2022 FCA 14, 2022 FCA 14

EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports . 2022 FCA 14 A-182-18 The Commissioner of Official Languages ( Appellant ) v. Employment and Social Development Canada and the Canada Employment Insurance Commission ( Respondents ) and The Attorney General of British Columbia, the Association des juristes d’expression française du Nouveau-Brunswick and the Quebec Community Groups Network ( Interveners ) A-186-18 La Fédération des francophones de la Colombie-Britannique ( Appellant ) v.

Employment and Social Development Canada and the Canada Employment Insurance Commission ( Respondents ) and The Attorney General of British Columbia, the Association des juristes d’expression française du Nouveau-Brunswick and the Quebec Community Groups Network ( Interveners ) Indexed as : Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development) Federal Court of Appeal, Noël C.J., de Montigny and Rivoalen JJ.A.—Vancouver, October 27 and 28, 2021; Ottawa, January 28, 2022.

Official Languages — Appeals from Federal Court decision dismissing application by appellant Fédération des francophones de la Colombie-Britannique (FFCB) arising from complaints alleging that respondents failed to meet their language obligations under Official Languages Act ( OLA ), Parts IV, VII, and under Canadian Charter of Rights and Freedoms, s. 20(1) in entering into, implementing 2008 Canada–British Columbia Labour Market Development Agreement (Agreement) — Major reform of social programs announced in 1993 by federal government — Various partnership models envisaged by reform included full devolution agreement — Federal Court Trial Division (hereinafter Federal Court) in Lavigne v.

Canada (Human Resources Development) 2001 FCT 1365 , [2002] 2 F.C. 164 (Lavigne F.C.) , affd 2003 FCA 203 , 308 N.R. 186 (Lavigne F.C.A.) holding that OLA not applying to employment assistance services provided by provinces under this type of agreement — Federal government, British Columbia initially signing co-management agreement ensuring continued application of OLA in delivery of employment assistance services in that province — Member organizations of FFCB received funding for their involvement in provision of employment assistance services — Despite co-management agreement, and continued involvement of Francophone organizations in delivery of employment assistance services, eventual full devolution to B.C. remained an issue of concern — Full devolution of employment assistance services took place with signing of Agreement in 2008 — Agreement includes linguistic clause pursuant to which B.C. agrees to ensure that services being offered are accessible in either official language where significant demand warrants — Linguistic clause not requiring British Columbia to preserve participation of Francophone organizations — Commissioner of Official Languages (Commissioner) concluded that complaints well founded under both

Part IV,

Part VII — Federal Court concluding that

Part IV not applying to British Columbia — Concluding that sufficient positive measures taken by federal institutions, obligation under

Part VII met — FFCB submitting, inter alia, that Federal Court erred in relying on Lavigne F.C. to establish that British Columbia acting within its own jurisdiction — Whether Federal Court erred in concluding that

Part IV not applying to British Columbia, and in concluding that respondents took sufficient positive measures to satisfy obligation under

Part VII — Issue of whether complaints well founded also considered — Federal Court not erring in holding it was bound by Lavigne F.C., Lavigne F.C.A. — Lavigne F.C. answering question of whether OLA applying to benefits, measures provided by province under type of agreement at issue in present case — Attempts to cast doubt on correctness of Lavigne F.C., Lavigne F.C.A. unpersuasive — Issue of whether federal institution can evade its constitutional responsibilities by delegating exercise of its powers to province not arising here because British Columbia exercising its own powers under Agreement — Appeal relating to OLA ,

Part IV dismissed — As to OLA ,

Part VII, must be interpreted as broadly as other Parts listed in OLA , s. 82(1) — Constitutional protection under Charter, s. 23 not the same as that under

Part VII, should not be conflated with each other — Nevertheless, OLA has special status, is broad in scope — Federal Court’s

interpretation rendering

Part VII essentially meaningless — Questions as to whether obligation to enhance vitality of official language minority communities met arising p recisely in context of specific factual situation — Federal Court’s

interpretation also in direct conflict with OLA , s. 58(1) , which requires that any complaint alleging failure to comply with OLA must refer to “particular instance or case” underlying alleged breach —

Interpretation to be given to obligation under

Part VII requiring federal institutions to be aware of, attentive to needs of official language minority communities, to consider impact that their decisions may have on these communities — Obligation set out in

Part VII lending itself to two-step analysis — Federal institutions

having to be sensitive to particular circumstances of official language minority communities, determine impact of their decisions, initiatives — Second, in implementing decisions, initiatives, federal institutions having to act to enhance vitality of these communities; or counter or mitigate negative repercussions — Complaints well founded — Federal Court not taking into account actual basis for complaints — Nothing included in Agreement to allow federal institutions to intervene in event Agreement implemented by British Columbia without taking objective of not adversely affecting French-speaking minority community into account — Such clause could have been included in Agreement without exceeding jurisdiction of federal government — Federal institutions had to provide for a right to intervene — Could not sign Agreement without acknowledging obligation towards British Columbia’s French linguistic minority community under

Part VII, and without giving themselves means to enforce this obligation — Federal institutions ordered to terminate Agreement — Appeals relating to violation of obligation under OLA ,

Part VII allowed.

Constitutional Law — Distribution of Powers — Federal Court dismissing application by appellant Fédération des francophones de la Colombie-Britannique (FFCB) arising from complaints alleging that respondents failed to meet their language obligations under Official Languages Act ( OLA ), Parts IV, VII, and under Canadian Charter of Rights and Freedoms, s. 20(1) in entering into, implementing 2008 Canada–British Columbia Labour Market Development Agreement (Agreement) — Major reform of social programs announced in 1993 by federal government — Various partnership models envisaged by reform included full devolution agreement — Full devolution of employment assistance services took place with signing of Agreement in 2008 — Agreement includes linguistic clause pursuant to which B.C. agrees to ensure that services being offered are accessible in either official language where significant demand warrants — Linguistic clause did not require British Columbia to preserve participation of Francophone organizations in any way — Commissioner of Official Languages (Commissioner) concluded, inter alia, that complaints well founded under

Part IV — Federal Court concluding that

Part IV not applying to British Columbia — FFCB submitting that Federal Court erred in relying on Lavigne v.

Canada ( Human Resources Development ) 2001 FCT 1365 to establish that British Columbia acting within its own jurisdiction — Issue of whether federal institution can evade its constitutional responsibilities by delegating exercise of its powers to province not arising here because British Columbia exercising its own powers under Agreement — British Columbia occupying exclusively field of activity previously shared with federal government — Acting for no one else, assuming functions that fall within its own jurisdiction.

These were appeals from a decision rendered by the Federal Court dismissing an application by the appellant Fédération des francophones de la Colombie-Britannique (FFCB) arising from complaints alleging that the respondents failed to meet their language obligations under Parts IV [1] and VII [2] of the Official Languages Act ( OLA ) and under subsection 20(1) of the Canadian Charter of Rights and Freedoms following the implementation of the 2008 Canada–British Columbia Labour Market Development Agreement (Agreement).

In 1993, the federal government announced its intention to conduct a major reform of social programs in order to establish a new approach to employment assistance services that would be more coordinated, that would be locally managed and that would better meet the needs of local communities. Various partnership models envisaged by the reform included a full devolution agreement under which provinces had to design and administer their own benefits and measures, with federal financial support. In Lavigne v.

Canada ( Human Resources Development ) 2001 FCT 1365 , [2002] 2 F.C. 164 ( Lavigne F.C. ) , affd 2003 FCA 203 , 308 N.R. 186 ( Lavigne F.C.A. ), the Federal Court, Trial Division (hereinafter the Federal Court) held that the OLA did not apply to employment assistance services provided by the provinces under this type of agreement. The FFCB took issue with the correctness of those decisions in the context of the present appeals. Official language minority communities expressed concerns about their fate if a full devolution agreement were chosen.

