R. v. Beaulac not, 2021 FCA 159

2021 FCA 159 A-355-19 Commissioner of Official Languages of Canada ( Appellant ) v. Office of the Superintendent of Financial Institutions ( Respondent ) and Canadian National Railway Company ( Intervener ) A-453-19 André Dionne ( Appellant ) v. Office of the Superintendent of Financial Institutions ( Respondent ) Indexed as: Canada ( Commissioner of Official Languages ) v. Office of the Superintendent of Financial Institutions Federal Court of Appeal, de Montigny, Rivoalen and Locke JJ.A.—By videoconference, June 9 and 10; Ottawa, August 4, 2021.

Official Languages — Appeals from Federal Court decision dismissing application for judicial review brought by appellant André Dionne (hereafter appellant) under Official Languages Act ( OLA ), s. 77 , arising from complaint made to Commissioner of Official Languages of Canada (Commissioner) against appellant’s employer, Office of the Superintendent of Financial Institutions (respondent) — Appellant working at Montréal office as “generalist” on regular basis with team of unilingual English-speaking specialists from Toronto office — Communications with specialists taking place only in English — Appellant alleging right to work in French constantly breached during 22 years of service for respondent — Commissioner confirming complaint justified, making recommendations to correct respondent’s breaches of duties under OLA — According to Federal Court, principles of

interpretation set out in R. v. Beaulac not applying in case, unilingual specialist employees in Toronto not providing “ service ” to bilingual generalists in Montréal under OLA , s. 36(1) (a) — Appellant submitting support specialists provide to generalists’ work constituting “service” — Commissioner arguing Federal Court should have considered qualitative criteria — Main issue whether Federal Court erred in ruling principles of

interpretation set out in Beaulac applying only to language rights of provincial linguistic minority; unilingual specialists in Toronto not providing “service” to bilingual generalists in Montréal; OLA , s. 36(2) , not imposing on respondent obligation to ensure support of specialists available in both official languages in regions designated as bilingual — Federal Court erred in rejecting principles set out in Beaulac — Federal Court’s analysis based on false premise — Purposive approach set forth in Beaulac, modern

interpretation method not mutually exclusive — Distinction Federal Court made between rights intended to protect provincial official language minority, rights of pan-Canadian Francophone minority in no way supported by either case law or OLA — Language rights must be given broad, liberal

interpretation — Federal Court erroneously made artificial distinctions from approach set forth in Beaulac — Federal Court created false distinction between rights intended to preserve language minority at “provincial” scale, institutional bilingualism — Distinction not recognized in law — Interpretative approach in Beaulac must be followed “ in all cases ” — Federal Court erred when incorrectly attempting to compartmentalize, differentiate principles, objectives of OLA to stray from Beaulac — Certain concerning remarks by Federal Court reflecting negative stereotypes — Federal Court not erring in concluding unilingual specialists in Toronto not providing “service” to bilingual generalists in Montréal — But Federal Court’s

interpretation of words “services centrally provided” as requiring formal decision by institution ambiguous, arbitrary — Formal decision criterion unduly restricting scope of OLA , s. 36(1) (a) — Court must consider qualitative factors to examine services —

Interpretation of notion of “services that are centrally provided” must also take into account qualitative factors — In this case, exchanges among generalists, specialists taking place within work team — Specialists not providing “services” to generalists within meaning of OLA , s. 36(1) (a) — Federal Court erred when narrowly interpreting s . 36(2) — Federal Court rejected

interpretation of s. 36(2) applied in Tailleur v. Canada (Attorney General) — Broad, liberal

interpretation must be given to s . 36(2) — Parliament intended to establish set of standards common to all federal institutions — Bilingual employees must interact with unilingual colleagues in colleagues’ official language — Nevertheless, federal institutions must maximize opportunities for bilingual employees to work in official language of choice — Respondent breached positive duty to take measures to establish, maintain work environment conducive to effective use of both official languages — Appellant’s complaint well founded — Appeals allowed.

These were appeals from a Federal Court decision that dismissed an application for judicial review brought by appellant André Dionne (hereafter the appellant) under

section 77 of the Official Languages Act (OLA) arising out of a complaint made to the Commissioner of Official Languages of Canada (the Commissioner) against his employer, the Office of the Superintendent of Financial Institutions (the respondent).

Part V of the OLA imposes duties on federal institutions in prescribed regions within the meaning of

section 35 with respect to the language of work in the public service. In this case, the Court was asked to interpret, for the first time, the provisions setting out the minimum requirements of federal institutions in prescribed regions, namely, paragraphs 36(1)(

a) and 36(1)(b), and subsection 36(2).

The appellant was based at the respondent’s Montréal office, where he worked as a “generalist” and manager in charge of leading a team of four generalists that supervised financial institutions. His position as manager required him to work on a regular basis with a team of unilingual English-speaking specialists at the Toronto office. Generalists frequently rely on the specialists’ expertise. According to the appellant, all communications with the specialists were conducted exclusively in English.

The financial institutions served by the Montréal office often requested service in French, requiring the appellant to act as a translator, to issue a report in French to the financial institution in question. It was those circumstances that the appellant filed a complaint with the Commissioner against the respondent. He alleged that his right to work in French had been constantly infringed during his 22 years of employment with the respondent. Following an investigation, the Commissioner produced a final report confirming that the complaint was justified.

The Commissioner made a series of recommendations to correct the respondent’s breaches of its duties under the OLA. In response to the Commissioner’s final report and accompanying recommendations, the respondent heightened the language profile of key positions at the Toronto office. The appellant applied for a Court remedy because he considered the Commissioner’s intervention insufficient to correct the problem. The Federal Court held, inter alia , that the principles of

interpretation set out in R. v. Beaulac did not apply in this case, and that Beaulac “has nothing to do with institutional bilingualism or the denial of any rights of a pan - Canadian Francophone minority, which has never been recognized as a community to which a purposive

interpretation principle should apply”. The Federal Court also found that unilingual specialists in Toronto do not provide a “service” to bilingual generalists in Montréal within the meaning of paragraph 36(1) (

a) of the OLA, and subsection 36(2) of the OLA does not impose a duty on the respondent to ensure that specialists’ support is available in both official languages in prescribed bilingual regions. The appellant submitted, inter alia , that the support the specialists provide to the generalists’ work constitutes a “service” within the meaning of paragraph 36(1) (

a) of the OLA. According to him, the Federal Court provided an excessively narrow

interpretation of the meaning of the word “service ”. The Commissioner submitted that the Federal Court erred in interpreting

Part V in a manner that is inconsistent with its object and with Parliament’s intent. More specifically, the Federal Court should have considered qualitative criteria, including the specific context of the institution. The main issues weres whether the Federal Court erred in holding that the principles of

interpretation set out in Beaulac apply only to the language rights of a provincial linguistic minority; that unilingual specialists in Toronto do not provide a “service” to bilingual generalists in Montréal within the meaning of paragraph 36(1) (

a) of the OLA; and that subsection 36(2) of the OLA does not impose a duty on the respondent to ensure that the specialists’ support is available in both official languages in prescribed bilingual regions. Held, the appeals should be allowed. The Federal Court erred in law as it went astray from the principles set out in Beaulac . The starting point of the Federal Court’s analysis was based on a false premise that the approach set forth in Beaulac applies only to the rights of a provincial linguistic minority.

