2014 FC 849, 2014 FC 849

T-1288-10 2014 FC 849 The Commissioner of Official Languages of Canada and Dr Karim Amellal ( Applicants ) v. CBC/Radio-Canada ( Respondent ) Indexed as: Canada (Official Languages) v. CBC/Radio-Canada Federal Court, Martineau J.—Ottawa, June 19 and 20, and September 8, 2014.

Official Languages — Application to lift stay of proceedings by interim order, hold hearing on merits on outstanding issues, namely, those involving breach of Official Languages Act (OLA) — Ontario Francophones complaining to Official Languages Commissioner (Commissioner), Canadian Radio-television and Telecommunications Commission (CRTC) about negative impact of respondent’s budget cuts — Commissioner seeking declaration to effect that Commissioner having jurisdiction to investigate complaints, respondent subject to OLA, breaching OLA, s. 41 — Jurisdiction of Commissioner, Court, CRTC disputed — Proceedings stayed by interim order — Court finding CRTC constituting appropriate forum, in better position to determine dispute on merits — Whether Court should issue final judgment on OLA, Broadcasting Act (BA) enforcement issues, whether appropriate to lift stay, resume proceedings — Court determining issues with finality — Respondent subject to OLA — National public broadcaster’s raison d’être, linguistic component indissociable — Respondent’s language obligations fundamental — Respondent having obligation to enhance vitality of Official Language Minority Communities (OLMC) — OLA taking precedence over BA — Linguistic obligations not rescinded by BA — OLA, s. 41(2) imposing legal obligation on federal institutions — CRTC not exclusively regulating respondent’s linguistic obligations — Concurrent jurisdiction model reconciling linguistic issues with respondent’s broadcasting activities — Protection of OLMCs must be examined, determined independently of specialized bodies such as CRTC — Application allowed in part.

Federal Court Jurisdiction — Application to lift stay of proceedings by interim order, hold hearing on merits on outstanding issues — Ontario Francophones complaining to Official Languages Commissioner (Commissioner), Canadian Radio-television and Telecommunications Commission (CRTC) about negative impact of respondent’s budget cuts — Commissioner seeking declaration to effect that Commissioner having jurisdiction to investigate complaints, respondent subject to Official Languages Act (OLA), breaching OLA, s. 41 — Jurisdiction of Commissioner, Court, CRTC disputed — Proceedings stayed by interim order — Court finding CRTC constituting appropriate forum, in better position to determine dispute on merits — Whether court should issue final judgment on jurisdictional issues — Commissioner having jurisdiction to investigate complaints filed against respondent under OLA — Intolerable for officer of Her Majesty to claim any immunity — BA not preventing enforcement of OLA — Certain political issues justiciable to protect rights of linguistic minorities — CRTC preferred forum for discussing, inter alia, impact of budget cuts — Doctrine of forum (non) conveniens can prevent conflicting decisions — CRTC in better position than Federal Court for assessing quality of respondent’s means of carrying out mandate — CRTC can consider objectives of OLA, s. 41.

Broadcasting — Application to lift stay of proceedings by interim order, hold hearing on merits on outstanding issues — Ontario Francophones complaining to Official Languages Commissioner (Commissioner), Canadian Radio-television and Telecommunications Commission (CRTC) about negative impact of respondent’s budget cuts — Commissioner seeking declaration to effect that Commissioner having jurisdiction to investigate complaints, respondent subject to Official Languages Act (OLA), breaching OLA, s. 41 — Whether court should issue final judgment on Broadcasting Act (BA) enforcement issues — CRTC regulating respondent’s broadcasting activities — OLA taking precedence over BA — Linguistic obligations not rescinded by BA — OLA, s. 41(2) imposing legal obligation on federal institutions — CRTC not exclusively regulating respondent’s linguistic obligations.

Practice — Stay of proceedings — Application to lift stay of proceedings by interim order, hold hearing on merits on outstanding issues — Ontario Francophones complaining to Official Languages Commissioner (Commissioner), Canadian Radio-television and Telecommunications Commission (CRTC) about negative impact of respondent’s budget cuts — Proceedings stayed by interim order — Court finding CRTC constituting appropriate forum, in better position to determine dispute on merits — Whether appropriate to lift stay, resume proceedings — Lifting stay of proceedings not in interests of justice — Doctrine of issue estoppel applying in present case — CRTC considered Francophones’ concerns — CRTC repudiated budget cuts — Court not investigating any alleged failure to take positive measures.

This was an application to lift the stay of proceedings by interim order and to hold a hearing on the merits on the outstanding issues, namely, those involving the breach of the Official Languages Act (OLA). Francophones in Ontario complained to both the Commissioner and the Canadian Radio-television and Telecommunications Commission (CRTC) about the negative impact of the reduction in local or regional content in programming at radio station CBEF 540 in Windsor (CBEF Windsor) as a result of budget cuts by the respondent.

In commencing this proceeding, the Commissioner sought a declaration by the Court to the effect that the respondent was subject to the OLA , that the Commissioner had jurisdiction to investigate the complaints regarding the budget cuts, and that the respondent failed to comply with

section 41 of the OLA because it failed to take positive measures to enhance the vitality of Canada’s English and French linguistic minority communities and assist their development. The parties disputed the exclusivity of jurisdiction attributed to the Commissioner and the Federal Court, and to the CRTC. Being of the opinion that the respondent was subject to the OLA in all of its activities and having opted for the concurrent jurisdiction model, the Court ordered an interim stay of proceedings so as to allow the CRTC to make its decision regarding the applications for renewal of the respondent’s licences.

The Court was of the view that the CRTC was an appropriate forum, and that it was in a better position than the Federal Court to determine the dispute on the merits and to grant the applicants appropriate relief, if applicable. In the meantime, the CRTC renewed the respondent’s broadcasting licences for programming services, including CBEF Windsor.

The respondent then asked that the Court, inter alia , render final judgment concluding that the Broadcasting Act (BA) applies to the respondent’s broadcasting activities and that the CRTC has exclusive jurisdiction to rule on any complaint by the Commissioner or by members of an OLMC that the respondent is not in compliance with its language obligations.

At issue was whether the Court should issue a final judgment on enforcement and jurisdictional issues addressed in the interlocutorydecision, and whether it would be appropriate to lift the stay and resume proceedings. Held, the application should be allowed in part. The Court determined, with finality, the issues of jurisdiction and the application of the OLA and of the BA. The respondent is subject tothe OLA. The regulation of the respondent’s broadcasting activities, under the BA, falls within the CRTC’s jurisdiction.

The compositeaspect of broadcasting activities should not cause us to lose sight of the national public broadcaster’s raison d’être and its indissociablelinguistic component. The respondent’s language obligations, in particular with respect to OLMCs, constitute a fundamental issue forCanada and for the survival of the federation. The respondent has an obligation to take positive measures to enhance the vitality andsupport and assist the development of OLMCs under

Part VII of the OLA. With regard to the respondent’s specific linguistic obligations,the OLA takes precedence over the BA and any decision or order of the CRTC. The obligation to take positive measures and not tohinder the development of linguistic minorities is not rescinded by the BA. Subsection 41(2) imposes a legal obligation on federalinstitutions, which is enforceable by the courts.

The fact that the BA is compatible with the Constitution, the OLA and the constitutionalprinciple of protecting minorities does not confer upon the CRTC exclusive jurisdiction with respect to the regulation of the respondent’slinguistic obligations under the Act. As a result of the potential for jurisdictional overlapping arising from the OLA and the BA, the bestway to reconcile linguistic issues with the respondent’s broadcasting activities would be to adopt the concurrent jurisdiction modelproposed in this Court’s interlocutory decision.

Therefore, issues with respect to the protection of OLMCs must be able to be examinedand determined independently of any regulatory mandate Parliament may have conferred upon a specialized body such as the CRTC. The Commissioner has jurisdiction to investigate complaints filed against the respondent under the OLA, specifically

Part VII, and inparticular with regard to the adverse impacts on the OLMC that potentially resulted from the budget cuts. The Constitution, the OLA andthe constitutional principle of the protection of minorities do not tolerate an officer of Her Majesty claiming any immunity. The existenceof a specific regulatory framework under the BA is not sufficient to prevent the enforcement of the OLA, or the general control exercisedby the Commissioner and the Federal Court over compliance with language obligations under the OLA or the Constitution.

