Northwest Territories (Attorney General) et al. v. Fédération Franco-Ténoise et al., (2008) 440 A.R. 56 (NWTCA)
| Judge | Hunt, Ritter and Rowbotham, JJ.A. |
| Court | Court of Appeal (Northwest Territories) |
| Case Date | June 27, 2008 |
| Jurisdiction | Northwest Territories |
| Citations | (2008), 440 A.R. 56 (NWTCA) |
N.W.T. (A.G.) v. Franco-Ténoise (2008), 440 A.R. 56 (NWTCA);
438 W.A.C. 56
MLB headnote and full text
Temp. Cite: [2008] A.R. TBEd. OC.001
The Attorney General of the Northwest Territories, The Commissioner of the Northwest Territories, The Speaker of the Legislative Assembly of the Northwest Territories and the Languages Commissioner of the Northwest Territories (appellants/defendants/respondents on cross-appeal) v. Fédération Franco-Ténoise, Éditions Franco-Ténoises/l'Aquilon, Fernand Denault, Suzanne Houde, Nadia Laquerre, Pierre Ranger, and Yvon Dominic Cousineau (respondents/cross-appellants/plaintiffs) and The Attorney General of Canada (respondent on cross-appeal) v. Commissioner of Official Languages for Canada (intervenor)
(AP-2006/014; AP-2006/015; 2008 NWTCA 6; 2008 NWTCA 8)
Indexed As: Northwest Territories (Attorney General) et al. v. Fédération Franco-Ténoise et al.
Northwest Territories Court of Appeal
Hunt, Ritter and Rowbotham, JJ.A.
June 27, 2008 and August 19, 2008.
Summary:
This case presented the first occasion for judicial interpretation of the Official Languages Act (OLA) of the Northwest Territories (NWT) and the scope of French language rights arising from that Act. The plaintiffs were the Fédération Franco-Ténoise (FFT), a community-based organization; the Éditions Franco-Ténoises/L'Aquilon (L'Aquilon), a French language newspaper; and five individual members of the francophone community. They sought a declaration, damages, and other specified relief arising from alleged breaches of their language rights against the Attorney General of the NWT, the Commissioner of the NWT, the Speaker of the Legislative Assembly of the NWT, and the Languages Commissioner of the NWT (collectively, the GNWT), as well as the Attorney General of Canada (AGC).
The Northwest Territories Supreme Court, in a decision reported at [2006] Northwest Terr. Cases 20, found that allegations of systemic violations of the OLA were justiciable. The court held that the OLA was quasi-constitutional legislation that entrenched a regime of mandatory bilingualism in the NWT, and that the language rights created obligations requiring a result of substantive equality. The court found it unnecessary to decide whether the Charter applied to the issues. The court held that the respondents did not have to exhaust their remedies under the OLA before litigating. The court concluded that specific and systemic breaches of the OLA were caused by the Government of the NWT's poor understanding of language rights and failure to implement the OLA efficiently. No breaches were attributed to the AGC. The trial judge ordered a structural remedy that gave the GNWT fairly explicit directions about how to fulfill its obligations to implement the OLA, and also awarded compensatory damages to the individual plaintiffs for breaches of their language rights. Punitive damages were not warranted. Solicitor-client costs were awarded as part of the remedy. The GNWT appealed. The plaintiffs cross-appealed against the GNWT and the AGC.
The Northwest Territories Court of Appeal considered the following issues: (1) whether the court exceeded its authority by failing to limit the trial to breaches of the OLA specified in the pleadings and by granting an order that encroached on the jurisdiction of the GNWT's legislative and executive branches; (2) whether the court erred in its interpretation and application of the OLA and in finding specific breaches of the OLA; (3) whether the court erred in concluding that the plaintiffs did not have to exhaust their remedies under the OLA; (4) whether the court erred in concluding that the OLA required the broadcasting of Legislative Assembly debates and the publication of Hansard in French and whether it erred in concluding that both matters were not subject to legislative privilege; and (5) whether the court erred in granting solicitor-client costs to the plaintiffs. The following issues were raised by the cross-appeal: (1) should the court have decided whether the Charter applied; (2) whether the court erred in not concluding that the Government of Canada had breached Part VII of the Official Languages Act of Canada (OLAC); (3)whether the court erred in refusing to award damages to FFT and L'Aquilon; and (4) whether the court erred in refusing to award punitive damages.
The Northwest Territories Court of Appeal, in a decision reported at paragraphs 1 to 376 below, allowed the appeal in part and dismissed the cross-appeal. The parties, at the court's direction, filed submissions on costs on the appeal and cross-appeal. The defendants argued that each party should bear its own costs on the appeal because of its partial success. It sought repayment from the FFT of the sum it paid for the preparation of the FFT's facta in electronic form. The defendants also sought its costs on the failed cross-appeal. The FFT sought solicitor-client costs on the appeal and cross-appeal as part of an appropriate and just remedy. It asserted that the issues were of national interest. With respect to the electronic conversion costs, it argued that since the defendants pressed the idea of an electronic appeal, they should bear the related costs. In the alternative, the FFT sought special costs under rule 46 of the Rules of the Court of Appeal Respecting Civil Appeals. The AGC sought its costs on the cross-appeal, pointing out that the cross-appeal was distinct from the appeal and was dismissed entirely.
The Northwest Territories Court of Appeal, in a decision reported at paragraphs 377 to 385 below, held that, as between the defendants and the FFT, each side was to bear its own costs of both the appeal and the cross-appeal. There was partial success on the appeal, but the appeal failed to a greater degree than it succeeded. The cross-appeal failed totally, but required less time than the appeal. The defendants were not entitled to repayment of the preparation of the FFT's facta in electronic form. The AGC was entitled to its costs on the cross-appeal under column 5, given that the FFT sought damages against it in excess of $150,000.
Editor's Note: The references in the Memorandum of Judgment of the Court of Appeal (2008 NWTCA 6) are to the unofficial English version of the trial decision. The legislative provisions are found in Appendix A. Appendix B contains a table of acronyms employed in the Memorandum of Judgment. Appendix C contains the similarities and differences between the Charter and the Official Languages Act.
Civil Rights - Topic 2703
Language - General principles - Interpretation of language rights legislation - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) and the scope of French language rights arising from that Act - The plaintiffs were a community-based organization, a French language newspaper, and five individual members of the francophone community - They sought remedies against both the Government of the Northwest Territories (NWT) and the Attorney General of Canada - In determining whether the trial judge erred as to the remedies granted, the Northwest Territories Court of Appeal began with an analysis of s. 32(1) of the OLA (a remedy that the court considers "appropriate and just in the circumstances") - The court noted the following: that official languages statutes were quasi-constitutional and to be given a broad purposive interpretation to achieve the goal of fostering official languages; and that since such statutes mirrored parts of the Charter, its interpretational principles were also relevant - Further support for the approach was found in s. 10 of the NWT Interpretation Act (remedial) - Although the OLA was a quasi-constitutional statute and should be interpreted as such, the court noted that the broad and purposive approach applied to the interpretation of Charter rights should not override the specific words of a statute, and that as an interpretive tool, "Charter values" were limited to circumstances of genuine ambiguity - See paragraphs 58 to 61.
Civil Rights - Topic 2703
Language - General principles - Interpretation of language rights legislation - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) and the scope of French language rights arising from that Act - In determining whether the trial judge erred as to the remedies granted, the Northwest Territories Court of Appeal began with an analysis of s. 32(1) of the OLA, in particular the closing words "appropriate and just in the circumstances", noting that both "appropriate" and "just" were to be considered in fashioning a remedy - The court observed that the synonyms for the word "appropriate", and the juxtaposition of the word "just", suggested that the legislature did not consider that all appropriate remedies would be available to the courts - After noting the jurisprudence that considered the meaning of the words in a bilingual context, the court stated that the phrase "just and appropriate" implied "a degree of proportionality and linkage between the wrong done and the remedy granted" and that "[i]n the context of remedies for breaches of official languages laws, which concern the rights of individuals or smaller groups, the choice of remedy will generally favour something that meets the state's obligation to individuals or smaller groups, and has the least effect on the interests of the majority" - Further, the court observed the five factors to be taken into account in determining what was appropriate and just in the circumstances, per Doucet-Boudreau (S.C.C.) - See paragraphs 62 to 64, and 101.
Civil Rights - Topic 2703
Language - General principles - Interpretation of language rights legislation - This case presented the first occasion for judicial interpretation of the Official Languages Act (OLA) of the Northwest Territories (NWT) and the scope of French language rights arising from that Act - In particular, the case raised the issue of how the concept of substantive equality as to language rights applied to the special demographic and geographic context of the NWT- The trial judge held that the obligations arising from the OLA were obligations of result, relying, in part, on principles of civil law and on Thibodeau v. Air Canada (2005 FC) - She also concluded that the OLA conferred rights of substantive equality and rejected the Government of the Northwest Territories' (GNWT's) position that the legislation imposed only a standard of good faith and reasonableness - The GNWT appealed - The Northwest Territories Court of Appeal first considered whether the trial judge employed incorrect interpretive principles and, if so, whether this led to an error in her overall approach - The court agreed that the trial judge erred in relying on principles of civil law to interpret the OLA, but held that the error did not affect the conclusion - Official language statutes were interpreted by using Charter principles, and the underlying principle was the protection of minorities - Further, the trial judge did apply principles from language rights jurisprudence (especially Beaulac, where the Supreme Court confirmed that substantive equality was the correct norm) - Substantive equality was the result envisaged by the legislature in enacting s. 16 of the Charter and ss. 4 and 5 of the OLA - See paragraphs 121 to 123.
