Lalonde et al. v. Commission de restructuration des services de santé, 2001 ONCA 21164

@B,00020091,OR

@1@Z20011207

@2

Lalonde et al. v. Commission de restructuration des

services de sant‚; Commissioner of Official Languages of

Canada et al., Intervenors*

[Indexed as: Lalonde v. Ontario (Commission de

restructuration des services de sant‚)]

@3

56 O.R. (3d) 505

[2001] O.J. No. 4767

Docket No. C33807

@4

Court of Appeal for Ontario

Weiler and Sharpe JJ.A. and Rivard J. (ad hoc)

December 7, 2001

@6

• Vous trouverez traduction fran‡aise de la d‚cision ci-dessus

… 56 O.R. (3d) 577, et elle sera publi‚e le 1er mars 2002.

Charter of Rights and Freedoms -- Equality rights -- Health

Services Restructuring Commission issued directions which would

destroy ability of Ontario's sole francophone hospital to

provide truly francophone medical services and medical training

-- Directions did not violate s. 15 of Charter -- Any

differential treatment of francophones resulting from

directions was not based upon an enumerated or analogous ground

-- Section 15 cannot be invoked to supplement language rights

not expressly conferred by Charter -- Canadian Charter of

Rights and Freedoms, s. 15(1).

Charter of Rights and Freedoms -- Language rights -- Health

Services Restructuring Commission issued directions which would

destroy ability of Ontario's sole francophone hospital to

provide truly francophone medical services and medical training

-- Section 16(3) of Charter did not protect hospital's status

as francophone institution -- Effect of s. 16(3) is to protect

but not constitutionalize measures to advance linguistic

equality -- Section 16(3) is not rights-conferring provision

but rather is designed to shield from attack government action

that would otherwise contravene s. 15 of Charter or exceed

legislative authority -- Canadian Charter of Rights and

Freedoms, s. 16(3).

Constitutional law -- Fundamental principles -- Protection of

minorities -- Health Services Restructuring Commission issued

directions which would destroy ability of Ontario's sole

francophone hospital to provide truly francophone medical

services and medical training -- Protection of minorities

constituting one of fundamental organizing principles

underlying Canadian Constitution -- Commission failing to

comply with that fundamental organizing principle by failing to

take into account importance of francophone institutions as

opposed to bilingual institutions for preservation of language

and culture of Franco-Ontarians -- Directions quashed.

Montfort is an Ontario francophone hospital. Its medical

services and training are essentially francophone, and it is

the only hospital in Ontario to provide a wide range of medical

services and training in a truly francophone setting. The

Health Services Restructuring Commission issued its first

report and a notice of intention to close Montfort in 1997. In

response to a storm of protest, the final report of the

Commission reversed the initial proposal to close Montfort and

instead issued directions which would substantially reduce

Montfort's services to the point where Montfort would no longer

function as a community hospital. Montfort and the respondents

brought an application to set aside the directions of the

Commission. The application was allowed. The Divisional Court

found that Commission's directions would have the following

effects: reduce the availability of health care services in

French to the francophone population in the Ottawa-Carleton

region, a region designated as bilingual under the

French Language Services Act, R.S.O. 1990, c. F.32;

jeopardize the training of French language health care

professionals; and impair Montfort's broader role as an

important linguistic, cultural and educational institution,

vital to the minority francophone population of Ontario. The

court held that the directions did not violate s. 15 of the

Canadian Charter of Rights and Freedoms, as any differential

Montfort appealed that portion of the judgment. The court held

that the directions should be set aside because they violated

one of the fundamental organizing principles of the

Constitution, the principle of respect for and protection of

minorities. Ontario appealed that portion of the judgment.

Held, the appeals should be dismissed.

The Divisional Court did not err in its findings of fact.

Section 16(3) of the Charter does not protect the status of

Montfort as a francophone institution. Section 16(3), which

states that nothing in the Charter limits the authority of

Parliament or a legislature to advance the equality of status

or use of English and French, is not a rights-conferring

provision but, rather, is designed to shield from attack

government action that would otherwise contravene s. 15 of the

Charter or exceed legislative authority.

The Divisional Court did not err in rejecting the argument

that the Commission's directions violated s. 15 of the Charter.

Assuming, without deciding, that the respondents otherwise

satisfy the test for a violation of s. 15, the Divisional Court

was correct in concluding that, in view of the very specific

and detailed provisions of ss. 16-23 of the Charter dealing

with the special status of English and French, any differential

directions is not based upon an enumerated or analogous ground.

Section 15 itself cannot be invoked to supplement language

rights which the Charter has not expressly conferred.

The principle of respect for and protection of minorities is

a fundamental structural feature of the Canadian Constitution

that both explains and transcends the minority rights that are

specifically guaranteed in the constitutional text. This

structural feature of the Constitution is reflected not only in

the specific guarantees in favour of minorities. It infuses the

entire text, and plays a vital role in shaping the content and

contours of the Constitution's other structural features:

federalism, constitutionalism and the rule of law, and

democracy. The unwritten principles of the Constitution have

normative force. The fundamental constitutional principle of

respect for and protection of minorities, together with the

principles that apply to the interpretation of language rights,

require that the French Language Services Act be given a

liberal and generous interpretation. By enacting the F.L.S.A.,

Ontario bound itself to provide the services offered at

Montfort at the time of designati on under the Act unless it

was "reasonable and necessary" to limit them. Ontario did not

offer the justification that it was reasonable and necessary to

limit the services offered in French by Montfort to the

community. The Commission's directions failed to respect the

requirements of the F.L.S.A. In exercising its discretion as to

what is in the public interest, the Commission was required by

the fundamental principles of the Constitution to give serious

weight and consideration to the importance of Montfort as an

institution to the survival of the Franco-Ontarian minority.

The Commission considered this beyond its mandate and its

directions were therefore subject to judicial review.

@5

Secession of Quebec (Reference re), 1998 793 (SCC), [1998] 2 S.C.R. 217, 161

D.L.R. (4th) 385, 1998 793 (SCC), 228 N.R. 203, 55 C.R.R. (2d) 1, apld

Other cases referred to

Act to Amend the Education Act (Ontario) (Reference re),

1987 65 (SCC), [1987] 1 S.C.R. 1148, 22 O.A.C. 321, 40 D.L.R. (4th) 18, 77 N.R.

241, 1987 65 (SCC), 36 C.R.R. 305 (sub nom. Bill 30, An Act to Amend the

Education Act (Ontario) (Re); Roman Catholic Separate High

Schools Funding (Re)); Adler v. Ontario, 1996 148 (SCC), [1996] 3 S.C.R. 609, 30

O.R. (3d) 642n, 1996 148 (SCC), 140 D.L.R. (4th) 385, 204 N.R. 81, 40 C.R.R.

(2d) 1; Adoption Act (Ontario) (Reference re), [1938] S.C.R.

398, 1938 2 (SCC), 71 C.C.C. 110, [1938] 3 D.L.R. 497; Arsenault-Cameron v.

Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, 184 Nfld. & P.E.I.R.

44, 2000 SCC 1, 181 D.L.R. (4th) 1, 249 N.R. 140, 559 A.P.R. 44, 70 C.R.R.

(2d) 1; Authority of Parliament in Relation to the Upper House

(S. 55) (Reference re), 1979 169 (SCC), [1980] 1 S.C.R. 54, 102 D.L.R. (3d) 1,

1979 169 (SCC), 30 N.R. 271 (sub nom. Legislative Authority of Parliament to

Alter or Replace the Senate (Re); British North America Act and

The Federal Senate (Re)); Baie d'Urf‚ (Ville) v. Qu‚bec

(Procureur g‚n‚ral), [2001] J.Q. No. 4821 (C.A.); Baker v.

Canada (Minister of Citizenship and Immigration), [1999] 2

S.C.R. 817, 1999 699 (SCC), 174 D.L.R. (4th) 193, 243 N.R. 22; Cuddy Chicks Ltd.

v. Ontario (Labour Relations Board), 1991 57 (SCC), [1991] 2 S.C.R. 5, 3 O.R.

(3d) 128n, 1991 57 (SCC), 47 O.A.C. 271, 81 D.L.R. (4th) 121, 122 N.R. 360, 4

C.R.R. (2d) 1, 91 C.L.L.C. 14,024; Eurig Estate (Re), [1998] 2

S.C.R. 565, 1998 801 (SCC), 40 O.R. (3d) 160n, 165 D.L.R. (4th) 1, 231 N.R. 55,

1998 801 (SCC), 23 E.T.R. (2d) 1 (sub nom. Eurig Estate v. Ontario Court

(General Division), Registrar); Ferrell v. Ontario (Attorney

General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97, 168 D.L.R. (4th) 1, 58 C.R.R.

(2d) 21, 99 C.L.L.C. 230-005 (C.A.) [Leave to appeal to S.C.C.

refused (1999), 252 N.R. 197n]; Ford v. Qu‚bec (Attorney

General), 1988 19 (SCC), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577, 90 N.R. 84,

1988 19 (SCC), 19 Q.A.C. 69, 36 C.R.R. 1; French Language Rights of Accused in

Saskatchewan Criminal Proceedings (Reference re) (1987), 58

Sask. R. 161, 1987 204 (SK CA), 44 D.L.R. (4th) 16, [1987] 5 W.W.R. 577, 43 C.R.R.

189 (C.A.) (sub nom. Use of French in Criminal Proceedings in

Saskatchewan (Reference re)); Hill v. Church of Scientology of

Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865n, 126 D.L.R.

(4th) 129, 1995 59 (SCC), 184 N.R. 1, 30 C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89;

Jones v. New Brunswick (Attorney General) (1974), [1975] 2

S.C.R. 182, 1974 164 (SCC), 7 N.B.R. (2d) 526, 16 C.C.C. (2d) 297, 45 D.L.R.

(3d) 583, 1974 164 (SCC), 1 N.R. 582 (sub nom. Jones v. Canada (Attorney

General); Official Languages Act (Canada) and Official Languages

of New Brunswick Act (Reference re)); Loi sur l'instruction

publique, L.Q. 1988, c. 84 (Renvoi relatif … la), [1993] 2

S.C.R. 511, 154 N.R. 1 (sub nom. Reference re Education Act

(Que.)); Mahe v. Alberta, 1990 133 (SCC), [1990] 1 S.C.R. 342, 72 Alta. L.R.

(2d) 257, 1990 133 (SCC), 68 D.L.R. (4th) 69, 105 N.R. 321, [1990] 3 W.W.R. 97,

1990 133 (SCC), 46 C.R.R. 193; Manitoba Language Righ ts (Reference re), [1985]

1985 33 (SCC), 1 S.C.R. 721, 35 Man. R. (2d) 83, 19 D.L.R. (4th) 1, 59 N.R.

321, 1985 33 (SCC), [1985] 4 W.W.R. 385, 3 C.R.R. D-1 (sub nom. Language Rights

Under Manitoba Act, 1870 (Reference re)); McDonnell v.

F‚d‚ration des Franco-Colombiens (1986), 69 B.C.L.R. (2d) 390,

1986 927 (BC CA), 31 D.L.R. (4th) 296, [1986] 6 W.W.R. 704, 26 C.R.R. 128, 14

C.P.C. (2d) 309 (C.A.); Mount Sinai Hospital Center v. Quebec

(Minister of Health and Social Services, 2001 SCC 41; Pembroke

Civic Hospital v. Ontario (Health Services Restructuring

Commission) (1997), 1997 16241 (ON CA), 36 O.R. (3d) 41 (Div. Ct.); R. v. Beaulac,

1999 684 (SCC), [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193, 238 N.R. 131, 62

C.R.R. (2d) 133, 1999 684 (SCC), 134 C.C.C. (3d) 481 (sub nom. Beaulac v. Canada

(Attorney General)); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R.

295, 1985 69 (SCC), 37 Alta. L.R. (2d) 97, 18 D.L.R. (4th) 321, 58 N.R. 81,

1985 69 (SCC), [1985] 3 W.W.R. 481, 13 C.R.R. 64, 18 C.C.C. (3d) 385, 85

C.L.L.C. 14,023; R. v. Mercure, [1988] 1 S.C.R . 234, 65 Sask.

R. 1, 1988 107 (SCC), 48 D.L.R. (4th) 1, 83 N.R. 81, [1988] 2 W.W.R. 577, 39

C.C.C. (3d) 385 (sub nom. Mercure v. Saskatchewan; Mercure v.

Saskatchewan (Attorney General)); R. v. Paquette (1987), 83 A.R.

41, 1987 ABCA 228, [1988] 2 W.W.R. 44, 56 Alta. L.R. (2d) 195, 38 C.C.C. (3d)

353, 1987 ABCA 228, 46 D.L.R. (4th) 81 (C.A.); R. v. Sharpe, [2001] 1 S.C.R.

45, 2001 SCC 2, 194 D.L.R. (4th) 1, 86 C.R.R. (2d) 1, 150 C.C.C. (3d) 321;

R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, 34 O.A.C. 115, 96 N.R. 115,

1989 98 (SCC), 39 C.R.R. 306, 48 C.C.C. (3d) 8, 69 C.R. (3d) 97; Regulation and

Control of Aeronautics in Canada (Re), 1931 466 (UK JCPC), [1932] A.C. 54, 101

L.J.P.C. 1, 1931 466 (UK JCPC), 146 L.T. 76, 48 T.L.R. 18, 75 Sol. Jo. 796 (sub nom.

Canada (Attorney General) v. Ontario (Attorney General); Quebec

(Attorney General) v. Manitoba (Attorney General)); Remuneration

of Judges of the Provincial Court of Prince Edward Island

(Reference re), 1997 317 (SCC), [1997] 3 S.C.R. 3, 121 Man. R. (2d) 1, 156 Nfld.

& P.E.I.R. 1, 1997 317 (SCC), 150 D.L.R. (4th) 577, 2 . 17 N.R. 1, 483 A.P.R. 1,

1997 317 (SCC), 158 W.A.C. 1, [1997] 10 W.W.R. 417, 46 C.R.R. (2d) 1, 118 C.C.C.

(3d) 193, 1997 317 (SCC), 11 C.P.C. (4th) 1 (sub nom. Provincial Court Judges

Assn. (Manitoba) v. Manitoba (Minister of Justice)); Retail,

Wholesale & Department Store Union, Local 580 v. Dolphin

Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, 9 B.C.L.R. (2d) 273, 33

D.L.R. (4th) 174, 1986 5 (SCC), 71 N.R. 83, [1987] 1 W.W.R. 577, 25 C.R.R.

321, 1986 5 (SCC), 38 C.C.L.T. 184, 87 C.L.L.C. 14,002; Ringuette v. Canada

(Attorney General) (1987), 1987 3953 (NL CA), 63 Nfld. & P.E.I.R. 126, 194 A.P.R.

126, 1987 3953 (NL CA), 29 C.R.R. 107, 33 C.C.C. (3d) 509 (Nfld. C.A.);

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R.

199, 1995 64 (SCC), 127 D.L.R. (4th) 1, 187 N.R. 1, 31 C.R.R. (2d) 189, 100

C.C.C. (3d) 449, 1995 64 (SCC), 62 C.P.R. (3d) 417; Roncarelli v. Duplessis

(1958), 1959 50 (SCC), [1959] S.C.R. 121, 16 D.L.R. (2d) 689; Ross v. Moncton

Board of School Trustees, District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825,

1996 237 (SCC), 171 N.B.R. (2d) 321, 133 D.L.R. (4th) 1, 195 N.R. 81, 437 A.P.R.

322, 1996 237 (SCC), 35 C.R.R. (2d) 1, 96 C.L.L.C. 230-020 (sub nom. Attis v.

District 15 (Board of Education), Ross v. New Brunswick School

District No. 15); Saumur v. Quebec (City), 1953 3 (SCC), [1953] 2 S.C.R. 299,

1953 3 (SCC), 106 C.C.C. 289, [1953] 4 D.L.R. 641; Soci‚t‚ des Acadiens du

Nouveau-Brunswick Inc. v. Assn. of Parents for Fairness in

Education, Grand Falls District 50 Branch, 1986 66 (SCC), [1986] 1 S.C.R. 549,

1986 66 (SCC), 69 N.B.R. (2d) 271, 27 D.L.R. (4th) 406, 66 N.R. 173, 177 A.P.R.

271, 1986 66 (SCC), 23 C.R.R. 119; Trustees of the Roman Catholic Separate

Schools for the City of Ottawa v. Mackell, 1916 418 (UK JCPC), [1917] A.C. 62, 86

L.J.P.C. 65, 1916 418 (UK JCPC), 115 L.T. 793, 33 T.L.R. 37, 32 D.L.R. 1 (P.C.);

Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, 67 Alta. L.R. (3d) 1,

1998 816 (SCC), 156 D.L.R. (4th) 385, 224 N.R. 1, [1999] 5 W.W.R. 451, 50 C.R.R.

(2d) 1, 98 C.L.L.C. 230-021

Statutes referred to

Act Respecting Health Services and Social Services, R.S.Q., c.

S-4.2, s. 138

Canadian Charter of Rights and Freedoms, ss. 2(a), 11(d), 15,

16(1), (3), 16.1, 17-23

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, ss. 55-57,

90, 93, 96-100, 133

Convention on the Rights of the Child

Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 135

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 125

Criminal Code, R.S.C. 1970, c. C-34, as am. S.C. 1978-79, c. 10

French Language Services Act, 1986, S.O. 1986, c. 45

French Language Services Act, R.S.O. 1990, c. F.32, ss. 1, 2,

5-13, 16(3)

Manitoba Act, 1870, R.S.C. 1985, App. II, No. 8, s. 23

Ministry of Health Act, R.S.O. 1990, c. M.26, s. 8, as am.

Public Hospitals Act, R.S.O. 1990, c. P.40 (re-enacted and

amended S.O. 1996, c. 1, Sched. F, s. 6), s. 6

Savings and Restructuring Act, 1996, S.O. 1996, c. 1, Sched. F,

s. 1

Schools Administration Act, R.S.O. 1960, c. 361

Secondary Schools and Boards of Education Act, R.S.O. 1960, c.

362

Rules and regulations referred to

Health Services Restructuring Commission Regulation, O. Reg.

88/96 (repealed O. Reg. 272/99, April 30, 1999), s. 1

Authorities referred to

Choudhry, S."Unwritten Constitutionalism in Canada: Where Do

Things Stand?" (2001) 35 Can. Bus. L.J. 113

Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto:

Butterworths, 1983)

Dyzenhaus, D."The Politics of Deference: Judicial Review and

Democracy", in M. Taggart, ed., The Province of

Administrative Law (Oxford: Hart Publishing, 1997)

Dyzenhaus, D., and E. Fox-Decent"Rethinking the Process/

Substance Distinction: Baker v. Canada" (2001) 51 U.T.L.J.

193

Elliot, R."References, Structural Argumentation and the

Organizing Principles of Canada's Constitution" (2001) 80

Can. Bar Rev. 67

Laskin, B."An Inquiry Into the Diefenbaker Bill of Rights"

(1959) 37 Can. Bar Rev. 77

MacLauchlan, H.W."Transforming Administrative Law: The

Didactic Role of the Supreme Court of Canada" (2001) 80 Can.

