Neutral Citation: 2000 ONFSCDRS 86

FSCO A98-001476

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BELENDE NDEM

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

David Leitch

Heard:

November 1 and 2, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Belende Ndem

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

Introduction:

The Applicant, Belende Ndem, was involved in a motor vehicle accident on June 1, 1998. He applied for statutory accident benefits from General Accident Assurance Co. of Canada ("General Accident"), payable under the Schedule.¹ General Accident denied Mr. Ndem's application on the ground that he had not complied with his obligations under section 33 of the Schedule, to supply the Insurer with any information it reasonably required, and under sections 42 and 43 of the Schedule, to make himself reasonably available for Insurer's examinations and for an evaluation at a designated assessment centre (a "DAC"). General Accident maintains that as a result of the last two of these omissions, Mr. Ndem is not entitled, under section 50(b) and (c) of the Schedule, to commence a mediation, and hence an arbitration, proceeding under sections 280 and 282 of the Insurance Act, R.S.O. 1990, Chap. I.8. The parties were unable to resolve their disputes through mediation, and Mr. Ndem applied for arbitration.

The preliminary issues are:

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 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?

Result:

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 Assessment 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, is Mr. Ndem 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.

EVIDENCE:

The evidence presented at the hearing did not identify the existence of any linguistic problem between the parties during the formation of the contract of insurance or in the period soon after the accident of June 1, 1998. General Accident sent Mr. Ndem a letter dated June 4, 1998² enclosing forms and information he needed to make a claim for statutory accident benefits. These documents were written in English and did not indicate that the file could be handled in French. The form completed by Mr. Ndem on June 17, 1998³ asked him which languages he spoke and he indicated "French/English". During an interview at General Accident's offices on June 23, 1998⁴, Mr. Ndem signed a two-and-a-half page, single-spaced, statement in which he declared: "I do not require a translator to provide this statement".⁵

General Accident and Mr. Ndem continued to communicate in English but their relationship rapidly deteriorated. General Accident made appointments for two examinations under section 42 of the Schedule (insurer examinations)⁶ and, under section 33 of the Schedule, General Accident also requested Mr. Ndem supply information concerning his pre-accident income to Coopers & Lybrand, accountants.⁷ According to a letter from the accountant⁸, Mr. Ndem refused to supply the required information when they met for that purpose on July 9, 1998. In addition, according to a letter from the Insurer⁹, Mr. Ndem made several unannounced and unproductive visits to General Accident's offices on July 8 and 10 and left eleven telephone messages for three different Insurer representatives on July 13, 1998.

Shortly before 6:00 p.m. on July 13, 1998, Mr. Ndem spoke on the telephone with Ms. Hanne Hargreaves, a claims investigator for the Insurer. It was during the course of this telephone conversation that Mr. Ndem indicated, apparently for the first time, a preference to express himself in French. Ms. Hargreaves testified at the hearing that the first ten minutes of the conversation took place in English, with no problem in communication, when, suddenly, Mr. Ndem started to speak in French. Since Ms. Hargreaves does not understand French, the conversation ended with her commitment to explain everything in a letter which would be translated into French. In her testimony, Ms. Hargreaves maintained that she did not say that the Insurer would henceforth communicate with Mr. Ndem in French. She also testified that she had verified through the offices of three of the doctors consulted by Mr. Ndem that these doctors did not speak French.

This last piece of evidence was presented to establish grounds for General Accident's allegation that Mr. Ndem understands the English language. I deal below with the relevance of such evidence, but I note here a difference between Ms. Hargreaves' testimony at the hearing and the contents of her letter of July 22, 1998 to Mr. Ndem:

Finally, the writer confirms our telephone conversation on July 13, 1998, at approximately 5:53 p.m. The writer confirms you expressed concern over the commencement of benefits. You will recall you were advised of the writer's involvement in this matter. You were further advised of your obligations with respect to submitting to the Independent Medical Evaluation and providing the documentation necessary for the calculation of any entitlement to benefits. You responded by indicating you failed to understand the writer and requested the matter be forwarded to a french speaking adjuster. [emphasis added]¹⁰

The Insurer's first examination of Mr. Ndem was supposed to have taken place on July 31, 1998.¹¹ Mr. Ndem attended at the time and place stipulated but he left without being examined by reason of the undisputed fact that he would have been examined by persons who did not, themselves, understand French. He advised General Accident of his reason for refusing to be examined by leaving a telephone message in which, at the same time, he indicated that he would submit to being examined by French-speaking persons.¹²

In a letter to Mr. Ndem dated August 10, 1998¹³, General Accident confirmed that he also refused to attend the Insurer's second examination which was to have taken place on August 6, 1998, again because he would have been examined by persons who did not, themselves, understand French. In its letter, General Accident disputed the validity of this reason, noting that interpreters had been arranged for both examinations.

