forget v. quebec, [1988] 2 S.C.R. 90
Attorney General of Quebec Appellant
v.
Nancy Forget Respondent
and
Office de la langue française Mis en cause
and
Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec Mis en cause
indexed as: forget v. quebec (attorney general)
1987: December 14; 1988: September 1.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for quebec
Appeal ‑‑ Moot issue ‑‑ Respondent unable to obtain remedy sought whatever outcome of appeal ‑‑ Whether issue moot ‑‑ Whether issue raised sufficiently important for Court to rule on its merits.
Administrative law ‑- Regulations ‑‑ Discrimination ‑‑ Subdelegation ‑‑ Knowledge of French necessary to obtain a permit from a professional corporation ‑‑ Regulations creating presumption of appropriate knowledge of French for candidates who have taken three years of instruction in French at secondary level or later ‑‑ Persons unable to benefit from the presumption must pass a French test prepared by a committee ‑‑ Whether Regulations discriminatory and contrary to s. 10 of the Charter of human rights and freedoms ‑‑ Whether Regulations discriminatory from an administrative standpoint ‑‑ Whether Regulations contain unauthorized subdelegation of powers ‑‑ Charter of the French language, R.S.Q. 1977, c. C‑11, ss. 35, 114(d) ‑‑ Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, (1977) 109 G.O. II 4627, ss. 2(a), 3.
In order to practise her profession as a nursing assistant in Quebec, respondent needs a permit from the Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec. Under section 35 of the Charter of the French language, a professional corporation may not issue permits "except to persons whose knowledge of the official language is appropriate to the practice of their profession". This section also empowers the Office de la langue française to provide, by regulation, for the holding of examinations and the issuance of certificates. Section 2(a) of the Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation creates a presumption of appropriate knowledge of French for candidates who have "taken at least three years of full time instruction given in French, at the secondary level or later". Persons not having this training‑‑like respondent‑‑had to hold a certificate establishing their working knowledge of French based on an examination. Under section 3 of the Regulations, the examinations are prepared by a committee in accordance with the criteria determined by the Office de la langue française.
Unable to pass the written French examination, respondent presented a motion in the Superior Court for a declaratory judgment declaring ss. 2(a) and 3 of the Regulations void and declaring her exempt from any written test which is clearly unrelated to the practice of her profession. In her motion, respondent maintained that (1) ss. 2(a) and 3 are discriminatory and contrary to s. 10 of the Charter of human rights and freedoms; (2) ss. 2(a) and 3 are discriminatory because s. 35 of the Charter of the French language does not empower the Office de la langue française to enact regulations that distinguish between classes of candidates; and (3) s. 3 contains an unauthorized subdelegation of powers. The Superior Court dismissed the motion. On appeal, a majority of the Court of Appeal allowed the appeal but solely to invalidate ss. 2(a) and 3 of the Regulations.
Between the hearing and the judgment of the Court of Appeal, s. 35 of the Charter of the French language was amended, inter alia, by incorporating a modified version of s. 2(a) of the Regulations. The requirement for a knowledge of French appropriate to practise a profession in Quebec has not been altered, however, and the regulations adopted under the former section have neither been repealed nor replaced.
Appellant asked this Court to declare ss. 2(a) and 3 of the Regulations valid. Respondent for her part added a new conclusion to her motion and asked this Court to declare that she is entitled to practise her profession without having to take a French test. In view of the amendment to s. 35, the question of whether the issue had become moot was raised by the Court.
Held (Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be allowed.
(1) Whether Issue Moot
Per Beetz, McIntyre, Lamer, Le Dain and La Forest JJ.: This issue is not moot. Though respondent cannot obtain the remedy sought because she is not disputing the validity of s. 35 of the Charter of the French language, the discrimination issue she raises is sufficiently important for this Court to rule on its merits. Despite the amendment made to s. 35, ss. 2(a) and 3 of the Regulations have not been repealed and remain in effect. Further, the fact that the distinctions created by the Regulations are now in s. 35 does not mean that they cease to be discriminatory, if such is the case. The question of discrimination remains therefore very important and present.
In any event, even if the appeal were pointless so far as respondent is concerned, the question of whether the issue is moot should be determined in light of the appellant's, not the respondent's, interests. If this Court refuses to address the issue, the Court of Appeal judgment will stand. The Government of Quebec has an interest in a ruling by this Court on the validity of its actions since the Regulations were adopted. Moreover, these are generally applicable provisions; the problem of discrimination therefore does not affect respondent alone, but may arise in respect of every professional candidate. The issue is therefore not moot so far as Quebec is concerned and this Court has a duty to consider it on its merits.
Per Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. (dissenting): Respondent did not dispute the validity of s. 35 of the Charter of the French language. The declaration of invalidity of ss. 2(a) and 3 of the Regulations, even if affirmed by this Court, would therefore not have the effect of requiring the professional corporation mis en cause to admit respondent to the practice of her profession or of enabling respondent to practise her profession without being first required to establish that she had "knowledge of the official language appropriate to the practice of [her] profession". Whether appellant wins or loses, respondent will not be able to practise her profession without holding a certificate of appropriate knowledge of the official language provided for in s. 35 and in the Regulations still in effect. It is further clear that in terms of the legislation, which has now been substantially amended, the question can only be an academic one. Consequently, since the appeal has become irrelevant and as there is no important point of law to be decided which would be in the public interest or in the interests of the sound administration of justice, there is no basis to rule on the merits of this appeal.
Per Dickson C.J. (dissenting): The appeal should be quashed. However, were it necessary to decide, I would agree with the reasons of the majority on the merits.
Per Wilson J. (dissenting): The appeal is moot and should be quashed. A finding of mootness, however, is not necessarily a barrier to this Court's deciding the case on the merits instead of quashing it. It is in the discretion of the Court. If the majority of the Court decided to exercise its discretion in favour of hearing the case on the merits, I would have agreed with its disposition on the merits.