In 1997, the federal government and British Columbia initially opted to sign a co-management agreement which ensured the continued application of the OLA in the delivery of employment assistance services in that province. Under a linguistic clause, clients in certain areas where demand was significant could be served in both official languages. Following the entry into force of the co-management agreement, the participation of Francophone organizations increased substantially and became an important tool for the promotion of linguistic duality in the province.

Five organizations, all members of the FFCB, received funding from the Commission for their involvement in the provision of employment assistance services. Despite the co-management agreement and the continued involvement of Francophone organizations in the delivery of employment assistance services, an eventual full devolution to B.C. remained an issue of concern. The full devolution of employment assistance services finally did take place with the signing of the Agreement in 2008.

The Agreement includes a linguistic clause pursuant to which B.C. agrees to ensure that the services being offered are accessible in either official language where significant demand warrants. During the transition between the signing and the coming into force of the Agreement, British Columbia kept Francophone organizations involved in the provision of employment assistance services and extended their funding.

It was proposed under British Columbia’s new model that the province be split into several geographic areas and that a request for proposals be issued in order to designate single providers that would be responsible for offering the full range of employment services in each of these areas. To qualify, the single providers had to have the capacity to serve a variety of specialized populations, including Francophones. The Francophone organizations proposed that they form a consortium whose function would be to offer a distinct model designed “by and for” the Francophone community.

According to British Columbia, the consortium was not necessary in order to ensure services in French because the single providers would assume this responsibility in each area where this requirement had to be met. The province instead suggested that the Francophone organizations could attempt to offer their services pursuant to subcontracting agreements with the single providers. In 2010, British Columbia informed five of the centres that were staffed by the Francophone organizations that they would no longer be receiving funding.

It became clear that only a good will gesture on the part of British Columbia could have allowed the Francophone organizations to preserve their role in the provision of employment assistance services in the province. Indeed, the Agreement’s linguistic clause did not require British Columbia to preserve their participation in any way. The complaints targeted the end of the funding for the Francophone organizations and their resulting disengagement, to the detriment of the French linguistic minority community.

The appellant Commissioner of Official Languages (Commissioner) concluded that the complaints were well founded under both

Part IV and

Part VII of the OLA. According to the Commissioner’s final report, the respondents did not ensure, as required under

Part IV of the OLA , that British Columbia was in fact offering employment assistance services in both official languages in the areas where there was significant demand. As for

Part VII, the Commissioner concluded that the federal institutions were aware of the concerns of British Columbia’s linguistic minority community but did not bother to assess the potential impact that the model envisaged by the province would have on the vitality of the Francophone community following the signing of the Agreement. The Federal Court determined, inter alia , that the measures contemplated by the Agreement fall under both the federal jurisdiction over unemployment insurance under subsection 91(2A) and the provincial jurisdictions under subsections 92(13) and (16) and

section 93 of the Constitution Act, 1867 . The Federal Court also determined that the provisions of the Agreement and the manner in which the benefits

and measures are administered by British Columbia do not support the conclusion that the province is acting under the control of the federal institutions. Consequently, the Federal Court concluded that

Part IV of the OLA does not apply to British Columbia. The Federal Court examined the text of subsections 41(1) and (2) of the OLA . It determined, inter alia , that the duty to take “ positive measures” (emphasis in original) is undefined and signals that some deference must be given as to the choice of the measures, that the implementation of

Part VII must be carried out while respecting the jurisdiction and powers of the provinces, and that the approach wherein federal institutions must be attentive to official language minority communities and must assess the impact of their decisions on those communities in order to meet the obligation under

Part VII was rejected in Fédération des communautés francophones et acadienne du Canada v. Canada (Attorney General) . The Federal Court also determined that the fact that no regulations have been adopted pursuant to subsection 41(3) of the OLA means that the obligation under

Part VII lacks the specificity needed to require federal institutions to take specific measures. The Federal Court concluded that sufficient positive measures were taken by the federal institutions and that these measures, together with the linguistic clause, contributed positively to the vitality and development of the French-speaking community in British Columbia such that the obligation under

Part VII was met. The FFCB submitted that the Supreme Court decisions in Eldridge v. British Columbia (Attorney General) and DesRochers v. Canada (Industry) establish the rule that federal institutions cannot avoid their constitutional obligation by entrusting the implementation of a specific federal program to a province. The FFCB also submitted that

Part IV applies to British Columbia even though it has concurrent constitutional jurisdiction to legislate in matters relating to employment benefits, and that the Federal Court erred in relying on Lavigne F.C. to establish that British Columbia was acting within its own jurisdiction. Regarding

Part VII, the FFCB submitted that

section 41 of the OLA imposes concrete obligations on federal institutions and establishes parameters that are sufficiently clear to be the subject of review by the courts. It also submitted that the fact that the Charter does not “constitutionalize” the measures taken in order to advance linguistic equality does not prevent the enactment of legislation to that effect, and that is precisely what

section 41 seeks to achieve in requiring federal institutions to act so as to enhance the vitality of official language minority communities. The main issues were whether the Federal Court erred in concluding that

Part IV of the OLA does not apply to British Columbia, and in concluding that the respondents took sufficient positive measures to satisfy the obligation under

Part VII of the OLA. The issue of whether the complaints were well founded was also addressed. Held , the appeal relating to

Part IV of the OLA should be dismissed; the appeal relating to

Part IV of the OLA should be allowed. The Supreme Court case law did not support the conclusion that Lavigne F.C. and Lavigne F.C.A. were wrongly decided or that the Federal Court erred in holding that it was bound by them. Lavigne F.C. and Lavigne F.C.A. preclude the application of

Part IV, the Federal Court of Appeal and the Federal Court are bound by their own decisions unless they are shown to be “manifestly wrong”. Lavigne answers the precise question of whether the OLA applies to benefits and measures provided by a province under the type of agreement at issue in the present case. The attempts to cast doubt on the correctness of Lavigne F.C. and Lavigne F.C.A. were unpersuasive. As for Eldridge , its relevance is no more apparent today than it was when Lavigne F.C. and Lavigne F.C.A. were decided.

Even if it is accepted that a federal institution cannot evade its constitutional responsibilities by delegating the exercise of its powers to a province, this issue did not arise here because British Columbia is exercising its own powers under the Agreement. Furthermore, British Columbia is not being asked to implement a “specific … program” of the federal government. Rather, it is invited to occupy exclusively a field of activity that was previously shared with the federal government. British Columbia is acting for no one else, and the functions that it assumes fall within its own jurisdiction.

The appeal relating to

Part IV of the OLA therefore had to be dismissed. As to

Part VII of the LLO, which conveys the federal government’s commitment to enhance the vitality of the English and French linguistic minority communities in Canada and sets out the obligation of federal institutions to take positive measures to deliver on it, It was necessary to determine the meaning to be given to this commitment.

