Neutral Citation: 2001 ONFSCDRS 48
FSCO A98-001476
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BELENDE NDEM
Applicant
and
GENERAL ACCIDENT ASSURANCE CO. OF CANADA
Insurer
DECISION TWO ON THE SECOND PRELIMINARY ISSUE
Before:
David Leitch
Heard:
Memorandum received from the Superintendent of Financial Services on January 26, 2001.
Appearances at the Hearing:
Mr. Ndem
J. Claude Blouin for General Accident Assurance Co. of Canada
Preliminary Issue:
The two earlier decisions in this matter, dated May 9 and September 21, 2000, 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?
The decision of May 9, 2000 answered 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.
The decision of September 21, 2000 reached conclusions regarding three aspects of the second preliminary question and invited additional evidence and submissions from the Superintendent of Financial Services and the Minister's Committee with regard to two other aspects. The Arbitration Order reads as follows:
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.
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.
Result:
This decision finds that:
the DAC at which Mr. Ndem refused to make himself available for assessment was covered by section 5(1) of the French Language Services Act; subject to section 7 of the Act, this DAC was obliged by the French Language Services Act to assess Mr. Ndem, a French-speaking person, in French without the assistance of interpreters.
the language-capacity qualification adopted by the Minister's Committee permitted all DACs to use French interpreters in conducting assessments of French-speaking persons and thereby limited the obligations of the DAC in question under the French Language Services Act; the Minister's Committee bore but did not discharge its onus to justify this limitation under section 7 of the Act;
Mr. Ndem did not fail to make himself reasonably available for assessment within the meaning of sections 43 and 50 of the Schedule; he is not, therefore, barred from proceeding to arbitration for this reason.
in accordance with the decision of May 9, 2000, Mr. Ndem is not entitled to be examined on behalf of the Insurer by French-speaking persons; he, therefore, failed to make himself reasonably available for Insurer's examinations under section 42 of the Schedule and, by virtue of section 50 of the Schedule, is not entitled to proceed to arbitration until he makes himself so available; no date will, therefore, be set for a resumption of the proceeding unless, within 30 days of this decision, Mr. Ndem informs me in writing that he will make himself reasonably available for such examination(s).
in the event Mr. Ndem has not informed me as required within the prescribed period, claims for hearing expenses may be made in accordance with the Dispute Resolution Practice Code.
Introduction:
On receipt of the decision of September 21, 2000, the Superintendent of Financial Services applied to the Director of Arbitrations for leave to appeal. The Director denied leave on the ground that the appeal was premature. He communicated his decision in a letter dated December 13, 2000 addressed to counsel for the Superintendent, Mr. Ndem and counsel for the Insurer. A copy of this letter was also sent to the Arbitration Unit.1
On January 26, 2001, Richard Tillmann, Senior Manager, Accident Benefits Analysis Unit, filed a "Memorandum" on behalf of the Superintendent of Financial Services.2 It reads as follows:
The position of the Superintendent continues to be that DACs and the Minister's Committee are not a "government agency" within the meaning of section 1 of the French Language Services Act and accordingly that Act does not apply to them.
Accordingly issues regarding onus under section 7 of the Act and regional circumstances do not arise and Superintendent will not be making submissions on this issues. I have also been advised the Minister's Committee will not be making submissions on these issues.
While both were given the opportunity to do so, neither Mr. Ndem nor counsel for Insurer made additional submissions in response to this Memorandum.
ANALYSIS:
Response to question (2): does the provision of bilingual services at the DACs in accordance with the decision of September 21, 2000 require consideration of regional circumstances under section 5 of the French Language Services Act?
Section 5 of the French Language Services Act and its margin notes 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.
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.
Idem
(3) If one or more offices are designated under subsection (2), subsection (1) does not apply in respect of the services provided by the other offices in the designated area.
The Schedule referred to in subsection (1) is set out at the end of the French Language Services Act and is reproduced as the Appendix to this decision. Since the Superintendent's Submission makes no reference to any designation by the Lieutenant Governor in Council, I assume that subsections (2) and (3) have no application in the instant case.
The DAC at which Mr. Ndem refused to be assessed was located in and served the Municipality of Metropolitan Toronto, an area designated in the Schedule to the French Language Services Act. I, therefore, find, in accordance with the earlier decisions and subject to section 7, that this DAC was obliged by the French Language Services Act to assess Mr. Ndem, a French-speaking person, in French without the assistance of interpreters.
With respect to regional considerations, generally, I note that apart from head or central offices, subsection (1) only requires services to be provided in French in designated areas of the province. Even within designated areas, government agency offices may be exempted under subsection (3) from the requirement to provide services in French so long as the public in those areas retains "reasonable access to the service in French" through offices designated under subsection (2).