Bar Rev. 281

Monahan, P."The Public Policy Role of the Supreme Court of

Canada and the Secession Reference" (1999) 11 N.J.C.L. 65

Mullan, D., Administrative Law (Toronto: Irwin Law, 2001)

Ontario Health Services Restructuring Commission, Report,

August 1997

Ontario, Legislative Assembly, Debates (May 3, 1971) at 1104-09

(Premier William Davis)

Ontario, Legislative Assembly, Debates (April 10, 1984) at

616-17 (Roy McMurtry, Attorney General for Ontario)

Ontario, Legislative Assembly, Debates (May 1, 1986) at 203-04

(Bernard GrandmaŒtre, Minister for Francophone Affairs)

Ontario, Legislative Assembly, Debates (November 6, 1986) at

3202-03

Pigeon, L.-P., R‚daction et interpr‚tation des lois, 3e ‚d.

(Qu‚bec: Gouvernement du Qu‚bec, MinistŠre des

Communications, 1986)

Tremblay, A., and M. Bastarache"Language Rights", in G.-A.

Beaudoin and E. Ratushny, eds., The Canadian Charter of

Rights and Freedoms: A Commentary, 2nd ed. (Toronto:

Carswell, 1989)

@6

APPEAL and CROSS-APPEAL from a judgment of the Divisional

Court (Carnwath, Blair and Charbonneau JJ.) (1999), 48 O.R.

(3d) 50 allowing an application to quash the directions of

the Health Services Restructuring Commission.

@8

Ronald F. Caza, Pascale GiguŠre and Marc Cousineau, for

respondents.

Janet E. Minor and Michel Y. H‚lie, for appellant.

Ren‚ Cadieux and Johane Tremblay, for intervenor the

Commissioner of Official Languages of Canada.

Alain Pr‚fontaine and Warren J. Newman, for intervenor the

Attorney General of Canada.

Fran‡ois Boileau, for intervenor La F‚d‚ration des

communaut‚s francophones et acadiennes du Canada.

Paul S. Rouleau and Louise Hurteau, for intervenor

L'Association canadienne fran‡aise de l'Ontario.

[Table of Contents omitted. See original source.]

@7

The judgment of the court was delivered by

WEILER and SHARPE JJ.A.:

I INTRODUCTION

[1] This is an appeal from the judgment of the Divisional

Court (reported at (1999), 1999 19910 (ON SCDC), 48 O.R. (3d) 50, 181 D.L.R. (4th)

263 (in English) and [1999] O.J. No. 4489 (in French)) quashing

the directions of the Health Services Restructuring Commission

(the "Commission") ordering the respondent H“pital Montfort

("Montfort") to substantially reduce its health services.

The court remitted the question of restructuring of health

services at Montfort to the Commission for reconsideration in

accordance with the court's decision. The Minister of Health

("Ontario") has now replaced the Commission. Ontario appeals

on the basis that the Divisional Court erred in fact and in law

in ordering it to reconsider its directions to Montfort.

Montfort cross-appeals from the decision of the Divisional

Court holding that the Commission's directions did not infringe

the equality guarantees in s. 15 of the Canadian Charter of

Rights and Freedoms.

[2] This appeal raises important issues in relation to the

language rights of Ontario's francophone minority. Montfort,

located in Ottawa, is the only hospital in Ontario in which the

working language is French and where services in French are

available on a full-time basis. Montfort serves as the

community hospital for the substantial francophone community of

eastern Ontario and also plays a unique role in the education

and training of French-speaking health care professionals. The

Divisional Court held that as the Commission's directions would

cripple Montfort as an important francophone institution, they

should be quashed on the ground that the Commission failed to

respect the unwritten constitutional principle of respect for

and protection of minorities. Ontario appeals, arguing that

linguistic rights are exhaustively defined by the written text

of the Constitution. As Montfort is not protected by the words

of the Constitution, Ontario says that the Commission was free

to alter its status. Montfort and the intervenors urge us to

uphold the decision of the Divisional Court. They also rely on

the quasi-constitutional protections of the French Language

Services Act, R.S.O. 1990, c. F.32 ("F.L.S.A."), and say that

the Divisional Court erred in rejecting their claim that

Montfort is protected by s. 15 of the Charter.

II FACTS

(1) H“pital Montfort

[3] Montfort is located in the eastern part of Ottawa-

Carleton. Approximately 80 per cent of Ottawa's francophone

population lives east of the Rideau river. Montfort draws the

most significant portion of its caseload from neighbourhoods in

close proximity to the hospital. Russell County, a high-growth

area with a population of 34,761, according to the 1991 census,

has no hospital. The population relies entirely on Montfort and

the Ottawa General Hospital for hospital services.

[4] Montfort is described in the reasons of the Divisional

Court, at pp. 58-60 O.R., as follows:

H“pital Montfort was founded in 1953 through the efforts of

leaders of the Franco-Ontarian community under the direction

of a religious order of nuns, the Daughters of Wisdom. Unlike

other hospitals in the Ottawa area which were English or

designated bilingual, Montfort was a homogeneous francophone

hospital. Although today it also provides bilingual services

in English, its medical services and training are essentially

francophone. Moreover, the hospital plays an important role

in the Franco-Ontarian community as a whole. It is the only

hospital in Ontario to provide a wide range of medical

services and training in a truly francophone setting. In 1975

Montfort adopted an official policy regarding its francophone

nature, based upon the following premises:

(a) that its francophone character was its raison

d'ˆtre;

(b) that it was necessary to offer all hospital

services in French; and

(c) that it was necessary to offer a complete range of

medical care, except for certain highly specialized

services already available elsewhere in the region.

When the Commission began its work in Ottawa-Carleton in

July 1996, there were nine public hospitals providing

services on 11 main sites. These included seven acute care

hospitals, six of which maintained emergency departments.

H“pital Montfort was one of these six acute care hospitals.

Montfort has a total bed capacity of 252 beds. However, as

of 1995-96, 56 of these beds had been taken out of use.

Montfort provides services . . . at the primary and secondary

level . . . . Some of its principal programs include

cardiology, surgery, pulmonary medicine, orthopaedics and

obstetrics. It offers emergency care. . . . Although it does

not provide services in certain specific highly specialized

areas, H“pital Montfort truly qualifies as a full service

"general hospital" and is perceived as such by the

community at large.

Montfort is a unique health care institution in Ontario for

a variety of reasons. First, it has a different history than

other hospitals established in the eastern part of Ontario by

various orders of nuns. Although all were originally

francophone institutions, the others have since become either

English hospitals (e.g., Hotel Dieu in Kingston) or bilingual

hospitals (e.g., Ottawa General). Only Montfort continues as

a francophone institution in Ottawa-Carleton.

Although Montfort lost its paediatrics department in 1974,

following the creation of the Children's Hospital of Eastern

Ontario ("CHEO"), it continued to grow in size and to expand

its range of services. It is significant -- both from the

perspective of the Hospital's own view of its mandate, and in

relation to the community's sense of that mandate -- that

following the loss of its paediatrics specialty, Montfort re-

emphasized its commitment to continue as a francophone

institution, offering all levels of health care services in

French and, as noted above, declaring its francophone

character to be its very "raison d'ˆtre".

In 1984, Montfort began offering bilingual services. Today

20 per cent of its patients are anglophone. However, the

working language of Montfort was at all times and remains

French. Over 95 per cent of its employees are capable of

providing services in French. Thus, doctors, nurses,

cafeteria employees, caretakers and others touching all

aspects and areas of Montfort's services work in French. A

person walking in the halls of Montfort hears the French

language spoken as the language of choice. All internal

communications - verbal or written - are in French. With rare

exceptions all administrative and medical meetings take place

in the French language and the minutes of such meetings are

written in that language. Consultations, diagnoses, and

communications with patients are in French.

This is unique in Ottawa-Carleton and, indeed, in the

province of Ontario.

[5] Some further brief description and elaboration on

Montfort's services is in order. As indicated, Montfort is a

community hospital with approximately 196 beds in use. It

provides primary health care services (i.e., care provided by a

health care worker on a patient's first contact with the health

care system, including emergency services), secondary care

(i.e., care provided by a specialist health care

professional, such as a general surgeon), and, according to the

Commission's February 1997 report at p. 34, some tertiary level

care (i.e., care that requires highly specialized skills,

technology and support services). In addition, Montfort

provides intensive care, treatment and referral services, and

outpatient or clinical activities. In addition to cardiology,

surgery, orthopaedics and obstetrics, another of its principal

inpatient programs was psychiatry.

[6] Montfort also fills an important educational role. In

conjunction with the University of Ottawa, Montfort offers a

training program for health care providers who have chosen to

be trained in French. Montfort currently accommodates 186

students in Health Sciences, including students in

physiotherapy and occupational therapy, medical clerks and

residents in family medicine. Many of the family physicians

that admit patients requiring hospitalization to one of the

family medicine beds at the hospital are actively involved in

the family medicine training program for residents and

undergraduate medical students. Once admitted, patients may

require the services of a specialist or a surgeon who would

also be involved with students and residents. The training

program at Montfort has ramifications that go beyond Ottawa-

Carleton and the neighbouring Eastern district. For example,

a doctor trained at Montfort may serve the large francophone

populations in the Northern Ontario communities of Hearst and

Kapuskasing.

[7] The respondents emphasize that the institutional

importance of Montfort to Ontario's francophone minority

extends beyond the health care and educational needs of the

francophone minority. Montfort, they say, is an institution

that embodies and evokes the French presence in Ontario. It is

asserted that the French speaking minority population is

constantly faced with the threat of assimilation. The

respondents led evidence, accepted by the Divisional Court, to

show that a linguistic minority's institutions are essential to

the survival and vitality of this community, not only for its

practical functions, but also for the affirmation and

expression of cultural identity and sense of belonging.

Montfort, they insist, is such an institution.

(2) Mandate of the Health Services Restructuring Commission

[8] The Ministry of Health Act, R.S.O. 1990, c. M.26, s. 8,

as amended by the Savings and Restructuring Act, 1996, S.O.

1996, c. 1, Sched. F, s. 1, provides as follows:

8(1) The Lieutenant Governor in Council may establish a

body to be known in English as the Health Services

Restructuring Commission and in French as Commission de

restructuration des services de sant‚.

(8) The duties and powers assigned to the Commission under

this or any other Act shall be duties and powers with respect

to the development, establishment and maintenance of an

effective and adequate health care system and the

restructuring of health care services provided in Ontario

communities having regard to district health council reports

for those communities.

(Emphasis added)

[9] Thus, s. 8(8) of the Ministry of Health Act expressly

indicates that any Commission set up according to the provision

must exercise its duties and powers "having regard to district

health council reports" for the community concerned.

[10] By regulation (Health Services Restructuring Commission

Regulations, O. Reg. 88/96) made on March 21, 1996, the

government of Ontario set out the Commission's duties and

powers referred to in s. 8(8) of the Act: [See Note 1 at end of

document]

1(1) The following are the duties of the Commission:

1. To consider local hospital restructuring plans

provided by the Ministry and such other information

relevant to the plans as it deems appropriate.

2. To determine which local hospital restructuring

plans provided by the Ministry shall be implemented

and to vary or add to those plans if it considers

it in the public interest to do so.

3. To determine the timing of the implementation of

local hospital restructuring plans and the manner

in which they are to be implemented.

4. To set guidelines respecting representations that

may be made to the Commission by a hospital that

has received notice under subsection 6 (5) of the

Public Hospitals Act that the Commission intends to

issue a direction that the hospital cease to

operate or that it amalgamate with another

hospital.

5. To give the Minister quarterly reports on the

implementation of local hospital restructuring

plans.

6. To advise the Minister where the Commission is of

the opinion that a local hospital restructuring

plan should be developed for a specified hospital

or for two or more hospitals in a geographic area.

7. Where a hospital fails to carry out a direction

issued by the Commission under section 6 of the

Public Hospitals Act, to advise the Minister as to

appropriate actions, including the appointment of

investigators under section 8 of the Public

Hospitals Act and of hospital supervisors under

section 9 of that Act.

(2) The guidelines established under paragraph 4 of

subsection (1) shall set out the manner in which

representations may be made and the procedure for making the

representations.

(3) The Commission may exercise such powers as are

necessary to carry out the duties of the Commission including

the following powers:

1. To consult with providers of health care services

and such other persons as the Commission considers

necessary in order to determine,

i. which local hospital restructuring plans

provided by the Ministry shall be implemented,

ii. whether and in what manner to vary or add to a

local hospital restructuring plan,

iii. the timing of the implementation of a local

hospital restructuring plan, and

iv. the manner in which a local hospital

restructuring plan is to be implemented.

2. To exercise any power under section 6 or subsection

9 (10) of the Public Hospitals Act assigned to the

Commission by regulation under that Act.

3. To advise the Minister as to the revocation of a

licence under section 15.1 of the Private Hospitals

Act.

4. To advise the Minister on all matters relating to

the development, establishment and maintenance of

an effective and adequate health care system and

the restructuring of health care services provided

in Ontario communities.

(Emphasis added)

[11] The Public Hospitals Act, R.S.O. 1990, c. P.40, s. 6,

was re-enacted and amended in 1996 (S.O. 1996, c. 1, Sch. F, s.

6. to provide that "where the Minister considers it in the

public interest to do so" the Minister (and the Commission in

his place) is authorized to issue directions to public

hospitals to "cease operating as a public hospital", to

amalgamate with other hospitals, to "cease to provide specified

services", to "increase or decrease the extent or volume of

specified services", or to "provide specified services to a

specified extent or of a specified volume" (emphasis added).

These amendments provided the Commission with the authority to

issue broad "public interest" directions to public hospital

boards. Section 6 provides in part:

6(1) The Minister may direct the board of a hospital

referred to in subsection (0.1) to cease operating as a

public hospital on or before the date set out in the

direction where the Minister considers it in the public

interest to do so.

(2) The Minister may direct the board of a hospital

referred to in subsection (0.1) to do any of the following on

or before the date set out in the direction where the

Minister considers it in the public interest to do so:

1. To provide specified services to a specified extent

or of a specified volume.

2. To cease to provide specified services.

3. To increase or decrease the extent or volume of

specified services.

(3) The Minister may direct the boards of two or more

hospitals referred to in subsection (0.1) to take all

necessary steps required for their amalgamation under section

113 of the Corporations Act on or before the date set out in

the direction where the Minister considers it in the public

interest to do so.

(7) The Minister may amend or revoke a direction made under

this section where the Minister considers it in the public

interest to do so.

(Emphasis added)

[12] On March 29, 1996, the Ontario government by Order-in-

Council established the Commission and appointed Dr. Duncan

G. Sinclair as the Commission's Chair.

[13] The Ministry of Health Act, as amended by the Savings

and Restructuring Act, specifically provided that at the end of

the period for which the Commission was established (4 years),

the appointments of its members were revoked and it would cease

to perform any duties or to exercise any powers (s. 8(10)).

This has happened and the Ministry of Health now exercises the

powers formerly delegated to the Commission.

(3) The Commission's Process

[14] The process established by the Commission was to conduct

an initial review, issue a notice of intention regarding its

proposed directions, call for public input and consultation,

issue a report and then issue its directions to implement the

report's recommendations.

(a) The Commission's first report

[15] The Commission's first report was issued in February

1997. The Commission ("HSRC") described its mandate and terms

of reference as follows:

HSRC Mandate and Terms of Reference

Bearing in mind the magnitude of the task and the limited

time and funds available, the HSRC will function in

accordance with the following terms of reference:

1. To discharge its mandate, it will:

-- Make decisions on restructuring of hospitals,

including the provincially operated psychiatric

hospitals, by directing hospital closures,

amalgamations, program transfers and any other

actions considered necessary to implement

hospital restructuring.

-- Make recommendations to the Minister of Health

on how to improve the efficiency and

effectiveness, including cost-effectiveness, of

other elements of the health services system

while maintaining or enhancing the quality of

services provided.

-- Identify areas for reinvestment in communities

that will lead to the development of a

comprehensive, integrated community, district

and regional health system.

2. The HSRC's work plan will be undertaken quickly,

meeting a schedule to discharge its mandate within

four years.

3. Options for change will be evaluated against three

broad criteria:

-- maintenance or enhancement of quality of

services;

-- maintenance or enhancement of accessibility to

service, and;

-- affordability.

[16] It may be noted that the evaluation criteria did not

include the maintenance or enhancement of the delivery of

health care services in French.

[17] The report was divided into six sections plus the

recommendations. Section I provided a regional and community

profile of Ottawa-Carleton. Under this heading, the Commission

noted that based on 1991 census data the population of the

Ottawa-Carleton region was 18.4 per cent francophone. In

neighbouring counties served by Ottawa-Carleton hospitals, the

francophone population was reported at 20.9 per cent. (This

figure is significantly lower than the stated figure of the

Eastern District Health Council which puts the rate at 44 per

cent.) Many people who work in Ottawa live in Quebec. The

report noted that the Western Quebec population in the

Outaouais region were significant users of Ottawa hospital

services. Among the community hospitals, Montfort was the

community hospital used by the vast majority of Quebec

residents. In terms of actual numbers, two teaching hospitals,

Ottawa General and Ottawa Civic, had higher admissions from

Quebec particularly for secondary and tertiary care. The report

stated at p. 10 that:

Issues of access to services respecting the cultural and

linguistic requirements of this population is an important

consideration in the reconfiguration of services in Ottawa-

Carleton.

[18] Later in its report, however, the Commission added (at

p. 35) that:

[I]t is important to note that the estimates of Quebec

utilization have no impact on the operating costs or savings

as identified by the HSRC. Further, depending on the existing

excess bed capacity in the system it is likely that there

will be no capital costs implications associated with the

utilization of health services by Quebec residents.

[19] Section II provided a broad overview of the current

health care delivery system as follows:

Ottawa-Carleton Profile of Institutions

Facility Current Role

Ottawa Civic Acute Care: Adult Tertiary/

Teaching Hospital, includes the

Ottawa Heart Institute and the

Loeb Research Institute

Ottawa General Hospital Acute Care: Adult

Tertiary/Teaching Hospital,

includes the Eye Institute -

designated as a French Language

Facility

Childrens' Hospital of Acute: Paediatric Teaching

Eastern Ontario (CHEO) Hospital, with an emergency

department

Queensway-Carleton Hospital Acute Care: Community Hospital,

with an emergency department

Riverside Hospital Acute Care: Community Hospital,

with an emergency department

H“pital Montfort Acute Care: Community Hospital,

with an emergency department -

designated as a French Language

Facility

Salvation Army Grace Acute Care: Community Hospital, no

Hospital emergency

Royal Ottawa Health Care Specialty: Rehabilitation and

Group (ROHCG) Psychiatric (with emergency)

Hospital (2 sites)

Sisters of Charity of Chronic Care: Multi-site facility

Ottawa for chronic care, chronic

[Saint Vincent Pavilion rehabilitation, palliative and

and Rehabilitation Centre] respite care

Perley Rideau Veteran's Long-Term Care: Merged facility on

Health Centre (PRVHC) new site with role change to

Multi-level long-term care facility

National Defence Medical Acute Care: Federal facility, no

Centre longer funded by the Ontario

Ministry of Health (Patient

activity not included in acute care

statistics for Ottawa-Carleton)

[20] The report noted that all adult acute care hospitals,

except the Royal Ottawa, have medical and surgical beds and

offer services in a wide range of primary and secondary medical

and surgical specialties. Adult acute care includes crisis and

emergency intervention, assessment and short-term admissions,

Queensway Carleton provide almost half the emergency services

in Ottawa-Carleton. Highly specialized and tertiary services

for adults tend to be concentrated at the two teaching

hospitals, Ottawa Civic and Ottawa General. Of the community

hospitals, Montfort appears to have the highest volume of

outpatient or clinical activity.