Thejusticiability of certain political issues is an evil integrated into the defence of democracy, and even the protection of the rights oflinguistic minorities. The CRTC is, pursuant to the BA, the preferred forum for discussing the impact of the budget cuts on programming, ruling on the issueof the decrease in regional or local programming broadcast by CBEF Windsor, and forcing the resumed broadcasting of the programscancelled by the respondent. In the concurrent jurisdiction model, the doctrine of forum (non) conveniens may be useful for preventingthe risk of conflicting decisions.

The CRTC’s primary function is eminently “political” and it is certainly in a better position than theFederal Court to assess the quality of the means by which the respondent carries out its mandate. There is no existing conflict betweenthe BA and the OLA. There is nothing that would preclude, from a legal and political point of view, the CRTC from considering, inpractice, the objectives of

section 41 of the OLA when it renders a decision that could impact an OLMC. In light of the recent developments since the Court’s interlocutory decision, it is not in the interests of justice to lift the stay ofproceedings. The CRTC appropriately disposed of the merits of the dispute. The preconditions for the application of the doctrine of issueestoppel were met in this case. It was not appropriate for the Court to exercise its discretion to hear the case.

It was evident that theCRTC considered the concerns of the Francophones served by CBEF Windsor and those of OLMCs in general in renewing therespondent’s licences. The CRTC stated that it considered the respondent’s obligations in respect of official languages and OLMCs andtook positive measures in that respect.

Even if the CRTC did not formally determine, in its decision, whether the respondent failed to,during the last licence period, respect any positive requirement in relation to carrying out consultations or analysing the impact of itsdecision, it is clear that, by imposing for the first time on the respondent a general requirement to hold consultations and reportperiodically to the OLMCs, and by prescribing a minimum number of local programming hours in French radio stations outside Quebec,the CRTC repudiated the budget cuts in the regions that were denounced by the interveners. The power of the Court, in

section 77 of theOLA, is essentially “remedial”. The Court is not here to be the primary investigator of any alleged failure of a federal institution touphold its duty to take positive measures. STATUTES AND REGULATIONS CITED Broadcasting Act, S.C. 1991, c. 11, ss. 3, 5(1), 7, 8, 12, 18, 19, 23, 24, 25, 28. Canadian Human Rights Act, R.S.C., 1985, c. H-6. Charter of Human Rights and Freedoms, R.S.Q., c. C-12. Federal Courts Act, R.S.C., 1985, c. F-7, s. 18. Federal Courts Rules, SOR/98-106. French Language Services Act, R.S.O. 1990, c. F.32.

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 25, 41, 56, 61, 62, 77, 78, 82. Privacy Act, R.S.C., 1985, c. P-21. CASES CITED applied: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R.185; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Angle v. M.N.R., (SCC), [1975] 2S.C.R. 248, (1974), 47 D.L.R. (3d) 544; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125.

considered: Canadian Broadcasting Corporation — Licence renewals (28 May 2013), Broadcasting Decision CRTC 2013-263 and BroadcastingOrders CRTC 2013-264 and 2013-265; CBC/Radio-Canada c. Le commissaire aux langues officielles du Canada et al (July 31, 2012),12-A-33 (F.C.A.); Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, (1998), 161 D.L.R (4th) 385;Lalonde v. Ontario (Commission de restructuration des services de santé), , 56 O.R. (3d) 505 (C.A.); R. v.

Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R.704; Forum des maires de la Péninsule acadienne v. Canada (Canadian Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276;Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Vlug v. CanadianBroadcasting Corp., , 38 C.H.R.R. 404 (C.H.R.T.); Quigley v. Canada (House of Commons), 2002 FCT 645, [2003] 1F.C. 132; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; Operation Dismantle Inc.v.

The Queen, (SCC), [1985] 1 S.C.R. 441, (1985), 18 D.L.R. (4th) 481; Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, (1991), 83 D.L.R. (4th) 297; Canada (Auditor General) v. Canada (Minister of Energy,Mines and Resources), (SCC), [1989] 2 S.C.R. 49, (1989), 61 D.L.R. (4th) 604; Attorney General of Canada v. InuitTapirisat of Canada et al., (SCC), [1980] 2 S.C.R. 735, (1980), 115 D.L.R. (3d) 1; Chaoulli v. Quebec (AttorneyGeneral), 2005 SCC 35, [2005] 1 S.C.R. 791; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3S.C.R. 422; Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; Nortonv. Via Rail Canada Inc., 2005 FCA 205, 255 D.L.R. (4th) 311. referred to: Charette v. The Queen, (SCC), [1980] 1 S.C.R. 785, (1980), 110 D.L.R. (3d) 71; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493, (1998), 212 A.R. 237; Canadian Broadcasting Corporation (August, 31, 2001), Decision CRTC 2001-529. AUTHORS CITED Canadian Radio/television and Telecommunications Commission.

Report to the Governor in Council on English- and French-languagebroadcasting services in English and French linguistic minority communities in Canada, 30 March 2009, online:<http://www.crtc.gc.ca/eng/BACKGRND/language/ol0903-lo0903.pdf>. Competition Bureau Canada. 2001 Bulletin: CRTC/Competition Bureau Interface, online:<http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01598.html>. Office of the Commissioner of Official Languages. 2010-2011 Report on Plans and Priorities, online: <https://www.tbs-sct.gc.ca/rpp/2010-2011/inst/col/col-eng.pdf>.

Report of the Standing Senate Committee on Official Languages. CBC/Radio-Canada’s Language Obligations: Communities Want toSee Themselves and Be Heard Coast to Coast!, April 2014, online:<http://www.parl.gc.ca/Content/SEN/Committee/412/oOLA/rep/rep03apr14-e.pdf>. APPLICATION to lift the stay of proceedings by interim order (2012 FC 650, [2014] 1 F.C.R. 142) and to hold a hearing on the meritson the outstanding issues, namely, those involving the breach of the Official Languages Act. Application allowed in part.

APPEARANCES Pascale Giguère and Kevin Shaar for applicant the Commissioner of Official Languages of Canada. Sean T. McGee and Marie-Pierre Théoret-Pilon for applicant Dr. Karim Amellal. Guy J. Pratte and Nadia Effendi for respondent. SOLICITORS OF RECORD Legal Affairs Branch, Office of the Commissioner of Official Languages of Canada, Ottawa, for applicant the Commissioner of OfficialLanguages of Canada. Nelligan O’Brien Payne LLP, Ottawa, for applicant Dr. Karim Amellal. Borden Ladner Gervais LLP, Ottawa, for respondent.

The following is the English version of the reasons for judgment and judgment rendered by [1] Martineau J.: This judgment follows a stay of proceedings by interim order of the Court dated May 29, 2012: Canada(Commissioner of Official Languages) v. CBC/Radio-Canada, 2012 FC 650, [2014] 1 F.C.R. 142 (interlocutory decision). [2] The Court, in the exercise of its discretion, is faced with two issues to determine today: 1. Should the Court issue a final judgment on enforcement and jurisdictional issues addressed in the interlocutory decision? 2.

Would it be appropriate to lift the stay and resume proceedings in light of recent developments since the interlocutory decision? [3] For the reasons that follow, the Court has decided to render final judgment on issues of enforcement and jurisdiction dealt with inthe interlocutory decision. However, being of the view that it would not be appropriate, in light of recent developments since theinterlocutory decision, to lift the stay and resume proceedings, the Court declares a permanent stay of proceedings.

Background [ 4 ] The facts underlying this proceeding, commenced in 2010 by the Commissioner of Official Languages of Canada (Commissioner) under

Part X [sections 76 to 81] of the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31 (OLA), have already been thoroughly reviewed in the interlocutory decision. For the purposes herein, I will only review certain general elements. [ 5 ] In 2009, the Canadian Broadcasting Corporation/Société Radio-Canada (Corporation) made substantial nationwide budget cuts. In the case at bar, Francophones in the southwestern region of Ontario, including Dr.

