L’Observatoire international des droits linguistiques

[1] The Association des juristes d’expression française du Nouveau-Brunswick [Association], the applicant in these proceedings, has applied to this Court for a remedy under section 77 of the Official Languages Act, RSC 1985, c 31 (4th supp) [Act]. The Association is challenging the decision of the Department of Justice Canada [Justice Canada or the Department] dated March 28, 2013, to eliminate the core funding it had been receiving since 2003 [Decision]. The Association is seeking the following remedies:
(a) A declaration that Justice Canada’s decision to eliminate the core funding the Association had been receiving since 2003 [Decision] was contrary to subsections 41(1) and 41(2) of the Act; and
(b) An order for damages payable to the Association for the amount of revenue lost thanks to the cancellation of core funding between April 1, 2014, and April 1, 2018, i.e. $340,000.00 plus pre-judgment interest of 7% per annum.


[2] Before the Court, the Association is arguing that (1) Justice Canada had a duty to consult the Official Language Minority Community [OLMC] of New Brunswick through the Association before making its decision, a duty arising from subsections 41(1) and 41(2) of the Act, as well as from the Federal Court of Appeal decision in Canada (Commissioner of Official Languages) v Canada (Employment and Social Development), 2022 FCA 14 [FFCB]; (2) Justice Canada breached its duty to consult; (3) the elimination of core funding had a negative impact on the vitality and development of the New Brunswick OLMC; (4) Justice Canada failed to mitigate these negative repercussions; and (5) appropriate and just remedies consist of a declaration by the Court and a payment of damages in the amount of $340,000.00.


[3] Justice Canada has replied that (1) subsection 41(1) of the Act does not create a duty; (2) the duty to take positive measures under subsection 41(2) of the Act confers discretion as to the choice of measures since (a) the “ratchet” principle has been rejected and (b) the duty does not include the duty to consult; (3) Justice Canada has complied with the duty set out in subsection 41(2) of the Act; and (4) the remedy sought, an award of damages, is not appropriate and just in the circumstances.


[4] In this case, the Court must consider whether the Association’s complaint is well-founded (FFCB at para 169 citing DesRochers v Canada (Industry), 2009 SCC 8 at para 35 [DesRochers SCC]; Canadian Food Inspection Agency v Forum des Maires de la Péninsule Acadienne, 2004 FCA 263 at paras 17, 20 [Forum des Maires]). The Association bears the burden of demonstrating that its complaint is well-founded.


[5] For the reasons set out below, the Court will dismiss the Association’s application for a remedy since it has not demonstrated that its complaint is well-founded. The Court concludes that (1) the Association has not demonstrated that Justice Canada had a duty to consult of the nature it pleaded; (2) Justice Canada has demonstrated that it listened and was attentive to the needs of the New Brunswick OLMC and the Association; (3) the evidence shows that the new measures were taken to enhance the vitality of the OLMC; (4) the evidence submitted by the Association does not demonstrate that the Decision had a negative impact on the vitality and development of the New Brunswick OLMC or on the Association; and (5) the evidence demonstrates that Justice Canada nonetheless took steps to mitigate any possible repercussions.