2018 FC 530, 2018 FC 530

[2019] 1 F.C.R. 243 T-1107-13 2018 FC 530 La Fédération des francophones de la Colombie-Britannique ( Applicant ) v. Employment and Social Development Canada and the Canada Employment Insurance Commission ( Defendants ) and The Commissioner of Official Languages for Canada and the Attorney General of British Columbia ( Interveners ) Indexed as: Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development) Federal Court, Gascon J.—Ottawa, May 17, 18 and 19, 2017; May 23, 2018.

Official Languages — Application for remedy filed under Official Languages Act (OLA), s. 77(1) — Applicant arguing defendants violating OLA, Parts IV, VII, Canadian Charter of Rights and Freedoms (Charter), s. 20(1) under federal-provincial agreement on employment assistance services entered into under Employment Insurance Act (EIA), s. 63 — Alleging defendants failing to meet linguistic obligations toward British Columbia’s French linguistic minority in entering into, implementing Canada ― British Columbia Labour Market Development Agreement (Agreement) — Agreement stipulating that defendants will contribute financially to British Columbia’s employment assistance programs, services — Agreement containing provisions dealing with, inter alia, language obligations of parties — British Columbia developing new program, not renewing funding for Francophone organizations — Francophones identified as “specialized population” in new program — Francophone organizations only able to participate in call for tenders as subcontractors for English-language organizations — Applicant filing complaint with intervener before coming into force of British Columbia’s Employment Assistance Services Program (EPBC) — Intervener determining, inter alia, that defendant Employment and Social Development Canada (ESDC) not “fully” discharging its responsibilities under OLA,

Part VII — Applicant submitting, inter alia, that British Columbia employment benefit, support measures falling within exclusive federal jurisdiction, obligations under OLA, ss. 22 , 25 incumbent upon defendants — Asking Court, inter alia, to declare that OLA

Part IV applying to employment assistance services provided for in Agreement — Main issues whether breach of OLA,

Part IV in provision of employment assistance services under Agreement, whether breach of OLA,

Part VII, specifically s. 41 —

Part IV not applying to employment assistance services covered by Agreement — No breach of OLA, s. 25, Charter, s. 20(1) — Government having duty to ensure that third party providing services in accordance with

Part IV — Question at issue therefore whether British Columbia providing employment assistance services “on behalf of” defendants within meaning of OLA, s. 25 — Agreement falling within concurrent jurisdiction between Parliament, provincial legislatures — S. 25 not applying — British Columbia acting within its legislative jurisdiction — Not acting “on behalf of” or under control of federal institution — Defendants taking “positive measures” within meaning of OLA,

Part VII, s. 41(2) — S. 41 not conferring rights on linguistic minorities — Imposing duty on federal institutions to work for benefit of English, French communities — No explicit or implicit threshold in s. 41(2) — Test for measuring whether duty imposed on federal institutions fulfilled not sufficiency, but relevance — Concept of “measures” within OLA one of variable geometry — Language in s. 41(2) devoid of all specificity — Intervener attempting to make s. 41 control measure that is not consistent with language, purpose therein — “Positive measures” including obligation to act actively in a manner that does no harm — This

interpretation not adding to text of OLA — No regulations adopted under OLA, s. 41(3) — Without regulations specifying its scope, scale, s. 41(2) cannot include requirement of increased specificity or connection with particular programs or factual situations — Federal institutions cannot be sanctioned for failing to comply with duties not imposed on them — Parliament giving s. 41 “teeth” by enacting s. 41(2), extending court remedy under OLA, s. 77 — Nothing in s. 41(2) suggesting that positive measures having to be targeted for program or other federal initiative — Only needing to fall within general framework of federal institution’s operation, mandate — Positive measures having to respect jurisdiction, powers of provinces — Sufficient for courts that federal institution taking steps to fulfil its duty in light of those parameters — Here, federal institutions taking “positive measures” at time of filing of application — Accordingly, defendants fulfilling duty to take “positive measures” — No remedies granted — Application dismissed.

Constitutional Law — Distribution of Powers — Applicant seeking remedy under Official Languages Act (OLA), s. 77(1) — Arguing defendants violating OLA, Parts IV, VII, Canadian Charter of Rights and Freedoms (Charter), s. 20(1) under federal-provincial agreement on employment assistance services — Alleging defendants failing to meet linguistic obligations toward British Columbia’s French linguistic minority in entering into, implementing Canada ― British Columbia Labour Market Development Agreement (Agreement) — Agreement stipulating that defendants will contribute financially to British Columbia’s employment assistance programs, services — Reference re Employment Insurance Act (Can.), ss. 22 and 23, Confédération des syndicats nationaux v.

