since 1988, subsection 41(1) has stated the federal government’s overall commitment to “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.” Under subsection 41(2), amended in 2005, federal institutions have the duty to ensure that “positive measures are taken for the implementation of the commitments under subsection (1).”
[44] Part IX lists the duties and powers of the Commissioner, who, among other things, is required to carry out investigations and to report and make recommendations. Part X of the OLA deals with court remedies and subsection 77(1) stipulates that any person who has made a complaint to the Commissioner in respect of a language right or duty under the OLA may appeal to the Federal Court. Subsection 77(4) stipulates that where the Court concludes that a federal institution has failed to comply with the OLA, the Court may grant such remedy as it considers appropriate and just in the circumstances. Finally, in Part XI, section 82 provides that the provisions of certain parts of the OLA, including Part IV, prevail over other federal statutes.
[45] The relevant provisions of the OLA are appended to these reasons.
H. Interpretation of language rights
[46] It must be emphasized that language rights are a cornerstone of Canadian society. The OLA is a fundamental law of the land, closely linked to the values and rights set out in the Canadian Constitution, including the Charter. The Supreme Court recognized that the OLA has a quasi-constitutional status (Thibodeau SCC at para 12; DesRochers v Canada (Industry), 2009 SCC 8 [DesRochers SCC] at para 2; Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 [Lavigne SCC] at para 25; R. v Beaulac, [1999] 1 SCR 768 [Beaulac] at para 21). Many parts of the OLA have a constitutional anchor, for example, subsection 20(1) of the Charter for the language of service and subsection 16(1) for the language of work. Subsection 20(1) of the Charter reads as follows:
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
20. (1) Le public a, au Canada, droit à l’emploi du français ou de l’anglais pour communiquer avec le siège ou l’administration centrale des institutions du Parlement ou du gouvernement du Canada ou pour en recevoir les services; il a le même droit à l’égard de tout autre bureau de ces institutions là où, selon le cas :
(a) there is a significant demand for communications with and services from that office in such language; or
a) l’emploi du français ou de l’anglais fai