DesRochers v. Canada (Industry)

DesRochers v. Canada (Industry)
Collection
Supreme Court Judgments
Date
2009-02-05
Neutral citation
2009 SCC 8
Report
[2009] 1 SCR 194
Case number
31815
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
State
Notes
SCC Case Information: 31815
Decision Content
SUPREME COURT OF CANADA
Citation: DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194
Date: 20090205
Docket: 31815
Between:
Raymond Desrochers, Corporation de développement
économique communautaire CALDECH and
Commissioner of Official Languages of Canada
Appellants
and
Department of Industry Canada,
Government of Canada and Attorney General of Canada
Respondents
‑ and ‑
Attorney General of New Brunswick,
Attorney General of the North West Territories and
Fédération Franco‑Ténoise
Interveners
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 65)
Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Abella and Rothstein JJ. concurring)
______________________________
DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194
Raymond DesRochers, Corporation de développement
économique communautaire CALDECH and
Commissioner of Official Languages of Canada Appellants
v.
Department of Industry Canada,
Government of Canada and Attorney General of Canada Respondents
and
Attorney General of New Brunswick,
Attorney General of the North West Territories and
Fédération Franco‑Ténoise Interveners
Indexed as: DesRochers v. Canada (Industry)
Neutral citation: 2009 SCC 8.
File No.: 31815.
2008: May 20; 2009: February 5.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Official languages — Communications by public with federal institutions — Right of members of public to be served by federal institutions in official language of their choice — Content of duty to provide equal services in both official languages — Community economic development services provided in both official languages, but principle of linguistic equality not adhered to — Situation corrected by time application for court remedy against federal institution heard — Whether Federal Court of Appeal erred in holding that no remedy other than costs should be granted — Canadian Charter of Rights and Freedoms, s. 20(1) — Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), Part IV.
Official languages — Communications with and services to public — Content of duty to provide services of equal quality in both official languages — Canadian Charter of Rights and Freedoms, s. 20(1) — Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), Part IV.
Section 20(1) of the Canadian Charter of Rights and Freedoms and Part IV of the Official Languages Act (“OLA ”) create a constitutional duty to make services of equal quality in both official languages available to the public. The Corporation de développement économique communautaire CALDECH, which was run by D, was created by Francophone community organizations to address shortcomings those organizations saw in the economic development services provided to the French‑speaking population of Huronia by the North Simcoe Community Futures Development Corporation (“North Simcoe”), which was responsible for implementing Industry Canada’s Community Futures Program in Huronia. In 2000, D filed a complaint with the Commissioner of Official Languages of Canada, alleging that North Simcoe was unable to provide its services in French. In 2001, the Commissioner concluded that Industry Canada had breached its duties under Parts IV and VII of the OLA and recommended that certain measures be taken. CALDECH received temporary funding to provide services in French and Industry Canada took various other measures, but the Commissioner concluded in two follow‑up reports in 2003 and 2004 that Industry Canada was still not in full compliance with Parts IV and VII of the OLA . D and CALDECH then made an application to the Federal Court under s. 77(1) of the OLA , which at that time applied only to violations of Part IV of the OLA . The Federal Court acknowledged that at the time the complaint was filed Industry Canada had been in breach of its duty to provide equal services in both official languages, but it found that at the time of the application for a court remedy North Simcoe was providing equal services in both languages. The court dismissed the application without costs. The Federal Court of Appeal held that the Federal Court should have granted the application, because the relevant time for determining the merits of the application was the date the complaint was filed and because at that time North Simcoe was unable to communicate with its clients and provide services in French. However, no remedy other than costs was appropriate, since corrective measures had been taken and since the trial judge had determined that the principle of linguistic equality in communications and the provision of services implemented in the OLA was being adhered to at the time the application was heard. The court noted that the standard of substantive equality did not require North Simcoe to take account of the special needs of the French‑speaking community in developing and implementing its programs.
Held: The appeal should be dismissed.