Civil Rights - Topic 2703
Language - General principles - Interpretation of language rights legislation - The plaintiffs were the Fédération Franco-Ténoise (a community-based organization), L'Aquilon (a French language newspaper), and five individual members of the francophone community - They sought remedies jointly and severally against both the Government of the Northwest Territories and the Attorney General of Canada, alleging breaches of the Official Languages Act (OLA) of the Northwest Territories and ss. 16-20 of the Charter - The trial judge decided it was unnecessary to consider the claims under the Charter, having found that the breaches were at the territorial level and that the evidence did not establish any breaches at the federal level - On cross-appeal, the plaintiffs submitted that different principles of interpretation applied when scrutinizing governmental conduct in light of the Charter - The Northwest Territories Court of Appeal held that the trial judge did not err in the exercise of her discretion - The OLA's status was higher than that of other legislation, being quasi-constitutional in nature, and was to be interpreted in accordance with principles used to interpret the Charter, which was "precisely" what the trial judge did - The case could be decided on non-constitutional grounds, a constitutional ground or both, and judicial restraint was appropriate where the decision could be made on the non-constitutional ground - See paragraphs 325 to 329.
Civil Rights - Topic 2703
Language - General principles - Interpretation of language rights legislation - The plaintiffs sought remedies jointly and severally against both the Government of the Northwest Territories (GNWT) and the Attorney General of Canada (AGC) - Against the AGC, the claim was based, inter alia, on the Official Languages Act of Canada (OLAC) - On cross-appeal, the plaintiffs alleged that the trial judge erred in law by failing to consider whether Part VII (Advancement of English and French) of the OLAC required the Government of Canada to actively promote French language services in the NWT - They relied on s. 41 (now s. 41(1)) of the Act - Further, they argued that this obligation was never delegated to the GNWT - They also argued that their attempt to proceed in the Federal Court was defeated on the basis that the action should be heard by the NWT trial court - The Northwest Territories Court of Appeal rejected that ground of appeal for several reasons - First, the court adopted the reasoning of the Federal Court of Appeal in Forum des maires that s. 41 was merely a declaration of principle and therefore not justiciable - Second, the trial court lacked jurisdiction to adjudicate this issue - Section 77 of the OLAC provided remedies for breaches of Part VII, stating that "any person ... may apply to the Court", identified under s. 76 as the Federal Court - Third, none of the parties advanced proof at trial that they had met the prerequisites under s. 77 - Finally, the scope of the complaints at the relevant time was limited by s. 77 to specific parts of the OLAC, which did not include Part VII - See paragraphs 343 to 353.
Civil Rights - Topic 2710
Language - General principles - Section 16(3) of Charter (incl. interpretation and effect of) - [See fourth Civil Rights - Topic 2703 ].
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - This appeal concerned the interpretation of the Official Languages Act (OLA) of the Northwest Territories (NWT); in particular how the concept of substantive equality as to language rights applied to the special demographic and geographic context of the NWT - The Northwest Territories Court of Appeal summarized its conclusions as follows - "The trial judge erred in limiting the latitude to be given to the GNWT [Government of the NWT] in choosing the means to meet its obligations under s. 11(1). The context is extremely important. Given the NWT's unique circumstances, complete bilingualism is impossible to achieve in the provision of all government services. When a required service involves urgent or confidential matters, a member of the public is entitled to communicate with and receive services in French without delay. Ideally, such services will be provided without resort to an interpreter, but given the difficulties of recruitment and other contextual factors in the NWT, that will not always be possible. The trial judge's requirement that a global plan deal with recruitment should assist in making bilingual service providers more available. If the service in question does not involve confidential or urgent services, the GNWT has greater latitude in providing its services. A 1-800 number may fulfill this obligation, and short delays in making services available in French will not constitute violations of the OLA. Although active offers are not generally required, in the context of urgent or confidential circumstances, only with a French greeting will it be obvious that French services are available" - See paragraphs 113 to 240.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - This case presented the first occasion for judicial interpretation of the Official Languages Act (OLA) of the Northwest Territories (NWT) and the scope of French language rights arising from that Act - The appeal concerned, inter alia, whether the trial judge erred by imposing an overly rigid standard of substantive equality and constraining the government's choice of means to satisfy its obligations - The Northwest Territories Court of Appeal first observed that "[t]his is the first case to address the provision of bilingual government services on a large scale and in a multiplicity of contexts" - The court held that the trial judge gave inadequate weight to the overall context of the NWT and failed to take proper account of how the nature of the service being sought might affect the way in which the service was provided - This led to certain errors in her conclusions about how the Government of the NWT could meet its obligations under the OLA generally, and, in some cases, whether individual rights had been breached - Given the context, the court did not agree with the trial judge that use of an interpreter would only suffice "as a last resort and temporary solution" and vacated that portion of her formal judgment requiring interpreters only as a last resort - See paragraphs 124 to 138.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - This appeal concerned, inter alia, whether the trial judge erred in concluding that s. 11(1) of the Official Languages Act (OLA) of the Northwest Territories (NWT) mandated the use of an active offer - The trial judge found that an active offer was an integral part of the substantive equality contemplated by s. 5, whether mentioned or not - The Government of the Northwest Territories (GNWT) appealed, submitting that if the legislature intended to make an active offer an essential part of s. 11(1), it would have said so, as in the case of ss. 28-30 of the Official Languages Act of Canada (OLAC) and s. 28.1 of the Official Languages Act of New Brunswick (OLANB) - The GNWT contended that the legislature was free to enact regulations to provide for an active offer - The Northwest Territories Court of Appeal held that the trial judge erred in finding that an active offer was necessary in all head offices - Section 34(e) provided that the Commissioner of the NWT could make regulations respecting an active offer - The GNWT did not enact regulations, but developed Policy and Guidelines (PGs) which provided for an active offer in specified government offices - This distinguished the OLA from the OLAC and the OLANB - The principles of statutory interpretation and s. 34(e) of the OLA suggested that it was not the legislature's intention to make an active offer a fundamental part of s. 11(1) - Nevertheless, where urgent or highly confidential matters were likely to arise, the person who sought such services in French could not know it was available without an active offer - This was consistent with the GNWT's own policy as found in the PGs - See paragraphs 139 to 144.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - This case presented the first occasion for judicial interpretation of the Official Languages Act (OLA) of the Northwest Territories (NWT) and the scope of French language rights arising from that Act - The Northwest Territories Court of Appeal stated that "[a]t the heart of this case is the meaning of substantive equality in the context of the provision of bilingual government services in the NWT. There is little helpful authority on this issue" - This was the first case to address the provision of bilingual government services on a large scale and in a multiplicity of contexts - The court observed that "[s]ubstantive equality does not exist in a vacuum. Its analysis must be purposive and contextual ... . The context of substantive equality of French and English in the provision of services is informed by the wording of the OLA, the history of language rights in the NWT, and the demographic, geographic and social challenges of the NWT" - See paragraph 128.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - At issue, on appeal, was whether the trial judge erred in her interpretation and application of the Official Languages Act (OLA) of the Northwest Territories (NWT), including whether she misapplied substantive equality of French and English in the provision of government services - The Northwest Territories Court of Appeal found that, regarding head or central offices, the trial judge did not impose a standard of absolute equality; she correctly held that not all employees at such offices must be bilingual - She also correctly reasoned that the public must have the opportunity to communicate with and obtain services from governmental institutions in French - The court observed that s. 11 of the OLA contemplated three different levels of language rights regarding communication with and services from government institutions - Section 11(1) distinguished between the communication with and services from a head office and those with or from other offices - This distinction supported the trial judge's conclusion that the qualifying words in s. 11(1)(a) and s. 11(1)(b) regarding non-head offices ("significant demand" or "reasonable given the nature of the office") granted the Government of the NWT room to manoeuvre - The absence of those qualifying words as to head offices reinforced the conclusion that substantive equality provided less flexibility concerning the availability of bilingual services - See paragraphs 126 to 131.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - The plaintiffs were a community-based organization, a French language newspaper, and five individual members of the francophone community - They sought remedies under the Official Languages Act of the Northwest Territories (OLA), against the Government of the Northwest Territories (GNWT) - In 1999 the Management Board of the Legislative Assembly adopted a policy, long after passage of the OLA, providing that 90 minutes of the Assembly's debates were to be broadcast in English on television and that the following day, the same portion was to be broadcast in two of the other official languages, i.e. French was treated the same as the Aboriginal languages - The trial judge concluded that s. 11(1) of the OLA required legislative debates broadcast in English to be similarly broadcast in French - The GNWT appealed, asserting that because the OLA dealt specifically with the availability of sound recording of debates in s. 7(3), then s. 11(1) should be interpreted to exclude broadcasting of the debates as a service that must be available in French and English - The Northwest Territories Court of Appeal held that the trial judge correctly interpreted s. 11(1) - Broadcasting of the debates was an "available service" - Section 7(3) was not intended to limit the scope of s. 11(1) - The broadcasting policy did not inform the interpretation of s. 11(1) - However, the concept of legislative privilege insulated from judicial review the Assembly's decision in this regard - See paragraphs 260 to 265.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - The plaintiffs sought remedies under the Official Languages Act of the Northwest Territories (OLA) against the Government of the Northwest Territories (GNWT) - The trial judge concluded that s. 7(1) of the OLA required the publication of Hansard in French - The GNWT appealed, alleging that the trial judge failed to consider that in other jurisdictions where Hansard was published in both languages (Canada and New Brunswick), the governing statutes contained more specific language than s. 7(1), and further, that the trial judge failed to give effect to the rules of statutory interpretation concerning bilingual statutes because she neglected to compare the English and French versions of s. 7(1) - The Northwest Territories Court of Appeal held that the trial judge correctly interpreted s. 7 as requiring the publication of Hansard in French - The court first considered the English terms "records and journals of the Legislative Assembly" and the French terms "les archives, comptes rendus et procès-verbaux de l'Assemblée législative", and set out a table comparing the language with the counterpart language of the Official Languages Act of Canada, the Official Languages Act of New Brunswick, the Charter, and the Constitution Act, 1867, and summarized its findings - The Rules of the Legislative Assembly, published only in English, defined Hansard as the "official record" - Thus, the trial judge could not be faulted for concluding that, whatever its origins, Hansard in the NWT was an "official record" covered by s. 7(1) - However, the concept of legislative privilege insulated from judicial review the Assembly's decision in this regard - See paragraphs 269 to 274.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - The plaintiffs sought remedies under the Official Languages Act (OLA) of the Northwest Territories (NWT) against the Government of the Northwest Territories (GNWT) - The trial judge concluded that s. 8 of the OLA required the publication of Hansard in French - The GNWT appealed - The Northwest Territories Court of Appeal held that Hansard was not covered by s. 8 - Neither the terms "government" nor "legislature" was synonymous with "Legislative Assembly", and because Hansard was a publication of the Speaker, it followed that Hansard was not covered by s. 8 - The term "Legislative Assembly" meant something different than "Legislature or Government of the Northwest Territories" employed in s. 8, since ss. 6 and 7 of the OLA used the former term - That view was confirmed by the definition of "Legislature" in s. 28(1) of the NWT Interpretation Act (the Commissioner acting by and with the advice and consent of the Legislative Assembly), making it plain that the Assembly was not the same as the Legislature - Further, in a provincial context the term "government" meant the executive or administrative branch of government, whereas the Assembly was a component of the Legislature - In the NWT context, a like approach would mean that "Legislative Assembly" did not fall under the term "Government" - See paragraphs 275 to 278.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - The plaintiffs sought remedies under the Official Languages Act of the Northwest Territories (OLA) against the Government of the Northwest Territories (GNWT) - The trial judge concluded that s. 8 of the OLA required the publication of Hansard in French - The GNWT appealed, submitting that the trial judge gave too large a meaning to "actes écrits/instruments in writing" in concluding that Hansard fell within those terms - Moreover, they asserted that Hansard was not "établi" in the sense of the counterpart English word "promulgated" - The Northwest Territories Court of Appeal disagreed with the trial judge's conclusion - Section 8 referred to instruments "purporting to be made or issued by or under the authority of the Legislature or Government of the Northwest Territories" - Hansard was published under the authority of the Speaker - For that reason alone, s. 8 did not embrace Hansard - Further, the wording of counterpart provisions in the Official Languages Act of Canada and the Official Languages Act of New Brunswick differed from the OLA and further supported the conclusion that Hansard did not fall under s. 8 - See paragraphs 275 to 280.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - [See Crown - Topic 2207 ].