The Federal Court’s remarks had the effect of contrasting interpretative approaches that are essentially one and the same. Contrary to the Federal Court’s conclusion, the purposive approach set forth in Beaulac and the modern method of

interpretation are not mutually exclusive. More important still, the distinction the Federal Court made between the rights intended to protect a provincial official language minority and those of a pan-Canadian Francophone minority is in no way supported by either the case law or the wording of the provisions at issue. Such a distinction could unduly restrict the scope of language rights. Language rights must be given a broad and liberal

interpretation “in a manner consistent with the preservation and development of official language communities in Canada ”. The Federal Court was bound by the case law and erroneously made artificial distinctions from the approach set forth in Beaulac . The case law reflects a broad consensus, and the strict

interpretation of language rights has been definitively rejected in favour of a purposive approach based on the principle of substantive equality. The Federal Court created a false distinction between rights intended to preserve a language minority on the “provincial” scale, and institutional bilingualism, intended to protect a language minority on the “national” scale. That distinction is not recognized in the law and is contrary to the case law and Parliament’s intent. Furthermore, Beaulac clearly holds that its interpretative approach must be followed “ in all cases ”.

The Federal Court erred when it incorrectly attempted to compartmentalize and differentiate the principles and the objectives of the OLA to go further astray from Beaulac . The Federal Court undertook a rather peculiar exercise of associating the various paragraphs of the

Preamble with either the objective of official bilingualism in federal institutions or the objective of the preservation and development of “provincial minority official language communities”. Certain concerning remarks by the Federal Court in its analysis rejecting a purposive

interpretation of the provisions of the OLA reflected negative stereotypes that called into question the value of Francophone employees in the public service. The Federal Court did not err when it concluded that unilingual specialists in Toronto do not provide a “service” to bilingual generalists in Montréal within the meaning of paragraph 36(1) (

a) of the OLA. The debate focused on the

interpretation of the term “services that are centrally provided” in paragraph 36(1)(a). Paragraph 36(1)(

a) applies to all “services” intended for the employees of a federal institution. The Federal Court erred in concluding that “services that are centrally provided” comprise services provided for the purpose of assisting or essentially supporting the performance of the employee’s duties that have been provided for by a “formal designation of senior management of the institution ”. The Federal Court’s

interpretation of the words “services centrally provided” as requiring a formal decision by the institution is ambiguous and arbitrary. The formal decision criterion unduly restricts the scope of paragraph 36(1)(a). The Court must consider qualitative factors to examine these services. Therefore, to determine whether a service is “centrally provided”, meaning that it is made available to all or a majority of the employees of an institution, the services in question must be analyzed. An

interpretation of the notion of “services that are centrally provided” must also take into account qualitative factors. This approach is flexible enough to enable federal institutions to adapt to changing circumstances, while complying with the limits established by paragraph 36(1)(a). In this case, the exchanges among generalists and specialists take place within the work team. Employees who collaborate to carry out an institution’s mandate and are part of a team do not provide a service. The specialists do not provide “services” to the generalists within the meaning of paragraph 36(1)(a). The Federal Court erred in law when it made a narrow

interpretation of subsection 36(2), particularly by omitting to apply the principle of substantive equality established in Beaulac and by rejecting the

interpretation of subsection 36(2) in Tailleur v. Canada (Attorney General) . On the basis of the

interpretation of subsection 36(2) of the OLA as developed in Tailleur , firstly, subsection 36(2) must be given a broad and liberal

interpretation, in accordance with the principles established in Beaulac . When we attempt to define the scope of the right that exists for a bilingual employee working in a prescribed bilingual region, it is necessary to ask this question: “What are the needs of a unilingual employee? ” It is with respect to that criterion that the scope of the right must be defined. Secondly, it is clear that Parliament intended to establish a series of standards common to all federal institutions “to maximize the employee’s ability to use the language of his or her choice ”.

In light of the principle of substantive equality, as described in Beaulac , it must be assumed that individuals have the right to perform all of their duties in the official language of their choice and that the use of both official languages

is the standard for all of the institution’s activities. Thirdly, bilingual employees must interact with their unilingual colleagues in theirofficial language. Nevertheless, the burden of the duties set out in subsection 36(2) remains on federal institutions, which must maximizeopportunities for bilingual employees to work in the official language of their choice, without going so far as to impose such rigorous andinflexible demands on them that the administration of the institution would be adversely impacted. All things considered, Tailleur standsfor an

interpretation of subsection 36(2) that reflects the institutional nature of the duties arising from that provision, thus leading to abroad, liberal

interpretation that is consistent with the object of the provisions of

Part V and that accounts for the principle of substantiveequality. All of these facts demonstrated that the respondent had breached its positive duty to take measures to establish and maintain awork environment that is conducive to the effective use of both official languages, as required by subsection 36(2). The institution istherefore responsible for providing an effective translation service to support and equip bilingual employees in the performance of theirduties. This is not unreasonable. In conclusion, the appellant’s complaint was well founded.

The respondent breached its language duties to the appellant undersubsection 36(2) of the OLA. The Federal Court’s decision to dismiss Mr. Dionne’s application was set aside, and the appeals wereallowed. STATUTES AND REGULATIONS CITED 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], s. 16(1). Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1.

Interpretation Act, R.S.C., 1985, c. I-21, s. 12. Office of the Superintendent of Financial Institutions Act, R.S.C., 1985 (3rd Supp.), c. 18,

Part I, s. 4(2)(a). Official Languages Act, R.S.C., 1985 (4th supp.), c. 31,

Preamble, ss. 2, 34, 35, 36, 77, 91. Official Languages Act, S.C. 1968-69, c. 54. Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13, s. 66. CASES CITED Applied: R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193; Housen v. Nikolaisen, 2002 SCC 33, [2002]2 S.C.R. 235; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193; Tailleur v.Canada (Attorney General), 2015 FC 1230, [2016] 2 F.C.R. 415. Considered: Forum des maires de la Péninsule acadienne v.

Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276; Mazraani v.Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; Canada (Attorney General) v. Shakov,2017 FCA 250; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Schreiber v. Canada (1999), 69 C.R.R. (2d) 256, , [1999] F.C.J. No. 1576 (QL) (T.D.), [2000] 1 F.C. D-6, affd. (2000), 267 N.R. 99, [2000] F.C.J. No. 2053 (QL) (F.C.A.). Referred to: DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194; Agraira v.

Canada (Public Safety and Emergency Preparedness),2013 SCC 36, [2013] 2 S.C.R. 559; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Lavigne v. Canada(Officer of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Association des parents de l’école Rose-des-Vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; Conseil scolaire francophone de la Colombie-Britannique v.British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, 447 D.L.R. (4th) 1; Thibodeau v. Canada (Senate), 2019 FC 1474; Thibodeau v.Air Canada, 2019 FC 1102, 443 C.R.R. (2d) 206; R. v.

Stillman, 2019 SCC 40, [2009] 3 S.C.R. 144, 436 D.L.R. (4th) 193. AUTHORS CITED Canada. Parliament. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-72, An Actrespecting the status and use of the official languages of Canada,

An Act respecting the status and use of the official languages ofCanada, 33rd Parl., 2nd Sess., Issue No. 1 (March 17 and 22, 1988). Canada. Parliament. Senate. Proceedings of the Senate Special Committee on Bill C-72, 33rd Parl., 2nd Sess., Issue No. 1 (July 19 and20, 1988) (Mr. Hnatyshyn). Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Treasury Board of Canada Secretariat, Policy on Language of Work, rescinded on November 19, 2012, online: https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=12520. APPEALS from Federal Court decision (2019 FC 879, [2019] 4 F.C.R. 541) dismissing an application for judicial review brought by theappellant, Mr. Dionne, under

section 77 of the Official Languages Act, arising from a complaint made to the Commissioner of OfficialLanguages of Canada against the Office of the Superintendent of Financial Institutions. Appeals allowed. APPEARANCES

Élie Ducharme , Isabelle Bousquet and Roxanne Comeau for appellant Commissioner of Official Languages of Canada. Nadine Dupuis for respondent. Alexa Biscaro and Patrick Levesque for intervener. Érik Labelle Eastaugh and Gabriel Poliquin for appellant André Dionne. SOLICITORS OF RECORD Office of the Commissioner of Official Languages of Canada , Gatineau, Quebec, for appellant Commissioner of Official Languages of Canada. Deputy Attorney General of Canada for respondent. Norton Rose Fulbright Canada LLP , Ottawa, for intervener. Caza Saikaley, s.r.l./LLP , Ottawa, for appellant André Dionne.

