Judgments

[2000] 2 F.C. 212

A-336-98

Pierre Devinat (Appellant)

v.

Immigration and Refugee Board (Respondent)

and

Commissioner of Official Languages (Intervener)

Indexed as: Devinat v. Canada (Immigration and Refugee Board) (C.A.)

Court of Appeal, Desjardins, Linden and Létourneau JJ.A.—Ottawa, September 28 and November 29, 1999.

Official languages — Scope of Official Languages Act (OLA), s. 20 — Immigration and Refugee Board’s on-request translation policy in violation of OLA, s. 20 — Federal Court Act, s. 18.1 available to challenge policy — However, in view of practical effect of requiring translation of thousands of decisions of little or no interest, and bearing in mind balance of convenience, not advisable to grant mandamus for past — As of judgment date, IRB required to comply with Act, unless OLA, s. 20 amended.

Federal Court jurisdiction — Trial Division — Immigration and Refugee Board’s (IRB) on-request translation policy in violation of Official Languages Act, s. 20 — IRB “federal board, commission or other tribunal” — Absent Parliament’s express intention to depart from general system of law, IRB cannot be excluded from application of Federal Court Act, s. 18.1 — Appellant “directly affected by matter in respect of which relief sought” — IRB’s omission to translate orders and decisions unless translation requested based on “decision”, in each case, not to translate — Jurisdiction in F.C.T.D. to hear s. 18.1 application for judicial review challenging IRB’s official languages policy.

Administrative law — Judicial review — Mandamus — Immigration and Refugee Board’s on-request translation policy in violation of Official Languages Act, s. 20 — Appellant, lawyer, translator requiring quick access to translations, had standing to seek judicial review of policy— In view of practical effect of requiring translation of thousands of decisions of little or no interest, and bearing in mind balance of convenience, not advisable to grant mandamus order regarding past decisions.

The basic “official languages” policy of the Immigration and Refugee Board (IRB) was to provide translations of its decisions on request only and to make them available 72 hours after receipt of a request. Section 20 of the Official Languages Act (OLA) requires federal courts to make their final decisions available either simultaneously in both official languages or, where they are released in only one of the official languages, in the other official language at the earliest possible time. The applicant, a lawyer and translator with deadlines that did not allow him to wait 72 hours to obtain the translations, filed a complaint with the Commissioner of Official Languages concerning the respondent’s failure to comply with section 20.

The Commissioner investigated the complaint, but before he could submit a final report to the parties, the applicant applied for judicial review based on paragraph 18.1(3) of the Federal Court Act, seeking a writ of mandamus requiring the IRB to translate into the other official language all its past and future decisions (the notice of appeal, however, confined itself to requesting the translation of past decisions).

The Motions Judge held that since the remedy provided for in section 18.1 of the Federal Court Act existed only when the Board was exercising a power conferred on it by the Immigration Act, and since the Board’s decision not to translate all its decisions was not a decision taken by the Board pursuant to that Act, section 18.1 of the Federal Court Act could not be relied upon by the appellant. The Motions Judge therefore dismissed the application for judicial review, but added, obiter, that the policy followed by the Board was in breach of section 20 of the OLA.

This appeal raised the broad issue of the scope of the duty imposed on “federal boards, commissions or other tribunals”, including the Immigration Appeal Board, to translate their decisions into either of Canada’s two official languages.

The appeal, more specifically, raised the questions of whether the Federal Court had jurisdiction to hear this application for judicial review; whether the appellant had standing to act in an application for judicial review; what was the true scope of section 20 of the OLA; should a writ of mandamus issue?

Held, the appeal should be dismissed.

The OLA is not an ordinary statute. It belongs to that privileged category of quasi-constitutional legislation which reflects “certain basic goals of our society” and must be so interpreted “as to advance the broad policy considerations underlying it”. To the extent that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political compromise, it requires the courts to exercise caution and to “pause before they decide to act as instruments of change”: Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.), per Décary J.A.

There was no doubt that the Board was a “federal board, commission or other tribunal” within the meaning of subsection 2(1) of the Federal Court Act and that it was subject to the OLA. The complaint made by the appellant fell under Part III of the OLA, which contained section 20. It was noted that “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it”: Ashby v. White (1703), 92 E.R. 126, and that “If the right exists, the presumption is that there is a Court which can enforce it”: Board v. Board, [1919] A.C. 956 (P.C.). This Court could not, unless Parliament expressed an intention to do so with irresistible clearness, exclude the Board from the application of the general system of the law, such as section 18.1 of the Federal Court Act. The Motions Judge wrongly concluded that the OLA did not allow the appellant to bring the action covered by section 18.1 of the Federal Court Act for an alleged breach of section 20 of the OLA.

The appellant met the statutory requirements of section 18.1 of the Federal Court Act. The respondent’s omission or failure to translate its orders and decisions implied that each “decision” or “order” delivered by the respondent also entailed a “decision” not to translate it. As this policy was ongoing, it ran on a daily basis. Therefore, it could not be argued that the deadline for filing an application for judicial review had expired. Furthermore, the appellant was undoubtedly a person “directly affected by the matter in respect of which relief is sought”, since he was himself the subject of this refusal.

