Federal Court of Appeal Decisions

                                                                                                                                  Date: 20040722

                                                                                                                               Docket: A-467-03

Citation: 2004 FCA 263

CORAM:        CHIEF JUSTICE RICHARD

DÉCARY J.A.

NOËL J.A.

BETWEEN:

THE CANADIAN FOOD INSPECTION AGENCY

Appellant

and

LE FORUM DES MAIRES DE LA PÉNINSULE ACADIENNE

Respondent

and

THE COMMISSIONER OF OFFICIAL LANGUAGES

Intervener

and

LA SOCIÉTÉ DES ACADIENS ET ACADIENNES DU

NOUVEAU-BRUNSWICK INC.

Intervener

Hearing held at Fredericton, New Brunswick, on June 14, 2004.

Judgment delivered at Ottawa, Ontario, on July 22, 2004.

REASONS FOR JUDGMENT:                                                                                      DÉCARY J.A.

CONCURRING:                                                                                                          RICHARD C.J.

                                                                                                                                           NOËL J.A.

Date: 20040722

                                                                                                                               Docket: A-467-03

Citation: 2004 FCA 263

CORAM:        CHIEF JUSTICE RICHARD

DÉCARY J.A.

NOËL J.A.

BETWEEN:

THE CANADIAN FOOD INSPECTION AGENCY

Appellant

and

LE FORUM DES MAIRES DE LA PÉNINSULE ACADIENNE

Respondent

and

THE COMMISSIONER OF OFFICIAL LANGUAGES

Intervener

and

LA SOCIÉTÉ DES ACADIENS ET ACADIENNES DU

NOUVEAU-BRUNSWICK INC.

Intervener

REASONS FOR JUDGMENT

DÉCARY J.A.

[1]         Subsection 58(2) of the Official Languages Act (the Act) allows any "group" to bring a complaint before the Commissioner of Official Languages (the Commissioner). Relying on this provision, the Forum des maires de la péninsule acadienne (the Forum or respondent), in October 1999, complained to the Commissioner that an administrative reorganization in New Brunswick by the Canadian Food Inspection Agency (the Agency) had been carried out to the detriment of the Francophone areas in the north of the Province. The Forum specifically criticized the Agency for transferring four inspectors from the Shippagan office, in the Acadian peninsula, to the Shediac office located in the southeastern portion of the Province, assigning the supervision of the food inspection office for the Acadian peninsula to a unilingual Anglophone manager in the Blacks Harbour office and having constantly, since the early 1990s, reduced the number of employees in the Shippagan inspection division. The Forum argued that the decisions made by the Agency had an impact not only on the service to the public and the Agency's ability to comply with the right of the employees in the Shippagan office to work in French, but also on the economy of the region. The Forum also contended that the Agency's decisions reflected a trend toward the gradual erosion of the existing services that had developed in the region (A.B. vol. 1, p. 46).

[2]         The Commissioner investigated and, in July 2001, published an "Investigation Report on a Complaint Concerning the Canadian Food Inspection Agency's Reorganization of its Office in Shippagan, New Brunswick" (the first report), from which I reproduce sections V ("Conclusions and Recommendations"), VI ("Comments from the Agency"), VII ("Commissioner's Reaction"), VIII ("Comments from the Complainants") and IX ("Commissioner's Reaction"):

V              CONCLUSIONS AND RECOMMENDATIONS

Our investigation allowed us to confirm the facts concerning the transfer of four employees and responsibility for inspection operations from the Shippagan office. We did not dwell on whether, from an administrative point of view, the Agency made the best decisions under the circumstances. In general, however, one could argue that there has been a constant reduction in the staff of the Shippagan inspection office, under both Fisheries and Oceans Canada and the Agency, and that the Agency's recent decisions were made without consulting the official language minority community.

Based on our investigation, we conclude that the Agency's decisions did not allow it to fully meet its obligations under Part IV of the OLA (services to the public). It may well be that the problems related to the delivery of services to the public predate the staff reductions at the Shippagan office and the change in the reporting relationship to the Blacks Harbour office. If that is the case, then the Agency's recent decisions have not remedied the situation.

In addition, the requirements of Part VII of the OLA (commitment to enhance the vitality of the English and French linguistic minority communities in Canada and support their development) were ignored, Given the regional context and specific history of the Acadian peninsula, we feel that Part VII of the OLA, at the very least, created an obligation for the Agency to consult the official language minority community before it made the decisions that it did.

The Agency's decisions resulted in the disappearance of four federal government jobs from the Acadian peninsula, four well-paying, indeterminate-seasonal positions. We feel that the Agency's decisions were counter-productive. The two studies referred to in this report do not simply describe the situation. They also suggest possible solutions. One of these solutions is for the Acadian peninsula to attempt to diversify its economic base; government jobs are, at least in part the response to such diversification. The Gaudet report refers to the importance of the government sector in these terms: "[translation] the occupational areas in health and social services, lodging and food services, and government services could play a larger role in the employment structure in the Acadian peninsula and would create a greater balance and, thereby, make employment in the region more stable."

The region's official language minority community believes that the Agency's decisions have serious consequences because, taken with other, previous decisions, they serve to weaken the local economic structure. These previous decisions include the closing of the Fisheries and Oceans microbiology laboratory in Shippagan, the constant reduction in the number of employees in the Shippagan office during the 1990s, the loss of Shippagan's status as a district office, the unemployment insurance reform and, in general, the on-going reduction in government jobs in rural regions.

The Gaudet report puts it in these terms: "[translation] At the beginning of the decade, [...] more and more seasonal jobs and permanent jobs, once seen as an indicator of economic growth and health, were disappearing. The Acadian peninsula, among others, lost a number of stable, well-paying jobs in sectors such as health care, education, processing-plant management and sales. Obviously, the loss of government jobs at the same time as those in the fishery sector, had serious consequences for the communities." (Emphasis added)

Given the conclusions we reached during our investigation, the Commissioner recommends that the Canadian Food Inspection Agency, within six months following the publication of this report:

1.              review the delivery of inspection services in the Acadian peninsula to ensure they are offered and made available in both official languages, in accordance with the requirements of Part IV of the Official Languages Act (OLA);

2.              ensure that all decisions regarding the delivery of these services support the development of the Francophone community and the recognition and use of French to the full extent of its mandate, in accordance with Part VII of the OLA;

3.              revise its national Official Languages Policy to take account of the government's commitment as set out in Part VII of the OLA.

VI            COMMENTS FROM THE AGENCY

From the outset, the Agency said that it agreed with the recommendations made in the preliminary report and it intended to take the necessary measures to comply with the provisions of Part VII of the OLA.

In the section pertaining to the amalgamation of inspection services, the Agency would have liked us to present the staff cuts at Fisheries and Oceans Canada during the 1990s in the context of that period, that is, at a time when the federal government had begun a major staff reduction exercise throughout the federal administration, which was felt not only at Fisheries and Oceans Canada, but in all federal institutions throughout the country.

Moreover, the Agency does not agree with the position stated in the report that the decision to transfer employees was based primarily on an analysis of one activity sector, namely, inspection in the fisheries sector. The Agency maintains that the other inspection sectors were considered before the employees being transferred raised this point. The Agency also maintains that, contrary to the opinion stated in the report, there was some consultation with representatives of the official language community and with the Forum des Maires de la péninsule acadienne, because the Agency received no fewer than 15 pieces of correspondence from various organizations (municipalities, chambers of commerce, businesses) from April to August 1999, all expressing their concerns about its decisions affecting the Shippagan office.

As regards service to the public, the Agency insists that in spite of the reduction in the number of inspectors at the Shippagan office, it is still fully able to provide services in both official languages through the five inspectors who still work there. These inspectors have divided up the work that had been done by the indeterminate seasonal employees whose positions were cut.

As to the implementation of the recommendation pertaining to Part VII of the OLA, the Agency would like to obtain clarification on how to comply with this part of the OLA. It also questions whether this recommendation is applicable to all future decisions or whether it applies also to the decision that was the subject of this investigation report.

VII          COMMISSIONER'S REACTION

It is true, as the Agency stated, that the federal government undertook a major budget reduction and downsizing exercise in the federal administration in the 1990s. However, the objective of our report was not to present in detail the impact of these cuts on the government as a whole. Our objective was above all to highlight how these cuts affected the particular office that was the subject of this complaint.