(2) Discrimination and Subdelegation
Per Beetz, McIntyre, Lamer, Le Dain and La Forest JJ.: It appears from s. 10 of the Charter of human rights and freedoms that three elements are necessary to establish discrimination: (1) a "distinction, exclusion or preference", (2) based on one of the grounds listed in s. 10, and (3) which "has the effect of nullifying or impairing" the right to full and equal recognition and exercise of a human right or freedom. In this case, s. 2(a) and 3 of the Regulations are not discriminatory or contrary to s. 10 of the Charter since the distinction made by s. 2(a) does not meet the third criterion. The distinction between candidates benefiting from the presumption of appropriate knowledge of French and those who must take the test is based on language, one of the criteria found in s. 10. The two groups of candidates that result from this distinction are divided generally along language lines. However, in view of the undisputed requirement of s. 35 of the Charter of French language that candidates have a knowledge of French, Regulations that make distinctions to take account of the language skills of individuals do not impair the right to full equality. "Non‑francophones" are not prohibited from joining a professional corporation on grounds that are arbitrary and have nothing to do with the required aptitudes. On the contrary, the Regulations enacted by the Office de la langue française allow them to show that they possess the necessary skills to be admitted to a professional corporation.
Sections 2(a) and 3 of the Regulations are not discriminatory from an administrative standpoint either. Section 35 of the Charter of the French language empowers the Office de la langue française to enact regulations that distinguish between classes of candidates. In giving the Office the right to establish by regulation various methods of assessing knowledge of French, including the holding of examinations and issuing of certificates, this section by implication has conferred on the Office the power to make such a distinction. The presumption made in s. 2(a) of the Regulations is reasonable and justified in the context of the objective sought by s. 35 and it is not for this Court to alter it.
Section 3 of the Regulations does not contain an unauthorized subdelegation of powers when it provides that the tests will be prepared by a committee since s. 114(d) of the Charter of the French language expressly authorizes the Office de la langue française to create committees to assist it in carrying out its function. This committee's function is purely administrative and consists essentially in preparing examinations reflecting the knowledge of French appropriate to the exercise of each profession in accordance with the criteria determined by the Office. The fact that s. 3 does not specify a passing grade is not a sufficient basis for concluding that there was an unauthorized subdelegation.
Cases Cited
By Lamer J.
Applied: Johnson v. Commission des affaires sociales, [1984] C.A. 61; City of Montréal v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 S.C.R. 368; referred to: Kruse v. Johnson, [1898] 2 Q.B. 91; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114.
By L'Heureux‑Dubé J. (dissenting)
Sun Life Assurance Co. of Canada v. Jervis, [1944] A.C. 111; Archbald v. Delisle (1895), 1895 CanLII 72 (SCC), 25 S.C.R. 1; McKay v. Township of Hinchinbrooke (1894), 1894 CanLII 66 (SCC), 24 S.C.R. 55; Attorney‑General for Ontario v. Hamilton Street Railway Co., 1903 CanLII 121 (UK JCPC), [1903] A.C. 524; Attorney‑General for Alberta v. Attorney‑General for Canada, 1938 CanLII 251 (UK JCPC), [1939] A.C. 117; The King ex rel. Tolfree v. Clark, 1943 CanLII 3 (SCC), [1944] S.C.R. 69; Coca‑Cola Co. of Canada Ltd. v. Mathews, 1944 CanLII 9 (SCC), [1944] S.C.R. 385; Re Collins and The Queen (1973), 1973 CanLII 655 (ON CA), 13 C.C.C. (2d) 172; Re Cadeddu and The Queen (1983), 1983 CanLII 1763 (ON CA), 41 O.R. (2d) 481; Vic Restaurant Inc. v. City of Montreal, 1958 CanLII 78 (SCC), [1959] S.C.R. 58; Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange, 1967 CanLII 116 (SCC), [1967] S.C.R. 628; Re: Objection to a resolution to amend the Constitution, 1982 CanLII 219 (SCC), [1982] 2 S.C.R. 793.
Statutes and Regulations Cited
Act to amend the Charter of the French language, S.Q. 1983, c. 56, ss. 9, 50.
Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12, ss. 10 [am. 1978, c. 7, s. 112], 16, 17.
Charter of the French language, R.S.Q. 1977, c. C‑11, ss. 35, 114(a), (d).
Professional Code, R.S.Q. 1977, c. C‑26, ss. 1(f), 36(p).
Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, O.C. 2851‑77, (1977) 109 G.O. II 4627 [now R.R.Q. 1981, c. C‑11, r. 2], ss. 2 to 11.
Authors Cited
Abella, Rosalie S. Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada, 1984.
Proulx, Daniel. "Égalité et discrimination dans la Charte des droits et libertés de la personne: étude comparative" (1980), 10 R.D.U.S. 381.
APPEAL from a judgment of the Quebec Court of Appeal, [1984] C.A. 492, 7 Admin. L.R. 268, setting aside a judgment of the Superior Court, J.E. 82‑704. Appeal allowed, Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting.
Pierre Lemieux and André Gaudreau, for the appellant and the mis en cause the Office de la langue française.
Julius Grey and Lynne‑Marie Casgrain, for the respondent.
Monique Beaudoin, for the mis en cause the Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec.
The following are the reasons delivered by
- The Chief Justice (dissenting)‑‑I agree with my colleague Justice L'Heureux‑Dubé and for the reasons she gives, I would quash this appeal on the ground that it is moot. I should add, however, that I have also considered the reasons of my colleague Justice Lamer and were it necessary to decide, I would agree with his disposition of the substantive issues raised by the appeal.
English version of the judgment of Beetz, McIntyre, Lamer, Le Dain and La Forest JJ. delivered by
Lamer J.‑‑This appeal is concerned with the validity of ss. 2(a) and 3 of the Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, O.C. 2851‑77, (1977) 109 G.O. II 4627 (hereinafter the Regulations) adopted by the Office de la langue française (hereinafter the Office).
L'Heureux‑Dubé J. has summarized the facts and the judgments of the lower courts. I will therefore not repeat them here. With respect for the contrary view, I am of the opinion that the issue is not moot and moreover that the appeal should be allowed.
L'Heureux‑Dubé J. concluded that this Court should not rule on the merits of the issue, as whatever its outcome respondent could not obtain the remedy sought, namely the right to practise her profession. Respondent is not disputing the validity of s. 35 of the Charter of the French language, R.S.Q. 1977, c. C‑11, which requires knowledge of French appropriate to the practice of a profession. She is only challenging the validity of the Regulations providing for various methods of assessing such knowledge. Accordingly, even if she wins her case, respondent would not have the right to practise her profession in view of the undisputed requirement contained in the Act. Respondent's main argument in support of the invalidity of the Regulations was that they are discriminatory and contrary to the Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12. The discrimination issue is central to these proceedings; though in the case at bar the alleged victim cannot obtain the remedy sought, the issue she raises is in my opinion sufficiently important for this Court to rule on it. The new s. 35 of the Charter of the French language now substantially reproduces the content of s. 2(a) of the Regulations. However, the grounds of challenge put forward by respondent do not all become moot on that account. Despite the amendment made to s. 35 of the Act, ss. 2(a) and 3 of the Regulations have not been repealed and remain in effect. Further, the fact that the distinctions created by the Regulations are now in the Act does not mean that they cease to be discriminatory, if such is the case. The question of discrimination remains therefore very important and present.
