Canadian Association of the Deaf et al. v. Canada, (2006) 298 F.T.R. 90 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: February 02, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 298 F.T.R. 90 (FC);2006 FC 971

Cdn. Deaf Assoc. v. Can. (2006), 298 F.T.R. 90 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. AU.030

The Canadian Association of the Deaf, James Roots, Gary Malkowski, Barbara LaGrange and Mary Lou Cassie (applicants) v. Her Majesty the Queen (respondent)

(T-1720-04; 2006 FC 971)

Indexed As: Canadian Association of the Deaf et al. v. Canada

Federal Court

Mosley, J.

August 11, 2006.

Summary:

The applicants, the Canadian Association of the Deaf and four individuals, claimed that the federal government's Guidelines for administration of its Sign Language Interpretation Policy denied deaf and hard of hearing Canadians the opportunity to fully participate in government programs. The applicants sought a declaration that rights of the individual applicants under s. 15 of Charter were violated on the basis of disability and that professional sign language interpretation services were to be provided and paid for by the Government of Canada, upon request, where a deaf or hard of hearing person accessed services from the Government of Canada or sought input in government decision-making.

The Federal Court allowed the application, holding that the applicants established a breach of the Charter and were entitled to a remedy by way of declaration of rights.

Administrative Law - Topic 25

Abuse of process - Multiplicity of proceedings - The applicants, the Canadian Association of the Deaf (CAD) and four individuals, claimed that the federal government's Guidelines for administration of its Sign Language Interpretation Policy denied deaf and hard of hearing Canadians the opportunity to fully participate in government programs - The applicants sought a declaration, inter alia, that rights of the individual applicants under s. 15 of Charter were violated on the basis of disability - The Crown argued that the application was improperly constituted because the applicants had consolidated the challenge of four separate matters into a single judicial review application contrary to rule 302 of the Federal Courts Rules, 1998 - The Federal Court allowed the application to proceed, stating that it would be unreasonable to split the application - There was commonality among the four applicants in this case since their situations arose out of the application of the same set of guidelines for the provision of interpretation services - See paragraphs 58 to 66.

Administrative Law - Topic 3306

Judicial review - Bars - Delay - The applicants, the Canadian Association of the Deaf (CAD) and four individuals, claimed that the federal government's Guidelines for administration of its Sign Language Interpretation Policy denied deaf and hard of hearing Canadians the opportunity to fully participate in government programs - The applicants sought a declaration, inter alia, that rights of the individual applicants under s. 15 of Charter were violated on the basis of disability - The Crown argued that the application was out of time because it was not commenced within 30 days after the time the decision or order was first communicated contrary to s. 18.1(2) of the Federal Courts Act and the applicants failed to seek an extension of time under rule 8 - The factual circumstances alleged by the applicants occurred more than two years prior to the commencement of their application - The Federal Court accepted the applicants' contention that where the judicial review application was not in respect of a tribunal's decision or order, as here, the 30 day limit did not apply - Further, delay was not a bar to the application because in this case the delay was not unreasonable - See paragraphs 67 to 74.

Administrative Law - Topic 3342

Judicial review - Practice - Limitation period - [See Administrative Law - Topic 3306 ].

Administrative Law - Topic 4567

Judicial review - Declaratory action - Bars - Lack of justiciable issue - The applicants, the Canadian Association of the Deaf (CAD) and four individuals, claimed that the federal government's Guidelines for administration of its Sign Language Interpretation Policy denied deaf and hard of hearing Canadians the opportunity to fully participate in government programs - The applicants sought a declaration, inter alia, that rights of the individual applicants under s. 15 of Charter were violated on the basis of disability - The Crown argued that this matter was not justiciable - The Crown submitted that although framed as a challenge to the discriminatory implementation of a government program, the applicants' purpose, at least in part, was to seek judicial review of the policy decision to transfer responsibility for the procurement and payment of visual interpretation services from the Translation Bureau to individual government departments - The Crown claimed that the applicants, in effect, were asking the court to prescribe the manner in which the federal government provided such services - To that extent, the relief sought would be outside the proper scope of the Court's role and inconsistent with the institutional character of the judiciary - The Federal Court rejected the Crown's argument, holding that this was a justiciable issue - See paragraphs 75 to 78.