Canada (Attorney General) (CSN) not ordering or suggesting that employment assistance services fall under exclusive federal jurisdiction — Supreme Court in CSN implicitly recognizing existence of provincial jurisdiction, fact that labour market support measures having double aspect allowing for adoption of both federal, provincial laws, measures — Federal jurisdiction under Constitution Act, 1867, s. 91 (2A) having to be interpreted in broad, open-ended manner — Expanding federal jurisdiction not meaning that exclusivity being granted — Same factual, legal situation that existed in Lavigne v.

Canada (Human Resources Development), 2001 FCT 1365 , [2002] 2 F.C. 164 , affd 2003 FCA 203 , 308 N.R. 186 binding — Pith and substance of British Columbia’s benefits, measures within province’s jurisdiction, no federal government delegation in this case — Double aspect theory applying — Doctrine of interjurisdictional immunity playing no role herein — Defendant Canada Employment Insurance Commission only funding, not determining, delivering or administering measures — British Columbia in charge of designing, implementing own employment assistance programs — Pith and substance of benefits, measures covered by Agreement having “double aspect”, i.e. regulated both by federal government under Constitution Act, 1867, s. 91(2A), by provinces under Constitution Act, 1867, ss. 92(13) , (16) , 93 — Embracing doctrine of interjurisdictional immunity herein running counter to Supreme Court case law — Courts favouring flexible

interpretation of division of powers — Doctrine of interjurisdictional immunity having limited scope, not applicable herein.

Federal Court Jurisdiction — Applicant seeking remedy under Official Languages Act (OLA), s. 77(1) — Arguing that defendants violating OLA, Parts IV, VII, Canadian Charter of Rights and Freedoms (Charter), s. 20(1) under federal-provincial agreement on employment assistance services entered into under Employment Insurance Act (EIA), s. 63 — Alleging defendants failing to meet linguistic obligations toward British Columbia’s French linguistic minority in entering into, implementing Canada — British Columbia Labour Market Development Agreement (Agreement) — Court having jurisdiction herein — Test in ITO-Int’l Terminal Operators v.

Miida Electronics met — Inaccurate to characterize application for relief as primarily involving concurrent or exclusive jurisdiction — OLA expressly providing jurisdiction — Following that Court having jurisdiction to rule on related or adjacent constitutional questions.

This was an application for remedy filed under subsection 77(1) of the Official Languages Act (OLA) pursuant to which the applicant argued that the defendants violated Parts IV and VII of the OLA and subsection 20(1) of the Canadian Charter of Rights and Freedoms (Charter), under a federal-provincial agreement on employment assistance services, entered into under

section 63 of the Employment Insurance Act (EIA). More specifically, the applicant alleged that the defendants failed to meet their linguistic obligations toward British Columbia’s official language minority community, the French linguistic minority, in entering into and implementing the Canada ― British Columbia Labour Market Development Agreement (Agreement) signed in February 2008.

The Agreement stipulates that the defendants will contribute financially to the costs of British Columbia’s employment assistance programs and services and related administrative costs, provided they are “similar” to the employment benefits and support measures established by the defendant Canada Employment Insurance 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). Pursuant to the Agreement and in accordance with

section 63 of the Employment Insurance Act (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 and has primary responsibility for the delivery of benefits and measures.

The Agreement contains provisions dealing with, inter alia , the language obligations of the parties, including that British Columbia agrees to provide access to benefits 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.” British Columbia 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.

As a result, Francophones were no longer served by organizations whose primary purpose was to meet the needs of the French-speaking community. British Columbia decided not to renew funding for Francophone organizations. According to the applicant, the “by and for” model was the only one that could provide the French-speaking community with employment assistance services of equal quality. 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 certain areas of British Columbia, demand was significant and therefore employment assistance services had to be available and equivalent to services in English under the Agreement. The EPBC came into force in April 2012. Since Francophone organizations 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.

Before the EPBC came into force, the applicant filed a complaint with the intervener stating, inter alia , that its members were in the best position to identify and meet the French-speaking community’s employment assistance service needs; that they were no longer receiving funding; and that despite the linguistic clause contained in the Agreement, maintenance of French-language services was not guaranteed. The applicant also denounced the elimination of certain employment assistance services in centres formerly provided to Francophones through agreements with Francophone organizations.

