T-2062-96
Pierre Devinat (Applicant)
v.
Immigration and Refugee Board (Respondent)
and
Commissioner of Official Languages (Intervenor)
Indexed as: Devinatv. Canada (Immigration and Refugee Board) (T.D.)
Trial Division, Nadon J."Ottawa, November 26, 1997 and May 1, 1998.
Official languages — Immigration and Refugee Board's (IRB) policy of not translating most decisions into other official language but providing translation if requested not meeting obligation imposed by Official Languages Act, s. 20 — Budget cuts no excuse for failure to discharge statutory duty — However, Federal Court Act, s. 18.1 not available to challenge policy.
Federal Court jurisdiction — Trial Division — Immigration and Refugee Board's (IRB) policy of not translating most decisions into other official language but providing translation if requested not —decision— within meaning of Federal Court Act, s. 2 — Furthermore, in context of Official Languages Act, —federal board, commission or other tribunal— Commissioner of Official Languages, not IRB — Therefore, F.C.T.D. without jurisdiction to hear Federal Court Act, s. 18.1 application for judicial review against IRB challenging Board's —official languages— policy.
Administrative law — Judicial review — Mandamus — Immigration and Refugee Board's (IRB) policy of not translating most decisions into other official language but providing translation if requested not —decision— within meaning of Federal Court Act, s. 2 — Furthermore, in context of Official Languages Act, —federal board, commission or other tribunal— Commissioner of Official Languages, not IRB — Therefore, F.C.T.D. without jurisdiction to hear Federal Court Act, s. 18.1 application for judicial review challenging IRB's —official languages— policy.
The basic "official languages" policy of the Immigration and Refugee Board (IRB), aiming to keep the translation costs down, was to provide the translation of its decisions on request only. The respondent did not publish the full text of its decisions in a reporter, but it did make its decisions and the edited reasons for decisions rendered following in camera hearings available to members of the public who requested them. A translation of the decisions into the other official language was available on request within 72 hours. The respondent also published digests of some if its decisions in its publication, RefLex. The digests are bilingual, and the decisions were available in their original official language in any of the IRB's regional documentation centres. Translations were also available within 72 hours. Finally, the respondent provided the Quicklaw database with the full text of the CRDD decisions referred to in RefLex and all of the Immigration Appeal Division decisions for which reasons were given.
The applicant filed a complaint with the Commissioner of Official Languages concerning the respondent's failure to comply with section 20 of the Official Languages Act (OLA) which requires federal courts to make their final decisions available either simultaneously in both official languages or, where they are released in only one of the official languages, in the other official language at the earliest possible time.
The Commissioner recommended that IRB decisions selected for publication (in bilingual digest form in IRB's publication entitled RefLex) include a reference to the availability of a translation upon request, and that any decision identified for inclusion in the Quicklaw database, relating to a question of general public interest or importance, be available simultaneously in both official languages. The applicant nevertheless applied for judicial review based on subsection 18.1(3) of the Federal Court Act, seeking a writ of mandamus requiring the IRB to translate into the other official language all its past and future decisions on the ground that the IRB was failing to discharge the duties imposed upon it by section 20 of the OLA. The Commissioner of Official Languages was given leave to intervene.
The first issue related to the availability of mandamus herein. The Court had to determine whether it had jurisdiction to hear and decide questions relating to compliance with section 20 of the OLA and whether the applicant had standing. The second issue concerned the interpretation and application of section 20: the scope of the duty provided therein, and whether the IRB had discharged that duty.
Held, the application should be dismissed.
The parties acknowledged that subsection 77(1) of the OLA, which confers jurisdiction on this Court, was of no assistance to the applicant since the complaint was made under section 20 of the OLA. The applicant therefore chose to proceed by an application under section 18.1 of the Federal Court Act (FCA). However, the applicant could not proceed under section 18.1 to obtain a writ of mandamus against the IRB. Subsection 77(5) of the OLA did not confer any new right of action on the applicant. It allowed the applicant only to keep or exercise any right of action or remedy when it is relied on in proceedings other than proceedings under the OLA. If the applicant can make an application under section 18.1 of the FCA, that application must relate to the exercise by the federal board, commission or other tribunal (here the IRB) of jurisdiction or powers conferred on it by or under an Act of Parliament. However, the IRB's decision not to translate all its decisions unless a translation is specifically requested was not reviewable by this Court under section 18.1. The IRB's decisions against which an application for judicial review can be made to the Federal Court under section 18.1 are those which relate to an individual's immigration or refugee status. Furthermore, the OLA does not confer any jurisdiction or power on the IRB. In the context of the OLA, it is the Commissioner of Official Languages who is the federal board, commission or other tribunal within the meaning of subsection 2(1) of the FCA. There can be no doubt that under section 18.1, the applicant could have challenged the Commissioner's decision on his complaint about the IRB's failure to comply with section 20 of the OLA. Given this conclusion, it was unnecessary to determine whether the applicant had the necessary standing to file an application for judicial review under section 18.1.
