Lalonde et al. v. Commission de restructuration des services de santé (Ont.), (2001) 153 O.A.C. 1 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: December 07, 2001
• Jurisdiction: Ontario
• Citations: (2001), 153 O.A.C. 1 (CA)

Lalonde v. Health Restructuring (2001), 153 O.A.C. 1 (CA)

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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Temp. Cite: [2001] O.A.C. TBEd. DE.025

Gisèle Lalonde, Michelle de Courville Nicol and Hôpital Montfort (applicants/respondents in appeal) v. Commission de restructuration des services de santé (respondent/appellant) and the Commissioner of Official Languages of Canada, the Attorney General of Canada, La Fédération des Communautés francophones et acadienne du Canada and L'association canadienne française de l'Ontario (interveners)

(C33807)

Indexed As: Lalonde et al. v. Commission de restructuration des services de santé (Ont.)

Ontario Court of Appeal

Weiler and Sharpe, JJ.A. and Rivard, J.(ad hoc)

December 7, 2001.

Summary:

The Health Services Restructuring Commission was established in April 1996 to restructure the provision of health care to Ontario communities by public hospitals. The Commission was empowered to issue directions in the Health Minister's place. The Commission, in completing its mandate, issued "Directions" ordering the Hôpital Montfort to substantially reduce its health services. Hôpital Montfort was the only hospital in Ontario in which the working language was French and where services in French were available on a full-time basis. Montfort served as the community hospital for the substantial francophone community of eastern Ontario and facilitated the education and training of French-speaking health care professionals. The applicants (two individuals and the Hôpital Montfort) sought to quash the Commission's Directions.

The Ontario Divisional Court, in a decision reported 131 O.A.C. 201, allowed the application and remitted the question of the restructuring of health services at Hôpital Montfort to the Commission for reconsideration. Thereafter, the Minister of Health ("Ontario") replaced the Commission. Ontario appealed, arguing that the Divisional Court erred in fact and in law in ordering it to reconsider the directions to Montfort. Montfort cross-appealed from the Divisional Court's ruling that the Commission's directions did not infringe the equality guarantees in s. 15 of the Charter.

The Ontario Court of Appeal dismissed the appeal and affirmed the order quashing the Commission's directions. The matter was remitted to the Minister for reconsideration. The court held that there were two reasons for quashing the order; namely, the directions failed to respect the requirements of the French Language Services Act (Ont.) and the Commission was required by the fundamental principles of the Constitution to give serious weight and consideration to the importance of Montfort as an institution to the survival of the Franco-Ontarian minority. The Commission considered this beyond its mandate and its directions were therefore subject to judicial review. The court dismissed the cross-appeal, finding no violation of s. 15 of the Charter.

Administrative Law - Topic 8905

Boards and tribunals - Duties of - Re application of constitution or constitutional principles - The Health Services Restructuring Commission (Ont.) issued directions requiring the Hôpital Montfort to substantially reduce its health services - Hôpital Montfort was the only truly francophone community hospital in Ontario, which offered services in French on a full-time basis and was used in the education and training of French-speaking health care professionals - The applicants (two individuals and the hospital) sought to quash the Commission's directions, arguing that they violated one of the fundamental organizing principles of the Constitution (i.e., the unwritten principle of respect for and protection of minorities) - The Ontario Court of Appeal set aside the directions where they did not meet the requirements of the French Language Services Act - Secondly, "in exercising its discretion as to what is in the public interest, the Commission was required by the fundamental principles of the Constitution to give serious weight and consideration to the importance of Montfort as an institution to the survival of the Franco-Ontarian minority. The Commission considered this beyond its mandate and its directions are therefore subject to judicial review." - See paragraphs 103 to 188.