Part VII was not added to the Parts listed in subsection 82(1) of the OLA that are said to prevail over conflicting provisions of any other Act. It remains that

Part VII must be interpreted broadly since it shares the same purpose, namely, to support the development of official language minority communities and to advance the equality of the two languages. The constitutional protection under

section 23 of the Charter is not the same as that under

Part VII of the OLA and the two should not be conflated. Nevertheless, the OLA has a special status and is broad in scope. The Federal Court’s

interpretation of

Part VII essentially rendered it meaningless. In particular, the suggestion that the obligation set out in

Part VII cannot target “a federal institution’s program, [a] decision-making process, [a] particular initiative, or … a specific factual situation that may have been the subject of a complaint” is not defensible. Indeed, it is mostly if not exclusively in the context of a specific factual situation that questions can arise as to whether the obligation to enhance the vitality of official language minority communities has been met. The Federal Court’s

interpretation was also in direct conflict with subsection 58(1) of the OLA , which requires that any complaint alleging a failure to comply with the OLA , including

Part VII, must refer to the “particular instance or case” underlying the alleged breach. The courts called upon to hear applications arising from a complaint must be able to render a decision in light of the specific violations of

Part VII that are being alleged, since it is the merit of the complaint that is the subject of an application under subsection 77(1) . It is difficult to conceive how courts could rule on a

Part VII complaint otherwise than on the basis of the specific violation that it alleges. Rather, the

interpretation that had to be given to the obligation under

Part VII requires federal institutions to be aware of and attentive to the needs of official language minority communities across the country and to consider the impact that the decisions that they are called upon to take may have on these communities. Only then can federal institutions be in a position to act in order to enhance the vitality of official language minority communities. This

interpretation coincides with Canadian Heritage’s understanding of the

Part VII obligation as evidenced by the guide that it publishes for federal institutions. The Federal Court rejected this guide. The guide expresses an opinion that could have informed its decision. The opinion of the government entity responsible for the administration of the law that gives rise to an issue of statutory

interpretation is often consulted by the courts as an interpretive aid. The measures set out in

Part VII are elaborated by reference to the objective sought, namely, enhancing the vitality of official language minority communities. The

interpretation of

Part VII that led Canadian Heritage to adopt these measures is also consistent with the grammatical and ordinary sense of the words and takes the legislative context into account. The obligation set out in

Part VII lends itself to a two-step analysis. Federal institutions must first be sensitive to the particular circumstances of the country’s various official language minority communities and determine the impact that the decisions and initiatives that they are called upon to take may have on those communities. Second, federal institutions must, when implementing their decisions and initiatives, act, to the extent possible, to enhance the vitality of these communities; or where these decisions and initiatives are susceptible of having a negative impact, act, to the extent possible, to counter or mitigate these negative repercussions.

Based on the evidentiary record, the complaints were well founded. The Federal Court did not take into account the actual basis for thecomplaints and it conducted its analysis on the basis of the wrong legal principle. The evidence shows that it is indeed the Agreementthat allowed British Columbia to end the participation of the Francophone organizations in the provision of employment assistanceservices. It was useful to focus on the conduct of the federal institutions before and after the Agreement was signed.

Neither thelinguistic clause nor the commitment to consult the Francophone community required British Columbia to preserve in one way oranother the role of the Francophone organizations or to ensure that the Agreement was implemented so as not to adversely affect theFrench-speaking minority community. Surprisingly, nothing was included in the Agreement to allow the federal institutions to intervenein the event that it was implemented by British Columbia without taking this objective into account. Such a clause could have beenincluded in the Agreement without exceeding the jurisdiction of the federal government.

The federal institutions had to provide for aright to intervene in the event that British Columbia was to be unyielding. While

Part VII does not preclude the taking of negativemeasures, it does require that they be accompanied by positive measures in order to offset or at least mitigate the negative effects.Nothing was done in this respect. The federal institutions could not sign the Agreement without acknowledging the obligation they hadand continue to have towards British Columbia’s French linguistic minority community under

Part VII, and without giving themselvesthe means to enforce this obligation in the event that the implementation of the Agreement by British Columbia was carried out to thedetriment of this community. The appeals insofar as they relate to the violation of the obligation under

Part VII of the OLA wereallowed. The federal institutions were ordered to provide British Columbia the notice referenced in

article 24.0 of the Agreementindicating their intention to terminate the Agreement in its present form as of April 1, 2024. 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, 20(1), 23, 24(1). 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(1A),(2A),(3), 92(13),(16), 93, 102, 106. Employment Insurance Act, S.C. 1996, c. 23, ss. 57(1)(d.1),(2),(3), 62, 63. Federal Courts Act, R.S.C., 1985, c. F-7, s. 52(b)(i). Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss.

Preamble, 2(b), 25, 41, 42, 43, 58(1), 77, 79, 82(1). TREATIES AND OTHER INSTRUMENTS CITED Canada – British Columbia Labour Market Development Agreement, signed April 25, 1997, Art. 7.2, 17.3. Canada – British Columbia Labour Market Development Agreement, signed February 20, 2008, Art. 1.2, 5.2, 5.3, 5.4, 23.0. 24.0, 25.0. CASES CITED followed: Lavigne v. Canada (Human Resources Development), 2001 FCT 1365, [2002] 2 F.C. 164, affd 2003 FCA 203, 308 N.R. 186, [2003] 4F.C. D-81. appliED: Picard v. Canada (Commissioner of Patents), 2010 FC 86, [2011] 2 F.C.R. 192; Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.235. distinguished: Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, (1997), 151 D.L.R. (4th) 577; Sociétédes Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383. CONSIDERED: Fédération des communautés francophones et acadienne du Canada v. Canada (Attorney General), 2010 FC 999, [2012] 2 F.C.R. 23;Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), (ON CA), 56 O.R. (3d) 505, 208D.L.R. (4th) 577; R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193; Miller v.

Canada (AttorneyGeneral), 2002 FCA 370, [2003] 3 F.C. D-16, 220 D.L.R. (4th) 149; Canadian Food Inspection Agency v. Forum des maires de laPéninsule acadienne, 2004 FCA 263, [2004] 4 F.C.R. 276; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14,[2005] 1 S.C.R. 201; Mahe v. Alberta, (SCC), [1990] 1 S.C.R. 342, (1990), 68 D.L.R. (4th) 69; Conseil scolairefrancophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, 447 D.L.R. (4th) 1.

REFERRED TO: Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; Confédération des syndicatsnationaux v. Canada (Attorney General), 2008 SCC 68, [2008] 3 S.C.R. 511; Desrochers v. Canada (Industry), 2006 CAF 374,[2007] 3 F.C.R. 3; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194; R. v. MacKenzie, 2004 NSCA 10, 221 N.S.R.(2d) 51; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Lavigne v.Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Tran v.

Canada (Public Safety andEmergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),

[1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217,(1998), 161 D.L.R. (4th) 385; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493, (1998), 156 D.L.R. (4th) 385; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Canada (Official Languages) v. CBC/Radio-Canada, 2014 FC 849,[2015] 3 F.C.R. 481, revd on other grounds 2015 FCA 251, [2016] 3 F.C.R. 55; F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880;Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29, (1983), 144 D.L.R. (3d) 193; Schwartz v.

Canada, (SCC), [1996] 1 S.C.R. 254, (1996), 133 D.L.R. (4th) 289; Canada (Attorney General) v. Viola, (FCA),[1991] 1 F.C. 373, (1990), 123 N.R. 83 (C.A.); Hollis v. Dow Corning Corp., (SCC), [1995] 4 S.C.R. 634, (1995), 129D.L.R. (4th) 609; Finlay v. Canada (Minister of Finance), (SCC), [1993] 1 S.C.R. 1080, (1993), 101 D.L.R. (4th) 567;Reference Re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, (1991), 83 D.L.R. (4th) 297. AUTHORS CITED Canada. Canadian Heritage. Guide for Federal Institutions.

Part VII (Promotion of French and English) of the Official Languages Act.Ottawa: Canadian Heritage, 2007. Hogg, Peter W. Constitutional Law of Canada, 4th ed. Scarborough, Ont.: Carswell, 1997.

APPEALS from a decision rendered by the Federal Court (2018 FC 530, [2019] 1 F.C.R. 243) dismissing an application by the appellantla Fédération des francophones de la Colombie-Britannique arising from complaints alleging that the respondents failed to meet theirlanguage obligations under Parts IV and VII of the Official Languages Act (OLA) and under subsection 20(1) of the Canadian Charter ofRights and Freedoms in entering into and implementing the Canada–British Columbia Labour Market Development Agreement(Agreement) signed in 2008. Appeal relating to

Part IV of the OLA dismissed; appeal relating to

Part IV of the OLA allowed. APPEARANCES Nicolas Rouleau and Isabelle Bousquet for appellant Commissioner of Official Languages. Giacomo Zucchi and Maxime Chambers-Dumont for appellant Fédération des francophones de la Colombie-Britannique. Ian Demers and Lisa Morency for respondents Employment and Social Development Canada and Canada Employment InsuranceCommission. Érik Labelle Eastaugh for intervener Association des juristes d’expression française du Nouveau-Brunswick. Audrey Mayrand for intervener Quebec Community Groups Network.