In other words, the French Language Services Act does not intend to ensure the provision of government services in French everywhere in the province but only to ensure the provision of government services in French in specific areas of the province. Regional considerations are thus particularly important for the administration of the French Language Services Act.
Response to question (1): do the Superintendent of Financial Services and the Minister's Committee bear an onus under section 7 of the French Language Services Act to prove circumstances preventing the provision of bilingual services in accordance with the decision of September 21, 2000?
To answer this question, it is essential to begin by examining carefully the wording of section 7 of the French Language Services Act. Together with its margin note, it reads as follows:
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.
(a) the requirements of section 7
I draw several inferences from the wording of section 7 and its margin note.
First, it must be established that a government agency has obligations under the French Language Services Act which have not been complied with. Section 7 only applies if both the obligation and the non-compliance are established.
Second, once the obligation and non-compliance are established, the government agency may seek to limit its obligation by invoking section 7. If section 7 is successfully invoked, the non-compliance becomes a permissible limitation on the government agency's obligation under the French Language Services Act. If the government agency does not seek to limit its obligation by invoking section 7, or if it does, but is unsuccessful, the non-compliance remains non-compliance with the French Language Services Act.
Third, to successfully invoke section 7, a government agency must first take measures and make plans to achieve compliance with the Act. It is only "if such measures have been taken and such plans have been made that the obligations imposed by the Act become subject to limitations under section 7.
Fourth, to successfully invoke section 7, a government agency must ensure that the measures it has taken and the plans it has made to achieve compliance with the Act are complete as well as reasonable. If such measures and plans fail to meet either the standard established by the word "all" or the standard established by the word "reasonable", no limitation can be justified under section 7.
Fifth, to successfully invoke section 7, a government agency must have encountered circumstances which, applying standards established by the words "reasonable and necessary", justify the limitation it seeks to establish on its obligations under the French Language Services Act.
(b) burdens of proof under section 7
It is clear from the overall wording of section 7 that it both affirms the requirements of the French Language Services Act, by contemplating measures and plans to achieve compliance with the Act, and envisages limits to the requirements of the Act, by contemplating circumstances which justify such limits.
In this respect, while section 7 of the French Language Services Act is only a legislative provision, it bears an important resemblance to section 1 of the Canadian Charter of Rights and Freedoms. Like section 7 of the French Language Services Act, section 1 of the Charter both affirms certain rights of individuals pertaining to their relations with governments and permits governments to limit those rights.3 Section 1 reads as follows:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In his text Constitutional Law of Canada, Dean Peter Hogg explains the application of section 1 and the resulting burdens of proof recognized by the courts:
Section 1 of the Charter contemplates that judicial review of legislation under the Charter should proceed in two stages. In the first stage, the court must decide whether the challenged law has the effect of limiting one of the guaranteed rights. If the challenged law does have this effect, the second stage is reached: the court must then decide whether the limit is a reasonable one that can be demonstrably justified in a free and democratic society. The first stage involves the interpretation and application of the provisions of the Charter that define the guaranteed rights. The second stage involves the interpretation and application of section 1 of the Charter.4
Who bears the burden of proof of factual issues in Charter litigation? At the first stage of Charter review, the court must decide whether a Charter right has been infringed. This issue is subject to the normal rules as to burden of proof, which means that the burden of proving all elements of the breach of a Charter right rests on the person asserting the breach. ...
The second stage of Charter review, which is reached only if a Charter right has been infringed, is the inquiry into justification under section 1. At this stage, the burden of persuasion shifts to the government (or other party) seeking to support the challenged law. It is for the government to persuade the court that the challenged law is a "reasonable limit", and that it "can be demonstrably justified in a free and democratic society". This was established by the judgment of Dickson C.J. for the unanimous Court in R v. Oakes (1986).5
Any onus of proof on government under section 7 of the French Language Services Act is clearly different from the onus of proof on government under section 1 of the Canadian Charter of Rights and Freedoms. A parallel nevertheless exists in the way these two provisions both affirm the rights of individuals and permit governments to limit those rights.
Based on this parallel, I resolve the onus of proof issues raised by section 7 of the French Language Services Act in the same way the courts have resolved the onus of proof issues raised by section 1 of the Charter: I find that the onus to prove non-compliance with an obligation imposed by the French Language Services Act falls upon the individual who alleges the non-compliance while the onus to prove the facts necessary to justify a limitation on that obligation under section 7 falls upon the government agency.