Additional assessments of Mr. Ndem had to be conducted when General Accident refused to pay for the goods and services contemplated by the various treatment plans submitted on his behalf between June 29 and August 10, 1998.¹⁴ In accordance with subsection 38(12) and sections 43 and 53 of the Schedule, General Accident required Mr. Ndem to be assessed in respect of medical and rehabilitation benefits by the DAC which was both nearest to his residence and authorized to assess his types of impairment. The Insurer determined that the DAC which satisfied these criteria was the Canadian Rehabilitation Institute ("CRI"), situated in Scarborough. In a letter to Mr. Ndem dated July 21, 1998, CRI set dates in August, 1998 for assessments under five categories: psychiatric, physiotherapy, functional abilities, chiropractic and orthopaedic.¹⁵

According to a letter from a representative of CRI¹⁶, Mr. Ndem informed her by telephone on July 22, 1998 that he insisted on being assessed by persons who understood French and that he would not attend the appointments despite the presence of certified interpreters as arranged by CRI. The letter informed Mr. Ndem that it would be difficult for CRI to arrange to have all his assessments performed by French-speaking assessors given the short time frame and the experience requirements of DAC assessors. The representative added that she was not aware of any complaint that a language barrier had prevented an assessment, despite many assessments having been performed through interpreters. The appointments were arranged for later dates¹⁷ but Mr. Ndem did not attend.¹⁸

One day before the first mediation, which took place on October 23, 1998, General Accident received a letter from a lawyer representing Mr. Ndem¹⁹ indicating his client's willingness to be assessed at a DAC on the condition that the assessment be conducted in the French language. The Mediator's Report²⁰ confirms that no agreement was reached on this point. Rather, General Accident argued that Mr. Ndem was not entitled to commence a mediation proceeding by virtue of sections 50(b) and (c) of the Schedule.

Two days after the second mediation, which took place on December 7, 1998, Mr. Ndem sent a letter to General Accident. The letter, which was written in French, reads as follows:

According to the list of DACs which the Ontario Insurance Commission gave me on December 7, 1998, I have been able to contact Scarborough North Multi-Disciplinary Assessment Centre Inc. which is able to offer me services in French with French doctors for my disability and [which] is the nearest centre. I, therefore, insist on having my assessment at this centre.²¹

Based on the evidence put before me, it would not appear that General Accident responded to this letter.

Before the hearing, I sent the parties a letter raising the issue of the potential application of the French Language Services Act, R.S.O. 1990, Ch. F.32, as amended. After receiving their written submissions on this issue, and still prior to the hearing, I sent the parties a second letter dated July 16, 1999, in which I indicated:

The answer to this question [both preliminary questions in this proceeding] may depend, in part, on the availability of facilities offering their services in French as well as English, without the assistance of interpreters, and, if none is available near the Applicant's residence, the cost associated with his being examined or assessed at locations where such facilities are available...

I require the parties' submissions with respect to the relevance of such evidence and the onus on either party, if any, to produce it. I will also permit either party to enter such evidence at an oral hearing, subject to any later ruling on evidence.

At the hearing, Mr. Ndem entered into evidence the list²² to which he had referred in his letter of December 9, 1998 and he testified about his conversation with a representative of the Scarborough North Multi-Disciplinary Assessment Centre Inc. in which she confirmed the availability of services in French at that DAC.