Since the person directly affected, the appellant himself, sought relief which was available to him, namely a judicial review application pursuant to section 18.1 of the Federal Court Act, there was no basis for ruling on the public interest standing which the appellant might otherwise have.

It was admitted by each of the parties that the OLA applied to the IRB since it was a “federal court” within the meaning of subsection 3(2) of the OLA. The Board was not discharging its obligations under section 20 of the OLA. The on-request translation policy did not meet the “earliest possible time” requirement, since it meant that most decisions would never be issued in the other official language. If Parliament had wanted federal courts to have an on-request translation policy, it could have so specified.

There was no doubt that there was a public legal duty to act, that the duty was owed to the appellant and that there was a clear right to performance of this duty. However, given the impact of requiring the translation of all past decisions rendered by the Board since its creation, mandamus should not issue in this case. In a 1999 wide-ranging report, the Commissioner of Official Languages recommended that the Department of Justice review the appropriateness of the current scope of paragraph 20(2)(a) of the OLA, and consider the possibility of amending the OLA to provide for certain exemptions from the duty to issue in both official languages factually bound decisions of no jurisprudential or policy significance arising out of strictly unilingual proceedings. The Board explained that the cost of translating the 38,599 decisions it rendered in 1996 could be thirteen times the current translation budget, an additional $13 million. The appellant acknowledged that not all earlier decisions have value as precedents. The issuing of a mandamus order that would apply to all earlier decisions would therefore not satisfy the appellant’s objective, as he would be concerned only with consulting those which have such value and the money spent on translation services would have no practical result. Furthermore, there was no question as to the IRB’s good faith. The difficulty in this case was to determine which of the decisions have value as precedents and to ensure that those which do are made available to researchers and the public in both official languages. That was the true purpose of these proceedings, and this can ultimately only be achieved if the Board develops relevant administrative standards, subject to approval by the intervener, to resolve this dispute in keeping with the aims of the OLA.

In the circumstances, in view of the practical effect which the granting of a mandamus would have, especially on the thousands of decisions which there is no interest in translating, and bearing in mind the balance of convenience, it would not be advisable to grant a mandamus order for the past.

However, it is clear that the Board’s current policy was a departure from the Act and that, as of the date of this judgment, it will have no choice but to comply with the Act, unless section 20 of the OLA be amended.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 16(1),(3).

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 133.

Criminal Code, R.S.C., 1985, c. C-46, s. 530 (as am. by R.S.C., 1985 (1st Supp.), c. 27, ss. 94, 203).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18(1)(a) (as am. idem, s. 4), 18.1 (as enacted idem).

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 2, 3(2), 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 76 “Court”, 77, 78, 79, 81, 91.

Public Service Employment Act, R.S.C., 1985, c. P-33.

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Beaulac, [1999] 1 S.C.R. 768; (1999), 173 D.L.R. (4th) 193; 121 B.C.A.C. 227; 134 C.C.C. (3d) 481; 238 N.R. 131; Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (1990), 123 N.R. 83 (C.A.); Ashby v. White (1703), 92 E.R. 126; Board v. Board, [1919] A.C. 956 (P.C.); Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; (1998), 157 D.L.R. (4th) 385; 6 Admin. L.R. (3d) 1; 22 C.P.C. (4th) 1; 224 N.R. 241; Goodyear Tire and Rubber Company of Canada Limited v. The T. Eaton Company Limited and Others, [1956] S.C.R. 610; (1956), 56 DTC 1060; 4 D.L.R. (2d) 1; Krause v. Canada, [1999] 2 F.C. 476 (1999), 19 C.C.P.B. 179; 236 N.R. 317 (C.A.); Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (1993), 18 Admin. L.R. (2d) 122; 51 C.P.R. (3d) 339; 162 N.R. 177 (C.A.).

CONSIDERED:

Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d) 632; 32 C.R.N.S. 376; 5 N.R. 43; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241.

REFERRED TO:

Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al., [1986] 1 S.C.R. 549; (1986), 69 N.B.R. (2d) 271; 27 D.L.R. (4th) 406; 177 A.P.R. 271; 66 N.R. 173; Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology (1980), 27 O.R. (2d) 142; 105 D.L.R. (3d) 707; 9 B.L.R. 117; 11 C.C.L.T. 121; 80 CLLC 14,003; 37 N.R. 468 (C.A.); Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; (1981), 124 D.L.R. (3d) 193; 14 B.L.R. 157; 17 C.C.L.T. 106; 2 C.H.R.R. D/468; 81 CLLC 14,117; 22 C.P.C. 130; 37 N.R. 455; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; (1998), 40 O.R. (3d) 639; 166 D.L.R. (4th) 193; 232 N.R. 201; 115 O.A.C. 1; Sweet v. Canada, [1999] F.C.J. No. 1539 (C.A.) (QL); Distribution Canada Inc. v. M.N.R., [1993] 2 F.C. 26 (1993), 99 D.L.R. (4th) 440; 10 Admin. L.R. (2d) 44; 149 N.R. 152 (C.A.).

AUTHORS CITED

The Equitable Use of English and French Before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers. Office of the Commissioner of Official Languages. Ottawa: Minister of Public Works and Government Services Canada, 1999.