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - Questionnaires - The plaintiffs included five individuals of the francophone community who alleged specific breaches of the Official Languages Act of the Northwest Territories (OLA) - They sought remedies against the Government of the Northwest Territories (GNWT) - The plaintiff Denault's complaint concerned the Hunter Harvest Questionnaire he received in English over a number of years from the Department of Natural Resources, Wildlife and Economic Development - The trial judge found breaches of s. 11(1) because (i) the questionnaire was not accompanied by an offer of a French version; (ii) Denault was greeted in English when he contacted the Department; and (iii) he was told he had to wait until the next working day to receive service in French - The GNWT appealed - The Northwest Territories Court of Appeal allowed the appeal for two reasons - First, s. 11(1) did not generally require an active offer - Thus, the trial judge erred in law in finding a breach because the questionnaire was not accompanied by an offer of a French version, in concluding that the Department was obligated to make known a telephone number at which to obtain services in French, and in finding a breach by the use of a voice-mail message in English only - Second, given the services Denault sought when he contacted the office (not urgent or confidential), access to a bilingual employee on the next working day met the GNWT's legal obligation under s. 11(1) - See paragraphs 187 to 196.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - Health insurance card - The plaintiffs included five individuals of the francophone community who alleged specific breaches of the Official Languages Act of the Northwest Territories (OLA) - They sought remedies against the Government of the Northwest Territories (GNWT) - The plaintiff Houde complained that she was unable to obtain services in French from the Office of Vital Statistics (Inuvik Office) in relation to the issuance of a health card - Houde was not informed that French services were available, nor was she directed to a francophone employee - The trial judge found that the facts constituted violations of s. 11(1), and awarded Houde $1,200 in compensatory damages - The Inuvik Office, the trial judge reasoned, was the head office of a GNWT institution since the GNWT considered hospitals to be of a nature which justified the use of French - Thus, the nature of the Inuvik Office (in relation to the issuance of cards needed to access hospitals) justified the use of French in the provision of those services - The GNWT appealed - The Northwest Territories Court of Appeal held that s. 11(1)(b) applied to the Inuvik Office, and that the trial judge correctly concluded that Houde was entitled to receive services from it in French - While obtaining a health card was not of such an urgent nature that the GNWT should be denied a choice as to the means by which it provided such services, Houde, however, was never offered any method by which to obtain service in French - The damage award was justified - See paragraphs 204 to 210.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - Public works office - The plaintiffs' complaints concerned certain specific allegations of breaches of the Official Languages Act of the Northwest Territories, including allegations of Laquerre, regarding an office of the Department of Public Works - Laquerre, acting as a community development officer for the francophone association of Fort Smith, telephoned the Public Works office in Fort Smith, to inquire about the business hours - She was greeted in English and not offered the opportunity to speak to a francophone employee - She did not know if the office in Fort Smith was a head office, nor did the trial judge make any finding in that regard - The trial judge concluded that s. 11(1)(a) was breached when Laquerre was not greeted in French and her call was not directed to another office of the Department where she could be served in French - The Government of the Northwest Territories appealed - The Northwest Territories Court of Appeal allowed the appeal - The evidence showed that the Fort Smith Public Works office did not offer services to the public and absent a finding that it was a head or central office, it could not be said that its nature required the provision of French services - See paragraphs 222 to 227.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - Department of Transportation (including manuals) - The plaintiffs' complaints concerned certain specific allegations of breaches of the Official Languages Act of the Northwest Territories, including allegations of Cousineau regarding the Department of Transportation - Cousineau took a course to obtain his professional truck driver's permit - At the transport office in Yellowknife, he was greeted in English and given two manuals for the course, which he asked for in French - After an investigation was carried out by the office, he obtained one of the manuals in French from New Brunswick - Staff at the office were unaware that a computerized French version existed - The trial judge found a breach of s. 11(1) because Cousineau was not greeted in French at the office and did not receive one of the manuals in French, and awarded $750 - The Government of the Northwest Territories appealed, arguing that the absence of a French greeting at the transport office could not ground a finding by the trial judge, because that breach was not specifically pleaded in the amended statement of claim - The Northwest Territories Court of Appeal agreed - Moreover, since there was no obligation to publish the manual in French, no legal liability arose as a result of a failure to do so - The evidence was unclear as to whether the office was a head office - The facts did not entitle Cousineau to damages - See paragraphs 228 to 234.
Civil Rights - Topic 2712
Language - General principles - Institution of the Legislative Assembly and government of the Northwest Territories - Department of Education, Culture and Employment (incl. electrician apprenticeship program) - The plaintiffs' complaints concerned certain specific allegations of breaches of the Official Languages Act of the Northwest Territories, including allegations of Cousineau regarding the Department of Education, Culture and Employment - Cousineau registered for an electrician apprenticeship program - He did not ask to take the courses in French, nor did he ask for a French version of the apprentice form - He received a certificate of apprenticeship in English and never asked for a French version - The trial judge concluded that s. 11(1) had been breached because Cousineau was not informed of the possibility of taking his apprenticeship program in French in New Brunswick, and that the failure to provide a French version of the apprenticeship form and certificate breached s. 8 - The Government of the Northwest Territories appealed, arguing that the trial judge should have refused to rule on Cousineau's apprenticeship certificate because it was not explicitly pleaded in the amended statement of claim - The Northwest Territories Court of Appeal accepted the argument - The court also disagreed that s. 11(1) was breached - Although the office was subject to s. 11(1)(b), Cousineau never asked for services in French and there was no obligation to provide an active offer (non-urgent services) - Further, the apprentice form did not constitute a "document of a formal or official nature" within the scope of s. 8 - See paragraphs 235 to 239.
Civil Rights - Topic 2861
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - General - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) and the scope of French language rights arising from that Act - The plaintiffs included five individuals of the francophone community - They sought remedies against the Government of the Northwest Territories (GNWT) - The trial judge, in her interpretation of the OLA, found that the GNWT breached its obligations to the five individual plaintiffs - The GNWT appealed - The Northwest Territories Court of Appeal assessed the complaints under s. 11(1) of the OLA, in three ways - If the allegation concerned a head office, services in French were required - If the allegation concerned a non-head office, services in French were required only if there were a significant demand (s. 11(1)(a)) or if the nature of the office (s. 11(1)(b)) required such services - The court was not positioned to make findings about significant demand, but was able to draw some conclusions - In its view, a head office designation was justified by the Stanton Hospital because it was the referral centre for the NWT, but there was inadequate evidence to support the same conclusion about the Hay River Hospital - The nature of the Office of Vital Statistics (Inuvik Office) and of the Department of Transportation, brought those offices under s. 11(1)(b) - A like conclusion could not be reached about the Public Works Office in Fort Smith - See paragraphs 180 to 185.
Civil Rights - Topic 2864
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Hospitals - [See Civil Rights - Topic 2861 ].
Civil Rights - Topic 2864
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Hospitals - The plaintiffs included five individuals of the francophone community - They sought remedies under the Official Languages Act of the Northwest Territories against the Government of the Northwest Territories (GNWT) - The complaints included the allegations of the plaintiff Houde regarding the Stanton Regional Hospital - The trial judge found that Houde's rights under s. 11(1) of the OLA were breached because (i) despite the presence of welcome signs in French, she did not benefit from a French greeting at the hospital on a number of occasions; (ii) several times, she was prompted by the hospital to rely on the interpretation skills of her husband and, in some cases, she had to depend on her husband's translation of consent forms; (iii) she was encouraged to make her own arrangements for an interpreter for a consultation with an orthopaedist; and (iv) she did not have access to an interpreter in the recovery room following surgery - The trial judge awarded Houde $12,000 in compensatory damages as well as $750 for her travel to Quebec for surgery - The GNWT appealed - The Northwest Territories Court of Appeal held that the findings were justified by the evidence and the law - See paragraphs 197 to 203.