Administrative Law - Topic 8905

Boards and tribunals - Duties of - Re application of constitution or constitutional principles - The Health Services Restructuring Commission (Ont.) issued directions requiring the Hôpital Montfort to substantially reduce its health services - Hôpital Montfort was the only truly francophone community hospital in Ontario, which offered services in French on a full-time basis and was used in the education and training of French-speaking health care professionals - The applicants (two individuals and the hospital) sought to quash the Commission's directions - The Ontario Court of Appeal stated that "the Commission offered no justification for diminishing Montfort's important linguistic, cultural, and educational role for the Franco-Ontarian minority. It said that matter was beyond its mandate. The Commission failed to pay any attention to the relevant constitutional values, nor did it make any attempt to justify departure from those values on the ground that it was necessary to do so to achieve some other important objective. While the Commission is entitled to deference, deference does not protect decisions, purportedly taken in the public interest, that impinge on fundamental Canadian constitutional values without offering any justification." - See paragraph 184.

Civil Rights - Topic 2710

Language - General principles - Section 16(3) of Charter (incl. interpretation and effect of) - The Health Services Restructuring Commission (Ont.) issued directions requiring the Hôpital Montfort, the only truly francophone community hospital in Ontario, to substantially reduce its health services - The applicants (two individuals and the hospital) sought to quash the Commission's directions, arguing that once the province established Montfort as a homogeneous francophone institution, s. 16(3) of the Charter provided a constitutional shield, limiting the right of Ontario to affect or reduce that status - The applicants argued that the constitutional objective embodied in s. 16(3) of advancing toward the substantive equality of Canada's two official languages was to be achieved by means of a "ratchet" principle (i.e., once Ontario moved in the direction of advancing the substantive equality of French, "s. 16(3) 'ratchets' that step to the level of a constitutional right, limiting any retreat from that advance" unless properly justified) - The Ontario Court of Appeal was not persuaded that s. 16(3) included a "ratchet" principle that clothed measures taken to advance linguistic equality with constitutional protection - The effect of s. 16(3) was to "protect, not constitutionalize, measures to advance linguistic equality" - See paragraphs 90 to 95.

Civil Rights - Topic 2710

Language - General principles - Section 16(3) of Charter (incl. interpretation and effect of) - Section 16(3) of the Charter provided that the Charter did not limit the authority of Parliament or a legislature to advance the equality of status or use of English and French - The Ontario Court of Appeal stated that "we are not persuaded that s. 16(3) includes a 'ratchet' principle that clothes measures taken to advance linguistic equality with constitutional protection. Section 16(3) builds on the principle established in Jones v. New Brunswick (A.G.) [1975] ... 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, not constitutionalize, 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 paragraph 92.

Civil Rights - Topic 2710

Language - General principles - Section 16(3) of Charter (incl. interpretation and effect of) - The Ontario Court of Appeal stated that "the F.L.S.A. [French Language Services Act] is an example of the provincial legislature of Ontario using s. 16(3) to build on the language rights contained in the Constitution Act, 1867 and the Charter to advance the equality of status or use of the French language. The aspirational element contained in s. 16(3) - advancing the French language toward substantive equality with the English language in Ontario - is of significance in interpreting the F.L.S.A." - See paragraph 129.

Civil Rights - Topic 2710

Language - General principles - Section 16(3) of Charter (incl. interpretation and effect of) - The Health Services Restructuring Commission (Ont.) issued directions requiring the Hôpital Montfort, the only truly francophone community hospital in Ontario, to substantially reduce its health services - The applicants (two individuals and the hospital) sought to quash the Commission's directions, arguing that once the province established Montfort as a homogeneous francophone institution, s. 16(3) of the Charter provided a constitutional shield, limiting the right of Ontario to affect or reduce that status - The Ontario Court of Appeal stated that "Montfort is a public hospital that provides services in French. Section 16(3) of the Charter does not constitutionally enshrine Montfort because it is not a rights-conferring provision. Because Montfort is not constitutionally protected by s. 16(3), Ontario can, subject to what follows, alter the status of Montfort as a community hospital without offending s. 16(3)." - See paragraph 95.

Civil Rights - Topic 2864

Language - Right to use French or English in dealings with the public service - Hospitals - [See first Administrative Law - Topic 8905 , fourth Civil Rights - Topic 2710 and Civil Rights - Topic 5660.3 ].

Civil Rights - Topic 5655.1

Equality and protection of the law - Provincial health benefits - [See Civil Rights - Topic 5660.3 ].