In its report, the intervener determined, inter alia , that the defendant Employment and Social Development Canada (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. The applicant submitted, inter alia , that British Columbia employment benefits and support measures fall within exclusive federal jurisdiction under subsection 91(2A) of the Constitution Act, 1867 , and that obligations under subsection 20(1) of the Charter and sections 22 and 25 of the OLA are incumbent upon the defendants. The applicant asked the Court, inter alia , to declare that

Part IV of the OLA applies to the employment assistance services provided for in the Agreement; order the defendants to develop and implement formal and permanent monitoring mechanisms to ensure compliance with

Part VII of the OLA, and require the province to fully comply with the Agreement. The main substantive issues were whether there was a breach of

Part IV of the OLA in the provision of employment assistance services under the Agreement, and whether there was a breach of

Part VII of the OLA, specifically

section 41. Held , the application should be dismissed. Two preliminary issues were addressed: the jurisdiction of the Federal Court and the requirements of the court remedy under

section 77 of the OLA . The Court had jurisdiction to deal with all the issues raised by this case. There was no doubt that all three branches of the ruling in ITO- Int’l Terminal Operators v. Miida Electronics were met. The main issue of the application, and its raison d’être , was first and foremost the application,

interpretation and scope of the OLA . It was totally inaccurate to characterize the application for relief as primarily involving concurrent or exclusive jurisdiction. The jurisdiction of the Court in matters relating to a complaint made under the OLA is expressly provided for therein. The OLA is a “law of Canada” and was the legal basis for the applicant’s application. It followed that the Court had jurisdiction to rule on related or adjacent constitutional questions. The second and third branches of the ITO test were not problematic in this case.

The circumstances of the application, including the fact that the applicant filed its complaint with the intervener prior to the actual implementation of the Agreement, made it necessary to specify the parameters of a court remedy initiated under

section 77 of the OLA . The case law is clear that the merits of the complaint must be weighed against the facts that existed at the time the complaint was filed with the intervener. The case law does not distinguish between the time of the alleged breach and the date the complaint was filed, in

order to determine the merits of the complaint. The question was not whether the facts before the Court are the same as those before the intervener when the complaint was filed, but whether the same facts in the complaint have changed since then. The remedy to be granted, if any, will be measured at the time of the decision to be rendered by the Court. The passage of time cannot give rise to a breach or non-compliance that did not exist when the complaint was filed.

There can be no remedy for a breach or non-compliance that would exist at the time of the Court’s decision if that breach or non-compliance had not yet occurred or existed at the time the complaint was filed with the intervener. An application under

section 77 is not for a preventive remedy; it is for a curative remedy that provides relief for an infringement of language rights existing at the time of the complaint. The seeds of an apprehended or anticipated breach are not enough. In short, any concerns, fears or apprehensions at the time of the complaint but which only materialize later (as was the case here in many respects) cannot be considered facts existing at the time of the complaint for purposes of a court remedy under

section 77 of the OLA. The facts demonstrating non-compliance with the OLA must exist at the time of the complaint.

Part IV of the OLA does not apply to employment assistance services covered by the Agreement. It follows that there was no breach of

section 25 of the OLA or subsection 20(1) of the Charter in this case. Under

section 25, where a third party acts “on behalf of” a federal institution, the government has the duty to ensure that the third party provides services in accordance with

Part IV of the OLA as if it were the federal institution itself that provided them. The question at issue therefore was whether, under the Agreement, British Columbia provided employment assistance services “on behalf of” the defendants within the meaning of

section 25 of the OLA, making these federal institutions subject to

Part IV of the OLA. The Court in Lavigne v. Canada ( Human Resources Development ) , 2001 FCT 1365 , [2002] 2 F.C. 164 , affd 2003 FCA 203 ( Lavigne ) decided that an agreement such as the one at issue in this case falls within the concurrent jurisdiction between Parliament and the provincial legislatures and that

section 25 of the OLA does not apply. Supreme Court case law in no way undermines those findings. By creating and providing its own benefits and measures under the Agreement, British Columbia was acting within its legislative jurisdiction. The Agreement fell under provincial jurisdiction over property and civil rights in the province, matters of a purely local or private nature, and education provided for in subsections 92(13) and 92(16) and

section 93 of the Constitution Act, 1867 . As a result, British Columbia was not acting “on behalf of” or under the control of a federal institution. The control exercised by the defendants over British Columbia benefits and measures, if they do have any control, was essentially financial. The combination of Reference re Employment Insurance Act (Can.), ss. 22 and 23 and Confédération des syndicats nationaux v. Canada (Attorney General) ( CSN ) did not reject the reasoning in Lavigne or alter the findings therein.

Those two Supreme Court decisions did not order or suggest that employment assistance services, and in particular employment benefits and support measures such as those covered by the Agreement, fall under exclusive federal jurisdiction. CSN did not provide valid grounds for finding that the Supreme Court intended to restrict or limit provincial jurisdiction over employment assistance services.