APPEAL from a Trial Division decision ([1998] 3 F.C. 590 (1998), 149 F.T.R. 1 (T.D.)) dismissing an application for judicial review attacking the Immigration and Refugee Board’s on-request translation policy. Appeal dismissed but, as of judgment date, the Board must comply with the Official Languages Act unless section 20 be amended.

APPEARANCES:

Pierre Devinat on his own behalf.

Simon Noël and Patricia J. Wilson for respondent.

Elizabeth M. Grace and Richard L. Tardif for intervener.

SOLICITORS OF RECORD:

Osler, Hoskin & Harcourt, Ottawa, for respondent.

Legal Services, Office of the Commissioner of Official Languages for intervener.

APPLICANT ON HIS OWN BEHALF:

Pierre Devinat.

The following is the English version of the reasons for judgment of the Court

[1]        The Court: This appeal from a judgment of the Trial Division[1] has to do with the scope of the duty imposed on a “federal board, commission or other tribunal”, such as the Immigration Appeal Board (the Board or the respondent) to translate its decisions into either of Canada’s two official languages. The case turns on section 20 of the Official Languages Act (the OLA);[2] but it assumes that the Court will first rule on the scope of the provisions of Part X [sections 76 to 81] of the OLA and on this Court’s jurisdiction to hear the application for judicial review filed by the appellant. Further, since the application for judicial review is seeking a writ of mandamus requiring the Board to translate into the two official languages all decisions it has rendered from its creation to the date the originating document was filed, up to September 17, 1996,[3] the Court must rule on the feasibility of issuing such a mandamus if it first comes to the conclusion that it has jurisdiction to hear the case.

[2]        The facts are not in dispute.

[3]        The appellant, a translator and attorney, applied to the Board in 1995 for copies of the French versions of some of its decisions. He was told that the decisions requested had not been translated and that the Board’s decisions generally were not translated. The policy followed by the Board, at the time, in fact indicated that decisions were translated into French on request and available seventy-two hours after receipt of the request. However, the appellant did not ask that they be translated. He explained that the short deadlines he had to meet in his own work as a translator did not allow him to wait for the official translation of the Board’s decisions to be sent to him seventy-two hours after the request.

[4]        On June 7, 1995, the appellant filed a complaint with the Commissioner of Official Languages concerning the respondent’s failure to comply with section 20 of the Act. After holding a preliminary investigation, the Commissioner of Official Languages submitted a draft of his investigation report to the parties on August 26, 1996, for comments. That draft included the following recommendations:[4]

I therefore recommend that:

(1)  IRB decisions selected for publication include a reference to the availability of a translation upon request, and

(2)  any decisions identified for inclusion in the Quicklaw database, relating to a question of law of general public interest or importance, be available simultaneously in both official languages.

[5]        The Commissioner of Official Languages simultaneously announced that he was undertaking a general study of all federal boards, commissions and other tribunals and the obligations imposed on them by Parts III [sections 14 to 20] and IV [sections 21 to 33] of the OLA. This study would analyse the question of the translation of all the decisions pursuant to subsection 20(2) of the OLA. The Commissioner of Official Languages suspended his investigation on this aspect of the matter until the study was complete.

[6]        This study by the Commissioner of Official Languages was published on May 8, 1999, under the title The Equitable Use of English and French before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers.[5] The complaint itself has not been yet finally considered by the Commissioner.

[7]        In a letter of October 16, 1996, the Board indicated to the Commissioner of Official Languages that the two preliminary recommendations made by him seemed reasonable to the Board and that it would be taking steps to implement them. On January 16, 1997, a second draft of the report of the Commissioner of Official Languages, taking the parties’ comments into account, read as follows:

I therefore recommend that the IRB:

(1)  ensure that all decisions relating to a question of law of general public interest or importance, including those selected for publication and notably those which are identified for inclusion in the Quicklaw database, be available simultaneously in both official languages, and;

(2)  ensure that all of its decisions include a reference concerning their availability in either official language.

[8]        However, shortly before that, on September 17, 1996, the appellant had filed an application for judicial review pursuant to paragraph 18(1)(a) of the Federal Court Act (the FCA)[6] asking the Court to issue the aforesaid writ of mandamus.

[9]        The Commissioner of Official Languages was accorded the status of intervener before the Motions Judge, with leave to file a memorandum concerning the interpretation of the relevant provisions of the OLA and to make representations to the Court on matters relating to official languages. In this the intervener supported all the arguments made and conclusions sought by the appellant.

[10]      The Motions Judge held that subsection 77(1) of the OLA did not permit the appellant to apply to the Federal Court of Canada since the appellant was not a complainant who had sought a remedy under sections 4 to 7 and 10 to 13, Parts IV or V [sections 34 to 38], or section 91 of the Act. On this point the parties in the case and the intervener considered that this conclusion is correct since the complaint deals with section 20, which is to be found in Part III of the OLA. However, the Motions Judge added that subsection 77(5) of the OLA conferred no new right of action on the applicant. Rather, the subsection allowed the applicant to exercise any right of action or remedy in linguistic matters when that right of action or remedy was relied on in proceedings other than proceedings under the OLA. In his view, therefore, subsection 77(5) did not in any way exclude the remedy provided for in section 18.1 [as enacted by S.C. 1990, c. 8, s. 4] of the FCA. However, that remedy only exists when the Board, as a federal board, commission or other tribunal, was exercising a power conferred on it by an Act of Parliament, namely the Immigration Act.[7] The Board’s decision not to translate all its decisions, unless specifically requested, was not a decision taken by the Board pursuant to the Immigration Act. Consequently, section 18.1 of the FCA could not be relied on by the appellant. In conclusion, the Motions Judge dismissed the application for judicial review, but added obiter that the policy followed by the Board was in breach of section 20 of the OLA.

