Forget v. Québec (Procureur général) and Office de la langue française, (1988) 87 N.R. 37 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 01, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 87 N.R. 37 (SCC);AZ-88111056;10 CHRR 5454;JE 88-1111;87 NR 37;52 DLR (4th) 432;11 ACWS (3d) 201;[1988] SCJ No 68 (QL);32 Admin LR 211;1988 CanLII 51 (SCC);[1988] 2 SCR 90;[1988] ACS no 68

Forget v. Qué. (P.g.) (1988), 87 N.R. 37 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Le Procureur général du Québec (appellant) v. Nancy Forget (respondent) and Office de la Langue Française and la Corporation Professionnelle des Infirmiers et Infirmières Auxiliaires du Québec (mis-en-cause)

(No. 19091)

Indexed As: Forget v. Québec (Procureur général) and Office de la langue française

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.

September 1, 1988.

Summary:

Nancy Forget, a Quebec resident and candidate to the profession of nursing assistant, was required to take a French language proficiency test by virtue of regulations adopted under Quebec's Charter of the French Language. She repeatedly failed the written portion of the test. She challenged the regulatory provisions setting it up. Forget argued discrimination under Quebec's Charter of Human Rights and Freedoms because she was required to take the test while candidates who had taken at least three years of post-secondary instruction in French were not. She sought a declaration that the relevant regulatory provisions were invalid, that she was entitled to practice her profession and that she was to be exempt from any language test inappropriate to her profession.

The Superior Court, in a judgment summarized at J.E. 82-704, denied the declaration sought. Forget appealed.

The Quebec Court of Appeal, in a judgment reported at [1984] C.A. 492, 7 Admin. L.R. 268, allowed the appeal but only to declare that ss. 2(a) and 3 of the Regulation were invalid. The Attorney General of Quebec appealed on that point.

The Supreme Court of Canada allowed the appeal.

Civil Rights - Topic 903

Discrimination - General principles - Elements - The Supreme Court of Canada held that discrimination under s. 10 of the Quebec Charter of Human Rights and Freedoms consists of three elements: "1) a 'distinction, exclusion or preference'; 2) based on one of the grounds listed in the first paragraph [(race, colour, sex, etc...)]; and 3) which 'has the effect of nullifying or impairing' the right to full and equal recognition and exercise of a human right or freedom" - See paragraph 8.

Civil Rights - Topic 903

Discrimination - General principles - Elements - The Supreme Court of Canada held: "By creating a presumption of appropriate knowledge of French, s. 2(a) of the [Regulation respecting the knowledge of French necessary to obtain a permit from a professional corporation] distinguishes between two classes of candidates: those who, benefiting from this presumption, will not have to submit to a test to assess their level of knowledge of French, and those who, as they cannot rely on the presumption, must take the test specified in s. 3 of the Regulations" - This distinction constitutes one of the elements of discrimination under s. 10 of Quebec's Charter of Human Rights and Freedoms - See paragraphs 6 to 10.

Civil Rights - Topic 1093

Discrimination - Language - Distinction, exclusion or preference based on language - What constitutes - The Supreme Court of Canada held that a regulatory distinction adopted under Quebec's Charter of the French language, between professional candidates who had to take a French language proficiency test and those who were exempt by reason of a regulatory presumption flowing from having taken at least three years of post-secondary instruction in French, was based on language - The reason: when seen in context, the distinction favoured, generally, French speaking persons over non-French speaking persons but the court held that the distinction was not discriminatory - See paragraphs 10 to 17.

Civil Rights - Topic 1094

Discrimination - Language - Whether distinction, exclusion or preference based on language violates a human right or freedom - The Supreme Court of Canada held that a regulatory distinction, based on language, adopted under Quebec's Charter of the French language, between professional candidates who had to take a French language proficiency test and those who were exempt by reason of a regulatory presumption, did not violate equality rights under Quebec's Charter of Human Rights because every candidate had a chance, whether by the test or the presumption, to establish his proficiency in French for obtaining a permit from a professional corporation - See paragraphs 18 to 25.

Courts - Topic 3040

Supreme Court of Canada - Jurisdiction, general - Moot issues - The Quebec Court of Appeal declared void, on the basis of discrimination, regulatory provisions setting up a French language proficiency test for professional candidates - The Attorney General appealed on this issue although the final result did not matter for the respondent nursing candidate whose challenge succeeded - The Supreme Court of Canada held that, although the appeal was moot for the respondent, the issue of the appeal's practical results depended on the interest of the appellant, who had a right to a Supreme Court determination of the validity of his legislative acts - See paragraphs 1 to 4.