Karim Amellal, complained to both the Commissioner and the Canadian Radio-television and Telecommunications Commission (CRTC), about the negative impact of the reduction in local or regional content in programming at radio station CBEF 540 in Windsor (CBEF Windsor), the only French-language radio station in southwestern Ontario. But the issue does not end with CBEF Windsor. Thousands of the national public broadcaster’s radio listeners and television viewers throughout the country are asking themselves the same question: where is the Corporation headed?

In particular, official language minority communities (OLMCs) feel threatened. Each new wave of cuts at the Corporation — the ones in 2009 were not the first, nor are they the last — leaves a bitter taste. To many, it is an unacceptable withdrawal on the part of a federal institution that has over the years acquired an iconic status in terms of the promotion of linguistic duality and the development of official language groups. [ 6 ] In order to stay afloat, the Corporation needed to reduce its operating expenses following a shortfall of $171 million for the 2009- 2010 fiscal year alone.

The Corporation adopted a Recovery Plan which would eventually eliminate some 800 positions, including 336 employees in the French Services. Among other things, CBEF Windsor would lose 7 of its 10 employees and 3 programs that were still produced locally. The net result in southwestern Ontario: a reduction of local or regional content in programming, from approximately 36.5 hours (before the cuts) to about 5 hours per week in July 2009.

This is far too little, too little for the thousands of loyal listeners who mobilized to save the local station and created the Comité SOS CBEF. [ 7 ] When the CRTC was slow to act and the Ontario Superior Court held that it did not have jurisdiction in the matter, the Commissioner began an investigation pursuant to

section 56 of the OLA . But the Commissioner came up against a wall. The Corporation refused all cooperation with him in this regard: it was of the view that is was not accountable to the Commissioner, nor did it have any language obligations under the OLA with respect to its programming activities, which were already regulated by the CRTC. Nevertheless, in his final report, the Commissioner noted that the Corporation had not held prior consultations or conducted an impact analysis of its decision.

The negative impacts of the cuts on the development of Windsor’s tiny Francophone community were vigorously denounced by the Commissioner. In that case the Commissioner found that there had been a failure to comply with subsection 41(2) of the OLA, which requires that federal institutions take “positive measures” to enhance the vitality of Canada’s English and French linguistic minority communities and assist their development. The Commissioner urged the Corporation to act and review its decision. The Corporation ignored his recommendations.

In 2010, the Commissioner commenced this proceeding. [ 8 ] In short, in his amended notice of application, the Commissioner asked the Court to make various declarations under

section 77 of the OLA — and

section 18 of the Federal Courts Act , R.S.C., 1985 c. F-7 (FCA), if necessary — to the effect that: the respondent is subject to the OLA , particularly

Part VII [ sections 41 to 45 ]; the Commissioner had jurisdiction to investigate the complaints regarding the budget cuts; the respondent failed to comply with

section 41 of the OLA; it must review its decision concerning CBEF Windsor and make the necessary arrangements to compensate for the negative impact of its budget cuts on the OLMC of southwestern Ontario. For his part, Dr. Amellal, as additional relief, sought a permanent injunction forcing the respondent to return to the previous number of local and regional production hours, if it did not return to broadcasting the programs previously aired by CBEF Windsor that were cancelled following the budget cuts. [ 9 ] In the winter of 2012, the Court agreed to hear the motion for

summary dismissal of the present proceeding made by the respondent. On either side, the parties disputed the exclusivity of jurisdiction attributed to the Commissioner and the Federal Court on one hand, and to the CRTC, on the other. Although the respondent acknowledges that its “non-programming” activities are subject to the OLA , it argues that its programming services — radio and television — are subject to the Broadcasting Act , S.C. 1991, c. 11 (BA), and that under sections 3 , 12 , 18 , 19 , 23 to 25 of the BA, the CRTC has exclusive jurisdiction in those matters.

For their part, the applicants object to the motion to dismiss and in turn argue that there is no conflict between the BA and the OLA, that the Commissioner has exclusive jurisdiction under

section 56 of the OLA to investigate any violation of the OLA, while the Federal Court has exclusive jurisdiction under

section 77 of the OLA to grant such remedy as it considers appropriate and just in the event of noncompliance with the duty set out at subsection 41(2) of the OLA. [ 10 ] On May 29, 2012, being of the opinion that the Corporation was subject to the OLA in all of its activities and having opted for the concurrent jurisdiction model, the Court ordered an interim stay of proceedings in this case.

The reasons for which the Court decided to exercise its judicial discretion in this way stem primarily from the Court’s view, at that stage, that the CRTC was an appropriate forum, and that it was “in a better position than the Federal Court to determine the dispute on the merits and to grant the applicants appropriate relief, if applicable” (interlocutory decision, paragraph 92). [ 11 ] At paragraphs 99 to 103 of its interlocutory decision, the Court notes: Given the current climate of uncertainty and the Court’s wish to spare the parties additional or unnecessary costs by forcing them to engage in long and costly legal proceedings having outcomes that are necessarily unknown, and rather than summarily dismissing this application today, I am exercising my judicial discretion.

It seems to me that the fairest and most equitable course is to order a stay of proceedings in this file while safeguarding the rights of the parties. As Madam Justice Abella of the Supreme Court of Canada (writing on behalf of Justices LeBel, Deschamps, Charron and Rothstein) emphasized in British Columbia (Workersʼ Compensation Board) v. Figliola , 2011 SCC 52 , [2011] 3 S.C.R. 422 ( Figliola ), at paragraph 1 : Litigants hope to have their legal issues resolved as equitably and expeditiously as possible by an authoritative adjudicator.

Subject only to rights of review or appeal, they expect, in the interests of fairness, to be able to rely on the outcome as final and binding. What they do

not expect is to have those same issues relitigated by a different adjudicator in a different forum at the request of a losing party seeking a different result.

On the other hand, it may sometimes be the case that justice demands fresh litigation. [Emphasis added.] Let us simply recall that final decisions and orders of the CRTC are subject to appeal, on an issue of law or a question of jurisdiction, to the Federal Court of Appeal — that is, on leave (subsection 31(2) of the BA) — such that the “fairness” of the CRTC’s eventual decision on the merits “is not meant to be bait for another tribunal with a concurrent mandate” ( Figliola , above, at paragraph 38 ).

Although the Federal Court is not a “tribunal”, it is nonetheless the “Court” designated by Parliament to hear a complaint made under

Part X of the OLA . However, the CRTC has made no decision as yet. To be prudent, jurisdiction should therefore be reserved in the interim.

Consequently, the interests of justice here require that the Court order a stay of proceedings under subsection 50(1) [as am. by S.C. 2002, c. 8 , s. 46] of the FCA during the time for the CRTC to make a decision, as part of the process to renew the Corporation’s licences, on any complaint or intervention made in respect of the decrease in the number of hours of local and/or regional programming broadcast by CBEF Windsor. [ 12 ] By its order dated May 29, 2012, the Court also suspended the continuation of examinations of the respondent’s representatives and adjourned sine die the hearing on the merits of this case — which was set to begin on October 15, 2012.

The Court ordered that once the CRTC made its decision regarding the applications for renewal of the Corporation’s licences, it would be open to any of the parties to ask the Court to extend or put an end to the stay of proceedings, to resume examining the record or to dismiss the application, having consideration for the applicable laws and all of the legal principles applicable in this case. [ 13 ] In the meantime, public hearings regarding the renewal of the Corporation’s licences began in November 2012. Among those who actively participated were: the Commissioner, Dr.

Amellal, members of the OLMC of southwestern Ontario, Francophone advocacy associations and the SOS CBEF Windsor committee. On May 28, 2013, the CRTC issued its final decision renewing the Corporation’s broadcasting licences for programming services for a period of five years, from September 1, 2013, until August 31, 2018, including CBEF Windsor and its transmitters: Broadcasting Decision CRTC 2013-263 and Broadcasting Orders CRTC 2013-264 and 2013-265 [ Canadian Broadcasting Corporation – Licence renewals ] (2013 CRTC decision).