For the reasons articulated in its submissions, General Accident presented no evidence with regard to either the availability of facilities offering their services in French as well as English, without the assistance of interpreters, or the cost associated with examinations and assessments at locations where such facilities are available. However, Mr. Blouin did note that, according to the list presented by Mr. Ndem, the Scarborough North Multi-Disciplinary Assessment Centre Inc. is only authorized to perform assessments with respect to disability benefits, and not with respect to medical and rehabilitation benefits, whereas CRI is authorized to perform assessments with respect to medical and rehabilitation benefits as required in this case.²³

Mr. Blouin's cross-examination of Mr. Ndem was aimed principally at supporting General Accident's allegation that Mr. Ndem understands English and at attacking his refusal to be examined with the assistance of interpreters when he accepts the use of interpreters when consulting his own doctors.

During the course of the hearing, which was conducted as a bilingual proceeding²⁴, I observed and I find that Mr. Ndem is a French-speaking person.

SUBMISSIONS:

During the course of his submissions, Mr. Ndem admitted that, since arriving in Ontario, he has acquired a knowledge of the English language, but he described himself as still being more comfortable in the French language. He argued that General Accident had no valid reason for wanting to have him examined and assessed by persons who do not speak French when persons who do speak French are available for this purpose. He deplored the use of interpreters for the same reason and raised a concern about a resulting loss of precision and impartiality. He drew a distinction between consultations with his own doctors, where he used friends as interpreters, and examinations and assessments under the Schedule, where, despite being nervous, he was required to accept strangers as interpreters.

Without referring to any specific law in his oral submissions, Mr. Ndem maintained that the law contemplates and encourages the use of both official languages of Canada. In his written submissions, Mr. Ndem invoked his rights under the Canadian Charter of Rights and Freedoms and under the French Language Services Act.

General Accident submitted that the Canadian Charter of Rights and Freedoms only governs relationships between individuals and governments. Mr. Blouin intimated that this case does not involve such a relationship.

General Accident also submitted that the French Language Services Act does not apply to insurers, persons who conduct insurer examinations or DACs as none of them is a government agency subsidized by public money. Likewise, General Accident argued that the French Language Services Act confers no rights on Mr. Ndem because his claim is based on a private contract of insurance, again beyond the scope of that legislation.

As regards the Insurance Act and the Schedule, General Accident denied the existence of any linguistic right of the sort claimed by Mr. Ndem. On the contrary, according to General Accident, section 42 of the Schedule gives it, as Insurer, the right to choose the persons by whom Mr. Ndem is to be examined, without regard to his spoken language. Similarly, General Accident continued, section 53 stipulates the DAC that is to perform the assessment without regard to the language of the person assessed. Given the importance of the DAC's impartiality, the Insurer submitted, the requirements of section 53 must be fully respected.

Finally, General Accident maintained that its, and CRI's, use of interpreters showed sufficient respect for Mr. Ndem's linguistic needs. General Accident nevertheless accused Mr. Ndem of fabricating his so-called linguistic needs to thwart the Insurer's rights and to engage in a form of "DAC-shopping".

ANALYSIS:

On May 20, 1999, Mr. Justice Bastarache pronounced the following declaration on behalf of a majority of the Supreme Court of Canada 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]²⁵

In addition, Mr. Justice Bastarache proclaimed that a person's linguistic rights are not to be compromised by reason of his/her knowledge of both official languages. He wrote:

In the present instance, 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 percent 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.

Language rights are not subsumed by the right to a fair trial. If the right of the accused to use his or her official language in court proceedings was limited because of language proficiency in the other official language, there would in effect be no distinct language right.²⁶

However, to benefit from these judicial comments, a claimant must, necessarily, assert a linguistic right. In asserting linguistic rights, Mr. Ndem invokes the Canadian Charter of Rights and Freedoms, which confers constitutional rights, and the French Language Services Act, which confers legislative rights.

the Canadian Charter of Rights and Freedoms

Section 109 of the Courts of Justice Act, R.S.O. 1990, Chap. C.43, provides that a party raising a constitutional question must serve notice of his/her intention on the Attorney General of Canada and the Attorney General of Ontario at least fifteen days before the question is to be argued. This section applies to proceedings before tribunals and is incorporated by reference in Rule 78 of the Dispute Resolution Practice Code (the "Code").

Given that Mr. Ndem presented no proof of service of such notice, I am not able to grant him a remedy under the Canadian Charter of Rights and Freedoms. Nevertheless, I find that even if Mr. Ndem had served such notice, he would not be entitled to a remedy under the Charter, though not for the reasons advanced by the Insurer.