Civil Rights - Topic 2864
Language - Rights to use French or English in dealings with or within the public service or institutions, etc. - Hospitals - The plaintiffs included five individuals of the francophone community who alleged specific breaches of the Official Languages Act of the Northwest Territories - They sought remedies against the Government of the Northwest Territories (GNWT) - The complaints included the allegations of the plaintiff Ranger regarding the health services in Hay River - Ranger attended the H.H. Williams Memorial Hospital in Hay River, and was greeted in English at the reception desk, despite the active offer sign offering services in three languages including French - He asked to receive services in French but the hospital indicated that no translator was available - The trial judge concluded that s. 11(1) had been breached because the GNWT's Policy and Guidelines required hospitals in designated regions (including Hay River) to offer services in French - The GNWT appealed - The Northwest Territories Court of Appeal allowed the appeal - The Policy and Guidelines were non-binding - There was inadequate evidence to show that the Hay River Hospital fell under s. 11(1)(b) ("it is reasonable, given the nature of the office, that communications with and services from it be available in both French and English") - The court vacated the damages awarded - See paragraphs 211 to 214.
Civil Rights - Topic 2865
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Compulsory return forms - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) and the scope of French language rights arising from that Act - The plaintiffs included five individuals of the francophone community who alleged specific breaches of the OLA - They sought remedies against the Government of the Northwest Territories (GNWT) - The complaints included the allegations of the plaintiff Laquerre regarding the Office of Vital Statistics (Inuvik Office); specifically, the issuance of her daughter Océane's birth certificate following receipt of the "Registration of Live Birth" form - The trial judge concluded that s. 8 of the OLA applied to birth certificates and that Laquerre's rights were breached under that section, as well as s. 11(1), and awarded Laquerre $1,200 in compensatory damages - The conclusions were based on the 10-month delay preceding the issuance of Océane's birth certificate with the correct accent; the fact that the legal size birth certificate was issued in English; and the fact that she was not served in French by the Inuvik Office or the Department of Health in Yellowknife - The GNWT appealed - The Northwest Territories Court of Appeal dismissed the appeal in this regard - A birth certificate was a "document of a formal or official nature" under s. 8 - The court noted its definition in s. 1 of the Vital Statistics Act, and observed that its usefulness was based on its public nature - Further, the court agreed that Laquerre was entitled to be served in French by the Inuvik Office and by the Department of Health in Yellowknife - See paragraphs 215 to 221.
Civil Rights - Topic 2866
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - What constitutes - [See twelfth Civil Rights - Topic 2712 , second Civil Rights - Topic 2864 and Civil Rights - Topic 2865 ].
Civil Rights - Topic 2866.1
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) and the scope of French language rights arising from that Act - The plaintiffs sought remedies against the Government of the Northwest Territories (GNWT) - The appeal concerned, inter alia, some of the remedies granted by the trial judge - The GNWT contended that the trial judge erred by not limiting the trial to specific failures to comply with the OLA; that the remedies granted were beyond what was alleged by the plaintiffs in their pleadings; and that the trial judge imposed a structural remedy when she should have only granted declaratory relief - The Northwest Territories Court of Appeal dismissed this ground of appeal - Trial courts were entitled to entertain constitutional challenges involving systemic violations - The pleadings in this case put in issue systemic violations regarding their quasi-constitutional French language rights and the trial did not exceed the scope of the pleadings - The remedies granted by the trial judge were contemplated by the pleadings - Finally, in general the structural remedy granted by the trial judge was available in law and met the reasonableness standard - See paragraphs 57 to 112.
Civil Rights - Topic 2866.1
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies - The plaintiffs sought a declaration, damages, and other specified relief arising from alleged breaches of their language rights under the Official Languages Act of the Northwest Territories (OLA), against the Government of the Northwest Territories (GNWT) - The trial judge's formal judgment required the GNWT to alleviate ongoing systemic problems - In particular, the trial judge directed that, within one year, a comprehensive implementation plan be drafted to address the provision of French language services, and detailed the ways in which that should be accomplished - She also directed the preparation of regulations designating what institutions were required to comply with the OLA - The GNWT appealed, arguing that the trial judge erred by imposing a structural remedy when she should have only granted declaratory relief and that certain elements of the remedy were not supported by the evidence - The Northwest Territories Court of Appeal examined recent trends in Supreme Court jurisprudence concerning the use of structural remedies, and rejected the arguments - The trial judge was alive to the evidence favouring the plaintiffs' position, and their concerns did not relate to evidence that was crucial or dispositive - The overwhelming bulk of evidence supported the trial judge's conclusions - See paragraphs 81 to 85.
Civil Rights - Topic 2866.1
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies - The plaintiffs sought remedies under the Northwest Territories Official Languages Act (OLA), against the Government of the Northwest Territories (GNWT) - The evidence disclosed pervasive systematic breaching of minority language rights by a myriad of GNWT departments and offices - The trial judge granted a structural remedy - The GNWT appealed, arguing that the selected remedies intruded on the functions of the executive - The Northwest Territories Court of Appeal was not persuaded that the trial judge committed any error of law or principle - The court acknowledged that the granting of a structural remedy against government on a first litigation of a constitutional or quasi-constitutional issue required an exceptional case, and that courts should generally give legislatures the opportunity to institute corrective procedures before telling the legislature how to do so - However, the present case was exceptional - The evidence of breaches was "far from thin" and established a frequency of breach "well beyond" that in the Forum des maires case (2003) (FCA) - A myriad of reports over many years emphasized the flawed implementation of the OLA; the issue had been studied widely without any meaningful improvement; several action plans proposed by the GNWT's own consultants were never implemented; and the Executive Council declined to take concrete steps to implement the OLA - Respect for the role of legislators or the executive did not prevent remedies that were "just and appropriate" in the circumstances - The trial judge was alive to the law outlined in Doucet-Boudreau (2000) (SCC) - See paragraphs 90 to 103.
Civil Rights - Topic 2866.1
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies - The plaintiffs, including the Fédération Franco-Ténoise (FFT), a community-based organization, sought damages and other relief arising from alleged breaches of their language rights under the Northwest Territories Official Languages Act (OLA), against the Government of the Northwest Territories (GNWT) - FFT claimed two heads of damages - First, it claimed compensatory damages as a result of the GNWT's and the Language Commissioner's refusal to communicate with it in French and the fact that the latter's annual report was not available in French until 1998 - Second, FFT sought the creation of a trust fund containing $1 million per year in damages since the proclamation of the Charter ($23 million ), on behalf of French-speakers whose rights were alleged to have been breached - The trial judge refused to award damages to FFT, largely based on her view that the declarations she granted would be "appropriate and just" - On cross-appeal, the plaintiffs asserted that, by denying damages to FFT, the trial judge failed to grant an "appropriate and just remedy" and thus exercised her discretion incorrectly - The Northwest Territories Court of Appeal rejected this ground - There was no error that would justify the court's interference - Absent an error of law, the court would not second-guess the trial judge's assessment - Moreover, her finding that there was an absence of evidence to justify FFT's claim for loss of resources for other purposes provided a complete answer to the second part of its damages claim - She also considered that FFT's claim for $23 million in damages was more properly treated as an application for punitive or exemplary damages - See paragraphs 354 to 363.
Civil Rights - Topic 2866.1
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies - The plaintiffs, including the Éditions Franco-Ténoises/L'Aquilon (L'Aquilon), a French language newspaper, sought damages and other specified relief arising from alleged breaches of their language rights under the Northwest Territories Official Languages Act (OLA), against the Government of the Northwest Territories (GNWT) - L'Aquilon sought over $1 million for its loss of income from 1986 to 2005, because the GNWT refused to publish government notices in both English and French - The trial judge held that any such claim could not predate 1993, the year in which L'Aquilon first complained, and refused to award damages - L'Aquilon also sought $50,000 for loss of reputation since francophone business people could not rely on it for information on GNWT projects - The trial judge rejected the claim, describing the evidence as "quite thin" and adding that nothing obligated the GNWT to use L'Aquilon to publish notices in French - On cross-appeal, the plaintiffs asserted that by denying damages to L'Aquilon, the trial judge failed to grant an "appropriate and just remedy" and thus exercised her discretion incorrectly - The Northwest Territories Court of Appeal rejected this ground - The plaintiffs had not established an error permitting the court's interference - The loss of reputation claim was completely answered by the trial judge - See paragraphs 364 to 365.
Civil Rights - Topic 2866.1
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies - The plaintiffs sought, inter alia, punitive damages arising from alleged breaches of their language rights against the Government of the Northwest Territories (GNWT) as well as the Attorney General of Canada (AGC) - The trial judge rejected the claim for punitive damages - On cross-appeal, the plaintiffs argued that the trial judge applied the wrong principle in rejecting their claim - They cited no case in which punitive damages had been awarded for a Charter breach or breach of language rights - The Northwest Territories Court of Appeal rejected this ground - The court upheld the trial judge's causality finding about the AGC (no alleged breach had caused the resulting harm to the plaintiffs) - The trial judge's findings that the Government of Canada did not exhibit bad faith were solidly based in the evidence - As for the GNWT, the trial judge's findings that there was no abusive, contemptuous or malicious behaviour on the part of the GNWT, nor any bad faith, were justifiable and were a complete answer - See paragraphs 366 to 372.
Civil Rights - Topic 2866.1
Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies - [See Practice - Topic 7408 ].