However, and more importantly, even if the appeal were pointless so far as respondent is concerned, it is not respondent who is appealing the Court of Appeal judgment. It is the Attorney General of Quebec who is appealing from that decision: the question of whether the issue is moot is determined in light of the appellant's interests. If this Court refuses to address the issue, the Court of Appeal judgment declaring void the relevant sections of the Regulations, both under administrative law and under the Charter of human rights and freedoms, will stand. I consider that the Government of Quebec has an interest in a ruling by this Court on the validity of its actions since the Regulations were adopted. Moreover, these are generally applicable provisions: the problem of discrimination does not affect respondent alone, but may arise in respect of every professional candidate. In my view, therefore, the issue is not moot so far as Quebec is concerned and it is our duty to consider it on its merits.
The questions raised by this appeal are as follows:
(1) Are sections 2(a) and 3 of the Regulations discriminatory:
‑‑ contrary to the Charter of human rights and freedoms?
‑‑ from an administrative law standpoint?
(2) Does section 3 of the Regulations contain an unauthorized subdelegation?
1‑‑Discrimination
Charter of human rights and freedoms
Respondent argued that s. 2(a) of the Regulations, which creates a presumption of appropriate knowledge of French for candidates who have taken at least three years of instruction in French since the secondary level, and s. 3 of the Regulations, which provides for a test, are discriminatory and inconsistent with ss. 10 and 16 of the Charter of human rights and freedoms. At the time in question, s. 10 read as follows:
Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin, social conditions or the fact that he is a handicapped person or that he uses any means to palliate his handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
Before going any further, I should mention that respondent based her allegations of discrimination on ss. 10 and 16 of the Charter. In my opinion, ss. 10 and 17 are the only provisions which can be applied in the case at bar. Section 16 prohibits discrimination by an employer, which is not the case here. It is section 17 that covers the right of a person to be admitted to any professional corporation without discrimination, and this is what respondent is claiming:
No one may practise discrimination in respect of the admission, enjoyment of benefits, suspension or expulsion of a person to, of or from an association of employers or employees or any professional corporation or association of persons carrying on the same occupation.
It appears from s. 10 of the Charter and the decision in Johnson v. Commission des affaires sociales, [1984] C.A. 61, with which I agree on this point, that three elements are necessary to establish discrimination: (1) a "distinction, exclusion or preference", (2) based on one of the grounds listed in the first paragraph, and (3) which "has the effect of nullifying or impairing" the right to full and equal recognition and exercise of a human right or freedom.
The first criterion is undoubtedly met. By creating a presumption of appropriate knowledge of French, s. 2(a) of the Regulations distinguishes between two classes of candidates: those who, benefiting from this presumption, will not have to submit to a test to assess their level of knowledge of French, and those who, as they cannot rely on the presumption, must take the test specified in s. 3 of the Regulations.
Is this distinction however based on one of the grounds mentioned in the first paragraph of s. 10 of the Charter? The Court of Appeal is silent on the point. In this Court, appellant argued that the distinction created by s. 2(a) of the Regulations is based not on the mother tongue or language of use of the person alleging discrimination, but on the language of the instruction received by that person. In his submission, each of the grounds of discrimination listed in s. 10 of the Charter constitutes an essential attribute of the person. "Language" in the sense of this provision means a person's language of origin or use, but cannot include the language of instruction. Respondent, for her part, maintained that the Charter must be liberally construed and that the language of instruction is a prohibited ground of discrimination in the same way as the language of origin or of use. She added that otherwise a clear advantage would be given to francophones as a group, though some non‑francophones would also have the same advantage.
I agree with appellant's argument that the grounds listed in s. 10 of the Charter all share the characteristic that they are associated essentially with the person. In an article titled "Égalité et discrimination dans la Charte des droits et libertés de la personne: étude comparative" (1980), 10 R.D.U.S. 381, Mr. Daniel Proulx defines the prohibited grounds of discrimination in the following way (at pp. 451‑52):
[TRANSLATION] To begin with . . . it can be said that a ground of discrimination means in the first place simply a particular characteristic of an individual. Contrary to what is sometimes said, therefore, it is not an unchanging, permanent or inborn characteristic. It would be hard to argue that political beliefs, religion, language or civil status, for example, can never be subject to change.
However, and this is our second observation, the ground of discrimination is here an "essential characteristic or manifestation" of the human being. It must strongly affect the personality of an individual, either inherently (e.g. race or sex) or as the result of the free or compulsory exercise of a fundamental choice (e.g. religion or political beliefs).
Accordingly, the word "language" means the language of the person. As such the concept of language is not limited to the mother tongue but also includes the language of use or habitual communication. I do not see why the scope of the word "language" has to be limited to the language of origin, since this often differs from the language used by a person every day. As the grounds of discrimination mentioned in s. 10 are not unchanging characteristics of the person, there is no reason to adopt a narrow interpretation which does not take into account the possibility that the mother tongue and the language of use may differ.
It may accordingly be thought in the case at bar, as appellant maintained, that the distinction between candidates who do not have to take the test and those who must pass it is based not on the mother tongue or the language of use of the individual but on the instruction received. A professional candidate is exempt from the test so long as he has taken at least three years of instruction in French from the secondary level onwards, regardless of whether he is a francophone, an anglophone or an allophone (that is, his mother tongue or language of use is French, English or some other language). In the same way, a francophone who has done all his study in a foreign language will have to take the test like any non‑francophone in the same position. Seen in this way, the distinction at issue is not based on language and s. 10 would thus not apply.
In my view, however, this interpretation does not actually withstand a more realistic analysis of the situation. Of course, it is true that any person who has taken at least three years of post‑primary instruction in French is exempt from the test, whatever his language. Still, one has to recognize that as a general rule a person does his studies in his own language. Accordingly, most of the candidates able to benefit from the French knowledge presumption are French‑speaking‑‑for the purposes of this discussion I will call them "francophones"‑‑since they are the ones who have received their instruction in French. Conversely, as in most cases non‑francophones study in a language other than French, they are the ones who must take the test.
