Supreme Court Judgments

                                                 SUPREME COURT OF CANADA

Between:

Mario Charlebois

Appellant

and

City of Saint John

Respondent

And between:

Association des juristes d’expression française du

Nouveau-Brunswick

Appellant

and

City of Saint John

Respondent

and

Attorney General of Canada, Attorney General of New

Brunswick, Union of Municipalities of New Brunswick,

Commissioner of Official Languages of Canada, and

Fédération des associations de juristes d’expression

française de common law inc.

Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74

Mario Charlebois                                                                                             Appellant

v.

City of Saint John                                                                                          Respondent

- and -

Association des juristes d’expression française du

Nouveau‑Brunswick                                                                                         Appellant

v.

City of Saint John                                                                                          Respondent

and

Attorney General of Canada, Attorney General of New

Brunswick, Union of Municipalities of New Brunswick,

Commissioner of Official Languages of Canada and

Fédération des associations de juristes d’expression

française de common law inc.                                                                        Interveners

Indexed as:  Charlebois v. Saint John (City)

Neutral citation:  2005 SCC 74.

File No.:  30467.

2005:  October 20; 2005: December 15.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for new brunswick

Official languages — Municipalities — Civil proceedings against municipality — Language obligations — New Brunswick legislation on official languages requiring “institution” party to civil proceedings to use official language chosen by other party — Whether word “institution” in legislation includes municipalities — Whether institution obligated to translate evidence and quotations from legal decisions — Official Languages Act, S.N.B. 2002, c. O‑0.5, ss. 1 “institution”, 22.

Statutes — Interpretation — Language rights.

C brought an application, in French, against the City of Saint John.  The City and the Attorney General of New Brunswick moved to have the application struck.  The City’s pleadings were presented in English only.  The Attorney General’s pleadings were in French, but some citations were in English.  C objected to receiving pleadings in English on the basis that s. 22 of the Official Languages Act (“OLA”) of New Brunswick enacted in 2002 applied to the City and required it to adopt the language of proceedings chosen by him.  Both the Court of Queen’s Bench and the Court of Appeal found that s. 22 of the OLA does not apply to municipalities and cities because that interpretation would create internal incoherence within the OLA.

Held (Bastarache, Binnie, LeBel and Deschamps JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and Major, Fish, Abella and Charron JJ.:  The City was not obliged to adopt in its pleadings the official language chosen by C because the word “institution” in s. 22, as defined in s. 1 of the OLA, does not include municipalities. [4]

The Legislature has, in various parts of the OLA, imposed particular language obligations on the bodies comprised in the definition of “institution” in s. 1.  By contrast, the specific language obligations under the heading “Municipalities” (ss. 35 to 38) are more circumscribed.  Under s. 37, a municipality may also declare itself bound by the  provisions of the OLA.  As a matter of statutory interpretation, s. 22 should apply only to those bodies listed in the s. 1 definition of “institution”, leaving it open to municipalities to opt under s. 37 to be bound by the broader language obligations imposed on institutions.  This interpretation of the word “institution” is the only one that creates no illogical or incoherent consequences when read in the context of the statute as a whole.  The fact that a municipality may have different language obligations depending on whether it is prosecuting under a by‑law (s. 20(1)) or is a party to a civil proceeding (s. 22) is explained by the different nature of the proceedings.  While the OLA is the province’s legislative response to its obligations under the Canadian Charter of Rights and Freedoms  in relation to institutional bilingualism in New Brunswick, the “Charter  values” interpretative principle can only receive application in circumstances of genuine ambiguity. The contextual and purposive analysis of the OLA has removed all ambiguity surrounding the meaning of the word “institution”.  Absent any remaining ambiguity, Charter  values have no role to play.  Finally, the Court of Appeal’s finding in a 2001 decision that municipalities are “institutions” for the purpose of s. 16(2)  of the Charter  was obiter dictum.  This question is not before the Court, and no opinion is expressed on whether that interpretation is correct. [15‑24] 

The expression “oral or written pleadings” in s. 22 does not include evidence tendered in the course of the proceeding.  Nor does s. 22 create an obligation to translate case law cited or incorporated in a book of authorities. [7]

Per Bastarache, Binnie, LeBel and Deschamps JJ. (dissenting):  In giving full effect to the internal consistency rule, the Court of Appeal adopted an approach that is too formalistic and is in conflict with the rules of interpretation applicable to language rights.  Where, as here, a legislature is extending the protection of minority rights, a court must not adopt a restrictive interpretation in order to eliminate apparent inconsistencies in the law.  It must, rather, search for a meaning consistent with the protection of minorities and the achievement of equal rights for the two official languages and language communities that can be reconciled with the wording of the legislation whenever possible.  Ordinary rules of statutory interpretation continue to guide the court, but the legislative context and the presumption of Charter  compliance are particularly important.  [38‑40] [49]

When the proper approach is adopted, s. 22 is applicable to municipalities and cities.  Inconsistencies in the OLA can be resolved by reading the part of the OLA dealing with municipalities as providing for an exception to the general provisions creating obligations that are inconsistent with the ones that part creates.  This approach accepts that  the definition of “institution” in s. 1 of the OLA corresponds to the one given by the Court of Appeal in 2001, which reflects the constitutional obligations of New Brunswick under the Charter  and the intention declared in the preamble of the OLA, but that general obligations and rights under the OLA are subject to the discrete rights described in sections dealing with specific institutions.  Only where a conflict between the general and the specific is encountered would the general obligations be set aside.  Under this approach, the court should favour restricting the obligations of municipalities and cities with regard to communications and services to the public, as well as the publication of by‑laws, to those set out in ss. 35 and 36 of the OLA.  Furthermore, the normal rules of statutory interpretation provide for a contextual approach.  One major factor to be considered in this case is the proposition that the Legislature’s intention is to implement the Charter  rights as interpreted by the Court of Appeal in 2001 and to extend the minimum constitutional protection in the spirit of s. 16(3)  of the Charter .  The Court must therefore favour the extension of rights and obligations and acknowledge that general obligations must be limited, for specific institutions, only where such limitations are clearly or implicitly spelled out.  Reading down the definition of “institution” is not only unnecessary, it is also contrary to principle. [46‑47] [50]

Lastly, as to the scope of s. 22 of the OLA, the words “oral or written pleadings” and “processes” in that section do not include evidence tendered in the course of a proceeding.  There is also no obligation to translate case law cited or incorporated in a book of authorities. [53]

Cases Cited

By Charron J.

Considered: Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259, 2001 NBCA 117; referred to:  R. v. Beaulac, [1999] 1 S.C.R. 768; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42.

By Bastarache J. (dissenting)

Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259, 2001 NBCA 117; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; R. v. Beaulac, [1999] 1 S.C.R. 768; Arsenault‑Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. McIntosh, [1995] 1 S.C.R. 686; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; Sommers v. The Queen, [1959] S.C.R. 678; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505; R. v. Gautreau (1989), 101 N.B.R. (2d) 1, rev’d (1990), 109 N.B.R. (2d) 54; R. v. Haché (1993), 139 N.B.R. (2d) 81; MacDonald v. Montreal (City), [1986] 1 S.C.R. 460; R. v. Potvin (2004), 69 O.R. (3d) 641; R. v. Simard (1995), 27 O.R. (3d) 116.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 16 ‑20, 32(1)(b).

Municipalities Act, R.S.N.B. 1973, c. M‑22, ss. 1 “municipality”, 16.

Official Languages Act, S.N.B. 2002, c. O‑0.5, preamble, ss. 1 “city”, “institution”, “municipality”, 3(1), 4, 22, 15-33, 35‑41.

