SCC Provides Guidance on Language Equality: DesRochers v Canada

Last Thursday, the Supreme Court of Canada (“SCC”) released their decision in DesRochers v Canada (Industry), 2009 SCC 8 [DesRochers]. In it, the top court opines on the nature and scope of the obligations placed on federal government institutions by the Official Languages Act, RSC 1985, c 31 (4th Supp) [OLA].

Facts

Industry Canada has economic development plans for Ontario’s rural areas which are implemented by community future development corporations (“CFDCs”). The North Simcoe CFDC facilitates economic development by providing various services, including the provision of capital, advice, and strategic plans for the community.

Raymond DesRochers was the Executive Director of Corporation de développement économique communautaire CALDECH (“CALDECH”). This organization was created by the Francophone community in Huronia to address the shortcomings in economic development services provided to the French-speaking population of Huronia by the North Simcoe CFDC.

CALDECH received no funding from the CFDC, and had to find its funding from other governmental sources.

Procedural History

In 2000, CALDECH filed a complaint with the Commissioner of Official Languages in Canada (“Commissioner”), alleging that North Simcoe did not provide its services in French. The resultant report found that Industry Canada had breached its duties under the OLA. The report further recommended that services provided by North Simcoe to the francophone community be equal in quality to those provided to the Anglophone community. Despite attempts by North Simcoe CFDC to resolve the issues pointed out in the report, the Commissioner found in subsequent reports in 2003 and 2004 that the OLA still had not been fully complied with.

The shortcomings were brought to the attention of the Federal Court by way of s. 77(1) of the OLA. Mr. DesRochers and CALDECH mainly sought an order forcing compliance with the OLA and the Charter, as well as permanent and stable funding for CALDECH. CALDECH lost at the Federal Court because the judge held that the initial corrective measures taken by Industry Canada were sufficient to comply with the OLA.

The Federal Court of Appeal overturned the lower decision, holding that the correct timeframe to consider was the time before the initial complaint. This meant that the corrective measures taken by Industry Canada after the initial Commissioner report were not to be considered in whether there was a breach of the OLA. Nevertheless, because appropriate remedial measures had already been taken, no remedy other than costs was appropriate.

The Official Languages Act

The SCC deals only with Part IV of the OLA. In that part, the court mainly examines s. 22, which states,

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.

The court also noted that s. 22 is to be assessed in light of the purpose of the OLA, which is stated in s. 2:

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; (emphasis theirs, para. 41)

Analysis

Since there was no dispute that Huronia was a region with “significant demand” for communications and services in the French language, the court described its task as “essentially … conduct[ing] a comparative analysis in order to determine whether the services provided by the federal institution in each official language community are of equal quality” (para 23).

In espousing the definition of “equal quality”, the court first noted that substantive equality, not formal equality, was the norm (para 31). Then, it rejected Industry Canada’s narrow view that the government only has an obligation to change its method of providing the service, but not the content itself (para 48). Charron J., for a unanimous court, wrote,

“it is not entirely accurate to say that linguistic equality in the provision of services cannot include access to services with distinct content. Depending on the nature 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. The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question.” (emphasis theirs, para 51)

In the case at bar, the court noted that the need for distinct content was especially poignant in achieving substantive equality. This is because Industry Canada described its economic development program as being particularly adaptive to the communities in which they are to operate (para 52). Specifically, the court writes

“What matters is that the services provided be of equal quality in both languages. The analysis is necessarily comparative. Thus, 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.” (para 54)

Charron J. then put some limits on the scope of the obligations. She made it clear to clearly demarcate the line between the content of the programs under scrutiny, and the results of the program. At paras. 55-56, she states that (1) the OLA does not require any minimum quality level, and (2) different results for the different linguistic communities do not necessarily indicate that the obligations of the OLA have been violated.

In this case, the court determined that “the apparent disparity in results between the two language communities does not support a conclusion that the services were of unequal quality” (para 62). As such, the court concludes that the deficiencies complained of by CALDECH do not relate “to the principle of linguistic equality in communications and the provision of services as implemented in Part IV of the OLA” (para 63).

Comment

This case will likely have an impact on many Francophone minority communities across the country. The extent of this impact, however, is unclear.

Although the SCC has indicated that the content of programs can be adapted to achieve linguistic equality, the reach of such adaptation is restricted because it needs to be “defined in light of the nature and purpose of the service in question” (para 51).

In DesRochers, Industry Canada had a clear service objective that required catering to local community priorities. However, other federal services may have narrower mandates which do not facilitate such a broad requirement of catering to community needs. As such, it may well be the case that absent such a broad requirement, the “distinct content” mentioned here may never materialize.