I reject General Accident's argument that the Canadian Charter of Rights and Freedoms does not apply in this case. In accordance with section 32(1)(b) of the Charter, it applies to all legislation passed by the Ontario Legislature, including the Insurance Act and the Schedule. Moreover, as confirmed by the decision of the Supreme Court of Canada in Miron v. Trudel²⁷, the Charter applies to private contracts of insurance whose terms are established by the Insurance Act.

This having been said, the terms of sections 16 to 22 of the Charter, dealing with official languages, and section 23, dealing with minority language instruction, confer no language right on Mr. Ndem. Section 14 of the Charter states that "a party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter" but Mr. Ndem clearly does not assert the right to the assistance of an interpreter.

Section 15, on the other hand, does confer on Mr. Ndem a right to equality and, while Mr. Ndem did not advance them, I am familiar with arguments to the effect that discrimination based on language orientation should be recognized as an analogous ground under section 15. I cannot, however, find that the use of interpreters by General Accident and CRI would have infringed on Mr. Ndem's right to equality.

While sections 16 to 23 of the Charter confer special status on official languages, section 15 does not. Assuming that an allegation of discrimination based on linguistic orientation is arguable under section 15, the assessment of such an allegation must, in my opinion, consider the implications for all languages, not just for official languages. In considering the implications for all languages, it is apparent that if I were to accept that the use of interpreters in the present case constituted discrimination based on language orientation, I would be accepting that any use of interpreters, in the same context, infringes on equality rights under section 15, regardless of the language in question.

I reject such an interpretation of section 15 of the Charter. The use of interpreters in the present context is essential in a country where many languages are spoken. It is intended to prevent, not propagate, the adverse effects which might otherwise flow from failures to communicate at examinations and assessments. The mere possibilities of imprecision or partiality occasioned by the use of interpreters cannot, without more, constitute proof of discrimination under the Charter. Nor can I conceive how the use of interpreters in this context would contradict any applicable common law or human rights principles.

I, therefore, conclude that Mr. Ndem only possesses the linguistic right he claims in this case if that right flows from the interpretation and application of the French Language Services Act. However, before turning to the analysis of that legislation, it is important to note article 16(3) of the Charter. This article permits provincial legislatures to "advance the equality of status or use of English and French" without fearing that their initiatives in this area might be challenged under the requirements of the Charter.

the French Language Services Act

The preamble of the French Language Services Act suggests that it was indeed intended to "advance the equality of status or use of ... French" in Ontario. It 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;

The cornerstone of the French Language Services Act is found in section 2 whose margin note and contents read as follows:

Provision of services in French

The Government of Ontario shall ensure that services are provided in French in accordance with this Act.

The obligations created by this legislation are thus imposed on the Government of Ontario and the term "government agency" is defined in section 1. In my opinion, in order to determine the scope of the French Language Services Act in the context of this case, I must first apply the definitions of government agency to four entities: the Insurer (and here I perceive no difference between the Insurer and the persons chosen by the Insurer to perform examinations under section 42), the Financial Services Commission of Ontario (the "Commission"), the DACs and, finally, the entity responsible for designating DACs, the Minister's Committee on the Designated Assessment Centre System.

But while the analysis must start with definitions, it cannot end there. A complete analysis of the scope of the French Language Services Act must, in my opinion, also examine the role of each of these entities in the system for dispute resolution created by the Insurance Act and the Schedule.

the Insurer

It is clear that the Insurer does not satisfy any of the definitions of the term "government agency" set out in section 1 of the French Language Services Act. It is also clear that neither the Insurer nor any person performing an examination on its behalf under section 42 exercises any power to decide issues in dispute, though their opinions, if any, must be considered by those exercising such power.

It follows, in my opinion, that the French Language Services Act does not confer on Mr. Ndem a linguistic right in respect of the Insurer's examinations and that the use of interpreters, as arranged by the Insurer, was not limited by that legislation. Mr. Ndem failed, therefore, to make himself reasonably available for the 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 Financial Services Commission of Ontario

Paragraph b) of section 1 defines "government agency" to mean a commission the majority of whose members are appointed by the Lieutenant Governor in Council. Sections 2(2) and 4(1) of An Act to establish the Financial Services Commission of Ontario and to make complementary amendments to other statutes, Ch. 28, Statutes of Ontario, 1997, provide that a majority of the members of the Commission are appointed by the Lieutenant Governor in Council. I, therefore, find that the Commission is a government agency, bound by the French Language Services Act.