There is no application for judicial review or appeal before the Federal Court of Appeal against the 2013 CRTC decision. Respective applications for

summary dismissal and for recommencement of proceedings [ 14 ] The probationary period provided to the parties to resolve their dispute and voluntarily put an end to these proceedings has expired. In August 2013, following a case management conference, the Court invited the parties to make written submissions regarding the continuance or dismissal of proceedings, including any request for final judgment (directions, August 12, 2013). Relevant excerpts from the CRTC file were filed with the parties’ consent in September 2013 (Volumes 1 to 24).

The Commissioner and the Corporation filed their respective written submissions in October, then in November 2013 (in response). A public hearing was held on June 19 and 20, 2014.

On that occasion, the parties agreed to have the Report of the Standing Senate Committee on Official Languages, CBC/Radio- Canada’s Language Obligations: Communities Want to See Themselves and Be Heard Coast to Coast! , tabled in April 2014 (Senate report), filed in the Court record. [ 15 ] The Corporation is reiterating its previous objections and is asking that I, as trial Judge, declare that the CRTC has exclusive jurisdiction over such matters, summarily dismiss this legal proceeding and issue any further order that the Court deems just and appropriate.

This, in addition to stating that, alternatively, there is no need to hear the matter on the merits, given that the CRTC has already considered the language obligations of the national public broadcaster and prescribed the appropriate remedies in terms of both the hours of local programming on CBEF Windsor, and consultation with OLMC representatives (in the form of conditions of licence, expectations or wishes). [ 16 ] The applicants, being rather of the opposite view that the response and prescribed remedies in the CRTC’s 2013 decision do not resolve the matter or go far enough, object to the

summary dismissal of the case and to a ruling by the Court declaring that the CRTC has exclusive jurisdiction. They are instead asking that the Court lift the order to stay the proceedings, allow them to resume examination of the respondent’s representatives, establish a timetable for continuing the examinations and the filing of memoranda, and hold a hearing on the merits as soon as possible on the outstanding issues, namely, those involving the breach of the OLA and appropriate remedy in the circumstances.

Should the Court issue a final judgment on enforcement and jurisdictional issues addressed in the interlocutory decision? [ 17 ] The parties agree that issues of enforcement of the Acts (OLA and BA) and jurisdiction essentially constitute questions of law and that these have already been dealt with by the Court in the interlocutory decision.

However, spurred on by the fact that the decision handed down by the Court in May 2012 was only “interlocutory”, the respondent today is asking that I render final judgment concluding that the BA applies to the Corporation’s broadcasting activities and that the CRTC has exclusive jurisdiction to rule on any complaint by the Commissioner or by members of an OLMC that the Corporation is not in compliance with its language obligations.

The respondent is inviting me to revise my earlier reasoning in light of an argument that is concisely centered on the overall intent of Parliament and on the completeness of the 2013 CRTC decision. [ 18 ] First, the respondent, relying on Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Quebec (Attorney General) , 2004 SCC 39 , [2004] 2 S.C.R. 185 ( Morin ), reiterates that Parliament wanted issues regarding the regulation and oversight of the public broadcaster’s program offering, to be subject to the exclusive jurisdiction of the CRTC, which would include compliance with the language obligations set out in the BA and in the OLA , in an implicit manner. In particular, paragraphs 3(1) (

i) and ( m ), subsections 3(2) and 5(1) of the BA are cited. As for whether subparagraph 3(1)( m )(iv) of the BA incorporates the obligations found in

section 41 of the OLA with regard to programming, the respondent’s learned counsel suggested at the hearing that this provision showed Parliament’s “concern” about OLMCs. However, the needs of OLMCs constitute criteria that are enshrined in the BA, whereas CRTC practice is to integrate the objectives of the OLA in the implementation of its programming activities. This can be seen in the way quasi-constitutional values of the protection of minorities are reflected in the BA and the 2013 CRTC decision.

[19] Second, the respondent argues that the quasi-constitutional status of

an act such as the OLA is not a factor that ought to be used todetermine the choice of jurisdiction model between two different tribunals that could potentially be seized with the same matter(Charette v. The Queen, (SCC), [1980] 1 S.C.R. 785). Moreover, subsection 41(2) of the OLA is not referred to atsection 82, which grants precedence to certain parts of the statute. It is clear that Parliament did not wish for the Commissioner or theFederal Court to interfere, under Parts VII and X of the OLA, in areas that were already regulated by other federal authorities.

Lastly, therespondent is of the view that adopting the concurrent jurisdiction model would lead to uncertainty as to the determination of theappropriate forum and risks of contradictory decisions. [20] For his part, the Commissioner is categorical: the Court has already ruled in its interlocutory decision on enforcement andjurisdictional issues. It would therefore be contrary to the interests of justice to revisit the reasons underlying the concurrent jurisdictionmodel accepted by the Court in May 2012.

On the contrary, the resumption of proceedings must rather serve to definitively resolve thetwo outstanding issues: (

i) the violation of

Part VII of the OLA; (ii) the remedy the Court may grant pursuant to

section 77 of the OLA.In the final judgment, which will dispose of the issues related to the merits, the Court will have an opportunity to insert declarations onenforcement and jurisdictional issues. [21] It is in the best interests of justice and of the parties to render a final judgment today on the enforcement and jurisdictional issues.The bond of trust between the Commissioner and the Corporation—federal institutions of paramount importance which are bothrenowned for their integrity and respected by the Canadian people as a whole—has been broken. This is regrettable.

However, there is noavoiding the brutal choices that have been put to the Court by parties who have hitherto refused to budge from their positions. [22] In its April 2014 report, the Senate Committee noted that the Court was to determine the issue in the near future (page 83): Right now, stakeholders do not agree on the scope of CBC/Radio-Canada’s obligations under

Part VII of the Official Languages Act.Does the Corporation’s programming fall within the scope of these obligations? So far, this issue has been left to the Federal Court,which is re-examining the issue.

A ruling may be handed down in the coming months. [23] I am also taking into consideration the guidance provided by Justice Gauthier of the Federal Court of Appeal to the effect that thedecision dated May 29, 2012, was “interlocutory” and that [translation] “these jurisdictional issues will be subject to a final judgmentwhen the proceeding resumes” (Federal Court of Appeal order, 12-A-33, July 31, 2012 [CBC/Radio-Canada c. Le commissaire auxlangues officielles du Canada et al], page 2).

By the same logic, I must do so having regard to all of the representations that have beenmade to me until this point, which of course includes the written submissions made by the parties in the fall of 2013 and the oralsubmissions by counsel in June of 2014. [24] In proceeding with this review, I took a fresh look at the record in its entirety and the case law. I will not engage in any sophistryby noting that the essential questions were posed in May 2012 in the Court’s interlocutory decision.

Nor do I believe that therespondent’s new submissions —so many variations on an already familiar theme—seriously challenge the inherent logic of the overallreasoning found in the Court’s interlocutory decision. By ordering an interim stay of proceedings, while at the same time opting for aconcurrent jurisdiction model, the Court had already addressed the issues of enforcement, jurisdiction and appropriate forum. For thesake of brevity, I would suggest referring to the relevant paragraphs of the interlocutory decision.

Furthermore, rather than repeat myself,it would be useful to make certain general or additional observations that would clarify the Court’s earlier reasoning or that are directlyrelated to assertions and arguments reprised by both parties in their new submissions. CBC/Radio-Canada and official language minorities [25] I will begin by making a rather general observation: the State is at the service of the populace and its institutions are nothing ifthey cannot connect with the various communities that make up the nation’s social fabric.

The Corporation is not an ordinary federalinstitution: the national public broadcaster has an obligation to broadcast radio and television programming across the country and inboth official languages.

This amazing potential for discourse makes it a formidable national vehicle for communication and information. [26] Having said that, the Corporation is not an organization that exists to serve government; it exists exclusively to serve Canadians.Its unique place is due to the fact that under Canada’s broadcasting policy, the Corporation’s role is to inform and entertain, often inareas where private broadcasters would not dare to venture. In that regard, public policy dictates that the regulation of the Corporation’sbroadcasting activities, under the BA, falls within the CRTC’s jurisdiction.