Civil Rights - Topic 5660.3

Equality and protection of the law - Language rights - The Health Services Restructuring Commission (Ont.) issued directions requiring the Hôpital Montfort, the only truly francophone community hospital in Ontario, to substantially reduce its health services - The applicants (two individuals and the hospital) sought to quash the Commission's directions, alleging a violation of s. 15 of the Charter - The Ontario Divisional Court rejected this submission, holding that "s. 15 of the Charter may not be used as a back door to enhance language rights beyond what is specifically provided for elsewhere in the Charter" - Further, given the very specific and detailed provisions of ss. 16 to 23 of the Charter dealing with the special status of English and French, any differential treatment to francophones resulting from the Commission's directions was not based upon an enumerated or analogous ground On appeal, the Ontario Court of Appeal refused to disturb the Divisional Court's ruling - See paragraphs 96 to 102.

Civil Rights - Topic 8484

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Language rights - [See all Civil Rights - Topic 2710 and Civil Rights - Topic 5660.3 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5660.3 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See Civil Rights - Topic 5660.3 ].

Constitutional Law - Topic 5

General principles - Canadian constitution - What constitutes - The Ontario Court of Appeal noted that in the Secession Reference (1988), the Supreme Court of Canada "affirmed the existence of unwritten constitutional rules 'not expressly dealt with by the text of the Constitution' but which nonetheless have normative force as operative instruments of our constitutional order. The Court identified ... 'four fundamental and organizing principles of the Constitution' ... federalism, democracy, constitutionalism and the rule of law, and respect for minorities. These unwritten principles, said the Court ... 'inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based.' The Court held ... that the unwritten principles represent the Constitution's 'internal architecture' and 'infuse our Constitution and breathe life into it'. Further, '[t]he principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.'" - See paragraphs 103, 104.

Constitutional Law - Topic 5

General principles - Canadian constitution - What constitutes - The Ontario Court of Appeal referred to four fundamental unwritten constitutional principles; namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities - The court then discussed how each principle related to the issue of linguistic minorities - See paragraphs 105 to 114.

Constitutional Law - Topic 5

General principles - Canadian constitution - What constitutes - The Ontario Court of Appeal referred to four fundamental unwritten constitutional principles; namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities - The court discussed how to apply these unwritten constitutional principles See paragraphs 115 to 126.

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism - The Ontario Court of Appeal referred to four fundamental unwritten constitutional principles; namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities The court stated that "federalism, the division of legislative power between the Parliament of Canada and the provincial legislatures, reflects a fundamental fact of Canada's constitutional and political structure ... Federalism is, as the Supreme Court of Canada explained in the Secession Reference ... 'a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today ... Federalism was the political mechanism by which diversity could be reconciled with unity.'" - See paragraph 105.

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism - The Ontario Court of Appeal referred to four fundamental unwritten constitutional principles; namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities The court stated that "the federalism principle has an important bearing on the situation of cultural and linguistic minorities. The reality of the distinctive language and culture of the French speaking majority of Quebec was unquestionably a principal and defining feature of the Canadian union of 1867 as it required the adoption of a federal structure in the first place. As the [Supreme] Court explained in the Secession Reference ... 'the federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture'." - See paragraph 106.

Constitutional Law - Topic 5.2

General principles - Unwritten constitutional principles - Democracy - The Ontario Court of Appeal referred to four fundamental unwritten constitutional principles; namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities - The court stated that "democracy, as the Supreme Court said in the Secession Reference ... is 'a fundamental value in our constitutional law and political culture' and ... 'a baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated.' Although not mentioned in the text of the Constitution Act, 1867, democracy has always been a fundamental feature of our constitutional structure. In relation to minorities, democracy means more than simple majority rule ..." - See paragraph 107.

Constitutional Law - Topic 5.3

General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The Ontario Court of Appeal referred to four fundamental unwritten constitutional principles; namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities - The court stated that "constitutionalism and the rule of law are cornerstones of the Constitution and reflect our country's commitment to an orderly and civil society in which all are bound by the enduring rules, principles, and values of our Constitution as the supreme source of law and authority." - See paragraph 108.