The following is the English version of the reasons for judgment rendered by r ivoalen j.a .: I. INTRODUCTION [ 1 ] André Dionne and the Commissioner of Official Languages of Canada (the Commissioner) are appealing the judgment delivered on July 3, 2019 (amended on September 20, 2019) by Justice Annis of the Federal Court ( 2019 FC 879 , [2019] 4 F.C.R. 541) (the Decision). That judgment concerns an application for a court remedy brought under

section 77 of the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31 (the OLA ). Mr.

Dionne’s application flowed from a complaint made to the Commissioner against his employer, the Office of the Superintendent of Financial Institutions (the respondent). [ 2 ] In the present case, the Court is being asked to determine the nature and scope of the principle of the substantive equality of language rights with respect to the language of work within federal institutions, and the duty of those institutions to ensure that, in prescribed bilingual regions, their respective work environments are conducive to the effective use of both official languages and accommodate the use of either official language by their employees.

Mr. Dionne alleges that the respondent breached its language duties toward him, as an employee holding a bilingual position and working at an office located in a prescribed bilingual region (Montréal), under sections 34, 35 and 36 of

Part V [sections 34–38] of the OLA . [ 3 ] More specifically, Mr. Dionne alleges that, to perform his primary duties, he was forced to work in English with unilingual employees located in a non-prescribed region (Toronto), in breach of paragraph 36(1) (

a) or, in the alternative, of subsection 36(2) of the OLA . He also alleges that he was required to work with regularly and widely used documents produced exclusively in English, in breach of paragraph 36(1) (a), as well as regularly and widely used computer systems available only in English, in breach of paragraph 36(1) (b). [ 4 ] The Federal Court dismissed all of Mr. Dionne’s arguments in support of his application for judicial review. [ 5 ] As for the Commissioner, intervener at trial, he was granted leave to appeal as a party in an order rendered by Justice Martineau of the Federal Court on January 12, 2017.

In particular, that order granted the Commissioner leave to make written and oral submissions and to appeal any decision of the Court on a question of law as could a party, with the understanding that the leave to appeal would be limited to questions of law. The Commissioner submits that the errors of law committed by the Federal Court have serious consequences on the

interpretation of language rights in Canada and have the effect of arbitrarily restricting the scope of the provisions set out in

Part V of the OLA . [ 6 ] The Canadian National Railway Company was granted leave to intervene in this appeal by order of this Court dated December 3, 2020. Its intervention is limited to questions of law concerning the scope of the rights and duties under

section 36 of the OLA . [ 7 ]

Part V of the OLA imposes duties on federal institutions in prescribed regions within the meaning of

section 35 with respect to the language of work in the public service. This Court is being asked to interpret, for the first time, the provisions setting out the minimum duties of federal institutions in prescribed regions, namely paragraphs 36(1)(

a) and 36(1)(

b) and subsection 36(2). [ 8 ]

Part XI [sections 82–93] of the OLA includes general provisions, including

section 91, which limits the authorization to impose certain language profiles on staffing. Rejecting the position taken by all of the parties, the Federal Court concluded that this

section was highly relevant to the

interpretation of subsection 36(2) (Decision, at paragraphs 22–23). [ 9 ] Consequently, this Court’s task in this appeal is to examine the

interpretation of paragraphs 36(1)(

a) and 36(1)(

b) and subsection 36(2) of the OLA and the relevance of

section 91 of the OLA and to apply those provisions to the facts of this case to determine whether Mr. Dionne’s language rights were breached. II. FACTS [ 10 ] There is no dispute between the parties as to the facts set out by the Federal Court and they refer us in this regard to paragraphs 33 to 36 and paragraph 47 of the reasons of the Decision. For the purposes of this appeal, it is sufficient to provide a broad overview of the factual and procedural background. [ 11 ] The respondent is a federal institution subject to the OLA .

The respondent’s mandate includes the supervision of federal financial institutions to ensure their sound financial condition and compliance with the applicable statutes and regulations pursuant to paragraph

4(2)(

a) of the Office of the Superintendent of Financial Institutions Act, R.S.C., 1985 (3rd Supp.), c. 18,

Part I. The respondent is dividedinto four units, and one of those units—the Supervision Sector—is specifically dedicated to the implementation of that mandate. [12] At the time of Mr. Dionne’s complaint, the respondent had four offices, one of which was located in a region prescribed underthe OLA (Montréal) and another in a non-prescribed region (Toronto). At that time, all of the employees at the Montréal office wereassigned to the Supervision Sector. However, most of the “specialists” in the Supervision Sector worked from the Toronto office.

Onlyone bilingual specialist position existed, and it was located in Montréal (appeal book, Vol. IV, affidavit of Natalie Harrington sworn onFebruary 17, 2016, at pages 936–937, paragraphs 13 and 17). [13] Mr. Dionne was based at the Montréal office and was a “generalist” and manager in charge of leading a team of four generaliststhat supervised financial institutions. His position as a manager required him to work on a regular basis with a team of unilingual Englishspecialists located at the Toronto office.

The generalists (or, in this case, their manager) frequently rely on the specialists’ expertise,especially when it comes to the various types of risk posed by the practices of regulated financial institutions.

In the words of the FederalCourt, which accepted the Commissioner’s findings, the specialists assist the generalists “in assessing specific inherent risks, so that theycan determine overall risk and make recommendations to financial institutions” (Decision, at paragraph 33). [14] In addition to providing support to the generalists and their managers in highly specialized areas, this collaboration involves thesharing of information of a more general nature with the specialists. Indeed, according to Mr.

Dionne’s testimony, “[translation] ….Managers of supervision work closely with specialists” to ensure that the specialists are fully aware of the overall context of the financialinstitution being assessed (Decision, at paragraph 37) (emphasis in the original). [15] For Mr. Dionne, the extent of the consultation with the specialists varied depending on the file. For example, Mr. Dionnetestified, in reference to a specific file, that he might consult the specialists on a daily basis or several times a week or month. He reportsthat, for that file, those interactions took place over a period of five years.

Though he does not suggest that the support of the specialistsin Toronto is always required, most files required their involvement and, thus, interactions in English. Indeed, according to Mr. Dionne,“[translation] …. every time supervisory activity required the participation of a specialist—which was most of the time—a large part of[his] work had to be done in English” (Decision, at paragraph 37; emphasis in the original). In addition, according to Mr. Dionne, allcommunications with the specialists were conducted exclusively in English, both verbally and in writing. [16] Mr.

Dionne also testified that, as a manager of supervision, he was bound by the reports made by specialists and was required toincorporate them into his final report to the financial institution. The financial institutions served by the Montréal office often requestedservice in French, requiring Mr. Dionne to act as a translator, a considerable additional task, to issue a report in French to the financialinstitution in question. In his testimony, Mr. Dionne emphasized that there was a risk of the translation being inaccurate, as translationwas not his profession. [17] It was under those circumstances that Mr.

Dionne filed a complaint with the Commissioner against the respondent in a letterdated November 19, 2010. He alleged that his right to work in French had been constantly breached during his 22 years of service for therespondent (appeal book, Vol. III, affidavit of André Dionne sworn on December 23, 2015, Exhibit A, page 723). [18] On January 7, 2014, following an investigation, the Commissioner produced a final report confirming that the complaint wasjustified with respect to five areas, namely: (

a) communications among employees in different regions; (

b) training; (

c) professionaldevelopment; (

d) work tools; and (

e) computer systems. The Commissioner made a series of recommendations to correct therespondent’s breaches of its duties under the OLA.