Rules of Court of New Brunswick, N.B. Reg. 82‑73, rule 27.06(1).

Services and Communications Regulation — Official Languages Act, N.B. Reg. 2002‑63, s. 3, Schedule A.

Authors Cited

Black’s Law Dictionary, 8th ed.  St. Paul, Minn.:  West Publishing Co., 2004, “pleading”, “process”.

Côté, Pierre‑André.  The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.:  Carswell, 2000.

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto:  Butterworths, 1983.

Reid, Hubert.  Dictionnaire de droit québécois et canadien avec table des abréviations et lexique anglais‑français, 3^e éd.  Montréal:  Wilson & Lafleur, 2004, “plaidoirie”.

Sullivan, Ruth.  Sullivan and Driedger on the Construction of Statutes, 4th ed.  Markham, Ont.:  Butterworths, 2002.

APPEAL from a judgment of the Court of Appeal of New Brunswick (Daigle, Larlee and Deschênes JJ.A.) (2004), 275 N.B.R. (2d) 203, 722 A.P.R. 203, 48 M.P.L.R. (3d) 153, [2004] N.B.J. No. 237 (QL), 2004 NBCA 49, affirming a decision of McLellan J. (2002), 255 N.B.R. (2d) 396, 668 A.P.R. 396, 35 M.P.L.R. (3d) 163, [2002] N.B.J. No. 412 (QL), 2002 NBQB 382.  Appeal dismissed, Bastarache, Binnie, LeBel and Deschamps JJ. dissenting.

Mario Charlebois, appearing on his own behalf.

Michel Doucet and Mark C. Power, for the appellant Association des juristes d’expression française du Nouveau‑Brunswick.

Mélanie C. Tompkins and Marie‑France Major, for the respondent.

Alain Préfontaine, for the intervener the Attorney General of Canada.

Gaétan Migneault, for the intervener the Attorney General of New Brunswick.

Chantal A. Thibodeau, for the intervener the Union of Municipalities of New Brunswick.

Johane Tremblay and Christine Ruest, for the intervener the Commissioner of Official Languages of Canada.

Antoine F. Hacault and Karine Pelletier, for the intervener Fédération des associations de juristes d’expression française de common law inc.

The judgment of McLachlin C.J. and Major, Fish, Abella and Charron JJ. was delivered by

Charron J. —

1.  Introduction

1                                   The issue on this appeal is whether the City of Saint John is obliged to use, in any oral or written pleadings or any process issuing from a court, the official language chosen by the appellant Mario Charlebois in the civil proceedings brought by him against the City.  Section 22 of the Official Languages Act, S.N.B. 2002, c. O-0.5 (“OLA”), imposes such a duty on “Her Majesty in right of the Province or an institution” who is a party to the civil proceedings.  The issue turns on whether or not the word “institution” in s. 22 and defined under s. 1 of the OLA includes municipalities.  Both courts below have concluded that it does not and that, consequently, s. 22 does not apply to the City of Saint John.  I agree with that conclusion and would dismiss the appeal.

2.  The Proceedings and the Issue Under Appeal

2                                   Mr. Charlebois brought an application against the City of Saint John (“City”), seeking an order directing it to offer its services equally in both official languages and challenging the constitutional validity of a number of provisions of the OLA.  His application was in French.  The City and the Attorney General of New Brunswick, as intervener, moved to strike out the application.  The issue that concerns us on this appeal arose at the hearing of these interlocutory motions.

3                                   The City’s motion was drafted in English and its counsel used the English language in his pleadings.  The Attorney General of New Brunswick’s motion material was drafted in French.  However, counsel for the Attorney General included in his pleadings some quotes from legal decisions in English and, by way of affidavit (drafted in French), introduced a document in English.  At the hearing of the motions to strike out, Mr. Charlebois objected to the use of English in the motion material on the ground that it contravened s. 22 of the OLA.  Section 22 reads as follows:

22 Where Her Majesty in right of the Province or an institution is a party to civil proceedings before a court, Her Majesty or the institution concerned shall use, in any oral or written pleadings or any process issuing from a court, the official language chosen by the other party.

4                                   Mr. Charlebois’s objection raised two issues:

1.                Is the City of Saint John an “institution” within the meaning of s. 22 and, as such, obliged to adopt the official language chosen by Mr. Charlebois in its pleadings or in any process issued by the court?

2.                What is the scope of the obligation under s. 22?  Must the party provide a translation of quotes from legal decisions included in its pleadings?  Must the party provide a translation of the evidence?

5                                   The word “institution” is defined in s. 1 of the OLA as follows:

“institution” means an institution of the Legislative Assembly or the Government of New Brunswick, the courts, any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant‑Governor in Council, a department of the Government of New Brunswick, a Crown corporation established by or pursuant to an Act of the Legislature or any other body that is specified by an Act of the Legislature to be an agent of Her Majesty in right of the Province or to be subject to the direction of the Lieutenant‑Governor in Council or a minister of the Crown; (« institution »)

The words “city” and “municipality” are also defined under s. 1:

“city” means a city within the meaning of section 16 of the Municipalities Act; (« cité »)

                                                                   . . .

“municipality” means a municipality within the meaning of section 1 of the Municipalities Act; (« municipalité »)

The provisions incorporated from the Municipalities Act, R.S.N.B. 1973, c. M-22, read as follows:

1  In this Act,

                                                                   . . .

“municipality” means a city, town or village;

                                                                   . . .

16  The Lieutenant-Governor in Council may incorporate a town having a population of ten thousand or more as a city.

6                                   In an interlocutory decision, the application judge held that the word “institution” as defined under s. 1 of the OLA does not include municipalities and, consequently, does not apply to the City ((2002), 255 N.B.R. (2d) 396, 2002 NBQB 382).  Hence, he ruled that the City was entitled to use either or both official languages in the civil proceedings instituted by Mr. Charlebois. He also rejected Mr. Charlebois’s objection as it related to the use of English in the Attorney General’s motion material, finding that s. 22 did not extend to legal quotes or to the evidence.  In writing for a unanimous court, Daigle J.A. of the New Brunswick Court of Appeal upheld the application judge’s decision ((2004), 275 N.B.R. (2d) 203, 2004 NBCA 49).  Mr. Charlebois appeals from this decision and raises the same two issues before this Court.

7                                   The second issue can be readily disposed of.  I agree with Bastarache J. that the Court of Appeal was correct in holding that “oral or written pleadings” do not include evidence tendered in the course of the proceeding. Nor does s. 22 create an obligation to translate case law cited or incorporated in a book of authorities.

8                                   Before proceeding to the analysis on the first issue, it is important to stress what this appeal is not about.  As we shall see, because of the nature of the right  claimed by Mr. Charlebois and the quasi-constitutional status of the OLA, there is a relevant and important constitutional context to this question of statutory interpretation.  Nonetheless, the question before the Court on this interlocutory proceeding is restricted to determining the meaning of s. 22, not its constitutional validity.  I will return to this important distinction later in these reasons. 

3.  Analysis

9                                   As indicated at the outset, I agree with the courts below and conclude that municipalities are not included in the s. 1 definition of “institution” in the OLA.  I am in substantial agreement with the thorough and lucid reasons of Daigle J.A. in support of this conclusion.  I will therefore simply highlight the more salient points in his analysis and add comments of my own as I go along.

