PART XI - OLA REVIEW: OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES AND REMEDIES

The fundamental nature and constitutional origin of the Official Languages Act (OLA) are meaningless without access to an authority with jurisdiction to ensure compliance. The famous Latin maxim "Ubi jus, ibi remedium - where there is a right, there is a remedy"[1] applies to language rights as it does to any other branch of law. If rights are recognized, appropriate remedies must be provided in cases whenever the exercise or full enjoyment of one of those rights is impeded. In any event, it is unthinkable that one could imagine a right without a remedy, for the two go hand in hand, and the absence of one necessarily entails the absence of the other.[2]

Thus, when provincial institutions fail to meet their obligations with respect to official languages, the citizens of the province must have access to a judicial or administrative authority that is able to determine the violation of these rights and order an appropriate remedy.

Moreover, I believe that the importance that the legislator attaches to a law can be assessed by analyzing the effectiveness of the sanction mechanisms designed to ensure compliance. In this regard, it should be recalled that the Official Languages Act of New Brunswick 1969[3] made no express provision for remedies for violations of the rights guaranteed therein. While complainants whose rights had been violated could seek redress through the courts, the absence of any provision for remedies in the Act discouraged many from doing so.

It is also important to note that going to court is a time-consuming and potentially expensive process. Any legal action that citizens must take to force the government to respect rights entails substantial human and financial costs for the complainant. The burden of proof and the cost of the proceedings make it difficult to exercise these rights. Often, such actions require expert testimony, which can mean even more expense. Moreover, a citizen is facing the government apparatus and its almost unlimited financial and human resources.

In New Brunswick, the usual practice in such cases is for the Attorney General to call upon large private law firms, while also having access to the plethora of lawyers in government. When citizens say they feel like David before Goliath when they decide to try to have their rights respected, they are right. Add to this the financial burden of such a process - we know why many hesitate to call on the courts to have the law actually applied.

Given the lack of recourse, we question the effectiveness of the 1969 Official Languages Act. As Justice Lavigne said in R. v. Gaudet: "[I]t is not enough for a linguistic guarantee to be offered on paper; it must be applied or put into practice in order to have meaning.[4] Indeed, what good is a law if there is no recourse to enforce it? It was only in 2002, with the adoption of the new Official Languages Act, that the New Brunswick legislator agreed to create a remedy for violations by establishing the Office of the Commissioner of Official Languages.

The creation of the Office of the Commissioner of Official Languages has provided New Brunswickers with a less onerous and more accessible procedure to resolve issues stemming from a violation of the Official Languages Act. However, despite this, the Office of the Commissioner of Official Languages of New Brunswick still does not have the powers necessary to fully carry out its mandate. Given the importance of the Official Languages Act in the hierarchy of New Brunswick legislation, it is difficult to understand that there are no effective recourses to any violation of those rights. This is why I believe that we must take advantage of the current legislative revision to give the Office of the Commissioner of Official Languages the means to actually carry out its mandate and to provide New Brunswickers with a panoply of remedies that will give them the perception that the Act has some effectiveness.

A. The Office of the Commissioner of Official Languages

Section 43 of the OLA created the Office of the Commissioner of Official Languages of New Brunswick and the position of Commissioner of Official Languages. This position did not exist before the new Act came into force in 2002.

The Commissioner of Official Languages is appointed by the Lieutenant Governor in Council on the recommendation of the Legislative Assembly. To ensure the independence of the position, a selection committee is established to nominate candidates for appointment. The selection committee must consist of the Clerk of the Executive Council or their designate, the Clerk of the Legislative Assembly or their designate, a member of the judiciary, and a member of the academic community.

The mandate of the committee is to develop a list of qualified candidates. After receiving this list, the Premier, who is the Minister responsible for the Official Languages Act, must consult with the Leader of the Official Opposition and the leaders of the other political parties in the Legislative Assembly on one or more candidates on the list.

The process of appointing the Commissioner of Official Languages to replace Katherine d'Entremont raised questions that I feel are important to address. We will recall that on April 13, 2018, the Commissioner of Official Languages announced she would be retiring on July 22, 2018, before the end of her mandate, in accordance with subsection 43(4.1) of the Official Languages Act. The government then appointed Michel Carrier as Acting Commissioner, as provided for in subsection 43(5.5) of the Official Languages Act. Mr. Carrier was to serve in this interim capacity until a person could be selected through the independent process provided for in the Act.