SOLICITORS OF RECORD Commissioner of Official Languages, Gatineau, for appellant Commissioner of Official Languages. Power Law, Ottawa, for appellant Fédération des francophones de la Colombie-Britannique. Deputy Attorney General of Canada for respondents Employment and Social Development Canada and Canada Employment InsuranceCommission. Attorney General of British Columbia for intervener Attorney General of British Columbia. Caza Saikaley LLP, Ottawa, for intervener l’Association des juristes d’expression française du Nouveau-Brunswick. Power Law, Montréal, for intervener Quebec Community Groups Network.

The following is the English version of the reasons for judgment rendered by The Court: Table of Contents INTRODUCTION THE FACTS DECISION UNDER APPEAL POSITIONS OF THE PARTIES A. The appellants and their supporting interveners The FFCB The Commissioner The AJEFNB The QCGN B. The respondents and the Attorney General of B.C.

ESDC and the Commission The Attorney General of B.C. ANALYSIS AND DECISION A. Standard of review B.

Interpretation of language rights C.

Part IV of the OLA D.

Part VII of the OLA ▪ The context surrounding

Part VII ▪ The purpose of subsections 41(1) and (2) ▪ The wording of the provisions in

Part VII ▪ The

interpretation of the trial judge E. Was the obligation under

Part VII met? ▪ The complaints ▪ The Commissioner’s report ▪ Are the complaints well founded? ▪ What would be an appropriate and just remedy in the circumstances?

DISPOSITION INTRODUCTION [ table of contents ] [ 1 ] The Fédération des francophones de la Colombie-Britannique and the Commissioner of Official Languages (the appellants, and the FFCB and the Commissioner, respectively) are both appealing a decision ( 2018 FC 530 ) rendered by Justice Gascon of the Federal Court (trial judge) whereby the FFCB’s application for a remedy pursuant to subsection 77(1) of the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31 (the OLA ), was dismissed. [ 2 ] The proceeding arises from four complaints endorsed by the Commissioner alleging that the respondents, Human Resources and Skills Development Canada (HRSDC), since renamed Employment and Social Development Canada (ESDC), and the Canada Employment Insurance Commission (the Commission) (collectively the respondents or the federal institutions) failed to meet their language obligations under Parts IV and VII of the OLA and under 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] (the Charter ), in entering into and implementing the Canada–British Columbia Labour Market Development Agreement signed in February 2008 (the Agreement). The Agreement was entered into pursuant to

section 63 of the Employment Insurance Act , S.C. 1996, c. 23 (the EIA ). [ 3 ] The trial judge refused to grant the remedy sought by the FFCB, finding that under the Agreement, British Columbia (B.C. or the province) was not acting “on … behalf” of ESDC and the Commission as required under

section 25 of

Part IV of the OLA and that these entities took sufficient positive measures to fulfil their duties under

Part VII, specifically

section 41 . [ 4 ] In support of its appeal, the FFCB maintains that on the basis of the law and the evidence the trial judge was bound to conclude that the Agreement as well as the employment benefits and support measures that it authorizes violate subsection 20(1) of the Charter and Parts IV and VII of the OLA. [ 5 ] The Commissioner takes issue with the portion of the decision that deals with

Part VII. He maintains that although the trial judge correctly stated the principles applicable to the

interpretation of language rights, he did not take into account Parliament’s intention to make federal institutions accountable for their obligations under

Part VII on a case-by-case basis. [ 6 ] The respondents ask that we dismiss the appeals on the ground that

Part IV does not apply to B.C. and that the evidence supports the trial judge’s conclusion that they took sufficient positive measures to satisfy the obligation under

Part VII of the OLA. [ 7 ] The Attorney General of B.C., in his capacity as intervener, asks that we uphold the trial judge’s decision, whereas the Quebec Community Groups Network (QCGN) and the Association des juristes d’expression française du Nouveau-Brunswick (AJEFNB) invite us to set it aside, each substantially agreeing with the position of the parties they support. [ 8 ] For the reasons set out below, we are of the view that the trial judge correctly concluded that

Part IV of the OLA and subsection 20(1) of the Charter do not apply to B.C. in its implementation of the Agreement. However, he misinterpreted the obligation cast upon federal institutions under

Part VII of the OLA. [ 9 ] After conducting our own analysis on the basis of the applicable legal test, we conclude that the federal institutions failed to meet their obligation towards B.C.’s French linguistic minority community under

Part VII of the OLA and that the complaints are to that

extent well founded. It follows that the appeals, insofar as they pertain to the breach of the

Part VII obligation, must be allowed. [ 10 ] The relevant provisions of the EIA , of the OLA and of the Charter , as they read at the time of the complaints, are appended to these reasons. THE FACTS [ table of contents ] [ 11 ] The battle waged by B.C.’s French linguistic minority community with respect to language rights in relation to employment assistance services in the province dates back to the 1990s.

It is worthwhile to go back to its origins and trace its history up to the filing of the complaints in 2011 in order to understand the issues involved. [ 12 ] In 1993, the federal government announced its intention to conduct a major reform of social programs across the country. One of the goals was to establish a new approach to employment assistance services that would be more coordinated, that would be locally managed and that would better meet the needs of local communities.

The ultimate purpose was for the federal government to withdraw from this field of activity in favour of the provinces, while providing the financial support that would allow them to assume this role. This initiative ultimately led to the adoption of the EIA on June 30, 1996. [ 13 ]

Part II of the EIA provided for the various partnership models envisaged by the reform. Subsection 57(3) authorized the Commission to establish employment benefits and support measures (benefits and measures) under three types of intergovernmental agreements: ▪ a co-management agreement that provided for greater cooperation between the two levels of government. Under this type of agreement, the Commission retained responsibility for establishing and ensuring the provision of benefits and measures.

There was therefore no transfer of funds, but the province was involved in the design and management of the benefits and measures, usually through a joint management committee ( subsection 57(2) of the EIA ); ▪ an agreement allowing the Commission to mandate the provinces to administer the benefits and measures themselves “on … behalf” of the Commission (section 62 of the EIA ); ▪ a full devolution agreement under which provinces had to design and administer their own benefits and measures, with federal financial support, provided that the measures introduced by the provinces were “similar” to those offered by the Commission and consistent with the purpose and guidelines set out in

Part II of the EIA (

section 63 of the EIA ). [ 14 ] When the EIA was enacted, it was clear that the OLA would apply to the delivery of employment assistance services in the provinces under the first type of agreement since the Commission continued to assume this responsibility directly, as well as under the second type of agreement since in this context the provinces were required to act “on … behalf” of the Commission within the meaning of

section 25 of the OLA (see also the affidavit of Mark Goldenberg, at paragraphs 79 to 81, appeal book, page 6292). As we shall see, the application of the OLA to the third type of agreement was not as clear, and the matter was settled a few years later by the courts, which held that the OLA did not apply to employment assistance services provided by the provinces under this type of agreement ( Lavigne v. Canada (Human Resources Development) , 2001 FCT 1365 , [2002] 2 F.C. 164 ( Lavigne FC ), affd Lavigne v. Canada (Minister of Human Resources Development) , 2003 FCA 203 , 308 N.R. 186, [2003] 4 F.C.

D-81 , ( Lavigne FCA )). As will be seen, the FFCB takes issue with the correctness of those decisions in the context of the present appeals. [ 15 ] Following the publication of the bill that led to the adoption of the EIA , official language minority communities with the support of the Commissioner expressed concerns about their fate if this third option were chosen.