[11]      Only the appellant filed an appeal from this judgment. As there was no notice of a cross-appeal, the appellant argued that the appeal does not concern the Trial Judge’s comment that the Board is not in compliance with section 20 of the OLA. In the appellant’s submission, this comment should therefore be accepted as fact.

[12]      There is no basis for this argument. An appeal relates to the judgment itself, not the reasons for judgment. As the judgment dismissed the application for judicial review, the respondent could not raise any objection since the judgment was in its favour. However, an appeal from the judgment by the appellant allows the respondent to make all the arguments it considers relevant and which have a bearing on the questions of law or fact that were before the Motions Judge or that led to the judgment.

[13]      This appeal consequently raises the following questions:

— Does the Federal Court of Canada have jurisdiction to hear this application for judicial review?

— Does the appellant have standing to act in an application for judicial review?

— What is the true scope of section 20 of the OLA?

— Should the writ of mandamus issue in the case at bar?

[14]      However, we must first examine the Canadian constitutional and legislative background to the OLA.

A.        Status of OLA

[15]      The Supreme Court of Canada recently made important observations on the Official Languages Act in R. v. Beaulac.[8] That judgment concerned section 530 of the Criminal Code [R.S.C., 1985, c. C-46 (as am. by R.S.C., 1985 (1st Supp.), c. 27, ss. 94, 203)]. The Court analysed the section as it related to section 2 of the OLA, section 133 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] and subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].

[16]      Speaking for the majority, Bastarache J. set out the purpose of the OLA, as indicated in section 2 of the Act, as follows:[9]

The objective of protecting official language minorities, as set out in s. 2 of the Official Languages Act, is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees.

[17]      A little further on, he added:[10]

With regard to existing rights, equality must be given true meaning. This Court has recognized that substantive equality is the correct norm to apply in Canadian law. Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada.

[18]      Bastarache J. then recalled the statement by Décary J.A., speaking for the Federal Court of Appeal, in Canada (Attorney General) v. Viola [[1991] 1 F.C. 373 (C.A.), at pages 386-387]:[11]

The 1998 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects “certain basic goals of our society” and must be so interpreted “as to advance the broad policy considerations underlying it”. To the extent, finally, that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political compromise, it requires the courts to exercise caution and to “pause before they decide to act as instruments of change”, as Beetz J. observed in Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al. … [Emphasis in text by Bastarache J.]

[19]      Bastarache J. then said:[12]

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; Renvoi 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.

[20]      Finally, he made this very important comment on Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al. [[1986] 1 S.C.R. 549]:[13]

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official languages communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stand for a restrictive interpretation of language rights, it is to be rejected. [Emphasis in original.]

[21]      It is against the background of this eloquent comment that this Court must now determine whether it has jurisdiction to hear the application made by the appellant.

B. Federal Court of Canada’s jurisdiction to hear this application for judicial review

[22]      There is no doubt that the Board is a “federal board, commission or other tribunal” within the meaning of subsection 2(1) [as am. by S.C. 1990, c. 8, s. 1] of the FCA. This “federal board, commission or other tribunal” is also subject to the OLA and to the provisions of that Act since it is a “federal court” within the meaning of subsection 3(2) and section 20 of the OLA. Subsection 3(2) defines a “federal court” as “any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament”. It must then be determined whether, as the respondent argued, the action brought by the appellant is excluded by Part X of the OLA.[14]

[23]      Part X of the OLA is titled “Court Remedy”. Subsection 77(1) of that Act sets out the types of complaint for which such an action may be brought. Accordingly, it states:

77. (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part.

[24]      Subsection 77(5) states:

77. …

(5) Nothing in this section abrogates or derogates from any right of action a person might have other than the right of action set out in this section. [Emphasis added.]

[25]      The complaint made by the appellant falls under Part III of the OLA, which contains section 20. Subsection 77(5) is linked to section 77, as the first words in that subsection indicate. In the respondent’s submission, section 77 does not preclude any other right of action in respect of complaints relating to sections 4 to 7 and 10 to 13 or Parts IV or V, or based on section 91. However, the situation is different with complaints coming under Part III of the OLA. In the respondent’s submission, subsection 77(5) is of no assistance to the appellant and complaints covered by Part III may only be dealt with in accordance with the investigation procedure laid down in section 56 et seq. of the OLA. The Commissioner of Official Languages may, after investigation, report to the President of the Treasury Board (subsections 62(2) and 63(1)) at the same time as he communicates his conclusions to the complainant (section 64). He may also elect to inform the Governor in Council (subsection 65(1)) or Parliament, either in his annual report or in a special report (sections 66 and 67). However, in the respondent’s submission, a court action may not be brought by the appellant.