Given that this order may be appealed, certain observations on the interpretation and application of section 20 of the OLA might be made. That section provides that decisions, orders and judgments of all federal courts, including the respondent tribunal, must be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language. Subsection 20(1) provides that where the decision, order or judgment determined a question of law of general public interest or importance or the proceedings leading to its issuance were conducted in whole or in part in both official languages, it must be made available simultaneously in both languages. However, if this would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings, the "earliest possible time" rule applied.
The respondent was not discharging the duty imposed by section 20 of the OLA. The on-request translation policy did not meet the "earliest possible time" requirement, since it meant that most decisions would never be issued in the other official language. If Parliament had wanted federal courts to have an on-request translation policy, it could have so specified. Although there was evidence the IRB had been exceeding its translation envelope allocated by the governments central translation service and that its envelope had been reduced, budget cuts were not a valid reason for failing to discharge a statutory duty.
statutes and regulations judicially considered
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1), 18.1 (as enacted idem , s. 5).
Immigration Act, R.S.C., 1985, c. I-2, ss. 57 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 47), 67 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 69 (as am. idem; S.C. 1992, c. 49, s. 59), 70 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 65; 1995, c. 15, s. 13), 71 (as am. by S.C. 1995, c. 15, s. 14), 77 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 33; S.C. 1992, c. 49, s. 68; 1995, c. 15, s. 15), 80 (as am. by S.C. 1992, c. 49, s. 70).
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 3(2), 4, 5, 6, 7, 10, 11, 12, 13, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 77, 80, 91.
APPLICATION for judicial review, based on paragraph 18.1(3)(a) of the Federal Court Act, seeking a writ of mandamus requiring the Immigration and Refugee Board (IRB) to translate into the other official language all its past and future decisions on the ground that the IRB was failing to discharge the duties imposed on it by section 20 of the Official Languages Act. Application dismissed.
counsel:
J. François Lemieux for respondent.
Daniel L. Mathieu for intervenor.
appearance:
Pierre Devinat on his own behalf (in his capacity as applicant).
solicitors:
Osler, Hoskin & Harcourt, Ottawa, for respondent.
Legal Services, Commissioner of Official Languages, Ottawa, for intervenor.
applicant on his own behalf:
Pierre Devinat, Hull, Quebec (in his capacity as applicant).
The following is the English version of the reasons for order rendered by
Nadon J.: This application for judicial review is based on paragraph 18.1(3)(a) of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5]. The applicant is seeking a writ of mandamus requiring the respondent Immigration and Refugee Board (IRB) to translate into the other official language all the decisions it has made since it was established and all the decisions it will make in the future on the ground that the IRB is failing to discharge the duties imposed on it by section 20 of the Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31 (OLA). The Commissioner of Official Languages (the Commissioner) was given leave to intervene in this case.
The facts on which this application is based are as follows: in 1995, the applicant Pierre Devinat tried to obtain the French version of some IRB decisions and learned that the French version was available only on request.
On June 7, 1995, the applicant filed a complaint with the Commissioner concerning the respondent's failure to comply with section 20 of the OLA. On July 13, 1995, the chairperson of the IRB received a letter from the Commissioner dated July 10, 1995 informing her that he intended to investigate the applicant's complaint.
On August 26, 1996, the Commissioner submitted a draft of his investigation report to the parties for their consideration. The draft included the following recommendations for the IRB:
I therefore recommend that:
1) IRB decisions selected for publication include a reference to the availability of a translation upon request, and;
2) any decisions identified for inclusion in the Quicklaw database, relating to a question of law of general public interest or importance, be available simultaneously in both official languages.
