Official Languages Committee on Dec. 6th, 2018

[The Chair, Liberal, Denis Paradis]

Pursuant to Standing Order 108(3), we are continuing our work on the state of Canada's francophonie.

This morning we have the pleasure of welcoming Nadia Effendi, Chair of the Association des juristes d'expression française de l'Ontario.

You are familiar with the ground rules. You will have about 10 minutes to make your presentation. Then, as usual, we will proceed with a round of questions and comments by members of the committee.

Ms. Effendi, you have the floor.

[Nadia Effendi, Chair, Association des juristes d'expression française de l'Ontario]

Thank you very much, Mr. Chair.

I am pleased to be with you this morning to present the remarks of the Association des juristes d'expression française de l'Ontario, the AJEFO, on the state of Canada's francophonie.

The AJEFO has been working to promote access to justice in French in Ontario since 1980. We are both a community and a centre of French-language legal expertise, and our more than 1,000 members include lawyers, judges, translators and students from across the province. Our organization is in fact the largest association of francophone justice professionals in Ontario.

We would like to contribute to your study this morning by providing some remarks on the francophonie, more specifically in the justice sector.

First of all, I intend to discuss the current issue of access to justice in French and the AJEFO's efforts in that regard. Second, we will outline our reaction to recent announcements by the Government of Ontario and the direct impact of those announcements on the Franco-Ontarian community. I am sure that will be of interest to you.

Allow me to begin with the current issue of access to justice. As you are no doubt aware, many studies and reports have been prepared in recent years on access to justice and concerns about that situation. It would appear from findings on the subject that litigants have little knowledge of their rights or solutions to their legal problems.

Studies also show that increasing numbers of people represent themselves before the courts in our judicial system. Lastly, the reports state that government support for access to justice, although significant, is not currently adequate. Access to justice in French, which is likely your greatest concern, is all the more difficult to achieve.

In its 2012 report, the Rouleau—Le Vay committee noted that proceedings conducted in French resulted in additional costs and took longer than those conducted in English. That situation is attributable to a range of factors, including the lack of bilingualism among players in the justice system.

There is also a lack of communication among the various players: judges, the Ministry of the Attorney General of Ontario, justice professionals and so on. In addition, litigants encounter procedural problems in exercising their language rights.

We are proud of the AJEFO's efforts to address these issues through its diversified projects. Those projects that have been implemented under the federal government's road map 2008-2013 provide legal information to litigants and are designed to equip stakeholders.

I cannot appear before you without discussing our various projects, which you are probably familiar with. I thought you would definitely be interested in hearing about them since they are funded by the federal government.

Two of those projects concern legal information. Their purpose is to provide information to litigants in clear and simple language to compensate for the fact that they cannot hire lawyers like me.

The first project is the Ontario Legal Information Centre in Ottawa. I invite you to go and visit it. It offers Ontario litigants 30-minute meetings with a lawyer in the language of their choice, English or French, thus providing them with access to legal information on problems they are dealing with.

Since it opened, the centre has responded to more than 8,000 service requests both in person and over the phone, which shows there's a genuine need for this kind of information. This represents an average of approximately 300 meetings a month. You can imagine the number of requests the centre receives.

Although services are offered in both languages, the centre's language of work is French. The centre really strives to offer services actively in French.

The second program, which you may have heard about, is also funded by the federal government. It's the cliquezjustice.ca website, which is intended for francophone minority communities across Canada. Its mandate is to provide the general public with clear and simplified information on their rights and obligations in various areas, such as employment law, wills and family law.

The website provides Canadians with a variety of resources and helps put litigants who can benefit from its service in touch with justice professionals. It also provides educational resources to teachers who want to teach their students about various justice topics.

In the last fiscal year, cliquezjustice.ca logged 400,000 visits, more than 50,000 a month. In November, the last full month for which we have figures, the site received a record 80,000 visits. Once again, that attests to a need among members of the public for information on their rights.