The Commission itself recognizes that it is so bound. Rule 5.1 of the Code reads as follows:

5.1 A person has the right to communicate in French, and to receive available services in French from the Commission as provided in the French Language Services Act.

This Rule complies with the requirements of section 5(1) of the French Language Services Act whose margin note and contents read as follows:

Right to Services in French

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.

Rule 70.1 of the Code makes the same kind of general declaration and Rule 70.2 applies it in the following terms:

70.2 An adjudicator may require interpretation services in any other language at a proceeding, at the cost of the Commission. [Emphasis added]

The Code thus makes a distinction between French and any other language (except English, of course) with regard to the use of interpreters at a proceeding before an adjudicator. It is implicit, but clear, that the use of interpreters is not provided for in a proceeding in which one of the parties is French-speaking because the right to communicate with and receive services from the Commission in French includes the right to present a case in French before an adjudicator who understands that language. Otherwise, Rule 70.2 would have provided for the use of interpreters for all languages, including French, not for all languages, other than French. Of course, where only some of the parties are French-speaking, the use of interpreters will still be necessary but only to permit the parties to understand each other. The adjudicator is clearly expected to be bilingual.

In this regard, the Code makes the same distinction as the Courts of Justice Act. As indicated in the preamble to the French Language Services Act, French is an official language of the courts of Ontario. This is by virtue of section 125 of the Courts of Justice Act. Section 126(2) par. 1, 2 and 3 of this Act states that only bilingual judges and juries may preside over or hear bilingual proceedings so that "evidence given and submissions made in English or French [can] be received...in the language in which they are given." Section 126(2) par.9 states that the use of interpreters, if any, is to be at the request of a party or counsel who speaks English or French but not both, not at the request of the persons responsible for deciding the issues in dispute.

It is clearly the French Language Services Act, and not the Courts of Justice Act, which applies to the Commission. But is it also clear that the French Language Services Act confers linguistic rights and must, therefore, now be interpreted in accordance with the principles articulated by Mr. Justice Bastarache in Beaulac. In my opinion, the purpose of the French Language Services Act, as described in its preamble, as well as the preservation and development of the French language community in Ontario, would be better served by interpreting and applying the French Language Services Act in a way which requires the Commission to ensure that adjudicators responsible for deciding disputes in which at least one of the parties is French-speaking are able to do so without the use of interpreters to understand the party/parties speaking French.

On my understanding of Rule 70.2 of the Code, the Commission already considers itself bound by this interpretation in any proceeding before an adjudicator and assigns bilingual arbitrators to hearings in which one or more of the parties is French-speaking.

the DACs and the Minister's Committee on the Designated Assessment Centre System

Section 7 of the Insurance Act authorizes the Minister of Finance to appoint committees to perform such functions as assigned by the Minister or the Superintendent of Financial Services²⁸ or as prescribed by regulation. Exercising his authority under this section, the Minister has appointed a committee known as the Minister’s Committee on the Designated Assessment Centre System (the "Committee"). It is this Committee which designates DACs in accordance with section 52 of the Schedule, a regulation under the Insurance Act.

Before proceeding any further with my analysis, I observe that neither this Committee nor the Superintendent of Financial Services participated to date in the hearing before me. I have not, therefore, received evidence or submissions from them on the application of the French Language Services Act in the context of DAC assessments. But, consistent with my earlier finding that Mr. Ndem only possesses the right to be assessed by a French-speaking evaluator at a DAC if the French Language Services Act accords him that right, I further find that I cannot determine the existence of such a language right without first determining the language obligations, if any, imposed by the French Language Services Act on the DAC system created under Section 7 of the Insurance Act and the Schedule. Given their statutory responsibility for the DAC system, the principles of fairness require that I put the Committee and the Superintendent on notice and allow them to present evidence and make submissions with respect to this issue.