Section 43(5.5) of the Official Languages Act provides that:

“The Lieutenant-Governor in Council may appoint an acting Commissioner for a term of up to one year if:

(a) the office of Commissioner becomes vacant during a sitting of the Legislative Assembly, but the Legislative Assembly does not make a recommendation under subsection (2) before the end of the sitting, or

(b) the office of Commissioner becomes vacant while the Legislative Assembly is not sitting.”

This seems clear enough that the term of office of the Acting Commissioner is for a maximum of one year. We assume that Commissioner d'Entremont notified the Speaker in writing of her intention to retire during the current session. Therefore, under paragraph (a), the Lieutenant Governor in Council was required to make a recommendation for the appointment of an interim commissioner before the end of the session, which was scheduled for June 2018. The selection process for the new commissioner did not begin until July 23, 2018, a date coinciding with the acting commissioner taking office. The candidates who applied for the commissioner position were invited, according to the information obtained, to an interview in late October 2018. The entire process would normally have been completed in the fall of 2018 and the acting commissioner’s term would have ended in early 2019 with the new commissioner taking office.

However, to the surprise of many including myself, on May 28, 2019, the Premier announced that he was cancelling the selection process for the next Commissioner of Official Languages for New Brunswick, that a new selection committee would be created and that a new announcement of candidacies would be issued.

I read with interest the explanations given by one of the members of the selection committee to justify the decision to terminate the committee's work and to restart the selection process, and I must admit that I was puzzled for several reasons.

First, this person states that the committee had made the decision to "disband" at the end of March 2019. I have to wonder where they got the authority for such a decision. There is nothing in the Official Languages Act that gives the committee the right to "disband." Its mandate under the Act is clear: to compile a list of qualified candidates and submit it to the Premier, who must then consult with the Leader of the Opposition and the leaders of the parties represented in the Assembly before appointing the new Commissioner. If the Committee determined that it could not fulfill its mandate, for example, because there were no qualified candidates, it was obliged to report immediately to the Premier on the reasons for this conclusion and to recommend that the selection process be restarted immediately.

Was such a report made? I doubt it. If the Premier had received such a report, why did he not say so when he relaunched the hiring process? Why did he not immediately inform the opposition parties of the situation? That would have avoided a lot of confusion. It appears from the Premier's own words that he never received a report from the committee. In fact, he did not know how many candidates had applied for the job. If the Premier knew in late March or early April 2019, of the committee's decision to "disband", why did he wait until late May to announce that the process would be restarted?

Second, let us say that the selection committee had the authority to "disband" in March, then why did one of the committee members resign from the committee in April? It seems odd to resign from a committee that is disbanded!

Third, when we are told that the committee was hampered in its work by the provincial election and the change in government, I am puzzled. Election or not, change of government or not, a Commissioner of Official Languages had to be appointed and the formation of an independent committee was intended to avoid these political issues. Moreover, the deadline for applications in the announcement of the position was August 10, 2018! So the committee had plenty of time in the fall to conduct seven interviews since we now know that seven candidates had been selected for interviews! It appears that none of these candidates had the qualifications to fill this position.

What is involved here is the appointment of an independent officer of the Legislature to ensure compliance with a quasi-constitutional law. I cannot accept that the committee, charged with such an important legislative mandate, took this task lightly and did not act with due diligence. The reasons given for the dissolution of this selection committee do not convince me that it could not have fulfilled its mandate. This is why the legislation must be amended to ensure that the integrity of this selection process is maintained.

The other particularity of the selection process for the replacement of Commissioner d'Entremont was the appointment of the Acting Commissioner. Indeed, as I mentioned, Premier Higgs announced on July 23, 2018, the appointment of an Acting Commissioner. The law states that this commissioner may remain in office for a maximum of one year. His mandate was to end no later than July 23, 2019. However, on June 14, 2019, the Prime Minister announced that the Acting Commissioner would remain in office beyond July 23, 2019. No amendment was made to the Official Languages Act to extend the term of the interim Commissioner. We can therefore question the legality of this extension. In any event, on November 22, 2019, the Prime Minister announced the appointment of Shirley MacLean as Commissioner of Official Languages.