[26]      The respondent said that the OLA contains a complete code. In the cases mentioned in Part X of the OLA, a complainant may bring an action in the courts. In other cases, it is for the Treasury Board, the Governor in Council or Parliament to take action on the report by the Commissioner of Official Languages. In the case at bar, the respondent submitted, the complainant does not have the right to go to the courts.

[27]      The appellant submitted, for his part, that the application of subsection 77(5) is not limited to section 77 and he retains his right to bring a court action for any other complaint not covered by the procedure laid down in section 77.

[28]      Regardless of the meaning to be given to subsection 77(5), on which it is not necessary for the Court to rule, the respondent’s argument in my opinion is not justified. For such a strict interpretation to be accepted, the exclusion would have to be made expressly. It clearly cannot be presumed.

[29]      English law is clear on this point. In Ashby v. White,[15] Holt C.J. laid down the now well-known rule:

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.

[30]      In Board v. Board,[16] the Judicial Committee of the Privy Council also noted:

If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.

[31]      This statement by the Judicial Committee of the Privy Council in Board v. Board also refers to the theory of “inherent jurisdiction”, which has been reiterated by the Supreme Court of Canada on several occasions.[17] In Canada (Human Rights Commission) v. Canadian Liberty Net, Bastarache J. indicated for the majority that the theory in question “arises from the presumption that if there is a justiciable right, then there must be a court competent to vindicate the right”.[18]

[32]      It is true that this Court is not a successor to the royal courts: but both section 18.1 of the FCA and Canadian Liberty Net recognized that it has clear and complete jurisdiction in matters of judicial review.

[33]      However, the respondent submitted that in Canada (Attorney General) v. Viola,[19] this Court stated that the OLA “[did] not create new jurisdictions other than those, vested in the Commissioner of Official Languages and the Federal Court Trial Division, which it creates expressly”.[20] It argued that, apart from this express jurisdiction, the Federal Court of Canada is not empowered to hear a case like the one at bar.

[34]      The issue in Viola concerned the jurisdiction of an appeal board acting under the Public Service Employment Act[21] to consider the legality or validity of the language requirements for a position. Noting that the jurisdiction of an appeal board was itself the outcome of a compromise arrived at by the legislature to accommodate the responsibilities assigned to the Treasury Board, the Department concerned and the Public Service Commission, Décary J.A., speaking for the Court, describes as follows his hesitation about augmenting or expanding the appeal board’s jurisdiction:[22]

Just as I would hesitate to diminish it, for fear of putting at risk the balance which was sought and has probably been attained, so I would hesitate to augment it in the absence of any clear invitation to do so by the legislature. (See Goodyear Tire and Rubber Company of Canada Limited v. The T. Eaton Company Limited and Others, [1956] S.C.R. 610, in which Fauteux J. said the following at p. 614: “a Legislature is not presumed to depart from the general system of the law without expressing its intentions to do so with irresistible clearness, failing which the law remains undisturbed.”)

[35]      Using the language of Fauteux J. in Goodyear Tire and Rubber Company of Canada Limited v. The T. Eaton Company Limited and Others [[1956] S.C.R. 610], this Court clearly cannot, in the absence of any such express provision, exclude a “federal board, commission or other tribunal” such as the Board from the application of the general system of the law, such as section 18.1 of the FCA.

[36]      Finally, we should note what Décary J.A. did not decide. Accordingly, in concluding his reasons he wrote:[23]

The intervener, the Commissioner of Official Languages, put forward an additional argument in response to those of the respondent: he suggested that under the 1988 Official Languages Act, he alone has jurisdiction to see that the Act is properly administered. At the hearing, his counsel qualified this to say the least bold proposition and argued that as a consequence of Gariépy (supra, note 4), and I would add Kelso (supra, note 3), and in view of the very wording of subsections 77(5) and 78(3), the exclusive jurisdiction claimed by the Commissioner ousted only the jurisdiction of “administrative” tribunals and did not preclude that of “judicial” tribunals. Since I conclude that the 1988 Official Languages Act has not given the appeal board the power to decide on the validity or legality of the language requirements made by a department, I do not have to decide whether recourse to the Commissioner pursuant to that Act is necessarily the only recourse available in terms of “administrative” tribunals, in every case where a breach of the 1988 Official Languages Act is alleged. [My emphasis.]

[37]      It goes without saying that Décary J.A. did not rule on the jurisdiction of “judicial” tribunals under the OLA, and did not preclude it.

[38]      We accordingly conclude that, with respect, the Motions Judge wrongly concluded that the OLA did not allow the appellant to bring the action covered by section 18.1 of the FCA for an alleged breach of section 20 of the OLA.

C. However, does the appellant meet the statutory requirements of section 18.1 of the FCA?

[39]      Subsections 18.1(1) and (2) of the FCA provides:

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.

[40]      The Court must determine whether the appellant is a person “directly affected by the matter in respect of which relief is sought”, whether the Board’s decision not to translate its decisions amounts to a “decision” or “order” and whether the appellant brought his action within the thirty-day deadline laid down by section 18.1(2) of the FCA.