Constitutional Law - Topic 5.3

General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The Ontario Court of Appeal referred to the three essential elements of the rule of law: "First, the law is supreme over both governments and private persons: '[t]here is ... one law for all.' Second, the creation and maintenance of a positive legal order is the normative basis for civil society. The third feature is that the exercise of public power must be based on a legal rule that governs the relationship between the state and the individual." - See paragraph 108.

Constitutional Law - Topic 5.3

General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The Ontario Court of Appeal stated that the "principle of constitutionalism rests on the proposition that the Constitution is the supreme source of law and that all government action must comply with its requirements. Constitutionalism qualifies majority rule and, like federalism, has an important bearing on minorities. As the [Supreme] Court explained in the Secession Reference ... the constitutional entrenchment of rights protects these rights against the will of the majority and ensures that they are given due regard and protection. A constitution may, the Court explained ... 'seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority.'" - See paragraph 110.

Constitutional Law - Topic 5.4

General principles - Unwritten constitutional principles - Respect for and protection of minorities - The Ontario Court of Appeal referred to four fundamental unwritten constitutional principles; namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities - The court quoted the Supreme Court in the Secession Reference as follows: "it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution" - See paragraph 111.

Constitutional Law - Topic 5.4

General principles - Unwritten constitutional principles - Respect for and protection of minorities - The Ontario Court of Appeal stated that "the principle of respect for and protection of minorities is a fundamental structural feature of the Canadian Constitution that both explains and transcends the minority rights that are specifically guaranteed in the constitutional text. This is an area where, ... 'a superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.' This structural feature of the Constitution is reflected not only in the specific guarantees in favour of minorities. It infuses the entire text and, as we have explained, plays a vital role in shaping the content and contours of the Constitution's other structural features: federalism, constitutionalism and the rule of law, and democracy." - See paragraph 114.

Constitutional Law - Topic 5.4

General principles - Unwritten constitutional principles - Respect for and protection of minorities - The Health Services Restructuring Commission (Ont.) issued directions requiring the Hôpital Montfort to substantially reduce its health services - Hôpital Montfort was the only truly francophone community hospital in Ontario, which offered services in French on a full-time basis and was used in the education and training of French-speaking health care professionals - The applicants (two individuals and the hospital) sought to quash the Commission's directions, arguing that they violated one of the fundamental organizing principles of the Constitution (i.e., the unwritten principle of respect for and protection of minorities) - The Ontario Court of Appeal stated that the "Constitution's structural principle of respect for and protection of minorities is a bedrock principle that has a direct bearing on the interpretation to be accorded the F.L.S.A. [French Language Services Act] and on the legality of the Commission's directions affecting Montfort. This bedrock principle also informs our discussion below of the reviewability of the Commission's directions." - See paragraph 125.

Constitutional Law - Topic 5.4

General principles - Unwritten constitutional principles - Respect for and protection of minorities - The Ontario Court of Appeal discussed generally the principles applicable to the interpretation of the French Services Language Act (Ont.) - The court reviewed the context and purpose of the Act and the words and scheme of the Act - The court stated that "the fundamental constitutional principle of respect for and protection of minorities, together with the principles that apply to the interpretation of language rights, require that the F.L.S.A. be given a liberal and generous interpretation." - See paragraphs 127 to 169 and 188.

Constitutional Law - Topic 5.4

General principles - Unwritten constitutional principles - Respect for and protection of minorities - [See Administrative Law - Topic 8905 ].

Constitutional Law - Topic 8

General principles - Canada as a federation - [See first Constitutional Law - Topic 5.1 ].

Constitutional Law - Topic 110

Definitions - "Constitution of Canada" defined - [See first and second Constitutional Law - Topic 5 ].

Constitutional Law - Topic 114

Definitions - Rule of law - [See second Constitutional Law - Topic 5 and first and second Constitutional Law - Topic 5.3 ].

Constitutional Law - Topic 7701

Language rights - General principles - [See first Administrative Law - Topic 8905 , first Civil Rights - Topic 2710 , second Constitutional Law - Topic 5 and third and fourth Constitutional Law - Topic 5.4 ].