10                               Daigle J.A. first instructed himself on the relevant principles of statutory interpretation, reiterating the often-cited articulation of the modern approach by E. A. Driedger in his work Construction of Statutes (2nd ed. 1983), at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

He analysed the ordinary and grammatical sense of the words used in the s. 1 definition of “institution”, which I will repeat here for convenience:

“institution” means an institution of the Legislative Assembly or the Government of New Brunswick, the courts, any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant‑Governor in Council, a department of the Government of New Brunswick, a Crown corporation established by or pursuant to an Act of the Legislature or any other body that is specified by an Act of the Legislature to be an agent of Her Majesty in right of the Province or to be subject to the direction of the Lieutenant‑Governor in Council or a minister of the Crown; (« institution »)

11                               Daigle J.A. noted the long list of bodies specifically included in the definition and the conspicuous absence of the terms “municipality” and “city” from that list. However, in his view, the fact that the Legislature could easily have included those terms if it had so wanted could not be determinative of the question before the court.  At issue, rather, was whether municipalities and cities are included in the descriptive clause as other bodies “established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant‑Governor in Council”.

12                               Relying on the reasoning in Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259, 2001 NBCA 117, where the New Brunswick Court of Appeal, in reasons penned by himself, had concluded that New Brunswick municipalities are institutions of the government for Charter  purposes, Daigle J.A. found it “plausible” that the definition of “institution”, on its face, includes municipalities and cities.  As I will explain later, the weight that should be given to the decision in Charlebois v. Moncton lies at the heart of my disagreement with the analysis of Bastarache J.  Daigle J.A., for his part, found the interpretation, based on the finding in Charlebois v. Moncton,  “inconclusive and the analysis incomplete” (para. 27).  He therefore proceeded to determine “whether this plausible interpretation [was] consistent both with the purpose and overall scheme of the Act and the intention of the Legislature” (para. 27).  For reasons I will outline, he concluded that it was not.

13                               In its preamble, the OLA proclaims the purposes of the Act are expressly tied to the language guarantees and obligations enshrined in the Canadian Constitution.  There is no dispute that the OLA is the province’s legislative response to its obligations under the Canadian Charter of Rights and Freedoms  in relation to institutional bilingualism in New Brunswick.  For ease of reference, I reproduce here the Charter  provisions on official languages that specifically target the province of New Brunswick:

16. . . .

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

                                                                   . . .

16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities. 

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed. 

17. . . .

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick. 

18. . . .

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

19. . . .

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

20. . . .

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French. 

14                               In Charlebois v. Moncton, Mr. Charlebois, the same litigant as in this case, challenged the validity of a municipal by-law which was enacted only in English.  The specific question before the New Brunswick Court of Appeal was whether s. 18(2)  of the Charter  included municipal by-laws.  On a remedial and purposive reading of the Charter  language guarantees, the court held that it was appropriate to include municipal by-laws in the province of New Brunswick’s constitutional obligation to enact its statutes in both English and French.  In the course of its analysis on this question, the court also expressed its opinion that municipalities are “institutions of the legislature and government of New Brunswick” within the meaning of s. 16(2)  of the Charter .  By way of remedy, the court declared the unilingual by-laws invalid but suspended the effect of the declaration of invalidity for one year to enable the City of Moncton and the Government of New Brunswick to comply with the constitutional obligations set out in the court’s reasons.   The court also provided some guidance on how the province may choose to meet its obligations.  It stated as follows, at paras. 127-28:           

 In the context of this case, I believe that a declaration of invalidity subject to a temporary suspension of the effect of the declaration provides the City of Moncton and the provincial government with the flexibility necessary to develop an appropriate solution that will ensure that the appellant’s rights under subsection 18(2) are realized. In this regard, this Court would be loathe to interfere with and impose standards on the legislature.  It is obvious that the government has a choice in the institutional means by which its obligations can be met.  For example, the exhaustive inquiry of the task force on official languages in New Brunswick (Towards Equality of Official Languages in New Brunswick, at pages 337-84) dealt with the linguistic composition of the population of New Brunswick municipalities.  The report acknowledged that a possible approach that would meet the constitutional obligation of the principle of equality of official languages might be to implement a language policy whereby municipal services would be available in both official languages only where numbers warrant.  This is a quantitative approach in which certain municipalities might be declared bilingual on the basis of a percentage of the population representing an official language minority. The percentage would have to be determined by the legislature.

In this connection, it should be remembered that section 1  of the Charter  allows restrictions of Charter  rights only by such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  Under this general limitation, the legislature can strike a balance or achieve a compromise between the exercise of a guaranteed right and the safeguarding of society’s best interests.  However, while certain limits imposed on the exercise of the right guaranteed under subsection 18(2) may be justifiable, this provision creates a requirement of legislative bilingualism that cannot be reduced to unilingualism or a bilingualism that is left to the discretion of municipal councils.  This would amount to a denial of the constitutional language right guaranteed by subsection 18(2). Moreover, by implication, the bilingualism requirement in regard to municipal by-laws extends to the process of enactment.

15                               Bastarache J. finds that it would have been more appropriate for the New Brunswick Court of Appeal in this case “to take a positive stance and see whether it was necessary to limit the scope of the newly defined term in light of the difficulties posed by the drafting of the OLA” (para. 32 (emphasis added)).  I disagree.  First, it is noteworthy that Charlebois v. Moncton dealt with s. 18(2)  of the Charter ; hence, the court’s finding that municipalities are “institutions” for the purpose of s. 16(2) is obiter dictum.  The question as to whether municipalities are institutions within the meaning of s. 16(2) has never been determined by this Court, it is not before us on this appeal, and I express no opinion on whether or not this interpretation is correct.  Second, it is also noteworthy that the province’s constitutional obligations, even as defined in Charlebois v. Moncton, do not mandate a single specific solution.  As aptly noted by the court in the above-noted excerpt, there is room for flexibility.  The current OLA  is the province’s legislative response to its constitutional obligations.  It would be inappropriate to pre-empt the analysis with a blanket presumption of Charter  consistency.  Daigle J.A. therefore was quite correct in pursuing the analysis.  This brings us back to the question of statutory interpretation that occupies us:  what approach did the province of New Brunswick adopt in respect of its municipalities to meet its constitutional obligations?

16                               A reading of the OLA reveals two main structural features.  First, the word “institution”, as defined in s. 1, acts as a central provision that identifies those public bodies on which the Legislature imposes particular language obligations in other provisions of the OLA.  I will review those obligations shortly.  Second, the OLA groups under various headings different areas of activity or services which fall under the purview of the public administration of the province and imposes specific language obligations under each heading.  “Municipalities” (which by definition includes cities, towns and villages) is one such heading.

17                               The obligations imposed on those bodies comprised in the definition of “institution” fall under various headings and include the following:

Legislative and other instruments

                                                                   . . .

15   Notices, announcements and other documents required to be published under this Act or any other Act by the Province or its institutions shall be printed and published in both official languages.

The administration of justice

                                                                   . . .

22   Where Her Majesty in right of the Province or an institution is a party to civil proceedings before a court, Her Majesty or the institution concerned shall use, in any oral or written pleadings or any process issuing from a court, the official language chosen by the other party.

                                                                   . . .

Communication with the public

27   Members of the public have the right to communicate with any institution and to receive its services in the official language of their choice.

28   An institution shall ensure that members of the public are able to communicate with and to receive its services in the official language of their choice.

28.1     An institution shall ensure that appropriate measures are taken to make it known to members of the public that its services are available in the official language of their choice.

29   Institutions shall publish all postings, publications and documents intended for the general public in both official languages.

30   The Province and its institutions are responsible for ensuring that all services offered to the public by third parties on their behalf are delivered in both official languages.