In light of the foregoing, I feel that the distinction created by the subject Regulations is based on language within the meaning of s. 10 of the Charter. The two groups of candidates that result from this distinction are divided along language lines‑‑the fact that in general their mother tongue or language of use is, or is not, French. In other words, most candidates who benefit from the presumption will be francophones, while those who take the test will be for the most part non‑francophones.
Of course the groups resulting from application of the Regulations are not entirely homogeneous, since as we have seen non‑francophones may sometimes do their studies in French and vice versa. Thus not all francophones will be exempt from the test, and not all non‑francophones will have to take it. The fact remains, however, that as a rule the majority in each group consists of francophones on the one hand and non‑francophones on the other, whatever limited exceptions may occur. As the groups of candidates affected by the distinction are identified along language lines, to say that the distinction is not based on language would in my opinion be adopting too narrow a construction.
Further, in view of the context in which this distinction is made, it would be surprising, to say the least, if it were not based on language. It must be remembered that the purpose of the presumption and test at issue here is to demonstrate that a professional candidate has an appropriate knowledge of French, as required by s. 35 of the Charter of the French language. It is only logical that the means used to establish a candidate's linguistic aptitudes will of necessity have something to do with language, otherwise the Regulations would not achieve the purpose of the Act. For instance, this would be the case if only persons of a certain political affiliation were exempt from the test. Such a distinction would obviously be arbitrary, which cannot be said of the Regulations at issue.
As the distinction created by the Regulations is based on language, we must now turn to the third criterion for determining whether discrimination exists, namely whether this distinction "has the effect of nullifying or impairing" the right of candidates to full equality in admission to a professional corporation. It is important to mention and to emphasize that the validity of s. 35 of the Charter of the French language, by which any professional candidate must have a knowledge of French appropriate to the practice of his profession, is not being challenged. Candidates must therefore prove they have such knowledge. In this context, is it discriminatory to require certain candidates to take a test to determine such knowledge, while others are exempted from the test? Respondent maintained that the same kind of proof should be required of everyone, as in her submission there is no reason why one group should be exempted from taking the test.
In my view, the right to equality set forth in s. 10 of the Charter does not mean that all candidates for a professional corporation have to be treated in the same way. Indeed, discrimination will sometimes result from equal treatment, because special features that distinguish each group will then be disregarded. Respondent moreover admitted that the mere existence of distinctions does not infringe the right to equality, so long as people having similar relevant attributes are treated in the same way. Since she is arguing that the disputed distinction is discriminatory, she must feel that all professional candidates have the same relevant attributes. Respondent's position in this regard is paradoxical, since on the one hand she seems to be saying that all candidates have the same relevant attributes, while, on the other hand, by recognizing the existence of two language groups (francophones and anglophones) she implicitly admits that they do not all have such attributes. It seems clear to me that candidates do not all have the same language skills. In view of the undisputed requirement that candidates have a knowledge of French, Regulations that make distinctions to take account of the language skills of individuals do not prima facie compromise the right to equality.
Equality is not an easy concept to define, and I do not think the case at bar lends itself to an exhaustive study of this concept. For the purpose of this case, I will simply cite the following passage from the Report of the Commission on Equality in Employment (1984) by Judge Rosalie Abella, which was reproduced in part in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114:
Equality in employment means that no one is denied opportunities for reasons that have nothing to do with inherent ability. It means equal access free from arbitrary obstructions. Discrimination means that an arbitrary barrier stands between a person's ability and his or her opportunity to demonstrate it. If the access is genuinely available in a way that permits everyone who so wishes the opportunity to fully develop his or her potential, we have achieved a kind of equality. It is equality defined as equal freedom from discrimination.
Discrimination in this context means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics. What is impeding the full development of the potential is not the individual's capacity but an external barrier that artificially inhibits growth.
Though these comments were made in an employment context, I think they are still relevant to a case involving admission to a professional corporation, as these two areas are quite closely related.
In the instant case non‑francophones are not prohibited from joining a professional corporation on grounds that are arbitrary and have nothing to do with the required aptitudes. On the contrary, the Regulations enacted by the Office allow them to show that they possess the necessary skills, namely an appropriate knowledge of French, to be admitted to a professional corporation. It should be borne in mind that this requirement is imposed by s. 35 of the Charter of the French language, and this provision is not being challenged. The impugned Regulations do not reject non‑francophones outright, they offer them a means of establishing that they meet this requirement. What is more, under s. 11 of the Regulations, candidates may retake the test as many times as they have to in order to pass it. Far from being an arbitrary obstacle for a professional candidate, the Regulations facilitate admission to the corporation while remaining consistent with the requirements of the Act.
It is true, as we have seen, that a majority of those who benefit from the presumption exempting certain candidates from taking the test will be francophones. In creating this presumption the Office thus took account of the linguistic characteristics of those governed by the Act, since there is no reason to require a test of persons who in theory should pass it easily. In any case, the fact of having taken three years' instruction in French is in itself a kind of test which candidates covered by the presumption have passed.
The right to equality would certainly be compromised if the test required greater knowledge of French than a person who has done three years of post‑primary studies in French would have. However this question was not raised in this Court, so we must assume that the level of knowledge required is the same for all candidates.
In conclusion, for all the foregoing reasons I consider that ss. 2(a) and 3 of the Regulations do not infringe the right to equality, and consequently these provisions are not discriminatory within the meaning of s. 10 of the Charter.
Administrative Law
Respondent further argued that those sections are void because they are discriminatory under administrative law. She maintained that s. 35 of the Charter of the French language does not empower the Office to enact regulations that distinguish between classes of candidates. In respondent's submission, this provision should be read as authorizing the Office either to have a test administered to all candidates or not to impose a test on anyone. The Regulations designed to assess knowledge of French should be applied to all professional candidates in the same way without distinction.
In theory, the power to regulate does not include the power to discriminate. Accordingly, where a statute contains no authorization, express or implied, a discriminatory regulation may be challenged and set aside. This rule was recognized by this Court in City of Montréal v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 S.C.R. 368. Speaking for the Court, Beetz J. said (at p. 404):
The rule that the power to make by‑laws does not include that of enacting discriminatory provisions unless the enabling legislation provides the contrary has been observed from time immemorial in British and Canadian public law.