Shortly before the bill became law, the Commissioner wrote the Minister of HRSDC pointing out that the bill did not reflect or take into account the commitment made by the federal government to enhance the vitality and support the development of official language minority communities, pursuant to

Part VII of the OLA (affidavit of Mark Goldenberg, Exhibit MG-7: appeal book, at pages 7174 and 7175). [ 16 ] It was in response to these concerns that the guideline now set out in paragraph 57(1) (d.1) of the EIA was added to the bill to require participating provinces to provide service recipients with “availability of assistance under the benefits and measures in either official language where there is significant demand for that assistance in that language”.

The clauses that were inserted to give effect to this guideline in the devolution agreements that were subsequently signed with the provinces and territories came to be known as “linguistic clauses”. [ 17 ] Despite the addition of this guideline, the French linguistic minority community in B.C. remained fearful of the potential effects of a full devolution agreement.

A few months after the enactment of the EIA , the president of the FFCB, Diane Côté, wrote to the then Minister of HRSDC, Pierre Pettigrew, expressing concern about the potential harm to this community: [translation] In British Columbia, past experience with the ability, and even the willingness, of British Columbia government authorities to provide adequate mechanisms to meet the aspirations of the Francophone community gives us reason to believe that the level of service provided to our community will only deteriorate if labour market development programs are entrusted to the province. For example,

section 530 of Canada’s Criminal Code allows for a trial in the official language of the accused’s choice. However, the administration of the courts is the responsibility of the provincial Ministry of the Attorney General, and the latter is still unable, seven years after the legislative provisions providing for it came into force, to respond adequately to this language right.

You will therefore understand that without an administrative agreement that clearly guarantees and defines the language rights of the French-speaking population in British Columbia, we are quite justified in having concerns about the province’s commitment on this issue. (Affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9804 and 9805) [ 18 ] One of the areas of concern was that, under the third option, there was no obligation on the provinces to enhance the vitality and the development of official language minority communities, as required by

section 41 of the OLA , and no recourse to the Commissioner

was provided in this regard. The FFCB’s letter ends as follows: [translation] … We fear that the situation will be most difficult for the French-speaking population in British Columbia if the agreement currently being negotiated does not include precise language regarding the parties’ responsibilities in language matters. We ask that you intervene immediately with your negotiators to give them specific instructions on the necessary elements with respect to language rights that should be an essential condition for signing an agreement with British Columbia.

I believe that the government must act on this issue and reiterate its commitment to Canada’s linguistic duality by ensuring that such administrative agreements leave no room for

interpretation by the provinces as to the services we are entitled to expect in our official language. (Affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9804 and 9805) [ 19 ] These concerns were alleviated somewhat two months later when the federal government and B.C. initially opted to sign a co- management agreement ( Canada–British Columbia Labour Market Development Agreement (1997)) which, as noted above, ensured the continued application of the OLA in the delivery of employment assistance services in B.C. [ 20 ] This co-management agreement was entered into on April 25, 1997, and was in effect for just over ten years.

Under the terms of the agreement, the federal government retained responsibility for the establishment of benefits and measures while B.C. participated in their design and management.

B.C. was also involved in setting objectives and priorities (Final Investigation Report of the Office of the Commissioner of Official Languages dated April 2013, at page. 3; affidavit of Hovan Baghdassarian, at paragraphs 45 to 59: appeal book, at pages 2298 and 2699 to 2702). [ 21 ] The services offered by the Commission under the co-management agreement complemented certain employment programs already offered by B.C. (affidavit of Hovan Baghdassarian, at paragraphs 8 to 21: appeal book, at pages 2687 to 2692).

To avoid duplication of financial assistance, clients eligible for both were referred to HRSDC by the province (affidavit of Duncan Shaw, at paragraphs 96 and 104: appeal book, at pages 8644 and 8646). [ 22 ] Under the linguistic clause (Article 7.2 of the co-management agreement), clients in certain areas where demand was significant (i.e.

Vancouver (including New Westminster), Victoria, Abbotsford, Chilliwack, Penticton, Prince George, Kelowna, Kamloops and Nanaimo) could be served in both official languages (affidavit of Viviane Beaudoin, at paragraph 10: appeal book, at pages 4391 and 4392). [ 23 ] The provision of “employment assistance services” was carried out primarily through specific organizations involved in the community, with the financial support of the Commission.

In order to ensure that these services were available to members of the French linguistic minority community in their language, the Commission provided funding to Francophone organizations (affidavit of Hovan Baghdassarian, at paragraph 60; affidavit of Duncan Shaw, at paragraphs 62, 67 and 70 to 72: appeal book, at pages 2702 and 8636 to 8638). [ 24 ] Following the entry into force of the co-management agreement, the participation of Francophone organizations increased substantially and became an important tool for the promotion of linguistic duality in the province.

Francophone organizations took great pride in developing a wide range of assisted and unassisted services that they offered to members of the Francophone community seeking employment (affidavit of Réal Roy, at paragraph 10; affidavit of Duncan Shaw, at paragraphs 73 to 75: appeal book, at pages 1825, 8638 and 8639). [ 25 ] As regards unassisted services or “self-service” activities, Francophone organizations provided tools to job seekers such as computer resources giving them access to databases for job searches and the preparation of applications, a library of reference material and job banks tailored to Francophones (affidavit of Christian Francey, at paragraphs 35, 36 and 44; affidavit of Yvon Laberge, at paragraphs 27 to 31; affidavit of Tanniar Leba, at paragraph 13; affidavit of Lise Morin, at paragraphs 6 to 8: appeal book, at pages 415, 418, 778, 779, 1559, 1697 and 1698). [ 26 ] Clients of the Francophone organizations also had access to multiple “assisted” services and activities; they were referred to in this way because they were offered under the supervision of employment counsellors.

These included the following: ▪ Case management: an employment counsellor or coach would meet with the client to identify the client’s employment needs. Together with the client, the counsellor would develop a return-to-work action plan and would follow up with the client. Assistance could be provided, for example, in résumé preparation or career planning, but also in applying for employment insurance benefits.

Follow-up included in-person and telephone meetings as well as communication of new job opportunities. ▪ Group workshops: job search and career planning group workshops were organized and covered topics such as skills development, cover letter/résumé preparation, networking and interview techniques. ▪ Online services: clients were given the opportunity to communicate virtually with an employment counsellor. ▪ Job fairs: once or twice per year, job fairs were organized in Vancouver to bring together French-speaking employees and potential employers that offered a bilingual work environment. ▪ Employment cafés: as a networking activity, an employer could be invited to give a presentation to individuals interested in the field. ▪ Regional response: an employment counsellor based in the major centres could travel to more remote areas, as needed, to provide employment assistance services in French in that community.

▪ Guidance counsellors: a guidance counsellor was available to answer questions about employment status or career choices and to help understand and overcome obstacles to job searches. (Affidavit of Christian Francey, at paragraphs 37 to 44; affidavit of Yvon Laberge, at paragraphs 32 to 43; affidavit of Tanniar Leba, at paragraphs 14 and 15, affidavit of Lise Morin, at paragraphs 9 to 15: appeal book, at pages 416 to 418, 779 to 781, 1559, 1698 and 1699) [ 27 ] The FFCB, the recognized representative of the interests of the French linguistic minority community in the province, had a lot to do with this.

Five organizations, all members of the FFCB, received funding from the Commission for their involvement in the provision of employment assistance services: Collège Éducacentre (Éducacentre), Société francophone de Victoria (SFV), La Boussole – Centre communautaire francophone (La Boussole), Centre francophone de services à l’emploi de l’Okanagan (CFSEO), and Centre d’intégration pour immigrants africains (CIIA). These organizations served different areas, specifically, Vancouver, Victoria, Prince George, Kelowna, Penticton and New Westminster.

While distinct from each other, they shared as a common thread their fundamentally Francophone character. [ 28 ] At the time of the coming into force of the EIA , the role of these organizations in B.C. was still in its infancy. It was through the partnership with HRSDC following the signing of the co-management agreement that some of these organizations were able to open their doors and others to expand the scope of their services.