The Federal Court of Appeal was right to grant no remedy other than costs, as even though the respondents were not fulfilling their language duties under Part IV of the OLA at the time D and CALDECH filed their complaint with the Commissioner, any deficiencies that remained at the time the application was heard were beyond the scope of Part IV. [4]
However, in defining the scope of the language duties in this case, the Federal Court of Appeal adopted an overly narrow view of linguistic equality. The principle of linguistic equality in the provision of government services involves a guarantee in relation to the services provided by the federal institution, and the content of this principle must be defined in light of the nature and purpose of the service in question. It is possible that substantive equality will not result from the development and implementation of identical services for each language community. In the instant case, it is difficult to imagine how the economic development services could be provided without the participation of the targeted communities in both the development and the implementation of programs, since that is the very nature of the services. The communities could therefore expect to have distinct content that varied from one community to another, depending on priorities established by the communities themselves. Insofar as North Simcoe, in accordance with the programs’ objectives, made efforts to reach the linguistic majority community and involve that community in program development and implementation, it had a duty to do the same for the linguistic minority community. [4] [51] [53‑54]
Finally, the duties under Part IV of the OLA do not entail a requirement that government services achieve a minimum level of quality or actually meet the needs of each language community. A deficiency in this regard might be due to a breach of the duties imposed by the Department of Industry Act or a breach of those under Part VII of the OLA . Nor does the principle of linguistic equality in the provision of services mean that there must be equal results for each of the two language communities, although inequality of results may be a valid indication that the quality of the services is unequal. Here, the apparent disparity in results between the two language communities does not support a conclusion that the services were of unequal quality. [55‑56] [62]
Cases Cited
Referred to: Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276, leave to appeal allowed, [2005] 1 S.C.R. ix, leave to appeal withdrawn, 2005 SCC 85, [2005] 3 S.C.R. 906; R. v. Beaulac, [1999] 1 S.C.R. 768; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3.
Statutes and Regulations Cited
Act to amend the Official Languages Act (promotion of English and French), S.C. 2005, c. 41 .
Canadian Charter of Rights and Freedoms, ss. 16(1) , 20(1) .
Department of Industry Act, S.C. 1995, c. 1 .
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), Parts IV, V, VII , ss. 2(a), 21, 22, 25, 41, 77.
APPEAL from a judgment of the Federal Court of Appeal (Richard C.J. and Létourneau and Nadon JJ.A.), 2006 FCA 374, [2007] 3 F.C.R. 3, 355 N.R. 144, [2006] F.C.J. No. 1777 (QL), 2006 CarswellNat 3962, allowing an appeal from a judgment of Harrington J., 2005 FC 987, [2005] 4 F.C.R. 3, 276 F.T.R. 249, [2005] F.C.J. No. 1218 (QL), 2005 CarswellNat 2086. Appeal dismissed.
Ronald F. Caza, Mark C. Power and Justin Bertrand for the appellants Raymond DesRochers and Corporation de développement économique communautaire CALDECH.
Pascale Giguère and Christine Ruest, for the appellant the Commissioner of Official Languages of Canada.
Alain Préfontaine and René LeBlanc, for the respondents.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Maxime Faille and Guy Régimbald, for the intervener the Attorney General of the North West Territories.
Roger J. F. Lepage, for the intervener Fédération Franco‑Ténoise.
English version of the judgment of the Court delivered by
Charron J. —
1. Overview
[1] This appeal requires the Court to determine the nature and scope of the principle of linguistic equality in communications and the provision of services as implemented in Part IV of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .) (“OLA ”). In particular, it concerns the community economic development services provided in Huronia, a region of Ontario where there is “significant demand”, within the meaning of s. 22 of the OLA , for communications and services in the minority official language. The services in question are provided by the Department of Industry Canada pursuant to its powers, duties and functions under the Department of Industry Act, S.C. 1995, c. 1 (“DIA ”), and are implemented by various community futures development corporations (“CFDCs”).
[2] It is common ground in this appeal that the rights being claimed are of constitutional origin, since the relevant provisions of the OLA implement the constitutional right of any member of the public to be served by federal institutions in the official language of his or her choice (Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773). The Chief Justice stated the following constitutional question:
Do s. 20(1) of the Canadian Charter of Rights and Freedoms and Part IV of the Official Languages Act, R.S.C. 1985, c. 31, read in light of the principle of equality set out in s. 16(1) of the Charter , require Industry Canada to provide services of equal quality in both official languages?