[21] The report noted that Ottawa-Carleton has an Academic

Health Sciences Centre supported by the University of Ottawa.

Montfort's role as a teaching and training facility of health

care providers in the French language was not mentioned nor was

there recognition of its supporting clinical role to the

University of Ottawa's School of Medicine programs for

francophone health care providers.

[22] In describing the physical site of Montfort, the report

noted that Montfort is in good condition although part of the

buildings is not air conditioned. There are some deficiencies

in the layout of medical records and the psychiatric unit;

however, the report acknowledged at p. 19 that "[t]he hospital

has a built-in expansion capability vertically, and there is

ample area for horizontal expansion." Next to Ottawa General,

Montfort ranked highest on the scale developed by the

Commission for assessing facilities.

[23] At p. 17, under the heading "French Language Services",

the report stated:

The Montfort, General, Rehabilitation Centre and Saint-

Vincent Pavilion are all designated under the French

Language Services Act. Partial designation has been given to

four other facilities for some of their programs: CHEO,

Civic, Royal Ottawa Hospital (psychiatric rehabilitation) and

Riverside (sexual assault program).

[24] The report did not recognize that Montfort is the only

community hospital providing services in the French language on

a full-time basis. The Ottawa General is a teaching hospital

and although it is designated under the F.L.S.A., it cannot

offer service 24 hours a day, seven days a week in French. The

Rehabilitation Centre and Saint Vincent-Pavilion are

specialized facilities that do not offer general health care.

The other centres have only partial designation.

[25] Section III of the report contained a summary of the

Ottawa-Carleton Regional District Health Council's report and

recommendations to the Commission. Among the key

recommendations of the Health Council was one envisaging merger

of the Ottawa Civic and Ottawa General hospitals, creating a

single hospital on two sites. A further recommendation

(reproduced at p. 24 of the Commission's report) emphasized

the need to:

Recognize and encourage the primary and distinctive functions

of the Montfort Hospital as a francophone hospital fulfilling

regional, extra-regional and provincial functions

-- including teaching components.

[26] It is worth noting that in a later portion of its report

dealing with mental health services, the Commission cited with

approval the Health Council's vision for mental health services

delivery in Ottawa-Carleton; in describing this vision as being

"comparable" to its own, the Commission quoted (at p. 44) a

passage from the Health Council's earlier report containing the

following statement:

Service delivery will be considered on the basis that

services in French, comparable in quality and accessibility

to those offered in English, should be planned and delivered

in order to conform to the language policy of the District

Health Council and the requirements of an area designated

under the French Language Services Act.

[27] Section IV of the report outlined the decision criteria

and assessment of options considered by the Commission during

its review process. The Commission determined at p. 35 that

there was a significant variation between the number of beds

currently in operation and the number of beds required, giving

rise to "a significant opportunity to restructure hospital

services in Ottawa". The report recommended that there be one

community/tertiary hospital (a merged Civic/General hospital

including the Heart Institute), one community hospital

(Carleton-Queensway), one paediatric hospital (CHEO), one

chronic care/rehabilitation centre (Sisters of Charity of

Ottawa sites), and one long-term mental health centre (Royal

Ottawa). The Montfort, Riverside and Grace hospitals were to be

closed.

[28] Section V described the capital investment requirements

of the Commission.

[29] Section VI summarized the decisions and intended

directions reached by the Commission. Under the heading "Siting

of Clinical Activity" the Commission stated, at p. 80:

The recommended option for the siting of acute services is a

four site scenario, utilizing the existing capacity in the

Ottawa General, Ottawa Civic, Children's Hospital of Eastern

Ontario, and the Queensway-Carleton Hospital. This option

also means the closing of the following sites for acute care:

Riverside Hospital, Montfort Hospital and the Salvation Army

Grace Hospital.

[30] Thus, with the exception of Queensway-Carleton, a non-

designated facility under the F.L.S.A., all community

hospitals were to be closed. The Ottawa General, Ottawa Civic,

Riverside and Montfort were to be amalgamated. Montfort's

clinical activity was to be relocated to the Ottawa General

site (acute) and its longer-term mental health care to the

Royal Ottawa.

[31] Under the heading "Additional Planning and Research",

the Commission indicated at p. 82 that it would be "looking at

the feasibility of utilizing the Riverside and the Montfort

facilities as future sites for long-term care and chronic

care".

[32] Despite the fact that the Commission's legislative

mandate under the Ministry of Health Act (as amended by the

Savings and Restructuring Act) required it to have regard to

district health council reports for the affected community, the

Commission gave no explanation for ignoring the Ottawa-Carleton

Health Council's recommendations with respect to Montfort's

unique role as a clinical teaching hospital and in the

provision of health care services to the francophone

population, not only in the region but elsewhere in the

province.

(b) Community Reaction to the first report

[33] The Commission's initial notice of intention and its

subsequent directions were met with a storm of protest.

Extensive efforts were made to educate the Commission

concerning the effect that its recommendations would have on

the francophone population not only in Ottawa-Carleton, but

also in the five neighbouring counties of eastern Ontario. An

extract from the April 1997 response of the District Health

Council of Eastern Ontario to the Commission is set out below:

French Health Services

As identified in the HSRC's report (table on page 11),

French is the mother tongue of 44 [per cent] of the

population of the five counties of Eastern Ontario. It is the

majority language in Prescott-Russell counties at 76 [per

cent] and 67 [per cent] respectively and a significant

minority language in Glengarry (38 [per cent]) and Stormont

(30 [per cent]). Within the District Health Council of

Eastern Ontario area, the Counties of Prescott, Russell,

Stormont and Glengarry, the City of Cornwall and the Township

of Winchester in Dundas County are designated under the

French Language Services (FLS) Act. Consequently, planning

and development of health services must be consistent with

the provisions of the Act.

a) Respecting Culture and Language

While the Report mentions community representation and regard

for demographic, linguistic and cultural characteristics of

the Ottawa-Carleton region as well as identifying the

facilities which have complete and partial designations under

the FLS Act, it does not fully address the objectives of the

Act. The FLS Act is designed to help preserve the French

language and culture in Ontario well into the future. It also

acknowledges the desire of the Francophone community to have

the long-standing contribution of their language and culture

recognized. Health services in French are essential to the

development of the Francophone community and to the

recognition of its full and equal partnership. A community

becomes assimilated when its language and culture are

invisible to its own members and to society in general.

Recommendation: That the HSRC take into account the need to

preserve l'H“pital Montfort since it is the only hospital

whose language of operation is French that serves the

Francophone communities of Ottawa-Carleton and of Russell

County.

b) Availability of French-Speaking Health Professionals

The permanency and quality of health services in French is

determined by the availability of French-speaking health

professionals. Recognizing this, the government of Ontario

set up the "Ontario-Quebec Health Study Program" to increase

the number of French-speaking health professionals available

to provide health services in French. By applying to

participate in this program, French-speaking Ontarians

increase their chances of being admitted to limited-enrolment

programs in health studies in Quebec, which are not available

in French in Ontario. In recent years, the number of Ontario

colleges and universities offering health studies in French

has also increased, encouraging even more French-speaking

students in Ontario to pursue careers in the health field.

Unfortunately, for the clinical component, very few hospitals

in Ontario are able to offer an environment in which French-

speaking students can actually work in French. If this

kind of work environment is not available in Ontario, the

above initiatives seem futile. Such a situation serves to

perpetuate Ontario's dependence on outside sources to provide

training in French.

Recommendation: That the HSRC take into account the need to

maintain l'H“pital Montfort for its unique role in providing

a milieu where French-speaking students pursuing health

studies in French can obtain training in French in Ontario.

(At pp. 6-8, emphasis in original)

[34] In addition to the Eastern Ontario District Health

Council's response, the Ottawa-Carleton Regional District

Health Council, the University of Ottawa Faculty of Medicine

and Montfort filed responses to the Commission's

recommendations. They all stressed that if the Commission's

recommendations were implemented, access to health services in

French would be more difficult and that the training of health

care professionals in French would be imperiled. They

recommended that Montfort continue to provide its full range of

services.

[35] The Ottawa-Carleton Regional District Health Council's

response again described Montfort as unique and recommended

that Montfort remain open because it provided an environment in

which francophone clients and their families could have access

at all times to employees offering services in French. The

Council also stressed the important role of Montfort in the

training of French-speaking medical personnel.

[36] The Council also noted that the Commission had

recommended the closing of the psychiatric hospital at

Brockville and the transfer of long-term psychiatric patients

from Brockville to the Royal Ottawa Hospital. The Council

pointed out that there was no guarantee that services would be

offered in French to francophone psychiatric patients at Royal

Ottawa because it was not designated under the F.L.S.A. and

that at least one unit would have to be designated under the

Act.

(c) The Commission's final report

[37] The "final" report of the Commission was issued in

August 1997. A summary of "Key Directions, Advice and Notices"

(p. 5) was included in the Introduction. Items 2 and 3

concerned Montfort. They stated:

2. The H“pital Montfort will be maintained with its separate

governance, representative of the community served:

-- it will provide ambulatory care, day surgery, low

risk obstetrics, acute and longer-term mental

health services and long-term care services.

-- an Ottawa-Carleton French Language Health Services

Network will be created under the leadership of

H“pital Montfort to facilitate the delivery of

French language services in the other hospitals and

agencies.

3. The H“pital Montfort, and Sisters of Charity of Ottawa

will be required to maintain their designation; and,

Children's Hospital of Eastern Ontario (CHEO), and The Ottawa

Hospital/L'H“pital d'Ottawa (Alta Vista Site, Heart Institute

and The Rehabilitation Centre) will be required to obtain

designation for the provision of French language health

services.

[38] The second section of the report was entitled "French

Language Health Services" and provided as follows, at pp. 8-9:

The HSRC's intention in amalgamating two fully designated

French language providers, the H“pital Montfort and Ottawa

General Hospital, was to provide a greater critical mass and

clinical coherence of services available in the French

language. The governance structures of the amalgamated

hospital and other facilities would be established to reflect

the linguistic, cultural, socio-economic and demographic mix

of the community.

Principal Issues in the Responses to the Notices

-- Closure of H“pital Montfort:

-- limits access to French language services

-- seen as an assault on minority linguistic rights

-- results in dilution and assimilation of francophone

health care professionals

-- removes a French milieu for training medical and

health professionals

-- Merging of two bilingual facilities [Montfort and

Ottawa General] with two unilingual facilities [Ottawa

Civic and Riverside] weakens French language services

-- Needs of French-speaking long-term care and mental

health patients not fully considered

-- Lack of consideration given to the Prescott and Russell

utilization of H“pital Montfort

The HSRC's Deliberations

Many in the community were concerned that the proposed

closure of H“pital Montfort would significantly reduce the

accessibility of services offered in French. In drafting the

Notices issued in February, the HSRC considered the issue of

access to French language services. The HSRC supports

completely the right of individuals to receive services in

the French language and is directed in that support by the

French Language Services Act.

The HSRC believes access to French language services depends

on several factors:

-- designation of facilities and programs;

-- proximity of service providers to patients; and

-- French language milieu for health education.

Designation of Facilities and Programs

According to Section 5.1 of the French Language Services Act:

A person has the right 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 that is designated by regulations (for example:

hospitals, long-term care facilities, community health

centres, mental health programs, addiction services, etc.),

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.

The process by which a hospital achieves a mandate to offer

services in the French language is called "designation" . . .

According to the Ministry of Health's French Language Health

Services Designation Plan, to obtain designation the agency

must demonstrate that all the services which it intends to be

designated are available in French on a permanent basis. The

plan must prove the availability and permanency of these

services.

Although hospitals must meet certain criteria to obtain

either full or partial designation, the levels of services,

whether primary, secondary or tertiary, offered in French may

vary greatly among programs and facilities. For example the

language for conducting business at the H“pital Montfort is

predominantly French.

[39] Regarding its decision to reverse its proposed direction

to close Montfort, the Commission stated at p. 10 that "[o]ne

of the most compelling arguments heard by the [Commission] in

support of retaining H“pital Montfort as a separate hospital

was the view that in order to promote the development of French

language health professionals there should be an environment

where the working language is predominantly French." The

Commission acknowledged at pp. 10-11 that:

Closing Montfort would have serious consequences on the

quality of French-language training programs at both college

and university levels since it is the only hospital where

trainees are guaranteed to consistently receive all aspects

of training in French including instruction, charting and

consultations. In a bilingual setting, some aspects will not

be available in French at all times.

(Emphasis added)

[40] The Commission elaborated on the education and training

of French health care providers as follows, at pp. 71-72:

French Language Medical Education and Education of

Francophone Health Professionals

Medical students and postgraduate clinical trainees can no

longer undertake their medical studies in Quebec. To meet

their education needs, Ottawa based institutions have

developed the capacity to provide education in both French

and bilingual settings.

The post-secondary educational institutions and the

institutions affiliated with them have a particular

responsibility and capacity to educate a range of health

professionals in the French language. These professionals go

on to rewarding health care careers, not only in local

hospitals, but in northern and eastern communities in Ontario

where the predominant language is French. The University of

Ottawa has an essential role to educate francophone health

professionals. The University is the only Ontario institution

capable of training francophone audiologists, speech

pathologists, physiotherapists, occupational therapists,

physicians (family physicians and specialists), nurse

practitioners, nurses trained at the master's level who

provide advanced nursing practice, and clinical psychologists

at the Ph.D. level. The University and its affiliated

institutions can also offer a bilingual setting for the

education of bilingual medical specialists.

To attain the educational objectives assigned by the

University, francophone medical students must secure a good

portion of their education and training in a francophone

clinical setting. To provide medical and other health

professional programs in French, the University must not only

recruit students who are fluent in both official languages,

it must have a critical mass of clinician-educators who will

work closely with students in multidisciplinary teams in a

French milieu. According to the University, the environment

necessary for clinical teaching should include:

-- francophone patients with a broad range of diseases;

-- exposure to inpatient and outpatient programs;

-- a francophone community hospital setting;

-- a francophone multidisciplinary team consisting of a

staff physician, resident, nurse, social worker,

physiotherapist, etc.;

-- a francophone work setting including French-language

charting and communications;

-- francophone support services such as laboratory and

diagnostics;

-- administrative services in French;

-- sufficient infrastructure (e.g., meeting rooms,

computers, etc.); and

-- medical texts in French

In addition, it requires students who, prior to entering

their health professional programs, are fluent in the French

language. It also requires the University and its partner

hospital and other institutions to establish and maintain

'streams' or sections of the curriculum that permit

students to reinforce their language skills throughout their

undergraduate and postgraduate programs, whether in medicine,

or others of the health professions. It requires of the

institution as well as its students a major and continuing

commitment to the education of graduates who will practice

their professions in French and bilingual environments.

The mission statement of the University of Ottawa contains,

among other provisions, the following:

to maintain and develop the widest range of teaching and

research programs of national and international standing in

both French and English (and) to exercise leadership and

development of teaching, research and professional programs

designed specifically for the French-speaking population of

Ontario.

In response to the February report, the University of Ottawa

acknowledged that it has obligations to the communities of

eastern and northeastern Ontario. It also acknowledged the

obligation to ensure that health services in bilingual

institutions are delivered in a humane and caring manner

which reflects the highest possible standards.

To meet the special needs of francophone medical students and

postgraduate clinical trainees, the University recruited a

Vice Dean to head up an Office of Francophone Affairs,

developed new curricula with an emphasis on small group

teaching and problem based learning, made arrangements with

H“pital Montfort to provide a French milieu for training, and

finalized a five-year action plan for a francophone medical

program.

The University also established a post-graduate residency

program in family medicine for francophone graduates, and

actively recruits francophone students and staff . . .

(Emphasis added)

[41] The Commission's (HSRC's) August report, however, did

significantly affect Montfort's program configuration. The

following extract from pp. 14-15 of the report dealt with the

programs offered by Montfort and the proposal to change them:

The largest inpatient program of the hospital in 1995/96 was

psychiatry. The hospital provides both acute and longer-term

mental health care. The HSRC supports the need to continue to

provide French language mental health services at the H“pital

Montfort in a French language environment, to serve the needs

of the unilingual francophone.

The H“pital Montfort's second largest inpatient program is

cardiology. To ensure greater integration of cardiology and

cardiac services, the HSRC directs that the program be moved

to the University of Ottawa Heart Institute and that the

Institute become fully designated under the French Language

Services Act as soon as possible. The Heart Institute, with

its critical mass and concentration of expertise, will be

able to provide patients with a full range of cardiac care

services. Concentrating inpatient services on one site will

also reduce transfers and expedite surgical intervention if

required.

The H“pital Montfort will continue to provide outpatient

cardiology services. To improve communications between the

facilities, the Heart Institute and the H“pital Montfort

should explore effective ways to share information,

particularly diagnostic and other patient care information.

Low risk obstetrics is another program of sufficient size to

be maintained and enhanced on the Montfort site. . . .

The hospital's day care and primary care ambulatory services

will also be preserved. . . . The HSRC will direct H“pital

Montfort to seek an affiliation with The Ottawa Hospital/

L'H“pital d'Ottawa to provide support for the services which

are not available on a 24 hour basis at the H“pital Montfort

and clinical back up for the programs it does provide (e.g.

day surgery and obstetrics).

All other inpatient activity at the H“pital Montfort will be

transferred to the Alta Vista site of The Ottawa Hospital/

L'H“pital d'Ottawa, where the programs can be integrated with

those currently provided at the site.

The HSRC strongly endorses H“pital Montfort's role as a

teaching facility providing a French milieu for the education

of physicians and other health professionals and the training

of resident physicians in family medicine and other health

care professionals.

[42] With respect to Montfort's role as a teaching facility,

the Commission at pp. 73-74 directed the creation of an

Academic Coordinating Body composed of the Ottawa teaching

hospitals (General and Civic) and the University of Ottawa,

with the participation of the French Language Health Services

Network, a network that the Commission directed Montfort to

establish and lead. The Academic Coordinating Body was to be

responsible for "ensuring health professionals have access to

opportunities for education and training in French". The report

further noted, at p. 74:

While medical residents and other professionals will have the

opportunity to be educated and to train in a primary care

environment in the ambulatory setting at H“pital Montfort,

they will also require training in other designated

facilities. The University of Ottawa, the French Language

Health Services Network and the Academic Coordinating Body

will all be responsible for coordinating this training.

