A-143-91
Jean-Charles St-Onge (Appellant)
v.
The Commissioner of Official Languages
(Respondent)
INDEXED AS: ST-ONCE Y. CANADA (OFFICE OF THE
COMMISSIONER OF OFFICIAL LANGUAGES) (CA.)
Court of Appeal, Marceau, Desjardins and Décary
JJ.A.—Ottawa, May 19 and June 30, 1992.
Official languages — Appeal from Trial Judge's dismissal of
application for relief from Commissioner of Official Lan
guages' decision — Appellant complaining about inadequate
French language services by PSC in Toronto — Complaint
rejected by Commissioner as no breach of Official Languages
Act — Commissioner's discretion to refuse or cease to investi
gate complaint under Act, s. 58(4)(c) limited to cases not
involving contravention or failure to comply with spirit and
intent of Act — Commissioner erred in not considering appel
lant's difficulty in establishing oral contact in French with
PSC and in not taking spirit and intent of Act into account.
This was an appeal from a judgment of the Trial Division
dismissing appellant's application for relief from a decision of
the Commissioner of Official Languages. In applying for
employment in civil engineering at the Toronto office of the
Public Service of Canada, the appellant realized that the person
responsible for hiring engineers was not bilingual. He com
plained to the Commissioner about the difficulty he had exper
ienced in obtaining oral communication in French; it was only
after having had to speak English to several officials that he
was put through to the Director General who spoke French.
The appellant felt that he had been disadvantaged in not being
able to communicate directly with the person responsible for
recruiting people in his specialty. The Commissioner rejected
the complaint, there having been no breach of the Official Lan
guages Act. Appellant then applied to the Trial Division for a
declaratory judgment requiring the Commissioner to make rec
ommendations to the Toronto offices of the Public Service
Commission that employment application acknowledgment
letters written in French be signed by an official able to speak
that language and that French language services be available at
all times. The Trial Judge observed that the Federal Court only
exceptionally has jurisdiction to intervene in decisions of an
administrative nature made in accordance with legislation; His
Lordship concluded that the Commissioner's decision was
within the statutory and discretionary powers conferred on him
by the Parliament of Canada and that in exercising these pow-
ers, the Commissioner had committed no error of law or fact
that could justify judicial intervention.
Held (Marceau J.A. dissenting), the appeal should be
allowed.
Per Desjardins and Décary JJ.A.: It was unfortunate that the
Trial Judge had made reference to Chicoutimi and Saskatoon
in that it is not possible to compare areas where there is no
significant demand for one or other of the official languages
with an area such as Toronto where a significant demand does
exist and where Parliament, by section 22 of the Official Lan
guages Act, has expressly imposed greater obligations on the
offices of federal institutions and thereby conferred more
extensive rights on the public in communicating with them and
receiving their services. In Canada (Attorney General) v.
Viola, the Federal Court of Appeal clearly explained the nature
and object of the Official Languages Act, pointing out that it is
an extension of the rights and guarantees recognized in the
Canadian Charter of Rights and Freedoms. In fact, section 22
of the Act essentially reproduces paragraph 20(1)(a) of the
Charter, which suggests that the Courts should interpret it in
the same way as this provision of the Charter would be inter
preted. The appellant's rights to receive service in French in
Toronto are not lessened by the fact that he would have to
work in English if he were to obtain the employment sought.
The phrase "the spirit and intent of this Act", noted in subsec
tion 58(4), is also found in subsection 56(1) which gives the
Commissioner the duty to take all actions and measures within
his authority to ensure recognition of the status of each of the
official languages and compliance with the spirit and intent of
the Act in the administration of the affairs of federal institu
tions. An unusual power to intervene has been conferred on the
Commissioner who, when receiving a complaint, is expressly
ordered by Parliament to get to the heart of the matter and not
simply to examine the technical legality of the actions taken by
the government department against which the complaint is
laid.
The Commissioner had made two errors. First, he did not
investigate the appellant's complaint relating to his difficulty
in establishing oral communication in French with the Public
Service Commission of Canada. He only noted the letter of
May 17, 1990 and the telephone conversation with the Director
in French on June 14, 1990, but he did not inquire into the
legality of what occurred between these two incidents. Second,
the Commissioner did not take the spirit and intent of the Act
into account. In accordance with his duty as stated in subsec
tion 56(1) of the Act and the power of investigation conferred
on him by subsection 58(4), he should have determined
whether the Public Service of Canada office in Toronto, as a
federal institution in a place where there was a significant
demand for the use of French, had complied with the spirit and
intent of the Act in its communications with and service to the
appellant.