[41]      As he had ruled out the possibility of judicial review, the Trial Judge did not have to rule on these points.

[42]      The Board argued, for its part, that the appellant was not a party to any case before it. There was no “decision” or “order” by the Board, within the meaning of subsection 18.1(2) of the FCA, against which the appellant could file an application for judicial review. He was also not “directly affected by the matter in respect of which relief is sought” within the meaning of the said subsection 18.1(2) of the FCA and the Board had no specific duty to him.

[43]      There is no question that the appellant was affected by the respondent’s omission or failure to translate its orders and decisions. It is this omission to which he is objecting. It is based, first, on a decision relating to the respondent’s decisions and orders such that it can be said that each “decision” or “order” delivered by the respondent also entails a “decision” not to translate them. As this policy is ongoing it may be challenged at any time.[24] Second, this omission is undoubtedly a matter in respect of which the appellant is “affected”. In Krause v. Canada,[25] Stone J.A. noted that the word “matter” had been used by the drafters to cover the variety of administrative actions taken.[26] The appellant was undoubtedly “directly affected by the matter in respect of which relief [was] sought”, since he was himself the subject of this refusal.

[44]      The respondent’s omission was brought to the attention of the appellant in August 1995. The action was brought in this Court on September 17, 1996, that is a year later. Because this omission is ongoing, it runs on a daily basis, so it clearly cannot be argued that the deadlines for filing the action have expired.

[45]      That being so, the appellant submitted that he also meets the common law criteria on standing for anyone representing the public interest.

[46]      The respondent replied in the negative. In its submission the question is not as to the validity or applicability of certain legislation. Rather, it involves determining whether the respondent is in compliance with the OLA. The Commissioner of Official Languages investigated and filed his report. Only he is in a position to represent the public interest, not the appellant. The respondent further submitted that the Commissioner of Official Languages will have to rule on the appellant’s complaint, since his general investigation has now been concluded. If the appellant wishes, he may undoubtedly challenge the conclusions of the Commissioner of Official Languages on his complaint and may do so by a court action. However, the respondent submitted, the appellant does not, as such, have any of the qualifications recognized by the courts to act on behalf of the public interest.

[47]      In Thorson v. Attorney General of Canada,[27] Nova Scotia Board of Censors v. McNeil[28] and Minister of Justice of Canada et al. v. Borowski,[29] the Supreme Court of Canada set out the conditions an applicant should meet to be recognized as having legal standing. Accordingly, speaking for the majority in Borowski, Martland J. wrote:[30]

… to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. [My emphasis.]

[48]      In Finlay v. Canada (Minister of Finance),[31] after the Charter had been adopted, Le Dain J. extended the scope of the trilogy when he held that the courts have a discretion to award public interest standing to challenge an exercise of administrative authority as well as legislation. This conclusion was based on the underlying principle of discretionary standing, which he defined as a recognition of the public interest in maintaining respect for “the limits of statutory authority”.[32]

[49]      In Canadian Council of Churches v. Canada (Minister of Employment and Immigration),[33] however, the Supreme Court of Canada noted per Cory J.:

The increasing recognition of the importance of public rights in our society confirms the need to extend the right to standing from the private law tradition which limited party status to those who possessed a private interest. In addition some extension of standing beyond the traditional parties accords with the provisions of the Constitution Act, 1982. However, I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a well-meaning organisations [sic] pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants. [My emphasis.]

[50]      Finally, the Court reviewed the requirements which must be met by anyone claiming public interest standing:[34]

It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court? [My emphasis.]

[51]      The issue raised in the case at bar is a serious one. It is whether Parliament intended that the Board’s decisions should be available in both official languages and so readily accessible by anyone who has to use those documents. The alleged breach involves a quasi-constitutional duty. The public has an interest in knowing and if necessary determining the scope of the duties which the federal Parliament imposes upon federal tribunals in the quality of the services which must be provided to users. The appellant has a genuine interest in knowing whether he has the same type of access to this knowledge as members of the public speaking the other official language. There is no other reasonable and effective way to bring the issue before the Court. The administrative procedure provided by the OLA, as set out above, does not replace intervention by the courts.

[52]      However, in the case at bar the person directly affected, the appellant himself, brought an action which was available to him, namely the action pursuant to section 18.1 of the FCA. There is thus no basis for ruling on the public interest standing which the appellant might otherwise have.

D. Actual scope of section 20 of the OLA

[53]      It was admitted by each of the parties that the OLA applies to the respondent since it is a “federal court” within the meaning of subsection 3(2) of the OLA.

[54]      Section 20 of the OLA states:

20. (1) Any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where

(a) the decision, order or judgment determines a question of law of general public interest or importance; or

(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.

(2) Where

(a) any final decision, order or judgment issued by a federal court is not required by subsection (1) to be made available simultaneously in both official languages, or

(b) the decision, order or judgment is required by paragraph (1)(a) to be made available simultaneously in both official languages but the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance,

the decision, order or judgment, including any reasons given therefor, shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.

(3) Nothing in subsection (1) or (2) shall be construed as prohibiting the oral rendition or delivery, in only one of the official languages, of any decision, order or judgment or any reasons given therefor.