But is that sufficient to exempt from the enforcement of theOLA a federal institution whose continued existence in the radio and television landscape is largely dependent on its ability to respond tothe specific needs of the two principal linguistic communities it serves in each region of the country? [27] How do we reassure Canadians, not only by the Canadian government’s discourse and the assurances of the Corporation’smanagement, but in actual fact, on the ground, far from the major production centres, that the public broadcaster offers—and above allwill have the financial means to continue to offer—radio and television programming that reflects its language obligations, whileresponding to the vital needs of OLMCs, who should be able to recognize themselves in the programs broadcast across the country?

Howdo we reconcile the Corporation’s statutory language obligations as a federal institution and national public broadcaster, with its mandateand the financial and operational choices it is called upon to make, when year after year—since at least 1973, while costs have increasedeverywhere—it sees its budget continue to melt away? [28] If we set aside the revenue the Corporation can take in from television advertising, the quality of its radio and televisionprogramming depends largely on the yearly appropriations of funds by Parliament.

This is because in practice, under the financialprovisions of the BA, the Corporation has to submit its corporate plan, including capital and operating budgets, to the Minister ofCanadian Heritage and Official Languages. In principle, this form of government paternalism should not diminish the autonomy enjoyedby the Corporation with regard to its programming. However, from a practical perspective, this fails to take into account theextraordinary power and influence conferred upon the government by its control over the Corporation’s finances.

After all, it falls uponthe Minister of Finance and even the President of the Treasury Board and Minister of Canadian Heritage and Official Languages, tojustify before Parliament, any increase or reduction in appropriations to the Corporation. One may even wonder as to whether theproceeding commenced by the Commissioner has been directed at the party that is truly responsible for the loss of quality programming

as a result of budget cuts that has been decried by several stakeholders during the CRTC hearings. [29] As we are all aware, the logic of accounting is implacable. If cuts to programming budgets are required, it is those devoted tointernal productions, where labour costs are high, that will be first to be cut, especially if cheaper alternatives can be found. In television,one can broadcast purchased programming, and on radio, one can always just broadcast the same network programs produced in themajor production centres on all regional stations.

Yet it has always been a point of pride for the Corporation that it was able to produceits own programs not only in the major production centres, but also in the regions where OLMCs live. [30] Since it was created in 1936, modelled on the BBC (British Broadcasting Corporation), the Corporation has become a nationalsymbol and standard bearer for Canada’s linguistic duality and equality of status of both languages throughout the country.

In May 2013,the CRTC, when renewing the Corporation’s licences, used the opportunity to note that the national public broadcaster: “ plays animportant role in the lives of Canadians [and] [a]s a national public broadcaster, the CBC should be a pan-Canadian service that reflectsand serves the needs of all Canadians in both official languages regardless of where they live” (paragraph 15 of 2013 CRTC decision). Inits April 2014 report, the Senate Committee emphasized that “[w]itnesses were unanimous in recognizing that CBC/Radio-Canada playsa key role in enhancing the vitality of [OLMCs]” (page 19).

In addition, in its 2009 Report to the Governor in Council on English- andFrench-language broadcasting services in English and French linguistic minority communities in Canada, the CRTC concluded [at page30] that “it is important that the CBC have the means to continue serving these communities” and encouraged the Canadiangovernment “to consider solutions that would enable it to provide the best possible service to official-language minoritycommunities” (emphasis in original). [31] In the Office of the Commissioner of Official Languages 2010-2011 Report on Plans and Priorities, Commissioner GrahamFraser stated [at page 1] that “[a]s an officer of Parliament, I provide parliamentarians with unbiased advice based on objective andfactual information to help them fulfill one of their important roles—that of holding the federal government accountable for itsstewardship of the equal status of English and French in Canada”, while reaffirming [at page 5] that “[the Office of the Commissioner ofOfficial Languages] must maintain its independence to be able to provide unbiased advice and information to Parliament”.

Thecomposite aspect of broadcasting activities should not cause us to lose sight of the national public broadcaster’s raison d’être and itsindissociable linguistic component. The national public broadcaster’s language obligations, in particular with respect to OLMCs,constitute a fundamental issue for Canada and for the survival of the federation.

The Commissioner may rightly pose the question: Dothe lack of appropriations from Parliament and budget cuts prevent the Corporation from fully carrying out its original mandate andfulfilling its statutory language obligations? [32] In keeping with the line of reasoning used in my interlocutory decision, I reject any assertion by the respondent to the effect thatthe regulator of broadcasting undertakings exercises exclusive control over the content of programming produced or broadcast by thenational public broadcaster. That is to confuse the medium with the message.

What we have, organically speaking, is the same fractalobject whose essence remains unalterable. Because, whether it is radio or television programming, we are still referring to a service thatis linguistic in nature. The listener or viewer can only decipher what he or she hears on the radio, or hears and sees on television, if thebroadcasting service (the medium) is provided to them in a language they themselves can speak or understand.

But there is more.Language has a strong identity aspect to it, which is intimately connected to the place in which it is spoken—country, province, region,city or village—as much as vocabulary, the way we express ourselves, our various accents are infinitely variable from one place toanother, a language may find itself in competition with another language. Such is the case with Canada’s two official languages: Frenchcompetes with English (in Quebec) and English competes with French (in the other provinces).

The Corporation maintains that itcomplies with the LLO in its off-air communications with the public, but it claims to be exempt from the obligations of the OLA, inparticular those under

Part VII, in its broadcasting services. I firmly believe that this obstinate quest to create, at all costs, a scissionbetween “broadcaster” and “institution” is misguided and wrong from the point of view of enforcing a constitutional, quasi-constitutionalor statutory linguistic obligation. This is especially true when the language programming service is broadcast nationally and regionallyby a public institution which is funded in large part by all Canadian taxpayers and which is regarded as a paragon of political rectitude.

Obligation to take positive measures to support Anglophone and Francophone minorities [33] In the final judgment that follows, the Court declares that the Corporation is subject to the OLA, in particular

Part VII (sections41 to 45). It has an obligation to take positive measures to enhance the vitality and support and assist the development of OLMCs underPart VII of the OLA, specifically [section] 41, which imposes an obligation to act in a manner that does not hinder the development andvitality of Canada’s Anglophone and Francophone minorities. [34] Respect for minorities is an unwritten constitutional principle: Reference re Secession of Quebec, (SCC),[1998] 2 S.C.R. 217, at paragraphs 79–82; Vriend v.

Alberta, (SCC), [1998] 1 S.C.R. 493, at paragraph 176; Lalonde v.Ontario (Commission de restructuration des services de santé), , 56 O.R. (3d) 505 (C.A.) (Lalonde), at paragraphs111–125. This explicit legal recognition by the Supreme Court of Canada goes far beyond any sort of apophatic discourse offering only afaint and glimmering hope to the country’s Anglophone and Francophone minorities. We are speaking here of an indispensableconstitutional principle, itself the creator of positive obligations.

And, as independent branches of government tasked with upholding theConstitution, the courts are in the best position to ensure that language obligations are respected. Moreover, so is the Federal Court,when a proceeding is commenced under

Part X of the OLA. [35] As the Supreme Court clearly stated in Reference re Secession of Quebec [at paragraphs 80–81]: We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. This principleis clearly reflected in the Charter’s provisions for the protection of minority rights. See, e.g., Reference re Public Schools Act (Man.),s. 79(3), (4) and (7), (SCC), [1993] 1 S.C.R. 839, and Mahe v. Alberta, (SCC), [1990] 1 S.C.R. 342.