Constitutional Law - Topic 7701

Language rights - General principles - The Ontario Court of Appeal stated that language rights are to be treated as fundamental human rights and accorded a generous interpretation by the courts - See paragraph 132.

Constitutional Law - Topic 7736

Language rights - Provincial legislation - Abrogation of language rights - The Health Services Restructuring Commission (Ont.) issued directions requiring the Hôpital Montfort to substantially reduce its health services - Hôpital Montfort was the only truly francophone community hospital in Ontario and had been designated as a public service agency under the French Language Services Act (F.L.S.A.) - The Ontario Court of Appeal held that the Commission's directions did not meet the requirements of the F.L.S.A. - By enacting the F.L.S.A., Ontario bound itself to provide the services offered at Montfort at the time of designation under the Act unless it was "reasonable and necessary" to limit them (a matter not established by the province) - See paragraphs 127 to 169, 188.

Constitutional Law - Topic 7736

Language rights - Provincial legislation - Abrogation of language rights - [See both Administrative Law - Topic 8905 , first, second and fourth Civil Rights - Topic 2710 , Civil Rights - Topic 5660.3 and third Constitutional Law - Topic 5.4 ].

Health - Topic 1030

Services - By government - Restructuring [See both Administrative Law - Topic 8905 , fourth Civil Rights - Topic 2710 , Civil Rights - Topic 5660.3 , third Constitutional Law - Topic 5.4 and first Constitutional Law - Topic 7736 ].

Hospitals - Topic 245

Operation - Administration - Restructuring - [See both Administrative Law - Topic 8905 , fourth Civil Rights - Topic 2710 , Civil Rights - Topic 5660.3 , third Constitutional Law - Topic 5.4 and first Constitutional Law - Topic 7736 ].

Statutes - Topic 504

Interpretation - Quasi-constitutional statutes (e.g., language legislation) - [See fourth Constitutional Law - Topic 5.4 ].

Cases Noticed

RJR-MacDonald Inc. et Imperial Tobacco Ltd. c. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 58].

Secession Reference - see Reference Re Secession of Quebec.

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 79].

Reference Re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 (P.C.), refd to. [para. 81].

Reference Re Authority of Parliament in Relation to the Upper House - see British North America Act and the Federal Senate, Re.

British North America Act and the Federal Senate, Re, [1980] 1 S.C.R. 54, refd to. [para. 81].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 83].

Reference Re Adoption Act, [1938] S.C.R. 398, refd to. [para. 83].

Reference Re Education Act (Que.) - see Renvoi relatif à la Loi sur l'instruction publique, L.Q. 1988, c. 84.

Renvoi relatif à la Loi sur l'instruction publique, L.Q. 1988, c. 84, [1993] 2 S.C.R. 511, refd to. [para. 84].

Roman Catholic Separate Schools (Trustees) for the Ottawa Separate Schools (Trustees) v. Mackell, [1917] A.C. 62, refd to. [para. 85].

Société des Acadien du Nouveau-Brunswick Inc. and Association de conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271, refd to. [para. 91].

Jones v. New Brunswick (Attorney General) - see Official Languages Act, Re.

Official Languages Act, Re, [1975] 2 S.C.R. 182; 1 N.R. 582; 7 N.B.R.(2d) 526, refd to. [para. 92].

Ferrell et al. v. Ontario (Attorney General) (1998), 116 O.A.C. 176; 42 O.R.(3d) 97 (C.A.), refd to. [para. 94].

Baie d'Urgé (Ville) v. Québec (Procureur général), [2001] J.Q. No. 4821 (C.A.), refd to. [para. 97].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 97].

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].

Reference Re Use of French in Criminal Proceedings in Saskatchewan - see Reference Re French Language Rights of Accused.

Reference Re French Language Rights of Accused (1987), 58 Sask.R. 161; 44 D.L.R.(4th) 16 (C.A.), refd to. [para. 98].

McDonnell v. Fédération des Franco-Colombiens (1986), 31 D.L.R.(4th) 296 (B.C.C.A.), refd to. [para. 99].

R. v. Paquette (No. 2) (1987), 83 A.R. 41 (C.A.), refd to. [para. 99].

Riguette v. Canada (Attorney General) - see Ringuette v. Canada (Attorney General) and Newfoundland (Attorney General).