- After quoting the relevant passages from the remarks of Lord Russell C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, Beetz J. went on (at pp. 405‑6):
Lord Russell of Killowen accordingly distinguished between the aspect of a by‑law's political opportunity, which he referred to as its reasonableness or unreasonableness in the narrow sense, and its reasonableness or unreasonableness in the wide sense, to which he gave a negative legal definition. According to that definition, by‑laws are only unreasonable in the wide or legal sense, and ultra vires, if: (1) they are partial and unequal in operation between different classes; (2) they are manifestly unjust; (3) they disclose bad faith; and (4) they involve such oppressive or gratuitous interference with the rights of those subject to them as can find no justification in the minds of reasonable men. It is important to note that the first category of by‑laws unreasonable in the legal sense mentioned by Lord Russell of Killowen is that of by‑laws which are discriminatory in the non‑pejorative but most neutral sense of the word, and which are rendered invalid even though the distinction on which they are based is perfectly rational or reasonable in the narrow or political sense, and was conceived and imposed in good faith, without favouritism or malice.
In the absence of express provisions to the contrary or delegation by necessary implication, the legislator reserves the exclusive right to discriminate. The issue in the case at bar is therefore whether s. 35 of the Charter of the French language confers on the Office the power to enact regulations that distinguish between classes of professional candidates. It is clear from a reading of this provision that it does not expressly authorize the Office to distinguish by regulation between candidates who have taken at least three years' instruction in French, and benefit from a presumption of knowledge, and all others who must then take the test. Section 35 of the Act first states a duty: "[appropriate knowledge of the official language] must be [proven] in accordance with the regulations of the Office de la langue française . . . ." The procedure for proving such knowledge is left at the discretion of the Office, which may, though it does not have to, "provide [by regulation] for the holding of examinations and the issuance of certificates". Section 35 thus empowers the Office to adopt regulations enabling it to assess the knowledge of French of professional candidates. This provision does not require the Office to adopt one means only of measuring the level of knowledge of French. On the contrary, use of the word "may" clearly indicates that the legislator intended to confer a discretion on the Office as to the kind of proof it will require by regulation. Under section 35 of the Act, the Office has the power to enact any method of proof it considers necessary to assess a candidate's appropriate knowledge of French, including the holding of examinations and issuing of certificates. In giving the Office the right to establish by regulation various methods of assessing knowledge of French, the Act by implication confers on the Office the power to distinguish between classes of candidates. If the legislator had intended that knowledge of French be assessed by only one method of proof applicable to all professional candidates, he would have stated that intent clearly. For example, the statute might have imposed on the Office a duty to measure knowledge of French by holding an examination. There would then be no doubt that all candidates without distinction would have to take the test: but that is not the case here. Section 35 of the Act provides that the Office may, but is not required to, hold an examination. The test in the case at bar is not an exclusive method of proof for assessing a candidate's knowledge of French. The Office is not in any way prohibited from introducing by regulation a presumption of appropriate knowledge of French, provided that presumption is rational and reasonable. Section 35 therefore authorizes the Office to enact various methods of determining whether candidates meet the requirement of the Act, and it accordingly by necessary implication confers on the Office the power to distinguish between classes of candidates.
I would add that the presumption made in s. 2(a) of the Regulations, that candidates who have taken at least three years' instruction in French have a knowledge of French appropriate to the exercise of their profession, seems reasonable to me and justified in the context of the objective sought by s. 35 of the Act. Ordinarily, a person who has taken three or more years of post‑primary instruction in French will have sufficient proficiency in the official language to meet the requirement of the Act. The Office has set a period of time, namely three years, for the presumption to apply. This period is reasonable and it is not for this Court to alter it. Moreover, a presumption of this nature is justified on purely practical grounds. Why should a test be required of people who will usually pass it without difficulty? It would be better to try and facilitate the administrative process by not having candidates take the test if most of them will meet the requirements of the rule contained in s. 35 of the Act. To appreciate the wisdom of such a presumption, one need only recall the senselessness of the situation in which certain businesses, such as the newspaper La Presse, found themselves when they were required to obtain a francization certificate.
In conclusion, I consider that ss. 2(a) and 3 of the Regulations are not discriminatory under the Charter of human rights and freedoms nor from an administrative standpoint.
2‑‑Subdelegation
Does section 3 of the Regulations contain an unauthorized subdelegation of power by providing that the test will be prepared by a committee? Respondent argued that under the maxim delegatus non potest delegare, the Office cannot delegate powers conferred on it by the Charter of the French language unless authorized to do so by the Act. In her submission, s. 35 of the Act does not empower the Office to assign to a committee the responsibility of preparing the test used to assess the level of a candidate's knowledge of French.
In my view, the Charter of the French language expressly authorizes the Office to create committees to assist it in carrying out its function. Section 114(d) of the Act provides that:
The Office may
(d) establish by by‑law the services and committees necessary for the attainment of its purposes;
One of the duties incumbent on the Office is stated in s. 35 of the Act: the Office must enact regulations for the purpose of assessing whether professional candidates have an appropriate knowledge of French. To assist it in providing the services needed to test such knowledge, s. 114(d) of the Act authorizes the Office to establish a committee. Subdelegation is therefore not unauthorized, since the Act clearly empowers the Office to create committees if need be.
The delegatus non potest delegare rule prevents the holder of a power which entails the exercise of a discretion from conferring the exercise of that power on some other person or agency. The Office sets out in s. 3 of the Regulations five criteria for assessing the level of knowledge of French. The committee's only function is to prepare examinations reflecting the knowledge of French appropriate to the exercise of each profession in accordance with the criteria determined by the Office. The committee has no discretion: it cannot formulate new criteria nor alter the criteria imposed by the Office as it sees fit. The committee's function is therefore purely administrative and limited to the preparation of tests.
The majority of the Court of Appeal considered that s. 3 of the Regulations is void because it does not specify a passing grade. In its view, the passing grade is the most important aspect of any examination. By allowing that aspect to be determined by some agency other than the Office, s. 3 is arbitrary and entails an unauthorized subdelegation of power. In my view, a passing grade in itself is not a specific criterion that must be present in the Regulations. A passing grade has no meaning in itself unless one knows how difficult the examination is. With respect, I cannot see this as a basis for concluding that there was an unauthorized subdelegation of power.
In sum, I am of the opinion that the subdelegation of power contained in s. 3 of the Regulations is legal. Not only does the Act authorize the Office to create a committee, but such a committee has in fact a purely administrative function. Moreover, I think that for reasons of efficiency and convenience the creation of such a committee was necessary. It was also desirable for the committee to be made up of members from outside, including a representative of the professional corporation. This representative is in the best position to assess the language skills appropriate for the practice of the profession in question.