[43] The Commission therefore recognized that, as a result of

its direction, the education of health care professionals in

French would be incomplete at Montfort because it was no longer

a community hospital.

[44] To summarize, Montfort would go from receiving funds for

a 196-bed general community hospital to a hospital receiving

funds for 51 mental health beds and 15 low-risk obstetrical

beds. It would no longer provide emergency, intensive care and

general surgery services associated with short-term hospital

admission. It would also no longer offer short-term admission

and treatment for a variety of ailments in family medicine or

internal medicine. Cardiology, its second largest program,

would be transferred to the General campus of the amalgamated

Ottawa Hospital and the Heart Centre there was given a

direction to obtain designation under the F.L.S.A. It would

offer "urgent care", a form of walk-in clinic and some day

surgery, low risk obstetrical beds and psychiatric services.

[45] In short, Montfort would still cease to function as a

community hospital despite the recommendations of both the

Ottawa-Carleton and Eastern Ontario Health Councils that

Montfort continue to operate as a community hospital to meet

the needs of the francophone community. Although the University

of Ottawa stated that the environment necessary for clinical

teaching of health care professionals included a francophone

community hospital setting, the Commission did not restore the

services that it had directed be removed and that made Montfort

a general community hospital. Although the Commission professed

to strongly endorse Montfort's role as a teaching facility for

physicians in family medicine, it did not restore the family

medicine beds it had directed be taken away from Montfort. The

Commission gave no explanation for the gap between its stated

intentions and its directions.

[46] In September 1997, the Ottawa-Carleton Regional District

Health Council made a further representation to the Commission.

It noted that the opening of long-term care psychiatric beds at

Montfort would fill a gap in services in French. The Council

asked for clarification of the mandate of the French Language

Health Services Network. It expressed concern that the

diminished role of Montfort would entirely eliminate the

possibility of training certain categories of professionals in

French (examples given were general nurses and druggists). It

recommended that Montfort be assigned a sufficient number of

acute care beds in internal and family medicine to permit it to

maintain the critical mass of patients it needed to offer a

clinical education. It further recommended that the Commission

give the Working Group charged with implementing the Directions

a mandate that clearly included responsibility for the

provision of health care services in French and that the

Commission oversee a plan that clearly defined the linguistic

requirements for all positions in hospitals designated

bilingual. Additional funds for the costs of providing services

in both official languages were requested on an ongoing

permanent basis for institutions designated under the F.L.S.A.

Finally, the Council recommended that, to satisfy the

requirements of the F.L.S.A., no service or program be

transferred from Montfort until the Council, through its French

Language Services Committee, had confirmed that the transferee

institution satisfied the requirements of the F.L.S.A.

[47] In response to this and further submissions, the

Commission in July 1998 directed that 22 sub-acute beds be

allocated to Montfort. Sub-acute care refers to care for a

patient who does not require acute care services but is not yet

ready for discharge to his or her home and community. Montfort

would then have a total of 88 beds.

[48] In April 1998, an interim committee for the

establishment of the French Language Services Network submitted

a proposal and preliminary budget to the Ministry of Health.

The Ministry responded in December and provided funding for

only one year but indicated funding could be made available

"for specific activities".

[49] In February 1999, the Commission sent a letter to Ms.

Michelle de Courville Nicol, the president of Montfort's board

of directors, responding to submissions that it had not

considered Montfort's larger institutional role as an agent for

the preservation of the language and culture of Franco-

Ontarians and that a francophone (as opposed to bilingual)

milieu was essential in this regard. The letter written by the

Commission's president, Dr. Duncan Sinclair, stated in part:

Debate of this belief is not within the purview of the Health

Services Restructuring Commission. Current provincial policy

is specified in the French Languages Services Act, which

provides for hospitals offering services in the French

language to be designated bilingual.

[50] Montfort and the individual applicants then brought an

application before the Divisional Court to set aside the

directions of the Commission.

[51] After the applicants began proceedings, the

Restructuring Co-ordination Task Force for Ottawa-Carleton

forwarded a proposal to the Commission regarding Montfort's

academic service requirements and recommending the siting of 50

acute care beds at the hospital. The proposal caused the

Commission to agree to review further information and to assist

in the process. Both sides jointly retained two planners to

report on the proposal. The Commission ceased to exist by

regulation before the matter was heard by the Divisional Court

and the court was not provided with the Commission's views on

the additional planning reports.

III DECISION OF THE DIVISIONAL COURT

[52] In its reasons quashing the directions of the

Commission, the Divisional Court made three important findings

of fact. First, the Divisional Court found that the effect of

the Commission's directions was to reduce the availability of

health care services in French to the francophone population in

the Ottawa-Carleton region, a region designated as bilingual

under the F.L.S.A. Secondly, the Divisional Court found that

the Commission's directives affected the training program for

doctors in the French language and placed insurmountable

obstacles on the ability of medical personnel, particularly

doctors, to become trained to adequately serve people in the

French language. The Divisional Court found, thirdly, that the

Commission saw the importance of continued French language

medical services only in terms of the provision of bilingual

services, but did not evaluate the importance and need for a

truly francophone institution or consider the broader

institutional role played by Montfort in helping to protect

the francophone population from assimilation.

[53] Montfort made three legal submissions before the

Divisional Court. First, Montfort contended that the directions

issued respecting Montfort violated s. 15 of the Charter. The

Divisional Court dismissed this submission, holding that any

differential treatment was not based upon the analogous grounds

enumerated in s. 15. As we have indicated, Montfort has cross-

appealed this portion of the Divisional Court's judgment.

[54] Second, Montfort submitted that the Commission's

directions should be invalidated on administrative law

principles because they were patently unreasonable. The

Divisional Court stressed that its role was a very limited one.

It was only to decide whether the Commission acted according to

law in arriving at its decision. The Divisional Court rejected

the submission that, apart from the constitutional grounds, the

Commission's directions were "patently unreasonable" or

"clearly irrational", the test, the parties agreed, was

applicable. Montfort has not cross-appealed this portion of the

Divisional Court's judgment.

[55] Third, and most significantly, Montfort argued that the

Commission's directions should be set aside because they

violated one of the fundamental organizing principles of the

Constitution, the principle of respect for and protection of

minorities -- in this case, a minority belonging to one of the

country's founding cultures. The Divisional Court accepted this

submission and quashed the directions. The court found, at p.

70 O.R., that Montfort's designation under the F.L.S.A. gave

the francophone community a legislatively recognized right to

receive health services in "a truly francophone environment", a

right that included the facilities necessary for the education

and training of health care professionals in French. The

essence of the Divisional Court's decision is found in its

conclusion at pp. 83-84 O.R. as follows:

Directions which replace a wide variety of truly

francophone medical services and training at Montfort with

services and training elsewhere in a bilingual setting

-- however well those bilingual facilities may appear to work

in any given case -- fail to conform to the principle

underlying our Constitution which calls for the protection of

francophone minority rights. This is the flaw in the

Commission's deliberations and in the directions emanating

from them.

Given the constitutional mandate for the protection and

respect of minority rights -- an "independent principle

underlying our constitution", a "powerful normative force"

-- it was not open to the Commission to proceed on a

"restructured health services" mandate only, and to ignore

the broader institutional role played by H“pital Montfort as

a truly francophone centre, necessary to promote and enhance

the Franco-Ontarian identity as a cultural/linguistic

minority in Ontario, and to protect that culture from

assimilation. We find this is what the Commission did.

Accordingly, its directions cannot stand.

Ontario appeals this portion of the judgment.

IV ISSUES

[56] Ontario submits that the Divisional Court erred in

making certain crucial factual findings. Ontario also contends

that the Divisional Court erred in law in finding that the

status of Montfort was constitutionally protected. Montfort

cross-appeals the dismissal of the claim that the Commission's

directions violate s. 15 of the Charter and urges this court to

adopt the reasoning of the Divisional Court with respect to the

unwritten principles of the Constitution. Montfort and the

intervenors also rely on s. 16(3) of the Charter and on the

F.L.S.A.

[57] The issues may be summarized as follows:

(1) Did the Divisional Court err in its factual findings?

(2) Does s. 16(3) of the Charter protect the status of Montfort

as a francophone institution?

(3) Do the Commission's directions infringe s. 15 of the

Charter?

(4) What is the relevance to Montfort of the unwritten

constitutional principle of respect for and protection of

minorities?

(5) Do the Commission's directions violate the French Language

Services Act?

(6) Are the Commission's directions reviewable pursuant to the

unwritten constitutional principle of respect for and

protection of minorities?

V ANALYSIS

Part I: Factual Issues

Issue 1: Did the Divisional Court err in its factual

findings?

[58] Ontario argues that the Divisional Court erred in making

certain crucial factual findings. We note at the outset that

Montfort successfully moved to strike from the notice of appeal

certain grounds of appeal related to the Divisional Court's

factual findings. However, in making that order, Charron J.A.

noted in her endorsement that "the extent to which [the

remaining grounds of appeal] . . . require a consideration of

the evidentiary basis will be a matter for the panel to

determine." Appellate courts are often required to consider

legislative or social facts which form the basis for

constitutional arguments: see RJR-MacDonald Inc. v. Canada

(Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1,

at pp. 286-89 S.C.R. per La Forest J. Accordingly, we are

prepared to consider Ontario's argument that there is an

insufficient basis for the conclusion reached by the Divisional

Court.

(a) Reduction in availability of health care services

in French

[59] Ontario submits that the Commission's directions ensured

that those health care services that would no longer be

available at Montfort would continue to be available in French

at other health care institutions in the region. These

institutions were either designated as bilingual or ordered to

become bilingual. This issue can be disposed of summarily.

[60] Montfort is the only hospital in Ontario that can

guarantee continuous access to a broad range of primary and

secondary health care services in French. Other health care

institutions in the Ottawa-Carleton region cannot do so. While

the Ottawa General is designated under the F.L.S.A., the Ottawa

Civic, with which it is merged, is only partially designated.

The Commission ordered the amalgamated hospital to attain

designation under the F.L.S.A. The Heart Institute, now part of

the merged Ottawa Hospital and to which the Commission ordered

Montfort's cardiology programs transferred, does not have any

designation under the F.L.S.A. It, too, was ordered to attain

designation. Even at the Ottawa General, a designated centre

under the F.L.S.A., health care services are not available in

French on a full-time basis in all areas. The Commission's

August 1997 report acknowledged that the quality of services in

French offered by designated health care providers other than M

ontfort varied dramatically despite the fact of designation

under the F.L.S.A.

[61] Ontario's submission that health care services to the

francophone population would not be reduced by the

implementation of the Commission's directions ignores reality.

Ontario submitted that the situation would gradually improve

with the implementation of the Commission's directions to the

transferee health care providers and that patience was

required. Good intentions are not a substitution for fact. Four

years after the Commission's recommendations, the health care

providers directed by the Commission to become designated as

offering bilingual services have not yet achieved that

designation and may never do so.

[62] The Divisional Court's finding that the Commission's

directions for restructuring Montfort would reduce the

availability of health care services in French to the

francophone population in the Ottawa-Carleton region cannot be

disturbed. Further, the evidence also establishes that Montfort

offers significant services outside the Ottawa-Carleton region

to the outlying francophone rural communities of eastern

Ontario for whom it is the closest major hospital. The ability

of these communities to receive the present range of health

care services in French would also be adversely affected if the

Commission's directives were implemented.

(b) The training of health care professionals would be

jeopardized

[63] The second factual finding of the Divisional Court

challenged by Ontario is that Montfort's role as the only

centre in Ontario that trains health care professionals to

serve people in French would be jeopardized by the Commission's

directions. The Divisional Court stated at pp. 60-61 O.R. of

its reasons:

For many years now, Montfort has educated health care

professionals in many different fields. An M.D. program was

established in association with the University of Ottawa.

More recently, a specialist program in family medicine was

put in place. Montfort now offers the only French language

family medicine residency outside the province of Quebec. The

program has received high praise from the Accreditation team

Residency Program in Family Medicine . . . We find that such

a totally French program, which is invaluable in assuring

that the francophone population is adequately served in the

French language, will face insurmountable obstacles in a

bilingual institution.

[64] This finding is supported by several sources. Two of

them are Dean Walker, the Dean of the Faculty of Medicine at

the University of Ottawa, and the Restructuring Coordination

Task Force for Ottawa-Carleton. They are concerned that the

Commission's directions removing emergency services, inpatient

surgical activity and the acute care beds needed to support

these services mean that Montfort will no longer be able to

offer many of the rotations required for family medicine

residency. Dr. Frenette, the expert from the Faculty of

Medicine at the University of Laval consulted by the

Restructuring Coordination Task Force, estimated (supported by

Dean Walker) that 50 acute care beds were required for a

sufficient educational exposure to common primary and secondary

diagnoses. Without a sufficient number of acute care beds,

other health care professionals would no longer be interested

in being trained in French at Montfort because there would not

be a large enough clientele to attract their services.

[65] Ontario presented evidence from Dr. Ruth Wilson, Head of

the Department of Family Medicine at Queen's University, that

reconfiguration of Montfort in accordance with the Commission's

directions would enable Montfort to continue to provide an

appropriate setting for training family medicine residents. Dr.

Nick Busing, the Chair of the Department of Family Medicine at

the University of Ottawa, filed an affidavit in response

disagreeing.

[66] Ontario submits that the Divisional Court misconstrued

Dr. Wilson's evidence. Dr. Wilson was of the opinion that, with

proper monitoring, Montfort would continue to provide an

appropriate setting for family medicine residents to complete

the same number of rotations they currently do, namely, six of

seven. The Divisional Court indicated it was aware of her

opinion that the training program would continue to function as

before. The court however stated at p. 64 O.R. that "she [Dr.

Wilson] was concerned about the removal of services and

conceded that whether there would be a sufficient variety of

conditions and of patients was a matter that would have to be

monitored." This sentence is in reference to the fact that Dr.

Wilson's opinion was qualified by the words "with proper

monitoring". The impugned sentence does not indicate that the

Divisional Court misconstrued her evidence but only that her

evidence was given with a qualification that, in the court's

opinion, was a very important one.

[67] The Divisional Court was entitled to prefer the evidence

submitted by the respondents over that put forward by Ontario.

We do not agree that, in doing so, the court placed undue

emphasis on speculative as opposed to demonstrable concerns.

Indeed, the Commission's August 1997 report provides further

support for the Divisional Court's finding. It will be recalled

that in that report, the Commission noted that medical

residents and other professionals would "also require training

in other designated facilities" in addition to the primary care

environment at Montfort. The Commission itself recognized that

Montfort would no longer be able to fulfill its function of

training health care professionals in the French language

because it would no longer operate as a community hospital

offering secondary services. Outside of Montfort, clinical

training is only offered in English. The Commission left it to

the University and the Academic Coordinating Body, with input

from the French Language Health Services Network, to resolve the

problem. In other words, there would be a void unless these

bodies could come up with a solution themselves.

[68] The Divisional Court's finding that implementation of

the Commission's directions would jeopardize the entire program

of training doctors in French, as well as the training of many

other health care professionals, is amply supported by the

evidence.

(c) Montfort's broader institutional role

[69] The Divisional Court held at p. 76 O.R. that the fact

that adequate, existing health services and medical training in

a truly francophone environment would be taken away would have

"a significant negative impact on the continuing vitality of

that community, its language and its culture". In coming to its

conclusion, the court relied on the evidence of Drs. Raymond

Breton and Roger Bernard, two sociologists with expertise in

social trends affecting the existence and viability of minority

communities. Their evidence was that although hospitals are not

institutions of the most important order to a culture, they are

nevertheless "very important in the network of institutions" of

a minority culture and serve as a means of expressing and

affirming cultural identity (at p. 58 O.R.). Ontario called no

evidence in this regard.

[70] Ontario submits that hospitals are not institutions that

prevent assimilation because people do not frequent them

regularly for lengthy intervals. Ontario submits that the

experts' analyses of Montfort's broader institutional role is

abstract, highly speculative, not firmly rooted in fact and

inextricably linked to the language of politics. As a result,

Ontario submits that the court erred in accepting their

opinions.

[71] In our opinion, the Divisional Court did not err in its

consideration or appreciation of the evidence of Drs. Breton

and Bernard. We agree that Montfort has a broader institutional

role than the provision of health care services. Apart from

fulfilling the additional practical function of medical

training, Montfort's larger institutional role includes

maintaining the French language, transmitting francophone

culture, and fostering solidarity in the Franco-Ontarian

minority.

[72] Ontario argues that the Commission did in fact take into

consideration Montfort's larger institutional role in issuing

its directions and that this was all the Commission was obliged

to do. We have already referred to the letter written by Dr.

Sinclair, the president of the Commission, dated February 22,

1999, and addressed to Ms. de Courville Nicol, the president of

the board of directors of Montfort. The Divisional Court relied

on that letter at p. 75 O.R. of its reasons, stating:

In that letter, Dr. Sinclair admitted the Commission had not

addressed the question of the necessity for homogeneous

institutions for a linguistic minority. He took the position

that such a question fell outside the mandate of the

Commission . . .

We agree that this is the effect of Dr. Sinclair's letter.

[73] Dr. Sinclair was correct that the Commission's mandate

made no mention of Montfort's institutional role (an important

part of which comprised training for healthcare providers in

the French language). The Commission was, however, specifically

mandated to have regard to District Health Council reports.

These reports were sensitive to the importance of Montfort as

an institution and recommended that Montfort continue to

function as a community hospital. The Commission's original

directions in February 1997 completely disregarded the Ottawa-

Carleton District Health Council's recommendations with

respect to Montfort. The Commission's subsequent report and

directions reflect an attempt to create a patchwork solution in

response to further submissions from the Ottawa-Carleton and

Eastern District Health Councils. No reasons were ever given by

the Commission for refusing to follow the recommendations of

the District Health Councils.

[74] As we have indicated at the outset of these reasons, the

Commission also had the authority, incorporated by reference to

the relevant sections under the Public Hospitals Act, to issue

any direction relating to a public hospital it considered to be

in the public interest. The preservation and promotion of the

French language in regard to community health care by the only

francophone institution performing this role was part of the

public interest to which the Commission ought to have had

regard. The Commission should also have had regard to the

public interest raised by the fact that Montfort's

institutional role had province-wide implications that went

beyond the local health care concerns of Ottawa-Carleton.

[75] The Divisional Court did not err in its finding of fact

concerning the importance of the broader institutional role

played by Montfort and the adverse impact of the Commission's

directions on that role. The Commission appears to have been

unaware of Montfort's broader institutional role when it issued

its first report, particularly its teaching role; and, as we

have noted, the Commission took a limited view of its mandate

throughout.

[76] Accordingly, we would dismiss Ontario's challenge to the

three findings of fact made by the Divisional Court.

Part II: Legal Issues

Language Rights: The Constitution Act, 1867 and the Canadian

Charter of Rights and Freedoms

[77] The Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3

contains specific language rights, as does the Canadian Charter

of Rights and Freedoms. The Constitution's specific language

rights are not directly at issue in this appeal. They do,

however, form the background against which Montfort's claims

must be assessed. Our discussion of the issues we are called to

decide will be facilitated by a brief consideration of these

provisions.

