Amrane v Abraham, 2020 ONSC 6718

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Ontario

Superior Court of Justice

[6] It is the position of the defendant that actions with respect to alleged Charter breaches must be brought against the state and not against individuals. Further, freedom of expression does not require bilingual receptionists. Nor does the presence or absence of bilingual receptionists engage s.7 of the Charter. Moreover, language is not an enumerated or analogous ground pursuant to s.15(1) of the Charter, which does not guarantee a right to service in French. It is the position of the defendant that the plaintiff confuses legal rights such as the freedom of expression, with Charter language rights, such as communicating in French or English with select federal institutions, and that this does not apply to Ontario municipalities. It is the position of the defendant that, while the plaintiff may have had difficulty accessing service in French with respect to a Toronto City service, this cannot found a Charter breach.

[14] While unilingual receptionists allegedly made accessing a municipal service more difficult for the plaintiff, there is no allegation that he was unable to access municipal services in French. I note that, in his motion record, he included correspondence to and from the plaintiff in French. And see Canadians for Language Fairness v Ottawa (City), MPLR (4^th) 163 (ONSC) at paras 121, 13.

[15] The bilingual service guarantees in the Charter apply to federal institutions and some provincial institutions. They do not apply to municipal institutions.

[16] The French Language Services Act (FLSA), RSO 1990, c. F. 32, does not apply to the City of Toronto. The definition of “government agency” in s.1 of the Act specifically excludes municipalities. Section 14(1) allows municipalities to pass by-laws providing that all or specified municipal services be offered in French. Toronto has not passed any such by-laws. Therefore, the FLSA does not apply to Toronto. Further, even if it did apply to Toronto, which it does not, the Act does not provide for damages, such as are sought by the plaintiff in an unspecified amount.

[17] Failing to provide customer service in the language of the plaintiff’s choice in a municipal setting cannot be a Charter breach under ss.2(b), 7, 15( 1) , nor under ss.16(3), 20, 27 or 36(1). And see: Weisdorf v Toronto, 2020 ONCA 401; Lalonde, supra at 96.

[18] Further, pursuant to the City of Toronto Act, 2006, c. 11, Sched A, s.391 and the Ontario Works Act, 1997, S.O. 1997, Sched A, s.77, the action is barred. Section 391 of the City of Toronto Act provides as follows:

No proceeding for damages or other relief shall be commenced against a member of City Council, an officer, employee or agent of the City or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by- law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.

[19] Pursuant to the Ontario Works Act, s.77,

No action or other proceeding in damages shall be instituted against the Ministry, the Director, delivery agent, an officer or employee of any of them or anyone acting under their authority for any act done in good faith in the execution or intended execution of a duty or authority under this Act or for alleged neglect or default in the execution in good faith of any duty or authority under this Act.

[20] These provisions do not apply to the circumstances alleged in the statement of claim.

[21] No allegations of bad faith have been alleged.

[22] The Official Languages Act (“OLA”), RSC, 1985, c. 31 (4^th Suppl.) at ss.3(1), 21, 76, 77, also referenced by the plaintiff, is a federal statute which applies to federal institutions. It does not apply to municipal staff or employees such as Ms. Abraham. The OLA requires that any complaints under that Act be directed to the Commissioner of Official Languages for Canada, prior to applying to the Federal Court for any remedy. The statement of claim does not allege that this was done by the plaintiff.

[23] The allegations of the plaintiff contained in the statement of claim have no reasonable prospect of success. It is plain and obvious that the claims disclose no reasonable cause of action and should be struck pursuant to Rule 21.

[24] I am further of the view that the action is frivolous, scandalous and vexatious for the reasons set forth by the defendant at paragraphs 42 – 45 of her factum, with which I agree, and that the claims should also be struck pursuant to Rule 25.