Civil Rights - Topic 2904
Language - Public notices in French and English - What constitutes a public notice - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) - The plaintiffs were a community-based organization, a French language newspaper, and five individual members of the francophone community - They sought remedies against the Government of the Northwest Territories (GNWT) - The trial judge held that s. 8 of the OLA required official government notices and certificates that attest to a person's status, to be published in French and English - The GNWT appealed, arguing that the English version of s. 8 was narrower, and therefore the trial judge should have attempted to reconcile the shared meaning of the French and English versions - The Northwest Territories Court of Appeal upheld the trial judge's decision - The English version of s. 8 was not narrower than the French - The shared meaning of both was that an "instrument" or "acte" was a document of a formal character that established a fact - When a "document of a formal or official nature" was intended for the notice of the public and purported to be made or issued by the GNWT, it must be promulgated in French and English - The phrase "instruments in writing" was not limited to legal writings - Thus, government notices, whether employment offers, public notices or calls for tenders, were formal notices intended for the public - Similarly, certificates that attested to a person's status were documents of a formal or official nature intended for the public - Further (the court had already held that the trial judge correctly concluded that the OLA intended to create substantive equality with respect to French), it followed that when documents of a formal or official nature intended for the notice of the public were promulgated in English, they must also be in French - "The GNWT does not enjoy room to manoeuvre under s. 8 because the section itself dictates the result" - See paragraphs 145 to 164.
Civil Rights - Topic 2904
Language - Public notices in French and English - What constitutes a public notice - [See fifteenth Civil Rights - Topic 2712 ].
Civil Rights - Topic 2962
Language - Complaints - Jurisdiction - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) - The plaintiffs were a community-based organization, a French language newspaper, and five individual members of the francophone community - They sought remedies jointly and severally against both the Government of the Northwest Territories (GNWT) and the Attorney General of Canada, alleging breaches of, inter alia, ss. 16-20 of the Charter - At trial, the GNWT argued that the alleged systemic breaches were not justiciable and suggested that the trial became an inquiry into the implementation of the OLA - The Northwest Territories Court of Appeal began its analysis with an examination of the role of the courts in assessing allegations of systemic breaches - The court noted the jurisprudence demonstrating that courts have the jurisdiction to hear complaints about systemic Charter breaches and have a role to play in resolving recurring breaches that take place over a long period of time - The court stated that "[m]erely because a court hears such a case, with wide-ranging evidence, does not mean that it is conducting a public hearing or commission" - Similar principles were applicable to quasi-constitutional language cases - See paragraphs 66 to 70.
Civil Rights - Topic 2969
Language - Complaints - Remedies - [See second and third Civil Rights - Topic 2866.1 ].
Civil Rights - Topic 2969
Language - Complaints - Remedies - The plaintiffs were the Fédération Franco-Ténoise (FFT), a community-based organization, the Éditions Franco-Ténoises/L'Aquilon (L'Aquilon), a French language newspaper, and five individual members of the francophone community - They sought damages and other relief arising from alleged breaches of their language rights under the Official Languages Act of the Northwest Territories (OLA), against the Government of the Northwest Territories (GNWT) - The trial judge held that the plaintiffs did not have to exhaust the complaint process under the OLA before seeking a judicial remedy, where there were a large number of complaints; the complaints were not isolated incidents; and the limited responsibilities and powers of the Languages Commissioner of the NWT (LC) could not resolve problems of this magnitude - The GNWT appealed - The Northwest Territories Court of Appeal held that the trial judge correctly found that the plaintiffs were not required to exhaust their remedies under the OLA before litigating - Section 32 granted an injured party recourse before a competent court, and unlike the Official Languages Act of Canada (OLAC), it did not require a party to lodge a complaint with the LC before initiating legal action - The OLA contained neither a privative clause similar to that found in s. 77 of the OLAC, nor any mechanism for an appeal from the LC's recommendations - As a result, exclusivity of remedy could not be assumed - Moreover, it was for courts to determine whether a statutory remedy was adequate - See paragraphs 241 to 251.
Civil Rights - Topic 2970
Language - Complaints - Appeals - This case presented the first time the Official Language's Act (OLA) of the Northwest Territories (NWT) was before the courts - The appeal concerned, inter alia, whether the trial judge exceeded her authority by failing to limit the trial to breaches of the OLA specified in the pleadings and by granting an order that encroached on the jurisdiction of the Government of the NWT's legislative and executive branches - The Northwest Territories Court of Appeal observed that this ground of appeal attracted the following different standards of review - First, the interpretation of s. 32(1) of the OLA was a question of law to be dealt with on the correctness standard - Second, whether the pleadings limited the parameters of the trial involved an extricable legal issue that was to be dealt with on the correctness standard; however, its application involved the exercise of discretion, and the court would only intervene if the trial judge misdirected herself on the law or made a palpable error in assessing the facts - Third, some of the arguments advanced in this part of the appeal involved questions of mixed fact and law or of fact alone, and were reviewable on the palpable and overriding error standard, barring an extricable legal question - Fourth, generally choice of remedy involved the exercise of discretion by the trial judge and would not be interfered with absent a misdirection on the law or a palpable error on the facts - Further, the court noted that s. 32(1) of the OLA, like s. 24(1) of the Charter, provided a superior court with wide and unfettered discretion to grant remedies, subject to challenge only where the order was not appropriate and just in the circumstances - The court concluded that the trial judge's order was not an unreasonable response to the evidence before her, and met the necessary standard of review - See paragraphs 45 to 47, and 110.
Civil Rights - Topic 8304
Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity and retroactivity) - This case presented the first time the Northwest Territories Official Languages Act (OLA) was before the courts - The plaintiffs sought a declaration, damages, and other specified relief arising from alleged breaches of their language rights against the Government of the Northwest Territories as well as the Attorney General of Canada, based, inter alia, on ss. 16-20 of the Charter - The trial judge approached the Charter's application by analysing what obligations existed, whether they were breached and, if they were, who caused the breaches - The trial judge held that no alleged breach had caused the resulting harm to the plaintiffs, and concluded that it was unnecessary to consider the Charter - On cross-appeal, the plaintiffs submitted that even when the issue was moot, a court should answer the constitutional question - The Northwest Territories Court of Appeal held that the trial judge made no error in deciding this aspect of the case on non-constitutional grounds - She applied the correct legal principles and gave sufficient weight to the relevant considerations - Application of the Charter was moot given her conclusions on the causes of the breaches, and the remedy granted was the same as would be available under the Charter - This was unlike the situation in Doucet-Boudreau, where the Supreme Court of Canada decided a moot constitutional question because its decision provided guidance on the remedies under s. 24 of the Charter - See paragraph 338.
Civil Rights - Topic 8304
Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity and retroactivity) - A fundamental issue on the plaintiffs' cross-appeal was whether the trial judge erred by refusing to consider the application of the Charter when the Official Languages Act of the Northwest Territories (OLA) contained the same rights and remedies as the relevant parts of the Charter and when the Government of Canada did not cause any breaches of the OLA - The Northwest Territories Court of Appeal considered the impact, if any, of the Supreme Court of Canada decision in Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada (Paulin), issued post-appeal - The court was of the view that Paulin did not inform the issues in this case - In Paulin, the question was whether the RCMP was an institution of New Brunswick that had to comply with s. 20(2) of the Charter - Because the court upheld the exercise of the trial judge's decision not to determine the Charter issue, the question addressed in Paulin had no relevance - The outcome in this case would be exactly the same under the Charter as under the OLA - That was not so in Paulin - Also, Paulin turned on the construction of a contract between Canada and New Brunswick and the interpretation of federal and provincial policing statutes; there were no counterparts here - Finally, it was difficult to fathom how the RCMP could be equated to the GNWT, a democratically-elected government - See paragraphs 339 to 342.
Civil Rights - Topic 8304
Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity and retroactivity) - The plaintiffs were a community-based organization, a French language newspaper, and five individual members of the francophone community - They sought remedies jointly and severally against both the Government of the Northwest Territories and the Attorney General of Canada, alleging breaches of, inter alia, ss. 16-20 of the Charter - The trial judge approached the issue of the Charter's application by analyzing the case on its merits to determine what obligations existed, whether they were breached and, if they were, who caused the breaches - The trial judge held that no alleged breach had caused the resulting harm to the plaintiffs, and concluded it was unnecessary to consider the Charter - On cross-appeal, the plaintiffs submitted that it was incumbent on the trial judge to first consider the Charter issue, and that because she did not, the Government of Canada (GOC) had been permitted to abdicate its responsibility for language rights in the NWT - The Northwest Territories Court of Appeal upheld the trial judge's approach - The trial judge made economical use of judicial resources - The court further agreed with the trial judge's finding that the GOC did not abdicate its responsibility - The trial judge carefully reviewed the relationship between the two governments, and did not err in the exercise of her discretion - See paragraphs 330 to 338.
Civil Rights - Topic 8581.1
Canadian Charter of Rights and Freedoms - Practice - Charter application - Scope of review - [See Civil Rights - Topic 2962 ].
Courts - Topic 2001.1
Jurisdiction - General principles - Remedies - General - [See Practice - Topic 1308.1 ].
Crown - Topic 12
General principles - General - Crown policy - Effect on substantive rights - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) and the scope of French language rights arising from that Act - The plaintiffs included five individual members of the francophone community - They sought remedies against the Government of the Northwest Territories (GNWT) - The trial judge found that the GNWT breached its s. 11(1) obligations to the individual plaintiffs - In reaching some of her conclusions, she relied on the Policy and Guidelines (PGs) adopted by the Executive Council - The GNWT appealed, submitting that the PGs had no binding legal effect - Since the trial, the GNWT passed some regulations under the OLA, notably, the Government Institution Regulations - Before assessing the specific breaches, the Northwest Territories Court of Appeal first considered the legal status of the PGs and whether the trial judge employed them appropriately - The court concluded that the trial judge erred in relying on the PGs to assess whether the specific breaches were made out - While s. 34 of the OLA referred to regulations, nowhere did it mention guidelines, suggesting that only regulations were intended to have legal effect - The non-binding nature of the PGs required the court to revisit the trial judge's determinations - See paragraphs 166 to 179.