Ringuette v. Canada (Attorney General) and Newfoundland (Attorney General) (1987), 63 Nfld. & P.E.I.R. 126; 194 A.P.R. 126 (Nfld. C.A.), refd to. [para. 100].

Alder et al. v. Ontario et al., [1996] 3 S.C.R. 609; 204 N.R. 81; 95 O.A.C. 1, refd to. [para. 101].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 107].

Reference Re Manitoba Language Rights - see Manitoba Language Rights Reference.

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 109].

R. v. Mercure - see Mecure v. Saskatchewan.

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 112].

Provincial Judges Reference - see Reference Re Remuneration of Judges of the Provincial Court (P.E.I.).

Reference Re Independence and Impartiality of Judges of the Provincial Court (P.E.I.) - see Reference Re Remuneration of Judges of the Provincial Court (P.E.I.).

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 116].

Eurig Estate v. Ontario Court (General Division), Registrar, [1998] 2 S.C.R. 565; 213 N.R. 55; 114 O.A.C. 55, refd to. [para. 122].

Ford v. Quebec (Attorney General) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 133].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 136].

Arsenault-Cameron et al. v. Prince Edward Island, [2000] 1 S.C.R. 3; 249 N.R. 140; 184 Nfld. & P.E.I.R. 44; 559 A.P.R. 44, refd to. [para. 138].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 140].

Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services) (2001), 271 N.R. 104 (S.C.C.), refd to. [para. 168].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 171].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 174].

Saumur v. Quebec (City), [1953] S.C.R. 299, refd to. [para. 174].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 175].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 175].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 177].

Pembroke Civic Hospital et al. v. Health Services Restructuring Commission (Ont.) (1997), 106 O.A.C. 96; 36 O.R.(3d) 41 (Div. Ct.), refd to. [para. 183].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 186].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 186].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 16(1) [para. 87]; sect. 16(3) [para. 89].

Constitution Act, 1867, sect. 93 [para. 80]; sect. 133 [para. 78].

French Language Services Act, R.S.O. 1990, c. F-32, generally [para. 128 et seq].

Ministry of Health Act, R.S.O. 1990, c. M-26, sect. 8(1), sect. 8(8) [para. 8].

Public Hospitals Act, R.S.O. 1990, c. P-40, sect. 6 [para. 11].

Authors and Works Noticed:

Beaudoin, Gerald A., and Ratushny, Ed, The Canadian Charter of Rights and Freedoms (2nd Ed. 1989), p. 675 [para. 92].

Choudhry, Unwritten Constitutionalism in Canada: Where Do Things Stand? (2001), 35 Can. Bus. L.J. 113, p. 115 [para. 176].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 140].

Dyzenhaus and Fox-Decent, Rethinking the Process/Substance Distinction: Baker v. Canada (2001), 51 U.T.L.J. 193, generally [para. 177].

Dyzenhaus, David, The Politics of Deference: Judicial Review and Democracy, in The Province of Administrative Law (1997), 286 [para. 183].

Elliot, Robin, References, Structural Argumentation and the Organizing Principles of Canada's Constitution (2001), 80 Can. Bar Rev. 67, pp. 83 to 86 [para. 118].

Hansard (Ont.) - see Ontario, Hansard.

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Counsel:

Ronald F. Caza, Pascale Giguère and Marc Cousineau, for the respondents;

Janet E. Monor and Michel Y. Hélie, for the appellant;

René Cadieux and Johanne Tremblay, for the intervener, The Commissioner of Official Languages of Canada;

Alain Préfontaine and Warren J. Newman, for the intervener, The Attorney General of Canadas;

François Boileau, for the intervener, La Fédération des communautés francophones et acadienne du Canada;

Paul S. Rouleau and Louise Hurteau, for the intervener L'Association canadienne française de l'Ontario.

This appeal was heard on May 14-17, 2001, by Weiler and Sharpe, JJ.A. and Rivard, J.(ad hoc), of the Ontario Court of Appeal. The following decision was released for the court on December 7, 2001, by Weiler and Sharpe, JJ.A. with Rivard, J.(ad hoc) concurring.