AJEFO's last key program actually focuses on justice professionals. Litigants need services, and so do professionals. There is a shortage of bilingual people in Canada who can serve this population. One of the reasons for that is that there are not enough French-language common-law resources for litigants.

The jurisource.ca website is an attempt to meet that demand. It is a virtual library that is made available, free of charge, across Canada, to professionals in the common law provinces. It provides teaching resources of all kinds, such as document templates and lexicons from all across the country. Our purpose is to expand access to justice in French and to cut costs. The last thing we want is to have to tell a client who comes to us for a will in French that we don't have one and that we will have to translate it and bill the client for it. The purpose of jurisource.ca is to remedy all that.

Lastly, we play an advocacy role, and that's why we are here before you this morning. We like making presentations, both in court and before parliamentary committees.

We recently intervened before the Supreme Court of Canada in Mazraani v. Industrielle Alliance, Insurance and Financial Services Inc., a case that may be of interest to you. The court rendered a decision in favour of language rights, reminding judges of their duty to promote access to justice in French and lawyers of their ethical duty in that regard.

I want to take this opportunity to thank our principal funder, the Department of Justice of Canada, for supporting these three projects. We are very pleased with the funding we receive. This past March, we were delighted to learn that the Action Plan for Official Languages 2018-2023: Investing in our future provides for a return to core funding for organizations representing the official language minority communities. We feel that funding is essential to ensuring the continued existence of the networks, communication among the various associations of francophone jurists and continued provision of services.

In my remaining time, I would like to talk about recent announcements by the Government of Ontario.

As the AJEFO is located in Ontario, it relies in part on funding from that province, for two projects in particular.

The Ontario Legal Information Centre has established a toll-free telephone line with funding from the provincial government. We also organize justice camps every year. Elementary school students come to us, and we give them resources and information on justice. The program is also funded by the provincial government.

Delays in confirming funding for these programs have caused problems for the centre, which is unable to meet rising demand for its services. I gave you some figures on the requests it receives. As for the justice camps, we will unfortunately have to consider terminating that program if funding from the province is not forthcoming.

The AJEFO has maintained a good relationship with the provincial government in recent years, more particularly with the Ministry of the Attorney General of Ontario. We were encouraged by some initiatives the ministry recently took, unveiling a Franco-Ontarian monument in Toronto to celebrate the 400-year francophone presence in Ontario, passing a motion to indicate linguistic identity on provincial health cards and consulting francophone entrepreneurs.

We saw that the government seemed intent on promoting access to justice in French and French-language services in Ontario. It also made promises to modernize Ontario's French Language Services Act.

That's why, on November 15, the AJEFO, like so many other organizations in Ontario and the rest of the country, was shocked by the provincial government's announced budget cuts, which had a direct and very serious impact on Ontario's francophone community.

We at the AJEFO denounced that serious blow to francophones' status, particularly the elimination of the Office of the French Language Services Commissioner, the issue that concerns the AJEFO as an organization in the access to justice field.

Although the provincial government announced one week later, on November 23, that the commissioner's office would be attached to the Office of the Ontario Ombudsman, we believe that proposal is still unsatisfactory.

Financial arguments cannot serve as a pretext for undermining francophones' rights. That principle was confirmed in the Montfort affair, with which you are very familiar. The Court of Appeal for Ontario confirmed at the time that the government could not rely solely on arguments of administrative convenience or vague funding concerns to justify closing Montfort Hospital.

We are seriously concerned about what's currently happening with the Office of the French Language Services Commissioner. It won't be news to you that the Franco-Ontarian community has a rich history but has also faced many obstacles. It has overcome those obstacles—and I believe it will do so again this time—and it did so by making very significant gains for the community. Those gains have been erased by the elimination of the Office of the French Language Services Commissioner.

Ontario's French Language Services Act is 30 years old. That's why the government said it intended to modernize the act and add new elements, and now, a few weeks later, we are faced with announcements such as the one you heard.

I'd like to close by saying that we want the community's gains to be restored. That's what the AJEFO wants. We want to restore the integrity of the Office of the French Language Services Commissioner. That's our objective.