The Constitution Act, 1867

[78] Section 133 of the Constitution Act, 1867, guarantees

the right to use both English and French in the Parliament of

Canada and in Quebec's Legislature, as well as in the courts of

both Quebec and Canada.

[79] The Constitution Act, 1867 affirms the protection of

minorities by including, as the Supreme Court of Canada

explained in Reference re Secession of Quebec, [1998] 2 S.C.R.

217, 1998 793 (SCC), 161 D.L.R. (4th) 385 ("Secession Reference") at p. 242

S.C.R."guarantees to protect French language and culture,

both directly (by making French an official language in Quebec

and Canada as a whole) and indirectly (by allocating

jurisdiction over education and 'Property and Civil Rights in

the Province' to the provinces)".

[80] The Constitution Act, 1867 also contains, in s. 93,

important education guarantees for the Catholic minority in

Ontario and the Protestant minority in Qu‚bec, guarantees that

were replicated for religious minorities in several provinces

that joined Confederation after 1867.

[81] The protections accorded linguistic and religious

minorities are an essential feature of the original 1867

Constitution without which Confederation would not have

occurred. In Re Regulation and Control of Aeronautics in

Canada, 1931 466 (UK JCPC), [1932] A.C. 54 at p. 70, 101 L.J.P.C. 1 (a passage

quoted by the Supreme Court of Canada in Reference re Authority

of Parliament in Relation to the Upper House (S. 55), [1980] 1

S.C.R. 54 at p. 71, 1979 169 (SCC), 102 D.L.R. (3d) 1), Lord Sankey L.C.

observed:

[I]t is important to keep in mind that the preservation of

the rights of minorities was a condition on which such

minorities entered into the federation, and the foundation

upon which the whole structure was subsequently erected.

[82] The Supreme Court of Canada explained in the Secession

Reference, supra, at p. 261 S.C.R. that the protection of

religious minorities and the fear of assimilation was a central

concern in the Confederation bargain:

[T]he protection of minority religious education rights was a

central consideration in the negotiations leading to

Confederation. In the absence of such protection, it was felt

that the minorities in what was then Canada East and Canada

West would be submerged and assimilated.

[83] Similarly, in Reference Re Bill 30, An Act to Amend the

Education Act (Ont.), 1987 65 (SCC), [1987] 1 S.C.R. 1148 at pp. 1173-74, 40

D.L.R. (4th) 18, Wilson J. observed that the protection of

religious minorities was a "major preoccupation" at the time of

Confederation and the rights accorded to protect these

minorities from hostile majorities, in the words of Duff J. in

Reference re Adoption Act (Ontario), 1938 2 (SCC), [1938] S.C.R. 398 at p.

402, 1938 2 (SCC), [1938] 3 D.L.R. 497, comprised "the basic compact of

Confederation".

[84] While the text of the Constitution Act, 1867 focused on

religious minorities, the minority Catholic community in

Ontario at that time was, to a significant extent, also the

minority francophone community and linguistic and

denominational characteristics were typically twinned. As

Gonthier J. observed in Reference re Education Act (Que.),

1993 100 (SCC), [1993] 2 S.C.R. 511 at pp. 529-30, 154 N.R. 1:

Section 93 is unanimously recognized as the expression of a

desire for political compromise. It served to moderate

religious conflicts which threatened the birth of the Union.

At the time, disagreements between communities hinged on

religion rather than language.

[85] Fifty years after Confederation, in a highly

controversial decision, the Privy Council held that s. 93 was

limited to denominational protection and included no minority

language protection: Trustees of the Roman Catholic Separate

Schools for the City of Ottawa v. Mackell, 1916 418 (UK JCPC), [1917] A.C. 62, 86

L.J.P.C. 65 (P.C.). The historic grievance of the linguistic

minority in relation to the language of education was finally

addressed in 1982 by s. 23 of the Charter, discussed below.

[86] It should be mentioned as well that certain features of

the Constitution Act, 1867 for the protection of minorities may

have fallen into disuse, but they still may be taken as

expressions of the fundamental constitutional importance

attached to the protection of the French and Catholic minority

outside Quebec. Linguistic and religious minorities were

exposed to the risk that their interests might be ignored at

the provincial level, but there is little doubt that it was

implicit in the Confederation bargain that they could look to

the federal government for constitutional protection. In the

case of diminution of religious education rights by a

provincial government, s. 93(3) gave the adherents of the

religious minority a right of appeal to the federal cabinet,

and by s. 93(4), Parliament had the right to enact remedial

legislation. The federal power of disallowance (ss. 55-57, 90)

was available where the legitimate interests of those

minorities were imperiled by provincial action.

The Canadian Charter of Rights and Freedoms

[87] Language rights were significantly expanded with the

enactment of the Canadian Charter of Rights and Freedoms in

1982. Section 16(1) of the Charter proclaimed English and

French to be the official languages of Canada with equality of

status and equal rights of use "in all institutions of the

Parliament and government of Canada". The same status and

rights are also accorded to English and French in New

Brunswick. Section 16.1, added by amendment in 1993, guarantees

the equal status, rights and privileges of the English and

French linguistic communities of New Brunswick. The right to

use English or French in Parliament and in the legislature of

New Brunswick is conferred by s. 17 and provision is made for

the publication of the statutes, records and journals of those

bodies in s. 18. The right to use English or French in any

court established by Parliament and in the courts of New

Brunswick is guaranteed by s. 19. The right to communicate with

and receive available services from the governments of Canada

and New Brunswick in either official language is detailed in s.

[88] Section 21 states that the specific rights in ss. 16 to

20 do not derogate from any provision that exists elsewhere in

the Constitution of Canada pertaining to the use of English or

French. Section 22 protects customary rights and privileges

enjoyed before or after the coming into force of the Charter

with respect to any language other than English or French.

Section 23 guarantees the general right of primary or secondary

school instruction in the language of the English or French

linguistic minority population of a province, including

Ontario, under certain conditions.

[89] The Charter contemplates the advancement of the equality

of status of English and French not only by Parliament but also

by the provincial legislatures:

16(3) Nothing in this Charter limits the authority of

Parliament or a legislature to advance the equality of status

or use of English and French.

Section 16(3) applies to Ontario.

Issue 2: Does s. 16(3) of the Charter protect the status of

Montfort as a francophone institution?

[90] Montfort adopts an argument based on s. 16(3) of the

Charter advanced by two of the intervenors, the Commissioner of

Official Languages of Canada and La F‚d‚ration des communaut‚s

francophones et acadienne du Canada. They submit that once the

province established Montfort as a homogeneous francophone

institution, s. 16(3) provided a constitutional shield,

limiting the right of Ontario to affect or reduce that status.

Section 16(3) embodies the constitutional objective of

advancing toward the substantive equality of Canada's two

official languages. This objective, it is submitted, is to be

achieved by means of a "ratchet" principle. It is argued that

once Ontario takes a step in the direction of advancing the

substantive equality of French, s. 16(3) "ratchets" that step

to the level of a constitutional right, limiting any retreat

from that advance. Although not constitutionally required,

provincial measures advancing linguistic equality are

responsive to a constitutional aspiration. Once taken, steps

towards substantive linguistic equality gain constitutional

protection, and advances can only be withdrawn if properly

justified. It is submitted that this interpretation of s. 16(3)

is supported by the principle, elaborated below, that language

rights are to be given a large and liberal interpretation.

Reliance is also placed upon the unwritten constitutional

principle of respect for and protection of minorities as an

interpretive aid.

[91] The respondents particularly rely on the following

passage from the dissenting judgment of Wilson J. in Soci‚t‚

des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents for

Fairness in Education, Grand Falls District 50 Branch, [1986] 1

S.C.R. 549 at pp. 618-19, 1986 66 (SCC), 27 D.L.R. (4th) 406:

In my view, the difficulty in characterizing s. 16 of the

Charter stems in large part from the problems of construction

inherent in s. 16(1). I would read the opening statement

"English and French are the official languages of Canada"

as declaratory and the balance of the section as identifying

the main consequence in the federal context of the official

status which has been declared, namely that the two languages

have equality of status and have the same rights and

privileges as to their use in all institutions of the

Parliament and government of Canada. Subsection (3) of s. 16

makes it clear, however, that these consequences represent

the goal rather than the present reality; they are something

that has to be "advanced" by Parliament and the legislatures.

This would seem to be in the spirit of Jones v. Attorney

General of New Brunswick, 1974 164 (SCC), [1975] 2 S.C.R. 182, namely that

legislatures cannot derogate from already declared rights but

they may add to them. Provided their legislation "advances"

the cause of equality of status of the two official languages

it will survive judicial scrutiny; otherwise not. I do not

believe, however, that any falling short of the goal at any

given point of time necessarily gives a right to relief. I

agree with those who see a principle of growth or development

in s. 16, a progression towards an ultimate goal. Accordingly

the question, in my view, will always be -- where are we

currently on the road to bilingualism and is the impugned

conduct in keeping with that stage of development? If it is,

then even if it does not represent full equality of status

and equal rights of usage, it will not be contrary to the

spirit of s. 16.

[92] We are not persuaded that s. 16(3) includes a "ratchet"

principle that clothes measures taken to advance linguistic

equality with constitutional protection. Section 16(3) builds

on the principle established in Jones v. New Brunswick

(Attorney General) (1974), 1974 164 (SCC), [1975] 2 S.C.R. 182, 45 D.L.R.

(3d) 583 that the Constitution's language guarantees are a

"floor" and not a "ceiling" and reflects an aspirational

element of advancement toward substantive equality. The

aspirational element of s. 16(3) is not without significance

when it comes to interpreting legislation. However, it seems to

us undeniable that the effect of this provision is to protect,

not constitutionalize, measures to advance linguistic equality.

The operative legal effect of s. 16(3) is determined and

limited by its opening words: "Nothing in this Charter limits

the authority of Parliament or a legislature." Section 16(3) is

not a rights-conferring provision. It is, rather, a provision

designed to shield from attack government action that would

otherwise contravene s. 15 or exceed legislative authority. See

Andr‚ Tremblay and Michel Bastarache"Language Rights", in

G‚rald-A. Beaudoin and Ed Ratushny, eds., The Canadian Charter

of Rights and Freedoms: A Commentary, 2nd ed. (Toronto:

Carswell, 1989), at p. 675:

What was actually desired with this provision [s. 16(3)] was

to assure that the power to provide a privileged status for

French and English in a statute could not be challenged by

virtue of the rights forbidding discrimination contained in

section 15 of the Charter. Section 16(3) could thus prevent

the measures designed to promote equal access to both

official languages from being struck down.

[93] Nor do we find any support for the "ratchet" principle

in the case law. The passage relied on from Soci‚t‚ des

Acadiens is found in a dissenting judgment that focuses on s.

19(2) and the specific obligations that ss. 16-20 of the

Charter impose on New Brunswick.

[94] This argument is made on the assumption that government

was under no obligation to create Montfort. This court has held

in another context that in the absence of a constitutional

right that requires the government to act in the first place,

there can be no constitutional right to the continuation of

measures voluntarily taken, even where those measures accord

with or enhance Charter values. In Ferrell v. Ontario (Attorney

General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97, 168 D.L.R. (4th) 1 (C.A.), a

case dealing with the repeal of a statute intended to combat

systemic discrimination in employment, Morden A.C.J.O. stated

as follows at p. 110 O.R.:

If there is no constitutional obligation to enact the 1993

Act in the first place I think it is implicit, as far as the

requirements of the constitution are concerned, that the

legislature is free to return the state of the statute book

to what it was before the 1993 Act, without being obligated

to justify the repealing statute under s. 1 of the Charter.

It would be ironic, in my view, if legislative initiatives

such as the 1993 Act with its costs and administrative

structure should, once enacted, become frozen into provincial

law and susceptible only of augmentation and immune from

curtailing amendment or outright appeal without s. 1

justification.

[95] To summarize, Montfort is a public hospital that

provides services in French. Section 16(3) of the Charter does

not constitutionally enshrine Montfort because it is not a

rights-conferring provision. Because Montfort is not

constitutionally protected by s. 16(3), Ontario can, subject to

what follows, alter the status of Montfort as a community

hospital without offending s. 16(3).

Issue 3: Do the Commission's directions infringe s. 15 of the

Charter?

[96] Montfort cross-appeals the Divisional Court's dismissal

of the claim that the Commission's directions violate their

equality rights protected by s. 15 of the Charter. This issue

was not pressed in oral argument, but is fully developed in

Montfort's factum. In our view, the Divisional Court was

correct in rejecting this submission on the ground, at p. 79

O.R., that "s. 15 of the Charter may not be used as a back door

to enhance language rights beyond what is specifically provided

for elsewhere in the Charter." Assuming, without deciding, that

the respondents otherwise satisfy the test for a violation of

s. 15, we agree with the Divisional Court that, in view of the

very specific and detailed provisions of ss. 16-23 of the

Charter dealing with the special status of English and French,

any differential treatment to francophones resulting from the

Commission's directions is not based upon an enumerated or

analogous ground. As the Divisional Court stated at p. 80 O.R.:

"Section 15 itself . . . cannot be invoked to supplement

language rights which the Charter has not expressly conferred."

[97] The argument advanced by the respondents has been

consistently rejected in other cases: see Baie d'Urf‚ (Ville)

v. Qu‚bec (Procureur g‚n‚ral), [2001] J.Q. No. 4821 (C.A.). In

the instant case, the Divisional Court referred to Mahe v.

Alberta, 1990 133 (SCC), [1990] 1 S.C.R. 342 at p. 369, 68 D.L.R. (4th) 69,

where Dickson C.J.C. stated:

[I]t would be totally incongruous to invoke in aid of the

interpretation of a provision which grants special rights to

a select group of individuals, the principle of equality

intended to be universally applicable to "every individual".

[98] In R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296 at p. 1334, 48

C.C.C. (3d) 8, the Supreme Court of Canada rejected the

reasoning underlying Reference Re Use of French in Criminal

Proceedings in Saskatchewan (1987), 1987 204 (SK CA), 44 D.L.R. (4th) 16, 58

Sask. R. 161 (C.A.), a case on which the respondents rely.

[99] Other provincial courts of appeal have rejected attempts

to use s. 15 as a basis for expanding language rights. In

McDonnell v. F‚d‚ration des Franco-Colombiens (1986), 31 D.L.R.

(4th) 296, 69 B.C.L.R. (2d) 390, the British Columbia Court

of Appeal held that, having regard to the specific rights

conferred by ss. 16 to 22 of the Charter, s. 15 did not

invalidate a provincial rule of court requiring documents to be

filed in English. In R. v. Paquette (1987), 1987 ABCA 228, 83 A.R. 41 at p.

51, 1987 ABCA 228, 46 D.L.R. (4th) 81, the Alberta Court of Appeal rejected

the contention that the failure to accord a trial in French

infringed s. 15:

That argument elevates official language rights into a

position of equality in all cases. There would be no need for

ss. 16 to 23 of the Charter. The argument makes the official

languages sections redundant, as s. 15 would transform the

use of one official language into the use of both. The

discrimination is not based on language and the official

languages are simply not accorded equality of status by the

Charter.

[100] To the same effect is the judgment of the Newfoundland

Court of Appeal in Ringuette v. Canada (Attorney General)

(1987), 1987 3953 (NL CA), 63 Nfld. & P.E.I.R. 126, 29 C.R.R. 107.

[101] It has been held in other contexts that where the

Constitution accords special rights to special groups, those

specific guarantees must be respected and other Charter rights

cannot be used to expand or diminish the rights so granted. In

Reference Re Bill 30, supra, Wilson J. stated at pp. 1196-97

S.C.R. that although the special minority religion education

rights conferred by s. 93 of the Constitution Act, 1867 "[sit]

uncomfortably with the concept of equality embodied in the

Charter", s. 15 can be used neither to nullify the specific

rights of the protected group nor to extend those rights to

other religious groups. This position was affirmed in Adler v.

Ontario, 1996 148 (SCC), [1996] 3 S.C.R. 609, 140 D.L.R. (4th) 385. There, the

court dismissed a claim for funding health services for

religious schools falling outside the ambit of s. 93 based on

the guarantee of freedom of religion in s. 2(a) and on the

right to equality in s. 15.

[102] Accordingly, we would dismiss Montfort's cross-appeal

from the dismissal of the s. 15 claim.

Issue 4: What is the relevance to Montfort of the unwritten

constitutional principle of respect for and protection of

minorities?

[103] The most definitive and complete consideration of the

unwritten or structural principles, and the authority most

pertinent to the respondents' submissions before this court, is

the Supreme Court of Canada's 1998 decision in the Secession

Reference, supra. There, at p. 240 S.C.R., the Supreme Court

affirmed the existence of unwritten constitutional rules "not

expressly dealt with by the text of the Constitution" but which

nonetheless have normative force as operative instruments of

our constitutional order. The court identified at p. 240 S.C.R.

"four fundamental and organizing principles of the

Constitution" that bear upon the question of the possibility of

provincial secession, namely, federalism, democracy,

constitutionalism and the rule of law, and respect for

minorities.

[104] These unwritten principles, said the court at p. 247

S.C.R."inform and sustain the constitutional text: they are

the vital unstated assumptions upon which the text is based".

The court held at p. 248 S.C.R. that the unwritten principles

represent the Constitution's "internal architecture" and

"infuse our Constitution and breathe life into it". Further"[t]he principles dictate major elements of the architecture

of the Constitution itself and are as such its lifeblood."

Federalism

[105] Federalism, the division of legislative power between

the Parliament of Canada and the provincial legislatures,

reflects a fundamental fact of Canada's constitutional and

political structure. As the court stated at p. 251 S.C.R."federalism is a political and legal response to underlying

social and political realities." Canada is a country with a

rich geographic, cultural and political diversity. Federalism

represents the constitutional definition of those aspects of

our political life that unite us while preserving appropriate

scope to accommodate and to enhance the heterogeneous social,

cultural and economic realities of the diverse and distinctive

provincial communities that make up our nation. Federalism is,

as the Supreme Court of Canada explained in the Secession

Reference at p. 244 S.C.R."a legal response to the underlying

political and cultural realities that existed at Confederation

and continue to exist today". At p. 245 S.C.R. the court added:

"Federalism was the political me chanism by which diversity

could be reconciled with unity."

[106] The federalism principle has an important bearing on

the situation of cultural and linguistic minorities. The

reality of the distinctive language and culture of the French

speaking majority of Quebec was unquestionably a principal and

defining feature of the Canadian union of 1867 as it required

the adoption of a federal structure in the first place. As the

court explained in the Secession Reference at p. 252 S.C.R.:

"The federal structure adopted at Confederation enabled

French-speaking Canadians to form a numerical majority in the

province of Quebec, and so exercise the considerable provincial

powers conferred by the Constitution Act, 1867 in such a way as

to promote their language and culture."