To properly understand the nature and scope of the Commissioner's recommendations, it is necessary to provide an overview of the IRB's policy on the translation of its decisions at the time the applicant filed his complaint. That policy was described by Robert Desperrier, Acting Director, Communications, of the IRB in Ottawa, in paragraphs 16 to 28 of his affidavit dated May 13, 1997, which was filed by the respondent in support of its arguments:
[translation]
16. The IRB puts out a publication entitled RefLex 22 times a year. It contains bilingual digests of recent decisions by the IRB, the Federal Court and the Supreme Court of Canada. Exhibit D attached to this affidavit is a copy of RefLex dated March 17, 1997.
17. In 1996, 295 digests of CRDD decisions, 90 digests of IAD decisions and 1 digest of an AD decision were published in RefLex.
18. Exhibit E attached to this affidavit is a copy of the policy for selecting the decisions that will appear in RefLex. The objectives of RefLex are set out in section 2.2:
" to disseminate information on immigration and refugee law to decision-makers and staff;
" to inform decision-makers of binding decisions of the FC and SCC;
" to inform decision-makers of decisions rendered by their colleagues across the country, which may be of assistance to them and which may be referred to in their own reasons; this will further the goal of consistency in IRB jurisprudence;
" to create a bank of jurisprudence to facilitate legal research; and
" to foster a better understanding of IRB jurisprudence.
Although RefLex is also distributed outside the IRB, its main purpose is to meet the specific needs of the IRB's decision-makers and staff. The above-mentioned policy states that RefLex is used mainly as an internal communications tool: "the fact that a decision is digested in RefLex does not necessarily mean that the decision is of national significance for the IRB, although certainly some of the IRB decisions which appear in RefLex are of such a nature".
19. The full text of the IRB decisions summarized in RefLex can be consulted by the public in any of the IRB's regional documentation centres in the original official language of the decision, and a translation is available on request.
20. Moreover, the IRB provides the Quicklaw database with the full text of the CRDD decisions referred to in RefLex and all of the IAD's decisions for which reasons are given.
21. IRB hearings are held in English or French, at the election of the parties, and in the claimant's language of origin. The decisions and any reasons given therefor are communicated to the parties in the official language used at the hearing.
22. The general public can consult all IRB decisions in their original language on request and, in the case of decisions rendered following an in camera hearing, after the reasons have been edited. The public can also request a translation of any IRB decision. If a translation is requested, the IRB's policy is to provide the decision to the public within 72 hours of receiving the request, or within five days in the case of internal requests.
23. Since 1990, when the on-request translation policy was adopted, the IRB has not, as far as it knows, received any requests for translation from the general public.
24. Prior to 1994, the IRB translated some of the decisions included in the Quicklaw database. At that time, the IRB was exceeding the authorized envelope for official languages translation allocated to it by the government's central translation service. In addition, the IRB's envelope was reduced by 12 percent for the 1992-93 and 1993-94 fiscal years. Exhibit "F" attached to this affidavit is a copy of the reports on the use of the authorized envelope allocated by the Translation Bureau to the IRB for the 1993-94 and 1994-95 fiscal years.
25. Because it had exceeded its authorized translation envelope, the IRB had to reimburse the Department of the Secretary of State for $373,391.19 for 1992-93.
26. During the following year, the staff of the IRB's translation section had to find ways to eliminate this overspending and reduce translation costs. During that fiscal year, the staff reviewed the public's use of the English and French databases of IRB decisions included in Quicklaw during the 1993-94 fiscal year. We found that the French database, 80 percent of which was made up of translated decisions, was used sporadically (48.36 hours (annualized)). The English database was used for 536.76 hours (annualized). Since only a portion of the decisions provided to the databases were translated, even less use would have been made of them to consult translated decisions. Exhibit "G" attached to this affidavit is a copy of the reports on the use of the databases provided by Quicklaw for the period from August 22, 1993 to January 8, 1994.
27. For these reasons, the IRB decided to stop translating the decisions it sent to Quicklaw and to adopt the policy of translating its decisions on request.
28. As mentioned above, RefLex publishes about 380 bilingual digests of IRB decisions every year for IRB staff and the general public.