I'm prepared to answer your questions regarding our concern over the Office of the French Language Services Commissioner in particular. We feel the independence of that office is under serious attack.

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you very much for that presentation.

We will begin the round with Mr. Alupa Clarke.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

Ms. Effendi, welcome to the federal government's Standing Committee on Official Languages. I'm pleased to see you here. Thank you for all the work you and your organization are doing.

First, I would like to ask you a brief question. You said the Ontario government paid the AJEFO for the legal information centre to provide resources such as justice camps to young people.

How much funding was allocated to those activities last year, for example?

I'd just like to get an idea of what that might mean.

[Nadia Effendi]

That's a very good question.

I'll give you the exact figures so my executive director doesn't accuse me of making false statements.

It was $30,000 for the legal information centre and $180,000 for the justice camps.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

That's interesting. Thank you.

We all agree the decisions Mr. Ford made in Ontario are an affront to French Canadians. You say that you're concerned and that this constitutes a serious attack on the status of francophones in Ontario.

I'd like you to explain to us, in your own words, how this is a serious attack, even though we know in a general way.

[Nadia Effendi]

It's important to remember there was no Office of the French Language Services Commissioner when the French Language Services Act was first passed in 1986. That office was created in 2007, and it was added because the government realized it needed additional transparency.

You've probably heard it said many times that an act has little effect if it has no teeth. So it's necessary for an act such as this one, which is designed to protect the minority, to provide for a remedy. That's the role of the Office of the French Language Services Commissioner; that's what it does. It receives complaints, and it investigates them, but it also defends and promotes the francophone community.

Without that office, and particularly without its independence—which is currently at stake—we have no remedy.

What will Ontario's francophone community do if it no longer has an organization to turn to when a problem arises and there's a shortage of services in French?

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Good. Thank you.

The federal government's court challenges program was suspended for the last 20 months as a result of an administrative restructuring, but it was announced a few weeks ago that it would be reopening. Since I imagine you're very much in the know, do you know whether the program is accessible now and whether applications can be made to it?

[Nadia Effendi]

Yes, as far as I know.

I have to admit I'm not exactly sure of the situation. Are all applications currently under review? Where do things stand? We at the AJEFO were obviously delighted when the names of the members of the expert panels that will review the applications were announced not long ago. I think that's really a step in the right direction.

Since you mention the court challenges program, I would like to tell you about a wish the AJEFO has. I know you're also studying the modernization of the Official Languages Act, and the AJEFO would like to make sure we don't wind up in the same situation as a few years ago when the program was cancelled. We therefore encourage you to entrench the program in the Official Languages Act.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

All right.

I'd also like you to tell us a little about the current state of Canadian jurisprudence on language rights, in all courts.

I'm thinking, for example, of the decision rendered in May by Judge Denis Gascon, who dismissed an application by the Fédération des francophones de la Colombie-Britannique and bluntly held that part VII of the Official Languages Act was meaningless.

Do you think that case poses a threat to Canadian language rights jurisprudence?

[Nadia Effendi]

We're fortunate to have courts. They're the watchdogs that guarantee that, if a government or agency, whatever it may be, ever fails at its task, we'll have a place where we can go and seek remedy. The flipside of that, obviously, is the extraordinary cost that entails for the ordinary person, a factor that makes litigants hope they'll never need to appear in court.

As for the state of jurisprudence, it's generally unanimous in the Supreme Court: language rights there are viewed as underlying constitutional principles, a concept also found in the Charter. We feel fortunate those principles are recognized and confirmed. For example, going back to the Mazraani case I referred to, which recently concluded, the Tax Court of Canada, in that instance, had forced a witness to speak English whereas his first language was French. The Supreme Court obviously found that unacceptable and unlawful and held that the witness should have been entitled to speak in French.

However, there are exceptions, such as the British Columbia case you mentioned.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

It could spread, like gangrene, couldn't it?

[Nadia Effendi]

I hope not.