In conclusion, for all these reasons, ss. 2(a) and 3 of the Regulations are in my opinion valid. I would allow the appeal, set aside the judgment of the Court of Appeal and restore the trial judgment dismissing the motion. As the application for leave to appeal of the Attorney General of Quebec was granted subject to payment of respondent's costs on the hearing of the appeal whatever the outcome, this appeal is allowed with costs against appellant.
The following are the reasons delivered by
Wilson J. (dissenting)‑‑I agree with Justice L'Heureux‑Dubé, for the reasons she gives, that this appeal is moot and I would quash it for that reason.
However, a finding of mootness is not necessarily a barrier to this Court's deciding the case on the merits instead of quashing it. It is in the discretion of the Court whether to do so or not.
I would not have exercised my discretion in favour of hearing this case on the merits but, if the majority of the Court did exercise their discretion in that way, I would have agreed with Justice Lamer's disposition on the merits.
English version of the reasons delivered by
L'Heureux‑Dubé J. (dissenting)‑‑Nancy Forget graduated from the Rosemount High School nursing assistant program in June 1979. In order to practise the profession of a nursing assistant in Quebec, she needs a permit from the Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec, a reserved title profession governed by the Professional Code, R.S.Q. 1977, c. C‑26, ss. 1(f) and 36(p). The latter is subject to s. 35 of the Charter of the French language, R.S.Q. 1977, c. C‑11, which, as a condition of issuing a permit to practise a profession, requires every professional corporation to ensure that candidates for the profession have a "knowledge of the official language . . . appropriate to the practice of their profession". To this end, at that time, the provisions of the regulations (Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation, O.C. 2851‑77, (1977) 109 G.O. II 4627 (hereinafter the Regulations)) adopted by the Office de la langue française created a presumption that a person who had "taken at least three years of full time instruction given in French, at the secondary level or later" had such knowledge. Persons not having this training, like Nancy Forget, had to hold a certificate from the Régie de la langue française establishing their working knowledge of French based on an examination prescribed by the Regulations in question. Nancy Forget sat the examination several times. She passed the oral examination on the tenth attempt but failed the written examination on the eleventh. She then brought an action to vacate certain sections of the Regulations, alleging that they were discriminatory especially in light of ss. 10 (as amended) and 16 of the Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12. The Quebec Superior Court dismissed her action, J.E. 82‑704, and a majority of the Court of Appeal allowed it: [1984] C.A. 492, 7 Admin. L.R. 268.
That, briefly stated, is the entire case. The matter is singularly complicated by the fact that, since the institution of these proceedings, the Charter of the French language has been substantially amended, inter alia, by incorporating in the new wording of s. 35 a modified version of s. 2(a) of the subject Regulations. The first question that arises is whether, as a consequence of this, the appeal has become academic. If not, can the motion for declaratory judgment be entertained?
Act and Regulations
At the time the proceedings were brought, on December 24, 1981, ss. 35 and 114 of the Charter of the French language read as follows:
The professional corporations shall not issue permits in Québec except to persons whose knowledge of the official language is appropriate to the practice of their profession.
Proof of that knowledge must be given in accordance with the regulations of the Office de la langue française, which may provide for the holding of examinations and the issuance of certificates.
- The Office may
(a) adopt regulations within its competence under this act, which shall be submitted for examination to the Conseil de la langue française;
(d) establish by by‑law the services and committees necessary for the attainment of its purposes;
The relevant provisions of the Regulations adopted by the Office de la langue française under ss. 35 and 114 above are contained in ss. 2 and 3:
For the purposes of sections 35 to 39 of the Act, a person is considered to have knowledge of the official language appropriate to the practice of a given profession if he meets one of the following requirements:
(a) if he proves to the satisfaction of the professional corporation that he has taken at least three years of full time instruction given in French, at the secondary level or later;
(b) if he is the holder of the certificate contemplated in section 8 of this Regulation;
(c) if he is the holder of a certificate issued by the Régie de la langue française in accordance with the Regulation respecting a working knowledge of the French language necessary to obtain a permit from a professional corporation, made under section 21 of the Official Language Act (1974, c. 6);
(d) if he had, prior to the coming into force of this Regulation, obtained a document certifying that he has a working knowledge of the French language issued in accordance with the Regulation concerning standards for evaluating the working knowledge of French of an immigrant wishing to be admitted to the study or the practic [sic] of a profession in Quebec, made under section 4 of the Professional Matriculation Act (R.S.Q., 1964, c. 246).
- A committee shall prepare the standardized tests used to evaluate the knowledge of the official language appropriate to the practice of a profession.
This knowledge shall be evaluated in relation to five criteria:
(a) oral French comprehension;
(b) written French comprehension;
(c) oral French expression;
(d) written French expression;
(e) knowledge of and ability to use the French terminology of the profession.
The committee contemplated in the first paragraph of this section shall be composed of three members, one of whom is designated by the Office, one by the Office des professions and one by the Minister.
That was the state of the law at the time the Superior Court rendered the judgment on July 8, 1982. It was also the state of the law at the time the case was appealed (July 9, 1982) and argued (September 1983). Between the hearing on appeal and the judgment of the Court of Appeal (August 31, 1984), s. 35 of the Charter of the French language was amended (An Act to amend the Charter of the French language, S.Q. 1983, c. 56, s. 9). It came into effect on February 1, 1984 and now reads:
The professional corporations shall not issue permits except to persons whose knowledge of the official language is appropriate to the practice of their profession.
A person is deemed to have the appropriate knowledge if
(1) he has received, full time, no less than three years of secondary or post‑secondary instruction provided in French;
(2) he has passed the fourth or fifth year secondary level examinations in French as the first language;
(3) from and after the school year 1985‑86, he obtains a secondary school certificate in Québec.
In all other cases, a person must obtain a certificate issued by the Office de la langue française or defined as equivalent by regulation of the Office.
The Office, by regulation, may determine the procedures and conditions of issue of certificates, provide for the establishment of an examining committee and its mode of operation, and determine criteria for evaluating the appropriate knowledge of French for the practice of a profession or a category of professions and a mode of evaluating such knowledge.
Section 50 of that Act provides:
Regulations of the Office de la langue française and of the Government that were made under provisions of the Charter of the French language which are replaced by this Act remain in force until repealed or replaced.
No relevant regulations have since been adopted under the amended s. 35 and the regulations adopted under the former s. 35 of the Charter of the French language have neither been repealed nor replaced.