Per Marceau J.A. (dissenting): For this Court to be able to
allow the appeal, two conditions must be met. First, it must be
possible to read the application as being one for an order in the
nature of mandamus to force the Commissioner to reopen his
inquiry into the complaint made by the applicant. Second, it
must be possible to say that, as a public official, the Commis
sioner acted without regard to a duty imposed on him by law.
As to the first condition, it is very doubtful that a court of
appeal could criticize a Trial Judge for not undertaking so
extensive a transformation of the application before him. How
ever, it is the second condition which seems more clearly
absent. This Court could not assume that the Commissioner
was concerned only with the formal and express requirements
of the Act simply because he spoke in his letter of a "breach of
the ... Act". One must rely on a stronger factual basis to con
clude that a public official disregarded his mandate and failed
in his duty. As this Court and the Trial Court are courts of law,
the Commissioner's statement that he had ascertained that no
"breach of the ... law" had been committed must be taken as
conclusive by them.
The Trial Judge was correct in concluding that it was not his
function to become involved in the good faith exercise by the
Commissioner of the discretionary powers conferred on him by
the Act. This is why the Act expressly provides that a com
plaint to the Commissioner and the action he may take on it
temporarily suspend but do not in any way abrogate the right
of action which the complainant may have against the federal
institution which has allegedly not recognized- his rights. The
Commissioner, provided he is acting in good faith, is responsi
ble to Parliament, not to the courts of law.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 20(1)(a).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31,
ss. 3(1), 22, 27, 35, 36, 50, 56(1), 58(4), 77.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Viola, [1991] 1 F.C. 373;
(1990), 123 N.R. 83 (C.A.).
APPEAL from a judgment of the Trial Division
((1991), 44 F.T.R. 81) dismissing appellant's applica
tion for relief from a decision rendered by the Com
missioner of Official Languages. Appeal allowed.
COUNSEL:
J. Aidan O'Neill for respondent.
APPEARANCE:
Jean - Charles St - Onge on his own behalf.
SOLICITORS:
Johnston & Buchan, Ottawa, for respondent.
APPELLANT ON HIS OWN BEHALF:
Jean-Charles St-Onge, Timmins, Ontario.
The following is the English version of the reasons
for judgment rendered by
MARCEAU J.A. (dissenting): I am sorry, but I am
unable to accept the approach taken by my colleagues
and, with respect, I must differ from them. In my
opinion, this case is not one in which the Court can
intervene, and the following is briefly why I think so.
The factual details are not that important. What
must be borne in mind is that the decision by the
Trial Division [(1991), 44 F.T.R. 81] which is on
appeal was one dismissing an application made pur
suant to section 18 of the Federal Court Act [R.S.C.,
1985, c. F-7], the purpose of which was stated in the
originating notice as follows:
[TRANSLATION] The applicant would like to obtain relief in
respect of a decision made by the Office of the Commissioner
of Official Languages so as to give effect to the new Official
Languages Act. The applicant would like the original decision
made by the office to be rejected and replaced by a new deci
sion that is more fair and more in keeping with the present Act.
For this Court to be able to allow the appeal, quash
the decision to dismiss and order the Commissioner
of Official Languages to reconsider the appellant's
complaint, two conditions must obviously be met.
First, it must be possible to read the application as
being one for an order in the nature of mandamus to
force the Commissioner to reopen his inquiry into the
complaint made by the applicant. Second, it must be
possible to say that, as a public official, the Commis
sioner acted without regard to a duty imposed on him
by law. As to the first condition, I will simply say
that in my opinion it is very doubtful that a court of
appeal could complain about a trial judge not under
taking so extensive a transformation of the applica-
tion before him. However, it is the second condition
which seems more clearly absent.
As we have seen, the matter starts with the content
of a letter sent by the Commissioner to the appellant
on August 31, 1990, in answer to a complaint made
by the latter under the Official Languages Act,
R.S.C., 1985 (4th Supp.), c. 31. Once again, it reads:
[TRANSLATION] After carefully reviewing all the information
you sent us, we have concluded that this case indicates no
breach of the Official Languages Act. The Act requires federal
agencies to use the preferred official language of their clients
and this is what the P.S.C. did in the letter sent to you in
French on May 17 and in your telephone conversation of June
14 with the Director.