The Commissioner’s first recommendation urged the respondent to “[translation] …Take steps to make, by March 31, 2014, an objective determination of the language requirements for all positions where the incumbentprovides Montréal office employees with training and professional development, so that these services are provided in the preferredofficial language of the employees in that office” (Decision, at paragraph 59). [19] In response to the Commissioner’s final report and accompanying recommendations, the respondent heightened the languageprofile of 11 essential positions at the Toronto office.

Those same manager and director positions in the Supervision Sector, which up tothat point had been unilingual, were thus designated bilingual. The respondent’s official languages duties were also described in anorganizational reference tool provided to all human resources specialists and managers responsible for staffing actions. [20] In March 2015, in a final follow-up report to the recommendations made, the Commissioner stated that he was of the opinion thathis recommendations had been implemented. [21] Dissatisfied with the final follow-up report, Mr. Dionne applied for a court remedy under

section 77 of the OLA because heconsidered the Commissioner’s intervention to be insufficient to correct the problem in three main areas: (

a) the relationship between theunilingual English specialists at the Toronto office and the bilingual generalists at the Montréal office; (

b) the dissemination of thequarterly analysis documents prepared exclusively in English; and (

c) the use of computer systems available only in English. [22] The Federal Court dismissed in its entirety Mr. Dionne’s application and held that: (1) the principles of

interpretation set out in R.v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193 (Beaulac) did not apply in this case; (2) theunilingual specialists in Toronto do not provide a “service” to the bilingual generalists in Montréal within the meaning of paragraph36(1)(

a) of the OLA; (3) subsection 36(2) of the OLA does not impose a duty on the respondent to ensure that the specialists’ support isavailable in both official languages in prescribed bilingual regions;

(4) section 91 of the OLA “has precedence” over the duties set out insubsection 36(2); (5) the dissemination of quarterly analysis documents is not in breach of paragraph 36(1)(a); and (6) the computersystems used by the respondent are not in breach of paragraph 36(1)(b). [23] Mr. Dionne is asking this Court to set aside the Federal Court’s decision and to issue a judgment declaring that his rights werebreached because the respondent did not fulfill its minimum duties under subsections 36(1) and 36(2) of the OLA. Mr.

Dionneacknowledges that the evidence on record does not make it possible to determine whether the problems he raised were resolved by themeasures adopted by the respondent and that it is therefore impossible for this Court to grant any remedy other than a declaratoryjudgment.

[ 24 ] The Commissioner is asking this Court to set aside the Federal Court’s decision and to declare that

Part V of the OLA must be interpreted in accordance with its object, according to the principles established in Beaulac . III. ISSUES [ 25 ] Having reviewed the nature of the issues raised by the parties, I am of the view that we must determine whether the Federal Court erred: A. In holding that the interpretive principles set out in Beaulac apply only to the language rights of a provincial language minority and not to Francophones in Quebec; B. In holding that the unilingual specialists at the Toronto office do not provide a “service” to the bilingual generalists at the Montréal office within the meaning of paragraph 36(1) (

a) of the OLA ; C. In holding that subsection 36(2) of the OLA does not impose a duty on the respondent to ensure that the specialists’ support is available in both official languages in prescribed bilingual regions; D. In holding that

section 91 of the OLA “has precedence” over the duties set out in subsection 36(2) of the OLA ; and/or E. In holding that the unilingual dissemination of quarterly analysis documents is not in breach of paragraph 36(1)(

a) of the OLA and that the computer systems used by the respondent are not in breach of paragraph 36(1) (

b) of the OLA . IV. STANDARDS OF REVIEW [ 26 ] The application to the Federal Court was brought under

section 77 of the OLA . The relevant paragraphs of that provision for our purposes read as follows: Application for remedy 77

(1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or

Part IV, V or VII, or in respect of

section 91 , may apply to the Court for a remedy under this Part. … Order of Court

(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances. [ 27 ] This Court discussed the particular nature of the remedy provided for in

section 77 of the OLA in Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) , 2004 FCA 263 , [2004] 4 F.C.R. 276 ( Forum des maires ), at paragraphs 15– 21 ; see also DesRochers v. Canada (Industry) , 2009 SCC 8 , [2009] 1 S.C.R. 194 ( DesRochers ), at paragraphs 32–38 ). In that case, the Court emphasized, correctly, that any application brought under

section 77 concerns the cogency of the complaint made to the Commissioner, and not the cogency of the Commissioner’s report. As the Court explained, “the capacity as an ‘applicant’ to the Court is derived from the capacity as a ‘complainant’ to the Commissioner”, though the report is to some extent a precondition to the exercise of the remedy provided in

section 77 ( Forum des maires , at paragraph 17). However, the Commissioner’s “decision”—or rather, the Commissioner’s report—is not subject to such a remedy; only the arguments made in support of the complaint are truly at issue. The remedy provided for in

section 77 therefore does not concern a “decision” of a federal tribunal and cannot be likened to an application for judicial review within the meaning of

section 18.1 of the Federal Courts Act , R.S.C., 1985, c. F-7 ( Forum des maires , at paragraph 18). In the Court’s view, the application provided for in

section 77 “is basically similar to an action” that can be decided by a trial court ( Forum des maires , at paragraph 19). [ 28 ] In such a context, the case before this Court is not an appeal against a decision on judicial review, thus precluding the application of the analytical framework in Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, but rather an appeal against a trial decision. Consequently, the standards of review set out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, at paragraphs 8 , 10, 27 and 28 apply in this appeal.

In other words, the standard of review on a question of law is correctness, and the standard of review on questions of fact or of mixed fact and law is palpable and overriding error, except where a question of law can be isolated, in which case it will be reviewed on the standard of correctness. [ 29 ] In this case, the evidence available on the record to the Court is rather limited. The respondent submitted no evidence at trial to explain why, at the time of the complaint, it had decided to locate its team of specialists in Toronto.

This factual vacuum makes this type of case poorly suited to remedial orders issued by an appellate court. [ 30 ] I am of the opinion that the Federal Court made a number of errors of law, particularly with respect to the interpretive principles that form an integral part of the case law. Nevertheless, even by applying a broad and liberal

interpretation to the provisions at issue in this case, I arrive at the same conclusion on the merits as the Federal Court with regard to the

interpretation of paragraph 36(1)(a). As for the duties related to language rights derived from subsection 36(2) , I find that the respondent’s practices (or rather its inaction) breached that provision at the time when Mr. Dionne made his complaint to the Commissioner. [ 31 ] Regardless, I consider it important to provide a detailed response to the issues raised in this appeal to make the necessary corrections to the approach taken by the Federal Court and thus to clarify the state of the law with respect to language rights. V. ANALYSIS A. Did the Federal Court err in holding that the interpretive principles set out in Beaulac apply only to the language rights of a

provincial language minority and not to Francophones in Quebec? [32] There is no doubt in my mind that this first question must be answered in the affirmative, because the Federal Court clearly erredin law when it went astray from the principles set out in Beaulac. The parties also agree that the Federal Court repeatedly erred by failingto follow and apply the relevant legal principles with respect to the

interpretation of language rights. [33] It appears to me that the starting point for the Federal Court’s analysis is based on a false premise: the approach set forth inBeaulac applies only to the rights of a provincial language minority (Decision, at paragraphs 88 and 90). Thus, the purposive approach tointerpretation is said not to apply to matters, such as this one, concerning the language rights of the Francophone minority on a pan-Canadian scale (Decision, at paragraph 97). As a Francophone from Quebec, Mr.