Some people will probably consider the imbroglio that led to the appointment of the new Commissioner to be theoretical. However, we should remember that this selection process is the same as that for all other officers of the Legislative Assembly: the Access to Information and Privacy Commissioner, the Conflict of Interest Commissioner, the Child and Youth Advocate, the Consumer Advocate for Insurance, the Chief Electoral Officer, the Ombudsman and the Auditor General. This process is intended to maintain the independence of the appointees to these positions. It is therefore important that the process set out in the Act be followed to the letter and that any deviations occur only in exceptional cases with supporting rationale and that they be discussed in the Legislative Assembly.

I therefore propose:

- That any deviations from the selection process for the Commissioner of Official Languages be justified and approved by the Legislative Assembly;

- That if the selection committee must terminate its work, that it provide reasons for this decision and that a new committee be appointed within ten (10) days;

- That the term of office of an Acting Commissioner of Official Languages shall not exceed one year, except for exceptional reasons which shall be tabled in the Legislative Assembly.

It is also important to remember that the Commissioner of Official Languages is an officer of the Legislative Assembly, not of government. They are appointed for a seven-year, non-renewable term. The Commissioner holds office during good behaviour and can only be removed for incapacity, neglect or misconduct upon an address approved by two-thirds of the members of the Legislative Assembly. The position is therefore independent of government, individual departments and other government institutions.

According to section 43 of the Official Languages Act, the role of the Commissioner is to investigate, report and make recommendations with respect to compliance with the Act and to promote the advancement of the two official languages in the province. The Commissioner conducts investigations in response to complaints received from the public. They may also investigate on their own initiative. Following their investigations, the Commissioner may make reports and recommendations. The Commissioner may also attempt to resolve a complaint prior to investigating it when they consider it appropriate. The Commissioner may also, at their discretion, refuse or discontinue the investigation of a complaint if they are of the opinion that the complaint is trivial, frivolous, vexatious or made in bad faith or if the matter of the complaint does not constitute a contravention of the Official Languages Act.

Under subsections 43(16) and (17), if the Commissioner decides to investigate a complaint, they must give notice of their intention to the deputy head or other administrative head of the institution concerned. Upon completion of the investigation, the Commissioner shall forward the results of the investigation and any recommendations, including any opinions or reasons for the recommendations, to the Premier, the deputy head or other administrative head of the institution concerned and the complainant. Under subsection 43(17.2), if the Commissioner considers it to be in the public interest, he may publish a report on the results of their investigation and any recommendations made as a result of that investigation.

The Official Languages Act also provides that the Commissioner shall submit an annual report to the Speaker of the Legislative Assembly. The annual report includes, amongst other matters, an account of the activities of the Office of the Commissioner and makes recommendations to improve the delivery of services in both official languages.

Thus, to monitor and ensure the implementation of the Official Languages Act, the Commissioner's powers consist of conducting investigations and making recommendations. These powers, while important, are, in my opinion, insufficient to ensure full compliance with the Act.

The experience of the past 20 years shows that the power to make recommendations has its limits and can sometimes be ineffective. The reluctance of certain government institutions to implement recommendations and the delays in their implementation, which can sometimes be of several years, are frustrating for complainants and have the effect of diminishing the credibility of the Official Languages Act in the eyes not only of government institutions but also of the public.

In the following paragraphs, I will propose modifications to the Official Languages Act that I believe would correct some of the Act's shortcomings with respect to the remedies available to complainants and the powers of the Commissioner of Official Languages.

B. Proposed Amendments

(a) Powers of the Commissioner of Official Languages: investigation report

The role of the Commissioner, as mentioned, according to subsection 43(9) of the Official Languages Act, is to investigate, report and make recommendations with respect to compliance with the Act and to promote the advancement of the two official languages in the province. To fulfill part of this role, the Commissioner conducts investigations, either as a result of complaints received or on his or her own initiative.

