However, when, in the same Act, Parliament uses the word “measures” sometimes with the article “les” [in the French text], sometimes with the qualifiers “possible”, “appropriate” or “necessary”, sometimes with the adjective “all”, one cannot ignore the fact that in subsection 41(2) Parliament was content to speak of “positive measures” to be taken by federal institutions, with the indefinite article “des” and the qualifier “positives” [in the French text], without providing further clarification or restrictions. Parliament does not say “necessary measures”; it does not say “appropriate measures”; it does not say “all possible measures.” Clearly, the text of the Act reveals that the expression “positive measures” does not mean the same thing as these other types of measures. It clearly does not have the same attributes of comprehensiveness, necessity, precision or sufficiency found elsewhere in the OLA.
You can see from this the degree to which the judge went through a word-by-word analysis of the articles and verb tenses that were used. It is nothing if not meticulous, and it came as a bit of a shock to both the Office of the Commissioner of Official Languages and the other intervenors.
I will not go through all of Judge Gascon's extremely detailed arguments, except to note that in paragraph 216 he states flatly, “In short, section 41 does not impose specific and particular duties on federal institutions.” In his conclusion, in paragraph 293, he states that the “scope of the duty contained in section 41 is hamstrung by the absence of regulations” and ”the remedies sought by the FFCB and the Commissioner are not supported in the current Act, as drafted, structured and implemented.”
As I say, the decision is being appealed at the Federal Court of Appeal by the commissioner. However, as legislators you are under no obligation to wait for the outcome of the appeal process. The courts interpret the intention of the legislator as expressed in legislation, and it is for you to make your intention clear.
Judge Gascon has challenged me, my predecessors and successors, and you, as legislators, arguing that our hopes and expectations for part VII were more a matter of wishful thinking than binding obligations.
While I hope that the appeal courts disagree, agree with Mr. Théberge, and overturn the Federal Court's decision, you are in a position to respond by ensuring that in modernizing the act you make your intentions as legislators clear and erase any incoherence or ambiguity, so that the obligations to take positive measures are binding and clear.
I'll limit my remarks to those and will not repeat the points that I made before the committee in the other place. However, I am happy to answer any questions you may have.