We will therefore not be taking any further action on your
complaint.
From the fact that the Commissioner speaks in his
letter of reply only of a breach of the Act the appel
lant concluded that he failed to go beyond the strict
wording of the provisions contained in the Act. He
suggested that in doing so the Commissioner erred,
as he should not only have considered whether the
services in French had in fact been rendered as
expressly required by the legislation, which certainly
was the case, but also whether the problems that the
appellant said he encountered in obtaining a proper
telephone conversation in French were not an
infringement of the spirit and intent of the Act,
within the meaning of subsections 56(1) and 58(4) of
the Act, which read:
56. (1) It is the duty of the Commissioner to take all actions
and measures within the authority of the Commissioner with a
view to ensuring recognition of the status of each of the offi
cial languages and compliance with the spirit and intent of this
Act in the administration of the affairs of federal institutions,
including any of their activities relating to the advancement of
English and French in Canadian society.
58....
(4) The Commissioner may refuse to investigate or cease to
investigate any complaint if in the opinion of the Commis
sioner
(a) the subject-matter of the complaint is trivial;
(b) the complaint is frivolous or vexatious or is not made in
good faith, or
(c) the subject-matter of the complaint does not involve a
contravention or failure to comply with the spirit and intent
of this Act, or does not for any other reason come within the
authority of the Commissioner under this Act.
First, as this Court is an appellate court, I do not
think it can assume, regardless of the findings of fact
made by the Trial Judge, that the Commissioner was
concerned only with the formal and express require
ments of the Act simply because he spoke in his letter
of a "breach of the ... Act". To conclude that a pub
lic official disregarded his mandate and failed in his
duty and that a court order should be made to compel
him to correct the mistake, I think that a stronger fac
tual basis is necessary.
Second, as this Court and the Trial Court are courts
of law, it seems to me that the Commissioner's state
ment that he had ascertained that no "breach of
the ... Act" had been committed must be taken as
conclusive by them. It is certainly usual for a court of
law to refer to what may be called the "spirit of the
Act" and the "legislative intent" to resolve problems
of legislative interpretation, but these concepts are
not for the court something apart from the Act which
can be given effect beyond what Parliament has
expressly provided. The situation may be different
for the Commissioner himself, because of the func
tion of supervision, encouragement, criticism, promo
tion and development which he is called on to per
form and the latitude which Parliament intended he
should have in exercising his powers of recommen
dation. I think this is what explains the fact that Par
liament thought of expressly referring to the afore
mentioned sections; but this was intended for the
Commissioner alone, to support his action, not for
courts of law that might be called on to assess the
legality of his acts and positions taken by him.
My colleagues quote a long passage from the deci
sion of this Court in Canada (Attorney General) v.
Viola, [1991] 1 F.C. 373, at pages 386-387, to indi
cate the special nature of the Official Languages Act.
I think they passed over rather quickly the last part of
this citation:
To the extent, finally, that it is legislation regarding language
rights, which have assumed the position of fundamental rights
in Canada but are nonetheless the result of a delicate social and
political compromise, it requires the courts to exercise caution
and to "pause before they decide to act as instruments of
change", as Beetz J. observed in Société des Acadiens du
Nouveau-Brunswick Inc. et al. v. Association of Parents for
Fairness in Education et al.:
...legal rights as well as language rights belong to the cate
gory of fundamental rights,
Unlike language rights which are based on political com
promise, legal rights tend to be seminal in nature because
they are rooted in principle.
This essential difference between the two types of rights
dictates a distinct judicial approach with respect to each.
More particularly, the courts should pause before they
decide to act as instruments of change with respect to lan
guage rights. [My emphasis.]
I believe that the Trial Judge dealt quite correclty
with the application that was before him. I think he
was right to conclude that it was not his function to
become involved in the good faith exercise by the
Commissioner of the discretionary powers conferred
on him by the Act, both as regards the accepting of a
complaint to assess its validity and the decision
whether to pursue it and undertake any inquiry and
also as to his decision on the merits of the complaint
and whether action should be taken regarding it.
Indeed, it seems to me this is why the Act takes the
trouble to expressly provide that a complaint to the
Commissioner and the action he may take on it tem
porarily suspend but do not in any way abrogate the
right of action which the complainant may have
against the federal institution which has allegedly not
recognized his rights (section 77 of the Act). I feel
that the system intends that the Commissioner, pro
vided he is acting in good faith, is responsible for his
action or inaction solely to Parliament and not to the
courts of law. Finally, I feel that the reasons given by
the Trial Judge in support of his refusal are substan
tially correct and I adopt them.