The complaints received by the Commissioner of Official Languages generally raise two types of problems: ignorance of the rights recognized by the Act, or an endemic disregard for these rights. With respect to ignorance of rights, I have seen in my reading of the various investigation reports that complaints often stem from the fact that institutions and agencies subject to the Official Languages Act are unaware of, or unfamiliar with, the language rights enjoyed by citizens of the province. Yet these rights are simple to understand. They boil down to the right of the public to receive from provincial institutions, throughout the province, services of equal quality in the official language of their choice. Unfortunately, after more than 50 years of official bilingualism, there are still many who seem to believe that the obligation is only to provide accommodation within a reasonable time and not to immediately offer services of equal quality in both official languages.

I have also observed that often, either through ignorance, carelessness or indifference, certain institutions or organizations subject to the Official Languages Act make decisions without considering the impact they will have on the official language minority community or their ability to offer services of equal quality in both official languages.

It also happens that a member of the official language minority community who requests services in their language finds themself powerless or uncomfortable when the public servant or official to whom they are speaking is unable or unwilling to offer the service in their language. If this happens frequently, the citizen will come to consider their language as not being an official language, but rather as having an inferior status and will hesitate, despite the Official Languages Act, to demand services in it. It is therefore important, in this context, that government departments and other provincial institutions and agencies subject to the Act establish an official languages culture so that every employee understands that serving citizens in their chosen official language is neither a burden nor a privilege, but rather a right that constitutes one of the fundamental values that define our collective will to live.

The Official Languages Act gives the Commissioner the important task of ensuring that the provincial government and its institutions respect the obligations set out in the Act. Through their investigation reports, the Commissioner seeks to establish a dialogue with provincial institutions, a dialogue that will promote full and complete implementation of the Act. In addition, investigation reports serve to raise awareness and educate public opinion about language rights. We note that, despite a certain amount of goodwill on the part of some institutions, some others are reluctant to engage in this dialogue and seem to consider the Commissioner's reports and recommendations as obstacles rather than tools that will help them improve their performance in terms of official languages.

Despite their power to conduct investigations and make recommendations, the Commissioner of Official Languages does not have the authority to order provincial institutions to comply with the Official Languages Act. Their influence remains persuasive, not coercive. Although the Commissioner is the protector of the New Brunswick public in matters of official languages, their power to act remains quite limited. If the Commissioner's powers are insufficient to ensure compliance with the Official Languages Act, the very relevance of the position may be called into question.

The primary objective of investigation reports is to determine whether rights recognized by the Official Languages Act have been violated. The most common problems with the Commissioner's investigations are that the recommendations made are not always implemented by the institution in question or are implemented too slowly, which can be frustrating and discouraging for the complainant, as their rights continue to be violated. Repeated violations following the conclusion of an investigation report undermine public confidence in the effectiveness of the law and seriously undermine the credibility of the Office of the Commissioner of Official Languages. It is unacceptable, regardless of the law, that a violation can be repeated after a judicial or administrative authority has sanctioned it. This should be all the more true for a law that is quasi-constitutional in nature, as is the case with the Official Languages Act.

The recommendations that the Commissioner makes in their investigation reports are intended to shed light on the facts and practices that gave rise to the complaint. In doing so, the Commissioner seeks to resolve the issue raised through pragmatic recommendations. While the recommendations address a specific problem raised by the complaint, they also provide suggestions on how to prevent the same type of violation from occurring elsewhere. In addition, where systemic problems are found, the Commissioner's report may recommend changes to government practices and policies and, where appropriate, legislation.

To increase the effectiveness of investigation reports, I suggest that the Official Languages Act be amended to provide that the institution subject to an investigation be required to respond in writing to the reports within 30 days of receiving them and that this response include, among other things, the measures it has taken or intends to take to comply with the recommendations made in the report. If an institution does not comply with the time limit, a financial penalty, of an amount to be set by regulation, may be imposed.

With respect to the requirement to respond to investigation reports within a specific time, my research revealed the existence of a similar requirement in two other pieces of legislation. In the Welsh Language Act, which governs the use of the Welsh language in Wales, subsection 4(3) provides that institutions subject to an investigation "must have due regard" to any recommendations or advice issued by the Commissioner. The Official Languages Act of the Territory of Nunavut, for its part, provides in subsection 32(3) that the Commissioner may require the head of the institution to inform the Commissioner, within such time as the Commissioner may specify, of the measures taken or proposed to be taken to give effect to the recommendations of the Commissioner and, if no measures have been taken or proposed to be taken, of the reasons for not giving effect to the recommendations.