Ultimately, however, I'd say you have the power to prevent any consequences that are that serious, to use that term. It's up to you to ensure that the Official Languages Act is amended in part VII to give it more teeth, to provide remedies and to prevent any new decisions like the British Columbia judgment.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you, Madam.

[The Chair, Liberal, Denis Paradis]

Thank you, Mr. Clarke.

Mr. Rioux, you have the floor.

[Jean Rioux, Saint-Jean, Lib.]

Thank you, Mr. Chair.

Ms. Effendi, thank you for being here and for speaking so eloquently this morning.

I'm a member from Quebec. No one in my province has any problem appearing before a court or obtaining legal services in French.

In Ontario, I believe the more than 600,000 Franco-Ontarians can obtain the services of a French-speaking lawyer without a problem. However, what about the courts and the judiciary? Is it easy to get a fair trial in French and to find a judge who speaks that language? Is there a list of francophone judges?

[Nadia Effendi]

I'd say a lot of improvements have been made to Ontario's justice system in recent years. A lot more bilingual people are being appointed to the judiciary. Could more improvements be made? Absolutely. Improvements can always be made. No doubt about that.

Does it cause delays when someone requests a trial in French? I'd be lying to you if I said no. It obviously does. If an English case is assigned to me, it'll be a lot easier to present that case in court, and much faster than a French case. That's obviously the fact of the matter.

It's not just as a result of the availability of bilingual judges, who aren't as numerous as unilingual anglophone judges. It's also determined by the staff of the courts. There are obviously fewer bilingual personnel. That's the way it is.

I recently read that Franco-Ontarians make up nearly 5% of the population of Ontario. However, French cases don't make up 5% of the caseload at the Court of Appeal for Ontario. This shows that francophones decide to appear in English, and they probably do so for one reason: they can't find a bilingual or francophone lawyer. Perhaps they simply prefer to appear in English because they don't want to wait years to have their case heard.

There are definitely deficiencies, and we're working to address them. One of the active committees studying this issue in Ontario is the French Language Services Bench and Bar Advisory Committee, the advisory committee of Judge Rouleau. Judge Rouleau was appointed by the Attorney General of Ontario specifically to examine this question and to determine whether measures could be put in place to improve the situation.

[Jean Rioux]

Thank you.

Let's talk about the Université de l'Ontario français in Toronto. The university already has an enabling statute and therefore exists on paper. The legislator can obviously amend an act. However, are there any coercive elements in the act that would require the process to be allowed to follow its course?

Could the Canadian government fund the university directly, without going through the provincial government, even though that wouldn't be desirable because it would release Ontario from its responsibility?

Lastly, I have a question concerning all federal government properties in Canada. Could the federal government dispose of properties it owns without going through the province? That's a situation that has arisen in the Vancouver area.

[Nadia Effendi]

I'd like to start by saying that the AJEFO's mandate focuses on access to justice in French. Our primary concerns are therefore related to the announcement concerning the Office of the French Language Services Commissioner.

However, we don't really have an education mandate, even though we work in the education sector and are involved in justice camps. Nevertheless, Mr. Rioux, I'd like to try to help you and this committee with regard to the university. I would say the following.

I haven't examined the act establishing the Université de l'Ontario français in detail, but one thing is clear. The institutions of all the minority communities in Ontario and the rest of Canada are really central to those communities. That's really what enhances the identity of those communities. When one of their institutions is eliminated, it directly affects the core and advancement of those francophone communities. That principle was very clearly confirmed by the Court of Appeal for Ontario in the case concerning Montfort Hospital, for example, which is a central institution for the community.

I think you have to be careful. I know you've heard about the Assemblée de la francophonie de l'Ontario. Various committees are currently looking into this matter to determine whether eliminating that institution is actually critical and whether legal remedies are possible.

You have unlimited leeway regarding federal government funding for the university. The federal government has an opportunity here to consider this matter further, whether as part of an action plan or of another program. The university would clearly have an impact on the Franco-Ontarian community, but also on the rest of Canada, for francophones who may wish to go and study in a province other than their own.