The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactmentof the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutionaljudicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rightshad a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in

the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada’s recordof upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving sinceConfederation, and the process has not been without success. The principle of protecting minority rights continues to exercise influencein the operation and

interpretation of our Constitution. [36] In R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768 (Beaulac), at paragraph 25, the Supreme Court further states that“[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of officiallanguage communities in Canada” [emphasis in original]. More recently, the Supreme Court reaffirmed, in Reference re Senate Reform,2014 SCC 32, [2014] 1 S.C.R. 704, at paragraph 25, that “constitutional

interpretation must be informed by the foundational principlesof the Constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism andthe rule of law” (emphasis added). [37] In this regard, the Supreme Court highlighted the importance in our legal system of the OLA, which “is not an ordinary statute”(Beaulac, at paragraph 21).

Part VII [of the OLA] is entitled “Advancement of English and French”. The provisions in

Part VII aretherefore geared towards long-term objectives whose achievement is dependent on political will. It cannot be otherwise and, as long asthese provisions are not repealed by Parliament, the government must respect the commitment set out at

section 41 of the OLA. Because,in a singular manner,

Part VII of the OLA expresses the will of Parliament to place the federal apparatus at the service of a larger societalproject that will encompass and surpass it, namely, the advent of a Canada that fully recognizes the equality of English and French, andin which official language minorities flourish.

Bringing such an ambitious project to fruition will require a comprehensive, coordinatedand a necessarily polycentric approach, as explained below. [38] Under subsection 41(1) of the OLA, “[t]he government of Canada is committed to enhancing the vitality of the English andFrench linguistic minorities in Canada and supporting and assisting their development; and fostering the full recognition and use of bothEnglish and French in Canadian society” (government’s commitment). In the French version, Parliament uses the verb “s’engage”.

It istherefore through the government’s commitment that one must understand the correlative obligation placed on federal institutions subjectto the OLA. This of course includes the Corporation, which is not above the law, and which has not convinced me in this case that thereexists any conflict between the BA and the OLA. [39] In its interlocutory decision, the Court emphasized that “Parliament adopted and, over time, has amended the broadcasting policyfor Canada set out at subsection 3(1) of the BA.

The elements of this policy have been chosen by Parliament with great care, followingprofound consideration and extensive consultation and then a public debate, both as regards the 1968 statute (S.C. 1967-68, c. 25) andthe new 1991statute” (paragraph 57). For this reason, “[t]oday, the policy contains a set of political, social, economic and culturalobjectives that reflect the linguistic duality and the multicultural and multiracial nature of Canadian society” (paragraph 57). Thus, theCourt observed that “[t]here is no conflict between the purposes of the OLA and those of the BA.

In both statutes, the general will ofParliament is to foster the development and enhance the vitality of OLMCs, while leaving the choice of means in the hands of the federalinstitutions concerned and the broadcasters, including the national public broadcaster” (paragraph 58). [40] In any event, with regard to the Corporation’s specific linguistic obligations, the OLA takes precedence over the BA and anydecision or order of the CRTC. To be even clearer, the obligation to take positive measures and not to hinder the development oflinguistic minorities is not rescinded by the BA.

According to the new subsection 41(2) of the OLA, added in 2005, “[e]very federalinstitution has the duty to ensure that positive measures are taken for the implementation of the commitments [duty of federalinstitutions] … while respecting the jurisdiction and powers of the provinces”. In the French iteration, the term “[i]l incombe aux” isused to convey the same idea. This wording is more restrictive than that employed at subsection 41(1). According to the Federal Court ofAppeal’s reasoning in Forum des maires de la Péninsule acadienne v.

Canada (Canadian Food Inspection Agency), 2004 FCA 263,[2004] 4 F.C.R. 276 (Forum des maires), subsection 41(2) imposes a “legal obligation” on federal institutions, which is enforceable bythe courts. This is also a positive legal duty of the Corporation as a “federal institution”. [41] That said, the expression “positive measures” is not defined in the OLA.

The choice of which positive measures would be best tocarry out the government’s commitment is, in principle, left up to each institution, subject, of course, to applicable regulations and to anypowers of supervision or coordination that the Minister of Canadian Heritage and Official Languages and the President of the TreasuryBoard may have over the matter. The cutbacks decreed by the Corporation in 2009 gave rise to a fierce debate among Canadians andParliamentarians. And that was just the beginning; other, more significant cuts were announced by the Corporation when this proceedingwas commenced in 2010.

The debate about reductions to the Corporation’s budget and cuts to regional service extended beyond thehearing rooms. One would be quite correct to characterize the whole affair as “political”.

Is it any surprise that, at about the same time,the Standing Senate Committee on Official Languages was studying the national public broadcaster’s linguistic obligations? [42] Maintaining the equality of English and French, as well as the development of linguistic communities, are products of the will ofa courageous Parliament which had the wherewithal, when it enacted the OLA and the amendments in 2005, to rise above partisanstrategies or electoral consideration.

There were howls of protest from the Commissioner when he saw the Corporation being stretchedfurther by cuts to radio in the regions this federal institution was originally designed to serve. No one is above the law; it goes withoutsaying that this includes any agent of the Crown. Moreover, the Senate Committee stated that it “wishes to remind the Corporation that ithas obligations under

Part VII of the Official Languages Act to enhance the vitality of official-language minority communities” (page88). This is a categorical, non-negotiable imperative, and as such would thwart any initiative that was not reasonably justifiable and thatwould adversely affect an obligation or right under the OLA. [43] At the risk of repeating myself, it is clear that the Corporation has positive obligations under

Part VII of the OLA with regard tobroadcasting and programming activities that arise, in particular, from the principle of respect for and protection of minority languagerights. Although the respondent argues that the quasi-constitutional character of the OLA does not apply to

Part VII, the protection ofminorities is, in and of itself, and unwritten or quasi-constitutional principle that does not arise solely from the OLA. As the SupremeCourt noted in Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773 (Lavigne), theOLA and the Privacy Act, R.S.C., 1985, c. P-21, “are closely linked to the values and rights set out in the Constitution, and this explainstheir quasi-constitutional status that this Court has recognized them as having” (paragraph 25).

[44] According to the respondent, these obligations are embedded in the BA itself, and because Parliament conferred upon the CRTCthe regulatory authority to monitor all aspects of the broadcasting systems, the CRTC must be recognized as having exclusivejurisdiction. Such reasoning is sophistry: the fact that the BA is compatible with the Constitution, the OLA and the constitutionalprinciple of protecting minorities does not confer upon the CRTC exclusive jurisdiction with respect to the regulation of theCorporation’s linguistic obligations under the Act.

As a result of the potential for jurisdictional overlapping arising from the OLA andthe BA, the best way to reconcile linguistic issues with the Corporation’s broadcasting activities would be to adopt the concurrentjurisdiction model proposed in this Court’s interlocutory decision. Therefore, issues with respect to the protection of OLMCs must beable to be examined and determined independently of any regulatory mandate Parliament may have conferred upon a specialized bodysuch as the CRTC.

Concurrent jurisdiction model [45] In the final judgment that follows, the Court declares that the Commissioner has jurisdiction to investigate complaints filedagainst the Corporation under the OLA, specifically

Part VII, and in particular with regard to the adverse impacts on the OLMC ofsouthwestern Ontario that potentially resulted from the Corporation’s decision in 2009 to proceed with substantial budget cuts aimedspecifically at CBEF Windsor. [46] The respondent is asking the Court to re-examine the issue of jurisdiction in light of the Morin case. It is apparent from theevidence that the Court already took that decision into account in its interlocutory decision.

Specifically, it considered the nature of thedispute and the intent of Parliament, bearing in mind the following principle: “Depending on the legislation and the nature of the dispute,other tribunals may possess overlapping jurisdiction, concurrent jurisdiction or themselves be endowed with exclusive jurisdiction”(quoting Morin, at paragraph 11). With respect to the first step in Morin, I concur with the respondent that subsections 5(1) and 3(2) ofthe BA emphasize that the broadcasting system is “unique” and that Parliament conferred upon the CRTC the power to regulate andmonitor all aspects of that system.

But unlike the Quebec Charter [Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (theCharter)], which was analysed by the Supreme Court of Canada in Morin, the BA does not expressly exclude the jurisdiction of theCommissioner or the Federal Court under the OLA, nor that of other federal agencies whose jurisdiction may overlap with that of theCRTC. [47] To wit, there are other instances in which the CRTC shares jurisdiction with that of another federal body.