We maintain our finding that the Agency's decision was based primarily on an analysis of one activity sector, inspection in the fisheries sector.

According to the documentation at our disposal, it appeared that the cost-benefit analysis of other inspection sectors was made after the decision to relocate employees.

We also maintain our finding concerning the lack of consultation when the Agency made the decision. The fact that the Agency received several letters from various groups (municipalities, chambers of commerce, businesses) does not in our view constitute a consultation process because there was no discussion or exchange with the signatories of these letters before the decision was made.

As regards service to the public, the report sought to highlight the fact that some of the Agency's inspection services in the Acadian peninsula were provided by unilingual Anglophone employees regardless of the linguistic preference of the users of these services. The fact that the Shippagan office still exists and has five bilingual inspectors on staff does not in any way alter this situation, since some inspection services are provided by employees outside this office. We considered it important to point out that the assignment of inspection services amongst employees may have resulted in shortcomings with regard to service to the public, prior to the relocation of the . employees from the Shippagan office.

Finally, as to the implementation of Section 41 of the OLA, we would be pleased to contribute as much as possible to the development of the Agency's action plan and representatives from the Office of the Commissioner are available to meet with the Agency's officials in this regard at a suitable time.

VIII         COMMENTS FROM THE COMPLAINANTS

The complainants maintain that the investigation addressed the issues and that they are well covered in the report. They note that some aspects of the report could have been more descriptive in order to provide further insight.

With regard to the amalgamation of inspection services, the complainants defend the view that the North of the province is at a disadvantage as compared to the South in terms of the number of employees and quality of service. They state that the office in Shippagan is the one with the longest coast to be inspected, that it is in a region with the highest concentration of fishing operations and that it is the region with the greatest number of fishermen and aquaculturists in ' New Brunswick. This office nevertheless has the fewest number of employees.

As regards the restructuring of the Agency, the complainants question the Agency's decision to cut the number of employees at the Shippagan office primarily on the basis of a review of activities and the decline in the fisheries sector. They maintain that this decline occurred not only in northern New Brunswick, but throughout the Maritimes and the Gaspé area. In their opinion, this argument does not justify a staff cut in Shippagan, especially since the fisheries industry has experienced significant growth in the Acadian peninsula since 1997. They also add that the Agency underestimated the importance of inspection work done in all other sectors of industrial activity in the region. They state that the peat moss industry in the northern part of the province represents 80% of provincial production, not to mention an unprecedented boom in the agri-food sector. The complainants also believe that the costs billed to service users give users the right to state their views and to examine the restructuring decisions affecting them. Lastly, they question why the restructuring exercise affected the Shippagan office only.

As to the institution's obligations regarding language of service, the complainants question why the Shippagan office should report to the Blacks Harbour office, the office that is the farthest away from the Acadian peninsula. They also note that it is unacceptable that the Acadian peninsula should receive inspection services from unilingual Anglophone inspectors, which forces people on the peninsula to use English.

In conclusion the complainants stated that the recommendations were too vague and therefore could easily be circumvented.

IX            COMMISSIONER'S REACTION

The complainants' comments show that they would have liked the report to stress more clearly the potential disparities resulting from the way the Agency's services are offered in the various parts of New Brunswick, and from the location of Agency offices and staffing levels in this province. While their views are highly relevant, we did not pursue the investigation along the lines of the concerns the complainants expressed when they filed their complaint. For one thing, this would not in any way have altered our conclusions and, moreover, it would have meant delving into administrative considerations.

The investigation was essentially designed to allow us to determine whether the Agency had met its commitments under Part VII of the OLA in its decisions. We concluded that it had not. Since the Agency agreed with this conclusion, it must now comply with the scope of Part VII. The complainants' comments and the content of our investigation report will no doubt be useful to the Agency in devising its action plan, which will obviously be developed in order to meet the commitments set out in Part VII of the OLA.

As to the recommendations themselves, the requirements of the OLA must not be confused with the right of managers to manage federal institutions. It is difficult for us to enter into greater detail in our recommendations without becoming involved in administrative decision-making. Using the explanations and the report presented, the Canadian Food Inspection Agency must now develop solutions that will allow it to comply with the recommendations made in this investigation report We will conduct a follow-up at a later date to determine the extent to which they have been implemented.

[A.B. vol. 1, pp. 53-60]

[3]         On September 28, 2001, the Forum filed in the Federal Court "[translation] an application under section 77 of the Official Languages Act" (A.B. vol. 1, p. 39).

[4]         The purpose of the application was the following:

[translation]

(a)            The reestablishment in the town of Shippagan, New Brunswick, of the seasonal inspectors positions transferred by the respondent to the town of Shediac, New Brunswick, in the fall of 1999;

(b)            That the four individuals affected by this transfer may be reinstated in their positions in the town of Shippagan if they so desire, with the same conditions they would have had were it not for the transfer;

[A.B. vol. 1, p. 41]

[5]         The grounds of the application were as follows:

[translation]

(a)            The transfer in question was made without taking into account the applicant's obligations under Part IV of the Official Languages Act;

(b)            The respondent is not complying in the Acadian Peninsula with its obligations under Part IV of the Official Languages Act;

(c)            The transfer in question represents an unlawful exercise of the respondent's discretion.

[A.B. vol. 1, p. 41]

[6]         The hearing on the application in the Federal Court was to begin on January 7, 2003. It was adjourned to March 24, 2003, in the following words:

[translation]

In view of the provisions of section 77(4) of the Official Languages Act;

In view of the fact that the Court does not have at hand all of the necessary particulars and that it is in the interest of Justice and the parties that the evolution of the case since the initial decision of the respondent that is the subject matter of this application for judicial review be examined closely;

In view of the consent of the parties;

THE COURT ORDERS:

(1)            that the hearing be adjourned to March 24, 2003, at 11:00 a.m. (Ottawa time); the parties will be heard by conference call from Ottawa.

(2)            that the parties have agreed to meet by March 24, 2003 to assess the progress achieved, if any, and to contemplate the remedies they consider appropriate and just, where applicable; and to examine the need to present any additional evidence in a later hearing that is set down for May 14, 2003 at 9:30 a.m. at Fredericton, New Brunswick, to conclude the hearing.

[A.B. Vol. 2, pp. 415-16]

[7]         In March 2003, the Commissioner published a "follow-up report" (the follow-up report) that she sent to the parties for their comments. In relation to her first recommendation, the one that interests us, she concluded as follows:

Our investigation revealed that the Agency did not always respect the language preference of its clients. Some inspection services were provided in the area served by the Shippagan office by unilingual Anglophone inspectors, with no regard for the language preference of those using these services. On the other hand, clients who wished to be served in French sometimes had to speak in English when calling certain Agency offices other than at Shippagan. We saw for ourselves during the investigation the absence of service in French at the Blacks Harbour office. In order. to remedy the situation, the Agency essentially took action in two areas: job training and language training.

The Agency developed a job training plan for its inspectors at the Shippagan office, with the objective of ensuring that all inspection services in the region could be provided in the future by staff at this office. This training plan was intended to ensure that Shippagan staff was certified to conduct inspection activities it was not authorized to do at the time of our investigation, in order to avoid having to call upon unilingual Anglophone inspectors from other regions. In February 2003 the training was complete, except for one person, and certain certification examinations were scheduled for June. The Agency assured us in any case that, in the meantime, staff at the Shippagan office could conduct the necessary inspections in its territory, except that the inspections would be supervised by certified staff from other regions. Checks with recipients of Agency services tend to show that the situation with respect to services in French for the region served by the Shippagan office has not been completely corrected. We hope that services in French will be adequate when the necessary certifications for staff at the Shippagan office and language training of staff at Blacks Harbour are complete.

Only one type of inspection will continue to be provided by staff from outside the Shippagan territory: inspection of seed potato fields. These inspections will continue to be conducted by a bilingual inspector from Grand-Sault, given the low demand for this type of service and the complex training required.