I would dismiss the appeal.
* * *
The following is the English version of the reasons
for judgment rendered by
DESJARDINS AND DÉCARY JJ.A.: The appellant is
appealing from a judgment rendered by a Trial Judge
who dismissed his application for relief from a deci
sion rendered by the Commissioner of Official Lan
guages on August 31, 1990.
On June 15, 1990, the appellant complained to the
Commissioner of Official Languages about the poor
quality of the service offered in French by the Public
Service Commission of Canada offices in Toronto,
serving the Ontario region which covers the town of
Timmins where the appellant lives.
The appellant had inquired about the possibility of
applying for a job in civil engineering with the Public
Service of Canada offices in Toronto and on May 17,
1990, received a letter in French signed by Peter Cor
ner, Resourcing Officer, telling him that he had the
necessary certificates and qualifications and that his
application for employment had been entered in the
Public Service Commission national index for con
sideration when a position became vacant. The appel
lant tried to contact the person who signed the letter
by telephone, as the latter was solely responsible for
civil engineering opportunities with the Public Ser
vice offices in Toronto. What happened then is
described by the appellant in the complaint he made
to the Commissioner:'
[TRANSLATION] After I had made several calls it was finally
explained that Mr. Peter Corner, who is solely responsible for
hiring engineers for the Public Service, is not bilingual. Some
of the Public Service employees had tried to make me think he
was bilingual.
The Director of Personnel, Stephen Bickerstaffe,
called the appellant back on June 14, 1990 to tell him
there were no openings for civil engineers in the Pub
lic Service. This conversation was held in French
since Stephen Bickerstaffe is bilingual, but as he was
not responsible for civil engineering opportunities,
the only person who could have discussed available
positions and positions that might be available was
Peter Corner. In his complaint to the Commissioner,
the appellant explained that he felt he had been put at
a disadvantage as he could not communicate directly
with the person responsible for recruiting people in
A.B., at p. 12.
his special field, and had to go through third persons
who had no connection with the hiring departments.
On August 31, 1990 the Commissioner of Official
Languages sent the appellant his answer to the com
plaint: 2
[TRANSLATION] After carefully reviewing all the information
you sent us, we have concluded that this case indicates no
breach of the Official Languages Act. The Act requires federal
agencies to use the preferred official language of their clients
and this is what the PSC did in the letter sent to you in French
on May 17 and in your telephone conversation of June 14 with
the Director.
We will therefore not be taking any further action on your
complaint. [Emphasis added.]
At that point the appellant, who is representing
himself, applied to the Trial Division for a declara-
tory judgment directing not only that the Commis
sioner of Official Languages make a recommendation
to the Public Service Commission office in Toronto
that acknowledgments of receipt sent in French be
signed by a resourcing officer who could speak
French, but also that active service in French be
available at all times and that a replacement be avail
able in the event of absences. 3
The Trial Judge observed that this Court only
exceptionally has jurisdiction to intervene in deci
sions of an administrative nature made in accordance
with legislation. Subsection 58(4) of the Official
Languages Act 4 (the "Act") provides:
58....
(4) The Commissioner may refuse to investigate or cease to
investigate any complaint if in the opinion of the Commis
sioner
(a) the subject-matter of the complaint is trivial;
(b) the complaint is frivolous or vexatious or is not made in
good faith; or
(c) the subject-matter of the complaint does not involve a
contravention or failure to comply with the spirit and intent
2 A.B., at p. 15.
3 A.B., at p. 102.
4 R.S.C., 1985 (4th Supp.), c. 31.
of this Act, or does not for any other reason come within the
authority of the Commissioner under this Act. [Emphasis
added.]