To this end, the organizations entered into annually renewed contracts with HRSDC, which described in detail the employment assistance services that they were to offer to the Francophone linguistic minority community and providing for the necessary funding (affidavit of Christian Francey, at paragraphs 7 to 9; affidavit of Yvon Laberge, at paragraphs 18, 19 and 23; affidavit of Tanniar Leba, at paragraphs 8 to 10; affidavit of Lise Morin, at paragraphs 2 to 5; Final Investigation Report of the Office of the Commissioner of Official Languages dated April 2013, at pages 1 and 3; affidavit of Duncan Shaw, at paragraph 75, Exhibits DS-9 and DS-14: appeal book, at pages 407, 408, 776, 777, 1558, 1559, 1697, 2296, 2298, 8639, 9266 to 9394 and 9558). [ 29 ] Despite the co-management agreement and the continued involvement of Francophone organizations in the delivery of employment assistance services, an eventual full devolution to B.C. remained an issue of concern.

Indeed, the co-management agreement provided that B.C. could make a request towards that end at any time, if it saw fit to do so (Article 17.3 of the co-management agreement). [ 30 ] On January 12, 1998, the FFCB sent a letter to HRSDC outlining the safeguards it expected in the event of full devolution and asked the Minister to [translation] “undertake not to sign any agreement with B.C. which does not provide for measures to meet the requirements of

Part VII of the Official Languages Act , particularly

section 41 ” (affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9806 and 9807).

The letter states that the [translation] “Francophone community’s immediate concern is that the provincial government does not appear willing to put in place a mechanism of cooperation that would have the effect of better identifying the needs of our community and proposing initiatives to address them.” [ 31 ] On June 11, 1998, after learning that B.C. had officially requested the full devolution of labour market development measures, the FFCB again raised its concerns with Minister Pettigrew: [translation] The past and present actions of our provincial government leaders, led by Premier Glen Clark, cannot help but raise serious concerns about the level of service in our official language that the provincial government would provide.

The way to alleviate our concerns is to include specific clauses in any devolution agreement that address the issue of the application of the Official Languages Act . (Affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9812 and 9813) [ 32 ] The letter reiterates that specific guarantees are required [translation] “because of the high risk that once the provincial government is responsible for delivery of the measures … it will not respect the services to which we should have access in our language.” The FFCB concluded by stressing that, in the absence of sufficient guarantees, it would be preferable for the federal government to remain responsible for its share of employment assistance services in B.C.: [translation] If the provincial government cannot be persuaded to accept a maximum level of responsibility for applying the Official Languages Act , I would like to know if it would be possible for the federal government to remain responsible for measures inherent to the development of labour markets for the Francophone community. … I believe that you have had the opportunity to understand the unfavourable political context in which British Columbia’s Francophone community finds itself and to see the lack of consideration, in any form, that we receive from provincial political authorities.

Without strong leadership on your part, Canada will not be able to pride itself of its official bilingual status from coast to coast. (Affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9812 and 9813) [ 33 ] The Minister replied on August 26, 1998, indicating that for each province that opts for a full devolution, the agreements provide for [translation] “firm commitments on official languages” and that this was a [translation] “priority” in the negotiations.

In particular, he explained that the linguistic clauses would require that programs and services be offered in English upon request in Quebec and in both official languages in New Brunswick to reflect the particular circumstances of each province (Affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9810 and 9811). [ 34 ] This response raised significant concerns, the FFCB being of the opinion that the content of the linguistic clauses should rather be geared to address the fragility of the linguistic minority community in the province where the devolution takes place.

In its October 16, 1998, letter, the FFCB wrote the following:

[translation] It goes without saying that if the agreement were limited to linguistic clauses that reflect the prevailing linguistic reality of the provincial government, the content would be meagre for the Francophone community of our province. For us, it is important that the Francophone public have access to quality services in their language, and have recourse to the Commissioner of Official Languages in cases where service is not available.

Moreover, I would like you to confirm that special initiatives for our development, such as the Éducacentre training project, the Chambre de commerce franco-colombienne’s entrepreneurship centre or the Francophone associations’ employment projects, will always be accessible in accordance with the spirit of

section 41 of the Official Languages Act . … (Affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9814 and 9815) [ 35 ] In his February 18, 1999, response, the Minister of HRSDC referred again to the linguistic clause and explained that the official language minority community in B.C. has nothing to worry about: [translation] … I can only restate my firm intention to ensure that a new Canada-British Columbia labour market development agreement will ensure that programs and services are available in French where demand justifies it. … As I have personally assured you, your community will be informed of the linguistic clauses in any future Canada-British Columbia agreement before that agreement is signed. (Affidavit of Duncan Shaw, Exhibit DS-18: appeal book, at pages 9816 and 9817) [ 36 ] Shortly before then, in April 1998, the Task Force on Government Transformations and Official Languages was established following a recommendation made by the Commissioner.

The Task Force, in conducting its review, became aware of the particular situation of the French linguistic minority community in B.C. and it shared its observations with Minister Pettigrew: [translation] During these consultations, almost all the associations visited identified labour market development agreements as being one of the most important transformations to have occurred within government in recent years that impacts significantly on official language minority communities.

I would like to draw your attention more particularly to the representations made by the FFCB concerning talks between your Department and British Columbia to allow the province to take more responsibility for active employment measures supported by employment insurance funds. Indeed, FFCB representatives expressed to the Task Force members their deep concern regarding access, in French, to the services and programs concerned once responsibility for delivery is transferred to the province.

The FFCB raises British Columbia’s political context and how little consideration the provincial government gives to the Francophone community. It would like a firm commitment on your part that you will require the province to undertake to respect the Official Languages Act . It is not the role of the Task Force to interfere in the ongoing negotiations with British Columbia. We feel it is appropriate, however, for your Department to require a firm commitment from the province with regard to providing programs and services in French.

The Task Force cannot ignore this request and we are sharing it with you, knowing that your kind attention can be counted on, regarding the way forward on this matter. (Affidavit of Mark Goldenberg, Exhibit MG-16: appeal book, at pages 7519 and 7520) [ 37 ] The Minister of HRSDC responded to the Task Force by restating his commitment [translation] “to ensuring that the rights of official language communities are protected in all agreements” and, with regard to B.C., that if an agreement were to be signed, it would include [translation] “clear commitments that will allow access to programs and services in both official languages where the significance of the demand warrants it” (affidavit of Mark Goldenberg, Exhibit MG-16: appeal book, at pages 7521 and 7522). [ 38 ] These exchanges came to a standstill for a time before resuming in full force eight years later following the tabling in the House of the March 19, 2007, budget.

On that occasion, the federal government announced that it was offering a complete transfer of employment assistance programs to all provinces that had yet to sign a full devolution agreement. [ 39 ] On April 27, 2007, the FFCB sent an email to HRSDC’s Skills and Employment Branch, expressing the concerns raised in the province by the start of the federal-provincial negotiations towards a full devolution of employment assistance programs in favour of B.C.

The email explains the importance of the continued participation of the Francophone organizations in order to meet the needs of the Francophone community: [translation] Through the federal government’s support for official language communities, through the support of your Department, a certain number of Francophone organizations offer a broad … range of employment services—some for years, including at the Collège Éducacentre and at La Boussole, and others recently negotiated, including at the Centre d’intégration des immigrants africains.

These support programs are essential for our community, and their effectiveness no longer needs to be demonstrated. The figures are available for consultation, as you know. We believe that the relationship between the Francophone community and the provincial government is good. The Intergovernmental Relations Secretariat, through the Office of Francophone Affairs and its minister, has opened up many doors for us, but there is no doubt

that this devolution of power could be catastrophic and call into question all of this programming. We know that during negotiations, the federal government can impose a linguistic clause designed to twist the arm of the provincial government and the provincial department(

s) that will be responsible for managing these programs. This clause must be legally enforceable, and the provincial government must not be able to ignore it. We also know that in British Columbia, unlike in New Brunswick, our community has no official status; everything is left to the discretion and good will of the provincial government. We also know, from experience, that even federal funds destined to provide services to Francophones are not always allocated to Francophone organizations for the delivery of these services. The Francophone immigration file in our province is the most flagrant example of this.