With respect to language training, the Agency has developed a training plan for the Director and the Administrative Assistant at the Blacks Harbour office so that this office can eventually provide services in French. At the time our preliminary report was issued, the Agency was sti11 unable to guarantee that this office could provide services in French. Therefore, telephone calls that inspectors at the Shippagan office are unable to take are transferred to the Fredericton office. This administrative measure will be in place until at least September 2003, since the language training plan presented does not provide for the office manager to reach Level C in French-language proficiency before this date.

Although we could conclude that the Agency has taken positive measures to correct the lack of service in French at the Blacks Harbour office, we must admit that it is taking a long time to remedy the situation.

The Agency has also informed us that it intends to consult its clients served by the Shippagan office in order to measure client satisfaction with respect to service delivery in the language of their choice. This consultation should take place in March 2003. We believe this is an excellent initiative that will allow the Agency to refocus its efforts, if necessary, if it notices certain deficiencies in this area.

In summary, by training its staff at the Shippagan office to conduct practically all the inspection services in its territory, the Agency will have remedied one part of the deficiencies we observed with respect to the delivery of services in French. Nonetheless, the Agency has not taken the required measures in the appropriate time frames to address the lack of service provided in French at the Blacks Harbour office.

Extent to which recommendation 1 has been implemented: partially implemented.

[A.B. vol. 2, pp. 472-73]

Her general conclusion was as follows:

The Commissioner has come to the conclusion that the Agency has made progress in implementing her recommendations, but none of them have been implemented in a fully satisfactory manner.

As for the first recommendation pertaining to service to the public, the Agency has reacted too slowly in implementing it. We feel that the Agency has had enough time since the final report was issued to fully correct the situation.

[A.B. vol. 2, p. 476]

[8]         On March 24, 2003, the Court granted a new adjournment:

[translation]

The parties were heard in a conference call on March 24, 2003, at 11:00 a.m. The parties reported to the Court on the progress in the case.

Pursuant to the order of adjournment made on January 7, 2003, the parties were unable to submit to the Court the remedies that they consider appropriate and just in this case.

The parties agreed that it was necessary to present additional evidence, which can be argued at a later hearing.

It appears that the Commissioner of Official Languages has issued an interim follow-up report and that each of the parties is to reply to it.

The parties submitted to the Court that the date of May 14, 2003 was somewhat premature in view of the circumstances.

IN VIEW OF the consent of the parties:

THE COURT ORDERS THAT:

1.              The hearing be adjourned to May 26, 2003, at 5:00 p.m. Atlantic time;

2.              The parties will be heard by conference call from Vancouver;

3.              Meanwhile, the parties will exchange supplementary affidavit evidence and proceed with examinations on affidavits, if necessary, by May 14, 2003;

4.              The parties will continue their discussions between now and May 26, 2003, to assess the progress made, where applicable, and contemplate the remedies they consider appropriate and just in the circumstances.

5.              In any event, a later hearing is set down for June 25, 2003, at 9:30 a.m., at Fredericton, New Brunswick, to complete and conclude the hearing.

[A.B. vol. 2, pp. 417-19]

[9]         In May 2003, the Commissioner published a "final follow-up report". She summarizes as follows the comments issued by the Forum:

The representative of the Forum des maires de la peninsula acadienne said, he was generally satisfied with the content of the report, except that in some respects, he would like to have seen us take a stronger position.

From the complainants' point of view, in order to truly satisfy the requirements of section 41 of the official Languages Act, the Shippagan office should be under the responsibility of an office that is more able to provide services in French than the Blacks Harbour office and should even be granted greater autonomy. They are rather unimpressed with the initiatives cited by the Agency as evidence of its implementation of Part VII of the Official Languages Act. In short, the Forum des maires wishes to see the Agency step back and reconsider its decision to restructure the Shippagan office.

[A.B. vol. 2, p. 517]

and answers in the following way:

In reaction to the complainants' statements, we must restate the position presented in the investigation report of July 2001 that the requirements of the Official Languages Act must not be confused. with the right of management held by federal institutions, It was our responsibility to determine whether or not the recommendations had been implemented. The Agency, like other federal institutions, must come up with its own solutions to implement our recommendations.

[A.B. vol. 2, p. 518]

[10]       On May 26, a new adjournment was allowed:

[translation]

The parties were heard in a conference call on May 26, 2003 at 5:00 p.m. (Fredericton time). The parties reported to the Court on the progress in the case.

The parties filed in the Court some supplementary affidavits on both sides, and filed the preliminary report and the final follow-up report by the Commissioner of Official Languages.

The parties agree that it is hard to spell out by common agreement the remedies they consider appropriate and just in the circumstances;

IN VIEW OF the progress on the case;

THE COURT ORDERS THAT:

1.              The hearing be adjourned to June 25, 2003, at 9:30 a.m. at Fredericton, New Brunswick, to complete and conclude the hearing.

[A.B. vol. 2, pp. 518-19]

[11]       The parties failed to agree on the nature of the remedial measures and on June 25, 2003, the case was reserved for decision.

[12]       Judgment was rendered on September 8, 2003. The Federal Court allowed the application ([2004] 1 F.C.R. 136) and ordered as follows:

[1]        This application for judicial review is allowed;

[2]        The decision to transfer the positions of four seasonal workers from Shippagan to Shediac is set aside;

[3]        In accordance with the powers to grant the relief that is considered appropriate and just in the circumstances, under subsection 77(4) of the OLA;

THE COURT ORDERS THAT:

1.         The respondent restore the positions of the four inspectors in the Shippagan office;

2.         The respondent ensure that the conclusions of the Commissioner in the Report, dated March 2003, be implemented, and particularly recommendations 1 and 2;

3.         The provision of French-language services for the region serviced by the Shippagan office be ensured;

4.          The necessary staff accreditations in the Shippagan office and the language training of the Blacks Harbour staff be completed within no more than 12 months of this order;

5.         The commitments made by the respondent in its proposed action plan, to undertake a series of consultations in the Acadian peninsula with a wide range of members of the minority official language community, be implemented and achieved within no more than 12 months of this order;

6.         With costs to the applicant.

[A.B. vol. 1, pp. 23-25]

[13]       This is an appeal from that decision. Although the rescinding of the decision to transfer the positions to Shediac is not literally part of the "relief" ordered by the judge, I do not think it can be considered to be anything other than a form of relief and that is how I will deal with it in these reasons.

Relevant statutory provisions

[14]       At issue is the nature and scope of the "court remedy" provided in Part X of the Act (sections 76 to 81), whether Part VII is declaratory or legally enforceable and how the different parts of the Act interact with each other. And it will be useful to keep in mind, first, the structure of the Act:

Preamble

Short title (s. 1)

Purpose of Act (s. 2)

Interpretation (s. 3)

Part I - Proceedings of Parliament (s. 4)

Part II - Legislative and Other Instruments (ss. 5 to 13)

Part III - Administration of Justice (ss. 14 to 20)

Part IV - Communications with and Services to the Public (ss. 21 to 33)

Part V - Language of Work (ss. 34 to 38)

Part VI - Participation of English-speaking and French-speaking Canadians (ss. 39 and 40)

Part VII - Advancement of English and French (ss. 41 to 45)

Part VIII - Responsibilities and Duties of Treasury Board in Relation to the Official Languages of Canada (ss. 46 to 48)

Part IX - Commissioner of Official Languages (ss. 49 to 75)

Part X - Court Remedy (ss. 76 to 81)

Part XI - General (ss. 82 to 93)

and, second, certain provisions to which I will refer:

The nature of the section 77 remedy

[15]       The judge more than once characterized the proceeding filed by the Forum as an "application for judicial review under section 18.1 of the Federal Court Act". That is an error. Subsection 77(2) provides for "an application" (referred to as a "recours" in the French text), and it is "[translation] an application [demande] under section 77 of the Official Languages Act" that the Forum had filed. This proceeding is not an application for judicial review, although it is governed procedurally by the rules applicable to applications (see paragraph 300(b) of the Federal Court Rules, 1998). This application is instead similar to an action.

[16]       The Commissioner, it is important to keep in mind, is not a tribunal. She does not, strictly speaking, render a decision; she receives complaints, she conducts an inquiry, and she makes a report that she may accompany with recommendations (subsections 63(1), 63(3)). If the federal institution in question does not implement the report or the recommendations, the Commissioner may lodge a complaint with the Governor in Council (subsection 65(1)) and, if the latter does not take action either, the Commissioner may lodge a complaint with Parliament (subsection 65(3)). The remedy, at that level, is political.