Crown - Topic 2207
Crown privilege or prerogative - General - Parliamentary privilege (incl. legislative) - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) and the scope of French language rights arising from that Act - The Legislative Assembly of the Northwest Territories made an express decision concerning the extent to which debates would be broadcast in French and an implicit decision not to publish Hansard in French - The Northwest Territories Court of Appeal held that those decisions were protected by privilege - The language of s. 11(1) of the OLA required the Government of the NWT to broadcast the legislative debates in French with the same frequency as in English, and Hansard fell under the language of ss. 7(1) and 11(1) - However, legislative privilege over decisions about the publication of Hansard and the broadcasting of the debates had not been abrogated merely by the passage of the OLA - The language of the OLA was not sufficiently explicit to abrogate the legislative privilege for the following reasons - First, at common law a recognized privilege was not abrogated unless by express words in the statute - A second and related reason arose from the Supreme Court's views about the function of that privilege, including the appropriate interaction between the courts and the legislatures and the fact that even the Charter did not have the effect of abrogating legislative privilege - Accordingly, the Legislative Assembly's decisions about language use in this regard could not be reviewed by the courts - See paragraphs 252 to 299.
Practice - Topic 1302
Pleadings - General principles - Purpose of pleadings - The Northwest Territories Court of Appeal considered the effect of the pleadings in this case on the scope of the trial and the remedies granted - The court began its analysis by pointing out that the jurisprudence established that the function of pleadings was to set out the relevant facts - If they disclosed a cause of action, the cause of action could be dealt with by the court - Further, rule 106 of the Northwest Territories Rules required that pleadings were to contain only "a statement in a summary form of the material facts on which the party pleading relies for his claim ... but not the evidence by which those facts are to be proved ..." - See paragraph 72.
Practice - Topic 1308.1
Pleadings - General principles - Prayers for relief - The plaintiffs sought remedies against the Government of the Northwest Territories (GNWT) and the Government of Canada - Several remedies granted by the trial judge were not contemplated by the pleadings, including the parts of the order requiring the GNWT to supervise the implementation of the Official Languages Act of the Northwest Territories (NWT); to establish an implementation plan with specific directives for ensuring the provision of French language services at various administrative levels; and to retain a consultant for six months to fulfil that mandate - The GNWT appealed, contending that since the prayer for relief formed part of the pleadings, the remedies should be restricted to what the plaintiffs demanded - The Northwest Territories Court of Appeal rejected that argument - Trial judges enjoyed a wide discretion in granting remedies, whether or not the prayer for relief demanded a specific remedy ultimately granted - This was obvious from rule 121 of the NWT Rules (not necessary in a pleading to ask for general or other relief) - Similarly, s. 27 of the Judicature Act empowered a court to grant "all remedies that any of the parties may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them" - The jurisprudence also established that as long as the pleadings disclosed facts that gave rise to remedies, a plaintiff could be granted remedies that were not inconsistent with its pleadings - See paragraphs 77 to 80.
Practice - Topic 1458
Pleadings - Statement of claim - General - Necessity of claiming damages or relief - [See Practice - Topic 1308.1 ].
Practice - Topic 1507
Pleadings - Statement of claim - Particular matters - Systemic breaches - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) - Before the trial commenced, the trial judge rejected an application by the Government of the Northwest Territories (GNWT) to strike allegedly vague pleadings and to limit the trial to specific complaints only - Instead, the trial judge permitted the plaintiffs to adduce evidence of systemic breaches - The GNWT appealed, asserting that the pleadings did not support the trial judge's sweeping review of the implementation of the OLA - The Northwest Territories Court of Appeal held that the pleadings were sufficient to place in issue the systemic failure of the GNWT to implement the OLA - The court observed that "[s]ystemic breaches of any right are repetitive and will often involve hundreds, if not thousands, of allegations of the failure to respect the underlying right. Providing precise details of each alleged breach would, in many such cases, require excessively long pleadings. ... [W]hen the breach is systemic, involving allegations of similar but not identical breaches, it is sufficient to describe a reasonable number of representative breaches, indicating that these are part of a pattern of conduct" - See paragraph 73.
Practice - Topic 1507
Pleadings - Statement of claim - Particular matters - Systemic breaches - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) - The Government of the Northwest Territories (GNWT) asserted that the pleadings did not support the trial judge's sweeping review of the implementation of the OLA - The Northwest Territories Court of Appeal considered the effect of the pleadings on the scope of the trial and the remedies granted - Part of the plaintiffs' systemic complaint was the alleged failure of the GNWT to implement the OLA, including providing services in French - The pleadings alleged that the majority of offices did not offer services in French and very few civil servants who dealt with the public were able to communicate in French - The court stated that if a government office never provided required French language services, it was sufficient for the pleadings to simply say so; it was unnecessary to list dates and times - Similarly, if required service was sporadic, it was sufficient for the pleadings to say so generally, rather than pointing to specific evidentiary examples - The pleadings in this case were sufficient to place in issue the systemic failure of the GNWT to implement the OLA - See paragraph 74.
Practice - Topic 1507
Pleadings - Statement of claim - Particular matters - Systemic breaches - The Northwest Territories Court of Appeal considered the effect of the pleadings in this case on the scope of the trial and the remedies granted, under the Official Languages Act of the Northwest Territories (OLA) - The defendant Government of the Northwest Territories (GNWT) asserted that the pleadings did not support the trial judge's sweeping review of the implementation of the OLA - The amended statement of claim disclosed that (1) the plaintiffs pleaded numerous delays leading to the implementation of the OLA and argued that the implementation was still unfinished; (2) the plaintiffs stated that no regulations had been adopted in order to implement the obligations of the GNWT under the OLA; rather, the GNWT adopted the Policy and Guidelines (PGs) which the plaintiffs alleged to have limited the linguistic obligations of the GNWT contrary to the OLA, ss. 16-20 of the Charter, and the underlying constitutional principle of protection of minorities, and the plaintiffs listed the six alleged infringements of the PGs; (3) the plaintiffs pleaded the lack of funds for bilingual services in the NWT, and the lack of good faith of the GNWT in taking the necessary steps to provide such services - The pleadings also alleged that the majority of offices did not offer services in French and very few civil servants who dealt with the public were able to communicate in French - The court held that the pleadings were sufficient to place in issue the systemic failure of the GNWT to implement the OLA - See paragraphs 75 to 76.
Practice - Topic 4255
Discovery - Examination - Range of - Evidence to support facts pleaded - The Northwest Territories Court of Appeal noted that the pre-trial processes were available to the appellants to investigate the breadth of the respondents' allegations, and that in some instances, the appellants chose to limit discovery to particular incidents pleaded and not to explore allegations of systemic breaches - The court stated that "[s]uch tactical decisions did not limit the trial judge to dealing with precise allegations of breaches" - See paragraph 76.
Practice - Topic 5652
Judgments and orders - Declaratory judgments - When available - General - The evidence disclosed pervasive systematic breaching of minority language rights by myriad departments and offices of the Government of the Northwest Territories (GNWT) - The trial judge granted a structural remedy - The GNWT appealed, contending that the trial judge erred by imposing a structural remedy when she should have only granted declaratory relief - The Northwest Territories Court of Appeal set out the applicable legal principles, including that when a government's failure to respect citizens' constitutional rights was established and the matter was litigated for the first time, a declaration was appropriate because government usually did what was necessary to ensure the provision of constitutional rights following a court declaration - Further, respect for the role of the legislature generally made declaratory relief preferable to structural - Nonetheless, the Supreme Court's decision in Doucet-Boudreau suggested that if a strong case was made out, more than declaratory relief might be granted when a trial judge was faced with longstanding, multi-faceted inaction on the part of government to meet its constitutional or quasi-constitutional obligations - In the present case, a declaration would not furnish an appropriate remedy - See paragraphs 90 to 97.
Practice - Topic 7401
Costs - Solicitor and client costs - General principles - General - The Northwest Territories Court of Appeal summarized the jurisprudence of the Supreme Court of Canada, respecting the awarding of solicitor-client costs - The court observed that "[s]olicitor-client costs should not be awarded 'unless there is something in the behaviour of the losing party that takes the case outside the ordinary': Winters v. Legal Services Society ... . Solicitor-client costs have been upheld when defendants failed to respect constitutionally guaranteed rights without legitimate reasons, even in the absence of bad faith: Arsenault-Cameron ... . The public interest aspect of a case will sometimes justify solicitor-client costs: Friends of the Oldman River Society v. Canada (Minister of Transport) ...; New Brunswick (Minister of Health and Community Services) v. G. (J.) .. " - See paragraph 304.
Practice - Topic 7408
Costs - Solicitor and client costs - General principles - Solicitor and client costs as damages or punishment - This case presented the first occasion for judicial interpretation of the Official Languages Act of the Northwest Territories (OLA) - The trial judge granted several remedies to the plaintiffs, against the Government of the Northwest Territories (GNWT) - Relying on Arsenault-Cameron (that a costs award could form part of an "appropriate and just remedy" under s. 24(1) of the Charter), the trial judge awarded solicitor-client costs as an appropriate remedy under s. 32(1) of the OLA - The GNWT appealed, asserting that the trial judge improperly exercised her discretion, and arguing that they should not be faulted for their position about their legal obligations under the OLA since this was the first lawsuit to define those obligations - In this regard, they distinguished their situation from Arsenault-Cameron and Doucet-Boudreau - The Northwest Territories Court of Appeal held that the trial judge did not err in law or principle in making the costs part of the remedy - It was noteworthy that the Supreme Court upheld the trial judge's award of solicitor-client costs in Arsenault-Cameron, where the trial judge had stated that the costs award was part of an appropriate remedy - The trial judge appropriately took account of the efforts to find a political solution before litigating and the failure of the GNWT to adopt a global action plan or otherwise implement the many recommendations that had been made concerning effective implementation of the OLA - See paragraphs 300 to 307.
Practice - Topic 7458.1
Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Novel or important point - [See Practice - Topic 7408 ].
Practice - Topic 8327.2
Costs - Appeals - Costs of appeal - Solicitor and client costs - [See Practice - Topic 8330 ].