Dionne is said not to be a member of a “provincial”language minority, but rather of a “national” language minority. The Federal Court also says that it is appropriate to examine thelanguage of the provisions of

Part V of the OLA, as dictated by the modern principle of

interpretation, before turning to policyconsiderations typically associated with the purposive approach (Decision, at paragraphs 114–115). Mr. Dionne and the Commissionersubmit, correctly, that the Federal Court’s position is erroneous. [34] From the outset, it should be noted that the Federal Court’s remarks have the effect of contrasting interpretive approaches thatare essentially one and the same. Contrary to the Federal Court’s conclusion, the purposive approach set forth in Beaulac and the modernmethod of

interpretation are not mutually exclusive. Rather, the modern approach dictates that “the words of

an Act are to be read intheir entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and theintention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193, atparagraph 21, citing E. A. Driedger, Construction of Statutes, (2nd ed. Toronto: Butterworths, 1983), at page 87).

In this case, the “entirecontext” is defined by the interpretive principles pertaining to language rights, including the approach set forth in Beaulac. [35] More important still, the distinction the Federal Court makes between the rights intended to protect a provincial official languageminority and those of a pan-Canadian Francophone minority is in no way supported by either the case law or the wording of theprovisions at issue. Such a distinction could unduly restrict the scope of language rights, contrary to the doctrine of Beaulac.

That casedictates the approach to be followed for any matters relating to “the equal status of Canada’s official languages and to ensure full andequal access to the country’s institutions by Anglophones and Francophones alike”, as the Supreme Court recently confirmed inMazraani v.

Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261 (Mazraani), at paragraph 20.It is therefore appropriate to take a closer look at that case. [36] In Beaulac, the Supreme Court held that the establishment of institutional bilingualism requires “equal access to services of equalquality for members of both official language communities in Canada” (at paragraph 22) and that language rights have a remedialfunction because they provide redress for previous injustices that have been committed against the minority (at paragraph 19).Furthermore, language rights are positive rights that “can only be enjoyed if the means are provided” (at paragraph 20) and thuscreate “obligations for the State” (at paragraph 24).

In short, they must be given a broad and liberal

interpretation “in a manner consistentwith the preservation and development of official language communities in Canada” (at paragraph 25). [37] However, the Federal Court held that Beaulac “has nothing to do with institutional bilingualism or the denial of any rights of apan-Canadian Francophone minority, which has never been recognized as a community to which a purposive

interpretation principleshould apply” (Decision, at paragraph 97). That holding is erroneous. The Federal Court was bound by the case law and erroneouslymade artificial distinctions from the approach set forth in Beaulac. [38] Canada’s courts, including this Court, have confirmed and applied the principles set out in Beaulac numerous times with respectto the

interpretation of language rights. The case law reflects a broad consensus, and I have no difficulty to conclude that a strictinterpretation of language rights has been definitively rejected in favour of a purposive approach based on the principle of substantiveequality (Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at paragraph 31; Lavigne v. Canada (Office ofthe Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773 (Lavigne), at paragraph 22; DesRochers, at paragraph 31;Association des parents de l’école Rose-des-vents v.

British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at paragraphs29–30; Canada (Attorney General) v. Shakov, 2017 FCA 250 (Shakov), at paragraphs 75, 111–116 and 119–122; Mazraani, at paragraph20; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, 447 D.L.R. (4th)1, at paragraphs 5–20). [39] It is also important to keep in mind that

Part V of the OLA, which pertains to the language of work in federal institutions, derivesits legitimacy from subsection 16(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), which provides that English andFrench are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions ofthe Parliament and government of Canada. Moreover, given its constitutional roots and its essential role in bilingualism, the OLA hasquasi-constitutional status (Lavigne, at paragraphs 22–23; Thibodeau v.

Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340 (Thibodeau), atparagraph 12). [40] In the light of this rich case law and the principles set out therein, I agree with the appellants in this case, the Commissioner andMr. Dionne, that the Federal Court erred at paragraphs 88, 90–107, 114–115 and 485 of the Decision. [41] More specifically, the Federal Court erred when it held that the purposive approach applied only to the preservationof “provincial official language minority community” (Decision, at paragraph 90 et seq.).

It created a false distinction between the rightsintended to preserve a language minority on the “provincial” scale, and institutional bilingualism, intended to protect a language minorityon the “national” scale. That distinction is not recognized in the law and the case law holds the opposite. It is also contrary toParliament’s intent, as I will discuss later in these reasons.

Language rights must be interpreted, according to Beaulac, “in a mannerconsistent with the preservation and development of official language communities in Canada” (at paragraph 25; my emphasis). [42] Furthermore, Beaulac clearly holds that its interpretive approach must be followed “in all cases” (at paragraph 25; emphasis inthe original). It should be noted that the principles established in Beaulac have been applied in recent cases, regardless of the official

language community in question (see, for example: Mazraani , at paragraph 20 ; DesRochers , at paragraph 31 ; Tailleur v. Canada (Attorney General) , 2015 FC 1230 , [2016] 2 F.C.R. 415 ( Tailleur ), at paragraph 51 ; Shakov , at paragraphs 75, 111–116 and 119–121 ; Thibodeau v. Canada (Senate) , 2019 FC 1474 , at paragraph 28 ; Thibodeau v. Air Canada , 2019 FC 1102 , 443 C.R.R. (2d) 206, at paragraph 40 ). In particular, three months prior to this case being heard before the Federal Court, our Court examined in Shakov the issue of whether the staffing of a management position that required fluency in English only was equivalent to the improper conduct prohibited by

section 66 of the Public Service Employment Act , S.C. 2003, c. 22, ss. 12, 13 . This Court thereby examined the application of the interpretive principles established in Beaulac to

Part V of the OLA (at paragraphs 75, 111–116 and 119–121). [ 43 ] Similarly, I am of the view that the Federal Court erred at paragraphs 98–107 of the Decision when it incorrectly attempted to compartmentalize and differentiate the principles and the objectives of the OLA to go further astray from Beaulac . [ 44 ] In its analysis, the Federal Court propounded a narrow

interpretation of the language rights of the pan-Canadian Francophone minority on the basis of arbitrary conclusions about the

Preamble and

section 2 (Decision, at paragraph 98). The Court undertook a rather peculiar exercise of associating the various paragraphs of the

Preamble with either the objective of official bilingualism in federal institutions or the objective of the preservation and development of “provincial minority official language communities” (Decision, at paragraph 100). [ 45 ] More specifically, to support its conclusion, the Federal Court stated, at paragraph 102 of its reasons, that the following paragraph of the

Preamble of the OLA “can only refer to” provincial minority communities given that “[i]f one community is part of a larger community, it must be a different and smaller community”:

Preamble WHEREAS… … AND WHEREAS the Government of Canada is committed to enhancing the vitality and supporting the development of English and French linguistic minority communities, as an integral part of the two official language communities of Canada, and to fostering full recognition and use of English and French in Canadian society. [ 46 ] However, that

interpretation is excessively narrow and is contrary to the objectives of language rights. A broad, liberal and purposive

interpretation of that paragraph leads to the conclusion that no distinction can be made between provincial and national language minorities, since they are not mentioned. Moreover, that is the only

interpretation consistent with “the preservation and development of official language communities in Canada” and the principle that “[l]anguage rights must in all cases ” be interpreted in this manner, regardless of the community in question ( Beaulac , at paragraph 25 ; emphasis in the original). Consequently, contrary to the Federal Court’s conclusion, there is no distinction between the language rights intended to preserve a provincial language minority and those promoting institutional bilingualism. [ 47 ] Lastly, I consider it important to address certain concerning remarks by the Federal Court. In its analysis rejecting a purposive

interpretation of the provisions of the OLA , the Federal Court, in particular, rejected the appellants’ argument that Beaulac prohibits Parliament from restricting the rights of bilingual Canadians to choose the official language they use at work on the grounds that they are able to communicate in both languages; the appellants argued that such a restriction would disadvantage official language minorities whereas the objective of the Act is to support them.