I would like to start the dialogue and share these concerns with you. I know that in British Columbia, some employees in your Department are already aware that the Francophone community is ready to do everything in its power to ensure that the programs that we successfully deliver will not be threatened or questioned in any way.

I have received a few calls, which allowed me to share the determination of the entire Francophone community. (Affidavit of Réal Roy, Exhibit B: appeal book, at pages 1889 and 1890) [ 40 ] On May 14, 2007, the president of the FFCB sent another letter, this time directly to the Minister of HRSDC at the time, Monte Solberg.

The letter reiterated the importance of the ongoing participation of Francophone organizations in the delivery of employment assistance services in B.C.: One of the success stories of our community is related to a partnership we have developed over the years with the federal government, with the ministry you are now in charge of, Human Resources and Social Development. Employment related programs as designed by your ministry have being [ sic ] offered by Francophone staff in Francophone institutions for the last 15 years.

The number of Francophone service providers has increased every year and the number of Francophone clients supported in a crucial period of their lives is also growing constantly. … We would like to believe that during the negotiations that will take place, you will include a linguistic clause that the province has an obligation, a duty to respect, an executory clause that could not be overridden. The provincial ministry managing those programs would bear the same responsibility as its federal counterpart previously did.

It is true that the Francophone community of British Columbia is supported by its provincial government and by the Minister responsible for Intergovernmental Affairs, the Honorable John van Dongen. But we are aware that the devolution of powers has its drawbacks, the funding of Francophone immigration services remains an issue for our community, as you well know.

In British-Columbia settlement services for Francophone immigrants are still exclusively the responsibility of service providers from the community at large. (Affidavit of Réal Roy, Exhibit C: appeal book, at pages 1892 and 1893) [ 41 ] Three months later, Minister Solberg reiterated the position taken by the federal government over the years, namely that a linguistic clause corresponding to the text of paragraph 57(1) (d.1) of the EIA would ensure the protection of B.C.’s Francophone linguistic minority community (Affidavit of Réal Roy, Exhibit D: appeal book, at page 1895). [ 42 ] The last noteworthy exchange during the period that led to the full devolution took place at a meeting in September 2007, when the FFCB tried to alert federal officials in charge of the final negotiations to the particular plight of the French linguistic minority community in B.C. and to the importance of including an [translation] “airtight” linguistic clause in an eventual agreement (Affidavit of Réal Roy, Exhibit E: appeal book, at page 1899). [ 43 ] The full devolution of employment assistance services finally took place a few months later.

The Agreement was signed by the parties (B.C. being represented by its responsible minister and Canada being represented by the Commission and HRSDC) on February 20, 2008. The Agreement provides that it will become effective on February 2, 2009, a date that coincides with the date on which the co- management agreement ceases to be in effect (Articles 2.4 and 3.1 of the Agreement).

B.C. was the second last jurisdiction in the country to assume full and exclusive responsibility for employment assistance services, Yukon being the last (affidavit of Mark Goldenberg, at paragraphs 119 and 120: appeal book, at page 6300). [ 44 ] The Agreement is open-ended and remains in place to this day. It may be terminated at any time with two years’ notice, in which case the parties agree to work together to ensure that services to clients will not be unduly affected or interrupted (Articles 23.0 and 24.0 of the Agreement).

The Agreement may also be amended at any time with the mutual consent of the parties (Article 25.0 of the Agreement). [ 45 ] With regard to the use of official languages in the provision of services, the Agreement includes a linguistic clause pursuant to which B.C. agrees to ensure that the services being offered are accessible in either official language where significant demand warrants (Articles 5.2 and 5.3 of the Agreement).

B.C. also agrees to consult the French linguistic minority community “on the provision of … Benefits and Measures” that it would be called upon to manage (Article 5.4 of the Agreement). [ 46 ] The transition between the signing and the coming into force of the Agreement was extended until B.C. implemented its Employment Program of British Columbia (EPBC) and its “one-stop shop” model in April 2012.

During this period, B.C. kept Francophone organizations involved in the provision of employment assistance services and extended their funding, which stood around $2.4 million per year (affidavit of Christian Francey, at paragraphs 13 and 14, affidavit of Yvon Laberge, at paragraphs 20, 21 and 23; affidavit of Tanniar Leba, at paragraph 11; affidavit of Réal Roy, Exhibit M; affidavit of Hovan Baghdassarian, at paragraphs 88 to 90, 95 and Exhibit HB-13: appeal book, at pages 409, 777, 1559, 2193, 2709, 2710, 3392 and 3393). [ 47 ] This extended transition period was used by B.C. to undertake a series of consultations at several levels in order to improve the

transformation it envisaged (Business Transformation Project). This initiative led to consultations with the representatives of the French linguistic minority community, as required by

Article 5.4 of the Agreement (affidavit of Hovan Baghdassarian, at paragraphs 64 to 73; affidavit of Duncan Shaw, at paragraphs 170 to 173: appeal book, at pages 2703 to 2706, 8663 and 8664). [ 48 ] It was proposed under B.C.’s new model that the province be split into 73 geographic areas and that a request for proposals be issued in order to designate single providers that would be responsible for offering the full range of employment services in each of these areas.

To qualify, the single providers had to have the capacity to serve a variety of specialized populations, including Francophones, immigrants, persons with disabilities, Indigenous peoples and youth (affidavit of Christian Francey, at paragraphs 19 and 24 to 27; affidavit of Yvon Laberge, at paragraphs 45, 51 to 57 and Exhibit H; affidavit of Tanniar Leba, at paragraphs 25 and 26: appeal book, at pages 411 to 413, 782 to 784, 1486 to 1551, 1561 and 1562). [ 49 ] In order to preserve their role in the provision of employment assistance services to B.C.’s linguistic minority community, the five Francophone organizations proposed that they form a consortium whose function would be to offer a distinct model designed “by and for” the Francophone community.

The consortium would be funded by a separate envelope.

This proposal was presented in September 2010 and promptly rejected by B.C. in the following month (affidavit of Christian Francey, at paragraphs 18 and 20 to 23; affidavit of Yvon Laberge, at paragraphs 46 to 50; affidavit of Tanniar Leba, at paragraphs 27 to 30; affidavit of Réal Roy, at paragraphs 52 to 55 and Exhibit P: appeal book, at pages 410 to 412, 782, 783, 1562, 1563, 1839, 1840 and 2206 to 2213). [ 50 ] According to B.C., the consortium was not necessary in order to ensure services in French because the single providers would assume this responsibility in each area where this requirement had to be met.

B.C. instead suggested that the Francophone organizations could attempt to offer their services pursuant to subcontracting agreements with the single providers (affidavit of Tanniar Leba, at paragraphs 31 and 32; affidavit of Réal Roy, at paragraphs 57 to 62 and 75; affidavit of Hovan Baghdassarian, at paragraphs 76 to 81 and Exhibit HB-10: appeal book, at pages 1563, 1840 to 1842, 1846, 2706, 2707 and 3326 to 3338). [ 51 ] In the fall of 2010, B.C., relying on a series of reasons pertaining to efficiencies, informed five of the centres that were staffed by the Francophone organizations that they would no longer be receiving funding (affidavit of Yvon Laberge, at paragraph 24; affidavit of Tanniar Leba, at paragraph 33; affidavit of Lise Morin, at paragraph 17; affidavit of Réal Roy, at paragraph 56, Exhibit Q; Final Investigation Report of the Office of the Commissioner of Official Languages, at pages 1 and 4, affidavit of Hovan Baghdassarian, Exhibit HB-15: appeal book, at pages 778, 1563, 1700, 1840, 2215, 2296, 2299 and 3421 to 3468).