Practice - Topic 8330
Costs - Appeals - Costs of appeal - Divided success - This case presented the first time the Northwest Territories Official Languages Act (OLA) was before the courts - The plaintiffs, including the Fédération Franco-Ténoise (FFT), were granted costs on a solicitor-client basis against the Government of the Northwest Territories (GNWT), as part of an appropriate and just remedy under s. 32 of the OLA - The GNWT appealed - The plaintiffs cross-appealed - The Attorney General of Canada (AGC) was a respondent on the cross-appeal - The Northwest Territories Court of Appeal allowed the appeal in part and dismissed the appeal - The parties then filed submissions on costs - The GNWT argued that each party should bear its own costs on the appeal because of its partial success; sought repayment from the FFT of the sum it paid for the preparation of the FFT's facta in electronic form; and sought its costs on the cross-appeal - The FFT sought solicitor-client costs on the appeal and cross-appeal as part of an appropriate and just remedy; asserted that the issues were of national interest; and argued that since the GNWT pressed the idea of an electronic appeal, the GNWT should bear the related costs - In the alternative, the FFT sought special costs under rule 46 of the Rules of the Court of Appeal Respecting Civil Appeals - The AGC sought its costs on the cross-appeal - The Northwest Territories Court of Appeal held that, as between the GNWT and the FFT, each side was to bear its own costs of both the appeal and the cross-appeal - There was partial success on the appeal, but the appeal failed to a greater degree than it succeeded - The cross-appeal failed totally, but required less time than the appeal - The GNWT was not entitled to repayment of the preparation of the FFT's facta in electronic form - The AGC was entitled to its costs on the cross-appeal - See paragraphs 383 to 385.
Practice - Topic 8331
Costs - Appeals - Costs of appeal - Novel or important questions - [See Practice - Topic 8330 ].
Practice - Topic 8331.1
Costs - Appeals - Costs of appeal - Public interest - [See Practice - Topic 8330 ].
Practice - Topic 8332
Costs - Appeals - Costs of appeal - Cost of preparation of documents for use on appeal (incl. transcript) - [See Practice - Topic 8330 ].
Practice - Topic 8334.1
Costs - Appeals - Costs of appeal - Appellant vs. cross-appellant - [See Practice - Topic 8330 ].
Practice - Topic 8802
Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The Government of the Northwest Territories (GNWT) and the Attorney General of Canada (AGC) were cross-respondents on the cross-appeal, which concerned, inter alia, the availability of punitive damages against the GNWT and the AGC - The cross-appellants argued that the trial judge applied the wrong principle in rejecting their claim for punitive damages, erring when she considered whether the actions of the cross-respondents intensified the moral anguish of the cross-appellants - In discussing the applicable standard of review, the Northwest Territories Court of Appeal noted the jurisprudence relating to an appellate court's role in evaluating whether an award of punitive damages ought to be made, as well as the resulting quantum, including the purpose that punitive damages served, and the appropriate question for an appellate court - Although an appellate court had a somewhat broader role in evaluating punitive damages than as regarded other damages awards, deference was still accorded to the trial judge - The court observed that the Supreme Court recently re-affirmed in Fidler that punitive damages were designed to address retribution, deterrence and denunciation, and that punitive damages should be awarded with restraint - See paragraphs 367 to 368.
Practice - Topic 8804
Appeals - General principles - Duty of appellate court regarding discretionary orders - The appeal raised questions of the exercise of judicial discretion - The Northwest Territories Court of Appeal noted that a trial judge had considerable discretion in making a costs award (Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13) and that an appellate court might interfere only if the trial judge made a palpable error in assessing the facts, or erred in law by failing to apply, or by misapplying, the appropriate criteria - See paragraph 303.
Practice - Topic 8804
Appeals - General principles - Duty of appellate court regarding discretionary orders - The cross-appellants sought remedies jointly and severally against both the Government of the Northwest Territories and the Attorney General of Canada - Against the former, it alleged breaches of the Northwest Territories Official Languages Act and ss. 16-20 of the Charter - Against the latter, the claim was based on the Official Languages Act of Canada and ss. 16-20 of the Charter - The cross-appellants submitted that the trial judge's failure to address the Charter constitutional issue was an error of law, reviewable on a standard of correctness - The Northwest Territories Court of Appeal saw the standard of review differently - The court stated that "When an issue can be decided on both constitutional and non-constitutional grounds, a trial judge has discretion to determine the basis on which the case will be decided. The exercise of that discretion is challenged. The test is whether the trial judge gave sufficient weight to all relevant considerations: Oldman River Society ...; Reza v. Canada ... . Appellate review of the trial judge's findings that the actions of the GOC [Government of Canada] did not cause the breaches is reviewable on the basis of palpable and overriding error: Okanagan ... ." - See paragraphs 323 to 324.
Statutes - Topic 504
Interpretation - General principles - Quasi-constitutional statutes (eg., language legislation) - [See fourth Civil Rights - Topic 2703 ].
Statutes - Topic 1803
Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See first Civil Rights - Topic 2904 ].
Statutes - Topic 2601
Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - This case presented the first time the Northwest Territories Official Languages Act (OLA) was before the courts - The appellants argued that the trial judge erred in concluding that the OLA required the broadcasting of legislative assembly debates and the publication of Hansard in French and that both matters were not subject to legislative privilege - The Northwest Territories Court of Appeal approached the issue by discussing the following principles of statutory interpretation - "First, the words of a statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the legislation, its object, and the intention of Parliament. Second, when interpreting bilingual statutes it is necessary to seek the shared or common meaning. Third, account can be taken of statutes from other jurisdictions that deal with the same subject matter. Although there is no presumption of coherence, the use of the same words in legislation from different jurisdictions suggests that the same meaning was intended" - See paragraph 258.
Cases Noticed:
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 46].
British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 46].
Digger Excavating (1983) Ltd. v. Bowlen (2001), 286 A.R. 291; 253 W.A.C. 291; 2001 ABCA 214, refd to. [para. 56].
Harris v. Robinson (1892), 21 S.C.R. 390, refd to. [para. 56].
Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241; 146 D.L.R.(4th) 214; 32 O.R.(3d) 716, refd to. [para. 56].
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. 56].
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 56].
Friesen v. Minister of National Revenue, [1995] 3 S.C.R. 103; 186 N.R. 243; 127 D.L.R.(4th) 193, refd to. [para. 59].
Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; 203 N.R. 60; 94 O.A.C. 211; 139 D.L.R.(4th) 415, refd to. [para. 59].
R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241; 151 D.L.R.(4th) 32, refd to. [para. 59].
Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193; 36 O.R.(3d) 418, refd to. [para. 59].
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; 173 D.L.R.(4th) 193, refd to. [para. 60].
Official Languages Act, Re, [1975] 2 S.C.R. 182; 1 N.R. 582; 7 N.B.R.(2d) 526, consd. [para. 60].
Jones v. New Brunswick (Attorney General) - see Official Languages Act, Re.
Blaikie v. Quebec (Attorney General) et al., [1979] 2 S.C.R. 1016; 30 N.R. 225; 101 D.L.R.(3d) 394, refd to. [para. 60].
Blaikie et al. v. Quebec (Attorney General) et al., [1981] 1 S.C.R. 312; 36 N.R. 120; 123 D.L.R.(3d) 15, refd to. [para. 60].
Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 60].
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; 54 D.L.R.(4th) 577, refd to. [para. 60].
Ford v. Québec (Procureur général) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).
Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 60].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 60].
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 60].
United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182; 48 C.C.C(3d) 193, refd to. [para. 60].
Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 61].
Charlebois v. Saint John (City), [2005] 3 S.C.R. 563; 342 N.R. 203; 292 N.B.R.(2d) 1; 761 A.P.R. 1; 2005 SCC 74, refd to. [para. 61].
Kodellas and Tripolis Foods Ltd. v. Human Rights Commission (Sask.), Wahn and Glute, [1989] 5 W.W.R. 1; 77 Sask.R. 94; 60 D.L.R.(4th) 143 (C.A.), refd to. [para. 62].
Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 66].
Little Sisters Book and Art Emporium et al. v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 69].
Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 69].
T.O.K. et al. v. British Columbia et al., [2003] B.C.T.C. 1544; 20 B.C.L.R.(4th) 170; 2003 BCSC 1544, refd to. [para. 71].
Stevens v. Provincial Remand Centre et al. (1995), 104 Man.R.(2d) 226 (Q.B. Master), refd to. [para. 71].
Harris v. Canada (Attorney General) et al., [2004] F.T.R. Uned. 622; 34 C.P.R.(4th) 367; 2004 FC 1051, refd to. [para. 71].
Pellikaan v. Canada, [2002] F.T.R. Uned. 140; [2002] 4 F.C. 169; 2002 FCT 221, refd to. [para. 71].
Catellier v. Workers Compensation Board (Man.) (1986), 46 Man.R.(2d) 239; 13 C.P.C.(2d) 225 (Q.B.), refd to. [para. 71].
Welco Expediting Ltd. v. Harris and Q Process Equipment Ltd., [1995] 8 W.W.R. 428; 171 A.R. 341 (Q.B.), refd to. [para. 71].
Trang et al. v. Edmonton Remand Centre (Director) et al. (2005), 363 A.R. 167; 343 W.A.C. 167; 2005 ABCA 66, refd to. [para. 71].
Odland v. Johnson (W.S.) and Sons Ltd. (1989), 104 A.R. 161 (C.A.), refd to. [para. 72].
Scott Brothers Gravel Co. v. N.W. Hullah Corp. et al. (1967), 59 W.W.R.(N.S.) 173 (B.C.C.A.), refd to. [para. 72].
Bank of Nova Scotia v. Dunphy Leasing Enterprises Ltd. (1987), 77 A.R. 181; 51 Alta. L.R.(2d) 324; 38 D.L.R.(4th) 575 (C.A.), refd to. [para. 72].
Hillman v. Imperial Bank of Canada, [1926] 2 W.W.R. 276; 20 Sask. L.R. 507 (C.A.), refd to. [para. 74].
Gaughan v. Sharpe (1881), 6 O.A.R. 417 (C.A.), refd to. [para. 79].