In his report dated August 26, 1996, the Commissioner also informed the parties that he had begun a study of federal tribunals and their obligations under Parts III and IV of the OLA. The Commissioner therefore notified the parties that he had suspended the aspect of his investigation relating to the translation of all IRB decisions until the study had been completed.
By letter dated October 16, 1996, the IRB answered the Commissioner, informing him of what would be done to give effect to his recommendations:
The IRB finds that both recommendations are reasonable and will implement procedures to ensure compliance. The publication RefLex will be amended to include a notice advising that it is possible to request a translation of any IRB decision, the procedure to be followed to obtain the translation and the name of the contact person. In addition, the IRB is developing criteria which will ensure that decisions relating to a question of law of general public interest or importance are made available in both official languages in the Quicklaw database.
A second draft of the Commissioner's report that took account of the parties' comments was submitted on January 16, 1997. It included the following amended recommendations:
I therefore recommend that the IRB:
1) ensure that all decisions relating to a question of law of general public interest or importance, including those selected for publication and notably those which are identified for inclusion in the Quicklaw database, be available simultaneously in both official languages, and;
2) ensure that all of its decisions include a reference concerning their availability in either official language.
In the interim, on September 17, 1996, the applicant filed his originating motion in the Federal Court. On May 5, 1997, an order was made giving the Commissioner leave to intervene in this case.
The applicant is seeking a writ of mandamus based on paragraph 18.1(3)(a) of the Federal Court Act. The first issue in this case relates to the validity of that remedy and has a number of components: the Federal Court's jurisdiction to hear and determine questions relating to compliance with section 20 of the OLA, the applicant's standing and the appropriateness of mandamus.
The second issue concerns the interpretation and application of section 20 of the Official Languages Act. The scope of the duty provided for in section 20 of that Act must first be determined, and it must then be decided whether the IRB has discharged its duty.
Validity of the remedy exercised by the applicant
To begin the analysis of the first issue, which concerns the validity of the remedy exercised by the applicant, it is appropriate to reproduce the relevant provisions of the OLA.
20. (1) Any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where
(a) the decision, order or judgment determines a question of law of general public interest or importance; or
(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.
(2) Where
(a) any final decision, order or judgment issued by a federal court is not required by subsection (1) to be made available simultaneously in both official languages, or
(b) the decision, order or judgment is required by paragraph (1)(a) to be made available simultaneously in both official languages but the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance,
the decision, order or judgment, including any reasons given therefor, shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.
(3) Nothing in subsection (1) or (2) shall be construed as prohibiting the oral rendition or delivery, in only one of the official languages, of any decision, order or judgment or any reasons given therefor.
(4) No decision, order or judgment issued by a federal court is invalid by reason only that it was not made or issued in both official languages.
. . .
77. (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part.
(2) An application may be made under subsection (1) within sixty days after
(a) the results of an investigation of the complaint by the Commissioner are reported to the complainant under subsection 64(1),
(b) the complainant is informed of the recommendations of the Commissioner under subsection 64(2), or
(c) the complainant is informed of the Commissioner's decision to refuse or cease to investigate the complaint under subsection 58(5),
or within such further time as the Court may, either before or after the expiration of those sixty days, fix or allow.
(3) Where a complaint is made to the Commissioner under this Act but the complainant is not informed of the results of the investigation of the complaint under subsection 64(1), of the recommendations of the Commissioner under subsection 64(2) or of a decision under subsection 58(5) within six months after the complaint is made, the complainant may make an application under subsection (1) at any time thereafter.
(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.
(5) Nothing in this section abrogates or derogates from any right of action a person might have other than the right of action set out in this section.
. . .
80. An application made under section 77 shall be heard and determined in a summary manner in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Court Act.
The applicant, the respondent and the intervenor acknowledged that subsection 77(1) of the OLA, which confers jurisdiction on this Court, is of no assistance to the applicant since the complaint was made under section 20, which is in Part III of the OLA, entitled "Administration of Justice". The jurisdiction conferred on the Federal Court by subsection 77(1) can be relied on only when the complaint relates to sections 4 to 7, sections 10 to 13, Part IV [sections 21-33] or V [sections 34-38] or section 91 of the OLA.
The applicant therefore chose to proceed through an application under section 18.1 of the Federal Court Act, which reads as follows:
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
(5) Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.