Democracy

[107] Democracy, as the Supreme Court said in the Secession

Reference at p. 252 S.C.R., is "a fundamental value in our

constitutional law and political culture" and, at p. 253

S.C.R., a "baseline against which the framers of our

Constitution, and subsequently, our elected representatives

under it, have always operated". Although not mentioned in the

text of the Constitution Act, 1867, democracy has always been a

fundamental feature of our constitutional structure. In

relation to minorities, democracy means more than simple

majority rule. As Iacobucci J. explained in Vriend v. Alberta,

1998 816 (SCC), [1998] 1 S.C.R. 493 at p. 577, 156 D.L.R. (4th) 385:

[T]he concept of democracy means more than majority rule

. . . In my view, a democracy requires that legislators take

into account the interests of majorities and minorities

alike, all of whom will be affected by the decisions they

make. Where the interests of a minority have been denied

consideration, especially where that group has historically

been the target of prejudice and discrimination, I believe

that judicial intervention is warranted . . . .

Constitutionalism and the rule of law

[108] Constitutionalism and the rule of law are cornerstones

of the Constitution and reflect our country's commitment to an

orderly and civil society in which all are bound by the

enduring rules, principles, and values of our Constitution as

the supreme source of law and authority. In the Secession

Reference, at p. 258 S.C.R., the Supreme Court outlined three

essential elements of the rule of law. First, the law is

supreme over both governments and private persons: "[t]here is

. . . one law for all." Second, the creation and maintenance of

a positive legal order is the normative basis for civil

society. The third feature is that the exercise of public power

must be based on a legal rule that governs the relationship

between the state and the individual.

[109] In Reference re Manitoba Language Rights, [1985] 1

S.C.R. 721, 1985 33 (SCC), 19 D.L.R. (4th) 1 the Supreme Court identified the

rule of law as an operative constitutional principle. The court

held at p. 752 S.C.R. that "in the process of Constitutional

adjudication, the court may have regard to unwritten postulates

which form the very foundation of the Constitution of Canada."

There, the court found that the province's failure to comply

with s. 23 of the Manitoba Act, 1870, R.S.C. 1985, App. II, No.

8 and enact its laws in both English and French rendered

legislation enacted since 1890 invalid. Relying on the

fundamental principle of the rule of law, the court adopted a

temporary suspension of its declaration of invalidity to avoid

a state of legal chaos.

[110] The related principle of constitutionalism rests on the

proposition that the Constitution is the supreme source of law

and that all government action must comply with its

requirements. Constitutionalism qualifies majority rule and,

like federalism, has an important bearing on minorities. As the

court explained in the Secession Reference at p. 259 S.C.R.,

the constitutional entrenchment of rights protects these rights

against the will of the majority and ensures that they are

given due regard and protection. A constitution may, the court

explained at p. 259 S.C.R."seek to ensure that vulnerable

minority groups are endowed with the institutions and rights

necessary to maintain and promote their identities against the

assimilative pressures of the majority".

Respect for and protection of minorities

[111] Finally, in the Secession Reference, the court spoke of

the principle of "respect for minorities" or "protection of

minorities". In these reasons, we refer to this principle as

"respect for and protection of minorities". The principle of

respect for and protection of minorities was described as

follows at p. 262 S.C.R.:

The concern of our courts and governments to protect

minorities has been prominent in recent years, particularly

following the enactment of the Charter. Undoubtedly, one of

the key considerations motivating the enactment of the

Charter, and the process of constitutional judicial review

that it entails, is the protection of minorities. However, it

should not be forgotten that the protection of minority

rights had a long history before the enactment of the

Charter. Indeed, the protection of minority rights was

clearly an essential consideration in the design of our

constitutional structure even at the time of Confederation.

Although Canada's record of upholding the rights of

minorities is not a spotless one, that goal is one towards

which Canadians have been striving since Confederation, and

the process has not been without successes. The principle of

protecting minority rights continues to exercise influence in

the operation and interpretation of our Constitution.

(References omitted)

[112] The protection of linguistic minorities is essential to

our country. Dickson J. captured the spirit of the place of

language rights in the Constitution in Soci‚t‚ des Acadiens,

supra, at p. 564 S.C.R.: "Linguistic duality has been a

longstanding concern in our nation. Canada is a country with

both French and English solidly embedded in its history." As

stated by La Forest J. in R. v. Mercure, 1988 107 (SCC), [1988] 1 S.C.R. 234 at

p. 269, 1988 107 (SCC), 48 D.L.R. (4th) 1"rights regarding the English and

French languages . . . are basic to the continued viability of

the nation."

[113] As we have already mentioned, the Charter enhanced

language rights. The entrenched guarantee of equality in s. 15

and the provisions requiring the respect and protection of

aboriginal rights enhanced the protection of the rights of

other minorities and the right to be free from discrimination.

As the Supreme Court of Canada explained in the Secession

Reference at p. 269 S.C.R."There are linguistic and cultural

minorities, including aboriginal peoples, unevenly distributed

across the country who look to the Constitution of Canada for

the protection of their rights."

[114] The principle of respect for and protection of

minorities is a fundamental structural feature of the Canadian

Constitution that both explains and transcends the minority

rights that are specifically guaranteed in the constitutional

text. This is an area where, as the Supreme Court of Canada

explained in the Secession Reference at p. 292 S.C.R."[a]

superficial reading of selected provisions of the written

constitutional enactment, without more, may be misleading."

This structural feature of the Constitution is reflected not

only in the specific guarantees in favour of minorities. It

infuses the entire text and, as we have explained, plays a

vital role in shaping the content and contours of the

Constitution's other structural features: federalism,

constitutionalism and the rule of law, and democracy.

The application of the principle to Montfort

[115] This appeal calls for careful consideration of the

appropriate weight, value and effect to be accorded to the

respect for and protection of minorities as one of the

fundamental principles of our Constitution. Ontario submits

that, in the face of the very specific and detailed minority

language guarantees in the text of the Constitution, the

Divisional Court erred by in effect adding to the list of

protected rights. The text of the Constitution's specific

language rights gives the Franco-Ontarian minority no right to

a French language hospital and, says the appellant, the courts

have no role in adding to the list of protected rights. The

respondents submit, on the other hand, that the absence of a

specific right in the text of the Constitution is not fatal to

their case. They say that in view of the importance of Montfort

as a cultural, social and educational institution in the

Franco-Ontarian minority's struggle for survival, the

Constitution's fundamental principle of respect for and

protection of minorities properly may be invoked as a basis for

reviewing the legality of the Commission's directions.

[116] The unwritten principles of the Constitution do have

normative force. In Reference re Remuneration of Judges of the

Provincial Court of Prince Edward Island; Reference re

Independence and Impartiality of Judges of the Provincial Court

of Prince Edward Island ("Provincial Judges Reference"), [1997]

1997 317 (SCC), 3 S.C.R. 3 at p. 75, 150 D.L.R. (4th) 577, Lamer C.J.C. made it

clear that, in his view, the preamble to the Constitution

"invites the courts to turn those principles into the

premises of a constitutional argument that culminates in the

filling of gaps in the express terms of the constitutional

text". This point was reinforced in the Secession Reference at

p. 249 S.C.R.:

Underlying constitutional principles may in certain

circumstances give rise to substantive legal obligations

(have "full legal force", as we described it in the

Patriation Reference [Reference re Resolution to Amend the

Constitution, 1981 25 (SCC), [1981] 1 S.C.R. 753], which constitute

substantive limitations upon government action. These

principles may give rise to very abstract and general

obligations, or they may be more specific and precise in

nature. The principles are not merely descriptive, but are

also invested with a powerful normative force, and are

binding upon both courts and governments.

[117] In the Provincial Judges Reference, the court

considered the "unwritten constitutional principle" of judicial

independence. The court held, at p. 67 S.C.R., that implicit in

s. 11(d) of the Charter, which deals with the right to trial by

"an independent and impartial tribunal", and ss. 96-100 of

the Constitution Act, 1867, which deals with the appointment,

tenure and remuneration of superior court judges, is "a deeper

set of unwritten understandings which are not found on the face

of the document itself" (emphasis in original). There are, the

court held at p. 69 S.C.R."organizing principles" that may be

used "to fill out gaps in the express terms of the

constitutional scheme" to ensure the protection of all of the

necessary and essential attributes of this vital structural

feature of the Constitution. The court found, at p. 75 S.C.R.,

that the preamble to the Constitution Act, 1867 "identifies the

organizing principles of the Constitution Act, 1867, and

invites the courts to turn those principles into the premises

of a constitutional argument that culminates in the filling of

gaps in the express terms of the constitutional text".

[118] In his very helpful discussion of the unwritten or

organizing principles of the Constitution"References,

Structural Argumentation and the Organizing Principles of

Canada's Constitution" (2001) 80 Can. Bar Rev. 67 at pp. 83-86,

Professor Robin Elliot draws an important distinction between

the use of unwritten or structural principles "as independent

bases upon which to impugn the validity of legislation" and

their use "as aids to interpretation or otherwise to assist in

the resolution of constitutional issues". Professor Elliot

suggests that when used to impugn the validity of legislation

or government action, the unwritten principles "can fairly be

said to be generated by necessary implication from the text of

the Constitution" (emphasis in original). On this theory, when

the organizing principles give rise to rights capable of

impugning the validity of legislation, they are grounded in the

text of the Constitution. Although not expressly stated by the

Constitution's text, such r ights are immanent in the text when

it is understood and interpreted in a proper and complete

legal, historical and political context. When used in this way,

the unwritten or organizing principles allow the courts to

unlock the full meaning of the Constitution and to flesh out

its terms, as explained by Lamer C.J.C. in the Provincial Court

Judges Reference at p. 69 S.C.R., even to the extent of

allowing the courts "to fill out gaps in the express terms of

the constitutional scheme".

[119] Professor Patrick Monahan draws a similar distinction

in "The Public Policy Role of the Supreme Court of Canada and

the Secession Reference" (1999) 11 N.J.C.L. 65 at pp. 75-77. He

observes that when following the interpretive theory:

[T]he court should attempt to fill in that gap by adopting an

interpretation that is most consistent with the underlying

logic of the existing text, and then to rely upon that logic

in order to 'complete' the constitutional text.

[120] This is to be contrasted with what Professor Monahan

describes at p. 77 as an unacceptable conception of judges "as

akin to constitutional drafters. On this view, the court should

fill in the gap by relying upon its own conception as to the

best or most appropriate set of constitutional norms that

should be added to the existing text."

[121] The unwritten principles of the Constitution do not

confer on the judiciary a mandate to rewrite the Constitution's

text. In the Secession Reference at p. 249 S.C.R., the Supreme

Court confirmed that recognition of these unwritten structural

principles:

. . . could not be taken as an invitation to dispense with

the written text of the Constitution. On the contrary

. . . there are compelling reasons to insist upon the primacy

of our written constitution. A written constitution promotes

legal certainty and predictability, and it provides a

foundation and a touchstone for the exercise of

constitutional judicial review.

[122] Similarly, in the Provincial Court Judges Reference at

p. 68 S.C.R., the court stated: "There are many important

reasons for the preference for a written constitution over an

unwritten one, not the least of which is the promotion of legal

certainty and through it the legitimacy of constitutional

judicial review." Again, in Re Eurig Estate, [1998] 2 S.C.R.

565 at p. 594, 1998 801 (SCC), 165 D.L.R. (4th) 1, Binnie J. stated that

"implicit principles can and should be used to expound the

Constitution, but they cannot alter the thrust of its explicit

text."

[123] Against the background of these general principles we

turn to the precise issue that confronts us in this appeal. As

the Divisional Court observed, we are not concerned here with

the validity of legislation that impinges upon the rights of a

linguistic minority: compare Baie d'Urf‚ (Ville) v. Qu‚bec,

supra. Nor are we confronted with a situation where a minority

group is insisting on the establishment of an institution that

is not already in existence. We are asked to review the

validity of a discretionary decision with respect to the role

and function of an existing institution, made by a statutory

authority with a mandate to act in the public interest.

[124] In its submissions, Ontario has chosen to characterize

the decision of the Divisional Court as recognizing or creating

a specific constitutional right capable of impugning the

validity of an act of the legislature or sufficient to require

the province to act in some specific manner. We do not accept

that as a proper or necessary reading of the judgment. The

Divisional Court at pp. 83-84 O.R. quashed the Commission's

directions on the ground that given the constitutional

principle of respect for and protection of minorities"it was

not open to the Commission to proceed on a 'restructured health

services' mandate only, and to ignore the broader institutional

role played by . . . Montfort as a truly francophone centre,

necessary to promote and enhance the Franco-Ontarian identity

as a cultural/linguistic minority in Ontario, and to protect

that culture from assimilation." The Divisional Court, at p. 68

O.R., explicitly recognized that "the constitutional validity

or invalidity of a piece of legislation is not at issue." The

Divisional Court added: "What is at issue is whether certain

conduct of a government agency falls within the parameters of

what is permitted by the Constitution . . . . [T]here is a

difference between the validity of legislation and the

possibility of unconstitutional behaviour under legislation."

We agree with the Divisional Court's characterization of the

constitutional issue.

[125] For the reasons that follow, we have concluded that the

Constitution's structural principle of respect for and

protection of minorities is a bedrock principle that has a

direct bearing on the interpretation to be accorded the

F.L.S.A. and on the legality of the Commission's directions

affecting Montfort. This bedrock principle also informs our

discussion below of the reviewability of the Commission's

directions.

[126] We proceed first to consider the F.L.S.A. and its

application to the facts of the present case in light of the

interpretive principles applicable to language rights and in

light of the constitutional principle of respect for and

protection of minorities. We then turn to the application of

the unwritten principles to the exercise and review of

discretionary decisions of statutory bodies with a statutory

mandate to act in the public interest. As the conclusion we

have reached on these two issues is sufficient to dispose of

this appeal, it is not necessary for us to answer the more

general question -- whether the fundamental constitutional

principle of respect for and protection of minorities gives

rise to a specific constitutional right capable of impugning

the validity of an act of the legislature or sufficient to

require the province to act in some specific manner.

Issue 5: Do the Commission's directions violate the French

Language Services Act?

[127] The Divisional Court held at p. 70 O.R. that Montfort's

designation as a public service agency under the F.L.S.A. meant

that:

[T]he francophone community of Ontario had acquired a

legislatively recognized entitlement to receive health

services in a truly francophone environment at H“pital

Montfort, and an expectation that those services would be

provided in at least the quality and extent offered by

Montfort, including the existence of a training centre that

guaranteed the instruction of medical professionals in

French.

[128] The interpretation of the F.L.S.A. is central to this

appeal.

[129] The F.L.S.A. is an example of the provincial

legislature of Ontario using s. 16(3) to build on the language

rights contained in the Constitution Act, 1867 and the Charter

to advance the equality of status or use of the French

language. The aspirational element contained in s. 16(3)

-- advancing the French language toward substantive equality

with the English language in Ontario -- is of significance in

interpreting the F.L.S.A.

[130] In addition, the principle of respect for and

protection of minority language rights is a useful tool not

only in interpreting the F.L.S.A. but in assessing the validity

of the Commission's directions in light of that legislation.

Government action as well as government legislation is to be

considered in light of constitutional principles, including the

unwritten constitutional principles.

[131] As the title of the F.L.S.A. indicates, the Act is

about the right to receive services in the French language. The

interpretive principles derived from the language-rights

jurisprudence have a significant bearing on the approach to be

adopted to the F.L.S.A. We shall now elaborate on these

principles.

[132] At one time, the Supreme Court of Canada adopted a

restrictive approach to the interpretation of language rights.

In Soci‚t‚ des Acadiens, supra, at p. 578 S.C.R., Beetz J.,

writing for the majority, held that language rights, which were

the result of "political compromise", should be approached with

judicial restraint in contrast to human rights, which are

"seminal in nature because they are rooted in principle". It

is now clear, however, that this narrow and restrictive

approach has been abandoned and that language rights are to be

treated as fundamental human rights and accorded a generous

interpretation by the courts.

[133] In Ford v. Qu‚bec (Attorney General), [1988] 2 S.C.R.

712 at p. 748, 1988 19 (SCC), 54 D.L.R. (4th) 577, the Supreme Court rejected

the contention that the specific language rights protected by

the Constitution are exhaustive, leaving no room for the

protection of the right to use one's language of choice as an

aspect of freedom of expression. The court quoted from its

earlier decision in Reference re Manitoba Language Rights,

supra, p. 744 S.C.R.:

The importance of language rights is grounded in the

essential role that language plays in human existence,

development and dignity. It is through language that we are

able to form concepts; to structure and order the world

around us. Language bridges the gap between isolation and

community, allowing humans to delineate the rights and duties

they hold in respect of one another, and thus to live in

society.

In Ford, the court added at p. 748 S.C.R.:

Language is so intimately related to the form and content of

expression that there cannot be true freedom of expression by

means of language if one is prohibited from using the

language of one's choice. Language is not merely a means or

medium of expression; it colours the content and meaning of

expression.

[134] Similarly, in Mahe, supra, the court adopted a generous

purposive approach to the interpretation of minority language

education rights guaranteed by s. 23 of the Charter. Writing

for the court, Dickson C.J.C., at p. 362 S.C.R., again referred

to the cultural importance of language:

[A]ny broad guarantee of language rights, especially in the

context of education, cannot be separated from a concern for

the culture associated with the language. Language is more

than a mere means of communication, it is part and parcel of

the identity and culture of the people speaking it. It is the

means by which individuals understand themselves and the

world around them.

[135] The Chief Justice made reference at p. 363 S.C.R. to

the importance of schools as institutions that function as

"community centres where the promotion and preservation of

minority language culture can occur". With reference to the

strictures imposed by the narrow approach taken in Soci‚t‚ des

Acadiens, Dickson C.J.C. observed at p. 365 S.C.R.:

Both its genesis and its form are evidence of the unusual

nature of s. 23. Section 23 confers upon a group a right

which places positive obligations on government to alter or

develop major institutional structures. Careful

interpretation of such a section is wise: however, this does

not mean that courts should not "breathe life" into the

expressed purpose of the section, or avoid implementing the

possibly novel remedies needed to achieve that purpose.

[136] More recently, in R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768 at

pp. 791-92, 1999 684 (SCC), 173 D.L.R. (4th) 193, the Supreme Court flatly

rejected the narrow approach of Soci‚t‚ des Acadiens and held

that a purposive and generous interpretation of language rights

was called for:

Language rights must in all cases be interpreted

purposively, in a manner consistent with the preservation and

development of official language communities in Canada. To

the extent that Soci‚t‚ des Acadiens du Nouveau-Brunswick,

supra, at pp. 579-80, stands for a restrictive interpretation

of language rights, it is to be rejected. The fear that a

liberal interpretation of language rights will make provinces

less willing to become involved in the geographical extension

of those rights is inconsistent with the requirement that

language rights be interpreted as a fundamental tool for the

preservation and protection of official language communities

where they do apply.

(Emphasis in original, references omitted)

[137] We note that in Beaulac, the court was interpreting

language rights conferred by the provisions of the Criminal

Code, R.S.C. 1985, c. C-46, and that the interpretive approach

enunciated applies both to language rights conferred by

ordinary legislation as well as to constitutional guarantees.