That's one thing to look at. It's at the federal government's discretion. You probably have virtually unlimited funding powers.

Lastly, I'd say the disposal of properties isn't my field of expertise. I wouldn't want to venture too far and suggest what the government can or can't do. That's obviously a very broad issue. Perhaps the government should examine a specific case.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Rioux.

We will continue with Mr. Choquette.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

Thank you for being here, Ms. Effendi.

I'd like to continue on the Montfort Hospital case, which you cited to illustrate how minority francophones can defend themselves in the courts, if necessary. What was the main argument that convinced the Court of Appeal for Ontario to reverse the closure of Montfort Hospital?

[Nadia Effendi]

In that case, as you'll remember, the provincial government of the time had conducted a study and decided to close Montfort Hospital for funding reasons. The Court of Appeal for Ontario rejected that decision and stated that the government and Ontario's Health Services Restructuring Commission had to consider the constitutional role Montfort Hospital played as a francophone institution essential to enhancing the identity of the Franco-Ontarian cultural minority.

The court further confirmed the vital role that institution played in the survival of the Franco-Ontarian minority. In other words, the elimination of the Franco-Ontarian community's gains or institutions would result in its erosion.

Lastly, the court confirmed that the government could not justify eliminating the hospital, an institution protected by the French Language Services Act, on financial or administrative grounds.

[François Choquette, NDP, Drummond, QC]

If I understand correctly, in light of what you just said, the transformation of the Office of the French Language Services Commissioner stripped it of its independence. The initial argument was economic in nature. The worst part of all this is that what's happening with the commissioner's office will save only $50,000 or $100,000, which is ridiculous. Sorry, I'm saying it because I can afford to. The economic argument doesn't hold up.

In a way, by stripping it of its independence, the government, as you said, is eroding gains that were entrenched in the French Language Services Act, which has been around for 30 years. It's also eroding the Université de l'Ontario français file, since the university already exists, its board has been in place for a few years, and it's developing programs. It even has an option, until January 8, to lease premises, an urgent matter, and has enough money to pay its present staff until January 15.

In your opinion, is this situation comparable to that of Montfort Hospital? Do you think there's a chance of going to court and winning using the same arguments?

[Nadia Effendi]

There are definitely principles that could justify a lawsuit. However, I can't venture an opinion on its chances of success in either the Office of the Commissioner case or that of the university. The decision would be up to the courts.

One thing is certain. Both the Court of Appeal for Ontario and the Supreme Court of Canada have confirmed that the protection of francophone minorities in Canada is an underlying constitutional principle. I know I'm repeating myself, but I'm doing it because this is fundamentally important. Everyone thought this was an established gain, which makes this kind of decision all the more surprising and shocking.

Based on that principle and the judgment in the Monfort Hospital case, in which the Court of Appeal for Ontario held that the elimination of a fundamental institution actually altered or eroded an entire community, we could definitely advance legal arguments in support of the two cases you mentioned.

Going back to the Office of the French Language Services Commissioner, you really must bear in mind the exact nature of the problem in that case. First of all, the government wanted to abolish the office, which was established barely 10 years ago. Then it decided it wouldn't abolish it but would attach it instead to the Office of the Ontario Ombudsman. The government claims we have no grounds for concern because the commissioner will have the same powers. However, as you recently heard, there's a problem: Mr. Dubé, the ombudsman, confirmed that his role was to investigate, not advance or defend the Franco-Ontarian community. Remember that the French language services commissioner had two roles: to investigate on his own initiative or in response to a complaint and to promote French-language services, in addition to advising and monitoring the government on such matters. We're concerned about what we see in the bill as an erosion of the commissioner's mandate.

[François Choquette, NDP, Drummond, QC]

In closing, I'd like to ask a question about the modernization of the Official Languages Act.

Our committee prepared a report on access to justice that contains several recommendations. One of them was that the Liberal government introduce, before the end of its mandate, a bill requiring Supreme Court judges to be bilingual.

What's your position on that matter?