Giroux et al. v. Her Majesty in right of Ontario, as represented by the Minister of Consumer and Business Services et al.

[Indexed as: Giroux v. Ontario (Minister of Consumer and Business Services)]

75 O.R. (3d) 759

[2005] O.J. No. 2569

Docket: 71/05

Ontario Superior Court of Justice

Divisional Court

Carnwath, Swinton and Rouleau JJ.

June 21, 2005

• Reasons released in both English and French. Vous trouverez la version française à la p. 711, post. See: 2005 79669 (ON CS), [2005] O.J. No. 2570.

Constitutional law -- Protection of minorities -- Minister closing Land Registry Office in designated area under French Language Services Act and moving services provided by that office to St. Catharines -- St. Catharines Land Registry Office providing services in French -- Decision not contravening Act or constitutional principle of respect for and protection of minorities -- Section 5(1) of Act not prohibiting government from closing government office in designated area or relocating it outside area so long as services are provided to designated area -- French Language Services Act, R.S.O. 1990, c. F.32, s. 5(1).

The Minister of Consumer and Business Services decided to close the Land Registry Office in Welland and move the services provided by that office to St. Catharines. Welland is a designated area under the French Language Services Act ("FLSA"). As a result, the Welland LRO provided its services in both official languages. After the relocation, the LRO in St. Catharines was required to provide its services in French. The applicants brought an application to quash the Minister's decision to relocate the LRO on the basis that the decision contravened the FLSA and the constitutional principle of respect for and protection of minorities. The applicants also sought a declaration that a seniors' residence in Welland had the right and power to administer its own waiting list for subsidized apartments in order to be free to take language and the francophone character of the residence into consideration, and that it was not necessary to cede administration of the waiting list to Niagara Regional Housing in order to retain its ability to offer subsidized units in accordance with the provisions of the Social Housing Reform Act, 2000, S.O. 2000, c. 27. [page760]

Held, the application should be dismissed.

It is not the case that, under s. 5(1) of the FLSA, once a government office has been set up in a designated area, it cannot be closed or relocated outside the area unless the government meets the requirements and limits set out in ss. 7, 8 or 10 of the FLSA. The aspiration expressed by s. 16(3) of the Canadian Charter of Rights and Freedoms, the constitutional principle of respect for and protection of minorities, and the broad, purposive interpretation that language rights must receive are aids in the interpretation of texts, but they do not work in such a way as to change a clear text. The Ministry's obligation under s. 5(1) of the FLSA is to provide service. Depending on the circumstances, the service may be offered within or without the designated area. There was no government action or decision in this case which would have serious consequences for the Franco-Ontarian minority to the point of engaging the constitutional principle of respect for and protection of minorities.

The application with respect to the seniors' residence was premature. It would be inappropriate to make an order of the type requested as the record did not indicate that the applicants had asked Niagara Regional Housing to take language and culture into consideration in the administration of the waiting list, and the available options had not been explored.

APPLICATION for declarations with respect to French language services.

Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505, [2001] O.J. No. 4768 (C.A.), distd Other cases referred to R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, [1999] S.C.J. No. 25, 173 D.L.R. (4th) 193, 238 N.R. 131, 62 C.R.R. (2d) 133, 134 C.C.C. (3d) 481 (sub nom. Beaulac v. Canada (Attorney General)); Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61, 161 D.L.R. (4th) 385, 228 N.R. 203, 55 C.R.R. (2d) 1 Statutes referred to Canadian Charter of Rights and Freedoms, s. 16(3) French Language Services Act, R.S.O. 1990, c. F.32, ss. 5(1), 7, 8, 10 Social Housing Reform Act, 2000, S.O. 2000, c. 27, ss. 1, 33, 68, 75-78 Rules and regulations referred to O. Reg. 298/01, ss. 35-45 O. Reg. 339/01, ss. 10-20 Authorities referred to Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

Ronald F. Caza and Mark Power, for applicants. Shaun Nakatsuru and Bruce Ellis, for respondent Her Majesty in right of Ontario, as represented by the Minister of Consumer and Business Services and by the Minister of Municipal Affairs and Housing. [page761]

[1] BY THE COURT: -- The applicants request that the decision of the Minister of Consumer and Business Services to relocate the Land Registry Office from Welland to St. Catharines be quashed because it contravenes the French Language Services Act, R.S.O. 1990, c. F.32 (the "FLSA"), and the constitutional principle of respect for and protection of minorities. The applicants also request declarations to the effect that Résidence Richelieu in Welland has the right and the power to administer the waiting list of applicants wishing to live there in subsidized-rent apartments and that it is not necessary to cede administration of that list to Niagara Regional Housing in order to retain the ability to offer those apartments in accordance with the provisions of the Social Housing Reform Act, 2000, S.O. 2000, c. 27.

Questions at Issue

[2] The questions at issue are the following:

1. By deciding to close the Land Registry Office ("LRO") in Welland and to relocate all of its services to St. Catharines, did the province contravene s. 5(1) of the FLSA and did it take into account the constitutional principle of respect for and protection of minorities?

2. If so, is this a reasonable and necessary limit within the meaning of s. 7 of the FLSA?

3. Does the application of the constitutional principle of respect for and protection of minorities mean that Résidence Richelieu has the right to manage its waiting list and to retain control over to whom it will rent its subsidized housing units?

The Facts

(a) Relocation of the Land Registry Office

[3] In September 2004, the Minister of Consumer and Business Services decided to close the site in Welland and move the Niagara South LRO to St. Catharines where the Niagara North LRO is located. This decision was implemented by means of several regulations that were enacted on March 21, 2005. All of the services were relocated the same day.

[4] Welland is a designated area under the FLSA. As a result, the Niagara South LRO, which served Welland, provided its services in both official languages. The services included: [page762]

(a) construction lien registrations;

(b) public access to information, such as information concerning land ownership and easements, historical archives and registrations of personal property security and repair and storage liens;

(c) incorporation by individuals and companies;

(d) registration of a business name by individuals and companies; [and]

(e) title searches and document registration.

[5] After the relocation, Welland residents had to travel to St. Catharines for these services. St. Catharines is 23 kilometres away from Welland and is not designated under the FLSA. Because the LRO in St. Catharines would now be serving the designated area of Welland, it was required to provide its services in French. Accordingly, the province identified two of the positions in the St. Catharines office as bilingual. In addition, the Registrar and Assistant Registrar are bilingual and are able to provide French language services.

[6] The City of Welland is an area of Ontario with a high concentration of francophones, i.e., 12.9 per cent of the population. According to the evidence, it is undeniable that Welland's francophone community is vulnerable in the sense that there is a high rate of assimilation and that maintaining French is a constant challenge for the community.

[7] Given the fragility of the French language and culture in Welland, the applicants claim that minority institutions and bilingual government service locations play an important role in minority survival and that with the relocation of the LRO outside the Welland area, the community has lost part of its network of bilingual institutions. This has a significant negative effect on their community. Specifically, community members will no longer see the bilingual sign for the LRO in Welland, signage that was clearly visible along one of Welland's main streets and enhanced the status of the francophone community.

[8] One of the applicants, Marc-Yvain Giroux, maintains that each closure of a bilingual Government of Ontario service point in Welland sends a message that it is not worth making the effort required to live in French. The relocation of the LRO effectively encouraged Franco-Ontarians' assimilation into the English-speaking majority.

[9] The province, however, maintains that the LRO did not really play any role in maintaining the minority language except, [page763] perhaps, the small role played by its bilingual signage. Between 1999 and 2004, the 30-40,000 documents filed annually at the Niagara South LRO included only one to eight French language document registrations a year. The demand for the office's other French language services was also very low. With the relocation to St. Catharines, French language services will continue to be delivered and, in fact, there will be an increase in the number of bilingual staff members available to deliver these services. All residents of the City of Welland, francophone and anglophone, who have business with the LRO that used to be located in Welland will have to travel to St. Catharines. The statistics indicate that very few members of the francophone community will be affected each year. The province goes further. It maintains that because of the relocation, French language services will be improved. It states that residents of St. Catharines and the rest of the area served by the Niagara North LRO will now have access to French language services. In addition, an indeterminate number of users of the Niagara South LRO prior to the relocation lived closer to the City of St. Catharines than to Welland and thus will have easier access. Lastly, because there are more bilingual staff members on site in St. Catharines than there were in Welland, users who request French language services will receive better service.

[10] The province states that the relocation represents annual savings of more than $350,000. The applicants note, however, that a very large portion of these savings is attributable to the fact that the Niagara South LRO needs much less space than it was using prior to the relocation and that comparable savings could have been realized by renegotiating the lease for the premises occupied by the Niagara South LRO in Welland.

[11] It has been possible to register documents electronically since 1999. This method of registration can be done remotely and at the time of the relocation, was the method used for the vast majority of registrations at the Niagara South LRO. French language documents cannot be registered electronically, however. The Association des juristes d'expression française de l'Ontario and the Ministry of Consumer and Business Services reached an agreement whereby, to deal with the situation, users wishing to register French language documents would not be required to travel to the LRO, but could instead have the documents delivered by courier at the government's expense and the LRO registrar would look after the registration. The parties have informed us that this arrangement was in place in Welland prior to the relocation and that it has been available at the St. Catharines office since the relocation. The arrangement is not contested by the applicants. The questions as to whether electronic registration is a service in accordance with the provisions of the FLSA and whether the arrangement complies with the FLSA are not issues with which we are seized.

(b) Résidence Richelieu in Welland

[12] Résidence Richelieu is a seniors' residence consisting of approximately 50 apartments. The residents of 18 of the apartments receive rent subsidies. The residence has always administered its own waiting list and in this way was free to take language and the francophone character of the residence into consideration in the administration of the list.

[13] In accordance with the Social Housing Reform Act, 2000, S.O. 2000, c. 27, Niagara Regional Housing was established and became the agency responsible for the administration of provincial funding available to subsidize rent in the Niagara region. In accordance with the Act, Niagara Regional Housing administers the waiting lists for people who are looking for an apartment and are eligible to receive subsidies. There is a centralized list and a number of subsidiary lists on which people can express a preference for one or more specific buildings.

[14] During the summer of 2004, Niagara Regional Housing informed Résidence Richelieu that, in order to continue offering subsidized housing units, the residence would have to negotiate an agreement with Niagara Regional Housing. Under the Act, the agreement had to stipulate the transfer to Niagara Regional Housing of the responsibility for administering the waiting list for subsidized units at Résidence Richelieu.

[15] Résidence Richelieu insists that administration of its waiting list is necessary to maintain the francophone environment of the institution. Therefore, it did not wish to relinquish administration of its list and refused to sign an agreement. As a result, the residents of the 18 subsidized units will continue to receive subsidies but, when they leave, the new residents of these units will not be eligible for subsidies.

[16] Niagara Regional Housing was not represented at the hearing, but the province objected to Résidence Richelieu's claims and argued that:

(a) there were problems with Résidence Richelieu's method of administering its list over the years. For example, the list was handwritten; the date of receipt of an application was not always entered on the list; there were lengthy periods when it appeared that no one had applied; and the residence kept changing the number and type of apartments available as subsidized housing; [page765]

(b) allowing the residence to manage its own waiting list did not ensure equal access to the entire community. Equal access is one of the fundamental principles of the Social Housing Reform Act, 2000. The Act strives to ensure equal access by requiring all residences to offer the subsidized housing available through a centralized list maintained by Niagara Regional Housing;

(c) since 1997, the residence has failed to comply with the province's instructions concerning the allocation of subsidized units;

(d) the residence has already accepted anglophones as residents without discrimination. It has, therefore, never considered language or culture in the selection of residents, and there is no prejudice if the use of a centralized list means that anglophones can choose to live in the building;

(e) the residence has never asked Niagara Regional Housing to fill the residence's subsidized apartments taking language and culture into account. According to the province, the residence's concerns could be resolved, altogether or in large measure, by establishing a subsidiary list for the residence, as permitted by the Act, or by creating local priority rules. The only constraint in the Act is that these local priority rules must not violate provincial priority rules or human rights legislation.

Analysis

(a) Closure of the LRO in Welland and relocation of all services to St. Catharines

[17] Section 5(1) of the FLSA reads as follows:

5(1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule. 1986, c. 45, s. 5(2).

5(1) Chacun a droit à l'emploi du français, conformément à la présente loi, pour communiquer avec le siege ou l'administration centrale d'un organisme gouvernemental ou d'une institution de la Législature et pour en recevoir les services. Chacun jouit du même droit à l'égard de tout autre bureau de l'organisme ou de l'institution qui se trouve dans une region désignée à l'annexe ou qui sert une telle région. 1986, chap. 45, par. 5(2). [page766]

[18] The interpretation of a statute is based on its text but cannot rely solely on its wording; on the contrary:

... 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.

(E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), p. 87; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505, [2001] O.J. No. 4768 (C.A.), at pp. 555-56 O.R., para. 140)

[19] As stated by our Court of Appeal in Lalonde, supra, at p. 553 O.R.:

The F.L.S.A. is an example of the provincial legislature of Ontario using s. 16(3) to build on the language rights contained in the Constitution Act, 1867 and the Charter to advance the equality of status or use of the French language. The aspirational element contained in s. 16(3) -- advancing the French language toward substantive equality with the English language in Ontario -- is of significance in interpreting the F.L.S.A.

[20] The constitutional principle of respect for and protection of minorities is also used to interpret and understand the FLSA (Lalonde, supra, p. 553 O.R., para. 130)

[21] Moreover, the Supreme Court of Canada has ruled that "Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada" (R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, [1999] S.C.J. No. 25, pp. 791-92 S.C.R.).

[22] Welland is a designated area for the purposes of the FLSA. Thus, s. 5(1) grants the residents of Welland the right to communicate in French with, and to receive services in French from, any office of the Ministry of Consumer and Business Services located in the Welland area and any other offices of the Ministry that serve the Welland area.

[23] The applicants claim that the closure of the former site of the LRO in Welland and the relocation of all services to St. Catharines constitute a closure of programs similar to the closure of programs at Hôpital Montfort that was at issue in the Lalonde case. In Lalonde, the Court of Appeal ruled that the closure of programs in that case violated the FLSA because of the failure to comply with the statutory process in place for so doing.

[24] In our opinion, the situation in the case before us is very different from that dealt with by the Court of Appeal in Lalonde.

[25] First, Hôpital Montfort is an agency designated by the Lieutenant Governor in Council under s. 8 of the FLSA as a public service agency for the purposes of the FLSA. The government was trying to compel the reduction of the services offered by this [page767] designated agency without following the process stipulated by law. The Welland office, however, was not designated within the meaning of the Act. It was merely a site from which the government delivered certain government services, including the Niagara South LRO. All of these services were and are required to be available in French. The Ministry's obligation under s. 5(1) of the Act is to deliver the services, but nothing in s. 5(1) requires these services to be available at a specific office. If an office is located in a designated region, it must, unless an exception is made in accordance with the provisions of s. 5 of the FLSA, provide French language services. If no office is located in the designated region, the office that provides service to the region must offer French language services. By stipulating that the service may be provided by an office outside the designated area, the Act is clearly requiring the delivery of services, but granting the province discretion concerning the location of the offices.

[26] Second, there is no loss of services. The site has merely been relocated. All of the French language services have been maintained.

[27] The principal difference, however, is that in Lalonde, the Court of Appeal emphasized the fact that Hôpital Montfort played a special, unique and significant role in the community. Apart from the services that were provided in French there to the community, Hôpital Montfort was an institution founded by the francophone minority and a symbol of that community. It was and still is the only Ontario hospital to provide a francophone environment for French-language training for doctors. The decision by the Restructuring Commission, which was overturned by the court, would have made significant cuts to the French language services provided by the hospital, thereby curtailing the role it could play in the community. The cuts would effectively have ended the hospital's role in the training of doctors in French.

[28] In the case before us, the evidence does not prove that the office in Welland played an active role in the community. The LRO had more of a technical role and, over the years, very few people came to the LRO requesting French language services. The small number of people wishing to receive French language services will have access to them at the new LRO location in St. Catharines.

[29] The background facts are thus very different from the situation with which the Court of Appeal was dealing in Lalonde. In the case before us, apart from the loss of the bilingual signage advertising the Niagara South LRO, the community has actually lost very little in the wake of the relocation.

[30] The applicants claim that, under s. 5(1) of the FLSA, once a government office has been set up in a designated area, it cannot [page768] be closed or relocated outside the area unless the government meets the requirements and limits set out in ss. 7, 8 or 10 of the FLSA. In our opinion, the wording of s. 5(1) of the FLSA is clear and does not impose such a constraint on the government. The aspiration expressed by s. 16(3) of the Canadian Charter of Rights and Freedoms, the constitutional principle of respect for and protection of minorities (Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61, para. 54) and the broad, purposive interpretation that language rights must receive are aids in the interpretation of texts but they do not work in such a way as to change a clear text.

[31] The Ministry's obligation under s. 5(1) of the FLSA is to provide service. It must provide services in the French language to the designated area of Welland. Depending on the circumstances, the office may be located within or outside the area. Contrary to the applicants' claims, nothing in s. 5(1) implies that the service point is fixed in time. Nothing requires the government to follow the process described in ss. 7, 8 or 10 of the FLSA prior to the relocation of a service point. Interpreting s. 5(1) in light of the principles set out above does nothing to change this finding.

[32] With the exception of the constitutional principle of respect for and protection of minorities which, in certain situations, has normative legal force (Lalonde, supra, para. 174), the principles of interpretation referred to do not grant the minority protection against any government action that could have a negative impact on the minority. They merely serve to interpret the rights and protections granted to the minority by legislation or by the constitution.

[33] The analysis must therefore focus on the right granted by the FLSA, i.e., the right to receive services. The applicants suggest that if the province is free to change service points without following the process set out in ss. 7, 8 or 10 of the FLSA, it could relocate all the service points in the province where French language services are available to Toronto overnight. All of the francophone communities would then lose their local access to government services. This would mean in many cases that francophones would no longer have reasonable access to services.

[34] This hypothetical situation is not before us. In the present case, with the exception of the arrangement for the remote registration of documents which is the subject of an agreement with the Association des juristes d'expression française de l'Ontario, the same services have been provided to francophones and anglophones since the relocation and are available at the same service point. Usage of the service is such that the change of service location does not have a disproportionate impact on the francophone community. In fact, the evidence suggests that with the exception of a few users who may have to travel a greater distance to [page769] receive service, the only loss to the community is that of the bilingual signage advertising the office which is now closed.

[35] In our view, in this case, there has been no government decision or action which "would have serious consequences for the Franco-Ontarian minority" to the point of engaging the constitutional principle of respect for and protection of minorities (Lalonde, supra, p. 563 O.R.).

[36] In conclusion, the applicants have not shown that the Minister's decision to relocate the LRO from Welland to St. Catharines is unreasonable, that it contravenes the FLSA or that it violates the constitutional principle of respect for and protection of minorities. It is therefore unnecessary to deal with ss. 7, 8 and 10 of the FLSA.