[3] The parties agree, correctly so in my opinion, that the provisions referred to in this constitutional question create a constitutional duty to make services “of equal quality in both official languages” available to the public. The answer to the constitutional question is therefore clearly yes. What is in issue in this appeal is the scope of this concept of “services of equal quality”.
[4] With respect, in defining the scope of the language duties in this case, the Federal Court of Appeal, which rendered the decision under appeal, appears to have adopted an overly narrow view of linguistic equality that does not take account of the nature and objectives of the program in question. Nevertheless, for reasons I will explain below, I reach the same conclusion as that court on the merits. It is true that the respondents were not fulfilling their language duties under Part IV of the OLA at the time the appellants Raymond DesRochers and Corporation de développement économique communautaire CALDECH (“CALDECH”) filed their complaint with the Commissioner of Official Languages of Canada (“Commissioner”). However, any deficiencies that remained at the time the application was heard were, as the trial judge concluded, beyond the scope of Part IV, which means that no remedy other than costs was appropriate.
[5] For the reasons that follow, I would dismiss the appeal. However, since I am of the opinion that the application has raised an important new principle in relation to the OLA , I would also award the appellants DesRochers and CALDECH their costs in this Court.
2. Facts
[6] Huronia is in central Ontario on the shore of Georgian Bay. The majority of its population is English‑speaking. According to statistics, about 6 percent of the region’s population is French‑speaking, although Francophones form a significant share of the population of the town of Penetanguishene (19 percent) and the township of Tiny (18 percent).
[7] In 1985, Industry Canada created an economic development program for Ontario’s rural areas, the “Community Futures Program”, which was to be implemented by the CFDCs. These local non‑profit organizations are run by local volunteer boards of directors that represent various community interests. The North Simcoe CFDC (“North Simcoe”) is responsible for implementing the Community Futures Program in northern Huronia.
[8] The mandate of CFDCs is threefold. First, they are to facilitate access to capital for the creation, expansion or stabilization of local small businesses. Second, they are responsible for providing local small businesses with advice, information and other business services. Third, they are to develop and implement community strategic economic development plans in co‑operation with other partners. The objective of these plans is to assess local problems, implement strategies for the development of human, institutional and physical infrastructures, and support entrepreneurship, employment and the region’s economy.
[9] To carry out its mandate as a CFDC, North Simcoe provides a range of services. It lends up to $125,000 to small businesses that have difficulty obtaining financing from traditional sources. It advises entrepreneurs and helps them prepare business plans and loan applications. It organizes seminars and workshops for entrepreneurs and young persons. Every five years, it holds community consultations to update the community strategic plan.
[10] In 1995, the appellant CALDECH was created by Francophone community organizations to address shortcomings those organizations saw in the community economic development services provided by North Simcoe to the French‑speaking population of Huronia. CALDECH did not receive support from Industry Canada’s Community Futures Program and had to obtain funding from various sources, such as the Department of Canadian Heritage and the Ontario Trillium Foundation. CALDECH was able to implement more than 50 projects intended to benefit the French‑speaking community before it stopped providing services in 2004.
[11] In 2000, the appellant Raymond DesRochers, CALDECH’s Executive Director, filed a complaint with the Commissioner, alleging that North Simcoe was unable to provide its services in French. After investigating, the Commissioner concluded, in an investigation report sent to the parties in 2001, that Industry Canada had breached its duties under Parts IV and VII of the OLA (Investigation Report on the North Simcoe Business Development Center’s Ability to Provide French‑Language Services to the Region’s French‑Speaking Population, September 2001). She recommended that Industry Canada take measures to ensure that services provided by North Simcoe to the French‑speaking community were equal in quality to those provided to the English‑speaking community. In view of the government’s commitment in s. 41 of Part VII of the OLA , she also recommended that adequate and appropriate measures be taken to meet the economic development needs of French‑speaking businesspersons in Simcoe County.
[12] Following the Commissioner’s investigation, Industry Canada, as a temporary measure, provided funding to CALDECH between March 2001 and August 2002 so that the community could immediately receive economic development services in French. During that period, CALDECH received monthly grants of $25,000 from Industry Canada. In the meantime, Industry Canada took various corrective measures to ensure equality in the provision of North Simcoe’s services in both languages.