By rejecting that argument, the Federal Court also endorsed the idea that the Francophone minority receives preferential treatment in the federal public service.

For example, although Parts IV and V of the OLA protect the official language minorities, the Federal Court refutes the appellants’ argument by insisting on its view that “the Francophone official language community, by its greater proficiency in bilingualism … already holds a somewhat advantageous position by the effect of the Parts IV and V of the [ OLA ]” and that “the services and language of work provisions of the OLA provide the Francophone community with a competitive employment advantage in bilingual regions” (Decision, at paragraphs 110 and 112; emphasis in the original).

However, for the reasons described above and in the light of the objectives of the OLA , which I will address in the paragraphs to follow, I am of the view that these comments are unacceptable and reflect negative stereotypes that call into question the value of Francophone employees in the public service. [ 48 ] For all of these reasons, I conclude that the Federal Court erred in law as it went astray from the principles set out in Beaulac . [ 49 ] Nevertheless, even when the interpretive principles of Beaulac are followed, for the reasons set out below, I cannot conclude that the unilingual specialists at the Toronto office provide a “service” to the bilingual generalists at the Montréal office within the meaning of paragraph 36(1) (

a) of the OLA . B. Did the Federal Court err in holding that the unilingual specialists at the Toronto office do not provide a “service” to the bilingual generalists at the Montréal office within the meaning of paragraph 36(1) (

a) of the OLA ? [ 50 ] Paragraph 36(1) (

a) of the OLA , which is central to the appellants’ arguments, reads as follows: Minimum duties in relation to prescribed regions 36

(1) Every federal institution has the duty, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), to (

a) make available in both official languages to officers and employees of the institution (

i) services that are provided to officers and employees, including services that are provided to them as individuals and services that are centrally provided by the institution to support them in the performance of their duties, and

(ii) regularly and widely used work instruments produced by or on behalf of that or any other federal institution. [ 51 ] I will pause here to note that, although the OLA has been in effect for over 50 years, this is the first time that this Court has dealt with a case concerning the

interpretation of paragraph 36(1)(

a) and subsection 36(2). This is unsurprising, given the magnitude of the task for those who wish to litigate such cases before the courts. [ 52 ] Clearly, cases concerning language of work rights are possible only if employees who feel they have been wronged by their employer’s actions (or inaction) make a complaint to the Commissioner. I acknowledge the courage and perseverance that Mr. Dionne has shown throughout this process, first as a complainant to the Commissioner and later as an applicant before the Federal Court and now as an appellant before this Court. I think it is people like Mr.

Dionne who advance the state of the law in the area of language rights and, for that reason, I particularly commend his participation in the controversy concerning the

interpretation of

Part V of the OLA . In these circumstances, and given the subtleties of the arguments presented by Mr. Dionne and the other parties, I think it is important to consider the various

interpretations of paragraph 36(1) (

a) that have been submitted to us.

(1) Appellants’ arguments [ 53 ] From Mr. Dionne’s submissions, I essentially gather that he is seeking a certain balance. He is not seeking to have every specialist position in Toronto designated bilingual, nor that every potential interaction be conducted exclusively in French. Instead, he is arguing that it should be possible for certain verbal and written interactions between him and a Toronto specialist to be conducted in French, and that he should not be systematically required to interact in English. [ 54 ] Mr. Dionne submits that the support the specialists provide to the generalists’ work constitutes a “service” within the meaning of paragraph 36(1) (

a) of the OLA . Correctly interpreted, the word “service” designates any assistance required to enable the employees to perform the duties associated with their respective positions. According to Mr. Dionne, the Federal Court provided an excessively narrow

interpretation of the meaning of the word “service” in concluding that “the concept of providing a service and being a member of the [same] team are mutually exclusive” (Decision, at paragraph 220). He submits that such an

interpretation is contrary to the object of paragraph 36(1)(a), would lead to absurd outcomes and is not supported by the wording, context or relevant interpretive principles. According to Mr. Dionne, if any “complementary” support regularly provided within a “team” were excluded from the scope of paragraph 36(1) (a), that provision would presumably be stripped of its substance. [ 55 ] In accordance with the modern method of statutory

interpretation, Mr. Dionne argues that it is first necessary to define the ordinary and grammatical meaning of the word “service” and of the related phrases “services that are provided to them as individuals” and “services that are centrally provided.” In that regard, he submits that paragraph 36(1) (

a) applies to all “services” intended for employees of a federal institution. The “services that are provided to them as individuals” and “services that are centrally provided” thus constitute subcategories of a more general concept. Furthermore, Mr. Dionne sees the use of the word “including” in paragraph 36(1) (

a) as an indication that the specific types of services referred to in that provision do not limit the scope of the general word “service”. Mr. Dionne also notes that a common meaning emerges from the

definitions of “service” in both languages, namely that a service is an activity or a series of activities intended to assist or support another person, particularly by providing an advantage or performing

an act that will be helpful to that person. [ 56 ] Mr. Dionne then invites us to place the word “service” in its overall context, in the light of the objects of

section 36 and of

Part V and of the general scheme of the OLA . Mr. Dionne insists on the fundamental distinction made in

Part V between two types of regions: prescribed bilingual regions and non-prescribed regions. In the light of that distinction, the object of

section 36 is to guarantee that, in prescribed bilingual regions, the use of either official language within the public service will be considered a standard, and not an accommodation ( Beaulac , at paragraphs 20 and 24 ; Tailleur , at paragraph 44 ). As for the general scheme of the OLA , or, more specifically, of

Part V, Mr. Dionne submits that, in view of the combined effect of

section 34 and subsection 35(1), any bilingual employee working in a prescribed bilingual region has the right to a work environment that is conducive to the use of both official languages and that accommodates their use. That would quite logically imply: (

a) the right to work in the language of the employee’s choice; and (

b) the right to use either language in other work-related activities that are not directly associated with the performance of the employee’s duties. The minimum duties set out in paragraphs 36(1) (

a) to (c), intended to promote a “conducive” work environment, are said to relate to the former: employees have the right to work in the language of their choice. As for the duty of federal institutions to take additional measures “as can reasonably be taken” under subsection 36(2), it is intended to protect the right to use either language in other work-related activities. [ 57 ] Mr. Dionne also submits that, if the Federal Court’s

interpretation were to be accepted, it would follow that the provision is ambiguous because the

interpretation it offers is just as consistent with the wording and object of paragraph 36(1)(a). Consequently, he submits that his

interpretation is the one that ought to be accepted because it is the broadest

interpretation that is consistent with the wording and object of paragraph 36(1)(a) ( R. v. Stillman , 2019 SCC 40 , [2009] 3 S.C.R. 144, 436 D.L.R. (4th) 193, at paragraph 21 ;

Interpretation Act , R.S.C., 1985, c. I-21,

section 12 ). [ 58 ] The Commissioner submits that the Federal Court erred in interpreting

Part V in a manner that is inconsistent with its object and with Parliament’s intent. More specifically, the Federal Court should have considered qualitative criteria, including the specific context of the institution, how it is structured, its mandate and the nature of the service offered, when it interpreted the concept of “services that are centrally provided”, which is the type of service involved in this case.

On the contrary, the Federal Court interpreted those words in an ambiguous and arbitrary manner by holding that, to fall within the category of “services that are centrally provided”, a service must represent a “formal decision” by the federal institution (Decision, at paragraphs 248 and 258, item 3). [ 59 ] The Commissioner notes that when the English version is read in conjunction with the French version, the result is that the word “central” refers to a service that plays a central role for the institution because the decision to offer such a service was made at a central or relatively high level of its administration.