On the basis of section 22 5 the Trial Judge con
cluded that while the Act requires that services be
provided in either official language, it does not pur
port to specify in what ways or by what methods the
government must provide its services. The Act thus
does not indicate any percentage of bilingual public
servants or their categories or particular duties in
each of the many public departments throughout the
country. The Trial Judge went on to observe that the
Act allows the Commissioner to examine, analyse or
investigate in any area to ensure that service is ade
quate and especially that no offences are committed,
but the Commissioner is not bound by the representa
tions of any individual who complains that service is
inadequate or the federal employer is at fault. The
Trial Judge added that the Court could take judicial
notice of certain aspects of reality in an institution as
large as the federal Public Service and that, while the
Act requires services to be in the individual's lan
guage of choice, it is readily understandable that
Chicoutimi, Quebec is not Saskatoon, Saskatchewan
and that the situation cuts both ways in either lan
guage. However, he noted that the fundamental rule
is still the same, that is to provide the individual with
public services in the language of his choice. He con
cluded that the Commissioner's decision was one
which was within the statutory and discretionary
powers conferred on the Commissioner by the Parlia
ment of Canada, and that in exercising the powers so
conferred the Commissioner had committed no error
5 S. 22 of the Official Languages Act:
22. Every federal institution has the duty to ensure that
any member of the public can communicate with and obtain
available services from its head or central office in either
official language, and has the same duty with respect to a�
of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant
demand for communications with and services from that
office or facility in that language. [Emphasis added.]
The expression "federal institution" defined in s. 3(1) of the
Act includes "any board, commission ... established to per
form a governmental function by or pursuant to an Act of
Parliament ... "
of law or fact that could justify the Court's interven
tion.
In this Court, the appellant relied primarily on the
part of his complaint that concerned the difficulty he
had in obtaining oral communication in French when
he first contacted the Commission's offices in
Toronto. He told the Court that it was not until after
he had been obliged to speak in English to several
employees that he was finally put through to the
Director General of the Commission's office, with
whom he was able to speak in French.
The appellant cited section 27 of the Act, which
comes under the heading "Communications with and
Services to the Public" and which reads as follows:
27. Wherever in this Part there is a duty in respect of com
munications and services in both official languages, the duty
applies in respect of oral and written communications and in
respect of any documents or activities that relate to those com
munications or services. [Emphasis added.]
The respondent acknowledged that paragraph
58(4)(c) of the Act is so worded that the Commis
sioner's discretion to refuse or cease to investigate a
complaint is limited to cases where the subject-matter
of the complaint does not involve a contravention or
failure to comply with the spirit and intent of the Act.
The respondent further admitted that Toronto was a
place where there is a significant demand for the use
of French as provided for in section 22 of the Act,
which to begin with, distinguishes the Toronto area
from the two areas, Chicoutimi and Saskatoon, to
which the Trial Judge somewhat unfortunately
referred. There could be no question of comparing
the legal position of areas in which there is no signifi
cant demand with that of areas such as Toronto where
a significant demand exists and where Parliament, by
section 22 of the Act, has expressly imposed greater
obligations on the offices of federal institutions and
thereby conferred more extensive rights on the public
in communicating with them and receiving their ser
vices.
In Canada (Attorney General) v. Viola, 6 this Court
said the following:
6 [1991] 1 F.C. 373, at pp. 386-387.
The 1988 Official Languages Act is not an ordinary statute.
It reflects both the Constitution of the country and the social
and political compromise out of which it arose. To the extent
that it is the exact reflection of the recognition of the official
languages contained in subsections 16(1) and (3) of the Cana-
dian Charter of Rights and Freedoms, it follows the rules of
interpretation of that Charter as they have been defined by the
Supreme Court of Canada. To the extent also that it is an exten
sion of the rights and guarantees recognized in the Charter, and
by virtue of its preamble, its purpose as defined in section 2
and its taking precedence over other statutes in accordance
with subsection 82(1), it belongs to that privileged category of
quasi-constitutional legislation which reflects "certain basic
goals of our society" and must be so interpreted "as to advance
the broad policy considerations underlying it." To the extent,
finally, that it is legislation regarding language rights, which
have assumed the position of fundamental rights in Canada but
are nonetheless the result of a delicate social and political com
promise, it requires the courts to exercise caution and to "pause
before they decide to act as instruments of change", as Beetz J.
observed in Société des Acadiens du Nouveau-Brunswick Inc.
et al. v. Association of Parents for Fairness in Education et al.:
... legal rights as well as language rights belong to the cate
gory of fundamental rights,
Unlike language rights which are based on political com
promise, legal rights tend to be seminal in nature because
they are rooted in principle.
This essential difference between the two types of rights
dictates a distinct judicial approach with respect to each.
More particularly, the courts should pause before they
decide to act as instruments of change with respect to lan
guage rights.