As noted by Daigle J.A., it is plausible that, following the opinion in Charlebois v. Moncton, the Legislature intended to include municipalities in the definition of “institution” even though they are not listed as such under s. 1.  On a plain reading of the above-listed provisions, the Legislature would then be taken to have intended to impose those obligations on all municipalities regardless of the official language minority population of those communities.

18                               By contrast, the specific language obligations under the heading “Municipalities” are more restricted.  They read as follows:

Municipalities

35(1) A municipality whose official language minority population represents at least 20% of its total population is required to adopt and publish its by‑laws in both official languages.

35(2) A city is required to adopt and publish its by‑laws in both official languages irrespective of the percentage required under subsection (1).

35(3) A municipality or city to which subsection (1) or (2) applies that adopts a new by‑law or amends an existing by‑law after December 31, 2002, shall do so in both official languages.

35(4) Except in the case of a by‑law referred to in subsection (3), a municipality or city to which subsection (1) or (2) applies, other than Moncton, shall adopt and publish its by‑laws in both official languages on or before December 31, 2005.

35(5) Subsection (3) applies, with the necessary modifications, to the minutes of council proceedings.

36 A municipality or city to which subsection 35(1), (2) or section 37 applies shall offer the services and communications prescribed by regulation in both official languages.

37  A municipality may, by by‑law of its municipal council, declare itself bound by the provisions of this Act and nothing in this Act shall be interpreted so as to limit the authority of municipalities to promote the equality of status and use of English and French.

38  The provisions of subsections 35(3), (4) and (5) apply, with the necessary modifications, to a municipality under section 37.

19                               If all municipalities, as institutions, are obliged to print and publish their by-laws in both official languages under s. 29, why would it matter what percentage was represented by the official language minority population in any given municipality?  Likewise, what would be the sense of prescribing by regulation those services and communications required to be offered in both official languages if all municipalities, as institutions, were required under ss. 27 to 30 to provide them all?  What is left for a municipality to declare itself bound under s. 37 if it is already bound by the general obligations imposed on institutions?  Those are the “incoherent and illogical consequences” that Daigle J.A. found determinative in the search for the Legislature’s intent.  I agree, particularly because, if the opposite interpretation is adopted and “institution” is read as not including municipalities, the internal coherence is restored. Bastarache J. would read the specific obligations set out under the heading “Municipalities” as exceptions to the general provisions applying to institutions.  With respect, this approach would require much reading in and reading out, none of which is consistent with the limited role that Charter  values can play as an interpretative tool.

20                               Let us now examine how an interpretation that excludes municipalities from the definition of “institution” impacts on the provision at issue in this case, s. 22.  Section 22 is part of the set of provisions (ss. 16 to 26) under the heading “The administration of justice”.  The provisions define the scope of institutional bilingualism before New Brunswick courts.  Daigle J.A. reviews the history of the provisions commencing with a description of the guiding principle underlying the provisions.  He states:

In short, the guiding principle is that any person, whether a party or a witness, has the right to address the court in the official language of his or her choice.  This principle is set out in section 17 of the Act and essentially reiterates the wording of subsection 19(2)  of the Charter  which, itself, with respect to judicial bilingualism, reiterates the provisions of section 133  of the Constitution Act, 1867 .  [para. 29]

He then notes the two exceptions to the rule relating to freedom of choice of official language by litigants that were created over time.  The first, introduced in 1982, is presently embodied in s. 20(1).  It gives precedence to the choice of official language of the defendant in quasi-criminal matters:

20(1) A person who is alleged to have committed an offence under an Act or a regulation of the Province or under a municipal by-law has the right to have the proceedings conducted in the language of his or her choice and shall be informed of that right by the presiding judge before entering a plea.

The second is brand new, it is found in s. 22.  As Daigle J.A. aptly notes:

Concretely, subject to the right of witnesses, it will have the advantage of facilitating and promoting the conduct of civil proceedings in the official language of the litigant and, as such, to effectively advance the efficacy of judicial bilingualism.  Moreover, as a matter of law, it is part of the language guarantees enshrined in the Charter .  [para. 30]

21                               It is clear on the language of s. 20(1) that the choice of official language of the defendant in quasi-criminal proceedings will always trump, regardless of the identity of the prosecuting body.  Hence, all municipalities are bound by this provision in the prosecution of their by-laws.  The rule is different with respect to civil proceedings.  The choice of official language of the same defendant who is a party to a civil proceeding will not necessarily trump.  In accordance with the constitutionally mandated general rule, each litigant can choose his or her official language of preference.  It is only where the other litigant is Her Majesty, or an “institution”, that the statute gives precedence to the individual litigant’s choice.  Two competing interpretations are put before the Court. On the one hand, as the appellants contend, did the Legislature intend to advance judicial bilingualism by extending the application of s. 22 to all municipalities regardless of the minority language population?  Of course, that legislative choice was open. On the other hand, as the City contends, did the Legislature choose to extend its application only to those listed bodies under the s. 1 definition of “institution”, leaving it up to municipalities to opt in pursuant to s. 37 if they so choose? That legislative choice was also open.  Whether or not the latter choice is constitutional is a separate issue, and precisely the question that is not before us on this appeal.  There is no doubt, however, as a matter of statutory interpretation, that the more restrictive approach was open to the Legislature and, in this case, it is the only interpretation that creates no illogical or incoherent consequences when read in the context of the statute as a whole.

22                               Bastarache J. is of the view that if the definition of “institution” excluded municipalities this would give rise to an incongruity in the fact that a bilingual city like Moncton, or one subject to specific obligations regarding the provision of its services in both official languages like Saint John, would be obliged under s. 20(1) to adopt the language of any person prosecuted under a by-law but would be free to use either official language in any civil proceeding to which it was a party.  With respect, if there is any incongruity in the fact that a municipality may have different language obligations depending on whether it is prosecuting under a by-law or is a party to a civil proceeding, this situation has been in existence since 1982 when the choice of official language of a defendant in quasi-criminal proceedings was first accorded special recognition by the Legislature in New Brunswick and no similar provision was adopted in respect of civil proceedings.  However, it is my view that the different nature of the proceedings removes any incongruity.  The requirements of natural justice are not necessarily the same in quasi-criminal and civil proceedings.  I find nothing incongruous in the choice of a blanket provision such as s. 20(1) to meet the exigencies of justice in a quasi-criminal setting, while leaving justice to be achieved on a case‑by‑case application of s. 18 in civil proceedings involving municipalities that have not opted in pursuant to s. 37.  Section 18 provides that “[n]o person shall be placed at a disadvantage” by reason of his or her choice of official language.

23                               In my respectful view, the approach advocated by Mr. Charlebois and the AJEFNB, and adopted by Bastarache J., exceeds the scope of this Court’s decision in R. v. Beaulac, [1999] 1 S.C.R. 768.  This Court in Beaulac held that a liberal and purposive approach to the interpretation of constitutional language guarantees and statutory language rights should be adopted in all cases. I take no issue with this principle; however, as Bastarache J. acknowledges (at para. 40), this does not mean that the ordinary rules of statutory interpretation have no place.  In this case, it is particularly important to keep in mind the proper limits of Charter  values as an interpretative tool.  In Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, Iacobucci J., writing for a unanimous court, firmly reiterated that

to the extent this Court has recognized a “Charter  values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations. [Emphasis in original; para. 62.]

24                               In the context of this case, resorting to this tool exemplifies how its misuse can effectively pre-empt the judicial review of the constitutional validity of the statutory provision. It risks distorting the Legislature’s intent and depriving it of the opportunity to justify any breach, if so found, as a reasonable limit under s. 1  of the Charter .  In this respect, Daigle J.A. properly instructed himself and rightly found, at para. 58, that the contextual and purposive analysis of the OLA “removed all ambiguity surrounding the meaning of the word ‘institution’”.  Absent any remaining ambiguity, Charter  values have no role to play.