Thus, in cases wherethere has been a merger or change in control of a telecommunications and broadcasting undertaking, two bodies have jurisdiction undertheir respective statutes: the CRTC and the Competition Bureau (Bureau). How to resolve potential conflicts? Well, in a 2001 Bulletin,“CRTC/Competition Bureau Interface”, this is explained as follows: Under the Telecommunications Act, prior approval of telecommunications mergers is not required.

However, the CRTC has specificresponsibility under the Telecommunications Act for ensuring compliance with foreign ownership and control rules and has broadregulatory authority over the Canadian telecommunications system. Under the Competition Act, all mergers are subject to review andthose which exceed prescribed economic thresholds must be formally prenotified to the Bureau.

Under the Broadcasting Act, prior approval of the Commission is required for changes of control or ownership of licensed undertakings.Whereas the Bureau’s examination of mergers relates exclusively to competitive effects, the Commission’s consideration involves abroader set of objectives under the Act. This may encompass consideration of competition issues in order to further the objectives of theAct.

The Bureau’s concern in radio and television broadcast markets relates primarily to the impact on advertising markets and, withrespect to broadcast distribution undertakings, to the choices and prices available to consumers. The Commission’s concerns includethose of the Bureau except that its consideration of advertising markets relates to the broadcasters’ ability to fulfill the objectives of theAct. [48] Thus, the Bureau described the two organizations as having “complementary roles”: there is parallel jurisdiction and anytransaction must comply with the legislation administered by both organizations.

Furthermore, the Court’s interlocutory decision alsoidentified a number of other instances where the Federal Court and other federal tribunals dealt with issues and ordered remedies withrespect to broadcasting. For example, the Court referred to Vlug v. Canadian Broadcasting Corp., , in which theCanadian Human Rights Tribunal stated that the CBC infringed the rights of a man who is deaf in the application of the CanadianHuman Rights Act [R.S.C., 1985, c.

H-6], and ordered the CBC’s English language network and Newsworld to caption all of theirtelevision programming ( , (C.H.R.T.)), at paragraph 152, discussed by the Court in its interlocutory decision,paragraph 46). [49] The Court also mentioned Quigley v. Canada (House of Commons), 2002 FCT 645, [2003] 1 F.C. 132, decided under

Part X ofthe OLA, where the applicant was a subscriber to Rogers Cable in New Brunswick and filed a complaint with the Commissioner that theCable Public Affairs Channel was broadcasting the House of Commons debates in their original version only. The applicant spoke onlyEnglish, so he could not understand the parts spoken in French. In that case, the Attorney General of Canada contended that theimplementation of any order should be left to the CRTC which is a specialized and independent agency and is best positioned to considercomplex technological, economic and cultural policy issues.

However, the Federal Court stated that the method used by the House ofCommons and its Board of Internal Economy for providing television broadcasts of parliamentary proceedings contravened

section 25 ofthe OLA and ordered them to take the necessary steps to comply with that provision. [50] Regarding the second step in Morin, the nature of the dispute in this case—considered in its factual context and viewed in itsessential character and not formalistically—indicates that the CRTC does not have exclusive jurisdiction (Morin, at paragraph 20). Themain area of contention in the dispute is the fact that the Corporation changed the programming affecting OLMCs and the decision-making process used by the CBC in response to the budget cuts. In Quebec (Attorney General) v.

Quebec (Human Rights Tribunal),2004 SCC 40, [2004] 2 S.C.R. 223, Chief Justice McLachlin, dissenting in the result, stated that “[w]here legislation confers exclusivejurisdiction, one must go on to determine its scope. ‘Exclusive over what?’ remains the question” (paragraph 11). In this case, the subjectof the CRTC’s exclusivity does not involve the protection of linguistic rights. That expertise and the role of guardian is vested in theCommissioner.

Even though the respondent identified the means by which the CRTC takes official language obligations into account,the primary function of the CRTC is not to interpret quasi-constitutional rights, including the protection of minorities.

[51] Instead, Parliament created another authority with jurisdiction to investigate complaints made with respect to the actions offederal institutions that fail to comply with their obligations pursuant to the OLA. The Supreme Court noted the following in Lavigne, atparagraph 35: … the Commissioner of Official Languages plays an important role. It is his job to take the measures that are necessary in respect of therecognition of each of the two official languages, and to secure compliance with the spirit of the Official Languages Act, in particular inthe administration of the affairs of federal institutions.

It is therefore the Commissioner who has been given the mandate to ensure thatthe objectives of that Act are implemented. To allow him to fulfil a social mission of such broad scope, he has been vested with broadpowers by the Parliament of Canada. For instance, he may conduct investigations into complaints that in any particular case the status ofan official language was not recognized, or any provision of

an Act of Parliament or regulation relating to the status or use of the twoofficial languages, or the spirit or intent of the Official Languages Act, was not complied with …. [52] The Commissioner’s power is mainly political. For example, the Federal Court of Appeal stated the following in Forum desmaires, at paragraph 16: The Commissioner, it is important to keep in mind, is not a tribunal. She does not, strictly speaking, render a decision; she receivescomplaints, she conducts an inquiry, and she makes a report that she may accompany with recommendations (subsections 63(1), (3)).

Ifthe federal institution in question does not implement the report or the recommendations, the Commissioner may lodge a complaint withthe Governor in Council (subsection 65(1)) and, if the latter does not take action either, the Commissioner may lodge a complaint withParliament (subsection 65(3)).

The remedy, at that level, is political. [53] In respect of language matters, the Commissioner is a necessary interlocutor, and it is on the basis of his investigations androbust interventions, when the obligations or principles of the OLA are disregarded by the government or a federal institution, that thereis meaningful “dialogue”. The pre-eminence of the executive branch, including any Department or Crown Corporation, does not preventthe Commissioner, as an officer of Parliament, from asking any relevant questions. That is what Parliament and, consequently,Canadians, for whom the Commissioner speaks, want.

The Commissioner’s roles as an ombudsman, auditor, watchdog and reporterenable him to provide Parliament with the necessary information to promote maintaining and enhancing OLMCs in Canada. For thebenefit of Canadians, the Commissioner acts as a guide for Parliament and the executive branch, ensuring that they keep their promisesand political commitments regarding the two official languages and the protection of the rights of linguistic minorities. [54] Under sections 61 and 62 of the OLA, the Commissioner has been given wide-ranging investigative powers.

It appears that therespondent refused to cooperate with the investigation validly conducted under the provisions of the OLA following the 2009 budgetcuts and refused to respond to the Commissioner’s legitimate questions regarding the decision-making process and the impact of thedecision on OLMCs. I stated the following earlier: the Constitution, the OLA and the constitutional principle of the protection ofminorities do not tolerate an officer of Her Majesty claiming any immunity.

The Commissioner’s independence from the executivebranch is necessary to ensure that federal institutions respect their obligations vis-à-vis minorities. [55] The CRTC has not taken over for the Commissioner in terms of overseeing the language obligations of the national publicbroadcaster. The CRTC’s authority over it relates exclusively to its broadcasting activities. And there is a certain logic in that vision ofcomplementary mandates. Given that the Commissioner is an officer of Parliament, who reports his activities directly to Parliament, he isindependent from the government.

As noted by the Supreme Court in Lavigne, and as also cited by the Federal Court of Appeal in Forumdes maires, “[i]n many significant respects, the mandates of the Commissioner … are in the same nature of an ombudsman’s role”,including the fact that the Commissioner is independent of government’s administrative institutions, that he examines complaints madeby individuals against the government’s administrative institutions and conducts impartial investigations and attempts to improve thelevel of compliance by government institutions with the laws (Lavigne, at paragraph 37 and Forum des maires, at paragraph 21).

TheCRTC does not enjoy the same independence as the Commissioner. For example, the Governor in Council may, by order, issue to theCRTC directions of general application (sections 7 and 8 of the BA).