As David J. Mullan states in his text on Administrative Law, Carswell's Third Edition, 1996, at paragraph 105:

Despite the content of the audi alteram partem rule varying from case to case, the courts, at times, see an absolute minimum in the necessity for "always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view", see Board of Education v. Rice, [1911] A.C. 179 at 182.

In my view, the Committee and the Superintendent are "parties in the controversy" raised by this case. In giving them notice, I should point out that I am aware of the power given to the Director of Arbitrations under section 283(8) of Insurance Act and Rule 56 of the Code to request interventions by non-parties on issues of law raised on appeal. However, in her decision in Vo and Maplex General Insurance Company, the Director recognized a distinction between interventions of non-parties who seek "to render assistance by way of argument" and interventions of non-parties who have an "interest...in the subject matter of the case or its outcome".²⁹ The Director stated that section 283(8) interventions are in the first category. Given their statutory responsibility for the DAC system, the Committee and the Superintendent have a legal interest in the determination of the language obligations, if any, imposed by the French Language Services Act on that system. They should, therefore, be accorded the right to present evidence, as well as make submissions on issues of law, before such a determination is made. In addition, facts relevant for that determination may be within their exclusive knowledge. Each will, therefore, have twenty days from the date of this decision to indicate a desire to do so. If the need arises, Mr. Ndem and General Accident will also be given the opportunity to present further evidence and make further submissions.

Dealing then with the issue of the application of the French Language Services Act in the context of DAC assessments, I go no further at this stage than to identify those aspects of that issue in respect of which I expect to receive evidence and submissions. The Committee or the Superintendent may identify other aspects of the issue in respect of which they wish to present evidence and make submissions. If they do, Mr. Ndem and General Accident will be given the opportunity to present further evidence and make further submissions with respect to these additional aspects or issues also.

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

Do the designations conferred on DACs by the Committee make them "government agencies" under the French Language Services Act for purposes of that designation?

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

section 1 of the French Language Services Act defines the word "service" 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 communication for that purpose.

Should this definition be interpreted to include assessments conducted by DACs?

(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?

Are DACs responsible for deciding issues between parties?

If so, is it open to me to apply the French Language Services Act to DACs in the same way that I understand it to apply it to proceedings before adjudicators; that is, is a DAC responsible for deciding a dispute in which the person to be assessed is French-speaking required to do so without the use of interpreters?

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

Paragraph (a) of section 1 of the French Language Services Act defines the expression "government agency" to mean "a ministry of the Government of Ontario". Should this definition be interpreted to include the Minister's Committee on the Designated Assessment Centre System?

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

If DACs are required to provide services in French to the public without the use of interpreters, is the Minister's Committee on the Designated Assessment Centre System the government agency responsible for ensuring the provision of such services?

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

The margin note and contents of section 7 of the French Language Services Act reveal that the linguistic rights conferred by that Act are not absolute:

Limitation of obligations of government agencies, etc.

The obligations of government agencies and institutions of the Legislature under this Act are subject to such limits as circumstances make reasonable and necessary, if all reasonable measures and plans for compliance with this Act have been taken or made.

This section allows the government agency concerned to identify circumstances preventing the implementation of the French Language Services Act. Is the onus on the government agency concerned to prove these circumstances?

(7) are regional circumstances to be considered?

The margin note and contents of sections 5(2) and (3) of the French Language Services Act read as follows:

Duplication of Services

(2) When the same service is provided by more than one office in a designated area, the Lieutenant Governor in Council may designate one or more of those offices to provide the service in French if the Lieutenant Governor in Council is of the opinion that the public in the designated area will thereby have reasonable access to the service in French.

(3) If one or more offices are designated under subsection (2), subsection (1) does not apply in respect of the service provided by the other offices in the designated area.

In the context of assessments performed by DACs across the province, are regional circumstances to be considered in implementing the French Language Services Act?

In order to allow the Committee and the Superintendent to present evidence and make submissions on these and perhaps other aspects of the second preliminary issue, each will have twenty days from the date of this decision to indicate a desire to participate in the possible resumption of the hearing for this purpose. I confirm that, if the hearing does resume, I will also allow Mr. Ndem and General Accident the opportunity to present further evidence and make further submissions.

May 9, 2000