Choquette v. Canada (Attorney General), 2024 FC 1529
[4] The facts giving rise to the filing of a complaint with the Commissioner of Official Languages are the following.
[5] Mr. Choquette claims that the Act was violated in connection with an [translation] “agreement” between the Minister of Canadian Heritage and Netflix. The Act sets out obligations for the government (s 41), and more specifically for the Minister of Canadian Heritage (s 43), regarding the promotion of official languages. These obligations were allegedly violated in what was in fact a Netflix investment agreement reached under the Investment Canada Act, RSC 1985, c 28 (1st Supp).
[6] It was on September 28, 2017, that an [translation] “agreement” was announced under which Netflix would invest $500 million dollars in original productions in Canada over the next five years. In addition, Netflix was to invest $25 million dollars to support French content on the Netflix platform through a market development strategy in Canada. This announcement appears to have been made in parallel with the roll-out of the federal government’s strategy for cultural and creative industries in a digital world.
[7] The day after the Netflix investment agreement was announced, the Minister of Canadian Heritage, in a radio interview, declared that [translation] “not only do we have an additional $500 million in our ecosystem for our producers, but we also have a $25 million development strategy for the Quebec market”. The sum of $500 million dollars does not include an investment threshold for French-language productions. This view of the investment is confirmed in an op-ed, published on September 30, 2017, in La Presse, under the Minister’s signature (Applicant’s Record, Tab 3B)).
[...]
[9] The Commissioner’s investigation follows. An investigator contacted an official at Canadian Heritage on December 7 and 29, 2017. He asked questions about the Netflix [translation] “agreement” and pointed out that subsection 41(2) of the Act imposes a duty on federal institutions to take positive measures to implement the commitment made under subsection 41(1). Canadian Heritage also has a special duty under section 43 of the Act. The investigator inquired about the existence of Canadian Heritage’s analysis of “positive measures” to promote the advancement of official languages, as well as the “positive measures” taken as part of the Netflix [translation] “agreement”.
[...]
[18] The Report, which is the subject of the application for judicial review, came on February 21, 2019. Given that positive measures were taken by Canadian Heritage, Mr. Choquette’s complaint had to be dismissed.
[...]
[111] I simply note that these are measures taken by Canadian Heritage that are directly supported by the wording of sections 41 and 43. Suffice it to say one last time that paragraph 43(1)(a) states that the Minister of Canadian Heritage shall take measures “to enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development”
. These are the same words that form an important part of the formal commitment. The third element of the formal commitment is also found in subsection 41(1) and the opening words of subsection 43(1). Positive measures to meet the commitment are positive measures whether they are taken under subsection 41(2) or subsection 43(1). The Commissioner investigated and concluded that the positive measures were sufficient to conclude that the complaint was unfounded. This finding on the merits of the complaint is not before this Court on judicial review.
[112] The application for judicial review must therefore be dismissed. It has not been shown that the Commissioner of Official Languages failed to consider section 43 of the Official Languages Actin reviewing the applicant’s complaint alleging a violation of Part VII (Advancement of English and French), which could have rendered his decision unreasonable. Since the applicant has failed to discharge this burden, the Court can only dismiss the application for judicial review.