[17]       However, to ensure that the Official Languages Act has some teeth, that the rights or obligations it recognizes or imposes do not remain dead letters, and that the members of the official language minorities are not condemned to unceasing battles with no guarantees at the political level alone, Parliament has created a "remedy" in the Federal Court that the Commissioner herself (section 78) or the complainant (section 77) may use. This remedy, the scope of which I will examine later, is designed to verify the merits of the complaint, not the merits of the Commissioner's report (subsection 77(1)), and, where applicable, to secure relief that is appropriate and just in the circumstances (subsection 77(4)). The Commissioner's report is nevertheless the source or the pretext for the remedy or, to repeat the words of Madam Justice Desjardins in relation to the comparable report filed by the Information Commissioner, a "[translation] precondition to the exercise of the remedy" (Information Commissioner of Canada v. Canada (Minister of National Defence) (1999), 240 N.R. 244 (F.C.A.), at p. 255): the capacity as an "applicant" to the Court is derived from the capacity as a "complainant" to the Commissioner (subsection 77(1)) and it is the date of communication of the report that serves as the point of departure for the calculation of the time periods (subsection 77(2)). The "complainant", according to subsection 58(2), may be a "person" or a "group".

[18]       Thus we see that the remedy differs from an application for judicial review within the meaning of section 18.1 of the Federal Courts Act. It does not attack the "decision" of the federal institution as such. It may be undertaken by a person or a group, which may not be "directly affected by the matter in respect of which relief is sought" (see subsection 18.1(1) of the Federal Courts Act). The relief the applicant may be seeking is not limited to the remedies prescribed in subsection 18.1(3) of the Federal Courts Act, as the Court, by way of exception, has the discretion that it "considers appropriate and just in the circumstances" (s-s. 77(4)). New evidence is admissible (section 79). The matter is heard and determined in a summary manner (section 80).

[19]       There are some important implications to the fact that the remedy under Part X is basically similar to an action.

[20]       For example, the judge hears the matter de novo and is not limited to the evidence provided during the Commissioner's investigation. The remedy is constantly shifting in the sense that even if the merit of the complaint is determined as it existed at the time of the alleged breach, the remedy, if there is one that is appropriate and just, must be adapted to the circumstances that prevail at the time when the matter is adjudicated. The remedy will vary according to whether or not the breach continues.

[21]       Moreover, the Commissioner's reports are admissible in evidence, but they are not binding on the judge and may be contradicted like any other evidence. The explanation is obvious. The Commissioner conducts her inquiry in secret and her conclusions may be based on facts that the parties concerned by the complaint will not necessarily have been able to verify. Furthermore, for reasons that I will soon give, the purpose of the court remedy is more limited than the purpose of the Commissioner's inquiry and it may be that the Commissioner takes into account some considerations that the judge may not consider. Also, I agree with the decision of Mr. Justice Nadon, then in the Trial Division, in Rogers v. Canada (Department of National Defence) (2001), 201 F.T.R. 41, who held, after accepting in evidence the report of the Commissioner, that:

The conclusion that a breach of the Act has occurred, in any given case, must be reached after the judge has heard and weighed the evidence advanced by both parties.

[para. 40, note 8]

I note that in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, Gonthier J. emphasized that "In many significant respects, the mandates of the Commissioner of Official Languages and the Privacy Commissioner are in the nature of an ombudsman's role" (para. 37), that the Commissioners "follow an approach that distinguishes them from a court" and that their "unique mission is to resolve tension in an informal manner" (para. 38).

The scope of the remedy under subsection 77(1) of the Act

and whether section 41 of Part VII is declaratory or executory

[22]       The respondent and the interveners argue that section 41 of the Act, under which "The Government of Canada is committed to ... enhancing the vitality of the English and French linguistic minority communities in Canada...", gives the members of these minorities rights that are enforceable by the courts and that these rights, which are found, they say, in Part VII of the Act, are reviewable under subsection 77(1) even if they are not expressly referred to therein.

[23]       I will deal first with the scope of subsection 77(1).

[24]       In Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212 (C.A.), this Court held that a complaint filed pursuant to section 20 of the Act, which is found in Part III, was admissible not under subsection 77(1) of the Act, since it is not mentioned in Part III, but under subsection 77(5), which preserves "any right of action a person might have ...". The respondent and the interveners are basically asking us to reconsider the decision handed down in Devinat. But Devinat, in my opinion, was correctly decided.

[25]       The language of subsection 77(1) is clear and explicit. Parliament intended that only those complaints in respect of a right or duty under certain sections or parts of the Act could be the subject matter of the remedy under Part X. The suggestion by counsel for the Commissioner that a complaint need only be filed under some sections or parts of the Act listed in subsection 77(1) in order to set in motion a proceeding by the complainant in respect of any provision whatsoever of the Act cannot be adopted. Not only would Parliament have been using meaningless words when it went to the trouble to list certain sections and parts of the Act in subsection 77(1), but also, and perhaps above all, this list is completely compatible with Parliament's intention, clearly expressed elsewhere in the Act, to ensure that not every section or every part of the Act should enjoy the same status or the same protection in the courts.

[26]       Subsection 82(1) is particularly revealing in this regard, since it establishes the paramountcy of certain Parts only of the Act over any other Act of Parliament, and Part VII is not one of those Parts. Moreover, political accountability varies according to the parts of the Act that are at issue; the Treasury Board, for example, is responsible for the application of Parts IV, V and VI (see section 46) and the Minister of Canadian Heritage is responsible for the application of Part VII (see sections 42, 43 and 44). Under section 31, in the event of any inconsistency between Part IV and Part V, Part IV prevails to the extent of the inconsistency. Finally, section 91 of the Act provides that in particular staffing action, Parts IV and V of the Act do not apply in certain ways.

[27]       This asymmetry of the Act is easily explained when we note that it deals not only with policies and commitments but also with rights and duties. Subsection 77(1) is itself highly instructive in this regard, as it specifies that the complaints it covers are addressed not to the sections or parts of the Act in themselves, but to "a right or duty under" particular sections or parts. So Parliament has spoken with great care, so as to ensure that only those disputes in respect of particular rights or duties may be taken before the Court. This prudence is especially warranted in that the remedial authority conferred by subsection 77(4) is exceptional in scope and it is readily understandable that Parliament did not intend to give the courts the power to interfere in the area of policies and commitments that is not usually within their jurisdiction.

[28]       I thereby conclude that the remedy under section 77 is limited to complaints based on the sections and parts listed in subsection 77(1).

[29]       This leads me to address the other argument advanced by the respondent and the interveners, that section 41 creates a right or a duty that is enforceable by the courts, in which case, absent the remedy under subsection 77(1) and through the operation of subsection 77(5) as interpreted by Devinat, an application for judicial review could be brought under section 18.1 of the Federal Courts Act.

[30]       First, a word on Devinat. The section in dispute was section 20 of the Act, which imposes ("shall" in English, the present tense in French) the duty to publish a bilingual version of "[a]ny final decision, order or judgment, including any reasons given therefor, issued by any federal court". Since there was no doubt about the existence of a duty, the problem lay in whether there was a remedy. Section 41 does not contain any analogous language.

[31]       Second, a word about the fact that in this case the proceeding undertaken by the respondent was a remedy under subsection 77(4) and not an application for judicial review under section 18.1 of the Federal Courts Act, and the fact that in any case the proceeding was based only on Part IV of the Act and sought no remedy other than under Part IV. That, in principle, should suffice to dispose of this part of the litigation, as the judge was not dealing with an application for judicial review or an application based on Part VII of the Act.

[32]       However, counsel informed us at the hearing that in the Federal Court submissions were also made in relation to Part VII of the Act. Since the judge appears to have agreed, rightly or wrongly, to deal with a part of the application that he had before him that was addressed to Part IV of the Act as an application for judicial review in reference to a breach of Part VII of the Act, it is incumbent on me, I think, to do so as well. Having said that, it goes without saying that if this part of the application, which is supposedly an application for judicial review, were to be given leave and allowed - as it was by the judge - the remedy that the Court might grant would not be the one provided for in subsection 77(4) of the Act, but the more limited one provided for in section 18.1 of the Federal Courts Act.