Requiring institutions to report on their actions after an investigation report is tabled is not, therefore, a novel or unusual amendment.

I therefore propose that the Official Languages Act be amended by adding the following provisions:

- That, within thirty (30) days of receiving the results of the investigation, the deputy head or other administrative head of the institution concerned send the Commissioner of Official Languages a written response specifying the measures taken or to be taken to comply with the recommendations of the investigation report or, if no measures have been taken or are contemplated, the reasons for not acting on the recommendations.

- That any failure to comply with this requirement may be subject to a monetary penalty to be established by regulation or that the Commissioner may apply to the Court of Queen's Bench for an order directing the institution to provide the response.

Section 43(21) of the OLA also provides that as soon as possible after the end of each year, the Commissioner shall submit an annual report to the Legislative Assembly summarizing the activities of the Office of the Commissioner for that year and making recommendations for improving the effectiveness of the Act. These annual reports are often forgotten as soon as they are tabled and the recommendations are frequently rejected or ignored without any valid reason being given for this decision.

To give effect to the annual reports, I suggest that the Official Languages Act be amended to provide:

- That the Premier, being the minister responsible for the administration of the Act, shall, within thirty (30) days after the tabling of the annual report, table in the Legislative Assembly a written response explaining what the government intends to do in response to the annual report or, if applicable, explaining why it does not intend to do so.

(b) Compliance Agreement

A compliance agreement is an agreement by which an institution or agency undertakes to take certain actions to comply with the recommendations contained in an investigation report. The agreement therefore includes commitments to implement the conditions necessary for compliance with the Official Languages Act. It also provides that the institution or organization has a duty to report at regular intervals on its efforts to meet the commitments made.

An example of such an arrangement can be found in the agreement reached on November 20, 2017, by the parties in a dispute involving Ambulance NB, the provincial government and civil parties. This agreement provided for commitments by Ambulance NB and the government to comply with their obligations under the Official Languages Act. It also provided that Ambulance NB and the government were to report annually to the Commissioner on the status of the implementation of these commitments. While it is true that the Office of the Commissioner of Official Languages was not a party to this agreement, we believe it is nevertheless a good example of what an enforceable agreement could look like.

In its bill to modernize the Official Languages Act of Canada, the Canadian government is proposing that compliance agreements be put in place. New Brunswick could use this as a model for doing the same.

I therefore suggest that the Official Languages Act be amended to provide that:

- institutions and organizations that are in recurring breach of their obligations under the Act may be required to enter into compliance agreements with the Office of the Commissioner of Official Languages in the manner proposed in the Canadian government's bill.

(c) The power to sue

With respect to the power to sue, it should be noted that subsection 43(18) of the Official Languages Act confers this right only on the complainant. It states that a complainant who is dissatisfied with the findings of an investigation or with the disposition of their complaint may apply to the Court of Queen's Bench of New Brunswick.

Subsection 43(18) is silent as to the procedure that a complainant may use to bring their case before the Court of Queen's Bench. I am of the view that in the case of an action involving a language issue of public interest, it would be more efficient to allow the action to be commenced by way of a Notice of Application rather than a Statement of Claim. A provision could be made in the Official Languages Act to permit the use of the application procedure in all cases falling under subsection 43(18). Evidence in such proceedings could, unless the court directs otherwise, be given by affidavit. Upon the filing of the Notice of Application, the court would act as manager and ensure that the proceedings advance within a reasonable time frame. Parties would be entitled to cross-examine the authors of an affidavit with leave of the managing judge and in accordance with a procedure approved by the managing judge. We believe that this would have the effect of reducing the length of trials and greatly reduce costs.

I therefore propose:

- That an action for a violation of a right under the Official Languages Act may be brought by Notice of Application as provided for in the New Brunswick Rules of Court.

A court action can be very costly for a citizen. It is true that the Court Challenges Program of Canada funds actions that raise issues relating to the Canadian Charter of Rights and Freedoms, which includes the language provisions that apply in New Brunswick and the provisions of the Official Languages Act of Canada, but it does not support applications that involve a violation of New Brunswick's Official Languages Act. So a New Brunswicker who cannot link his claim against the provincial government to a violation of a provision of the Charter will not obtain funding from the Court Challenges Program if one of their rights under the Official Languages Act has been violated.