25                               For these reasons, I would dismiss the appeal with costs.

The reasons of Bastarache, Binnie, LeBel and Deschamps JJ. were delivered by

Bastarache J. (dissenting) — 

1.  Introduction

26                               The appellant Mario Charlebois decided to question the validity of a number of sections of the Official Languages Act, S.N.B. 2002, c. O-0.5 (“OLA”), in an application brought, in French, against the City of Saint John (“City”). The City and the Attorney General of New Brunswick, an intervener, moved to have the application struck. The City’s pleadings were presented in English only. The Attorney General’s pleadings were in French, but some citations in his brief and one document, were in English only. Mr. Charlebois objected to receiving pleadings in English on the basis that s. 22 of the OLA applied to the City of Saint John and required it to adopt the language of proceedings chosen by him. Mr. Charlebois’s objection gave rise to decisions of the Court of Queen’s Bench and Court of Appeal, and a hearing in this Court.

27                               This appeal is not about the constitutionality of the OLA. It is only concerned with the interpretation of s. 22 of the OLA and with determining whether the word “institution” therein applies to municipalities and cities in the context of the OLA. This Court cannot accept the invitation of some interveners to revisit the question of the scope of the rights in s. 19(1)  of the Canadian Charter of Rights and Freedoms .

28                               The courts below found that s. 22 does not apply to municipalities and cities because that interpretation would create internal incoherence within the OLA; ss. 27 and 36 of the OLA, dealing with communications with the public and services offered to the public, in particular, would come into conflict with each other. Another inconsistency would result from ss. 15 and 35, dealing with the language of by-laws.

29                               The context in which this appeal comes to this Court is particularly important. It must be noted that the OLA of 2002 was adopted after the decision of the Government of New Brunswick to implement the decision of the New Brunswick Court of Appeal in Charlebois v. Moncton (City) (2001), 242 N.B.R. (2d) 259, 2001 NBCA 117, where it was decided that  s. 32(1)( b )  of the Charter  applies to municipalities and cities in New Brunswick. Applying Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, the Court of Appeal in that case decided that municipalities and cities were created by the province, exercise government functions attributed to them by the Legislature or government, and draw their powers from provincial laws. They are therefore “institutions of the legislature and  government”. Applying the same criteria to s. 16(2)  of the Charter , the Court of Appeal found that this section also applied to municipalities and cities in New Brunswick.

2.  Issues

30                               In this appeal, the Court is asked to determine whether the words “institution of the Legislative Assembly or the Government of New Brunswick”, within the meaning of s. 32(1)( b )  of the Charter , and as used in the definition section of the OLA, s. 1, should bear the same interpretation. The context in which this exercise is to take place is extremely important: the OLA of 2002 constitutes a quasi-constitutional Act that must be interpreted according to the clear principles outlined by this Court in R. v. Beaulac,  [1999] 1 S.C.R. 768, and Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1.

31                               The difficulty posed in this appeal is due to the imprecision of the definition section and the structure of the OLA. With regard to imprecision, what is remarkable is that although the word “institution” refers to the actual words defined by the Court of Appeal in its 2001 decision, the OLA has a separate definition for municipalities that does not refer to the term “institution”. With regard to the structure of the OLA, what is troublesome is that the general sections which provide for obligations regarding the publication of laws and regulations, as well as communications with the public and services to the public, apply to all “institutions”, while some institutions are dealt with in other parts of the OLA without the obligations defined therein being, in some cases, made subject to the general provisions or said to apply notwithstanding those provisions. It is therefore difficult to draw clear inferences with regard to legislative intent because, while some sections seem to overlap, i.e. communications with the public and municipalities, others contain a limitation on the scope of the word “institution”, i.e. s. 4 dealing with educational and cultural institutions. In the case of planning and solid waste commissions, it is worth noting that particular obligations are set out in ss. 39 to 41 while commissions are expressly mentioned under the definition of “institution” in s. 1. Other sections provide for an extension of the term “institution”, i.e. s. 33(1) dealing with health facilities and establishments. Some sections, in particular the one dealing with the administration of justice, which occupies us here, do not give rise to any conflicts and could be considered as self-standing, as argued by the Association des juristes d’expression française du Nouveau-Brunswick (“AJEFNB”).

3.  Analysis

32                               In the present case, the New Brunswick Court of Appeal applied the rules of statutory interpretation as defined by this Court. It first considered the ordinary meaning of the words used in the OLA and concluded that to include municipalities within the scope of “institutions” was plausible. In the particular context of this case, it should rather be presumed that the Legislature would not have chosen to indicate indirectly its decision to ignore the definition given in Charlebois, the very case which had created the obligation for it to modify its OLA. In my view, it would have been more appropriate for the Court of Appeal to take a positive stance and see whether it was necessary to limit the scope of the newly defined term in light of the difficulties posed by the drafting of the OLA. I will return to the consequences in this erroneous approach.

33                               The careful analysis of the Court of Appeal provides a complete review of the legislative history of s. 22 of the OLA. I need not repeat it here. The crux of the Court of Appeal’s decision lies in the identification of two main internal inconsistencies in the OLA. The relevant provisions of the Charter  and the OLA are reproduced in the Appendix to these reasons.

3.1      The Internal Inconsistencies in the OLA

34                               The main  inconsistency noted by the Court of Appeal is that between ss. 27 and 36. Section 27 provides for the right of any member of the public to communicate with any institution and to receive its services in the official language of their choice. The corresponding obligations of the public institutions are defined in ss. 28 and 28.1, i.e. to ensure that members of the public are able to communicate and to receive its services in the language requested, and to make it known that its services are available in the official language of choice. By contrast, s. 36 provides that all municipalities whose official language minority population represents at least 20 percent of its total population, and all cities, shall offer the services and communications prescribed by law in both official languages.

35                               In Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, Beetz J., for the majority, contrasted the right to use a language in court proceedings under s. 19(2)  of the Charter  and the right to communicate with offices of the government under s. 20  of the Charter . This last right “postulates the right to be heard or understood in either language” (p. 575). Wilson J., who concurred in the result,  noted that there is an apparent inconsistency between the right to equality in s. 16(1)  of the Charter  and the right to limited services in s. 20(1)  of the Charter . The solution was not, in her view, to limit the scope of s. 16(1) to eliminate the inconsistency, but to read s. 16(1) as “constitutionalizing a societal commitment to growth” (p. 620). Both ss. 16(1) and 20(1) were to be read generously and purposively (p. 621). Wilson J. also dealt with another apparent inconsistency between s. 27  of the Charter  (the interpretation clause favouring multiculturalism) and s. 16(3)  of the Charter  (the interpretative clause favouring the progression of the official languages of Canada). Here again, the solution was not to negate the principle of growth in s. 16(3), but to interpret both sections in the context of the special status of official languages. The approach to interpretation of Wilson J. must be contrasted with the one adopted by Beetz J. who reasoned that language rights were politically motivated and had to be read restrictively. This latter approach was formally rejected in Beaulac where the Court insisted on the importance of s. 16  of the Charter  in interpreting language laws:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. . . . [Emphasis in original; para. 25.]

Like Wilson J., the Court of Appeal of Ontario has noted that s. 16(3)  of the Charter  is an important factor in determining the proper rules of interpretation for quasi-constitutional rights (see Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505, at paras. 129-30).