Where the CRTC makes a decision to issue, amend or renew alicence, the Governor in Council may, even on the Governor in Council’s own motion, set aside the decision or refer the decision forreconsideration if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of thebroadcasting policy set out in subsection 3(1) (section 28 of the BA). [56] Simply put, in reiterating the principles stated by the Supreme Court in the present case, the existence of a specific regulatoryframework under the BA is not sufficient to prevent the enforcement of the OLA, or the general control exercised by the Commissionerand the Federal Court over compliance with language obligations under the OLA or the Constitution.

This raises the following question:what is the Federal Court doing and what can it do in this political discourse? Justiciability of the political issues and particularities of the proceedings before the Federal Court [57] As a general rule, an issue is non-justiciable if it involves “moral and political considerations which it is not within the provinceof the courts to assess” (Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441 (Operation Dismantle), atpage 465).

In short, the issue is whether the question before a tribunal “is purely political in nature and should, therefore, be determinedin another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch” (Reference re CanadaAssistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, at page 545; Canada (Auditor General) v.

Canada (Minister ofEnergy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49). [58] The doctrine of justiciability was extended in administrative law to quasi-statutory acts emanating from the executive branchitself, be it regulations or even government policies or programs. Because those actions result mainly from delegated powers, theintervention of the courts is warranted when the government oversteps its delegated authority: “If that body has failed to observe acondition precedent to the exercise of that power, the court can declare that such purported exercise is a nullity” (Attorney General ofCanada v.

Inuit Tapirisat of Canada et al., (SCC), [1980] 2 S.C.R. 735, at page 748). However, the courts are notrequired to comment on the lawfulness of a purely political decision or a quasi-statutory act. This is especially true in the case of aCrown Corporation’s decision to make budget cuts. At least in principle. Are there any exceptions?

[59] The first exception that comes to mind is when the Charter is invoked. The following was reiterated by Madam JusticeDeschamps in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791 (Chaoulli), at paragraph 89: “The courts havea duty to rise above political debate. They leave it to the legislatures to develop social policy. But when such social policies infringerights that are protected by the charters, the courts cannot shy away from considering them.

The judicial branch plays a role that is notplayed by the legislative branch.” Furthermore, Chief Justice McLachlin and Justice Major noted the following in the same decision atparagraph 107: “The fact that the matter is complex, contentious or laden with social values does not mean that the courts can abdicatethe responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it.” [60] Waiting in the wings, the courts are always there to intervene when political decisions lead to the denial of constitutional orquasi-constitutional rights.

The decision in Lalonde is highly relevant.

In that decision, the Court of Appeal for Ontario unanimouslyupheld the trial Judge’s decision to set aside the directions by the Health Services Restructuring Commission ordering the MontfortHospital in Ottawa, the only hospital in Ontario in which the working language is French and where services in French are available at alltimes, to reduce its health care services. [61] In Lalonde, the Court noted that the appeal “calls for careful consideration of the appropriate weight, value and effect to beaccorded to the respect for and protection of minorities as one of the fundamental principles of our Constitution” (paragraph 115).

Itstated the following, in particular (paragraphs 112–114): The protection of linguistic minorities is essential to our country. Dickson J. captured the spirit of the place of language rights in theConstitution in Société des Acadiens, supra, at p. 564 S.C.R.: “Linguistics duality has been a longstanding concern in our nation. Canadais a country with both French and English solidly embedded in its history.” As stated by La Forest J. in R. v.

Mercure, (SCC), [1988] 1 S.C.R. 234 at p. 269, 48 D.L.R. (4th) 1, “rights regarding the English and French languages…are basic to the continuedviability of the nation.” As we have already mentioned, the Charter enhanced language rights. The entrenched guarantee of equality in s. 15 and the provisionsrequiring the respect and protection of aboriginal rights enhanced the protection of the rights of other minorities and the right to be freefrom discrimination.

As the Supreme Court of Canada explained in the Secession Reference at p. 269 S.C.R., “There are linguistic andcultural minorities, including aboriginal peoples, unevenly distributed across the country who look to the Constitution of Canada for theprotection of their rights.” The principle of respect for and protection of minorities is a fundamental structural feature of the Canadian Constitution that bothexplains and transcends the minority rights that are specifically guaranteed in the constitutional text.

This is an area where, as theSupreme Court of Canada explained in the Secession Reference at p. 292 S.C.R., “[a] superficial reading of selected provisions of thewritten constitutional enactment, without more, may be misleading.” This structural feature of the Constitution is reflected not only in thespecific guarantees in favour of minorities.

It infuses the entire text and, as we have explained, plays a vital role in shaping the contentand contours of the Constitution’s other structural features: federalism, constitutionalism and the rule of law, and democracy. [62] The Montfort Hospital judgment, while reaffirming the supervisory power of the superior courts with respect to the lawfulness ofdecisions made by public bodies, makes the positive obligation to reconcile any specialized statutory mandate with the protection ofminority language rights essential.

Clearly, “[t]he unwritten principles of the Constitution do have normative force” and “the principle ofrespect for and protection of minority language rights is a useful tool not only in interpreting the [French Language Services Act] but inassessing the validity of the Commission’s directions in light of that legislation.

Government action as well as government legislation isto be considered in light of constitutional principles, including the unwritten constitutional principles” (paragraphs 116 and 130).Therefore, in Lalonde, the principle of respect for and protection of minority language rights was translated into a positive obligation toreconcile the Health Services Restructuring Commission’s mandate with the obligations imposed by the French Language Services Act[R.S.O. 1990, c.

F.32], including to demonstrate that the removal of medical services that are provided in French is “reasonable andnecessary”. [63] Another exception to the non-justiciability of political issues is when Parliament itself demonstrated intent for certain actions bythe government or a federal institution to be examined by an independent third party. Consider the administrative review of a politicaldecision giving the green light to an environmental project. Moreover, the courts were able to add constraints, with respect toconsultation, that do not exist in the legislation.

That is the case with certain projects affecting the First Nations. The same is true for anevaluation by an independent body—the Commissioner—of positive measures by a federal institution in a language matter; it is anindependent evaluation specifically intended by Parliament, which adopted the OLA. We would like to make it clear here: theCorporation’s decisions are not reviewable under

section 18 of the FCA. However, with respect to a right or obligation set out in theOLA (including

Part VII), nothing prevents its lawfulness (or legitimacy) from otherwise being examined by the Commissioner undersection 56 of the OLA, and, if need be, by the Federal Court under

section 77 of the OLA. [64] That said, the nature of the proceeding set out in

Part X of the OLA is unique. As reiterated by Justice Décary of the FederalCourt of Appeal in Forum des maires [at paragraph 17], to ensure that the OLA “has some teeth, that the rights or obligations itrecognizes or imposes do not remain dead letters, and that the members of the official language minorities are not condemned tounceasing battles with no guarantees at the political level alone”, Parliament has created a “remedy” in the Federal Court (the Court) thatthe Commissioner himself (section 78) or the complainant (section 77) may use.

That is the legislative foundation that legitimizes theintervention of the Federal Court in an area where administrative discretion and political action prevail. [65] Nonetheless, the language in subsection 77(1) is clear and explicit: only those complaints in respect of “a right or duty under” thesections or parts of the OLA that are specifically stated in that provision could be the subject matter of the remedy before the court.

InForum des maires, at paragraph 25, it is noted that the list in subsection 77(1) is “completely compatible with Parliament’s intention,clearly expressed elsewhere in the Act, to ensure that not every

section or every part of the Act should enjoy the same status or the sameprotection in the courts”. Moreover, Justice Décary reiterated the following in Forum des maires, at paragraph 27: “This asymmetry ofthe Act is easily explained when we note that it deals not only with policies and commitments but also with rights and duties.” He alsospecified the following later on in that same paragraph: “So Parliament has spoken with great care, so as to ensure that only thosedisputes in respect of particular rights or duties may be taken before the Court. This prudence is especially warranted in that the remedial

authority conferred by subsection 77(4) is exceptional in scope and it is readily understandable that Parliament did not intend to give the courts the power to interfere in the area of policies and commitments that is not usually within their jurisdiction.” [ 66 ] The justiciability of certain political issues is therefore an evil integrated into the defen

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