(4) No decision, order or judgment issued by a federal court is invalid by reason only that it was not made or issued in both official languages.

[55]      In his written comments the Motions Judge found no difficulty interpreting this section.

[56]      First, he summarized the intervener’s position on the scope of section 20:[35]

The intervener began by explaining that the general rule on the language of decisions, orders and judgments is found in subsection 20(2) of the OLA. The rule is that decisions, orders and judgments, including any reasons given therefor, must be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language.

Three qualifiers are associated with this general rule. First, subsection 20(2) also states that each version is effective from the time the first version is effective. Second, subsection 20(3) provides that decisions, orders and judgments and any reasons given therefor may be rendered or delivered orally in only one of the official languages. Finally, subsection 20(4) provides that no decision, order or judgment is invalid by reason only that it was not made or issued in both official languages.

There are two exceptions to this general rule, both of which are found in subsection 20(1): where the decision, order or judgment determines a question of law of general public interest or importance (paragraph 20(1)(a)) or the proceedings leading to its issuance were conducted in whole or in part in both official languages (paragraph 20(1)(b)), it must be made available simultaneously in both official languages.

The first exception includes a sub-exception: where the court is of the opinion that making the decision, order or judgement, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance, the general rule—the “earliest possible time” rule—applies.

The intervener also added the following cautionary statement: section 20 refers to decisions, orders or judgments “issued” in both official languages, not issued in one language and “translated” into the other. This means that both versions are equally authoritative.

[57]      The Motions Judge then concluded [at page 613]:

In my view, the terms of section 20 of the OLA are clear. They require all federal courts, including the respondent, to issue their decisions, orders and judgments in both official languages at the earliest possible time in most cases or simultaneously in the cases provided for in paragraph 20(1)(a), unless this would be seriously prejudicial to the public or result in injustice or hardship to any party, and in paragraph 20(1)(b).

[58]      The Motions Judge then considered whether the Board had performed its duty under section 20 of the OLA. He concluded [at page 614]:

In my view, the respondent is not discharging the duty provided for in section 20 of the OLA. The on-request translation policy does not meet the “earliest possible time” requirement, since it means that most decisions will never be issued in the other official language. If Parliament had wanted federal courts to have an on-request translation policy, it could have so specified.

[59]      The analysis of section 20 of the OLA and the conclusion reached by it appear to the Court to be beyond question.

E. Should mandamus issue in the case at bar?

[60]      In Apotex Inc. v. Canada (Attorney General)[36] Robertson J.A., speaking for the Court of Appeal, summarized in light of existing precedent the general rules governing the issuing of mandamus:

1. There must be a public legal duty to act….

2. The duty must be owed to the applicant….

3. There must be a clear right to performance of this duty, and in particular:

(a) the appellant has satisfied all the conditions precedent giving rise to this duty;

(b) there was (i) a prior demand for performance of the duty, (ii) a reasonable time to comply with the demand unless it was refused outright, and (iii) a subsequent refusal, express or implied, such as an unreasonable delay… .

4. When the duty sought to be enforced is discretionary, the following rules apply….[37]

5. No other adequate remedy is available to the applicant….

6. The order sought will be of some practical value or effect….

7. The Court in the exercise of its discretion finds no equitable bar to the relief sought….

8. On a “balance of convenience”, an order in the nature of mandamus should (or should not) issue.

[61]      The Court has no hesitation in answering the first three conditions in the affirmative. Section 20 of the OLA requires the Board to render its decisions in both official languages according to the procedure laid down in that section. The appellant asked to be given the Board’s decisions by applying to the Board’s translation section. His request was denied on the ground that the decisions were not available in the other official language.

[62]      The conclusions sought by the appellant concern past decisions rendered by the Board since its creation, not those it will render. The Court must therefore consider the impact that the issuing of such a writ could have on decisions rendered prior to this action, as indicated in conditions 6, 7 and 8 set out by Robertson J.A.

[63]      Under the Immigration Act, the Board consists of three divisions: the Convention Refugee Determination Division, the Immigration Appeal Division and the Adjudication Division. It is the administrative tribunal which produces the largest number of decisions of any federal administrative tribunal.

[64]      In an affidavit in the record, the Board explained the number of decisions rendered by each of its divisions as follows. For the Convention Refugee Determination Division, it stated:[38]

[translation] Excluding claims where there was a waiver or discontinuance, the CRDD rendered 16,630 decisions during 1996 and we anticipate that it will render 19,900 decisions in 1997. The vast majority of CRDD hearings are held behind closed doors to protect claimants’ identity. Its decisions and reasons, if any, are communicated to the parties only and not to the public. Some decisions (295 in 1996) are summarized in our publication RefLex (see para. 16) and published in the Quicklaw database. These decisions are edited to remove identifying information before they are made public and entered in the Quicklaw database.

[65]      For the Adjudication Division, it stated:[39]

[translation] The AD’s mandate is to conduct inquiries in immigration matters and review reasons for detention (see Exhibit B to this affidavit). In 1996 the Adjudication Division completed 7,564 inquiries and 9,790 reviews of reasons for detention, representing a total of 18,354 decisions rendered. In 1996 the number of cases considered by the Division fell by about 18 % compared with earlier years, chiefly because of the adoption of Bill C-44 in July 1995, which brought about a significant reduction in the number of less complex cases, and these are now dealt with by senior immigration officers at the Immigration Centre.