Hamilton v. Macdonnell (1910), 19 Man. R. 385 (C.A.), refd to. [para. 79].
Northwest Co. v. Merland Oil Co., [1936] 2 W.W.R. 577 (Alta. C.A.), refd to. [para. 79].
Forum des maires de la Péninsule acadienne v. Agence canadienne d'inspection des aliments, [2004] 4 F.C.R. 276; 324 N.R. 314; 2004 FCA 263, refd to. [para. 87].
Société des Acadiens et Acadiennes du Nouveau-Brunswick v. Canada, [2006] 1 F.C.R. 490; 279 F.T.R. 113; 2005 FC 1172, refd to. [para. 87].
Lavoie et al. v. Nova Scotia (Attorney General) and Board of Education of Cape Breton District (1988), 84 N.S.R.(2d) 387; 213 A.P.R. 387; 47 D.L.R.(4th) 586 (T.D.), refd to. [para. 87].
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. 91].
Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839; 149 N.R. 241; 83 Man.R.(2d) 241; 36 W.A.C. 241, refd to. [para. 91].
Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 91].
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. 91].
Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237; 156 D.L.R.(4th) 385, refd to. [para. 91].
Forum des maires de la Péninsule Acadienne v. Agence Canadienne de l'inspection des aliments, [2004] 1 F.C.R. 136; 239 F.T.R. 178; 2003 FC 1048, refd to. [para. 93].
Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al. (2000), 185 N.S.R.(2d) 246; 575 A.P.R. 246 (S.C.), affd. (2001), 194 N.S.R.(2d) 323; 606 A.P.R. 323 (C.A.), affd. [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. 98].
Thibodeau v. Air Canada et al., [2006] 2 F.C.R. 70; 292 F.T.R. 67; 2005 FC 1156, refd to. [para. 114].
Roberge v. Bolduc - see Dorion v. Roberge et autres.
Dorion v. Roberge et autres, [1991] 1 S.C.R. 374; 124 N.R. 1; 39 Q.A.C. 81; 78 D.L.R.(4th) 666, refd to. [para. 121].
Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 505; 208 D.L.R.(4th) 577 (C.A.), refd to. [para. 123].
Kilrich Industries Ltd. v. Halotier (2007), 246 B.C.A.C. 159; 406 W.A.C. 159; 161 C.R.R.(2d) 331; 2007 YKCA 12, refd to. [para. 123].
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; 2000 SCC 1, refd to. [para. 124].
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. 128].
R. v. Haché (E.) (1993), 139 N.B.R.(2d) 81; 357 A.P.R. 81; 23 W.C.B.(2d) 12 (C.A.), refd to. [para. 141].
R. v. Gautreau (R.J.) (1989), 101 N.B.R.(2d) 1; 254 A.P.R. 1 (T.D.), revd. (1990), 109 N.B.R.(2d) 54; 273 A.P.R. 54; 60 C.C.C.(3d) 332 (C.A.), leave to appeal dismissed [1991] 3 S.C.R. viii; 136 N.R. 419, refd to. [para. 141].
Winnipeg (City) v. Morguard Properties Ltd. et al., [1983] 2 S.C.R. 493; 50 N.R. 264; 25 Man.R.(2d) 302; 3 D.L.R.(4th) 1, refd to. [para. 143].
Reference Re Canada Labour Code and State Immunity Act (Can.), [1992] 2 S.C.R. 50; 137 N.R. 81; 91 D.L.R.(4th) 449, refd to. [para. 143].
Multiform Manufacturing Co. et autres v. R. et autres, [1990] 2 S.C.R. 624; 113 N.R. 373; 32 Q.A.C. 241, refd to. [para. 154].
Bell Canada v. Canadian Telephone Employees Association et al., [2003] 1 S.C.R. 884; 306 N.R. 34; 2003 SCC 36, refd to. [para. 174].
Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al. (2001), 292 A.R. 86; 2001 ABQB 624, refd to. [para. 174].
Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; 96 D.L.R.(3d) 14, dist. [para. 248].
Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241; 61 D.L.R.(4th) 604, refd to. [para. 250].
House of Commons et al. v. Vaid et al., [2005] 1 S.C.R. 667; 333 N.R. 314; 2005 SCC 30, refd to. [para. 257].
Phillips et al. v. Phillips et al. (2006), 384 A.R. 34; 367 W.A.C. 34; 2006 ABCA 19, refd to. [para. 257].
Phillips v. Avena - see Phillips et al. v. Phillips et al.
BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241; 99 D.L.R.(4th) 577, refd to. [para. 262].
Quigley v. Canada (House of Commons) et al., [2003] 1 F.C. 132; 220 F.T.R. 221; 2002 FCT 645, affd. (2003), 314 N.R. 375; 2003 FCA 465, refd to. [para. 265].
Forest v. Registrar of Court of Appeal of Manitoba, [1977] 5 W.W.R. 347; 77 D.L.R.(3d) 445 (Man. C.A.), refd to. [para. 272].
New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181; 100 D.L.R.(4th) 212, refd to. [para. 277].
Roberts v. Northwest Territories (Commissioner), [2003] 1 W.W.R. 98; 2002 NWTSC 68, dist. [para. 282].
NewCastle (Duke of) v. Morris (1870), L.R. 4 H.L. 661, folld. [para. 288].
March v. Hodder et al. (2007), 266 Nfld. & P.E.I.R. 130; 808 A.P.R. 130; 62 Admin. L.R.(4th) 281; 2007 NLTD 93, refd to. [para. 291].
Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, refd to. [para. 296].
Knopf v. Speaker of the House of Commons et al. (2007), 370 N.R. 185; 2007 FCA 308, leave to appeal dismissed (2008), 306 N.R. 383 (S.C.C.), refd to. [para. 298].
Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 303].
Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.
Winters v. Legal Services Society (B.C.), [1999] 3 S.C.R. 160; 244 N.R. 203; 128 B.C.A.C. 161; 208 W.A.C. 161; 177 D.L.R.(4th) 94, refd to. [para. 304].
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. 304].
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. 304].
New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25; 88 D.L.R.(4th) 1, refd to. [para. 304].
Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348; 116 D.L.R.(4th) 61, refd to. [para. 324].
R. v. Hafey et al., [1985] 1 S.C.R. 106; 57 N.R. 321; 67 N.S.R.(2d) 181; 155 A.P.R. 181; 16 D.L.R.(4th) 321, refd to. [para. 328].
R. v. Skoke-Graham - see R. v. Hafey et al.
Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada (2008), 372 N.R. 370; 2008 SCC 15, dist. [para. 339].
Doucet v. Royal Canadian Mounted Police, [2005] 1 F.C.R. 671; 260 F.T.R. 61; 2004 FC 1444, refd to. [para. 342].
Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 366].
Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 367].
Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 30, folld. [para. 367].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 16(1) [para. 39]; sect. 18(1), sect. 20(1) [para. 40].
Legislative Assembly and Executive Council Act, S.N.W.T. 1999, c. 22, sect. 12.1(1) [para. 285].
Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, sect. 41(1) [para. 343].
Official Languages Act, R.S.N.W.T. 1988, c. O-1, sect. 4 [para. 31]; sect. 5 [para. 32]; sect. 7, sect. 8 [para. 33]; sect. 11(1) [para. 34]; sect. 32(1) [para. 37].
Authors and Works Noticed:
Beauchesne, Arthur, Parliamentary Rules & Forms of the House of Commons of Canada with Annotations, Comments and Precedents (6th Ed. 1989), p. 7 [para. 273].
Bellisent, J., Contribution à l'analyse de la distinction des obligations de moyens et des obligations de résultat: à propos de l'évolution des ordres de responsibilité civile (2001), pp. 12, 13 [para. 121].
Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), p. 327 [para. 154].
Crépeau, P.A., L'Intensité de l'obligation juridique ou des obligations de diligence, de résultat et de garantie (1989), pp. 4, 5, 11 [para. 121].
Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 59].
Hogg, Peter W., Constitutional Law of Canada (1997 Looseleaf Ed.), p. 56-21 [para. 328].
Maingot, J.P. Joseph, Parliamentary Privilege in Canada (2nd Ed. 1997), p. 76 [para. 286].
May, Thomas Erskine, Treatise on The Law, Privileges, Proceedings and Usage of Parliament (23rd Ed. 2004), p. 111 [para. 286].
Rogerson, Carol, The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness, in Sharpe, Robert J., Charter Litigation (1987), p. 288 [para. 91].
Sharpe, Robert J., Charter Litigation (1987), pp. 288 [para. 91]; 329 [para. 328].
Sharpe, Robert J., Mootness, Abstract Questions and Alternative Grounds: Deciding Whether to Decide, in Sharpe, Robert J., Charter Litigation (1987), p. 329 [para. 328].
Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 75 to 78, 80, 81 [para. 153]; 83 [para. 154]; 331 [para. 143].
Counsel:
Roger Tassé, Q.C., and Maxime Faille, for the defendants/appellants/cross-respondents, Attorney General of the Northwest Territories, Commissioner of the Northwest Territories, Speaker of the Assembly of the Northwest Territories, Languages Commissioner of the Northwest Territories;
Roger J.F. Lepage and Rupert Baudais, for the plaintiffs/respondents/cross-appellants, Fédération Franco-Ténoise, Éditions Franco-Ténoises/ L'Aquilon, Fernand Denault, Suzanne Houde, Nadia Laquerre, Pierre Ranger, Yvon Dominic Cousineau;
Alain Préfontaine and Marie Crowley, for the defendants/cross-respondents, Attorney General of Canada;
Pascale Giguère and Amélie Lavictoire, for the intervenor the Commissioner of Official Languages of Canada.
The appeal was heard on November 19 to 21, 2007, by Hunt, Ritter and Rowbotham, JJ.A., of the Northwest Territories Court of Appeal. The Memorandum of Judgment of the court was filed at Yellowknife, Northwest Territories, on June 27, 2008. The memorandum of judgment regarding costs was filed at Yellowknife, Northwest Territories, on August 19, 2008.
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