The FFCB again asked the federal government to intervene. [ 52 ] In a letter sent in January 2011 to the Minister of HRSDC at the time, Diane Finley, the FFCB was indignant about the devastating consequences that the closure of the five centres would have on the French linguistic minority community. The Minister responded five months later, entirely avoiding the issue surrounding the continued participation of the Francophone organizations.

Minister Finley indicated that the linguistic clause would be respected and invited the FFCB to raise issues pertaining to the method of delivery of employment assistance services with the B.C. government: … The Government of Canada expects that the Government of British Columbia will honour its official language commitments under the Canada-British Columbia LMDA. Human Resources and Skills Development Canada officials have received assurances from the provincial government on several occasions that it will continue to provide French language labour market services where numbers warrant.

Should you continue to have concerns related to labour market service delivery in British Columbia, I would encourage you to contact the Minister responsible, the Honourable Harry Bloy, British Columbia Minister of Social Development and Minister Responsible for Multiculturalism. … (Affidavit of Réal Roy, Exhibit U: appeal book, at pages 2237 and 2238). [ 53 ] It became clear to everyone, following this last response, that only a good will gesture on the part of B.C. could have allowed the Francophone organizations to preserve their role in the provision of employment assistance services in the province.

Indeed, the linguistic clause, which the federal government brandished over the years as the ultimate response to the concerns of Francophone organizations, did not require B.C. to preserve their participation in any way. The only obligation imposed on B.C. by this clause was to ensure that the services would be available in both official languages at the point of contact with the public, where demand warrants (Articles 5.2 and 5.3 of the Agreement). [ 54 ] A few days after receiving Minister Finley’s response, the FFCB filed its complaint with the Commissioner.

It is worth reproducing the essential components of the complaint in full: [translation] Please accept this letter as a complaint filed by the FFCB with the Office of the Commissioner of Official Languages further to the cancellation, in five B.C. centres, of employment services previously offered to Francophones through agreements signed with the Department of Human Resources and Skills Development. It affects La Boussole in Vancouver, Kelowna, Penticton and Prince George and the Centre d’intégration des immigrants africains in New Westminster.

Further to the devolution of federal government powers to the provincial government under a bilateral agreement, the British Columbia Ministry of Social Development notified these organizations of the withdrawal of their funding in 2011 and of the fact that they would no longer be able to offer employment services to Francophone clients. The signed agreement, however, contained a linguistic clause to the effect that the federal department must ensure compliance by

guaranteeing that services are maintained, the importance of which is well established. The demand for these services remains pressing even when there are now no organizations that can meet this demand. The federal Department of Human Resources and Skills Development accepted no responsibility and demonstrated a lack of commitment. This provincial decision, which Ottawa cannot ignore, is a serious infringement of the rights of Francophones in British Columbia.

This decision will have devastating consequences for Francophones and on the community in which these individuals live and will negatively affect the development and vitality of our community. (Affidavit of Réal Roy, Exhibit CC: appeal book, at pages 2271 and 2272). [ 55 ] Three other complaints had been filed in the preceding months.

Like the one filed by the FFCB, each target the end of the funding for the Francophone organizations and their resulting disengagement, to the detriment of the French linguistic minority community (affidavit of Serge Dancoste, Exhibit A; affidavit of Tanniar Leba, Exhibit B; affidavit of Duncan Shaw, Exhibits DS-38 and DS-39: appeal book, at pages 337 to 339, 1576, 10281 to 10288). [ 56 ] It should be noted that after the complaints were filed, the attempts made by the Francophone organizations to continue their activities, within the model introduced by B.C. in April 2012, failed miserably.

Some obtained occasional subcontracts, but scant funding led to the dismissal of almost all of their employees. Even the SFV, the only one of the five Francophone organizations that obtained a subcontract to operate its own centre, was forced to dismiss half of its employees and sublet part of its office space. [ 57 ] After conducting his investigation, the Commissioner concluded that the complaints were well founded under both

Part IV and

Part VII of the OLA. According to his final report, published in April 2013, HRSDC did not ensure, as required under

Part IV of the OLA , that B.C. was in fact offering employment assistance services in both official languages in the areas where there was significant demand. As for

Part VII, the Commissioner concluded that the federal institutions were aware of the concerns of B.C.’s linguistic minority community but did not bother to assess the potential impact that the model envisaged by B.C. would have on the vitality of the Francophone community following the signing of the Agreement.

Moreover, the federal institutions took no measures in order to allow them to counter the negative impact of the implementation of the Agreement in the event that it would adversely affect B.C.’s French linguistic minority community (Final Investigation Report of the Office of the Commissioner of Official Languages dated April 2013, at pages 17 to 19: appeal book, at pages 2312 to 2314). [ 58 ] The application before the Federal Court was filed in August 2013 but was suspended to allow the parties to explore the possibility of a settlement.

The matter was finally heard in May 2017, and the decision dismissing the application was rendered on May 23, 2018. The appeals were set to be heard in May 2020 on consent, but the public health crisis intervened before they could be heard. The parties subsequently insisted on the appeals being argued in person with the result that the hearing did not take place until October last. DECISION UNDER APPEAL [ table of contents ] [ 59 ] The trial judge’s reasons consist of 157 pages and 300 paragraphs. The following is a

summary of the essential points. [ 60 ] The trial judge notes at the outset of the analysis that two agreements were signed by the Government of Canada and B.C. in February 2008—the other being the Canada–British Columbia Labour Market Development Agreement—but that only the one involving labour market development (the Agreement) was at issue before him (Reasons, at paragraph 14).

He explains that at the time, funding approximating $300 million was paid annually by the federal institutions to B.C. pursuant to this Agreement. [ 61 ] According to the trial judge’s reading of the complaints, they were aimed at the new employment assistance services program (the EPBC) and the “one-stop shop” model implemented by B.C. in April 2012 (Reasons, at paragraphs 22 to 25).

After identifying these two initiatives as the source of the complaints, he reviews the Commissioner’s final report, which concluded that the complaints were well founded (Reasons, at paragraphs 29 and 30). [ 62 ] The trial judge then addresses the application filed by the FFCB and describes the applicable legal regime and the principles that guide the

interpretation of language rights (Reasons, at paragraphs 31 to 53). He continues by explaining why, in assessing the validity of the complaint filed by the FFCB, he must limit his review to the facts as they stood at the time it was filed (Reasons, at paragraphs 66 to 82). He concludes this discussion by faulting the FFCB for having filed its complaint hastily, given that the EPBC and the “one-stop shop” model were introduced after it was filed (Reasons, at paragraph 83). [ 63 ] The judge then examines the complaints in the light of

Part IV of the OLA and asks whether, for the purpose of the Agreement, B.C. is acting “on … behalf” of the federal institutions as these words appear in

section 25. He first dismisses the FFCB’s argument that unemployment insurance is an exclusive federal jurisdiction. In so doing, he relies on Lavigne FC , as affirmed by Lavigne FCA , and explains why, in his view, these decisions were not overtaken by the Supreme Court’s decisions in Reference re Employment Insurance Act (Can.), ss. 22 and 23 , 2005 SCC 56 , [2005] 2 S.C.R. 669 ( Reference re EIA ), and Confédération des syndicats nationaux v.

Canada (Attorney General) , 2008 SCC 68 , [2008] 3 S.C.R. 511 ( CSN ) (Reasons, at paragraphs 87 to 89 and 101 to 118). [ 64 ] Rather, the trial judge concludes that the measures contemplated by the Agreement come within concurring jurisdictions. They fall under both the federal jurisdiction over unemployment insurance under subsection 91(2A) and the provincial jurisdictions under subsections 92(13) and (16) and

section 93 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

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