AD decisions are rendered orally and a transcript is not usually produced if [sic] there is a review of the reasons for detention, appeal to the IAD or application for leave to file an application for judicial review with the Federal Court.

[66]      For the Appeal Division the number of cases heard was the following:[40]

[translation] In 1996 the IAD heard 3,610 appeals (2,155 excluding waivers and discontinued appeals), which is an increase of 32 % over decisions rendered in 1995. The number of appeals heard should rise to 4,100 appeals (2,750 excluding decisions without reasons) in coming years because of an anticipated reduction of pending cases.

[67]      Accordingly, in 1996, the Board rendered a total of 38,599 decisions.

[68]      The Board further informed the Court that a number of these decisions had no value as precedents and are currently kept in the archives.

[69]      Additionally, the Board explained the costs involved in translation:[41]

[translation] The cost of translating decisions rendered in 1996 could be thirteen times as much as the amount currently allocated to translation in the budget. Parliament would then have to vote additional funding of over $13 million. Even the cost of translating decisions supplied to Quicklaw in 1996, estimated at $1.6 million in Exhibit M, would be 1.5 times the current budget.

[70]      In his report titled The Equitable Use of English and French Before Federal Courts and Administrative Tribunals Exercising Quasi-judicial Powers[42] mentioned above the Commissioner of Official Languages dealt with decisions rendered in the past by administrative tribunals. He acknowledged the scope of section 20 of the OLA, but also noted that some of the earlier decisions rendered by the respondent could have no value as precedents. It is worth setting out a part of the comments and recommendations of the Commissioner regarding the language of decisions:[43]

(D) Language of Decisions

As our study has pointed out, it is clearly important that judgments and decisions of federal courts and quasi-judicial tribunals which have jurisprudential value or policy significance be routinely available to the public in both official languages. The present scope of Section 20 of the Act is more than sufficient to meet this requirement. Indeed, Section 20 appears so broad as to require the issuance in both official languages of decisions which simply apply well-established law to a set of established facts, in other words, decisions of no particular significance with respect to evolving policy or legal principles.

The present scope of Section 20 seems to place an onerous burden upon some quasi-judicial tribunals without advancing any recognizable policy objective. Even a court of record, such as the Tax Court of Canada, appears to be currently unable to issue every decision of the court in both official languages, although all judgments of policy and legal significance are routinely available in both official languages, as well as those arising out of proceedings where both official languages were used. It seems reasonable that a review take place of the policy reasons which may support the necessity to issue, in the other official language, the purely factually bound decisions arising out of strictly unilingual proceedings. Of course, requests by an individual with a relevant interest for a specific decision should continue to be accommodated, as would appear to be the present policy of the various tribunals reviewed in the course of this study.

Recommendation number six

The Commissioner therefore recommends that the federal Department of Justice review the appropriateness of the current scope of Subsection 20(2)(a) of the Official Languages Act, insofar as it requires the routine issuance in both official languages of decisions of no jurisprudential value or policy significance.

Recommendation number seven

The Commissioner further recommends that, should no significant policy justify the current scope of Subsection 20(2)(a) of the Official Languages Act, the federal Department of Justice consider the possibility of amending the Official Languages Act in order to accord a power of regulation to the Governor in Council to determine which tribunals, if any, should be exempted from the duty to issue in both official languages factually bound decisions of no jurisprudential or policy significance arising out of strictly unilingual proceedings and to establish appropriate categories of decisions accordingly. The criteria for such an exemption should be clearly defined.

[71]      The appellant further acknowledged that the earlier decisions rendered by the respondent from its creation to the date the originating motion was filed, September 17, 1996, do not all have value as precedents. The issuing of a mandamus order that would apply to all earlier decisions would therefore not satisfy the appellant’s objectives, as he would only be concerned with consulting those which have such value. Issuing a mandamus order covering the entire scope of section 20 of the OLA would thus not be justified, since the money spent on translation services would have no practical result. Further, as indicated in the record, there is no question as to the respondent’s good faith. From the outset, it has made every effort to co-operate in the investigation by the Commissioner of Official Languages and has complied promptly with the latter’s recommendations.

[72]      The difficulty in the case at bar is to determine which of the decisions rendered by the respondent have value as precedents and to ensure that those which do are available to researchers and the public in both official languages. That is the true purpose of the proceedings at bar, and this can ultimately only be achieved if the respondent develops relevant administrative standards, subject to approval by the intervener, to resolve this dispute in keeping with the aims of the OLA.

[73]      In the circumstances, in view of the practical effect which the granting of a mandamus would have, especially on the thousands of decisions which there is no interest in translating, and bearing in mind the balance of convenience, we feel that it would not be advisable to make a mandamus order for the past.

[74]      That being said, it is clear that the present policy followed by the respondent is a departure from the Act and that, as of the date of this judgment, it will have no choice but to comply with the Act, unless legislative amendments are made to section 20 of the OLA.

[75]      The parties agreed that each would pay its own costs.

[76]      For these reasons, the appeal should be dismissed without costs.

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