On the contrary, it seems that the Supreme Court implicitly recognized the existence of provincial jurisdiction, and the fact that the labour market support measures have a double aspect that allows for the adoption of both federal and provincial laws and measures. Nowhere in the Supreme Court’s decision is there any reference to exclusive jurisdiction. CSN only broadened federal jurisdiction over employment insurance and established the principle that federal jurisdiction under subsection 91(2A) of the Constitution Act, 1867 must be interpreted in a broad and open-ended manner.

Expanding federal jurisdiction does not mean that exclusivity is being granted. Parliament’s jurisdiction may be extended without amputating provincial legislatures’ jurisdiction to intervene in the field of activity at issue. The pith and substance of a law or measure is not synonymous with exclusive jurisdiction. The same factual and legal situation that existed in Lavigne prevails today in the case of the Agreement, and this precedent binds the Court. There was no reason to disregard it or allow it to be re-examined. The rule of vertical stare decisis applied.

The pith and substance of British Columbia’s benefits and measures are within the province’s jurisdiction, and there was no federal government delegation in this case. This was a situation where the double aspect theory applied, and where the doctrine of interjurisdictional immunity defended by the applicant and the intervener played no role. A jurisdictional analysis was required to determine whether British Columbia provided employment assistance services on behalf of the defendants within the meaning of

section 25 of the OLA . A careful and detailed analysis of the evidence in the record demonstrated that the dominant characteristic of the benefits and measures funded by the Agreement was to stimulate the development of the labour market in British Columbia through a multitude of programs, that the province had full control under the Agreement, and that these benefits and measures were therefore definitely matters that fell within British Columbia’s legislative jurisdiction. The legislative context of the Agreement supported the finding that the benefits and measures provided for in contribution agreements under

section 63 of the EIA (and thus through the Agreement) did not fall under federal jurisdiction, but rather under provincial legislative jurisdiction. The defendant Canada Employment Insurance Commission only funded these measures: it did not determine, deliver or administer them. All the most important elements of the Agreement indicated that British Columbia was in charge of designing and implementing its own employment assistance programs.

They also reflected the full extent of the benefits and measures being considered to help develop labour markets in the province and the exercise of control by provincial authorities, not a delegation of authority by the defendants. The benefits and measures covered by the Agreement were consistent with matters that fall under both provincial and federal jurisdiction, and their pith and substance had a “double aspect” that could be regulated both by the federal government under subsection 91(2A) of the Constitution Act, 1867 on unemployment insurance and/or by the provinces under subsections 92(13) and 92(16) or

section 93. Embracing the doctrine of interjurisdictional immunity herein would run counter to the recent principles laid down by the Supreme Court regarding the division of powers and would be a significant departure from case law. The principle of co-operative federalism, and the double aspect theory associated with it, mean that on any matter not exclusive to either level of government both can legislate on certain aspects of the matter. The

interpretation of the division of powers to be favoured by the courts is one of flexibility, which does not underestimate the autonomy of provincial legislatures or the scope of Parliament’s jurisdiction. The doctrine of interjurisdictional immunity has a limited scope. It should be applied with restraint. In this case, it could not be applied. The defendants had taken “positive measures” within the meaning of

Part VII of the OLA at the time that the applicant filed its complaint with the intervener. This was therefore not a situation where they failed to fulfil their duties under

Part VII of the OLA. Subsection 41(2) of the OLA stipulates that “[e]very federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments under subsection (1).” The issue was whether the positive measures taken by the defendant helped achieve the objectives of

section 41 of the OLA. The provisions of

section 41 do not confer rights on Canadians from linguistic minorities. Instead, they impose on federal institutions the duty to work for the benefit of the English and French communities. There is a

fundamental difference in the wording of

Part IV and

Part VII. The OLA does not give

Part VII the same status as other parts of the Act. The language used in

Part VII, and Parliament’s treatment of

Part VII in the OLA clearly reflect this. The term “positive measures” is not defined in the OLA. However, it can be inferred that, in the context of

section 41, “positive measures” are concrete measures taken with the intention of producing a positive outcome for the benefit of linguistic minorities in Canada, and that they are a constructive step in fulfilling the commitment in subsection 41(1). There is no explicit or implicit threshold in subsection 41(2). The subsection simply imposes the general duty to take “positive measures”. The test for measuring whether the duty imposed on federal institutions has been fulfilled is not sufficiency; it is relevance, in the sense that the measures must be “positive”.