[138] In Arsenault-Cameron v. Prince Edward Island, [2000] 1

S.C.R. 3 at p. 24, 2000 SCC 1, 181 D.L.R. (4th) 1, the Supreme Court

reaffirmed the proposition advanced in Mahe that "language

rights cannot be separated from a concern for the culture

associated with the language." The court also reaffirmed the

proposition from Beaulac that language rights must be given a

purposive interpretation, taking into account the historical

and social context, past injustices, and the importance of the

rights and institutions to the minority language community

affected.

[139] As we have explained, the provisions of the F.L.S.A.

must be interpreted in light of these principles.

[140] In addition to the aspirational element of s. 16(3),

the principle of respect for and protection of the francophone

minority in Ontario, and the broad and purposive interpretation

to be given to language rights, general principles of statutory

interpretation also apply. Statutory interpretation cannot be

founded on the wording of legislation alone. As articulated by

McLachlin C.J.C. in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at pp.

74-75, 2001 SCC 2, 194 D.L.R. (4th) 1, the proper approach is found in E.A.

Driedger's Construction of Statutes, 2nd ed. (Toronto:

Butterworths, 1983) at p. 87 as follows:

Today there is only one principle or approach, namely, the

words of an Act are to be read in their entire context and in

their grammatical and ordinary sense harmoniously with the

scheme of the Act, the object of the Act, and the intention

of Parliament.

The context of the Act and its purpose

[141] It was within the overall context of steady progression

and advancement of services in French that the F.L.S.A. was

introduced and passed in 1986. [See Note 2 at end of document]

In introducing the legislation on May 1, 1986, the Honourable

Bernard GrandmaŒtre, the Minister for Francophone Affairs,

stated (Debates of the Legislative Assembly of Ontario, pp.

203-04):

Our province has a special responsibility in this regard [to

ensure that francophones receive services in their own

language] because Ontario is home to the largest group of

French-speaking Canadians outside Quebec. It is for that

reason the government of Ontario intends to guarantee through

legislation the rights of francophones to receive government

services in French.

The various measures contained in this bill are inspired by

the basic principles of justice and equality which we value

so highly in this province. These are two fundamental

principles on which our country has been built by the two

founding peoples. The government of Ontario believes that it

is now appropriate that this reality and this duality should

be reflected in the operations of all ministries.

(Emphasis added)

[142] This and other speeches made by members of the

legislature noted that the governments of Ontario had, over the

years, changed their policy toward the French language. The

Bill was the result of years of successive steps toward the

goal of providing services to francophones in their own

language. The Bill received the unanimous support of all three

political parties represented in the Legislative Assembly, and

amendments were proposed with a view to ensuring its

protections would be met. For example, s. 8(1)(d) of the

F.L.S.A., which provides that services could be exempted from

being offered in French where, in the opinion of the Lieutenant

Governor in Council"it is reasonable and necessary to do so"

had added to it the words "and where the exemption does not

derogate from the general purpose and intent of this Act": see

Debates of the Legislative Assembly of Ontario, November 6,

1986, at pp. 3202-03.

[143] The legislative history and the comments of the members

of the legislature when the F.L.S.A. was enacted permit this

court to draw a number of inferences and conclusions about the

underlying purposes and objectives of the F.L.S.A. and the

intention of the legislature enacting it. One of the underlying

purposes and objectives of the Act was the protection of the

minority francophone population in Ontario; another was the

advancement of the French language and promotion of its

equality with English. These purposes coincide with the

underlying unwritten principles of the Constitution of Canada.

As already stated, underlying constitutional principles may in

certain circumstances give rise to substantive legal

obligations because of their powerful normative force:

Provincial Court Judges Reference, supra, at pp. 67-70 S.C.R.

per Lamer C.J.C. and Secession Reference, supra, at pp. 249 and

290-91 S.C.R.

The words and the scheme of the Act

[144] For ease of reference, the Act is attached as Schedule

A to these reasons.

[145] The preamble states that the Act is a statutory

recognition of the cultural heritage of the French speaking

population and a reflection of the Legislative Assembly's

commitment to preserve that cultural heritage for future

generations. While a preamble is not a source of positive law

in contrast to the provisions that follow it, a preamble can

contribute to the interpretation of a law: Provincial Court

Judges Reference, at p. 69 S.C.R.

[146] Here, the preamble states "it is desirable to guarantee

the use of the French language in institutions of the . . .

Government of Ontario, as provided in this Act" (emphasis

added). One of those institutions is Montfort, a government

agency under the Act.

[147] Section 1 defines a government agency in part as a

publicly-subsidized non-profit corporation that provides

service to the public and that is designated by regulation.

That is Montfort. The word "service" is also defined in s. 1 as

any service or procedure provided by a government agency and

"includes all communications for the purpose".

[148] Section 2 requires the Government of Ontario to ensure

that services are provided in French in accordance with the

Act. The F.L.S.A. does not impose a requirement of

institutional bilingualism across the province. Instead, it

provides a measured policy that varies with the circumstances.

Thus our decision is a contextual one. This is not a ruling

about every hypothetical situation that might arise concerning

minority French language rights in the province.

[149] Section 5(1) of the Act gives a person the right "to

communicate in French with, and to receive available services

in French from, any head or central office of a government

agency" and "the same right in respect of any other office of

such agency . . . that is located in or serves an area

designated in the Schedule". The right in s. 5 does not apply

to all government agencies. It only applies to those

institutions that are defined as a government agency in s. 1.

Montfort receives public money and is designated under the Act.

Montfort satisfies the definition of a government agency.

Ottawa-Carleton is also a designated area in the Schedule.

Thus, a person has the right to communicate in French with, and

to receive available services from, Montfort and any "office"

of Montfort. In order to understand the meaning of "available

services" as used in s. 5, it will be helpful to provide an

overview of the other provisions of the Act.

[150] Section 6 gives some protection to existing practices

with respect to the use of English or French outside the

application of the Act. It provides that the Act cannot be used

to limit the use of either language where the Act does not

apply.

[151] Section 7 makes the obligations of government agencies

to provide services in French subject to "such limits as

circumstances make reasonable and necessary" but requires first

that "all reasonable measures and plans for compliance with

this Act have been taken or made".

[152] Section 8 gives the Lieutenant Governor in Council the

power to make regulations (a) designating public service

agencies; (b) amending the Schedule by adding designated areas

to it; and (c) exempting services from the application of ss. 2

and 5 where, in its opinion"it is reasonable and necessary to

do so and where the exemption does not derogate from the

general purpose and intent of this Act" (emphasis added).

[153] Section 9 provides that the right to receive services

in French from a designated agency may be limited in that

designation may apply only to certain specified services, as

opposed to all services, provided by the agency, or the agency

may exclude certain of its services from designation. Montfort

has not specified certain of its services for inclusion or

exclusion. Thus the designation applies to all of the services

offered by Montfort.

[154] Section 10 provides that where a regulation exempts a

service, revokes the designation of a public service agency, or

amends a regulation designating a public service agency so as

to exclude or remove a service from the designation, at least

45 days' notice must first have been published in the Ontario

Gazette and a newspaper of general circulation in Ontario

inviting comments to be submitted to the Minister for

Francophone Affairs. After the expiry of this period, the

regulation may be made without further notice.

[155] The implication of s. 10 is that when there is a change

in the services offered by a government agency, a regulation

will be passed. Before the regulation passes, 45 days' notice

of the change must first be published in both the Ontario

Gazette and a general circulation newspaper, inviting comment.

[156] Section 11 provides that the Minister for Francophone

Affairs is responsible for the administration of the Act, and

his function is to develop and co-ordinate the policies and

programs of the government.

[157] Section 12(2) provides that the Office of Francophone

Affairs may, inter alia"recommend changes in the plans of

government agencies for the provision of French language

services" and "make recommendations in respect of an exemption

or proposed exemption of services under clause 8(1)(c)".

[158] Section 13 requires that a French language services

coordinator be appointed for each ministry and that all the

coordinators be part of a committee presided over by the Office

of Francophone Affairs.

[159] Ontario submits that designation as a government agency

under the Act merely confers the right to receive the services

provided by the designated agency at any given point in time.

In support of its position, Ontario relies on the wording of s.

5: "A person has the right in accordance with this Act to

communicate in French with, and to receive available services

in French from, any . . . government agency" (emphasis added).

Ontario submits that the Act only gives a person the right to

receive whatever services Montfort offers. If Montfort offers

ten services in French one year and two services in French the

following year, that is all a person has the right to receive.

Ontario's position is, further, that the F.L.S.A. requires that

only services are to be provided in French, and "services" does

not include the training of health care professionals in

French.

[160] We cannot accept this submission. In our opinion, the

words "available services" in s. 5 of the Act refer to

available healthcare services at the time the agency is

designated under the Act. The legislature has quite clearly

manifested its intention in the preamble of the F.L.S.A. to

"guarantee" the provision of services in French. Ontario's

submission, if accepted, would result in seriously undermining

the guarantee. Our interpretation is reinforced by the French

version of the statute which speaks only of "services" and not

"available services". Our interpretation is also consistent

with the objectives of the F.L.S.A., the aspirational element

of s. 16(3) of the Charter, and the unwritten constitutional

principle of respect for and protection of minorities.

[161] Ontario's submission also fails to pay adequate

attention to the overall scheme of the legislation. Montfort's

designation does not apply only in respect of specified

services. It applies in respect of all the healthcare services

offered by Montfort at the time of designation. If Ontario's

submission is correct, there would never be any need to pass an

amending regulation under s. 8 or give notice under s. 10 to

exempt or remove a service from the designation. In our

opinion, before removing an existing service, such as

cardiology, from Montfort's designation, it would have been

necessary to pass a regulation because cardiology services were

no longer going to be available in French not only at Montfort

but elsewhere in the Ottawa-Carleton region. Of course, the

requirement of s. 7 that circumstances make it "reasonable and

necessary" to limit the provision of French language healthcare

services would first have to be met.

[162] The Commission appears to have attempted to frame its

directions so as to make available equivalent healthcare

services in French at other institutions. Language and culture

are not, however, separate watertight compartments. The reality

of the matter is, as found by the Divisional Court, that the

Commission's directions would reduce the availability and

accessibility of healthcare services in French, both directly

in the Ottawa-Carleton region and eastern Ontario, and

indirectly by imperiling the training of health care

professionals, which would in turn increase the assimilation of

Franco-Ontarians. Montfort's designation under the F.L.S.A.

includes not only the right to healthcare services in French at

the time of designation but also the right to whatever

structure is necessary to ensure that those healthcare services

are delivered in French. This would include the training of

healthcare professionals in French. To give the legislation any

other interpretation is to prefer a narrow, literal,

compartmentalized interpretation to one that recognizes and

reflects the intent of the legislation.

[163] It can hardly be said that the serious adverse effects

of the Commission's directions are consistent with the purpose

and objectives of the F.L.S.A. Nor do the directions accord

with the government's criteria for designating an agency under

the F.L.S.A. The four criteria are: 1) permanency and quality

of services in French; 2) access to services in French; 3)

francophone representation in the governance and management of

the institution; and 4) accountability (Health Services

Restructuring Commission, Report, August 1997 at p. 82).

Designation entails preparing and submitting a plan specifying

the manner in which the institution seeking designation meets

these criteria. By designating Montfort under the Act, Ontario

has signified it is government policy that the services of

Montfort, a general community hospital, are intended to be

permanently offered and readily accessible in French. The

Commission's directions represent a shift in this policy. Even

the Commission itself recognized that the transfer of services

from Montfort meant that "some" existing services would not be

available in French in Ottawa-Carleton, and that it would no

longer be possible to train healthcare professionals completely

in French in a bilingual setting. The Commission, and now

Ontario, has given no explanation for this shift in policy. Nor

has there been compliance with s. 7 of the F.L.S.A.

[164] Section 7 of the F.L.S.A. states that the right to

receive services in French may only be limited "as

circumstances make reasonable and necessary, if all reasonable

measures and plans for compliance with this Act have been taken

or made". The definition of "necessary" implies "une chose

absolument indispensable, ce dont on ne peut rigoureusement pas

se passer. En somme, une n‚cessit‚ in‚luctable": L.-P. Pigeon,

R‚daction et interpr‚tation des lois, 3e ‚d. (Qu‚bec:

Gouvernement du Qu‚bec, MinistŠre des Communications, 1986) at

p. 36. The word "necessary" in this context would appear to

mean that existing services can only be limited when this is

the only course of action that can be taken.

[165] Before limiting Montfort's services as a community

hospital, Ontario must also have taken "all reasonable

measures" to comply with the Act. It is possible to state with

greater precision what falls short of "all reasonable

measures". "All reasonable measures" does not simply mean

giving a direction to the transferee hospital to attain

F.L.S.A. designation and then transferring the French services

before that designation has been attained. Nor does "all

reasonable measures" mean creating a seemingly insurmountable

problem for the training of healthcare professionals in French

and leaving the affected community to solve the problem itself.

The Commission's directions do not comply with s. 7 of the Act.

[166] Although it is impossible to specify precisely what is

encompassed by the words "reasonable and necessary" and "all

reasonable measures", at a minimum they require some

justification or explanation for the directions limiting the

rights of francophones to benefit from Montfort as a community

hospital.

[167] While the Lieutenant Governor in Council may make

regulations exempting services from the application of ss. 2

and 5 where, in the opinion of the Lieutenant Governor in

Council, it is reasonable and necessary to do so, there has

been no attempt to pass a regulation exempting any of the

healthcare services from being provided in French. We also note

the requirement that any regulation exempting a service from

the application of the Act not derogate from the general

purpose and intent of the Act. These words appear to invite

some objective scrutiny and indicate that the discretionary

opinion of the Lieutenant Governor in Council is not absolute.

[168] While the Commission, and now the Minister, may

exercise a discretion to change and to limit the services

offered in French by Montfort, it cannot simply invoke

administrative convenience and vague funding concerns as the

reasons for doing so: see by analogy R. v. Beaulac, supra, at

pp. 805-06 S.C.R.; Mount Sinai Hospital Center v. Quebec

(Minister of Health and Social Services), 2001 SCC 41 at

para. 116. The Commission's mandate has to be reconciled with

the statutory requirements of the F.L.S.A. The Commission may

not issue a directive removing available services in French

from Montfort, particularly when the services are not available

in French on a full-time basis elsewhere in the Ottawa-Carleton

region, without complying with the "reasonable and necessary"

requirement of the F.L.S.A.

[169] Accordingly, we conclude that the Commission's

directions fail to respect the requirements of the F.L.S.A.

Issue 6: Are the Commission's directions reviewable pursuant

to the unwritten constitutional principle of respect for and

protection of minorities?

[170] The Commission had a broad statutory discretion to

issue directions for the restructuring of Ontario's health care

system. There is no dispute that as a public hospital, Montfort

was properly subject to the exercise of the Commission's

discretion.

[171] It has long been established in Canadian law that

"there is no such thing as absolute and untrammelled

'discretion'": Roncarelli v. Duplessis (1958), [1959] S.C.R.

121 at p. 140, 1959 50 (SCC), 16 D.L.R. (2d) 689, per Rand J. In Mount Sinai,

supra, the Supreme Court reviewed the exercise of discretion by

the Quebec Minister of Health in relation to Mount Sinai

Hospital. Section 138 of the Act Respecting Health Services and

Social Services, R.S.Q., c. S-4.2 is similar to s. 6 of the

Public Hospitals Act. Both statutes give the Minister of Health

a wide discretion to act in the manner he or she considers

justified in the public interest. In his concurring reasons at

para. 16, Binnie J. observed:

It is true, as the appellant points out, that the Minister's

power under s. 138 is framed as a broad policy discretion to

be exercised "in the public interest". Yet the discretion,

however broadly framed, is not unfettered. At the very least

the Minister must exercise the power for the purpose for

which it was granted: Roncarelli v. Duplessis, [1959] S.C.R.

121, at p. 140; Padfield v. Minister of Agriculture,

Fisheries and Food, [1968] A.C. 997 (H.L.), at p. 1030.

[172] The basic principle of the reviewability of ministerial

discretion has been applied in relation to the exercise of

discretion in relation to s. 23 minority language education

rights. In Arsenault-Cameron, supra, when striking down a

decision of the Minister of Education not to establish a

French-language school because of an insufficient number of

francophone students, Major and Bastarache JJ. wrote at p. 27

S.C.R.:

The Minister has a duty to exercise his discretion in

accordance with the dictates of the Charter; see Operation

Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441; Slaight

Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038. In

reaching his decision, the Minister failed to give proper

weight to the promotion and preservation of minority language

culture and to the role of the French Language Board in

balancing the pedagogical and cultural considerations. This

was essential to giving full regard to the remedial purpose

of the right. The approach adopted by the Minister therefore

increased the probability that his decision would fail to

satisfy constitutional review by the courts.

[173] The present case does not involve a written

constitutional guarantee, but it does involve a situation with

profound implications for Ontario's minority francophone

community that engages the constitutional principle of respect

for and protection of minorities.

[174] Fundamental constitutional values have normative legal

force. Even if the text of the Constitution falls short of

creating a specific constitutionally enforceable right, the

values of the Constitution must be considered in assessing the

validity or legality of actions taken by government. This is a

long-established principle of our law. Before the advent of the

Charter and the constitutional entrenchment of rights and

freedoms, there can be no doubt that those same rights were

fundamental constitutional values. Although they had not been

crystallized in the form of entrenched and directly enforceable

rights, they were regularly used by the courts to interpret

legislation and to assess the legality of administrative

action. See R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295 at

p. 344, 1985 69 (SCC), 18 D.L.R. (4th) 321. The fundamental rights and

freedoms of a liberal democracy are very much a product of our

British parliamentary heritage. As explained by Rand J. in

Saumur v. Quebec (City), 1953 3 (SCC), [1953] 2 S.C.R. 299 at p. 329, [1953] 4

D.L.R. 641"[F]reedom of speech, religion and the inviolability

of the person, are original freedoms which are at once the

necessary attributes and modes of self-expression of human

beings and the primary conditions of their community life within

a legal order." Although these fundamental rights and freedoms

had no place in the text of the Constitution until 1982, the

courts were entitled to take them into account when deciding

cases and interpreting statutes, and when considering the

legality of governmental actions.

[175] Similarly, since the enactment of the Charter, the

application of constitutional values to situations not strictly

governed by the text of the Constitution has been recognized

and accepted. The Charter does not apply as between private

individuals, yet Charter values are to be applied by the courts

in common-law decision making: Retail, Wholesale & Department

Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2

S.C.R. 573, 1986 5 (SCC), 33 D.L.R. (4th) 174; Hill v. Church of Scientology

of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129.