The Federal Court’s

interpretation would instead have the effect of introducing a new concept, that of the need for a “formal decision,” which is not defined and which remains ambiguous. [ 60 ] The Commissioner also submits that the Federal Court’s

interpretation of the words “services that are centrally provided” as

services provided “centrally” would lead to absurd results by excluding certain services that are important for employees and wouldenable federal institutions to evade their duties. [61] In this case, the Commissioner is of the view that occasional interactions or exchanges of information among employees do notin themselves constitute services that are centrally provided.

(2) Analysis of paragraph 36(1)(

a) of the OLA [62] The controversy therefore bears on the

interpretation of the phrase “services that are centrally provided” in paragraph 36(1)(a). Iwill thus examine the principles of statutory

interpretation, not with the intent of performing a de novo analysis, but rather to determinewhether the Federal Court’s

interpretation is consistent with the wording, context and object of the relevant provisions. As I stated above,I am of the view that the Federal Court erred in failing to examine the “entire context” by applying the interpretive principles that pertainto language rights, including the approach in Beaulac. [63] Before interpreting the relevant provisions of the OLA, I will make a few general remarks that apply to the entire analysis of theobject of the OLA and of Parliament’s intent. (

a) The object of the OLA [64] Pursuant to its

Preamble and

section 2, the object of the OLA is to ensure equality of status of French and English and equalrights and privileges as to their use in all federal institutions across Canada. The

Preamble of the OLA highlights the importanceof “enhancing the vitality and supporting the development of English and French linguistic minority communities, as an integral part ofthe two official language communities of Canada, [by] fostering full recognition and use of English and French in Canadian society.” [65] The Supreme Court confirmed that the object of the OLA is “ensuring respect for English and French as the official languages ofCanada and the equality of status and equal rights and privileges as to their use in all federal institutions” (Thibodeau, at paragraph 9).Furthermore, those rights have quasi-constitutional status (Lavigne, at paragraph 25). [66] Although this case does not involve the issue of communications with the public and the provision of services to the public underPart IV, this aspect must be kept in mind because it is employees of federal institutions who offer those services.

It is critical that theemployees receive adequate support and tools in their positions to offer those services to the public. Moreover, I am of the view that thereis a close connection between respect for the choice of the language of work and the quality of services that are offered to the public inboth languages. [67] In Schreiber v. Canada (1999), 69 C.R.R. (2d) 256, , [1999] F.C.J. No. 1576 (QL) (T.D.), [2000] 1 F.C. D-6(Schreiber FC), affd (2000), 267 N.R. 99, [2000] F.C.J.

No. 2053 (QL) (C.A.), Justice McGillis summarized the objectives of certainprovisions of Parts IV and V of the OLA, at paragraph 129 of her reasons. She correctly concluded that sections 35 and 36 “constitutelegislative recognition of the fact that right to work in either official language in a federal institution is illusory in the absence of anenvironment that respects the use of both official languages and encourages them to flourish.

The purpose of sections 35 and 36 istherefore to ensure that bilingual workplaces are fostered and developed in federal institutions.” [68] In my view, the object and spirit of the OLA make it clear that bilingual employees working in a prescribed bilingual region havethe right to adequate support and tools from their employer in their positions in order to be able to provide high-quality services to thepublic in both official languages.

This right is illusory in the absence of a work environment that respects the use of both officiallanguages and encourages them to flourish. [69] I will now examine Parliament’s intent when it enacted the OLA provisions in question, as expressed in 1988 during thedeliberations of the Legislative Committee on Bill C-72,

An Act respecting the status and use of the official languages of Canada, 33rdParl., 2nd Sess., 1988. With Bill C-72, the Official Languages Act, S.C. 1968-69, c. 54, underwent a substantial reform that waslegitimized by the constitutional provisions enshrined in 1982 (the Charter) and was inspired by the Meech Lake Accord of 1987.Among other things, that bill broadened the scope of the OLA, addressed the language of work (Part

V) and established a court remedy(Part X). (

b) Parliament’s intent [70] In proposing the adoption of Bill C-72 and the relevant provisions in this case, the Minister of Justice at the time, Ray J.Hnatyshyn, intended for the federal institution [translation] “to fulfill its language duties, one way or another”, given the institutionalnature of the duties involved. For example, if an employee is absent or is unable to provide the service in the required language, thefederal institution may hire translators or interpreters to provide the service in the required language.

It may also, in some cases, transferemployees or make use of language training to increase its bilingual staff (House of Commons, Minutes of Proceedings and Evidence ofthe Legislative Committee on Bill C-72,

An Act respecting the status and use of the official languages of Canada, 33rd Parl., 2nd Sess.,Issue No. 1 (March 17 and 22, 1988), at page 5 : 5). Moreover, employees have the right to choose to work in the official language oftheir choice, but this right [translation] “must be exercised in a reasonable manner” (emphasis added) (Proceedings of the Senate SpecialCommittee on Bill C-72, 33rd Parl., 2nd Sess., Issue No. 1 (July 19 and 20, 1988), at page 1 : 50 (Mr. Hnatyshyn)) (Proceedings of theSenate Special Committee). [71] The remarks of Mr. D.

Martin Low, Senior General Counsel, Human Rights Law Section, Department of Justice, are equallyrelevant: … It is important that we start with a clear appreciation of the rights that are being conferred through this provision. The right conferredon the individual employee is that to use either official language, in accordance with

Part V of the legislation, and

Part V sets out anumber of institutional obligations, which obligations will establish the highest common standard within a particular institution tomaximize the employee’s ability to use the language of his or her choice.

All of that comes together in this concept, imposing a duty on federal institutions to ensure that the work environment of the institution is conducive to the effective use of both official languages and such that it accommodates the us[e] of either official language by individual employees of the institution. That is set out in Clause 35(1)(a). Obviously, those words are carefully chosen .

As well, they are words that are intended to make this right workable, in that they would preclude an individual taking such a rigorous and inflexible position as to his/her entitlement that he/she is able to tie up the work of an institution that is attempting, in a pragmatic way, to make the work environment one in which employees of both language groups are comfortable. It is not possible to set that out by way of a precise rule that is applicable to every work environment of every federal institution. Government institutions are variable, as are those who are employed in them.

The essence of these provisions is to require federal institutions to think in a way that is intended to maximize the opportunities for individuals to work in the language of their choice, without imposing upon those institutions rigorous and inflexible demands such that the administration of the institution itself is adversely impacted. [Emphasis added.] (Proceedings of the Senate Special Committee, at page 1 : 51.) [ 72 ] From these excerpts of the Parliamentary debates, I understand that Parliament’s intent was, as least partially, to recognize a right to work in the official language of one’s choice that is not absolute and that employees must exercise in a reasonable manner.

However, a nuance must be made. A federal institution in a bilingual region must maximize the opportunities for employees to use the language of their choice. It has the duty to ensure that the work environment is conducive to the effective use of both official languages and accommodates the use of either official language by its employees.