Even within the OLA itself, Parliament wanted the concept of “measures” to be one of variable geometry. The expression “positive measures” does not mean the same thing as other types of measures found elsewhere in the OLA. In short,

section 41 does not impose specific and particular duties on federal institutions. The language used in subsection 41(2) is devoid of all specificity. In seeking to require a method for federal institutions to perform impact analyses and gather information, the intervener was attempting to make

section 41 a control measure that is not consistent with the language and purpose of the provision. This

part cannot be one of the parameters that can help the courts determine the scope of the duty to take “positive measures”. The “positive measures” must be understood to include an obligation to act not only actively but also in a manner that does no harm. Interpreting “positive measures” this way does not add to the text of the Act; it gives the text it its full grammatical and ordinary meaning, in harmony with the scheme of the Act, the object of the Act, and the intention of Parliament, while keeping in mind the broad and liberal approach that must prevail in matters of language rights.

The federal government has not yet adopted any regulations under section 41(3) of the OLA. It is clear that Parliament’s intention was to use regulations to clarify and determine how federal institutions could comply with the duty to take “positive measures” and thus provide clarification where subsection 41(2) is silent. However, without regulations specifying its scope and scale, subsection 41(2) cannot include the requirement of increased specificity or connection with particular programs or factual situations that the applicant and the intervener wished to lend it.

Without these clarifications, which can only be provided through regulations, the courts cannot sanction federal institutions for failing to comply with duties that the OLA does not impose on them. By enacting subsection 41(2) and extending the court remedy under

section 77 in

Part VII of the OLA, Parliament has already given

section 41 “teeth”. There is nothing in the current wording of subsection 41(2) to suggest that the positive measures prescribed by

Part VII of the OLA must be targeted for a program, decision-making process, factual situation or specific initiative of a federal institution that may have been the subject of a complaint to the intervener. In the absence of regulations that would further specify their content, these positive measures need only fall within the general framework of the federal institution’s operation and mandate. Positive measures must respect the jurisdiction and powers of the provinces.

It is sufficient for the courts to be satisfied, on a balance of probabilities, that the federal institution has actually taken steps to fulfil its duty in light of those parameters. By making regulations under subsection 41(3) of the OLA, the federal government could further clarify the scope and requirements of what constitutes acceptable “positive measures”. The “positive measures” taken by the federal institutions included inserting a consultation clause in the Agreement and conducting effective consultations with representatives of the French linguistic minority.

When analyzed as a whole, the evidence in the record met the requirements of subsection 41(2) of the OLA interpreted as it should be, and accordingly the defendants fulfilled their duty to take “positive measures”. This was sufficient to dispose of the application under

Part VII and dismiss it. No remedies were granted. STATUTES AND REGULATIONS CITED An Act to amend the Official Languages Act (promotion of English and French) , S.C. 2005, c. 41. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 16(1),(3), 20. Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91 , 92, 93 , 101. Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Contraventions Act , S.C. 1992, c. 47. Department of Employment and Social Development Act , S.C. 2005, c. 34. Employment Insurance Act , S.C. 1996, c. 23, ss. 22, 23 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 . Federal Courts Act , R.S.C., 1985, c. F-7, s. 57.

Interpretation Act , R.S.C., 1985, c. I-21, s. 12. Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31,

Preamble, ss. 2, 3, 21, 22, 25, 27, 28, 33, 36(2), 38(1)(b), 41, 43(1),(2), 56(1), 58(1), 76, 77, 81, 82. Official Languages (Communications with and Services to the Public) Regulations , SOR/92-48. Statistics Act , R.S.C., 1985, c. S-19. TREATIES AND OTHER INSTRUMENTS CITED Canada – British Columbia Labour Market Development Agreement , signed February 20, 2008. CASES CITED FOLLOWED: DesRochers v. Canada (Industry) , 2009 SCC 8 , [2009] 1 S.C.R. 194 ; Lavigne v. Canada (Human Resources Development) , 2001 FCT

1365, [2002] 2 F.C. 164, affd 2003 FCA 203, 308 N.R. 186; Forum des maires de la Péninsule acadienne v. Canada (Food InspectionAgency), 2004 FCA 263, [2004] 4 F.C.R. 276; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342. APPLIED: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, affg 2012 FCA 246, [2013] 2 F.C.R. 155; Windsor (City) v. CanadianTransit Co., 2016 SCC 54, [2016] 2 S.C.R. 617; ITO-Int’l Terminal Operators v. Miida Electronics, (SCC), [1986]1 S.C.R. 752, (1986), 28 D.L.R. (4th) 641; Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Desrochers v.Canada (Industry), 2006 FCA 374, [2007] 3 F.C.R. 3; Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, [2016] 1S.C.R. 467; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; CanadianWestern Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725. CONSIDERED: Norton v. Via Rail Canada, 2009 FC 704; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002]2 S.C.R. 773; R. v.

Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193; Manitoba Language Rights(Re), (SCC), [1985] 1 S.C.R. 721, (1985), 19 D.L.R. (4th) 1; Canada (Attorney General) v. Shakov, 2017 FCA 250;Northern Telecom Canada Ltd. v. Communication Workers, (SCC), [1983] 1 S.C.R. 733, (1983), 147 D.L.R. (3d) 1;Tuccaro v. Canada, 2014 FCA 184, 2014 D.T.C. 5103; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101;Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 269; Confédération des syndicatsnationaux v.

Canada (Attorney General), 2008 SCC 68, [2008] 3 S.C.R. 511; Canada (Commissioner of Official Languages) v. Canada(Department of Justice), 2001 FCT 239, 35 Admin. L.R. (3d) 46; Paradis Honey Ltd v. Canada (Attorney General), 2015 FCA 89,[2016] 1 F.C.R. 446; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Multiple Access Ltd.v. McCutcheon, (SCC), [1982] 2 S.C.R. 161, (1982), 138 D.L.R. (3d) 1; Reference Re Public Service EmployeeRelations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, (1987), 78 A.R. 1; Picard v.

Canada (Commissioner of Patents),2010 FC 86, [2011] 2 F.C.R. 192; Canada (Official Languages) v. CBC/Radio-Canada, 2014 FC 849, [2015] 3 F.C.R. 481, revd onother grounds by 2015 FCA 251, [2016] 3 F.C.R. 55; Fédération des communautés francophones et acadienne du Canada v. Canada(Attorney General), 2010 FC 999, [2012] 2 F.C.R. 23; Williams Lake Indian Band v. Canada (Aboriginal Affairs and NorthernDevelopment), 2018 SCC 4, [2018] 1 S.C.R. 83; R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149. REFERRED TO: Doucet-Boudreau v. Nova Scotia (Minister of Education)) 2003 SCC 62, [2003] 3 S.C.R. 3; Dionne v.

Canada (Attorney General),2015 FC 862; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563; Bell ExpressVu Limited Partnership v. Rex,2002 SCC 42, [2002] 2 S.C.R. 559; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Tran v. Canada (Public Safety and EmergencyPreparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 S.C.R. 27, (1998),36 O.R. (3d) 418; Alpha Marathon Technologies Inc. v. Dual Spiral Systems Inc., 2017 FC 1119; Bilodeau-Massé v. Canada (AttorneyGeneral), 2017 FC 604, [2018] 1 F.C.R. 366; Apotex Inc. v.

Ambrose, 2017 FC 487, [2017] 4 F.C.R. 510; Jones v. A.G. of NewBrunswick, (SCC), [1975] 2 S.C.R. 182, (1974) 7 N.B.R. (2d) 526; Canada (Commissioner of Official Languages) v.CBC/Radio-Canada, 2015 FCA 251, [2016] 3 F.C.R. 55; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6;Gligbe v. Canada, 2016 FC 467; Bonanza Creek Gold Mining Co. v. The King (1916), (UK JCPC), 26 D.L.R. 273,[1916] 1 A.C. 566 (P.C.); Maritime Bank of Canada (Liquidators of) v. Receiver General of New Brunswick, [1892] A.C. 437 (P.C.),[1892] J.C.J. No. 1 (QL); R. v.

Morgentaler, (SCC), [1993] 3 S.C.R. 463, (1993), 125 N.S.R. (2d) 81; Lalonde v.Ontario (Commission de restructuration des services de santé) (2001), (ON CA), 56 O.R. (3d) 505, 208 D.L.R. (4th)577 (C.A.); Schmidt v. Canada (Attorney General), 2018 FCA 55; Canada v. Cheema, 2018 FCA 45, [2018] 4 F.C.R. 328; Williams v.Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, [2018] 4 F.C.R. 174. AUTHORS CITED Canadian Heritage. “Guide for Federal Institutions on

Part VII (Promotion of French and English) of the Official Languages Act”, 2007. Canadian Oxford Dictionary, 2nd ed., 2004 “positive”. Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Government of Canada. Roadmap for Canada’s Linguistic Duality 2008–2013: Acting for the Future, Her Majesty the Queen in Right ofCanada, 2008. House of Commons, Standing Committee on Official Languages, Evidence, 38th Parl., 1st Sess., No. 38 (June 14, 2005). House of Commons, Standing Committee on Official Languages, Evidence, 38th Parl., 1st Sess., No. 41 (September 28, 2005).