[33]       Section 41 of the Act refers to a commitment by the federal government ("The Government of Canada is committed") that reproduces for all intents and purposes the seventh whereas in the preamble to the Act. The preamble, according to section 13 of the Interpretation Act, R.S.C. c. I-21, "shall be read as a part of the enactment intended to assist in explaining its purport and object" ("fait partie du texte et en constitue les motifs"). Section 41 likewise echoes, albeit not in identical language, the purpose defined in paragraph 2(b) of the Act.

[34]       Section 42 assigns to the Minister of Canadian Heritage the responsibility of encouraging and promoting "a coordinated approach to the implementation by federal institutions of the commitments set out in section 41". Paragraph 43(1)(a) gives the same Minister the responsibility to "take such measures as that Minister considers appropriate" to "enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development".

[35]       The obligations - as we see by the use of the word "shall" in the English text - are found therefore in sections 42 and 43; they are not found in section 41. And they are as general and vague as can be and are ill-adapted to the exercise of the judicial power.

[36]       It is also interesting to note that section 41, like the seventh whereas and like the purpose defined in paragraph 2(b) of the Act, uses terms that do not evoke the notion of a legal obligation, in contrast to those used in other sections, in the purpose defined in paragraph 2(a) ("ensure", "assurer") and in other whereases. And insofar as one can draw on a marginal note to interpret a statute (see Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002), at pp. 309-11), I note that the marginal note accompanying the English text of section 41 reads "Government policy".

[37]       It should also be noted that while the sections or parts of the Act mentioned in subsection 77(1) or subsection 82(1) refer to specific records, instruments or activities that are identified or identifiable (parliamentary debates, legislative instruments, court decisions, provision of services, language of work or staffing), the sections and parts that are not mentioned in those subsections (such as Part VI, "participation of English-speaking and French-speaking Canadians") and Part VII ("Advancement of English and French") are addressed instead to long-term objectives the achievement of which depends on the existence of a political will.

[38]       In short, the respondent and the interveners are asking that the Court amend section 41 of the Act and make mandatory what, on its face, is simply a policy commitment, and that the Court add to subsection 77(1) and section 82 the words "Part VII". This would do violence not only to the text of the Act but also to the express and implied intention of Parliament to exclude these areas from judicial intervention.

[39]       It is true that the protection of language rights constitutes a fundamental constitutional objective and requires particular vigilance on the part of the courts, and that the courts must generously construe the texts that confer these rights, but it is also necessary that these be rights to protect and not policies to define. The respondent and the interveners rely on numerous judgments of the Supreme Court of Canada (Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; R. v. Beaulac, [1999] 1 S.C.R. 768; Reference re Secession of Quebec, [1998] 2 S.C.R. 217) and of this Court (Devinat, supra, para. 24); Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.), and of the Ontario Court of Appeal (Lalonde v. Ontario (Health Services Restructuring Commission) (2001), 56 O.R. (3d) 577), to persuade us of the merits of the interpretation they propose of the Official Languages Act.

[40]       However, it is not because a statute is characterized as quasi-constitutional that the courts must make it say what it does not say, especially when the statute, as in this case, has been careful not to say it. As Mr. Justice Gonthier notes, in paragraph 25 of his reasons in Lavigne:

The Official Languages Act and the Privacy Act are closely linked to the values and rights set out in the Constitution, and this explains the quasi-constitutional status that this Court has recognized them as having. However, that status does not operate to alter the traditional approach to the interpretation of legislation, defined by E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87:

      Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The quasi-constitutional status of the Official Languages Act and the Privacy Act is one indicator to be considered in interpreting them, but it is not conclusive in itself. The only effect of this Court's use of the expression "quasi-constitutional" to describe these two Acts is to recognize their special purpose.

[Underlining added]

[41]       Furthermore, when Mr. Justice Bastarache held, in Beaulac, that

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada...

[para. 25]

[Underlining in original]

he was dealing with language rights recognized at a given time in a statute:

I agree that the existence of a political compromise is without consequence with regard to the scope of language rights. The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.

[para. 24]

[Underlining added]

[42]       Bastarache J., in Beaulac, drew a parallel between subsection 16(3) of the Canadian Charter of Rights and Freedoms, which reads:

Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

and section 2 of the Official Languages Act. He had said earlier, in paragraph 25, that subsection 16(3) of the Charter had "formalized the notion of advancement of the objective of equality of the official languages of Canada". But the following comments made by the Ontario Court of Appeal in Lalonde (supra, at para. 92) in relation to subsection 16(3) of the Charter appear to me to be particularly relevant:

Section 16(3) builds on the principle established in Jones v. New Brunswick (A.G.), [1975] 2 S.C.R. 182 that the Constitution's language guarantees are a "floor" and not a "ceiling" and reflects an aspirational element of advancement toward substantive equality. The aspirational element of s. 16(3) is not without significance when it comes to interpreting legislation. However, it seems to us undeniable that the effect of this provision is to protect, notconstitutionalize, measures to advance linguistic equality. The operative legal effect of s. 16(3) is determined and limited by its opening words: "Nothing in this Charter limits the authority of Parliament or a legislature". Section 16(3) is not a rights-conferring provision. It is, rather, a provision designed to shield from attack government action that would otherwise contravene s. 15 or exceed legislative authority. See André Tremblay and Michel Bastarache, "Language Rights" in Gérald-A. Beaudoin & Ed Ratushny eds., The Canadian Charter of Rights and Freedoms, 2nd ed. (1989) at 675:

What was actually desired with this provision [s. 16(3)] was to assure that the power to provide a privileged status for French and English in a statute could not be challenged by virtue of the rights forbidding discrimination contained in section 15 of the Charter. Section 16(3) could thus prevent the measures designed to promote equal access to both official languages from being struck down.

[Underlining added]

[43]       Power and Braën (Michel Bastarache, Language Rights in Canada, 2nd ed. (Montréal: Yvon Blais, 2002), in chapter 7, page 585, agree wholeheartedly:

Part VII concerns the "advancement" of both official languages and spells out the federal government's commitment to enhancing the vitality, supporting and assisting the development of, and fostering the full recognition of both languages. A ministerial accountability framework has been established for the implementation of section 41 and 42 of Part VII. The fact that this commitment is not explicitly executory or justiciable, for instance under section 77, has been decried by official language minorities throughout Canada and has been the subject of considerable debate.

[footnotes omitted]

as do Henri Brun and Guy Tremblay in Droit constitutionnel, 4th ed. (Cowansville, Quebec: Yvon Blais, 2002):

[translation]

... Of course, many provisions of the new [Official Languages] Act are formulated in programmatic terms, confer discretionary powers on federal authorities or condition rights on governmental regulation.... But the Act is executory for those cases in which its Part X provides a remedy in the Trial Division of the Federal Court....

[p. 859]

The current provisions [including Part VII] are hard to attack because they are not restrictive by themselves...

[p. 860]

[Underlining added]

[44]       Were we to adopt the interpretation of section 41 of the Official Languages Act proposed by the respondent and the interveners, it would in my opinion amount to defying the clearly expressed intention of Parliament and recognizing rights that not only has Parliament not recognized but that it has furthermore been careful not to recognize. The debate over section 41 must be conducted in Parliament, not in the courts. And that is the path that has been taken, so far without success, by Senator Jean-Robert Gauthier, one of the most fervent defenders of language rights in Canada. Senator Gauthier has tried again and again over the last three years to have section 41 amended to make it executory. His most recent attempt was made last March 11, when he proposed in these words the adoption on third reading of Bill S-4, Act to amend the Official Languages Act (promotion of English and French):

At the present time, there are no regulations governing Part VII of the Official Languages Act. Consequently, there are none for section 41. Having legislation without regulations is like having a watchdog with no teeth, or such a tiny one that no one could take it seriously. The law must be enforceable, and of course must therefore have regulations. As well, the Commissioner of Official Languages must be able to intervene in any proceedings relating to Part VII, and this is also not allowed under subsection 77(1). She cannot help us, and the communities cannot go to court, because section 41 is not enforceable. The Commissioner of Official Languages is therefore shunted aside, not because she wants to be, since she is the one who has recommended that we put some teeth into the act so that she can help us. And that is what I have done.