36                               This approach is not new. It is now a template for the interpretation of language rights, specially, as just demonstrated, where there is apparent conflict and ambiguity. Under it, the first step is not to read down the protections to eliminate inconsistencies, but to make sense of the overall regime in light of the constitutional imperative of approaching language rights purposefully, with a view to advancing the principles of equality and protection of minorities. Institutional bilingualism is achieved when rights are granted to the public and corresponding obligations are imposed on institutions (see Beaulac, at paras. 20-22). No rights are given as such to institutions. Any interpretation of the OLA must take this into account. The real issue here is whether the apparent inconsistency between ss. 27 and 36 is such that the institutional obligations recognized a priori in s. 22 must of necessity be read down.

37                               In the particular context of this case, I find quite incongruous the fact that a bilingual city like Moncton, or one subject to specific obligations regarding the provision of its services in both official languages like Saint John, is obliged to adopt the language of any person alleged to have committed an offence under a by-law pursuant to s. 20(1), but should be entitled, under the interpretation given by the Court of Appeal, to adopt the language other than that chosen by a party to a civil action against it pursuant to s. 22. The Union of Municipalities of New Brunswick, an intervener, argued that it would be more onerous for municipalities to comply to s. 22 than to s. 20(1) because municipal governments often proceed without lawyers in civil cases, and that the distinction between regulatory offences and civil actions is determinative of legislative intention. I do not think this argument is convincing; even if it were, it is hard to understand why the Legislature would impose the much more onerous task of providing bilingual services to a city or municipality and not impose on it the obligations of s. 22 because they are more onerous than those in s. 20(1). More importantly, I do not think the position of the intervener is reflective of a generous approach to interpretation, an approach consistent with the intent to achieve equal access to the courts, and in particular with the principle set out in s. 18 of the OLA, which reads:

18 No person shall be placed at a disadvantage by reason of the choice made under section 17.

In fact, the Court of Appeal itself explained that s. 22 was meant to extend the Charter  rights in s. 19(1) and improve the quality of judicial services, and that it was tied to the objective of respect for linguistic guarantees (para. 30).

38                               As mentioned earlier, the principles of interpretation applicable here are clearly developed in Beaulac, a case dealing specifically with the interpretation of a statute creating language rights that exceed those that are mandated by the Constitution. In my view, where the Legislature is extending the protection of minority rights, the Court must not adopt a restrictive interpretation in order to eliminate apparent inconsistencies in the law. It must, rather, search for a meaning consistent with the protection of minorities and the achievement of equal rights for the two official languages and language communities that can be reconciled with the wording of the legislation whenever possible. The pronouncements of this Court at paras. 20 and 24 of Beaulac are rather apt in a province where the equality of language communities has been enshrined in the Constitution (see s. 16.1  of the Charter ).

The objective of protecting official language minorities, as set out in s. 2 of the Official Languages Act, is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees; see J. E. Oestreich, “Liberal Theory and Minority Group Rights” (1999), 21 Hum. Rts. Q. 108, at p. 112; P. Jones, “Human Rights, Group Rights, and Peoples’ Rights” (1999), 21 Hum. Rts. Q. 80, at p. 83: “[A] right . . . is conceptually tied to a duty”; and R. Cholewinski, “State Duty Towards Ethnic Minorities: Positive or Negative?” (1988), 10 Hum. Rts. Q. 344.

. . .

The idea that s. 16(3)  of the Charter , which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. . . .

39                               This approach invites us to be prudent when interpreting a statute such as the OLA. R. Sullivan sums it up well in Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 368:

While there is obviously a significant overlap between complying with jurisdictional limits and complying with entrenched constitutional norms, the presumptions associated with these two forms of compliance are grounded in different assumptions and concerns. The point made by the court in Zundel, and in numerous other judgments, is that constitutional documents like the Charter  set out the norms that are most highly valued in our culture and therefore perform a legitimizing role. For this reason, quite apart from questions of validity or showing deference to the legislature, it is appropriate for courts to prefer interpretations that tend to promote those principles and norms over interpretations that do not. For this reason, too, the presumption of compliance with constitutional values may be relied on even though the validity of the legislation is not at issue. [Footnotes omitted.]

40                               This is not to say that the ordinary rules of statutory interpretation have no place. The approach defined in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 21-22, continues to guide the Court, but the legislative context and the presumption of Charter  compliance are particularly important. The Legislature is here implementing a decision subjecting municipalities to language obligations in a quasi-constitutional act which is designed to promote the equality of official languages and official language communities in New Brunswick. This intention is not easily negated because of imperfect drafting. In fact, this Court is very often confronted with inconsistencies and has developed a number of rules to deal with them, but it is clear that it will not be possible in all cases to make sense of the legislation while eliminating all internal inconsistencies (see R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 59 (McLachlin J. in dissent); 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, at paras. 158-59; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 48).

41                               In Beaulac, this Court clearly stated that in the context of institutional bilingualism, language provisions should not be read as creating accommodation or privileges, but as creating positive rights giving rise to a duty to provide the means for their implementation (para. 24). The Court said, at para. 22: “Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada.” Obviously, this will apply only once the rights are recognized, but the interpretative rule is by its very nature inconsistent with the approach suggested by the Union of Municipalities of New Brunswick and the City of Saint John. The Court must be guided by the need to give meaning to institutional bilingualism.

42                               If a municipality is an “institution”, presumptively, can that presumption be refuted because of the apparent internal inconsistencies in the OLA? The Court of Appeal gave a positive answer to that question. With due respect, in doing this, the Court of Appeal seemed to abandon the approach mandated by Beaulac and simply adopt the interpretation most likely to eliminate inconsistencies, this result being achieved by applying the unity of expression rule without due regard for the nature of the OLA. This approach is not appropriate for a number of reasons: first, because the legislative context is always a major consideration in the interpretation of a statute; second, because this approach limits the internal consistency rule to the need for uniformity of expression; third, because it overvalues the rule, which is only a presumption, one “which is not of much weight” according to Fauteux J. in Sommers v. The Queen, [1959] S.C.R. 678, at p. 685.  P.-A. C_té explains in The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 333:

The value of this presumption is mitigated because it assumes a level of drafting, which, in reality, is not always attained. . . .  The principle’s weight varies according to the care with which a statute appears to have been drafted. [Footnotes omitted.]

And later adds (at p. 334):

This presumption is used primarily to indicate a term’s probable meaning.  As with all interpretation, the true meaning can only be established by considering the context . . . .

This said, I will later demonstrate that a better approach was available.

43                               During the hearing, counsel were asked whether ss. 27 and 36 were necessarily in conflict, i.e. whether they were referable to identical obligations and rights. I asked counsel of both sides whether s. 27 could be read as creating a right to require a service in the language of choice and obtain a response and service in that language, while s. 36 dealt with the duty of municipalities to actively offer a number of services specified in regulations, in both official languages, independently of any demand or request. The AJEFNB was not convinced that this was a possibility because it was of the view that s. 28 required that services be actively offered in the language of choice; it also noted that the overlap in s. 29, dealing with the publication of postings, publications and documents intended for the general public, would remain. The better solution would be to read specific sections dealing with municipalities, policing services, health services and planning and solid waste commissions as exceptions to the general provisions regarding communication with the public, in spite of the fact that not all of these specific sections refer directly to the meaning of the word “institution”.