To address this shortcoming in part, I suggest that the Official Languages Act be amended to include a provision similar to that found in section 81 of the Official Languages Act (Canada).

That section provides:

81 (1) Costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.

(2) Where the Court is of the opinion that an application under section 77 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.

Thus, a citizen could, in an action raising a violation of a right under the Official Languages Act, at least be awarded costs, which would cover part of their expenses. I would, however, amend the first paragraph to indicate that the government, government institutions or third parties acting for the government cannot recover costs against a citizen unless the action is frivolous or vexatious.

I therefore propose that the Official Languages Act be amended by adding the following:

- Costs may not be awarded against the government, any of its institutions, municipalities, or third parties acting on behalf of the government in a case involving a violation of the Official Languages Act unless it is shown that the action is frivolous or vexatious.

- Where the court is of the opinion that the subject matter of the action has raised an important and novel principle in relation to this Act, the court shall award costs to the applicant, notwithstanding that the applicant is unsuccessful.

On the legal nature of the Commissioner's reports, the Federal Court in Rogers v. Canada (Correctional Service)stated:

(Translation) While the Act does not state that the Commissioner's report is binding on the court, it is undoubtedly evidence that must be considered in an application for relief under the Act.[5]

In order to give more legal weight to the reports of the Commissioner of Official Languages, I am of the view that the Official Languages Act should be amended to provide that the investigation file and report establish a prima faciecase of a violation of the Official Languages Act and that, once this has been established, the burden of proof is shifted to the institution under investigation to establish, on a balance of probabilities, that it has not violated the Act. Such an approach would, in our view, strike a balance between complainants and government institutions.

I therefore propose that the Official Languages Act be amended by adding the following:

- That the Commissioner's report and record of investigation, once filed in court, shall be prima facie evidence of a violation of the Act and the onus shall then be on the institution to establish that it did not violate the Act.

The Official Languages Act (Canada) gives the federal Commissioner the right to seek recourse before the courts.[6] Similar provisions are found in the Nunavut Act, the Northwest Territories Act and the Welsh Language Act.

The New Brunswick Official Languages Act does not expressly recognize this power for the New Brunswick Commissioner. I believe this power should be included in the Official Languages Act to avoid any ambiguity. In fact, in its 2011-2012 annual report, the Office of the Commissioner of Official Languages recommended that the Commissioner be given this power to resort to the courts,[7] but this recommendation, like many others, has not been acted upon.

I therefore propose that the Official Languages Act be amended to add the following:

- That the Commissioner may seek recourse before the courts to enforce the Official Languages Act

(d) Immunity of Complainants and the Commissioner

Section 43.1 of the Official Languages Act is intended to protect a complainant from any act of reprisal as a result of filing the complaint. This section provides:

43.1 No person shall take a reprisal against a person or direct that one be taken against a person because the person has made a complaint in good faith to the Commissioner or cooperated in an investigation under this Act.

However, I believe that more is needed. To better protect complainants, I recommend that this section be amended to specify not only that complainants shall not be subject to reprisals, but also that they shall not be threatened or discriminated against because of the complaint they have made. A similar provision is found in paragraph 62(2)(a) of the Official Languages Act of Canada.

Moreover, in its current form, section 43.1 offers little recourse to the complainant in the event that they are subjected to reprisals, threats or discrimination as a result of filing a complaint. The only recourse is to file a complaint with the Office of the Commissioner of Official Languages. To send a clear message that such actions will not be tolerated, we suggest adding a new subsection imposing a monetary penalty of between $5,000 and $25,000 on the offending party or institution.

I therefore propose that the Official Languages Act be amended to add the following:

- No person shall retaliate against, discriminate against, or threaten a complainant or any other person on the basis that the complainant has made a complaint in good faith to the Commissioner or that the complainant or any other person has cooperated in an investigation under this Act.

- Any person or institution that violates the preceding subsection is liable on summary conviction under the procedure set out in the Provincial Offences Procedure Act, SNB 1987, c. P-22.1, to a fine of not less than $5,000 nor more than $25,000.