[13] Despite the efforts of Industry Canada and North Simcoe, the Commissioner concluded in two follow‑up reports in 2003 and 2004 that Industry Canada was still not in full compliance with Parts IV and VII of the OLA (Final Follow‑up to the Investigation Report on the North Simcoe Business Development Centre’s Ability to Provide French‑Language Services to the Region’s French‑Speaking Population, June 2003; Second Follow‑up to the Investigation Report on the North Simcoe Community Futures Development Corporation’s Ability to Provide French‑Language Services, August 2004). I will come back to these conclusions later in my analysis.
[14] After the second follow‑up report was published in 2004, Mr. DesRochers and CALDECH applied to the Federal Court under s. 77(1) of the OLA for, inter alia, the following remedies: an order declaring that the respondents had violated and were continuing to violate Parts IV and VII of the OLA and ss. 16(1) and 20(1) of the Canadian Charter of Rights and Freedoms ; an order enjoining the respondents to comply with those provisions of the OLA and the Charter ; damages; an order granting CALDECH permanent and stable funding; and costs. The Commissioner intervened in the proceedings in the courts below and was granted leave to participate in the appeal to this Court as an appellant.
3. Parts IV and VII of the OLA
[15] Before summarizing the decisions of the courts below and considering the issue before this Court, it will be helpful to mention certain events that have occurred since the proceedings began in order to properly situate the application in its legislative context and clarify its scope.
[16] As I mentioned above, the appellants DesRochers and CALDECH based their application to the Federal Court not only on Part IV but also on Part VII of the OLA . The Commissioner’s reports also referred to both these parts. The distinction between the two parts is an important one and, as we will see, only Part IV is now in issue before the Court.
[17] Part IV of the OLA is entitled “Communications With and Services to the Public”. The specific issue in this appeal is whether the respondents breached their duty under s. 22 to ensure that any member of the public can “communicate” with and “obtain available services” from the federal institution “in either official language”.
[18] Part VII is entitled “Advancement of English and French”. Section 41, which is in Part VII, was worded as follows during the period relevant to this appeal:
41. 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.
At the time the appellants DesRochers and CALDECH filed their application, there was no enforceable provision to go along with the declaratory wording of s. 41. Moreover, the application provided for in s. 77(1) of the OLA , on which the application in this case is based, was limited to complaints under parts IV and V, as Part VII was not mentioned in s. 77(1) until 2005, when it was added by means of a statutory amendment (Act to amend the Official Languages Act (promotion of English and French), S.C. 2005, c. 41 ).
[19] In July 2004, a few months before the application in this case was filed, the Federal Court of Appeal held in Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276, that an application for a court remedy could not be made on the basis of an alleged failure to meet the commitment set out in Part VII, in s. 41. In February 2005, this Court granted leave to appeal that decision ([2005] 1 S.C.R. ix). Harrington J. heard the application in the instant case in May 2005, and in accordance with the Federal Court of Appeal’s holding in Forum des maires, his decision in July of that year was based solely on Part IV.
[20] Parliament subsequently amended the OLA to include a reference to Part VII in s. 77(1) and add enforceable provisions: see s. 41(2) and (3) . The leave to appeal the Court had granted in Forum des maires was then withdrawn and declared to be of no effect: Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), 2005 SCC 85, [2005] 3 S.C.R. 906.
[21] In light of these developments, the Federal Court of Appeal determined that the scope of the application in the case at bar was as follows:
At the time the appellants made their application, the statutory amendment had not yet been enacted. Moreover, it did not come into force until November 25, 2005, and then without retroactive effect. Therefore, the decision of this Court concerning the language of subsection 77(1) , as it stood prior to the amendment, is the one that is applicable in this case: the section 77 application is therefore not available to the appellants for the alleged breaches of Part VII. [Emphasis added.]
(2006 FCA 374, [2007] 3 F.C.R. 3, at para. 74)
[22] The appellants agree that the issue in this appeal arises entirely under Part IV of the OLA and does not concern any duties that may result from Part VII.