[Debates of the Senate, 3rd Session, 37th Parliament,

Vol. 141, Issue 20, p. 540]

[45]       The Senate eventually did adopt this bill, on March 11, 2004, but Parliament was dissolved before it was submitted to the House of Commons.

[46]       My reading of the Act thus leads me to the conclusion that section 41 is declaratory of a commitment and that it does not create any right or duty that could at this point be enforced by the courts, by any procedure whatsoever.

Part IV of the Act (Communications with and Services to the Public)

[47]       This part is one that can be the source of a remedy exercised under subsection 77(1) of the Act. The grounds cited in the application explicitly alluded to it and the primary purpose of the application was implicitly related to it.

[48]       The right involved, in this Part IV, is that of the public "to communicate with and to receive available services from federal institutions in accordance with this Part" (s. 21). This right of the public prevails, under section 31, over the right conferred by Part V (Language of Work) to officers of federal institutions to work in either of the two official languages.

[49]       It is common ground in this case that the Forum has not based its application on a violation of Part V (see para. 20 of the reasons for judgment of the Federal Court). The persons whose positions were transferred to Shediac did not file a complaint, nor are they parties to these proceedings, which in my opinion complicates the nature of the relief that may be granted if the Forum's complaint under Part IV is considered justified. Indeed, I am not persuaded that a group such as the Forum, in the context of a complaint that is not addressed to Part V and does not implicate the incumbents of the positions concerned, can claim on behalf of the latter the right to be reinstated in their position. Moreover, the judge did not grant this part of the requested relief; he did indeed set aside the Agency's decision to transfer the positions, but the relief he ordered in this regard is the restoration of the positions, not the reinstatement of their incumbents. The Forum did not file any cross-appeal and did not revisit this question in the memorandum it filed with us. I am therefore assuming that the reinstatement of the incumbents in the positions they held at Shippagan is no longer a remedy that is sought in this appeal.

[50]       A reading of the first report of the Commissioner illustrates how difficult it is, in the examination of the complaint, to dissociate the executory provisions of Part IV from the declaratory provisions of section 41 in Part VII. The Commissioner, of course, need not concern herself to any great extent with these distinctions since it is a report accompanied by recommendations that she produces and not an order accompanied by remedies. It is quite otherwise for the Federal Court, whose examination must bear on the breach of the executory provisions of the Act. As it happens, the judge in this case made numerous comments on the obligations that in his view were entailed by Part VII, and as a result his ultimate order is somewhat confused.

[51]       Once situated solely in the context of the breach of a duty imposed by Part IV of the Act, the issue is considerably simplified. The Commissioner's conclusion in this regard is that the Agency breached its obligation in two ways: by failing to consult the Francophone communities and by cutting back expenditures in a way that led to some deficiencies in the provision of certain services in French. The Commissioner explains in her report that it is not her job to become involved "in administrative decision-making" or "the location of Agency offices and staffing levels" in the province, which explains that her only recommendation in respect of Part IV of the Act is that the Agency "review the delivery of inspection services in the Acadian peninsula to ensure that they are offered and made available in both official languages".

[52]       Like the Commissioner and the judge, I think it is possible to conclude, from the evidence, that the Agency reduced its services at Shippagan without concerning itself with the effect of this reduction on the right of the Francophone minority to receive these services in French and that the effect of the reduction in the services was to infringe the right that section 21 of the Act gives that minority. It is clear, in my view, that at the time the complaint was filed, it was justified.

[53]       What the Agency is really disputing, and this is what its memorandum indicates, is not the merits of the complaint at the time it was filed, in October 1999, but the choice of relief ordered by the judge in September 2003. As the Agency puts it, the evidence before the Court at the time when the case was reserved in June 2003 established that the deficiencies that existed at the time of the complaint had been corrected. And this leads the Agency to conclude that no relief is necessary and that the object of the application is now moot. On this point, the Agency is mistaken about the role of the judge who hears an application based on section 77 of the Official Languages Act. That role is to decide whether the complaint was justified at the time it was filed, not whether it is justified at the time of the trial. If the judge decides that the complaint was justified at the time it was filed, he must allow the application and then strive to define "such remedy as [the Court] considers appropriate and just in the circumstances" (subsection 77(4)). Needless to say, if the alleged deficiencies have all been remedied at the time of the trial, and if the complaint is then no longer justified, the judge may choose not to order any relief, except for example in the form of costs.

[54]       It follows that the judge was right to allow the application, since he was of the opinion that the complaint was justified at the time it had been filed, and that the appeal should be dismissed insofar as the appellant was asking that the judge's order be quashed in its totality.

[55]       However, what about the relief that was granted?

The relief granted

[56]       Under subsection 77(4) of the Act, the Court has very wide latitude as to the choice of the remedy "it considers appropriate and just in the circumstances". The language of this subsection is identical to the language in section 24 of the Charter, so it would be useful to quote what Iacobucci and Arbour JJ. said about section 24 in Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3:

... a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies.

[para. 25, emphasis in original]

[57]       Iacobucci and Arbour JJ. then sought to define the expression "appropriate and just in the circumstances". The analysis extends over several pages. If it is possible to reduce to a few words the principles they lay down, I would say that the judge must "exercise a discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles" (para. 52). The solution that is adopted "must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied" (para. 55). The remedy must be effective, realistic, and adapted to the facts of the case. It must be respectful of "the relationships with and separation of functions among the legislature, the executive and the judiciary" (para. 56), and the role of the courts, which is one of "adjudicating disputes and granting remedies that address the matter of those disputes" (para. 56), and not leap into "the kinds of decisions and functions for which [the] design and [their] expertise are manifestly unsuited" (para. 57). The remedy must be "fair to the party against whom the order is made" and not "impose substantial hardships that are unrelated to securing the right" (para. 58).

[58]       Finally, Iacobucci and Arbour JJ. remind appellate or reviewing courts that they must "show considerable deference to trial judges' choice of remedy, and should refrain from using hindsight to perfect a remedy" and that they "should only interfere where the trial judge has committed an error of law or principle" (para. 87).

[59]       As illustrations of remedies that have been ordered in matters involving language rights, it will be useful to consult Lavigne v. Canada (Human Resources Development), [1997] 1 F.C. 305 (T.D.), aff'd (1998), 228 N.R. 124 (F.C.A.); Côté v. Canada (1994), 78 F.T.R. 65; Duguay v. Canada (1999), 175 F.T.R. 161; Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 194 F.T.R. 181; Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586 (T.D.) (Heneghan J.); Rogers v. Canada (Department of National Defence, supra (Nadon J.), para. 21.

[60]       The trial judge handed down his decision before the Supreme Court of Canada had delivered its judgment in Doucet-Boudreau. His reasons in relation to the remedies he adopted are much too summary to satisfy the standards laid down in Doucet-Boudreau. Furthermore, his order for relief was pronounced in an erroneous legal context since he based himself primarily on Part VII of the Act, which is not executory. Finally, the order "would, if carried out, raise a number of uncertainties and difficulties" (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, para. 24). It is therefore appropriate that I form my own opinion on the nature of the remedy.

[61]       The Forum asked that the positions in Shippagan be restored and that their incumbents be allowed reinstatement in them. This second request, as I noted earlier, was abandoned along the way.

[62]       In its choice of remedies, the Court is not limited to those proposed by an applicant (see Côté, supra). However, it should refrain from ordering remedies that were not debated and for which evidence was not adduced. For example, I fail to see why, in this case, I should venture to award damages that were not claimed and were not put in evidence. Moreover, if it appears from the evidence in the record that the situation has altered between the time when the complaint was filed and the time when the trial concluded, relief that might have been appropriate at the outset may no longer be so at the end of the exercise.

[63]       The initial foundation for the complaint - the lack of consultation - has been eliminated. For four years now and throughout the trial, there have been many meetings and attempts to reach a satisfactory solution for everyone. And I am not certain that there would have been a sufficient causal relationship between the lack of consultation (if that had been the only foundation for the complaint) and the transfer of the positions to justify an order prescribing the restoration of those positions.