Under these circumstances, I consider Parliament’s overall intent to maximize the opportunity for employees working in a prescribed bilingual region to be able to use the language of their choice at work, as is their right, provided that this right is exercised in a reasonable manner. [ 73 ] In the light of the object of the OLA and Parliament’s intent, I will now examine the wording of paragraph 36(1)(a). (

c) The ordinary and grammatical meaning of the words “services that are centrally provided” [ 74 ] Paragraph 36(1) (

a) of the OLA applies to all “services” intended for the employees of a federal institution. The word “service” is not defined in the OLA . Paragraph 36(1) (

a) sets out certain minimum duties that federal institutions must fulfill in prescribed bilingual regions. Among the services that must be made available to employees in both official languages under that paragraph, Parliament includes services provided to them “as individuals” and “services that are centrally provided”. The circumstances of this case relate only to services that are centrally provided. [ 75 ] As to the

definitions of the notion of “service”, French-language dictionaries generally offer two meanings: one related to an organized administrative function and the other to a more individual relationship. The same is true in English, hence, there is no reason to find that there is any discrepancy between the French and English versions of paragraph 36(1) (a). I would be inclined to apply an

interpretation of the word “service” that refers to a common function organized within an administrative body. I consider such an

interpretation to be suited to the context of subsection 36(1) of the OLA , which is a context of institutional and structured work, that of the public service. [ 76 ] While the French version of paragraph 36(1) (

a) describes these services as “ auxiliaires centraux ”, the English version refers to services “centrally provided by the institution to support [its employees] in the performance of their duties”. The French word “ auxiliaires ” corresponds in the English version to the phrase “to support them in the performance of their duties”, and the word “ centraux ” is expressed in the English version by the phrase “centrally provided”. Therefore, there is no discrepancy between the two versions. [ 77 ] The word “ auxiliaires ” and the phrase “to support them in the performance of their duties” in paragraph 36(1)(

a) refer to the services the institution provides to employees to assist or support them in the performance of their duties. I accept the Federal Court’s conclusion to that effect (Decision, at paragraph 205). [ 78 ] The respondent submits that to determine whether a service is “centrally provided”, meaning that it is made available to all or a majority of the employees of an institution, the services in question must be analyzed.

It submits, indeed correctly, that the Federal Court erred in concluding that “services centrally provided” comprise services provided for the purpose of assisting or essentially supporting the performance of the employee’s duties that have been provided for by a “formal designation of senior management of the institution” (Decision, at paragraph 258, item 3). [ 79 ] I also accept the Commissioner’s submission that the Federal Court’s

interpretation of the words “services centrally provided” as requiring a formal decision by the institution is ambiguous and arbitrary. The formal decision criterion unduly restricts the scope of paragraph 36(1) (

a) of the OLA . The Federal Court’s addition of the “formal decision” criterion, at paragraphs 248 and 258 (item 3) of the Decision shifts the controversy as to whether services are centrally provided and arbitrarily restricts the scope of paragraph 36(1) (

a) in a manner contrary to the necessary broad, liberal and purposive

interpretation. [ 80 ] This formalistic

interpretation is also inconsistent with the guiding principle of substantive equality that applies to language rights. On the contrary, I am of the view that the Court must consider qualitative factors, such as the specific context of the institution, how it is structured, its mandate and the nature of the service offered in order to examine these services.

Therefore, to determine whether a service is “centrally provided”, meaning that it is made available to all or a majority of the employees of an institution, the services in question must be analyzed. [ 81 ] I also accept the Commissioner’s submission that, given the wording of paragraph 36(1) (a), the words “services that are centrally provided” may be defined as services that assist employees in performing their duties and that play a central role for the institution, in the sense that it decided at a central or relatively high level of its administration to offer this service to its employees.

[ 82 ] I am of the view that an

interpretation of the notion of “services that are centrally provided” must also take into account qualitative factors, such as the specific context of the institution, how it is structured, its mandate and the nature of the service offered, while it must be ensured that bilingual employees working in a prescribed bilingual region are adequately supported by the services made available to them and are equipped by their employer in their positions in order to be able to provide high-quality services to the public in both official languages. [ 83 ] This approach is flexible enough to enable federal institutions to adapt to changing circumstances, while complying with the limits established by paragraph 36(1)(a).

Thus, this

interpretation is more consistent with the wording and the spirit of the OLA . [ 84 ] I will pause here to note that a Treasury Board Secretariat Policy on Language of Work in effect from 2004 to 2011 provided a non-exhaustive list of examples of “central services” and “personal services.” Although that policy is no longer in effect, it provides examples that are relevant for our purposes (Treasury Board of Canada Secretariat, Policy on Language of Work , rescinded on November 19, 2012, online: https://www.tbs-sct.canada.ca/pol/doc-eng.aspx?id=12520 ) .

Among others, some examples of central services that remain relevant are administrative services; computer services; library, archival and information/communications services; materiel management services; security services and translation services. [ 85 ] I note that these examples support my finding that the federal institution specifically structured the offering of centrally provided services to support or equip employees in the performance of their duties. [ 86 ] Moreover, at the time of the complaint, the Treasury Board of Canada Secretariat had a Policy on Language of Work in effect (appeal book, Vol.

IV, affidavit of Natalie Harrington sworn on February 17, 2016, Exhibit F, page 982). That policy stipulated that, for interregional communications, an institution located in a prescribed bilingual region must communicate in the official language of the unilingual region for which the communication is intended. [ 87 ] With the interpretive principles in mind, and following the ordinary and grammatical meaning of the words used in paragraph 36(1) (

a) to ensure that they are consistent with the scheme and object of the OLA , while respecting Parliament’s intent and applying the principles set out in Beaulac , I arrive at the conclusion that the “services that are centrally provided” referred to in paragraph 36(1) (a): A. Are those that serve a common function and are provided in an organized manner within an administrative body by the federal institution in a prescribed bilingual region; B. Are made available to the majority of employees by the federal institution; C.

Are provided by employees to provide auxiliary support to other employees of the institution in the performance of their duties; D. Do not include all forms of assistance required to enable employees to perform the duties associated with their positions—employees must exercise their right to use the official language of their choice in a reasonable manner; and E. Exclude occasional interactions or exchanges of information among employees on the same work team.

Rather, those interactions are examples of interregional communications as provided for in the aforementioned language of work policy. [ 88 ] In this case, the exchanges among generalists and specialists take place within the work team. The generalist determines the overall risk code of the financial institution based on the advice or assessment of the specialist (appeal book, Vol. V, cross-examination of Natalie Harrington, page 1251; Decision, at paragraph 42). The work of the specialists does not “support” or “equip” the generalists in their work.

Instead, the generalists and specialists work together on shared files to serve the same clientele (financial institutions). [ 89 ] For the above reasons, notwithstanding the Federal Court’s error in failing to follow the principles set out in Beaulac , I arrive at the same conclusion. In this case, the employees who collaborate to carry out an institution’s mandate and are part of a team do not provide a service. The specialists do not provide “services” to the generalists within the meaning of paragraph 36(1)(a).

Thus, the Federal Court did not err when it arrived at this mixed conclusion of fact and law. [ 90 ] I will now examine subsection 36(2) of the OLA . C. Did the Federal Court err in holding that subsection 36(2) of the OLA does not impose a duty on the respondent to ensure that the specialists’ support is available in both official languages in prescribed bilingual regions? [ 91 ] It is relevant to reproduce subsection 36(2) of the OLA : 36 …. Additional duties in prescribed regions

(2) Every federal institution has the duty to ensure that, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), such measures are taken in addition to those required under subsection (1) as can reasonably be taken to establish and maintain work environments of the institution that are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees.

(1) Submissions of the parties [ 92 ] Mr. Dionne submits that even if this Court were to decide that the word “service” excludes the support provided by the specialists, it should still hold that the respondent has a duty under subsection 36(2) to make the specialists’ support available in both official languages in prescribed bilingual regions. [ 93 ] The Commissioner submits that the Federal Court’s

interpretation of subsection 36(2) does not reflect the institutional nature of the duties set out in that provision and the standard of substantive equality established in Beaulac . It should be noted that the Court

rejected the

interpretation that was applied in Tailleur and instead held that the Parliamentary intent behind that provision was for “bilingual employees to accommodate unilingual employees to some degree” (Decision, at paragraphs 24, 265, 348–350 and 562). [ 94 ] In its memorandum and oral submissions, the intervener invites us to endorse the analytical framework in Tailleur , but suggests restricting its scope with additional criteria. According to the intervener, in addition to the factors listed in Tailleur , a measure will also be unreasonable if: (

a) the measure is out of proportion with its overall effect on the objective

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