[23] It is clear simply from the wording of the enactment that the distinction between Part IV and Part VII is important. It is also clear from the evidence that what the appellants DesRochers and CALDECH sought in their application was in essence, first, to show that there was a real need for economic development services in the French‑speaking community and, second, to convince the court that the government had a positive duty to take concrete measures to support the development of the French‑speaking community in Simcoe County in order to counter the increasing rate of assimilation. As we will see, the question whether the duties under Part IV were fulfilled is much narrower than the question before the Federal Court in the original application. What must be done to answer it is essentially to conduct a comparative analysis in order to determine whether the services provided by the federal institution in each official language community are of equal quality. I will now review the decisions of the courts below in this case.
4. Judicial History
4.1 Federal Court, 2005 FC 987, [2005] 4 F.C.R. 3
[24] In first instance, Industry Canada maintained that the OLA does not apply in this case because North Simcoe cannot be characterized as a “federal institution” within the meaning of Part IV. Harrington J. rejected this argument and held that the OLA does apply. He also found that under s. 25 of the OLA , Industry Canada had a duty to ensure that North Simcoe provided equal services in English and French. However, he concluded that “[m]uch of what Mr. Desrochers and CALDECH submit pertains to Part VII” (para. 75). Since Part VII of the OLA was simply declaratory and could not serve as a basis for the application for a remedy under s. 77(1) , decisions in that regard were to be made by Parliament and the executive, not by the courts.
[25] Harrington J. acknowledged that when the applicants filed their complaint with the Commissioner in 2000, Industry Canada was in breach of its duty to provide equal services in both official languages. But Industry Canada had subsequently taken corrective measures. According to Harrington J., at the time the applicants applied for a court remedy in 2004, North Simcoe was able to provide services in both languages and was providing them equally, even if it was “not as successful as Mr. Desrochers and CALDECH would like” (para. 73).
[26] Harrington J. therefore dismissed the application without costs.
4.2 Federal Court of Appeal, 2006 FCA 374, [2007] 3 F.C.R. 3
[27] Like the trial judge, the Federal Court of Appeal defined the issue by specifying that Part IV of the OLA provides only for a right to communicate with and receive available services from the federal institution in French. The court also made it clear that the application was based on the OLA and not the DIA .
[28] Regarding the duties under the OLA , Létourneau J.A., writing for the court, readily accepted that the applicable standard was that of substantive, and not simply formal, equality in the use and status of the two official languages. However, he rejected the argument that this concept of equality required North Simcoe to take account of the special needs of the French‑speaking community in developing and implementing its programs. He explained:
. . . Part IV of the OLA provides for equal linguistic access to regional economic development services in Ontario, and not access to equal regional economic development services. . . .
. . .
However, in my humble opinion, the intervener’s counsel was mistaken when she argued that, based on this principle of linguistic equality, the respondents had a duty under the OLA to take the necessary steps to ensure that Francophones are considered equal partners with Anglophones in regional economic development, as per a definition of the services that reflect the needs of the minority, and in the provision of equal economic development services. In my view, this is to confuse the rights that may be provided for in, and the duties that may be imposed by, the DIA with the rights and duties that flow from the OLA . [Emphasis added; paras. 33 and 38.]
[29] The court concluded that if there were any inadequacies in the provision of services, they resulted from a breach of duties imposed by the DIA , not from a breach of those imposed by the OLA .
[30] The court nevertheless allowed the appeal because, in its view, the trial judge had erred in determining the merits of the application on the basis of North Simcoe’s ability to provide services in French at the time the application was filed in 2004. The relevant time was instead the date the complaint was filed with the Commissioner. Since the evidence clearly showed that North Simcoe had been unable to communicate with its clients and provide services in French in 2000, the application ought to have been allowed. However, no remedy other than costs was appropriate, because North Simcoe had taken corrective measures between 2000 and 2004 and because the trial judge had correctly determined that the principle of linguistic equality in communications and the provision of services implemented in Part IV of the OLA was being adhered to at the time the application was heard.