(c) application of section 7
I find that the onus of proof borne by the individual has been discharged in this case. It has been decided that the DAC in question was obliged by the French Language Services Act to assess Mr. Ndem, a French-speaking person, in French, without the assistance of interpreters. Non-compliance with, or a purported limitation on, this obligation has also been established by the fact that the DAC proposed to assess Mr. Ndem using French interpreters as permitted by the language-capacity qualification applicable to all DACs.
I find that the onus of proof has thus shifted to government to prove that this non-compliance or purported limitation was a permissible limitation under section 7 of French Language Services Act. I turn now to the questions of which government agency bears this onus and whether it has been discharged.
i) the DACs bear no onus in this case
As a government agency, which provides a service within the meaning of the French Language Services Act, a DAC may be entitled to cite its own measures, plans and circumstances in order to justify a limitation on its obligations under the Act. However, that is not this case. Here, the DAC proposed to assess Mr. Ndem in a manner permitted of any DAC in the system, regardless of its area or its particular circumstances.
DACs do not collectively constitute the government agency responsible for the operation of the DAC system. As made clear by the Superintendent's Submission, the DACs are only expected to comply with, not to set, the rules governing their operations within the DAC system. They cannot, therefore, be expected to take measures and make plans for achieving that system’s compliance with the French Language Services Act. Nor can they be expected to justify a limitation on their obligations under the Act when that limitation is permitted by the government agency responsible for the operation of the system.
Moreover, as section 5(2) of the Act suggests, regional issues under the Act are not likely to be resolved by simply requiring all DACs located in or serving designated areas to provide services in French in accordance with the earlier decisions. Regional issues are likely to arise under section 7 as to whether or not it is sufficient for only certain of these DACs to provide such services. Decisions about which DACs will be required to provide such services, and which DACs will not, clearly cannot be made and justified under section 7 by the DACs themselves.
ii) the Superintendent of Financial Services bears no onus
The earlier decision did not characterize any function performed by the Superintendent or the Financial Services Commission as a "service" under the French Language Services Act. The Superintendent's Submission states that the Superintendent has not assigned any function to the Minister's Committee under section 7 of the Insurance Act. While the Superintendent's Submission also states that employees of the Commission provide administrative support to the Minister’s Committee and facilitate communication between the Minister, the Commission and the Minister's Committee, there is no evidence that the Superintendent has exercised any authority over the DAC system.
I, therefore, find that the Superintendent of Financial Services does not, under the current régime, bear any onus under section 7 of the French Language Services Act.
iii) the Minister's Committee bears the onus in this case
The earlier decisions found that the Minister's Committee is a government agency whose DAC-related functions constitute "services" under the French Language Services Act. The Superintendent's Submission identified the Minister's Committee as the agency responsible for setting the qualifications for DACs, selecting the DACs, overseeing the provision of DAC assessments and monitoring the performance of individual DACs and of the DAC system. More pertinently for the instant case, the Minister’s Committee is the author of the language-capacity qualification which permits all DACs, including the DAC at which Mr. Ndem refused to be assessed, to use French interpreters in conducting assessments of French-speaking persons.
Of equal importance in the present context, the Statutory Accident Benefits Schedule gives the Minister’s Committee a specific power permitting it to resolve the regional and place of assessment issues that will likely arise from the application of the French Language Services Act to DAC assessments. Under sections 52(c) and 53(1)(b) of the Schedule, the Minister's Committee could specify and authorize certain DACs to conduct assessments of French-speaking persons wishing to be assessed in French, without interpreters. These two sections read as follows:
- The committee appointed under section 7 of the Insurance Act shall,
(c) specify the types of assessments that each designated assessment centre is authorized to conduct.
- (1) An assessment shall be conducted by the designated assessment centre nearest to the insured person’s residence that,
(b) is authorized to conduct the type of assessment that is required.
In short, the Minister’s Committee is both the government agency responsible for the non-compliance by the DAC in question with the French Language Services Act and the government agency with the authority to take the measures and make the plans for achieving the DAC system's compliance with the French Language Services Act.
I, therefore, find that it is the Minister’s Committee which bears the onus to prove that non-compliance by the DAC in question with its obligation under the French Language Services Act was a permissible limitation under section 7 of the Act.
The Minister's Committee received notice of the questions raised by this proceeding and it was allowed to raise other questions in respect of which it wished to present evidence or make submissions. After it was decided that the French Language Services Act applied to DAC assessments, the Minister's Committee was again put on notice specifying the questions of onus of proof under section 7 and regional considerations under section 5. Despite this, the Minister's Committee has presented no evidence, made no submissions, raised no additional questions of substance or procedure and offered no explanation for its non-participation in this proceeding. The Superintendent’s participation has only been on her own behalf.