House of Commons, Standing Committee on Official Languages, Evidence, 38th Parl., 1st Sess., No. 44 (October 6, 2005). Petit Larousse illustré, 2018 “positif”. Petit Robert, 2018 “positif”. Senate, Debates of the Senate, 1st Sess., 38th Parl., Vol. 142, No. 7 (October 21, 2004). Senate, Proceedings of the Standing Senate Committee on Official Languages, 38th Parl., 1st Sess., No. 1 (October 18, 2004).

APPLICATION for remedy filed under subsection 77(1) of the Official Languages Act (OLA) pursuant to which the applicant arguedthat the defendants violated Parts IV and VII of the OLA and subsection 20(1) of the Canadian Charter of Rights and Freedoms, under a

federal-provincial agreement on employment assistance services. Application dismissed. APPEARANCES Mark Power and Marc-André Roy for applicant. Ian Demers and Lisa Morency for defendants. Christine Ruest Norrena and Marilou Bordeleau for intervener, the Commissioner of Official Languages for Canada. SOLICITORS OF RECORD Power Law , Ottawa, for applicant. Deputy Attorney General of Canada for respondents. Office of the Commissioner of Official Languages , Gatineau, for intervener, the Commissioner of Official Languages for Canada. Nathaniel Carnegie for intervener, the Attorney General of British Columbia.

The following is the English version of the reasons for judgment and judgment rendered by Gascon J.: I. Overview [ 1 ] This is an application filed under subsection 77(1) of the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31 (OLA), pursuant to which the Fédération des francophones de la Colombie-Britannique (FFCB) argues that the defendants violated Parts IV [sections 21– 33] and VII [sections 41–45] of the OLA and subsection 20(1) of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter), under a federal- provincial agreement on employment assistance services, entered into under

section 63 of the Employment Insurance Act , S.C. 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 , R.S.C., 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 non-compliance 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 non-compliance 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 , S.C. 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 [sections 56–65.2]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 th[e] 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 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1 [R.S.C., 1985, Appendix 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 , [2003] 3 S.C.R. 3, at paragraphs 60 and ff.), 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 employmentassistance services. Under a first option, described in

section 59, the Commission may establish employment assistance services. In thiscase, it acts as an institution of the federal government. A second model is described in

section 62, which expressly stipulates that theCommission may “enter into an agreement or arrangement for the administration of employment benefits or support measures on itsbehalf” by a third party, including another government or government agency in Canada (such as a province).

Under this model, theprovince 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 evaluationof the Commission’s benefits and measures with the benefits and measures administered by ESDC, in complementarity with theprovince’s benefits and measures and programs. In this scenario, the province collaborates in the development and implementation offederal measures in the province but does not take responsibility for them.

Lastly, a final model is described in

section 63 of the EIA.

Inthis 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 thatprovides for the payment of a financial contribution for costs of benefits or measures that are “similar” to those established by theCommission 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 toprovide employment assistance services.

However, at the time of the FFCB’s application, contribution agreements under

section 63 ofthe 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 undersection 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 ofCanada and the equality of status and equal rights and privileges as to their use in all federal institutions” (Thibodeau v. Air Canada, 2014SCC 67, [2014] 3 S.C.R. 340 (Thibodeau SCC), at paragraph 9). It also aims to clarify the powers and obligations of federal institutionswith respect to official languages, and to support the development of English and French linguistic minority communities in Canada.

Infact, “[t]he OLA and its regulations form a comprehensive statutory regime that governs all matters related to language rights withinfederal institutions” (Norton v. Via Rail Canada, 2009 FC 704 (Norton), at paragraph 61). [42] The OLA contains several parts. Parts I to VI of the Act establish a series of language rights in many contexts, including: debatesand proceedings of parliament; legislative and other instruments; administration of justice; communications with the public; andlanguage of work. More specifically,

Part IV deals with communications with the public and the right for members of the public to beserved by federal institutions in the official language of their choice.

Part IV,

section 21 provides for the right of members of the publicto communicate with and receive services from federal institutions in the official language of their choice. Under

section 22, federalinstitutions have a duty to ensure that members of the public can communicate with their offices and receive services of equal quality ineither official language where there is significant demand for communications and services in that language.

Section 25 stipulates thatfederal institutions have a duty to ensure that services provided to the public by third parties on their behalf are provided in either officiallanguage in any case where those services, if provided by the institution, would be required under

Part IV to be provided in either officiallanguage.

Section 27 provides that federal institutions’ duty in respect of communications and services in both official languages appliesin respect of oral and written communications and in respect of any documents or activities that relate to those communications orservices. Finally,

section 28 adds that federal institutions are required to ensure that their communications and services are activelyoffered in both official languages. [43] Parts VII and VIII of the OLA describe the obligations and responsibilities of federal institutions in enhancing the vitality anddevelopment of English and French linguistic minority communities in Canada.