Statutes - Topic 5312

Operation and effect - Delegated legislation - Subdelegation, general - The Supreme Court of Canada held that an Office de la langue française regulation setting up French language proficiency tests and subdelegating powers to a committee for the preparation of the test did not constitute an illegal subdelegation - See paragraphs 32 to 36.

Statutes - Topic 5372

Operation and effect - Delegated legislation - Regulations - Validity of, discrimination - The Supreme Court of Canada held that a regulatory distinction, based on language, adopted under Quebec's Charter of the French language, between professional candidates who had to take a French language proficiency test and those who were exempt by reason of a regulatory presumption, was valid under the legislation and acceptable according to the rules of administrative law - See paragraphs 26 to 31.

Cases Noticed:

Johnson v. Commission des affaires sociales, [1984] C.A. 61, folld. [para. 8].

Action Travail des Femmes v. Canadian National Railway Company et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, consd. [para. 20].

Arcade Amusements Inc. v. Montréal, [1985] 1 S.C.R. 368; 58 N.R. 339, folld. [para. 27].

Kruse v. Johnson, [1898] 2 Q.B. 91, consd. [para. 28].

Archbald v. Delisle (1895), 25 S.C.R. 1, refd to. [para. 61].

McKay v. Township of Hinchinbrooke (1894), 24 S.C.R. 55, refd to. [para. 61].

Attorney General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524, refd to. [para. 61].

Attorney General for Alberta v. Attorney General for Canada, [1939] A.C. 117, refd to. [para. 61].

The King ex rel. Tolfree v. Clark, [1944] S.C.R. 69, refd to. [para. 61].

Sun Life Assurance Co. of Canada v. Jervis, [1944] A.C. 111, refd to. [paras. 61 and 64].

Coca-Cola Co. of Canada Ltd. v. Mathews, [1944] S.C.R. 385, refd to. [para. 61].

Collins and The Queen, Re (1973), 13 C.C.C.(2d) 172, refd to. [para. 61].

Cadeddu and The Queen, Re (1983), 41 O.R.(2d) 481, refd to. [para. 61].

Vic Restaurant Incorporated v. City of Montreal, [1959] S.C.R. 58, refd to. [para. 62].

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [para. 62].

International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange, [1967] S.C.R. 628, refd to. [para. 62].

Constitutional Amendment References 1981 (Manitoba, Newfoundland and Quebec), [1982] 2 S.C.R. 793; 39 N.R. 1, refd to. [para. 62].

Statutes Noticed:

Charter of the French language, Act to amend the, S.Q. 1983, c. 56, sect. 9, sect. 50.

Charter of the French language, R.S.Q. 1977, c. C-11, sect. 35, sect. 114(a), sect. 114(d).

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, sect. 10, sect. 16, sect. 17.

Professional Code, R.S.Q. 1977, c. C-26, sect. 1(f), sect. 36(p).

Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, O.C. 2851-77 (1977), 109 G.O. II 4627 [now R.R.Q. 1981, c. C-11, rule 2], sect. 2, sect. 3, sect. 4, sect. 5, sect. 6, sect. 7, sect. 8, sect. 9, sect. 10, sect. 11.

Authors and Works Noticed:

Abella, Rosalie S., Report of the Commission on Equality in Employment (1984) [para. 20].

Proulx, Daniel, "Egalité et discrimination dans la Charte des droits et libertés de la personne: étude comparative" (1980), 10 R.D.U.S. 381 [para. 11].

Counsel:

Pierre Lemieux and André Gaudreau, for the Procureur général du Québec and the Office de la langue française;

Julius Grey and Lynne-Marie Casgrain, for Nancy Forget;

Monique Beaudoin, for the Corporation professionnelle des infirmiers et infirmières auxiliaires du Quebec.

Solicitors of Record:

Lemieux, Gaudreau, Grenier and Hudon, Ste-Foy, Quebec, for the Procureur général du Quebec and the Office de la langue française;

Grey, Casgrain, Biron, Montreal, Quebec, for Nancy Forget;

Monique Beaudoin, Montreal, Quebec, for the Corporation professionnelle des infirmiers et infirmières auxiliaires du Quebec.

This case was heard on December 14, 1987, by Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court was rendered in both official languages on September 1, 1988, and the following opinions were filed:

Lamer, J. - see paragraphs 1 to 37;

L'Heureux-Dubé, J., dissenting - see paragraphs 38 to 65;

Dickson, C.J.C., dissenting - see paragraph 66;

Wilson, J., dissenting - see paragraphs 67 to 69.

Beetz, McIntyre, Le Dain and La Forest, JJ., concurred with Lamer, J.

Estey, J., took no part in the judgment.