I, therefore, find that the Minister’s Committee has not discharged its onus to prove that non-compliance by the DAC in question with its obligations under the French Language Services Act was a permissible limitation under section 7 of the Act.
Finding with respect to the second preliminary issue:
I reject the Insurer's argument that Mr. Ndem failed to make himself reasonably available for assessment within the meaning of sections 43 and 50 of the Schedule. I find that in refusing to be assessed in the manner proposed by the DAC in question, Mr. Ndem was exercising a right conferred on him by the French Language Services Act and that his refusal to be so assessed was reasonable. He is not, therefore, precluded from proceeding to arbitration by reason of that refusal.
Further proceedings:
Notwithstanding this finding with respect to the second preliminary issue, and in accordance with the decision of May 9, 2000, Mr. Ndem is not entitled to be examined on behalf of the Insurer by French-speaking persons. He, therefore, failed to make himself reasonably available for Insurer's examinations under section 42 of the Schedule and, by virtue of section 50 of the Schedule, is not entitled to proceed to arbitration until he makes himself so available. No date will, therefore, be set for a resumption of the proceeding unless, within 30 days of the date of this decision, Mr. Ndem informs me in writing that he will make himself reasonably available for such examination(s).
Expenses:
In the event Mr. Ndem has not informed me as required within the prescribed period, claims for expenses may be made in accordance with the Dispute Resolution Practice Code.
April 2, 2001
David Leitch
Arbitrator
Date
APPENDIX
SCHEDULE
MUNICIPALITY OR DISTRICT
AREA
Municipality of Metropolitan Toronto
All
Regional Municipality of Hamilton-Wentworth
City of Hamilton
Regional Municipality of Niagara
Cities of: Port Colborne and Welland
Regional Municipality of Ottawa-Carleton
All
Regional Municipality of Peel
City of Mississauga
Regional Municipality of Sudbury
All
County of Dundas
Township of Winchester
Count of Essex
City of Windsor
Towns of: Belle River and Tecumseh
Townships of: Anderdon,
Colchester North, Maidstone,
Sandwich South, Sandwich West,
Tilbury North, Tilbury West,
and Rochester
County of Glengarry
All
County of Kent
Town of Tilbury
Townships of: Dover and Tilbury East
County of Prescott
All
County of Renfrew
City of Pembroke
Townships of: Stafford and Westmeath
County of Russell
All
County of Simcoe
Town of Penetanguishene
Townships of: Tiny and Essa
County of Stormont
All
District of Algoma
All
District of Cochrane
All
District of Kenora
Township of Ignace
District of Nipissing
All
District of Sudbury
All
District of Thunder Bay
Towns of: Geraldton,
Longlac and Marathon
Townships of: Manitou-
Wadge, Beardmore,
Nakina and Terrace Bay
District of Timiskaming
All
Neutral Citation: 2001 ONFSCDRS 48
FSCO A98-001476
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BELENDE NDEM
Applicant
and
GENERAL ACCIDENT ASSURANCE CO. OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
the DAC at which Mr. Ndem refused to make himself available for assessment was covered by section 5(1) of the French Language Services Act; subject to section 7 of the Act, this DAC was obliged by the French Language Services Act to assess Mr. Ndem, a French-speaking person, in French without the assistance of interpreters.
the language-capacity qualification adopted by the Minister's Committee permitted all DACs to use French interpreters in conducting assessments of French-speaking persons and thereby limited the obligations of the DAC in question under the French Language Services Act; the Minister's Committee bore but did not discharge its onus to justify this limitation under section 7 of the Act;
Mr. Ndem did not fail to make himself reasonably available for assessment within the meaning of sections 43 and 50 of the Schedule; he is not, therefore, barred from proceeding to arbitration for this reason.
in accordance with the decision of May 9, 2000, Mr. Ndem is not entitled to be examined on behalf of the Insurer by French-speaking persons; he, therefore, failed to make himself reasonably available for Insurer's examinations under section 42 of the Schedule and, by virtue of section 50 of the Schedule, is not entitled to proceed to arbitration until he makes himself so available; no date will, therefore, be set for a resumption of the proceeding unless, within 30 days of this decision, Mr. Ndem informs me in writing that he will make himself reasonably available for such examination(s).
in the event Mr. Ndem has not informed me as required within the prescribed period, claims for hearing expenses may be made in accordance with the Dispute Resolution Practice Code.
April 2, 2001
David Leitch
Arbitrator
Date
Footnotes
- Exhibit 9.
- Exhibit 10.
- R. v. Oakes 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 at 135.
- Carswell, 4th edition, loose-leaf, 1997, p. 35-1,2.
- Ibid., p. 35-7.