44                               Policing services have already been defined as institutions of the government in R. v. Gautreau (1989), 101 N.B.R. (2d) 1 (Q.B.), overturned on other grounds in (1990), 109 N.B.R. (2d) 54 (C.A.), and R. v. Haché (1993), 139 N.B.R. (2d) 81 (C.A.). There also  appears to be no need to read down the obligations resulting from that interpretation in order to implement s. 31 of the OLA; in fact, s. 32 affirms this. Health services are dealt with in s. 33. Section 33(1) extends the definition of “institution” in that case. As noted earlier, s. 4 restricts the meaning of “institution” with regard to educational and cultural institutions, in conformity with s. 16.1  of the Charter . In my view, the above provisions are a clear indication that the definition of “institution” in s. 1 must be wide and comprehensive. There is no clear reason to believe it should be more restrictive than the definition given by the Court of Appeal in Charlebois, in 2001. The respondent alluded to the fact that the legislation of the Northwest Territories and Nunavut specifically exempts municipalities; Ontario also exempts municipalities expressly. In my view, this only goes to show that the word “institution” would normally apply to municipalities.

45                               The difficulty, of course, is in the fact that the section dealing with municipalities (the same is true of the section dealing with planning commissions and solid waste commissions) does not specifically say that the word “institution” must be varied in order to avoid a conflict between ss. 27 to 29, which are of general application, and s. 36, which is specific to municipalities and cities. The same is true of ss. 15 and 35, these sections dealing with the publication of legislative instruments.

3.2  Resolving the Inconsistencies

46                               The question before us therefore is whether the section dealing with municipalities can simply be read as providing for an exception to the general provisions creating obligations that are inconsistent. This inference would be drawn from the general legislative context. Under this approach, it would be accepted that the definition of “institution” is the one corresponding to that given in 2001 by the Court of Appeal, which reflects the constitutional obligations of New Brunswick and the intention declared  in the preamble of the OLA, but that general obligations and rights under the OLA are subject to the discrete rights described in sections dealing with specific institutions. Only where a conflict between the general and the specific is encountered would the general obligations be set aside. This is the approach suggested in particular by the AJEFNB. I think this view is correct for a number of reasons. First, general expressions must be interpreted contextually. Côté writes, at p. 311:

Very general expressions are particularly sensitive to their legal environment.  As sweeping as the terms may be, harmony of the text may dictate an interpretation that limits their scope.

He continues, at pp. 312-13:

In order to give an effect to special provisions, it is often necessary to interpret general provisions so as to exclude the situations dealt with in the specific texts. . . .

A special provision in conflict with a general one will be interpreted as an exception to the general one: specialia generalibus derogant.  In the event of conflict, the specific provision takes precedence.

The following comments by Justice Romilly from Pretty v. Solly [(1859), 26 Beav. 606, at p. 610, 53 E.R. 1032, at p. 1034] are often quoted:

The general rules which are applicable to particular and general enactments in statutes are very clear, the only difficulty is in their application.  The rule is that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most  comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.

47                               Under this approach, the court should favour restricting all obligations of municipalities and cities with regard to communications and services to the public, as well as the publication of by-laws, to those set out in ss. 35 and 36 of the OLA. The reading down of the general provision itself, by reducing the scope of its defining term, is not seen as an option at all.  But that is not the approach advocated by the respondent. Its approach is based on the fact that municipalities are defined separately from “institutions” in s. 1; this would tend to show that the Legislature did not intend to adopt the definition of “institution” imposed by the Court of Appeal in 2001. The second reason for adopting this approach is that ss. 35 and 36 are a complete code of parallel rules for municipalities and cities. One problem with the last argument is that municipalities and cities are clearly under the obligation to adopt the language of an accused person in proceedings conducted under the terms of s. 20(1).

48                               It is also important to note that any argument based on the fact that a section of the OLA constitutes a complete code would have to meet the argument that ss. 17 to 23 dealing with the administration of justice would also be said to constitute such a code and that there is no indication in the language of those sections that the word “institution” must be read down to ensure their application. The application of s. 22 to municipalities and cities would create no conflict with other sections of the OLA.

49                               This reality could not have escaped the careful analysis of the Court of Appeal, obviously. It simply refused to adopt the approach described above because it felt compelled to give full effect to the internal consistency rule which required, in its view, that the word “institution” bear the same meaning throughout the OLA, i.e. in ss. 27 and 36 in particular. With all due respect, I believe this approach is too formalistic, as just demonstrated, and surely in conflict with the rules of interpretation applicable to language rights. I also think the Court of Appeal overlooked the fact that commissions are specifically defined as “institutions” in s. 1 of the OLA, but are nevertheless addressed separately in ss. 39 to 41. This would tend to show that there is no reason to conclude that municipalities cannot be included in the definition of “institutions” because their obligations are addressed in a separate part of the OLA.

50                               The normal rules of statutory interpretation provide for a contextual approach. One major factor to be considered in the present appeal is the proposition that the Legislature’s intention is to implement the rights defined in the Charter  as interpreted by the Court of Appeal in 2001, and that it wants to extend the minimum constitutional protections in the spirit of s. 16(3)  of the Charter . The Court must therefore favour the extension of rights and obligations and acknowledge that general obligations must be limited, for specific institutions, only where such limitations are clearly spelled out, as in s. 4, or implicitly spelled out, as in the case where there is a conflict between general and specific provision, as for ss. 27 to 29 and 36. But there is no valid reason to limit obligations under s. 22 by reading down the definition of the term “institution” when there is no direct conflict between ss. 22 and 36. In reality, a restrictive approach to interpretation, founded solely on the rule of uniformity of expression, applied mechanically, cannot be responsive to the legislative intent revealed by the preamble of the OLA and the simple fact that the government has decided to implement the 2001 decision in Charlebois defining the term “institution” rather than to lodge an appeal before this Court. Reading down the definition of “institution” is not only unnecessary, it is also contrary to principle. The AJEFNB suggests that ss. 27, 28 and 36 can be read together so that all municipalities be required to respond to a communication, this obligation not being one specified in s. 36, but that only those municipalities required to provide services under s. 36 be subject to the obligation regarding services in ss. 27 and 28. This, says the AJEFNB, is a better method for applying the rule of internal consistency. I agree. Internal consistency is not only about uniformity of expression; it is mostly interested in coherence of the OLA with regard to its objects and its effects.

51                               One last point I wish to address is the one relating to s. 37 and the power of a municipality to declare itself bound by the provisions of the OLA. The respondent argued that by referring to other sections of the OLA and not to s. 36, the Legislature impliedly decided that s. 22 did not apply to municipalities. This argument is untenable in light of the fact that s. 37 mentions municipalities but not cities, as in the case of ss. 35 and 36. The only realistic inference is that cities are excluded from s. 37 because they are already bound by ss. 35 and 36. The last words of s. 37 also refer to the need to interpret the section in light of the objective of promoting the equality of official languages.

3.3 Conclusion

52                               To conclude on this issue, I would simply say that institutional bilingualism was clearly meant to apply to all “institutions” and that a limitation on the general rights specified in the OLA must be recognized only when it is necessary in order to ensure the proper implementation of the OLA. In the present case, there is no necessity of limiting the scope of s. 22 dealing with the administration of justice. Difficulties arising in the application of other parts of the OLA can be resolved because there are, in all cases of conflict, either direct or indirect indications of legislative intention to limit the application of some general provisions either in furtherance of s. 1  of the Charter  or because of a political decision to limit the extension of rights beyond the constitutionally prescribed minimum.

4.  The Scope of Section 22

53                               As mentioned earlier in these reasons, the Court is also asked to define the scope of s. 22 rights. The specific question asked is whether the words “oral or written pleadings” and “processes” extend to evidence and authorities cited. I agree with the Court of Appeal that the above terms do not include evidence tendered in the course of a proceeding, whether it be in the form of an affidavit or not. Similarly, there is no obligation to translate case law cited or incorporated in a book of authorities.