Proceedings and Judgments
- By motion for declaratory judgment dated December 24, 1981, Nancy Forget, the respondent in this Court, sought the following conclusions:
(1) To allow this motion;
(2) To declare:
(a) that Regulation 2 or Regulation 2(a) on the Professional Regulations O.C. 2851‑77 is void, ultra vires and/or inoperative;
(b) to declare that Regulation 3 of the same regulation is void and ultra vires;
(c) to declare that she is entitled to practise her profession;
(d) Even if the above are not correct, to declare her exempt from any written test which is clearly inappropriate to her profession.
The Quebec Superior Court did not have to rule on these conclusions as it dismissed the motion. A majority of the Quebec Court of Appeal allowed the appeal [TRANSLATION] "but solely to invalidate ss. 2(a) and 3 of the Regulation respecting the knowledge of the official language necessary to obtain a permit from a professional corporation". It did not pronounce on the other conclusions of the motion.
On appeal, with leave of this Court the Attorney General of Quebec is asking the Court to declare valid these same sections of the Regulations. Respondent, for her part, while asking the Court to dismiss the appeal, put forward the following additional conclusion: "declaring her right to be admitted to her profession without any French test".
Before discussing the merits of the appeal it must be decided whether, as a consequence of the coming into effect of the new s. 35 of the Charter of the French Language, the question has become academic, as regards the interpretation of legislation which has since been amended, and without basis, as regards the conclusions sought by Nancy Forget. In this last respect, what is to become of the additional conclusion sought in this Court by respondent given the nature of the proceedings?
I note in passing that neither of the parties' factums makes the slightest reference to the amendment to s. 35 of the Charter of the French language, though it came into effect before the Court of Appeal judgment and a fortiori before leave to appeal was given, and in any event before the hearing in this Court. This is, to say the least, surprising. The Court raised the matter of its own motion and the parties argued the point at the Court's invitation. The Court reserved judgment on this point and the hearing proceeded on the merits of the case.
The Issue
It should be noted at the outset that neither the Superior Court nor the Court of Appeal was called upon to rule on the principle embodied in s. 35 of the Charter of the French language as it stood at the time, namely, the requirement of proving appropriate knowledge of French in order to practise a profession in Quebec. This Court is not called upon to rule on this matter or the subsequent amendment to s. 35 which did not alter the principle found in the original section. Nancy Forget did not question that principle or challenge the legality of s. 35 of the Charter in her motion. Only sections 2(a) and 3 of the Regulations adopted under s. 35 of the Charter were subject to challenge.
Secondly, on the merits of the appeal, the parties' factums deal solely with the provisions in effect at the time, in particular with ss. 2(a) and 3 of the subject Regulations. Section 2(a), substantially modified, has, since the amendments, become an integral part of s. 35 of the Charter.
Finally, respondent appears to have assumed that if conclusions 2(a) and (b) of her motion for declaratory judgment were allowed, conclusions (c) and (d) and the additional conclusion sought in this Court would necessarily follow. In brief, according to the allegation made by respondent in paragraph 15 of her motion:
Regulation 2(a) and Regulation 3 are the essential regulations and if they are void there is no regulation in force under Section 35 of the Act and Petitioner is entitled to practise her profession until a lawful test is set up;
That, in my view, is the fundamental ambiguity in this entire case. The Court of Appeal, which allowed conclusions 2(a) and (b) of the motion for declaratory judgment, was very careful to point out that it was allowing the appeal "but solely to invalidate ss. 2(a) and 3 of the Regulation . . .", without ruling on conclusions (c) and (d) of the motion, and rightly so. Even assuming, without deciding the point, that such conclusions and the additional conclusion sought by respondent in this Court could be the subject of a motion for declaratory judgment, the declaration of invalidity of ss. 2(a) and 3 of the Regulations, if affirmed by this Court, would not have the effect of either requiring the professional corporation mis en cause to admit respondent to the practice of her profession or of enabling respondent to practise her profession without being first required to establish that she had "knowledge of the official language appropriate to the practice of [her] profession", as provided at the time, and still provided, by s. 35 of the Charter of the French language, which was neither challenged nor vacated.
The fact that ss. 2(a) and 3 of the Regulations adopted pursuant to s. 35 of the Charter were declared invalid by the Court of Appeal judgment, does not render invalid the other sections of the Regulations in question or s. 114 of the Charter of the French language, cited above.
Subsections (b) and (c) of s. 2 of the Regulations, which were not invalidated, provide the method by which proof of such adequate knowledge can be made; ss. 4 and 5 provide for the formalities for examinations, and so on:
For the purposes of sections 35 to 39 of the Act, a person is considered to have knowledge of the official language appropriate to the practice of a given profession if he meets one of the following requirements:
(b) if he is the holder of the certificate contemplated in section 8 of this Regulation;
(c) if he is the holder of a certificate issued by the Régie de la langue française in accordance with the Regulation respecting a working knowledge of the French language necessary to obtain a permit from a professional corporation, made under section 21 of the Official Language Act (1974, c. 6);
The Office shall provide for the holding of examinations at least six times a year at the places and on the dates it shall fix.
A person who wishes to take an examination must apply to the Office which shall notify him of the date, hour and place of the examination.
Each examination sitting shall be presided over by a person designated by the Office. Two other persons may also be present, one designated by the Office des professions the other by the Minister.
When a person sits the examination, the Office shall notify him of the result within two weeks, and at the same time notify the Office des professions, the Minister and the professional corporation.
If the person passes the examination, the Office shall issue him a certificate to that effect.
If the person fails the examinatin [sic], he may, in the month following receipt of the result, make a written request to the Office for a review of his examination. He must wait three months before sitting another examination.
For such review, the Office shall establish a committee of three, two of whom are from the service responsible for administering the examinations and the third from outside that service. The Committee must deal with the request for review within two weeks following its receipt.
The Office shall immediately inform the person concerned in writing of the committee's decision.
Subject to section 9, a person may sit an examination as often as he wishes.
In light of s. 35 of the Charter, which empowers the Office de la langue française to "provide for the holding of examinations and the issuance of certificates", and in light of s. 114 of that Charter, which empowers the Office to adopt such regulations and establish "the . . . committees necessary for the attainment of its purposes", and the Regulations adopted pursuant thereto, the only effect of the Court of Appeal judgment invalidating ss. 2(a) and 3 of the Regulations is to require all candidates seeking to practise a profession in Quebec, to hold a certificate from the Office de la langue française that they have the appropriate knowledge of the official language required by s. 35 of the Charter, as it stood at the time or in its present form.