Part VII is entitled “Advancement of English andFrench”. Since 1988, subsection 41(1) has stated the federal government’s overall commitment to “enhancing the vitality of the Englishand French linguistic minority communities in Canada” and supporting and assisting their development; and “fostering the fullrecognition and use of both English and French in Canadian society.” Under subsection 41(2), amended in 2005 [S.C. 2005, c. 41, s. 1],federal institutions have the duty to ensure that “positive measures are taken for the implementation of the commitments undersubsection (1).” [44]

Part IX lists the duties and powers of the Commissioner, who, among other things, is required to carry out investigations and toreport and make recommendations.

Part X of the OLA deals with court remedies and subsection 77(1) stipulates that any person who hasmade 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 maygrant such remedy as it considers appropriate and just in the circumstances. Finally, in

Part XI,

section 82 provides that the provisions ofcertain 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 theOLA has a quasi-constitutional status (Thibodeau SCC, at paragraph 12; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R.194 (DesRochers SCC), at paragraph 2; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2S.C.R. 773 (Lavigne SCC), at paragraph 25; R. v.

Beaulac, (SCC), [1999] 1 S.C.R. 768 (Beaulac), at paragraph 21).Many parts of the OLA have a constitutional anchor, for example, subsection 20(1) of the Charter for the language of service andsubsection 16(1) for the language of work. Subsection 20(1) of the Charter reads as follows: Communications by public with federal institutions

(1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head orcentral office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to anyother office of any such institution where (

a) there is a significant demand for communications with and services from that office in such language; or (

b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English andFrench. [47] From the outset, it is important to bear in mind the principles of

interpretation applicable to language rights. On this point, thereis no fundamental disagreement between the parties. However, I must point out that although they generally agree on the applicableprinciples of

interpretation, the parties do not agree on the proper

interpretation of

Part IV and

Part VII of the OLA. [48] Language rights in Canada “are meant to protect official language minorities in this country and to insure the equality of status ofFrench and English” and they “must in all cases be interpreted purposively, in a manner consistent with the preservation anddevelopment of official language communities” (emphasis in original) (Beaulac, at paragraphs 25 and 41; DesRochers SCC, atparagraph 31). Courts are required to give the OLA a liberal and purposive

interpretation (DesRochers SCC, at paragraph 31; Thibodeauv. Air Canada, 2012 FCA 246, [2013] 2 F.C.R. 155 (Thibodeau FCA), at paragraph 12). Language rights must therefore be given a broadand liberal

interpretation in order to promote the survival and development of official language minorities in Canada (DesRochers SCC,at paragraph 31; Beaulac, at paragraph 25). In Re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, at page 744,the Supreme Court unanimously explained the role of language rights in Canadian society: … The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity.It is through language that we are able to form concepts; to structure and order the world around us.

Language bridges the gap betweenisolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live insociety. [49] At paragraph 24 of Beaulac, the Supreme Court further enshrined the guiding principle that the OLA protects and contemplates asubstantive equality of language rights in Canada: …This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based requiregovernment action for their implementation and therefore create obligations for the State.….

It also means that the exercise of languagerights must not be considered exceptional, or as something in the nature of a request for an accommodation. [50] Consequently, since Beaulac, “restrictive

interpretations of language rights have evaporated in favour of a purposive approachinfused with the principle of substantive equality” (Canada (Attorney General) v. Shakov, 2017 FCA 250 (Shakov), at paragraph 116(dissenting reasons, but not on this point); DesRochers SCC, at paragraph 31; Lavigne SCC, at paragraph 22). Therefore, administrativebarriers cannot be used as an excuse to justify the failure to provide services in the minority language.

Indeed, “an application for servicein the language of the official minority language group must not be treated as though there was one primary official language and a dutyto accommodate with regard to the use of the other official language” (Beaulac, at paragraph 39).

More specifically, the provisions ofPart IV of the OLA must be interpreted in a manner consistent with the preservation and development of official language communitiesin Canada: “[s]ubstantive equality, as opposed to formal equality, is to be the norm, and the exercise of language rights is not to beconsidered a request for accommodation” (DesRochers SCC, at paragraph 31). [51] Both substantive rights and obligations under the OLA and the procedural mechanisms surrounding language rights must begiven a broad and liberal

interpretation. This is the case for subsection 77(2) of the OLA (Dionne v. Canada (Attorney General),2015 FC 862, at paragraph 17). In the same spirit, subsection 77(4) of the OLA, which confers a wide remedial authority upon thecourts, should be “interpreted generously to achieve its purpose” (Thibodeau SCC, at paragraph 112). This approach is consistent withthe view that language rights must be interpreted

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