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of a physical disability or mental handicap - The applicants, the Canadian Association of the Deaf and four individuals, claimed  that the federal government's Guidelines for administration of its Sign Language Interpretation Policy denied deaf and hard of hearing Canadians the opportunity to fully participate in government programs - The applicants sought a declaration that rights of the individual applicants under s. 15 of Charter were violated on the basis of disability and that professional sign language interpretation services were to be provided and paid for by the Government of Canada, upon request, where a deaf or hard of hearing person accessed services from the Government of Canada or sought input in government decision-making - The Federal Court held that the application of the policy and guidelines violated s. 15 of the Charter - The court crafted a declaration accordingly as to what sign language interpretation services were to be provided and paid for by the Government of Canada - See paragraphs 83 to 128.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - [See Civil Rights - Topic 974 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - The applicants, the Canadian Association of the Deaf (CAD) and four individuals, claimed that the federal government's Guidelines for administration of its Sign Language Interpretation Policy denied deaf and hard of hearing Canadians the opportunity to fully participate in government programs - The applicants sought a declaration, inter alia, that rights of the individual applicants under s. 15 of Charter were violated on the basis of disability - The Crown argued that the CAD, lacked standing - CAD sought to be accorded public interest standing - The Crown argued that the CAD lacked public interest standing because there was another effective means by which the matter could be placed before the courts (i.e., by having other applicants who were directly affected by the matters at issue asserting their own claims) - The Federal Court granted the CAD public interest standing - The court stated that the application would not have been brought in this case without CAD's initiative and resources - The court was satisfied that the association was a necessary party to have the issues litigated - Most of the individual applicants could not have pursued the claim on their own - See paragraphs 49 to 57.

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - [See Administrative Law - Topic 4567 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - General - [See Administrative Law - Topic 25 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - [See Civil Rights - Topic 8583 ].

Cases Noticed:

Ethier v. Royal Canadian Mounted Police (Commissioner), [1993] 2 F.C. 659; 151 N.R. 374 (F.C.A.), refd to. [para. 26].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241; 119 D.L.R.(4th) 224, refd to. [para. 51].

Borowski v. Canada (Minister of Justice and Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; 130 D.L.R.(3d) 588, refd to. [para. 52].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, refd to. [para. 54].

Maurice et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (1999), 183 F.T.R. 9 (T.D.), refd to. [para. 54].

Khadr et al. v. Canada (Minister of Foreign Affairs) (2004), 266 F.T.R. 20; 2004 FC 1145, refd to. [para. 60].

Pfeiffer v. Superintendent of Bankruptcy et al. (2004), 322 N.R. 62; 2004 FCA 192, refd to. [para. 61].

Puccini v. Director General, Corporate Administrative Services, Agriculture Canada, [1993] 3 F.C. 557; 65 F.T.R. 127 (T.D.), refd to. [para. 62].

Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al. (2004), 251 F.T.R. 155; 2004 FC 658, refd to. [para. 64].

Council of Canadians et al. v. Director of Investigation and Research, Competition Act et al. (1996), 124 F.T.R. 269 (T.D.), affd. (1997), 212 N.R. 254 (F.C.A.), refd to. [para. 69].

Sweet et al. v. Canada (1999), 249 N.R. 17 (F.C.A.), refd to. [para. 72].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; 88 D.L.R.(4th) 1, refd to. [para. 73].

Larny Holdings Ltd. v. Canada (Minister of Health) (2002), 222 F.T.R. 29; 2002 FCT 750, refd to. [para. 73].

Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; 256 N.R. 85; 189 D.L.R.(4th) 96 (F.C.A.), refd to. [para. 76].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 84].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 86].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 151 D.L.R.(4th) 577, refd to. [para. 86].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 88].

Veffer v. Canada (Minister of Foreign Affairs) (2006), 291 F.T.R. 250; 2006 FC 540, refd to. [para. 88].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 95].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 98].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 99].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161; 142 D.L.R.(4th) 385, refd to. [para. 101].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 119].

Statutes Noticed:

Canada, Department of Public Works and Government Services Canada, Sign Language Interpretation Policy, generally [para. 1 et seq.].

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 83].

Federal Court Rules, 1998, rule 302 [para. 59].

Authors and Works Noticed:

Roots, James, and Kerr, David, The Employment and Employability of Deaf Canadians (1998), generally [para. 105].

Counsel:

Scott Simser, for the applicants;

Farhana Parsons, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on February 2, 2006, by Mosley, J., of the Federal Court, who delivered the following decision on August 11, 2006.