In Association des juristes d’expression française du Nouveau-Brunswick v. Canada (Justice), 2024 FC 1464, released on Sept. 18, Justice Martine St-Louis rejected arguments that the federal government had a duty, under the Official Languages Act, to consult the relevant association before making the decision to cut funding.
“The historical and constitutional foundations of the duty to consult in Indigenous matters are distinct from those of the duty to take positive measures towards linguistic minorities under the Act,”(translated from the original French) the judge wrote.
She added that the scope of the two obligations was also distinct because the manner in which the duty to take positive measures towards linguistic minorities could be prescribed by regulation, which is not the case for the duty to consult in Indigenous matters.
In 2003, Justice Canada adopted the Action Plan for Official Languages. One of the objectives of the plan was to ensure stable funding for associations of French-speaking jurists (AJEFs). Justice Canada created the Access to Justice in Both Official Languages Support Fund to implement commitments announced in the 2003 Action Plan.
Justice Canada set up a core funding system for AJEFs as part of the support fund.
The applicant, Association des juristes d’expression française du Nouveau-Brunswick, received annual core funding under the support fund ranging from $70,000 to $85,000 between 2004 and 2014.
This funding was subject to certain conditions regarding the use of the funds, such as the requirement that the funds be used in accordance with a contribution agreement signed between the parties
However, the applicant had sufficient flexibility to use the money as it saw fit to, for example, fund the hiring of an executive manager or other employees.
In March 2013, Justice Canada announced the adoption of a new departmental strategy amending the 2003 action plan, which prioritized the need to provide legal information directly to the community and to train justice system stakeholders.
This relied in part on shifting core funding to project-based funding. Justice Canada granted transitional funding to enable AJEFs to develop a business plan taking into account the needs of the communities served by them and Justice Canada’s access to justice priorities.
The applicant filed a complaint with the Office of the Commissioner of Official Languages of Canada alleging that the decision jeopardized its survival.
The commissioner held that Justice Canada had not demonstrated that it had made a point of finding out the communities’ real needs in terms of support for access to justice and the effects of the proposed changes to the method of funding an association that contributes to the vitality of Francophone communities.
In a final investigation report issued in 2016, the commissioner recommended that Justice Canada analyze the needs of the official language minority community (OLMC) with respect to supporting access to justice and that it evaluate the impact of the planned changes to the support fund’s objectives.
The commissioner also recommended that Justice Canada evaluate the impact of eliminating AJEF core funding on the OLMC in each province that has an AJEF and take appropriate measures if it determines that the needs of OLMCs are not being met.
Core funding was reinstated in 2018.
In February 2020, the commissioner confirmed that the first two recommendations had been implemented and that the third had been partially implemented.
In April 2020, the association applied to the Federal Court to decide, among other things, whether federal institutions have a duty to consult the OLMC under s. 41 of the Act, before making a decision that could potentially have a negative impact on their vitality and development and whether Justice Canada breached this duty when withdrawing core funding from the applicant.
Justice St-Louis cited Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development), 2022 FCA 14, in which the Federal Court of Appeal noted that s. 41 of the Act allows federal institutions to choose which measures to take to enhance the vitality of the English and French linguistic minority communities and foster full recognition and use of both languages.
Justice St-Louis noted that based on the Federal Court of Appeal’s decision, federal institutions must be sensitive to the particular circumstances of OLMCs and determine the impact that the decisions and initiatives that they are called upon to take may have on OLMCs.
The judge added that federal institutions are required, when implementing their decisions, to act to the extent possible to enhance the vitality of these communities or mitigate negative repercussions on these communities when their decisions are susceptible to having a negative impact.
The applicant argued that the federal institutions’ duty to be sensitive to the particular circumstances of OLMCs and to take their interests into account could only be met by consulting OLMC representatives.
The association argued that this duty has clear parallels with the duty to consult Indigenous peoples under section 35 of the Constitution Act, which is triggered when the government is about to make a decision that may adversely affect the interests of an Indigenous group that are the subject of a recognized or claimed Aboriginal title or treaty right.
The applicant argued that the duty to consult under s. 41 of the Act includes, at a minimum, the duty to give the affected OLMC notice of the proposed decision, the duty to disclose information to the OLMC and the duty to discuss any issues raised by the OLMC in response to the notice.
Justice Canada argued that the obligation to take positive measures under s. 41 of the Act did not create obligations and that it is exclusively up to the institutions to choose the positive measures they wish to take.
Justice Canada also submitted that the duty to consult on Indigenous matters could not be transposed to the case at bar as that duty derives from the principle of the honour of the Crown and the rights guaranteed by subsection 35(1) of the Constitution Act.
The respondent argued that in the absence of a specific duty to consult in the Official Languages Act, the manner in which federal institutions fulfill their obligations remains at their discretion.
The court noted that the legislative debates that preceded the adoption of the then version of s. 41 of the Act did not reveal that Parliament had intended to impose an obligation to consult each and every stakeholder who might be affected by a measure.
Justice St-Louis also noted that s. 43(2) of the Act expressly provided that the minister of Canadian heritage was to take measures to ensure public consultation in the development of policies and review of programs relating to the advancement and the equality of status and use of English and French in Canadian society.
The judge noted that this tended to demonstrate that when Parliament wishes to deal with consultation in the Act, it does so expressly.
The court also concluded that the relevant case law had not established a formal duty to consult as proposed by the association and did not support the inference that such a duty could be imposed in the absence of regulations to that effect.
The court held that the applicant had not demonstrated that the Official Languages Act imposes a duty to consult.
The Court also rejected the applicant’s argument that Justice Canada’s decision to eliminate core funding had a negative impact on the vitality and development of the New Brunswick OLMC, noting that the association continued to receive funding from Justice Canada to deliver direct services to the OLMC.
Justice St-Louis held that the evidence did not establish the decision was susceptible to having a negative impact on the New Brunswick OLMC.
She further held that even if the court had found that the decision was susceptible to such an impact, the court would have found that Justice Canada acted to mitigate these negative repercussions by offering transitional and project funding, from which the association did in fact benefit.
The court dismissed the application.
Counsel for the parties were not immediately available for comment.
Counsel for the applicant were Gabriel Poliquin and Érik Labelle-Eastaugh.
Counsel for Canada were Nadine Dupuis, Bernard Letarte and Lisa Morency of Justice Canada.
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