[64]       The second foundation for the complaint - the reduction in services in French - remains contentious. The Agency argues that the evidence "[translation] establishes beyond any doubt that in 2003 [it] had remedied the deficiencies identified earlier and that the Shippagan office was providing its services in both official languages" (memorandum, para. 67). The Forum, for its part, argues that the matter is not fully settled and in saying this relies on the final follow-up report of the Commissioner and four statutory declarations.

[65]       The Forum's evidence concerning the Agency's breach of its duty to serve the public in French at Shippagan or, more generally, in the Acadian peninsula, comes down to very little insofar as the situation in May 2003 is concerned.

[66]       The Forum put in evidence four statutory declarations, dated May 13, 2003, in which the signatories describe the situation.

[67]       Jean-Yves Daigle is director general of the Peat Research and Development Centre on the Shippagan campus of the Université de Moncton. He states that he must "[translation] use the English language to obtain adequately the service that I expect from the Agency" (A.B. vol. 2, p. 492), but he adds:

[translation]

5.      I wish to explain that the application by the Forum des Maires to have the seasonal inspectors' positions reinstated at Shippagan cannot resolve the language difficulties that I cite in this affidavit. I have observed that the responsible officers in the Shippagan office do not appear to me to have any decision-making authority over the subjects of concern to me and the reestablishment of inspectors' positions could not, in my opinion, help to improve the situation. I believe that the Agency should take a more serious approach to the language question.

[A.B. vol. 2, p. 492]

[68]       Bertin Gauvin, one of the inspectors whose position was transferred to Shediac, but who chose to remain in Shippagan, declares:

[translation]

5.      At the hearing on January 7, 2003, I heard the lawyer from the Department of Justice describe the situation concerning the amount of work available in the Acadian peninsula. I have some information according to which there would be sufficient work for further inspectors at Shippagan but I don't know why the Agency does not add staff in the inspection division. I think the Agency could maintain and even develop new jobs if it had the intention of promoting the development of our region and ensuring the delivery of services in both official languages. I think the Agency does not take the fisheries sector into account and consistently minimizes the other sectors of economic activities in our region. Furthermore, in my opinion the Agency never considers the fact that we too could move to other regions to provide the Agency's services and I wonder why it is always necessary that the services come to us from the major urban centres and never from offices located in the regions.

[A.B. vol. 2, p. 494]

[69]       Claude Gionet, another inspector whose position was transferred to Shediac but who also chose to remain in Shippagan, is a quality control person in the Pêcheries St-Paul plant at Bas-Caraquet. He states that he cannot get laboratory analysis reports in French unless he requests them in writing each time. He adds that in his opinion:

[translation] ... the Agency could maintain and even develop some new jobs if it had the intention of promoting the development of our region and ensuring the provision of services in both official languages.

[A.B. vol. 2, p. 496]

[70]       Réginald Poulin, a retiree, declares in relation to that part of the complaint that is based on Part IV of the Act:

[translation]

10.    At the meeting with the Agency, I could see that the Agency does not have the vision of what really constitutes support to a community and adequate service in the language of one's choice. The Agency's representatives told us that they sincerely believe the steps taken so far were sufficient to meet the requirements of the Act, both concerning Part IV, for service to the public, and in terms of Part VII, concerning support to the community.

11.    In support of the foregoing statement, I can relate that the Agency told us that it is making efforts to contribute to the development of our community by hiring a summer employee at its Shippagan offices and opening a part-time term position to provide administrative support. This kind of initiatives being sufficient, in their view, to meet the requirements of the Act. It is my impression that they are making fun of us.

...

13.    During this meeting with the Agency, the first that I personally have had an opportunity to have on this matter, I also learned that the positions affected by the restructuring of the Shippagan office, which are the object of this proceeding, had been abolished and not transferred to Shediac. There was, at the time, a shortage of staff at Shediac. In my opinion, these new facts reinforce our position that the positions could have been maintained at Shippagan and that the Agency's office, situated in our community, could have contributed to our development by providing certain services to the southeastern region from the Shippagan office. Some former employees of the Agency have told me, and I sincerely believe, that the Agency had a habit of resorting to inspectors from elsewhere for certain services in our region, [and] I do not see why it would not have been possible to do as much with some employees from our region who would have provided services elsewhere.

...

18.    I am satisfied with the Commissioner's findings and her conclusions concerning the implementation of the recommendations. I particularly agree with the Commissioner's comment that the Agency, like other federal institutions, must find its own solutions in its attempt to implement the recommendations she makes. I firmly believe that agencies likes ours can only develop an understanding of the situation and demand remedial measures when it proves necessary to do so.

19.    In light of what I have heard from the respondent's representatives and read in the Commissioner's report, and since the respondents have nothing further to offer, I confirm that the applicant still maintains that an order should be issued that the seasonal inspectors' positions should be restored to the town of Shippagan. It appears that this is the most appropriate remedy to our request since the impact of this order on our community would be real and measurable. The Court should set aside the decision to reorganize the Shippagan office owing to the fact that it is not consistent with the Official Languages Act and unconstitutional, being contrary to the Charter. In the alternative, monetary compensation could be granted to compensate for the effect of the economic impact of the loss of these jobs on our region.

[A.B. vol. 2, pp. 498-501]

[71]       In support of his declaration, Mr. Gauvin filed the final follow-up report received the day before from the Commissioner. I have quoted extracts from this report and from the one that preceded it in paragraphs 7 and 9 of these reasons.

[72]       The Agency, for its part, filed the declaration, sworn on May 12, 2003, of Claudine Bourque, the Agency's Atlantic sector human resources manager. Ms. Bourque states:

[translation]

7.      Pursuant to the order issued by Mr. Justice Blais on January 7, 2003, in this matter, the Agency set up two committees, a management committee to which I belong and a working committee, to determine and confirm that the service provided to the industries in the Acadian peninsula that are regulated by the Agency is provided in French and English based on the demand of the regulated party.

8.      The main task of the working committee referred to above was to finalize the list of all the inspection programs in the Acadian peninsula that fall within the responsibility of the Shippagan office by indicating the regulated party, the primary inspector in the area and the consultant in that field in New Brunswick.

9.      During this review, the working committee notified me, and I believe this is true, that some of the consultants assigned to help the regulated parties in the Acadian peninsula were not bilingual. As a result of this, the Agency changed some of these consultants to ensure that those who provide service to people in the Acadian peninsula are all bilingual. Please find included herein, in Appendix "A", a list of all the programs regulated by the Agency in the Acadian peninsula, the affected regulated parties, the list of inspectors and consultants assigned, and their language designation.

10.    In order to determine whether there were still some deficiencies in the supply of a bilingual service provided to the regulated parties in the region of the Acadian peninsula, the Agency, through Roland Cormier, an Agency employee, conducted a survey of a number of regulated parties in the Acadian peninsula in February 2003. Please find included herein, in Appendix "B", a copy of the questions used in conducting this survey, and in Appendix "C", a copy of the parties regulated by the Agency with which Mr. Cormier had some discussions or which he tried to contact.

11.    Following some discussions with Roland Cormier concerning the results of his survey, and as observed by the working committee, the Agency had to address the capacity of the consultants to provide bilingual service, which was done. See Appendix "A" included herein. In addition, Mr. Cormier sent me a report by email which is included herein in Appendix "D".

12.    In relation to the problem raised by some of the regulated parties, that laboratory reports included only English commentaries, these laboratory reports are not supposed to be used or distributed outside the Agency.

13.    Given the fact that the laboratory reports are sometimes found among the regulated parties, Ms. Susan Shaw, Director of the Dartmouth laboratory, which is responsible for the majority of the sampling tests originating from the products of the regulated parties in the Acadian peninsula, has advised me, and I believe this is true, that the laboratory now has a system in place to ensure that the reports from the laboratory are in the language of choice of the inspector and the regulated party if necessary....

14.    As explained by Mr. Régis Bourque during his cross-examination on February 4, 2002, pages 23 and 24 of this cross-examination being included as Appendix "E" to this affidavit, most of the work done by the Agency's inspectors in the Shippagan office is related to fish.