[176] Unwritten constitutional norms may, in certain

circumstances, provide a basis for judicial review of

discretionary decisions. As Bora Laskin wrote as a professor of

constitutional law in "An Inquiry Into the Diefenbaker Bill of

Rights" (1959) 37 Can. Bar Rev. 77 at p. 81, although not

entrenched in the Constitution, civil liberties were frequently

used "as a means of curial control of administrative

adjudication". More recently, Professor David Mullan commented

on the same doctrine in Administrative Law (Toronto: Irwin Law,

2001. at p. 114, noting that in the pre-Charter era, the courts

were "alert in their scrutiny of the exercise of discretionary

power" where civil liberties and freedoms were at stake. The

statutory conferral of the power to make a discretionary

decision does not immunize from judicial scrutiny the decision-

maker who ignores the fundamental values of Canada's legal

order. In "Unwritten Constitutionalism in Canada: Where Do

Things Stand?" (2001) 35 Can. Bus. L.J. 113 at p. 115, Professor

S. Choudhry questions the propriety of using unwritten

principles to challenge the validity of legislation, but regards

as benign their use to review administrative action: "To the

extent that unwritten principles have been used to control

executive action, they function in a manner similar to the

common law grounds of judicial review of administrative action."

[177] The possibility of the review of discretionary

decisions on the basis of fundamental Canadian constitutional

and societal values is reinforced by the Supreme Court of

Canada's decision in Baker v. Canada (Minister of Citizenship

and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193:

see Mullan, supra, c. 6; D. Dyzenhaus and E. Fox-Decent"Rethinking the Process/Substance Distinction: Baker v.

Canada" (2001) 51 U.T.L.J. 193; MacLauchlan"Transforming

Administrative Law: The Didactic Role of the Supreme Court of

Canada" (2001) 80 Can. Bar Rev. 281. In Baker, the court

considered a challenge to the exercise of a ministerial

decision to refuse to exempt an applicant for permanent

resident status, on compassionate and humanitarian grounds,

from the requirement that the application be made from outside

Canada. Noting that a ministerial discretionary decision made

pursuant to a broadly worded statutory mandate is ordinarily

entitled to a high level of deference from the courts,

L'Heureux-Dub‚ J. wrote at pp. 853-55 S.C.R. that there were,

nonetheless, significant judicially enforceable limits where

fundamental constitutional and societal values are at stake:

[D]iscretion must . . . be exercised in a manner that is

within a reasonable interpretation of the margin of manoeuvre

contemplated by the legislature, in accordance with the

principles of the rule of law (Roncarelli v. Duplessis,

1959 50 (SCC), [1959] S.C.R. 121), in line with general principles of

administrative law governing the exercise of discretion, and

consistent with the Canadian Charter of Rights and Freedoms

[T]hough discretionary decisions will generally be given

considerable respect, that discretion must be exercised in

accordance with the boundaries imposed in the statute, the

principles of the rule of law, the principles of

administrative law, the fundamental values of Canadian

society, and the principles of the Charter.

[178] L'Heureux-Dub‚ J. found that the Minister's decision to

refuse an exemption for a woman who had given birth to four

children during her 11 years in Canada failed to respect the

values expressed in the international Convention on the Rights

of the Child. The Convention had been signed by Canada, but not

adopted in statutory form by Parliament. The Minister held the

majority of the Supreme Court of Canada, at p. 859 S.C.R., was

required "to give serious weight and consideration" to the

values of the Convention and the interests of the applicant's

children who would be left behind if she were not admitted. The

Minister's decision was quashed.

[179] If the values of an international convention not

adopted in statute form by Parliament have a bearing on the

validity of the exercise of ministerial discretion, it must be

the case that failure to take into account a fundamental

principle of the Constitution when purporting to act in the

public interest renders a discretionary decision subject to

judicial review.

[180] The Commission was required by statute to exercise its

powers with respect to Montfort in accordance with the public

interest. In determining the public interest, the Commission

was required to have regard to the fundamental constitutional

principle of respect for and protection of minorities. The

Commission was also required to have regard to the

recommendations of regional health councils. As noted earlier,

the regional health councils recognized the unique role of

Montfort and its importance to the continued survival of the

language and culture of the francophone community. The

Commission, however, viewed consideration of Montfort's larger

institutional role as beyond its mandate. This is demonstrated

by the letter written by Dr. Sinclair dated February 22, 1999

to which reference has already been made at paras. 49 and 72.

[181] We agree with the Divisional Court, at pp. 65-66 O.R.,

that the language and culture of the francophone minority in

Ontario "hold a special place in the Canadian fabric as one of

the founding cultural communities of Canada and as one of the

two official language groups whose rights are entrenched in the

Constitution". If implemented, the Commission's directions

would greatly impair Montfort's role as an important

linguistic, cultural and educational institution, vital to the

minority francophone population of Ontario. This would be

contrary to the fundamental constitutional principle of respect

for and protection of minorities.

[182] Ontario relies on the following passage in Mount Sinai,

supra, where Bastarache J. held at para. 58"Decisions of

Ministers of the Crown in the exercise of discretionary powers

in the administrative context should generally receive the

highest standard of deference, namely patent unreasonableness."

[183] There is little doubt that the Commission's directions

themselves are entitled to a high level of curial deference:

Pembroke Civic Hospital v. Ontario (Health Services

Restructuring Commission) (1997), 1997 16241 (ON CA), 36 O.R. (3d) 41 (Div. Ct.).

However, as we have pointed out, they are by no means immune

from judicial review. While the Commission's directions are

entitled to deference, as pointed out in Baker, supra, at p.

859 S.C.R., quoting D. Dyzenhaus"The Politics of Deference:

Judicial Review and Democracy" in M. Taggart, ed., The Province

of Administrative Law (Oxford: Hart Publishing, 1997) 279 at p.

286, deference "requires not submission but a respectful

attention to the reasons offered or which could be offered in

support of a decision". See also "Transforming Administrative

Law", supra, where Professor MacLauchlan states at p. 289:

As explained by Justice McLachlin [in "The Roles of

Administrative Tribunals and Courts in Maintaining the Rule

of Law" (1999) 12 CJALP 171], the rule of law should be seen

as an essential attribute of decision-making in a democratic

society, taking as its overarching principle "a certain ethos

of justification", under which an exercise of public power is

only appropriate where it can be justified to citizens in

terms of rationality and fairness.

(Emphasis in original)

[184] The Commission offered no justification for diminishing

Montfort's important linguistic, cultural, and educational role

for the Franco-Ontarian minority. It said that matter was

beyond its mandate. The Commission failed to pay any attention

to the relevant constitutional values, nor did it make any

attempt to justify departure from those values on the ground

that it was necessary to do so to achieve some other important

objective. While the Commission is entitled to deference,

deference does not protect decisions, purportedly taken in the

public interest, that impinge on fundamental Canadian

constitutional values without offering any justification.

[185] The Divisional Court did not find the Commission's

decision to be patently unreasonable or clearly irrational, the

test that the parties acknowledged was applicable in the

circumstances. Ontario points out that the respondents have not

appealed this finding. However, this aspect of the Divisional

Court's judgment must not be taken out of context or read in

isolation from the court's central findings. The Divisional

Court did find that the Commission ignored Montfort's broader

institutional role and failed to pay appropriate heed to a

fundamental principle of the Constitution. The application of

that constitutional principle to the circumstances of this case

is squarely raised by Ontario's appeal, and the point under

consideration was fully canvassed in argument.

[186] The Divisional Court, viewing the matter in purely

administrative law terms, and without considering the relevance

of the constitutional issues to the standard of review, found

the standard to be patent unreasonableness. Where

constitutional and quasi-constitutional rights or values are

concerned, correctness or reasonableness will often be the

appropriate standard: see e.g. Baker, supra; Cuddy Chicks Ltd.

v. Ontario (Labour Relations Board), 1991 57 (SCC), [1991] 2 S.C.R. 5, 81

D.L.R. (4th) 121; Ross v. New Brunswick School District No. 15,

1996 237 (SCC), [1996] 1 S.C.R. 825, 133 D.L.R. (4th) 1. In the

circumstances, detailed consideration of the appropriate

standard of review is neither necessary nor appropriate as it

is clear that the directions cannot survive even the most

deferential standard because the Commission refused to take

into account or give any weight to Montfort's broader

institutional role.

[187] We conclude, accordingly, that the Commission's

directions must also be quashed on the ground that, contrary to

the constitutional principle of respect for and protection of

minorities, in the exercise of its discretion, the Commission

failed to give serious weight and consideration to the

linguistic and cultural significance of Montfort to the

survival of the Franco-Ontarian minority.

VI CONCLUSION

[188] Our conclusions may be summarized as follows:

(1) We affirm the Divisional Court's findings of fact that the

Commission's directions to Montfort would:

(a) result in a reduction in availability of health care

services in French;

(b) jeopardize the training of French language health care

professionals; and

(c) impair Montfort's broader role as an important

linguistic, cultural, and educational institution,

vital to the minority francophone population of

Ontario.

(2) The status of Montfort as a francophone institution is not

constitutionally protected by s. 16(3) of the Charter.

(3) The Commission's directions relating to Montfort did not

violate s. 15 of the Charter and Montfort's cross-appeal is

accordingly dismissed.

(4) The constitutional principle of respect for and protection

of minorities is a fundamental constitutional value that

has an important bearing upon the status of Montfort and

the validity of the Commission's directions.

(5) The fundamental constitutional principle of respect for and

protection of minorities, together with the principles that

apply to the interpretation of language rights, require

that the F.L.S.A. be given a liberal and generous

interpretation.

(6) By enacting the F.L.S.A., Ontario bound itself to provide

the services offered at Montfort at the time of designation

under the Act unless it was "reasonable and necessary" to

limit them. Ontario has not offered the justification that

it is reasonable and necessary to limit the services

offered in French by Montfort to the community. The

Commission's directions failed to respect the requirements

of the F.L.S.A.

(7) In exercising its discretion as to what is in the public

interest, the Commission was required by the fundamental

principles of the Constitution to give serious weight and

consideration to the importance of Montfort as an

institution to the survival of the Franco-Ontarian

minority. The Commission considered this beyond its mandate

and its directions are therefore subject to judicial

review. This is a second reason for quashing the

Commission's directions.

(8) Ontario's appeal is dismissed, the order quashing the

Commission's directions relating to Montfort is affirmed,

and the matter is remitted to the Minister for

reconsideration in accordance with these reasons.

Appeals dismissed.

APPENDIX A

French Language Services Act

R.S.O. 1990, c. F.32

Amended by: 1993, c. 27, Sched.; O. Reg. 407/94, s. 1; 1997, c.

25, Sched. E, s. 3; 1997, c. 26, Sched.; 1999, c. 14, Sched. F,

s. 4; 2000, c. 5, s. 12.

Preamble

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;

Therefore, Her Majesty, by and with the advice and consent of

the Legislative Assembly of the Province of Ontario, enacts as

follows:

Definitions

1. In this Act"government agency" means,

(a) 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 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 Services 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); ("organisme

gouvernemental")

"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.

("service")

1997, c. 25, Sched. E, s. 3.

Provision of services in French

2. The Government of Ontario shall ensure that services are

provided in French in accordance with this Act.

Use of English or French in Legislative Assembly

3. (1) Everyone has the right to use English or French in the

debates and other proceedings of the Legislative Assembly.

Bills and Acts of the Assembly

(2) The public Bills of the Legislative Assembly introduced

after the 1st day of January, 1991 shall be introduced and

enacted in both English and French.

Translation of Statutes

4. (1) Before the 31st day of December, 1991, the Attorney

General shall cause to be translated into French a

consolidation of the public general statutes of Ontario that

were re-enacted in the Revised Statutes of Ontario, 1980, or

enacted in English only after the coming into force of the

Revised Statutes of Ontario, 1980, and that are in force on the

31st day of December, 1990.

Enactment

(2) The Attorney General shall present the translations

referred to in subsection (1) to the Legislative Assembly for

enactment.

Translation of regulations

(3) The Attorney General shall cause to be translated into

French such regulations as the Attorney General considers

appropriate and shall recommend the translations to the

Executive Council or other regulation-making authority for

adoption.

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 service

provided by the other offices in the designated area.

Existing practice protected

6. This Act shall not be construed to limit the use of the

English or French language outside of the application of this

Act.

Limitation of obligations of government agencies, etc.

7. 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.

Regulations

8. 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.

Public service agencies; limited designation

9. (1) A regulation designating a public service agency may

limit the designation to apply only in respect of specified

services provided by the agency, or may specify services that

are excluded from the designation.

Consent of university

(2) A regulation made under this Act that applies to a

university is not effective without the university's consent.

Notice and comment re exempting regulation, etc.

10. (1) This section applies to a regulation,

(a) exempting a service under clause 8 (1) (c);

(b) revoking the designation of a public service agency;

(c) amending a regulation designating a public service

agency so as to exclude or remove a service from the

designation.

Idem

(2) A regulation to which this section applies shall not be

made until at least forty-five days after a notice has been

published in The Ontario Gazette and a newspaper of general

circulation in Ontario setting forth the substance of the

proposed regulation and inviting comments to be submitted to

the Minister responsible for Francophone Affairs.

Idem

(3) After the expiration of the forty-five day period, the

regulation with such changes as are considered advisable may be

made without further notice.

Responsible Minister

11. (1) The Minister responsible for Francophone Affairs is

responsible for the administration of this Act.

Functions

(2) The functions of the Minister are to develop and co-

ordinate the policies and programs of the government

relating to Francophone Affairs and the provision of French

language services and for the purpose, the Minister may,

(a) prepare and recommend government plans, policies and

priorities for the provision of French language

services;

(b) co-ordinate, monitor and oversee the implementation of

programs of the government for the provision of French

language services by government agencies and of

programs relating to the use of the French language;

(c) make recommendations in connection with the financing

of government programs for the provision of French

language services;

(d) investigate and respond to public complaints respecting

the provision of French language services;

(e) require the formulation and submission of government

plans for the implementation of this Act and fix time

limits for their formulation and submission,

and shall perform such duties as are assigned to the Minister

by order in council or by any other Act.

1993, c. 27, Sched.

Annual report

(3) The Minister, after the close of each fiscal year, shall

submit to the Lieutenant Governor in Council an annual report

upon the affairs of the Office of Francophone Affairs and shall

then lay the report before the Assembly if it is in session or,

if not, at the next session.

Office for Francophone Affairs

12. (1) Such employees as are considered necessary shall be

appointed under the Public Service Act for the administration

of the functions of the Minister responsible for Francophone

Affairs, and shall be known as the Office of Francophone

Affairs.

Function of Office of Francophone Affairs

(2) The Office of Francophone Affairs may,

(a) review the availability and quality of French language

services and make recommendations for their

improvement;

(b) recommend the designation of public service agencies

and the addition of designated areas to the Schedule;

(c) require non-profit corporations and similar entities,

facilities, homes and colleges referred to in the

definition of "government agency" to furnish to the

Office information that may be relevant in the

formulation of recommendations respecting their

designation as public service agencies;

(d) recommend changes in the plans of government agencies

for the provision of French language services;

(e) make recommendations in respect of an exemption or

proposed exemption of services under clause 8 (1) (c),

and shall perform any other function assigned to it by the

Minister responsible for Francophone Affairs, the Executive

Council or the Legislative Assembly.

1993, c. 27, Sched.

French language services co-ordinators

13. (1) A French language services co-ordinator shall be

appointed for each ministry of the government.

Committee

(2) There shall be a committee consisting of the French

language services co-ordinators, presided over by the senior

official of the Office of Francophone Affairs.

Communication

(3) Each French language services co-ordinator may

communicate directly with his or her deputy minister.

Deputy minister

(4) Each deputy minister is accountable to the Executive

Council for the implementation of this Act and the quality of

the French language services in the ministry.

Municipal by-laws re official languages

14. (1) The council of a municipality that is in an area

designated in the Schedule may pass a by-law providing that the

administration of the municipality shall be conducted in both

English and French and that all or specified municipal services

to the public shall be made available in both languages.

Right to services in English and French

(2) When a by-law referred to in subsection (1) is in effect,

a person has the right to communicate in English or French with

any office of the municipality, and to receive available

services to which the by-law applies, in either language.

Metropolitan and regional councils

(3) Where an area designated in the Schedule is in a

metropolitan or regional municipality and the council of a

municipality in the area passes a by-law under subsection (1),

the council of the metropolitan or regional municipality may

also pass a by-law under subsection (1) in respect of its

administration and services.

SCHEDULE

MUNICIPALITY OR DISTRICT AREA

City of Greater Sudbury All

City of Hamilton All of the City of

Hamilton as it

exists on December

31, 2000

City of Ottawa All

City of Toronto All

Regional Municipality of Niagara Cities of: Port

Colbourne and Welland

Regional Municipality of Peel City of Mississauga

County of Dundas Township of Winchester

County 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 Middlesex City of London

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

County of Stormont All

District of Algoma All

District of Cochrane All

District of Kenora Township of Ignace

District of Nippissing All

District of Sudbury All

District of Thunder Bay Towns of: Geraldton,

Longlac and Marathon

Townships of:

Manitouwadge,

Beardmore, Nakina

and Terrace Bay

District of Timiskaming All

O. Reg. 407/94; 1997, c. 26, Sched.; 1999, c. 14, Sched. F, s.

4; 2000, c. 5, s. 12.

Notes

Note 1: The Regulation came into force on April 1, 1996. On

April 29, 1999 [filed April 30, 1999], O. Reg. 272/99 revoked O.

Reg. 88/96 and provided for more restrictive advisory duties for

the Commission.

Note 2: S.O. 1986, c. 45. Prior to this, the 1960s showed an

increased sensitivity to French language rights both as a

question of fairness to Ontario's own residents and as a larger

backdrop to national unity. The Ontario government passed a

motion giving members of the Legislature the right to address

the House in English or in French. The Schools Administration

Act, R.S.O. 1960, c. 361, and the Secondary Schools and Boards

of Education Act, R.S.O. 1960, c. 362, were passed to facilitate

the establishment and support of French elementary and

secondary schools. On May 3, 1971, Premier Davis made a formal

statement in the legislative assembly in which he pledged to

continue the general philosophy of former Premier Roberts

concerning bilingualism. He indicated that Ontario's policy

would be to provide, wherever practicable, public services in

the English and French languages. He recognized the special

emphasis given by the federal government to bilingualism in

the National Capital region and pledged to support efforts made

to date by the municipalities in the region to increase provision

of bilingual services: Debates of the Legislative Assembly of

Ontario, May 3, 1971 at pp. 1104-09. In the field of justice,

a pilot project was begun in June 1976 to permit the use of

French in trials before the Criminal Division of the Provincial

Court in Sudbury. The project was extended to Ottawa the

following year. Bilingual services were then extended to the

Family Court Division in Sudbury and Ottawa. At the request of

the Attorney General for Ontario, the Criminal Code, R.S.C.

1970, c. C-34 was amended in 1979 to provide for trials

before a judge or jury who spoke the official language of the

accused or both English and French (S.C. 1978-79, c. 10).

In April 1984, the Courts of Justice Act, 1984, S.O. 1984,

c. 11 was amended to provide in s. 135 (now s. 125, R.S.O.

1990, c. C.43) that the official languages of the courts in

Ontario are English and French (S.O. 1984, c. 11). At that

time, the then Attorney General for Ontario, the Honourable

Roy McMurtry, stated that the government had made it clear

that services in the French language in relation to health

care had to be a priority: Debates, April 10, 1984 at pp.

616-17.

@1@HCONT,HTHT,HUMT

@1@H