5. Analysis
[31] Before considering the provisions at issue in the case at bar, it will be helpful to review the principles that govern the interpretation of language rights provisions. Courts are required to give language rights a liberal and purposive interpretation. This means that the relevant provisions must be construed in a manner that is consistent with the preservation and development of official language communities in Canada (R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 25). Indeed, on several occasions this Court has reaffirmed that the concept of equality in language rights matters must be given true meaning (see, for example, Beaulac, at paras. 22, 24 and 25; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 31). Substantive equality, as opposed to formal equality, is to be the norm, and the exercise of language rights is not to be considered a request for accommodation. Bearing this in mind, I will now consider the scope of the remedies provided for in s. 77 of the OLA .
5.1 Nature of the Section 77 Remedy
[32] In Forum des maires, Décary J.A. clearly explained the nature of the court remedy provided for in s. 77 of the OLA (at paras. 15‑21). Although the scope of the remedy has since been broadened by the inclusion of Part VII, his comments on its nature are no less relevant. I agree with his analysis and will therefore review its salient points here before addressing the issue before us.
[33] Section 77 reads as follows:
77. (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V [since 2005 , “Part IV, V or VII”], or in respect of section 91, may apply to the Court for a remedy under this Part.
(2) An application may be made under subsection (1) within sixty days after
(a) the results of an investigation of the complaint by the Commissioner are reported to the complainant under subsection 64(1),
(b) the complainant is informed of the recommendations of the Commissioner under subsection 64(2), or
(c) the complainant is informed of the Commissioner’s decision to refuse or cease to investigate the complaint under subsection 58(5),
or within such further time as the Court may, either before or after the expiration of those sixty days, fix or allow.
(3) Where a complaint is made to the Commissioner under this Act but the complainant is not informed of the results of the investigation of the complaint under subsection 64(1), of the recommendations of the Commissioner under subsection 64(2) or of a decision under subsection 58(5) within six months after the complaint is made, the complainant may make an application under subsection (1) at any time thereafter.
(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.
(5) Nothing in this section abrogates or derogates from any right of action a person might have other than the right of action set out in this section.
[34] Thus, the remedy provided for in s. 77 is grounded in the complaint to the Commissioner and the results of the Commissioner’s investigation. As Décary J.A. explained, “the capacity as an ‘applicant’ to the Court is derived from the capacity as a ‘complainant’ to the Commissioner (subsection 77(1)) and it is the date of communication of the report that serves as the point of departure for the calculation of the time periods (subsection 77(2))” (para. 17). The merits of the complaint are determined as of the time of the alleged breach, and the facts that existed as of the date the complaint was filed with the Commissioner are therefore determinative of the outcome of the application.
[35] Although the complaint to the Commissioner and the investigation that follows form the basis for the remedy, it must be made clear that the Commissioner is not a tribunal for the purposes of the OLA and that an application under s. 77 is not an application for judicial review. Décary J.A. explained this as follows:
The Commissioner, it is important to keep in mind, is not a tribunal. She does not, strictly speaking, render a decision; she receives complaints, she conducts an inquiry, and she makes a report that she may accompany with recommendations (subsections 63(1), (3)). If the federal institution in question does not implement the report or the recommendations, the Commissioner may lodge a complaint with the Governor in Council (subsection 65(1)) and, if the latter does not take action either, the Commissioner may lodge a complaint with Parliament (subsection 65(3)). The remedy, at that level, is political.
However, to ensure that the Official Languages Act has some teeth, that the rights or obligations it recognizes or imposes do not remain dead letters, and that the members of the official language minorities are not condemned to unceasing battles with no guarantees at the political level alone, Parliament has created a “remedy” in the Federal Court that the Commissioner herself (section 78 ) or the complainant (section 77 ) may use. This remedy, the scope of which I will examine later, is designed to verify the merits of the complaint, not the merits of the Commissioner’s report (subsection 77(1) ), and, where applicable, to secure relief that is appropriate and just in the circumstances (subsection 77(4) ). [paras. 16‑17]
[36] The Commissioner’s reports are admissible in evidence but are not binding on the parties. The evidence provided during the Commissioner’s investigation may therefore be supplemented or even contradicted. Nor are the Commissioner’s conclusions binding on the judge, who hears the matter de novo. As well, the Commissioner’s reports and the conclusions they contain must be considered in the context of the Commissioner’s specific mandate. Décary J.A. explained how the nature and purpose of the Commissioner’s mandate differ from those of the court remedy:
Moreover, the Commissioner’s reports are admissible in evidence, but they are not binding on the judge and may be contradicted like any other evidence. The explanation is obvious. The Commissioner conducts her inquiry in secret and her conclusions may be based on facts that the parties concerned by the complaint will not necessarily have been able to verify. Furthermore, for reasons that I will soon give, the purpose of the Court remedy is more limited than the purpose of the Commissioner’s inquiry and it may be that the Commissioner takes into account some considerations that the judge may not consider. . . . I note that in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, Gonthier J. emphasized that “[i]n many significant respects, the mandates of the Commissioner of Official Languages and the Privacy Commissioner are in the nature of an ombudsman’s role” (paragraph 37), that the Commissioners “follow an approach that distinguishes them from a court” and that their “unique mission is to resolve tension in an informal manner” (paragraph 38). [para. 21]
[37] Finally, although the assessment of the merits of the complaint is based on the facts that existed as of the time the complaint was filed with the Commissioner, any remedy must be adapted to the circumstances that exist as of the time of the court’s order. Décary J.A. noted that “[t]he remedy will vary according to whether or not the breach continues” (para. 20).
[38] I will now consider the issue before us in light of this analytical framework.
5.2 Relevant Provisions of Part IV of the OLA
[39] As I explained above, the only provisions of Part IV of the OLA that are at issue in this case are the following:
part iv
communications with and services to the public
. . .
21. Any member of the public in Canada has the right to communicate with and to receive available services from federal institutions in accordance with this Part.
22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.
. . .
25. Every federal institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this Part to be provided in either official language.
[40] It is common ground that Huronia is a region where there is “significant demand”, within the meaning of s. 22 , for communications and services in the minority official language. As well, it is no longer in dispute in this Court that, as the courts below concluded, s. 25 applies in this case. The issue is whether the respondents have fulfilled their duties under s. 22 .
[41] The scope of s. 22 must be assessed in light, inter alia, of the purpose of the OLA . The appellants rely in particular on s. 2 (a), which reads as follows:
2. The purpose of this Act is to
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
5.3 Issue in This Appeal
[42] As I explained above, the merits of the complaint must be assessed in light of the facts that existed as of the time the complaint was filed with the Commissioner. This question was resolved long ago. As the Commissioner wrote in her investigation report in 2001, Industry Canada acknowledged that at the time of the complaint, the quality of French‑language services was not equal to that of services offered in English. The Department therefore responded to the Commissioner’s preliminary recommendations by taking measures to remedy the situation while the investigation was still under way. Despite those measures, the Commissioner concluded when she issued her investigation report that the services provided by North Simcoe “to its French‑speaking clients are far from being comparable, in quantity or quality, to those provided to its English‑speaking clients” (p. 13 (emphasis added)).
[43] The trial judge reached the same conclusion, stating that, on the date the complaint was filed, “Industry Canada would clearly have been found in breach of the duty imposed upon it by section 25 ” (para. 44). There is ample evidence to support this conclusion. Therefore, the Federal Court of Appeal correctly allowed the appeal and, as the trial judge would have done had he not erred regarding the relevant date, granted the appellants’ application.
[44] What is in issue in this appeal is whether the Federal Court of Appeal erred in holding that no remedy other than costs should be granted because, in light of the evidence, it was open to the trial judge to find that the principle of linguistic equality implemented in Part IV of the OLA was being adhered to at the time the application was heard.
5.4 Arguments of the Parties
[45] As I stated in the introduction to these reasons, the parties agree that as a general rule, the principle — provided for in s. 20(1) of the Charter and implemented in Part IV of the OLA — that members of the public are entitled to linguistic equality when receiving services entails an obligation to make services “of equal quality in both official languages” available to the public. The parties disagree, however, on what is meant by “equal quality”.
[46] The appellants conceded before this Court that equality of rights and privileges as to the use of the two official languages has been achieved through the institutional infrastructure created by Industry Canada in response to the Commissioner’s recommendations. They also acknowledged that in order to also achieve equality of status, it will in most cases suffice for the government to communicate and deliver the same service equally in both official languages. But, the appellants argue, depending on the nature of the service in question, it will sometimes be necessary to go further