15.    Given the fact that the inspectors in the Agency's Shippagan office now provide the service for the majority of the programs to the regulated parties in the Acadian peninsula, and given the fact that there is a demand for French-language services by these regulated parties, the inspectors have had to take training to be able to provide the service. Please find included herein in Appendix "F" a list of on-the-ground training of Shippagan inspectors by program and activity....

[A.B. vol. 2, pp. 421-22]

[73]       In support of Ms. Bourque's affidavit is a report on the survey she had described:

[translation]

Generally speaking, there are no problems with the skills of our local inspectors concerning the delivery of services in French and even in English. This applies as well to exchanges of correspondence between the local office and clients. However, the situation changes when the client must apply to a manager or technical person in the regional, sector or national office. It is sometimes hard [to] conduct a consultation in French or with a person from the Agency who has an adequate mastery of French. The plant employees must often go through an interlocutor in order to understand properly the technical concepts that are being explained to them. Two clients also presented laboratory reports that consisted only of English comments. With the exception of a particular program in which the English version is still sent several days before the French version, the clients receive their correspondence and technical documentation from the Agency in both languages. The clients often mentioned that they frequently need English documentation in order to respond to market need. The Agency's Internet site was singled out by one of our clients as a preferred source of bilingual technical information, particularly [concerning] fish.

Some secondary aspects in this survey were also raised by our clients as more or less significant deficiencies. Recognizing the heavy workload of our inspectors, our clients sometimes cited the fact that it is hard to contact an inspector in emergencies. They have to leave a telephone message and wait a few days before getting a reply from an inspector. This situation is not really serious in comparison with the lack of visibility of the Agency. Many clients did not realize that their inspection services had been combined under a single Agency. During the conversations, the evaluation of the French-language service was made in relation to the old department that had this responsibility before the creation of the Agency. It was even commented that the DFO office in Moncton always did its best to provide services in French. Doing business with the office in Saint John or Ottawa, another client asked that the role of the Moncton office be clarified. The client thought the Agency was only a laboratory service.

[A.B. vol. 2, p. 441]

[74]       That is the evidence at the Court's disposal. I confess that I find it quite thin on the complainant's side, as it is mainly composed of general statements or declarations of principles that are unsupported by specific illustrations and that lament the economic situation and the lack of jobs more than they do the violation of language rights. In relation to a concrete case cited by Mr. Gionet - the receipt of analysis reports in French - it is indicated in paragraph 13 of Ms. Bourque's affidavit that the Agency has corrected the situation.

[75]       Essentially, then, the problems that were at the origin of the complaint have been resolved thanks to the intervention of the Commissioner, and thanks as well, I am sure, to the pressure exerted on the Agency by the filing of the application in the Federal Court, the impact of which on the Agency's willingness to act should not be underestimated. In its comments on the follow-up report of March 2003, the Forum's representative "said he was generally satisfied with the content of the report, except that in some respects, he would like to have seen us take a stronger position". "In short", the Commissioner concludes, "the Forum des maires wishes to see the Agency step back and reconsider its decision to restructure the Shippagan office" (supra, para. 9). I note as well that in her final follow-up report, in May 2003, the Commissioner indicated her intention to "contact the Agency again in September 2003 to review the progress made in implementing these recommendations" (A.B. vol. 2, p. 516).

[76]       The uncontradicted affidavit of Ms. Bourque, an Agency manager, describes not only a serious consultation effort but also some genuine progress in the provision of French-language services at Shippagan and in the Acadian peninsula. The problems described in the survey to which Ms. Bourque refers, and the problems described by the Forum's witnesses, are, when all is said and done, minor. It is certain that the provision of French-language services is experiencing some hiccups, but the evidence does not indicate that these hiccups are symptomatic of serious problems or major difficulties within the Agency. Rather, it appears that these hiccups are now - contrary to what they were before the intervention of the Commissioner and the Court - of an episodic nature. It is no longer a question of the breaches, which I would qualify as collective, that were at the origin of the complaint. It may be that some individuals are still, occasionally, prejudiced in the exercise of their language rights - no solution is perfect - in which case they are free to file detailed individual complaints with the Commissioner. However, insofar as the collective complaint before the Court is concerned, I must acknowledge that the violations that persist are so episodic that they are ill-suited to a judicial sanction of the scope sought by the Forum.

[77]       Because the complaint was originally justified, the Forum is still entitled in principle to some relief, if there is some remedy other than the award of costs that is appropriate and just in the circumstances.

[78]       The Forum continues to demand that the positions in Shippagan be restored. There is nothing in the evidence that would warrant such an order. An order of that nature does not normally pertain to the function or expertise of the courts where it is not in relation to a remedy under general labour law or the remedies exercised under Part V of the Official Languages Act (Language of Work) by an employee who alleges that his or her rights have been infringed. In a context such as this, in which the evidence demonstrates that the decision to transfer the positions was made in the context of budget cutbacks and in which the complainant bases its complaint not only on linguistic concerns but also on economic and social concerns, the Court must be conscious that a decision on the restoration of positions normally pertains to the executive brach of the government (see Doucet-Boudreau, supra, paras. 56 and 57). The Court must therefore be extremely prudent and require detailed evidence of both the actual needs of the public and the financial and organizational capacity of the federal institution before interfering in its internal governance.

[79]       There is no such evidence in the case at bar. Four positions are referred to; it might as well be two or ten. We do not know what latitude the Agency has. The only witness who addresses this question, Mr. Daigle, even said that the restoration of the positions "cannot resolve the language difficulties" (supra, para. 67). The Commissioner herself is very wary about recommending the restoration of the positions. In her first report she said "the requirements of the OLA must not be confused with the right of managers to manage federal institutions" (supra, para. 2), comments that she repeated in her final follow-up report (supra, para. 9).

[80]       In short, in view of the record, it has not been established that the restoration of the positions at Shippagan would be an appropriate and just remedy in the circumstances.

[81]       What other remedy would be realistic, effective, fair and within the jurisdiction of the courts in the circumstances?

[82]       This is the type of case that is ill-suited to orders of relief by a court of appeal. The trial judgment essentially produced the desired results. The Commissioner's recommendations are being followed up by her. The federal institution concerned has fallen in step. The complainant's concerns generally go beyond the framework of the language rights recognized in the Act. There is nothing concrete that can be ordered that would be useful to the complainant and enforceable by the courts. (I note that no damages have been claimed in this case.)

[83]       I see no further remedy than to order that the Agency pay the costs of the Forum at first instance and on appeal. The Forum was right to institute its proceedings since the Agency was not at the time complying with the obligations imposed on it by the Official Languages Act to serve the public in French in the Acadian peninsula. The Forum was right to contest the appeal since the Agency was seeking to have set aside a judgment that had correctly held that the complaint was justified. It would be appropriate, therefore, that the costs in both instances be determined on the basis of the maximum number of units in column V of Tariff B.

Disposition

[84]       Because the original complaint was justified, the decision of the Federal Court judge to allow the application should be upheld and the appeal dismissed in this regard.

[85]       Because the original complaint was no longer justified at the time when judgment was reserved in the Federal Court and because the remedies ordered by the Federal Court were not appropriate and just in the circumstances, I would allow the appeal in this regard and I would overturn that part of the decision of the Federal Court that sets aside the Agency's decision to transfer the positions to Shediac and imposes on the Agency remedies other than the requirement to pay costs.

[86]       The appellant should pay the respondent its costs on appeal and at trial on the basis of the maximum number of units in column V of Tariff B.

                       "Robert Décary"

J.A.

"I concur.

J. Richard C.J."

"I concur.

Marc Noël J.A."

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                          A-467-03

STYLE:             THE CANADIAN FOOD INSPECTION AGENCY v. LE FORUM DES MAIRES DE LA PÉNINSULE ACADIENNE and THE COMMISSIONER OF OFFICIAL LANGUAGES and LA SOCIÉTÉ DES ACADIENS ET ACADIENNES DU NOUVEAU-BRUNSWICK INC.

PLACE OF HEARING:              Fredericton, N.B.

DATE OF HEARING:                             June 14, 2004

REASONS FOR JUDGMENT:    Décary J.A.

CONCURRING:                                                Richard C.J.

Noël J.A.

DATE OF REASONS:                             July 22, 2004

APPEARANCES:

SOLICITORS OF RECORD: