Belende Ndem v. General Accident Assurance Co. of Canada, 2000 ONFSCDRS 171

Neutral Citation: 2000 ONFSCDRS 171

FSCO A98-001476

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BELENDE NDEM

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

DECISION ON THE SECOND PRELIMINARY ISSUE

Before: David Leitch

Heard: Submission received from the Superintendent of Financial Services on June 27, 2000 and a reply from Belende Ndem on July 17, 2000.

Appearances at the Hearing:

Belende Ndem

J. Claude Blouin for General Accident Assurance Co. of Canada

Preliminary Issue:

I refer to my earlier decision in this matter, dated May 9, 2000, in which I identified the following two preliminary issues:

Is Mr. Ndem precluded from proceeding to arbitration because he failed to make himself reasonably available for Insurer's examinations under section 42 of the Schedule? In particular, as a French-speaking person, is Mr. Ndem entitled to be examined by persons who are also French-speaking?
Is Mr. Ndem precluded from proceeding to arbitration because he failed to make himself reasonably available for an assessment at a designated assessment centre ("DAC") under section 43 of the Schedule? In particular, as a French-speaking person, is Mr. Ndem entitled to be assessed by persons who are also French-speaking?

My decision provided an answer to the first question but invited additional evidence and submissions from named entities with respect to the second question. The Arbitration Order reads as follows:

Mr. Ndem is not entitled to be examined by French-speaking persons under section 42 of the Schedule. He, therefore, failed to make himself reasonably available for Insurer's examinations and, by virtue of section 50 of the Schedule, is not entitled to proceed to arbitration until he makes himself so available.
The Minister's Committee on the Designated Evaluation Centre System and the Superintendent of Financial Services and, if the need arises, Mr. Ndem and General Accident, will be given the opportunity to present further evidence and make further submissions at a resumption of the hearing with respect to the question of whether, as a French-speaking person, Mr. Ndem is entitled to be assessed at a DAC by persons who are also French-speaking. The Committee and the Superintendent will indicate their intentions in this regard within 20 days of the date of this decision.

Result:

This decision finds that:

the Minister's Committee and the DACs are "government agencies" under the French Language Services Act;
DAC assessments and the related functions performed by the Minister's Committee constitute "services" under the French Language Services Act;
the French Language Services Act gives French-speaking persons the right to be assessed at DACs by French-speaking assessors, without the assistance of interpreters.

In light of these findings, the Superintendent and the Minister's Committee will each have 15 days from the date of this decision to indicate a desire to participate in the resumption of the hearing for the purpose of presenting evidence and making submissions with respect to the following remaining questions:

do they bear an onus under section 7 of the French Language Services Act to prove circumstances preventing the provision of bilingual services at the DACs in accordance with this decision?
does the provision of bilingual services at the DACs in accordance with this decision require consideration of regional circumstances under section 5 of the French Language Services Act ?

If the need arises, Mr. Ndem and General Accident will also be given the opportunity to present further evidence and make further submissions with respect to these questions.

Introduction:

On June 27, 2000, I received a document entitled "Submission", dated June 22, 2000¹, from Richard Tillmann, Senior Manager, Accident Benefits Analysis Unit, filed on behalf of the Superintendent of Financial Services. I received no evidence or submissions from the Minister's Committee on the Designated Assessment Centre System (the "Minister's Committee"). On July 17, 2000, I received Mr. Ndem's reply, dated July 17, 2000², to the Superintendent's Submission. I received no reply from General Accident to the Superintendent's Submission.

My earlier decision posed seven questions with respect to the application of the French Language Services Act in the context of DAC assessments. The Superintendent's Submission answers two of those questions by taking the position, stated at the outset, that neither the DACs nor the Minister's Committee are "government agencies" under the French Language Services Act. The Submission then provides background information about the nature and composition of the DACs and the Minister's Committee and an overview of the key provisions of the French Language Services Act. The Submission concludes with the Superintendent's responses to the specific questions posed in my earlier decision but expresses the view that the only relevant questions are the two it answers. The Submission states that the other questions either are irrelevant or do not arise. The Submission nevertheless makes comments on the questions dealing with whether DAC assessments are a "service" under the French Language Services Act and whether the roles of the DACs and the Minister's Committee in the dispute resolution system carry implications for their obligations under the French Language Services Act.

Following the format of the Superintendent's Submission, I will first summarize its background and French Language Services Act segments and I will then set out, verbatim, its responses to the specific questions posed in my earlier decision.

Superintendent's description of background — nature and composition of DACs and the Minister's Committee

The Superintendent's Submission confirms that the Minister's Committee is appointed by the Minister of Finance under the authority of section 7 of the Insurance Act³ and that, in accordance with that section, the Committee's "functions" have either been prescribed by section 52 of the Schedule⁴, a regulation under the Insurance Act, or assigned by the Minister of Finance. The Submission observes that while section 7 of the Insurance Act authorizes the Superintendent of Financial Services to assign functions to a Committee appointed by the Minister, the Superintendent has not assigned any functions to this Committee.

A list of functions, or "mandate", of the Minister's Committee is attached as Appendix C to the Superintendent's Submission. It is reproduced below (with one exception⁵):

appoint DACs to a roster for the purposes of the Statutory Accident Benefits Schedule;
specify the types of impairments that each DAC is authorized to assess;
specify the types of assessments that each DAC is authorized to conduct;
ensure that the number of DACs by type of assessment, type of impairment and location meet the needs of the insurer and claimants;
establish and maintain operational procedures and guidelines dealing with assessments conducted by DACs;
establish and implement assessment protocols for use by DACs when conducting assessments;
establish and implement a system for evaluating and monitoring the performance of the DAC system as well as individual DACs;
establish and implement a process to deal with complaints from insurers and claimants regarding DACs that fail to conduct assessments as set out in the operational procedures and assessment protocols;
establish a fee schedule for DAC assessments;
direct research for the purpose of establishing treatment protocols for specific injuries sustained in automobile accidents;
identify ongoing educational needs of DACs and develop programs to address those needs.

It is apparent that the first three functions listed are those prescribed by section 52 of the Schedule and that the remaining functions have been assigned by the Minister of Finance.

The Superintendent's Submission notes that it is the Minister's Committee which determines the professional qualifications required to conduct the different types of DAC assessments contemplated by the Schedule in respect of disability, medical, rehabilitation and attendant care benefits, and in respect of catastrophic impairment determinations. The Submission provides, in Appendix A, the example of the professional qualifications required by the Minister's Committee to conduct disability DAC assessments.

Of central importance for the present case, the Superintendent's Submission describes as follows the language-capacity qualifications imposed on DACs by the Minister's Committee:

Each DAC must demonstrate that they are capable of providing, as a required minimum, translation services in French. Additionally, as part of the intake process of each DAC assessment, a DAC must identify a claimant's special needs, including language requirements, and modify the assessment plan to accommodate these needs.⁶

In addition to establishing the required qualifications, the Minister's Committee then selects the DACs and governs their operations in order to ensure that, as the Submission states, "the DACs maintain their status as independent assessors of claimants."⁷ The Submission explains the process by which the Minister's Committee selects and governs the DACs as follows:

...persons or organizations with the appropriate backgrounds are invited by the Minister's Committee to submit via the Financial Services Commission of Ontario (FSCO) a proposal to operate a DAC. A successful applicant is entitled to operate as a DAC in accordance with the scope of the appointment, the applicable provisions of the SABS [the Statutory Accident Benefits Schedule], and the guidelines pertaining to the operation of DACs issued by the Minister's Committee.⁸

The background segment of the Superintendent's Submission also furnishes the following information and opinions about the Minister's Committee and the DACs:

Members of the Minister's Committee are appointed by the Minister of Finance, not the Lieutenant Governor in Council, and nominees to the Minister's Committee are not required to appear before the Standing Committee on Government Agencies. Members of the Minister's Committee are chosen by the Minister "through a request for nomination to various stakeholders groups who have an interest in the operation of SABS".⁹ Appendix B of the Submission is a list of the current members of the Minister's Committee.
Once appointed, members of the Minister's Committee do not become public servants, civil servants or Crown employees and do not, therefore, become subject to the Public Service Act. They do not have contracts with the Financial Services Commission or the Ministry of Finance and, with the exception of certain members who are independent professionals, they receive no remuneration.
The Minister's Committee does not have a "direct reporting relationship to either the Superintendent of Financial Services or the Deputy Minister of Finance".¹⁰ To assist with "administrative tasks" and to "facilitate communication with the Minister, staff from FSCO [the Financial Services Commission of Ontario] and the Ministry of Finance work with and attend meetings of the Minister's Committee" but these "government representatives"¹¹ do not become members of the Minister's Committee and have no voting rights.
The DACs have no contractual relations with the Minister's Committee, FSCO or the Ministry of Finance and they do not become subject to the Public Service Act.¹² Their assessments are paid for by insurers under section 24 of the Schedule.
As "part of the claims adjudication process", DACs only provide services to "clients of insurance companies who are claiming benefits under the SABS". They do not provide services to the "broad public".¹³

Superintendent's overview of the French Language Services Act

The Superintendent's Submission refers to the same key provisions of the French Language Services Act as are referred to in my earlier decision. However, the Submission also makes the following observation:

It should be noted that the FSLA [the French Language Services Act] contemplates the designation of certain organizations as a public service agency for various purposes under the Act. Neither DACs nor the Minister's Committee are designated nor otherwise referred to in the regulations under this Act.¹⁴

The provision being referred to in this passage is not identified but must be section 8(a) of the French Language Services Act. I set out below the margin note and complete contents of section 8 of the Act:

Regulations

The Lieutenant Governor in Council may make regulations,

(a) designating public service agencies for the purpose of the definition of "government agency";

(b) amending the Schedule by adding areas to it;

(c) exempting services from the application of sections 2 and 5 where, in the opinion of the Lieutenant Governor in Council, it is reasonable and necessary to do so and where the exemption does not derogate from the general purpose and intent of this Act.

Since the Superintendent's Submission does not refer to any exemption under paragraph (c) of this article, I assume that no such exemption has been prescribed.

Superintendent's responses to the specific questions[^15]

(1) are DACs "government agencies" under the French Language Services Act?

Answer: No. DACs are independent facilities appointed by the Minister's Committee to perform functions assigned to them under the SABS. They are not part of a ministry of the Government of Ontario, as indicated by the fact that the Public Service Act does not apply to them and they are not otherwise accountable by contract or otherwise to a Ministry. For the same reasons they are not a part of a board, commission or corporation as none of the members or directors are appointed by the Lieutenant Governor in Council.

(2) are DAC assessments a "service" under the French Language Services Act?

Answer: Since they are not a "government agency" they are not a service within the meaning of the FSLA. And as indicated above [in the background segment of the Superintendent's Submission], they do not provide services to the broad public. Access to DACs are based on a relationship upheld by a contract between and [sic] insurer and the insured person.

(3) what is the role of DACs in the dispute resolution system and with what implications for their obligations under the French Language Services Act?

Answer: Since DACs are not a "government agency", their role in the dispute resolution system is not relevant to the applicability of the FSLA. Dispute resolution services provided by FSCO are subject to the FLSA because FSCO is a government agency within the meaning of the FLSA, not because they are providing dispute resolution services. In any event, DACs are not part of the Dispute Resolution process established under section 279-288 of the Insurance Act.

(4) is the Minister's Committee on the Designated Assessment Centre System a "government agency" under the French Language Services Act?

Answer: No. Like the DACs themselves the Minister's Committee is responsible for discharging duties assigned to it under the regulations or by the Minister. It is not part of a ministry of the Government of Ontario, as indicated by the fact that the Public Service Act does not apply to the members, and neither the Minister's Committee nor the members are accountable by contract or otherwise to a Ministry. The Minister's Committee members are accountable directly to the Minister of Finance. For the same reason it is not a board, commission or corporation under the FSLA since none of the members are appointed by the Lieutenant Governor in Council. Even if it were considered to be a board or a commission, clause b) of section 1 of the FLSA does not apply because they are appointed by the Minister, and not by the Lieutenant Governor in Council.

(5) what is the role of the Minister's Committee in the dispute resolution system and with what implications for its obligations under the French Language Services Act?

Answer: Since the Minister's Committee is not a "government agency", its role in the dispute resolution system is not relevant to the applicability of the FLSA. Dispute resolution services provided by FSCO are subject to the FLSA because FSCO is a government agency within the meaning of the FLSA, not because they are providing dispute resolution services. In any event, the Minister's Committee is not part of the Dispute Resolution process established under section 279-288 of the Insurance Act.

(6) is the onus on government to prove circumstances preventing the implementation of the French Language Services Act?

Answer: No. As the FLSA does not apply, this issue does not arise.

(7) are regional circumstances to be considered?

Answer: No. As the FLSA does not apply, this issue does not arise.

Mr. Ndem's response to the Superintendent's Submission[^16]

The pertinent portions of Mr. Ndem's reply to the Superintendent's Submission read as follows:

If DACs are not government agencies and their role in the dispute resolution system is not relevant and in any event, the DACs are not part of the dispute resolution process established under sections 279-288 of the Insurance Act, then I see how one can rely upon their role to prevent the settlement of a dispute.

Section 50 of the Schedule speaks about the procedure prior to mediation, not arbitration. However, mediation took place without the DAC[s]. Hence, I again see why one can rely upon their role to prevent the resolution of the problem. What relevance can the DACs have two years after the accident [?]¹⁷

I have difficulty understanding Mr. Ndem's reply. It would appear to me that he inadvertently failed to write the verb "to see" in its negative form in both paragraphs.

Mr. Ndem's argument about the scope of section 50 could and should have been raised prior to or at the hearing. I will nevertheless deal with it at this stage because I do not require a response from the Insurer to do so.

As set out in my earlier decision, Mr. Ndem refused to attend DAC assessments scheduled to take place prior to mediation. The Insurer took the position that, because this refusal was unreasonable, Mr. Ndem was precluded by section 50(c) from proceeding to mediation. If Mr. Ndem is precluded from proceeding to mediation, he is also precluded from proceeding to arbitration by virtue of section 281(2) of the Insurance Act¹⁸ An implicit reference was made to this section in the opening paragraph of my earlier decision.

Further, while my earlier decision confirms that Insurer representatives participated in two mediation sessions after his refusal to attend the DAC assessments, Mr. Ndem's statement that "mediation took place without the DAC[s]" is unfair to the position taken by the Insurer in this matter. The Insurer articulated its section 50 argument at the first mediation and has never abandoned it. Indeed, the second preliminary issue identified in my earlier decision flows from this argument.

ANALYSIS:

The reason why Beaulac applies

In my earlier decision, I quoted, and I now repeat, the Supreme Court of Canada's declaration in the case of R. v. Beaulac:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. [citation omitted] To the extent that Société des Acadiens du Nouveau-Brunswick [citation omitted] 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 added by Mr. Justice Bastarache]¹⁹

This statement was made in the context of an amendment to the Criminal Code giving an accused the right to a trial in either English or French. The Court stated that this amendment, which was clearly legislative, not constitutional, in nature, constituted "an example of the advancement of language rights through legislative means provided for in section 16(3)²⁰ of the Charter" and was "meant to form part of the unfinished edifice of fundamental language rights".

It is clear that the French Language Services Act also responds to the invitation issued by section 16(3) of the Charter by seeking to "advance the equality of status or use of English and French", the two official languages of Canada, in Ontario. This was confirmed in the case of Lalonde v. Ontario (Commission de restructuration des services de santé) (1999) 1999 CanLII 19910 (ON SCDC), 48 O.R. (3d) 50 where, at pp. 68-69, the Divisional Court noted:

Mr. Laskin [counsel for the Commission] argues that the provisions respecting official language and minority language educational rights which are contained in s. 133 of the Constitution Act, 1867 and in ss. 16-22 and 23 of the Charter form a complete constitutional framework for the protection and enhancement of those rights; apart from the specific rights enumerated therein, the framers of the Constitution determined to leave it to Parliament and to the provinces through the division of powers and through the provisions of s. 16(3) of the Charter to provide for the advancement of the status and use of English and French. In Ontario, he submits, the vehicle chosen by the legislature for that purpose is the French Language Services Act;...

The Divisional Court recognized this relationship between section 16(3) of the Charter and the French Language Services Act, holding that the latter law was also "meant to form part of the unfinished edifice of fundamental language rights".²¹ As such, the language rights conferred by the French Language Services Act must be interpreted purposively, in accordance with the Beaulac decision, even though the said statute does not, itself, recognize French as an official language for all purposes in Ontario.

I observe, however, that even without the Beaulac decision, the French Language Services Act should be interpreted in accordance with section 10 of the Interpretation Act, R.S.O. 1990, Ch. which reads:

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

How to determine the purpose of a statute and its uses in interpretation

In order to identify methods both for establishing the purpose of a statute and for using its purpose to interpret the statute, I refer to the text Driedger on the Construction of Statutes²² ("Driedger"). The authors indicate that "there are two broadly distinguishable ways in which legislative purpose can be established".²³

Under the first, reliance is placed on statements from the legislature itself or "from some other credible source". The authors state that "the most direct and authoritative evidence of legislative purpose is found in preambles to statutes and in formal purpose statements appearing in the body of legislation".²⁴

The second method for establishing the purpose of a statute is employed when there is no authoritative statement of purpose. A court or tribunal must then base its conclusions about legislative purpose on its own analysis and inferences after reading the legislation in context. The authors observe that this method of determining purpose is "always highly speculative".²⁵

With regard to the uses of purposive analysis, the authors identify two principles governing judicial reliance on legislative purpose in interpretation:

(1) Where the ordinary meaning of the legislation is ambiguous or otherwise unclear, the interpretation that best accords with the purpose of the legislation should be adopted.

(2) Where the ordinary meaning is clear, but an alternative interpretation is plausible and more in keeping with the purpose, the interpretation that best accords with the purpose of the legislation should be adopted.²⁶

These principles confirm that purposive analysis is of most use when the legislation is unclear or permits alternative interpretations. The authors explain:

When a court relies on purposive analysis to help determine the scope of legislation, it explores the relationship between the apparent purpose of the legislation and the ordinary meaning of its language. It asks itself which of the applications within the ordinary language are rationally related to the purpose. If the legislation is perfectly drafted, these two aspects of the legislation will coincide; the range of applications that are rationally related to the purpose will be the same as the range of applications within the ordinary meaning of the words.

Legislation is rarely perfect in this sense. The virtue of purposive analysis is that it allows the courts to make appropriate adjustments, to preserve and promote applications that advance the purpose while avoiding those that are foolish or pointless.²⁷

Purposes of the French Language Services Act and the language rights it confers

In accordance with the passages from Driedger quoted above, I look first to the preamble of the French Language Services Act to find "the most direct and authoritative evidence" of its legislative purpose. The preamble reads as follows:

Whereas the French language is an historic and honoured language in Ontario and recognized by the Constitution as an official language in Canada; and whereas in Ontario the French language is recognized as an official language in the courts and in education; and whereas the Legislative Assembly recognizes the contribution of the cultural heritage of the French speaking population and wishes to preserve it for future generations; and whereas it is desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario, as provided in this Act;

I deduce from this preamble that the legislative purpose of the French Language Services Act is "to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario".

The presence of the preamble makes it unnecessary to resort to the speculative method for ascertaining legislative purpose, that is, by drawing my own inferences after reading the legislation in context. I have nevertheless not neglected the words "as provided in this Act" at the end of the preamble or failed to consider what the various provisions of the statute may imply with respect to its purpose. These provisions confirm that the Legislature provided the general ambit for the statute's operation, certain means to attain its purpose and potential limits on the attainment of its purpose. However, I find nothing in these provisions which modifies the purpose of the French Language Services Act as expressed by the Legislature in its preamble.

Moreover, as explained below, the statute's provisions are either silent or do not offer clear answers with respect to the questions I will answer in the body of this decision, namely, whether the Minister's Committee and the DACs are "government agencies" under the French Language Services Act, whether DAC assessments and the related functions performed by the Minister's Committee constitute "services" under the statute, and whether French-speaking persons are entitled to be assessed by French-speaking assessors, without interpreters. This silence or lack of clarity is significant for two reasons. First, as previously explained, a purposive analysis is most useful where the legislation is unclear or permits alternative interpretations. A purposive analysis is thus called for in this case. Second, this lack of clarity means that it would be tautological for me to determine the purpose of the French Language Services Act according to its preamble and then modify my understanding of that purpose by reference back to the very provisions of the statute whose lack of clarity or silence necessitated my resort to a purposive analysis, and the preamble, in the first place.

In addition to its preamble, a statute's purpose can also be determined by considering statements "from some other credible source". Since the French Language Services Act confers rights in relation to an official language of Canada, I accept the Supreme Court of Canada's judgment in Beaulac as a "credible source" of enlightenment about the purposes of the language rights it confers. That judgment's most important statement regarding the purpose of language rights is contained in the passage quoted at the beginning of my analysis. However, I draw attention to the following additional observations made by the Supreme Court in Beaulac.

While Mr. Justice Bastarache rejected "a restrictive interpretation of language rights", he re-affirmed the distinction, recognized in earlier jurisprudence, between language rights and what are sometimes called "universal rights" or "the requirements of natural justice". In doing so, he described the purpose of language rights as follows:

The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages. Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English.²⁸

Mr. Justice Bastarache also addressed the issue of the accused's right to a trial in French despite his ability to speak English. In analysing this issue, Mr. Justice Bastarache made the following additional statement regarding the purpose of language rights:

In the present case, much discussion was centered on the ability of the accused to express himself in English. This ability is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity. It would indeed be surprising if Parliament intended that the right of bilingual Canadians should be restricted when in fact official language minorities, who have the highest incidence of bilingualism (84 per cent for francophones living outside Quebec compared to 7 percent for anglophones according to Statistics Canada 1996 Census), are the first persons that the section was designed to assist.²⁹

To the context of this case, the purposes of the French Language Services Act and the language rights it confers can be listed and attributed as follows:

from the Act's preamble: to guarantee the use of the French language in the Government of Ontario;
from the Beaulac decision: to protect, preserve and develop official language minorities in Canada;
from the Beaulac decision: to insure the equality of status of French and English;
from the Beaulac decision: to assist a French-speaking person to gain equal access to a public service that is responsive to his/her linguistic and cultural identity.

Responses to questions (1) and (4): are the DACs and the Minister's Committee "government agencies" under the French Language Services Act?

Again following the format of the Superintendent's Submission, I will begin with the two questions it answers, namely, whether the DACs and the Minister's Committee are "government agencies" under the French Language Services Act.

Section 1 of the French Language Services Act sets out the following definitions of the term "government agency":

In this Act,

"government agency" means,

(a) ministry of the Government of Ontario, except that a psychiatric facility, residential facility or college of applied arts and technology that is administered by a ministry is not included unless it is designated as a public service agency by the regulations,

(b) a board, commission or corporation the majority of whose members or directors are appointed by the Lieutenant Governor in Council,

(c) a non-profit corporation or a similar entity that provides a service to the public, is subsidized in whole or in part by public money and is designated as a public service agency by the regulations,

(d) a nursing home as defined in the Nursing Homes Act or a home for special care as defined in the Homes for Special Care Act that is designated as a public service agency by the regulations,

(e) a service provider as defined in the Child and Family Services Act or a board as defined in the District Social Services³⁰ Administration Boards Act that is designated as a public service agency by the regulations,

and does not include a municipality, or a local board as defined in the Municipal Affairs Act, other than a local board that is designated under clause (e);

Only the opening words of paragraph (a), "a ministry of the Government of Ontario", have the potential to apply to the DACs and the Minister's Committee. However, I am unable to find that the ordinary meaning of these words clearly do, or clearly do not, cover the DACs and the Minister's Committee.

In support of its position that the DACs and the Minister's Committee "are not part of a ministry of the Government of Ontario", the Superintendent's Submission cites the absence of employment or contractual relationships with the Ministry of Finance and the absence of a "direct reporting relationship to either the Superintendent of Financial Services or the Deputy Minister of Finance". The Submission also points out that DAC assessments are paid for by insurers, presumably to underscore the fact that they are not paid for by FSCO or the Ministry of Finance.

I do not doubt that these are relevant considerations and I have, in fact, considered them. But the Superintendent's Submission acknowledges the following facts which I also consider to be relevant: the Minister's Committee is appointed by the Minister of Finance, many of its functions are assigned by the Minister of Finance, the members of the Minister's Committee remain

"accountable directly to the Minister of Finance", the Minister's Committee receives administrative support from "staff from FSCO and the Ministry of Finance", and the DACs are selected, designated and overseen by the Minister's Committee.

In short, it is clear that the Minister's Committee and the DACs owe their existence to the Minister of Finance; what remains unclear is whether or not this makes them a part of the Ministry of Finance for purposes of the French Language Services Act.

While I do not regard it as decisive, the view that the Minister's Committee and the DACs are part of the Ministry may find support in section 1 of An Act to establish the Financial Services Commission of Ontario and to make complementary amendments to other statutes, Ch. 68, Statutes of Ontario, 1997, which states that, for the purposes of that statute: "'Minister' means the Minister of Finance, and 'Ministry' has a corresponding meaning."

Nor, in my view, is it decisive that insurers pay for DAC assessments. In accordance with section 14(1) of the Insurance Act, insurers are also required to pay for "all expenses incurred and expenditures made" by the Financial Services Commission of Ontario. Section 14(1) reads as follows:

(1) The Lieutenant Governor in Council may assess all insurers with respect to all expenses incurred and expenditures made by the Commission in the conduct of its affairs and an insurer shall pay the amount assessed against it.

Insurers' assessments may, of course, first pass through government coffers before reaching the Commission, but this does not alter the fact that insurers effectively pay for all of the Commission's expenses. This fact does not prevent the definition of "government agency" found in paragraph (b) from applying to the Commission. On the contrary, source of funding only appears as a relevant criterion under the definition found in paragraph (c). It is not, therefore, clear to me how the fact that insurers pay for DAC assessments can prevent the definition found in paragraph (a) from applying to the Minister's Committee and the DACs.

In addition, I observe that the Superintendent's Submission does not address the possibility, raised in my earlier decision, that the DACs can be regarded as "government agencies" only for the purposes of their designations by the Minister's Committee, that is, only when performing functions related to assessments under the Schedule.

All of these considerations, taken as a whole, preclude my finding that the Minister's Committee and the DACs clearly are, or clearly are not, covered by the ordinary meaning of the definition "a ministry of the Government of Ontario".

Furthermore, this uncertainty cannot, in my view, be reliably resolved by reference to either section 8 of the French Language Services Act or to the other definitions of "government agency" found in section 1 of the statute. The Minister's Committee and the DACs may not have been specifically designated by regulation under paragraph (a) of section 8, but nor have they been specifically exempted under paragraph (c) of that section. The Legislature may not have provided specific definitions covering the Minister's Committee and the DACs, but it did provide the more general definition found in paragraph (a) of section 1. Indeed, it is the very absence of a specific regulation or definition dealing with the Minister's Committee and the DACs which necessitates reference to this more general definition. In my view, neither the wording of the other definitions found in section 1, nor the absence of a specific regulation dealing with the Minister's Committee and the DACs, compels or justifies a finding that they clearly are, or clearly are not, covered by the words "a ministry of the Government of Ontario".

I, therefore, find that the principles of purposive analysis, as expounded in Driedger, apply in this case: the ordinary meaning of the opening words of paragraph (a) of section 1 of the French Language Services Act is unclear in the present context and I should, therefore, adopt an interpretation of these words which is both plausible and which best accords with the purpose of the statute and the language rights it confers.

On the one hand, it is evident that interpreting the definition so that it does not cover the Minister's Committee and the DACs would do nothing to advance the purposes of the French Language Services Act and the language rights it confers, just as interpreting the definition so that it does cover them would, at least in some measure, advance these purposes. As Mr. Justice Bastarache observed in Beaulac:

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.³¹

On the other hand, it is equally evident that the purposes of the French Language Services Act and the language rights it confers are only pertinent in the present context if the Minister's Committee and the DACs are considered to be part of "the State" or, more precisely, "a ministry of the Government of Ontario".

In order to resolve this fundamental issue, I make the following observations of fact and law based on the evidence presented and the applicable legislation: the Minister's Committee is a creation of the Minister of Finance exercising his/her authority under section 7 of the Insurance Act and the DACs, insofar as they function in the capacity of DACs, are, in turn, creations of the Minister's Committee exercising its authority under section 52 of the Schedule. In my view, the indisputable nature of these observations makes it plausible to interpret the words "a ministry of the Government of Ontario" to include the Minister's Committee and the DACs. I also find that an inclusive interpretation accords better with the purposes of the French Language Services Act and the language rights it confers than would an exclusive interpretation because an exclusive interpretation would not advance those purposes at all.

I, therefore, conclude that the Minister's Committee and the DACs are "government agencies" under the French Language Services Act.

The finding that the Minister's Committee and the DACs are "government agencies" under the French Language Services Act is not sufficient to determine the issue raised by this case. For the Act to apply to DAC assessments and the related functions performed by the Minister's Committee, such assessments and functions must constitute "services" as that term is defined in section 1. The definition reads as follows:

"service" means any service or procedure that is provided to the public by a government agency or institution of the Legislature and includes all communications for the purpose.

The Superintendent's Submission asserts that DAC assessments do not constitute a "service" in accordance with this definition because DACs are not "government agencies" and because access to DACs is based on the contractual relationship between the insurer and the insured person. The Submission also denies that DACs provide assessments to the "broad public".

With respect, access to DAC assessments is provided by the Schedule, not by or through contracts of insurance. As the Submission acknowledges in its background section, "the SABS contemplates the use of a DAC as part of the claims adjudication process". This process is accessible by any person who claims statutory accident benefits under the Schedule. Such a person need not either be a party to a contract of insurance or, where the Motor Vehicle Accident Claims Fund Act, R.S.O. 1990, Ch. M.41, applies, even found his/her claim on a contract of insurance.³²

The expression "broad public" is not found in the definition of the term "service" and it is not defined in the Superintendent's Submission. In my opinion, a service is "provided to the public", within the meaning of the definition, if it is provided to those members of the public who require it; it cannot be right that these persons fail to constitute "the public" merely because other members of the public do not require that same service. That is often the case where government services are concerned.

I find that a DAC assessment is a "service or procedure that is provided to the public" within the meaning of the definition of "service". I further find that communications between the assessor and the person being assessed are "communications for the purpose" of the DAC assessment and are, therefore, also covered by the definition. Indeed, such communications will frequently be critical to the outcome of the DAC assessment.

Of course, it is apparent that this service is provided to the public by the DACs, not by the Minister's Committee whose members normally have no direct contact with the public. But it is also apparent that if the French Language Services Act affects the way in which DACs must conduct assessments, it must also affect the way in which the Minister's Committee sets the qualifications, selects the providers and oversees the provision of DAC assessments. Indeed, the provision of DAC assessments, the service in question, is the Minister's Committee's primary raison d'être. I, therefore, find that the definition of "service", interpreted in accordance with the purposes of the French Language Services Act and the language rights it confers, covers both DAC assessments and the functions of the Minister's Committee as listed on page 6 of this decision.

Response to the question of whether French-speaking persons are entitled to be assessed by French-speaking assessors, without interpreters.

The findings that the Minister's Committee and the DACs are "government agencies" and that DAC assessments constitute a "service" under the French Language Services Act, are still not sufficient to determine the issue raised by this case. That issue is whether Mr. Ndem, as a French-speaking person, is entitled to be assessed by persons who also speak French, without the assistance of interpreters.

The French Language Services Act does not address the issue of the use of interpreters. On one view of the matter, therefore, the Act does not prohibit the use of interpreters and hence does not prohibit the Minister's Committee from adopting a language-capacity qualification which permits the DACs to use French interpreters in conducting assessments. The Superintendent's Submission is explicit that the Minister's Committee has, in fact, adopted such a qualification. Again, for ease of reference, it states:

On another view of the matter, this approach effectively nullifies the French Language Services Act in the present context because it means that a French-speaking person who wishes to speak French is assessed in the same way as any person who does not speak English or who prefers to speak another language; that is, unless the assessor happens to speak the language spoken or preferred by the person to be assessed, the assessment is conducted in English, with the assistance of an interpreter. Since this use of a French interpreter requires no reference to the French Language Services Act, the statute ultimately serves no purpose in this context.

As noted in my earlier decision, the use of interpreters is sometimes "essential in a country where many languages are spoken" and "is intended to prevent, not propagate, the adverse effects which might otherwise flow from failures to communicate at examinations and assessments". It follows that if the single purpose of the French Language Services Act and the language rights it confers was to prevent failures to communicate, the use of French interpreters would be in keeping with that purpose. But, as indicated above, the French Language Services Act and the language rights it confers are intended to serve other purposes. While the purpose of effective communication retains its importance regardless of language, the use of interpreters to achieve it must, in the case of the French language, be questioned if the use of interpreters undermines, rather than advances, the other purposes of the French Language Services Act and the language rights it confers. I find that the use of French interpreters in the present context has the effect of undermining, rather than advancing, these purposes for the following reasons.

First, the use of interpreters may generate reasons for persons who speak both French and English to choose English as the language of assessment. Those reasons will vary from case to case but may include the following: more time will be required to complete the assessment, more possibilities for failures to communicate will arise, and less human contact or rapport will be established between the assessor and the person being assessed. A bilingual person may also fear, with or without cause, that the assessor will comment on or even resent his/her insistence on communicating in French, through an interpreter, particularly if the assessor is aware of that person's ability to speak English. Unlike persons who do not speak English, French-speaking persons who also speak English can always choose English as the language of assessment. Their "choice" to speak English may not, however, be a reflection of their "linguistic and cultural identity" but rather a reflection of their desire to avoid the inconveniences and risks associated with the use of French and, hence, of interpreters. Given Statistics Canada's estimate, cited in the Beaulac decision, that 84 per cent of francophones living outside Quebec are bilingual,³⁴ I find that the use of French interpreters in DAC assessments can only serve to seriously undermine, rather than advance, the purposes of the French Language Services Act and the language rights it confers.

Second, the use of interpreters would not advance these purposes even if it was somehow restricted to assessments involving francophones who do not also speak English. In my opinion, for a francophone who does not speak English to have access to a DAC assessment which is equal to the access of an anglophone who does not speak French, both must be entitled to be assessed by persons who, themselves, speak French or English, as the case may be, thus eliminating the need for interpreters in both cases. Indeed, I am compelled to find that rather than insuring the equality of status of French and English, the DACs' use of French interpreters insures the French language's equality of status with every other language except English.

Third, as the Superintendent's Submission admits for all languages except French, I find that any use of interpreters in the present context is really only intended to "accommodate" the "special needs" of the person being assessed. Where the French language is concerned, this attitude is inconsistent with the spirit of the French Language Services Act and the language rights it confers. As stated by Mr. Justice Bastarache in the Beaulac judgment: "... the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation".³⁵ In my view, the use of French in the present context would be better guaranteed, and the French-speaking minority of Ontario would be better protected, preserved and developed, by requiring the DACs to engage French-speaking assessors, rather than French interpreters. Unlike interpreters, who can be hired on an accommodation basis for any language, French-speaking assessors would, in addition to being bilingual, be required to meet the professional qualifications imposed by the Minister's Committee. They would, therefore, be more likely to become DAC partners, associates or employees, thus creating or contributing to a more permanent infrastructure within the DAC system for the delivery of services in French.

A purposive analysis of the French Language Services Act permits me to adopt an interpretation of the Act that is both plausible and that accords with its purposes. In this case, I find that there is only one interpretation of the French Language Services Act that is both plausible and that accords with the purposes of the Act and the language rights it confers. That is an interpretation which requires the Minister's Committee and the DACs to ensure that French-speaking persons wishing to be evaluated in French are assessed by French-speaking assessors, without the assistance of interpreters. This interpretation can be adopted under the principles of purposive analysis, as expounded in Driedger, because the French Language Services Act is silent and, therefore unclear, about the use of interpreters.

Conclusions

My conclusions may be summarized as follows. The French Language Services Act, as drafted, does not provide clear answers to the questions I have answered in this decision, namely, whether the Minister's Committee and the DACs are "government agencies" under the French Language Services Act, whether DAC assessments and the related functions performed by the Minister's Committee constitute "services" under the statute, and whether French-speaking persons are entitled to be assessed by French-speaking assessors, without interpreters. In my view, a purposive analysis of the French Language Services Act and the language rights it confers has been justified in this case and has led to affirmative answers to these questions.

In reaching these conclusions, I want to emphasize that they are not intended to apply to every other situation in which services are provided or, in some way, supported or authorized by the Government of Ontario. The application of the French Language Services Act in other situations may involve other considerations. It may make more legal and common sense in other situations for the statute to be interpreted not to apply at all or to apply, but to permit the use of French interpreters. These are issues for other decision-makers.

While my conclusions in this case are based on a purposive analysis of the French Language Services Act and the language rights it confers, I nevertheless believe that the following additional observations support the view that these conclusions also make good legal and common sense from other points of view.

Additional observations supporting the conclusions:

A purposive analysis of the French Language Services Act should not produce an interpretation of that Act which conflicts with judicial interpretation of a related statute. As the authors of Driedger write: "Statutes enacted by a legislature that deal with the same subject are presumed to be drafted with one another in mind, so as to offer a coherent and consistent treatment of the subject".³⁶ The authors observe that this is true even if the statutes only "touch on the same subject without actually constituting a single integrated scheme".³⁷ They also confirm that judicial interpretations of related statutes are useful³⁸ in applying the presumption that "the legislature does not intend to contradict itself or create inconsistent schemes".³⁹

Rather than creating inconsistent schemes, a purposive interpretation of the French Language Services Act produces an interpretation of that Act which is consistent with a recent judicial interpretation of the official language provision of the Courts of Justice Act.

As noted in my earlier decision, section 125 of this latter statute makes French and English the official languages of the courts of Ontario. Insofar as section 125 of the Courts of Justice Act confers on the French-speaking population of Ontario the right to access the services of the Ontario courts using the French language, it constitutes legislation which is related to the same subject as the French Language Services Act. Section 125 of the Courts of Justice Act has recently been interpreted by a court in a context very similar to a DAC assessment.

The case of Dehenne v. Dehenne, now reported at (1999) 1999 CanLII 15118 (ON SC), 47 O.R. (3d) 140, involved the appointment of a guardian for a person incapable of managing his affairs. In accordance with the Substitute Decisions Act, 1992, this required an assessment of the person's mental capacity. The Office of the Public Guardian and Trustee publishes the qualifications necessary to conduct assessments of this kind and a list of qualified assessors. It was not disputed that this Office "is part of the Ontario Ministry of the Attorney General, to which the French Language Services applies". The assessors qualified for the Toronto area included few persons capable of conducting an assessment in French and the assessment was, therefore, conducted by a unilingual anglophone with the assistance of an interpreter.

After quoting section 125 of the Courts of Justice Act, Mr. Justice Beaulieu of the Superior Court of Justice made the following comments about the use of an interpreter in the case before him:

The list [of qualified assessors] does not take into account the fact that French is one of the two official languages of the Ontario courts. In fact, only one person who is identified as being in a position to use French describes herself as capable of doing her work in French. The right to the use of French is not a right to an interpreter. French-speaking families who pay a professional to assess a person’s capacity are entitled to an assessment conducted in French (without the assistance of an interpreter) and to the preparation of a report in French. The Office of the Public Guardian and Trustee must certify an adequate number of assessors in a position to conduct an assessment in French and prepare the assessment report in French.⁴⁰

The important similarity between the Dehenne case and the present case arises from the use of the French language for the same purpose in both cases, namely, to conduct an assessment of a French-speaking person in a context where that assessment may carry legal consequences for the person evaluated. In my opinion, a purposive interpretation of the French Language Services Act, which leads to the prohibition⁴¹ of the use of interpreters in the context of DAC assessments, achieves consistency and avoids conflict with the judicial interpretation in Dehenne of the related legislation found in section 125 of the Courts of Justice Act.

Observations with respect to questions (3) and (5): what are the roles of DACs and the Minister's Committee in the dispute resolution system and with what implications for their obligations under the French Language Services Act?

A presumption of consistency also applies to the interpretation of individual statutes. In Driedger, it is referred to as a "presumption of coherence" or "a presumption against internal conflict"⁴²; the authors describe it in the following terms: "It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework...".⁴³

Rather than introducing internal conflicts into the interpretation of either the French Language Services Act or the Insurance Act, I observe an internal conflict in the interpretation of these statutes, as proposed in the Superintendent's Submission, which a purposive analysis of the French Language Services Act would eliminate. Perception of this internal conflict requires an examination of the role of the DACs and the Minister's Committee in the dispute resolution system created by the Insurance Act and the Schedule.

In my view, to appreciate the role of the DACs in the dispute resolution system, one must consider not only what the Schedule requires the DACs to do and say, but also the legal effect which the Schedule then confers on what the DACs have done and said.

The DACs are required by sections 37 through 40 of the Schedule to conduct assessments and write reports dealing with at least one of four following issues: whether the person assessed continues to suffer from specified forms of disability, whether expenses claimed in respect of his/her treatment or rehabilitation are reasonable and necessary, whether he/she requires attendant care, and whether the impairment he/she has sustained is catastrophic.

In each case, the relevant section of the Schedule leaves no doubt that the DAC's report decides the dispute between the parties. I have added the emphasis in what follows:

under sections 37(4) and (5), if the DAC report states that the person no longer suffers from the disability, the insurer "may stop paying" the disability benefits, but if the DAC report "states that the person continues to suffer from the disability", the insurer "shall pay the benefit";
under section 38(14), the insurer "shall pay for the expense" if "in the opinion of the person or persons who conducted the [DAC] assessment, an expense is reasonable and necessary for the insured person's treatment or rehabilitation", but the insurer is "not required to pay for the expense" if the DAC report does not contain such an opinion;
under both sections 39(7) and 40(4),"the determination by the designated assessment centre [with respect to whether or not attendant care is required and whether or not catastrophic impairment exists] is binding on the insured person and the insurer".

It will be noted that even when the relevant section does not specifically indicate that the DAC report is binding, it only leaves the insurer the liberty to pay benefits which, in light of the DAC report, it is not required to pay.

It is true that each of these sections also states that the DAC's determination is subject to the parties' respective rights to contest it "in accordance with sections 279 to 283 of the Insurance Act". These are the provisions of the Insurance Act which deal with dispute resolution involving statutory accident benefits and the Superintendent's Submission refers to them in making the following observation: "DACs are not part of the Dispute Resolution process established under section 279-288 of the Insurance Act".

However, insofar as this statement is intended to suggest that the DACs are not part of the dispute resolution system, it is inaccurate. Section 279(1) of the Insurance Act confirms that the law governing the resolution of disputes in relation to statutory accident benefits is found in both the Insurance Act and the Schedule, a valid regulation under the Insurance Act. Together with its heading and margin notes, section 279(1) reads as follows:

DISPUTE RESOLUTION -

STATUTORY ACCIDENT BENEFITS

Dispute resolution, procedure to be followed

(1) Disputes in respect of any insured person's entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled shall be resolved in accordance with sections 280 to 283 and the statutory accident benefits Schedule. [my emphasis]

It is clear that for the four issues itemized above, the DACs constitute the first stage of the dispute resolution process or system. Until and unless the question is pursued beyond the DAC stage to the next stage of the dispute resolution process, that is, to an arbitrator at the Commission or a court as contemplated by section 281(1)(a) and (b) of the Insurance Act⁴⁴, the DAC report decides the question and is binding on the parties. The Superintendent's Submission acknowledges this in its background section by observing that the "SABS contemplates the use of a DAC as part of the claims adjudication process" [my emphasis]. Similarly, referring to the role of the DACs under an earlier Schedule⁴⁵, a Director's Delegate has observed:

The SABS-1994 gives the DAC an important role. They [the DACs] are appointed by the Financial Services Commission of Ontario and are to provide a neutral assessment where the parties disagree about the insured person's disability. The legislation makes it clear that the report [of a DAC] is meant to resolve the issue pending a decision of an arbitrator or the court.⁴⁶

The Schedule applicable in the present case continues to give DACs the authority to "resolve" any of the four issues discussed above "pending a decision of an arbitrator or the court".

All this must mean that the DACs have decision-making authority. A DAC report may ultimately be treated as mere "opinion evidence" if challenged before an arbitrator at the Commission⁴⁷ or a court, but just as it cannot be said that arbitrators or courts do not have decision-making authority because their decisions can be challenged on appeal, so it cannot be said that DACs do not have decision-making authority because the "opinions" expressed in their reports can be challenged before an arbitrator or a court.

In my view, the Superintendent's Submission gives rise to an internal conflict in the interpretation of the French Language Services Act and the Insurance Act because it fails to address the possibility, raised in my earlier decision, that DACs have decision-making authority. As explained in that decision, the Dispute Resolution Practice Code published by the Financial Services Commission of Ontario recognizes that the arbitrator must be bilingual if a French-speaking party so requests. This requirement for a bilingual adjudicator at the Commission resembles the requirement for a bilingual judge where a French-speaking party so requests under section 126 of the Courts of Justice Act.

Since section 281(a) and (b) of the Insurance Act allows claimants to contest DAC reports before either arbitrators at the Commission or judges, and since all three, DACs, arbitrators at the Commission and judges, have decision-making authority in relation to the same four questions, "a rational, internally consistent framework" for the adjudication of those questions would, in my opinion, permit French-speaking persons to request bilingual DAC assessors as well as bilingual arbitrators and judges. If that is so, it goes without saying that it is the role of the Minister's Committee to ensure the provision of bilingual services at the DACs.

It would be misguided, in my view, to justify the internal conflict that currently exists in this regard on the ground that, unlike arbitrators and judges, DACs do not hold hearings. Assuming, without deciding, that this is a legally valid distinction, it can only justify differences in procedural rights, not language rights. As Mr. Justice Bastarache said in Beaulac: "the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity."⁴⁸

Responses to (6) and (7): is the onus on government to prove circumstances preventing the implementation of the French Language Services Act? are regional circumstances to be considered?

The Superintendent's Submission states that these questions do not arise. For the reasons given, I find that these questions do arise. In order for the Superintendent and the Minister's Committee to present evidence and make submissions with respect to these questions, each will have 15 days from the date of this decision to indicate a desire to participate in the resumption of the hearing for this purpose. If the need arises, Mr. Ndem and General Accident will also be given the opportunity to present further evidence and make further submissions with respect to these questions.

September 21, 2000

David Leitch Arbitrator

Date