(b) Résidence Richelieu in Welland

[37] In the case before us, the applicants are not challenging the constitutionality of the Social Housing Reform Act, 2000 or the regulations made thereunder. Rather, they are requesting a declaration to the effect that the Act and the regulations made thereunder, interpreted in light of the constitutional principle of respect for and protection of minorities, gives Résidence Richelieu the right to administer its waiting list. They are also requesting a declaration to the effect that Niagara Regional Housing can take the French language and francophone culture into consideration in the administration of the waiting list.

[38] According to the applicants, any other interpretation would jeopardize the francophone character of the residence and would contribute to the assimilation of the francophone minority into the anglophone majority.

[39] According to the province, the application should be dismissed. First, the Social Housing Reform Act, 2000 and the regulations made thereunder are very clear. They provide that Niagara Regional Housing is responsible for establishing a centralized waiting list for all the subsidized housing units in the region. It may also, if needed, establish subsidiary waiting lists. One object of the Act is the establishment of a centralized list to ensure the equitable and responsible allocation of subsidized housing units. Allowing the residence to administer its waiting list for subsidized housing units would therefore fail to comply with the requirements of the Act (refer to the Social Housing Reform Act, 2000, S.O. 2000, c. 27, ss. 1, 33, 68, 75-78; O. Reg. 298/01, ss. 35-45 and O. Reg. 339/01, ss. 10-20). Since the applicants have not requested that the Act and the regulations be declared unconstitutional, the province maintains that the remedy being requested is not available.

[40] Second, the province argues that under the Act, Niagara Regional Housing could take various steps to mitigate or outright [page770] resolve Résidence Richelieu's concerns. The Act allows Niagara Regional Housing to create local priority rules and establish subsidiary waiting lists. Résidence Richelieu did not ask Niagara Regional Housing to explore these options and the record before us does not allow us to determine whether such measures would resolve the problems that have been raised.

[41] It is unfortunate that Niagara Regional Housing did not attend the hearing of this matter. The applicants have given us some information concerning an agreement negotiated with the agency, but the agreement has not been submitted in evidence and the information given to the court does not give us much clarification concerning the orders that are being requested.

[42] In our opinion, the factual record is incomplete and the orders requested by the applicants are premature and speculative. It would be inappropriate to make an order of the type requested because the record does not indicate that the applicants asked Niagara Regional Housing to take language and culture into consideration in the administration of the waiting lists, and the options available in accordance with the provisions of the Act have not been explored.

[43] The request by Résidence Richelieu that it be granted exclusive administration of its waiting list conflicts with the structure set up by the Social Housing Reform Act, 2000 and with the Act's objectives. It would therefore be preferable for Niagara Regional Housing and Résidence Richelieu to explore the options available to them under that Act for taking the residence's concerns into account before referring the matter to the courts. Once the options have been explored, should Niagara Regional Housing refuse to implement measures that the residence considers appropriate, the court could determine whether, in view of the objectives of the Social Housing Reform Act, 2000 and the FLSA and the constitutional principle of respect for and protection of minorities, the various options proposed by the parties comply with the Social Housing Reform Act, 2000 or are barred by it. If there is a conflict between the Social Housing Reform Act, 2000 on the one hand and the FLSA and the constitutional principle of respect for and protection of minorities on the other, the applicants can ask the court how they are to be reconciled.

Conclusion

[44] We therefore find that the applicants have not demonstrated that the Minister's decision to relocate the LRO from Welland to St. Catharines constitutes a breach of the obligation to provide services in accordance with the provisions of the FLSA or that it violates the constitutional principle of respect for and [page771] protection of minorities. The application concerning the relocation of the LRO is therefore dismissed.

[45] For the reasons set out in this decision, the orders requested by Résidence Richelieu are also refused.

[46] If the parties cannot reach an agreement concerning costs, we request that short written submissions be filed by the respondents within ten days of this decision and by the applicants within seven days thereafter.

Application dismissed.