54                               Although the quasi-constitutional status of the OLA requires a purposeful and generous interpretation, there is here no basis for imputing to the Legislature the intention to extend the definition of the terms used in furtherance of s. 16(3)  of the Charter . On the contrary, there is every reason to believe that the Legislature was conscious of the distinction between language rights and the right to a fair trial, and the distinction noted earlier in these reasons between the use of one’s official language in pleadings on one part, and communications with government offices under s. 20(1)  of the Charter  on the other. Another important factor is that the terms “pleadings” and “process” are clearly defined in dictionaries (see H. Reid, Dictionnaire de droit québécois et canadien (3^e éd. 2004), at p. 433 (“plaidoirie”); Black’s Law Dictionary  (8th ed. 2004), at pp. 1191 and 1241-42) and case law (MacDonald v. Montreal (City), [1986] 1 S.C.R. 460, at p. 514 (Wilson J., in dissent, but on a different point)). Any intention to depart from these definitions would have to be clearly expressed.

55                               Section 20 has been given a wider scope than s. 19. I agree with the intervener the Attorney General of Canada where he says, at para. 26 of his factum: “As subsection 19(2) of the Charter  provides counsel representing the government party the constitutional right to use the official language of his or her choice, the institutional duty imposed by section 22 of the [OLA] cannot be the expression of subsection 19(2)  of the Charter .” This is consistent with the terms used in the Rules of Court of New Brunswick (see N.B. Reg. 82-73, rule 27.06(1)) and decisions pertaining to the regime applicable in criminal matters (see R. v. Potvin (2004), 69 O.R. (3d) 641 (C.A.), at paras. 38-39; R. v. Simard (1995), 27 O.R. (3d) 116 (C.A.), at p. 132).

5. Disposition

56                               For the above reasons, the appeal is allowed in part. Section 22 of the OLA is declared to be applicable to municipalities and cities. The decision of the Court of Appeal regarding the scope of s. 22 is affirmed. Costs in all courts are awarded to the appellant Mario Charlebois. Costs in this Court are also awarded to the AJEFNB. 

APPENDIX

Relevant Constitutional and Legislative Provisions

Canadian Charter of Rights and Freedoms 

16. . . .

(2)  English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

(3)  Nothing in this Charter  limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

16.1. (1)  The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

(2)  The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

17. . . .

(2)  Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

18. . . .

(2)  The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

19. . . .

(2)  Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

20. . . .

(2)  Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Official Languages Act, S.N.B. 2002, c. O-0.5

WHEREAS the Constitution of Canada provides that English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the Legislature and Government of New Brunswick;

AND WHEREAS the Constitution of Canada confers upon the public, in New Brunswick, the right to use English or French in the Legislature and in the courts of New Brunswick, as well as to have access to the laws of New Brunswick in both official languages;

AND WHEREAS the Constitution of Canada also provides for the right of any member of the public to communicate with and to receive available services from any office of an institution of the Legislature or Government of New Brunswick in either official language;

AND WHEREAS the Constitution of Canada also recognizes that the English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities;

AND WHEREAS the Constitution of Canada affirms, with respect to both official languages, the authority of the Legislature and Government of New Brunswick to advance the status, rights and privileges set out therein;

AND WHEREAS New Brunswick is committed to enacting an Official Languages Act that respects the rights conferred by the Canadian Charter of Rights and Freedoms  and allows the Legislature and the Government to fulfill their obligations under the Charter ;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly, enacts as follows:

Definitions

1  In this Act

“city” means a city within the meaning of section 16 of the Municipalities Act; (« cité »)

. . .

“institution” means an institution of the Legislative Assembly or the Government of New Brunswick, the courts, any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of the Legislature or by or under the authority of the Lieutenant‑Governor in Council, a department of the Government of New Brunswick, a Crown corporation established by or pursuant to an Act of the Legislature or any other body that is specified by an Act of the Legislature to be an agent of Her Majesty in right of the Province or to be subject to the direction of the Lieutenant‑Governor in Council or a minister of the Crown; (« institution »)

. . .

“municipality” means a municipality within the meaning of section 1 of the Municipalities Act; (« municipalité »)

. . .

Interpretation

. . .

3(1)  No act, or regulation under it, other than this Act, shall be interpreted so as to repeal, limit or contravene a provision of this Act and, in case of conflict, this Act prevails.

. . .

Legislative and other instruments

. . .

15  Notices, announcements and other documents required to be published under this Act or any other Act by the Province or its institutions shall be printed and published in both official languages.

The administration of justice

. . .

22  Where Her Majesty in right of the Province or an institution is a party to civil proceedings before a court, Her Majesty or the institution concerned shall use, in any oral or written pleadings or any process issuing from a court, the official language chosen by the other party.

. . .

Communication with the public

27  Members of the public have the right to communicate with any institution and to receive its services in the official language of their choice.

28  An institution shall ensure that members of the public are able to communicate with and to receive its services in the official language of their choice.

28.1  An institution shall ensure that appropriate measures are taken to make it known to members of the public that its services are available in the official language of their choice.

29  Institutions shall publish all postings, publications and documents intended for the general public in both official languages.

. . .

Municipalities

35(1)  A municipality whose official language minority population represents at least 20% of its total population is required to adopt and publish its by‑laws in both official languages.

35(2)  A city is required to adopt and publish its by‑laws in both official languages irrespective of the percentage required under subsection (1).

35(3)  A municipality or city to which subsection (1) or (2) applies that adopts a new by‑law or amends an existing by‑law after December 31, 2002, shall do so in both official languages.

35(4)  Except in the case of a by‑law referred to in subsection (3), a municipality or city to which subsection (1) or (2) applies, other than Moncton, shall adopt and publish its by‑laws in both official languages on or before December 31, 2005.

35(5)  Subsection (3) applies, with the necessary modifications, to the minutes of council proceedings.

36  A municipality or city to which subsection 35(1), (2) or section 37 applies shall offer the services and communications prescribed by regulation in both official languages.

37  A municipality may, by by‑law of its municipal council, declare itself bound by the provisions of this Act and nothing in this Act shall be interpreted so as to limit the authority of municipalities to promote the equality of status and use of English and French.

Services and Communications Regulation — Official Languages Act, N.B. Reg. 2002‑63

Municipalities

3(1)  The services and communications set out in Column I of Schedule A are prescribed for the purposes of section 36 of the Act.

3(2)  If a municipality to which section 36 of the Act applies offers a service or communication set out in Column I of Schedule A, it shall do so in both official languages on or before the date set out opposite the service or communication in Column II of Schedule A.

. . .

SCHEDULE A

MUNICIPALITIES ‑ SERVICES AND COMMUNICATIONS

Appeal dismissed with costs, Bastarache, Binnie, LeBel and Deschamps JJ. dissenting.

Solicitor for the appellant Association des juristes d’expression française du Nouveau‑Brunswick:  Université de Moncton, Moncton.

Solicitor for the respondent:  Mélanie C. Tompkins, Saint John.

Solicitor for the intervener the Attorney General of Canada:  Deputy Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of New Brunswick:  Attorney General of New Brunswick, Fredericton.

Solicitors for the intervener the Union of Municipalities of New Brunswick:  Barry Spalding, Saint John.

Solicitor for the intervener the Commissioner of Official Languages of Canada:  Office of the Commissioner of Official Languages, Ottawa.

Solicitors for the intervener Fédération des associations de juristes d’expression française de common law inc.:  Thompson Dorfman Sweatman, Winnipeg.