The applicant argued that this is the only other remedy available to him and, relying on subsection 77(5) of the OLA, maintained that it is not excluded. He also argued that he satisfies the requirements for exercising the remedy.
The respondent argued that Parliament specifically excluded some sections from the application of section 77 of the OLA and that the applicant cannot do indirectly what he cannot do directly.
The respondent's main argument was that the OLA includes a "complete code" of remedies and that each section must be considered in relation to the others. According to the respondent, the fact that subsection 77(1) allows an application for a remedy to be made to the Federal Court in respect of some sections of the OLA means that such an application cannot be made in respect of the other sections.
The respondent explained that the OLA sets out other ways of enforcing the provisions excluded from the application of subsection 77(1), inter alia through investigations by the Commissioner and reports he can table in Parliament. The relevant provisions of the OLA dealing with the complaint mechanism, investigations and the Commissioner's power to make recommendations are as follows:
56. (1) It is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society.
(2) It is the duty of the Commissioner, for the purpose set out in subsection (1), to conduct and carry out investigations either on his own initiative or pursuant to any complaint made to the Commissioner and to report and make recommendations with respect thereto as provided in this Act.
57. The Commissioner may initiate a review of
(a) any regulations or directives made under this Act, and
(b) any other regulations or directives that affect or may affect the status or use of the official languages,
and may refer to and comment on any findings on the review in a report made to Parliament pursuant to section 66 or 67.
58. (1) Subject to this Act, the Commissioner shall investigate any complaint made to the Commissioner arising from any act or omission to the effect that, in any particular instance or case,
(a) the status of an official language was not or is not being recognized,
(b) any provision of any Act of Parliament or regulation relating to the status or use of the official languages was not or is not being complied with, or
(c) the spirit and intent of this Act was not or is not being complied with
in the administration of the affairs of any federal institution.
(2) A complaint may be made to the Commissioner by any person or group of persons, whether or not they speak, or represent a group speaking, the official language the status or use of which is at issue.
(3) If in the course of investigating any complaint it appears to the Commissioner that, having regard to all the circumstances of the case, any further investigation is unnecessary, the Commissioner may refuse to investigate the matter further.
(4) The Commissioner may refuse to investigate or cease to investigate any complaint if in the opinion of the Commissioner
(a) the subject-matter of the complaint is trivial;
(b) the complaint is frivolous or vexatious or is not made in good faith; or
(c) the subject-matter of the complaint does not involve a contravention or failure to comply with the spirit and intent of this Act, or does not for any other reason come within the authority of the Commissioner under this Act.
(5) Where the Commissioner decides to refuse to investigate or cease to investigate any complaint, the Commissioner shall inform the complainant of that decision and shall give the reasons therefor.
59. Before carrying out an investigation under this Act, the Commissioner shall inform the deputy head or other administrative head of any federal institution concerned of his intention to carry out the investigation.
60. (1) Every investigation by the Commissioner under this Act shall be conducted in private.
(2) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any federal institution, the Commissioner shall, before completing the investigation, take every reasonable measure to give to that individual or institution a full and ample opportunity to answer any adverse allegation or criticism, and to be assisted or represented by counsel for that purpose.
61. (1) Subject to this Act, the Commissioner may determine the procedure to be followed in carrying out any investigation under this Act.
(2) The Commissioner may direct that information relating to any investigation under this Act be received or obtained, in whole or in part, by any officer of the office of the Commissioner appointed under section 51 and that officer shall, subject to such restrictions or limitations as the Commissioner may specify, have all the powers and duties of the Commissioner under this Act in relation to the receiving or obtaining of that information.
62. (1) The Commissioner has, in relation to the carrying out of any investigation under this Act, other than an investigation in relation to Part III, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of any matter within his authority under this Act, in the same manner and to the same extent as a superior court of record;
(b) to administer oaths;
(c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as in his discretion the Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law; and
(d) subject to such limitation as may in the interests of defence or security be prescribed by regulation of the Governor in Council, to enter any premises occupied by any federal institution and carry out therein such inquiries within his authority under this Act as the Commissioner sees fit.