Section 2(a) of the Regulations, which created the presumption that a certain class of persons possessed this appropriate knowledge, was found discriminatory by the Court of Appeal. Persons to whom the presumption applied had been exempted from producing such certificate. Absent that presumption, the certificate issued under s. 35 was required of everyone. This situation, which was clearly not intended by the legislator, has since been rectified by the amended s. 35 of the Charter, which incorporates a modified version of s. 2(a) of the Regulations, and which at the same time eliminates the very basis of the alleged discrimination set out in respondent's motion for declaratory judgment.
Section 3 was not essential to, but merely useful for the application of s. 35 of the Charter. Given the validity of the other provisions of the Regulations, the fact that s. 3 was found invalid does not in any way alter the requirement that a candidate must hold a certificate prescribed by the Charter in order to practise a profession in Quebec since the Regulations are still in effect.
It accordingly seems clear that, even if the appeal were dismissed, and a fortiori if it were allowed, Nancy Forget's status would not be affected. Whether under the former or the amended s. 35 of the Charter, under ss. 2(a) and 3 of the Regulations, invalid or not, the conclusions sought by respondent regarding her personal status, namely conclusions (c) and (d) of her motion and the additional conclusion sought in this Court, could not be allowed. This is indeed what was argued by counsel for the appellant, both in his written opposition to respondent's motion (in paragraph 9, he denies paragraph 15 reproduced above) and at the hearing, while at the same time, of course, seeking a declaration that ss. 2(a) and 3 of the Regulations are valid.
Counsel for the respondent, for his part, argued that the question has become academic in view of the amendment made to s. 35 of the Charter and irrelevant as to respondent, although he took a different position as to Nancy Forget's status, arguing in this regard that, whether the appeal is allowed or not, before and after the amendment to s. 35 of the Charter, Nancy Forget had the right to practise her profession in Quebec without holding a certificate of appropriate knowledge of the official language to practise that profession. The fact that I have come to a contrary conclusion on this last point in no way alters the fact that the question has become irrelevant so far as Nancy Forget's status is concerned. She has already obtained everything she can possibly get. It is further clear that in terms of the legislation, which has now been substantially amended, the question can only be an academic one.
It is well‑settled law that the function of the courts is not to rule on abstract or hypothetical propositions of law, when the substratum of the case no longer exists or when the decision sought cannot be given practical, direct and immediate effect between the parties (Archbald v. Delisle (1895), 1895 CanLII 72 (SCC), 25 S.C.R. 1; see also McKay v. Township of Hinchinbrooke (1894), 1894 CanLII 66 (SCC), 24 S.C.R. 55; Attorney‑General for Ontario v. Hamilton Street Railway Co., 1903 CanLII 121 (UK JCPC), [1903] A.C. 524 (P.C.); Attorney‑General for Alberta v. Attorney‑General for Canada, 1938 CanLII 251 (UK JCPC), [1939] A.C. 117 (P.C.); The King ex rel. Tolfree v. Clark, 1943 CanLII 3 (SCC), [1944] S.C.R. 69; Sun Life Assurance Co. of Canada v. Jervis, [1944] A.C. 111 (H.L.); Coca‑Cola Co. of Canada Ltd. v. Mathews, 1944 CanLII 9 (SCC), [1944] S.C.R. 385; Re Collins and The Queen (1973), 1973 CanLII 655 (ON CA), 13 C.C.C. (2d) 172 (Ont. C.A.); Re Cadeddu and The Queen (1983), 1983 CanLII 1763 (ON CA), 41 O.R. (2d) 481 (C.A.))
This rule is certainly not immutable and the courts may in their discretion override it for reasons of general public interest or the proper administration of justice (Vic Restaurant Inc. v. City of Montreal, 1958 CanLII 78 (SCC), [1959] S.C.R. 58); if a reference is involved, as mentioned in Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285; when the point of law raised is of major national importance and the lower courts have expressed divergent opinions, or when there is little chance it will be brought to this Court for a long time (International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange, 1967 CanLII 116 (SCC), [1967] S.C.R. 628); if it is an important constitutional issue "determined by a court of appeal judgment which would remain unreviewed by this Court" (Re: Objection to a resolution to amend the Constitution, 1982 CanLII 219 (SCC), [1982] 2 S.C.R. 793, at p. 806).
Although I am not suggesting that this list is exhaustive, the fact remains that the case before this Court does not in any way fall within the grounds on which this Court could depart from the general rule that, even of its own motion, the Court will refuse to make a ruling when there is no longer any issue and the question is purely academic.
In my opinion a judgment which is of great relevance here is that of the House of Lords in Sun Life Assurance Co. of Canada v. Jervis, supra, in which Viscount Simon, L.C., said (at pp. 113‑14):
My Lords, in my opinion, the House should decline to hear this appeal on the ground that there is no issue before us to be decided between the parties. The difficulty is that the terms put on the appellants by the Court of Appeal are such as to make it a matter of complete indifference to the respondent whether the appellants win or lose. The respondent will be in exactly the same position in either case. He has nothing to fight for, because he has already got everything that he can possibly get, however the appeal turns out, and cannot be deprived of it. I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties. What is sometimes called a "friendly action" is not necessarily open to this objection, either in the first court or on appeal, for the respective parties in such an action are arguing for different results and the winner gains something which he would not gain if he lost, but the objection here is that, if the appeal fails, the respondent gains nothing at all from his success.
- The appeal has become irrelevant and the question purely academic given the application of these principles to the case at bar and in light of the fact that here, as in the case above, there is no issue before the Court to be decided between the parties. As there is no important point of law to be decided which would be in the general public interest or in the interests of the sound administration of justice, I am of the opinion that there is no basis for this Court to rule on the merits of this appeal and that it should instead quash the appeal, each party to pay its own costs.
Appeal allowed with costs against appellant, Dickson C.J. and Wilson and L'Heureux‑Dubé JJ. dissenting.
Solicitors for the appellant and the mis en cause the Office de la langue française: Pierre Lemieux, André Gaudreau, Gilles Grenier and Julie Hudon, Ste‑Foy.
Solicitors for the respondent: Grey, Gasgrain, Biron, Montréal.
Solicitor for the mis en cause the Corporation professionnelle des infirmiers et infirmières auxiliaires du Québec: Monique Beaudoin, Montréal.
- Estey J. took no part in the judgment.
