Question Period Note - FFCB v. ESDC - Decision of the Federal Court of Appeal

Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency

Issue

Decision of the Federal Court of Appeal (FFCB vs ESDC): Motion for Stay

Update

May 4, 2022

Source

Various

Synopsis

On January 28, 2022, the Federal Court of Appeal rendered its decision in the case between the Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development Canada). The Federal Court of Appeal ruled that the complaints regarding Part VII of the Official Languages Act were well founded. As a result, it ordered the federal government to give notice that it will terminate the Canada-British Columbia Labour Market Development Agreement on April 1, 2024, and to ensure that the next agreement reconstitutes the network of employment assistance services with the participation of Francophone organizations according to the model that existed prior to the signing of the Agreement.

Recommended response

• The Government remains committed to supporting the development of official language minority communities in Canada. On March 1, 2022, we tabled Bill C-13, which proposes an ambitious official languages reform. The purpose of the Bill aims for the substantive equality between French and English.
• The proposed legislative amendments will reinforce the Government’s commitments vis-à-vis Canada’s official languages by requiring federal institutions to take concrete, opportune and positive measures towards the vitality of official language minority communities.
• The intent of the Bill as tabled, including its amendments to Part VII of the OLA, remain unchanged and are in line with the decision of the Federal Court of Appeal. The Government will continue to innovate to provide better service to official language minority communities in BC and throughout Canada.

Background

• The Fédération des francophones de Colombie-Britannique (FFCB) brought an action before the Federal Court of Canada (FCC) seeking a declaration that the benefits and measures offered by the province under the Canada-British Columbia Agreement on labour market development (the Agreement) is provided “on behalf of” Employment and Social Development Canada (ESDC) and the Canada Employment Insurance Commission under section 25 of the Official Languages Act (OLA). In addition, the FFCB also sought an order directing ESDC and the Commission to take further positive measures to comply with Part VII of the OLA in terms of the benefits and measures available under the Agreement.
• In its decision of May 23, 2018, the FCC dismissed the FFCB’s application and ruled that, in the case of these agreements, the Government of British Columbia was not acting on behalf of the Government of Canada but within its sphere of legislative competencies. In addition, the FCC found that there had been no breach of Part VII of the OLA, since ESDC had taken positive measures to support the Francophone community in British Columbia. The FCC noted, however, that the absence of regulations on Part VII made it impossible to determine whether additional positive measures could have been taken.
• In June 2018, the COL and FFCB appealed the ruling. In its decision of January 28, 2022, the Federal Court of Appeal (FCA) allowed in part the appeal filed by the FFCB and the COL. It concluded that Part IV of the OLA did not apply to the province, but that the federal institutions in question did not fulfil their duty under Part VII of the OLA. The FCA concluded that the obligation to take positive action: (1) remains discretionary as to the choice of measures; (2) is ongoing; and (3) involves an obligation to promote and not harm OLMCs. It imposed a two-step analysis to determine whether federal institutions have fulfilled their obligation to take positive measures: (1) federal institutions must be sensitive to the situation of official language minorities and determine the impact of their decisions and initiatives on them; and (2) federal institutions must take action to enhance the vitality of minorities and offset or mitigate, to the extent possible, the negative effects of their decisions.
• As a remedy, the FCA concludes that the Agreement must be either renegotiated or rescinded. In addition, federal institutions will have to restore, to the extent possible, the employment assistance network that they had set up with the participation of Francophone organizations. This network was established for the benefit of British Columbia’s Francophone community and was an important socialization tool that created amongst its members links that are essential to its survival.
• On March 24, 2022, the Attorney General of Canada announced a request for a suspension of the FCA’s decision then renounced, on March 29, to appeal. According to the Attorney, at the origin of the suspension request, the Government of Canada disagreed with the substance and the principles of the decision, but not with its application. Subsequently, the government made the decision to settle the issue directly while following the Court's decision.

Modernization and strengthening of the OLA

• On March 1st, 2022, the Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency tabled Bill C-13 An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Businesses Act and to make related amendments to other Acts in the House of Commons.
• One of the key measures of the Bill is the addition of details regarding the taking of positive measures by federal institutions. These changes were welcomed by many key stakeholders who saw a direct response to the FCA and FCC rulings. These changes to the text of the Act will be followed by the creation of new regulations on positive measures to guide federal institutions in terms of consultation and consideration of the priorities of communities.