We feel it is important to note that section 22 of the
Act essentially reproduces paragraph 20(1)(a) of the
Canadian Charter of Rights and Freedoms, 7 which
suggests that the Court should interpret it in the same
7 S. 20(1)(a) of the Canadian Charter of Rights and Free
doms [being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix
II, No. 44]] reads as follows:
20. (1) Any member of the public in Canada has the right
to communicate with, and to receive available services from,
any head or central office of an institution of the Parliament
or government of Canada in English or French, and has the
same right with respect to any other office of any such insti
tution where
(a) there is a significant demand for communications with
and services from that office in such language ...
way as this provision of the Charter would be inter
preted.
Further, it appears from section 31 of the Act that
the provisions of Part IV, dealing with the language
of communications with and services to the public
(including sections 22 and 27), prevail over inconsis
tent provisions of Part V, dealing with the language
of work. It follows, in our opinion, that under Part IV
the rights of the public in an area such as Toronto
where demand is considered to be significant are not
diminished by the fact that that area has not been
"designated" bilingual with respect to the language of
work under sections 35 and 36 of the Act. In other
words, the appellant's rights to receive service in
French in Toronto are not lessened merely by the fact
that the appellant would have to work in English if he
were to obtain the employment sought.
The phrase "the spirit and intent of this Act", noted
in subsection 58(4) of the Act, is also found in sub
section 56(1) of the Act which gives the Commis
sioner the duty to take all actions and measures
within his authority to ensure recognition of the sta
tus of each of the official languages and compliance
with the spirit and intent of the Act in the administra
tion of the affairs of federal institutions. 8 The spirit
and intent of the Act bring us to the preamble of the
Official Languages Act, in particular the following
paragraph: 9
And Whereas the Constitution of Canada also provides for
guarantees relating to the right of any member of the public to
communicate with, and to receive available services from, any
institution of the Parliament or government of Canada in either
official language;
S. 56(1) of the Official Languages Act reads as follows:
56. (1) It is the duty of the Commissioner to take all
actions and measures within the authority of the Commissio
ner with a view to ensuring recognition of the status of each
of the official languages and compliance with the spirit and
intent of this Act in the administration of the affairs of fede
ral institutions, including any of their activities relating to
the advancement of English and French in Canadian society.
A.B., at p. 34.
This duty imposed on a deputy-headl° to ensure
that the spirit and intent of the Act are complied with
in a given case is exceptional. A quite unusual power
to intervene has been conferred on the Commissioner
and, when he receives a complaint, Parliament has
expressly ordered him to get to the heart of the matter
and not simply to examine the technical legality of
the actions taken by the government department
against which the complaint is laid.
We have no choice but to conclude that, in his
decision of August 31, 1990, the Commissioner made
two errors.
First, as to whether there was a contravention of
the Act, he did not investigate the aspect of the appel
lant's complaint relating to his difficulty in establish
ing oral contact in French with the Public Service
Commission of Canada, which obliged him to make
several telephone calls before he could finally get
hold of someone who could answer his questions in
the language of his choice. The Commissioner only
noted the letter of May 17, 1990 and the telephone
conversation with the Director in French on June 14,
1990—as to which there was no need for him to
intervene, since the Commissioner concluded to his
satisfaction that these two incidents did not involve a
contravention of the Act and no basis for intervention
had been suggested. However, he did not inquire into
the legality of what occurred between these two inci
dents. The Court must accordingly return the file to
him so he can undertake such an examination.
Second, in considering the matter the Commis
sioner did not take the spirit and intent of the Act into
account. In accordance with his duty as stated in sub
section 56(1) of the Act and the power of investiga
tion conferred on him by subsection 58(4) of the Act,
the Commissioner should have determined whether
the Public Service of Canada office in Toronto, as a
federal institution in a place where there was a signif
icant demand for the use of French, had complied
with the spirit and intent of the Act in its communica
tions with and service to the appellant.
10 S. 50 of the Official Languages Act.
The Trial Judge ignored this aspect of the appel
lant's complaint, relating to his initial oral contact
with the Commission offices in Toronto, and the fail
ure by the Commissioner of Official Languages to
take the spirit and intent of the Act into account when
he considered the matter.
For all these reasons, we would allow the appeal,
reverse the judgment rendered by the Trial Division
on February 11, 1991, and rendering the judgment
which should have been rendered, would return the
matter to the Commissioner of Official Languages for
it to be decided by him in accordance with these rea
sons.
We would award the appellant court costs both in
this Court and in the Trial Division.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.