Section 43.2 grants immunity to the Commissioner while they are performing an act within the scope of their duties. This section provides:

43.2 No proceedings lie against the Commissioner or against a person holding an office or appointment in the Office of the Commissioner for anything he or she may do, report or say in the course of the exercise or intended exercise of his or her functions under this Act regardless of whether that function was within his or her jurisdiction, unless it is shown the person acted in bad faith.

Since, pursuant to subsection 43(15) of the Official Languages Act, the Commissioner of Official Languages is a commissioner under the Inquiries Act,[8] they are also immune from liability under subsection 12(1) of that Act. That subsection states:

12(1) No action shall be brought or maintained against a commissioner by reason of an act purporting to be done by the commissioner in his or her capacity as a commissioner, unless it appears that the act was done by the commissioner without reasonable cause and with actual malice and wholly without jurisdiction.

The Official Languages Act (Canada) also grants immunity to the federal Commissioner. Section 75 of that Act provides as follows:

75(1) No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act.

75(2) For the purposes of any law relating to libel or slander, a) anything said, any information supplied or any document or thing produced in good faith in the course of an investigation by or on behalf of the Commissioner under this Act is privileged; and b) any report made in good faith by the Commissioner under this Act and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast is privileged.

The Official Languages Act (Nunavut) provides in subsection 34(1) that reports and information provided by the Commissioner are final and not subject to review by a court. The Official Languages Act (NWT) provides, in section 25, that the Commissioner or any person acting on behalf or under the direction of the Commissioner is immune from civil or criminal liability for anything done, reported or said in good faith in the course of the performance or purported performance of the Commissioner's duties.

In light of our research and to clarify the immunity granted to the Commissioner, I suggest the following addition to the Official Languages Act:

- No civil or criminal proceeding or judicial review shall be instituted against the Commissioner or any person holding an office or performing duties under the Commissioner for anything done, reported or said by the Commissioner in the course of the performance or purported performance of any duty or function under this Act, whether or not that duty or function was within the jurisdiction of the Commissioner, unless there is evidence that the Commissioner acted in bad faith.

In New Brunswick v. Canadian Union of Public Employees, Local 4848,[9] the Court of Queen's Bench confirmed that a report of the Commissioner can only be reviewed within the provisions of subsection 43(18) of the Official Languages Act. Therefore, according to this decision, only the complainant can request that a Commissioner's report be reviewed by the courts. Thus, our proposed amendment should not prevent a complainant who is not satisfied with the Commissioner's findings from challenging them in court. However, a government institution or a third party acting on behalf of the government should not have the right to challenge a report of an investigation by the Commissioner's office unless it can demonstrate that the Commissioner acted in bad faith.

The next text will be the conclusion, finally. Although I doubt that my texts will make a difference and though they may seem naive and unreasonable, they will at least have allowed me to let off steam.

[1] Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3 at para 25.

[2] Ashby v White (1703), 2 Ld Raym 938 at 953. Holt C.J.'s quote is from the Supreme Court of Canada in Seneca College of Applied Arts and Technology v Bhadauria, [1981] 2 SCR 181 at 191. See also, Doucet-Boudreau, ibid at para 25. See also, M. Doucet, Les droits linguistiques au Nouveau-Brunswick : À la recherche de l’égalité réelle, Édition de la Francophonie, page 537 [Les droits linguistiques au Nouveau-Brunswick].

[3] Official Languages Act of New Brunswick, R.S.N.B. 1973, c. O-1 [1969 OLA].

[4] R. v. Gaudet, 2010 NBQB 27, 355 NBR (2d) 277, at para 24.

[5] Rogers v. Canada (Correctional Service), [2001] 2 F.C.R. 586, 2001 CanLII 22031 at para 59 (FC). See also Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development), 2018 FC 530 (CanLII), [2019] 1 FCR 243 at paras 75-77.

[6] OLA Canada, s 78.

[7] New Brunswick Commissioner of Official Languages, From Words to Actions: Annual Report 2011-2012, Fredericton at p 18.

[8] Inquiries Act, RSNB 2011, c 173.

[9] New Brunswick v. Canadian Union of Public Employees, Local 4848, 2019 NBQB 097.