(2) Where the Commissioner believes on reasonable grounds that
(a) an individual has been threatened, intimidated or made the object of discrimination because that individual has made a complaint under this Act or has given evidence or assisted in any way in respect of an investigation under this Act, or proposes to do so, or
(b) the Commissioner, or any person acting on behalf or under the direction of the Commissioner, has been obstructed in the performance of the Commissioner's duties or functions under this Act,
the Commissioner may report that belief and the grounds therefor to the President of the Treasury Board and the deputy head or other administrative head of any institution concerned.
63. (1) If, after carrying out an investigation under this Act, the Commissioner is of the opinion that
(a) the act or omission that was the subject of the investigation should be referred to any federal institution concerned for consideration and action if necessary,
(b) any Act or regulations thereunder, or any directive of the Governor in Council or the Treasury Board, should be reconsidered or any practice that leads or is likely to lead to a contravention of this Act should be altered or discontinued, or
(c) any other action should be taken,
the Commissioner shall report that opinion and the reasons therefor to the President of the Treasury Board and the deputy head or other administrative head of any institution concerned.
(2) In making a report under subsection (1) that relates to any federal institution, the Commissioner shall have regard to any policies that apply to that institution that are set out in any Act of Parliament or regulation thereunder or in any directive of the Governor in Council or the Treasury Board.
(3) The Commissioner may
(a) in a report under subsection (1) make such recommendations as he thinks fit; and
(b) request the deputy head or other administrative head of the federal institution concerned to notify the Commissioner within a specified time of the action, if any, that the institution proposes to take to give effect to those recommendations.
64. (1) Where the Commissioner carries out an investigation pursuant to a complaint, the Commissioner shall inform the complainant and any individual by whom or on behalf of whom, or the deputy head or other administrative head of any federal institution by which or on behalf of which, an answer relating to the complaint has been made pursuant to subsection 60(2), in such manner and at such time as the Commissioner thinks proper, of the results of the investigation.
(2) Where recommendations have been made by the Commissioner under subsection 63(3) but adequate and appropriate action has not, in the opinion of the Commissioner, been taken thereon within a reasonable time after the recommendations are made, the Commissioner may inform the complainant of those recommendations and make such comments thereon as he thinks proper, and shall provide a copy of the recommendations and comments to any individual, deputy head or administrative head whom the Commissioner is required under subsection (1) to inform of the results of the investigation.
65. (1) If, within a reasonable time after a report containing recommendations under subsection 63(3) is made, adequate and appropriate action has not, in the opinion of the Commissioner, been taken thereon, the Commissioner, in his discretion and after considering any reply made by or on behalf of any federal institution concerned, may transmit a copy of the report and recommendations to the Governor in Council.
(2) The Governor in Council may take such action as the Governor in Council considers appropriate in relation to any report transmitted under subsection (1) and the recommendations therein.
(3) If, within a reasonable time after a copy of a report is transmitted to the Governor in Council under subsection (1), adequate and appropriate action has not, in the opinion of the Commissioner, been taken thereon, the Commissioner may make such report thereon to Parliament as he considers appropriate.
(4) The Commissioner shall attach to every report made under subsection (3) a copy of any reply made by or on behalf of any federal institution concerned.
66. The Commissioner shall, within such time as is reasonably practicable after the termination of each year, prepare and submit to Parliament a report relating to the conduct of his office and the discharge of his duties under this Act during the preceding year including his recommendations, if any, for proposed changes to this Act that the Commissioner deems necessary or desirable in order that effect may be given to it according to its spirit and intent.
67. (1) The Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 66.
(2) The Commissioner shall attach to every report made under this section a copy of any reply made by or on behalf of any federal institution concerned.
68. The Commissioner may disclose in any report made under subsection 65(3) or section 66 or 67 such matters as in his opinion ought to be disclosed in order to establish the grounds for any conclusions and recommendations contained therein, but in so doing shall take every reasonable precaution to avoid disclosing any matter the disclosure of which would or might be prejudicial to the defence or security of Canada or any state allied or associated with Canada.
69. (1) Every report to Parliament made by the Commissioner under subsection 65(3) or section 66 or 67 shall be made by being transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling respectively in those Houses.
(2) Every report referred to in subsection (1) shall, after it is transmitted for tabling pursuant to that subsection, be referred to the committee designated or established by Parliament for the purpose of section 88.
70. The Commissioner may authorize any person to exercise or perform, subject to such restrictions or limitations as the Commissioner may specify, any of the powers, duties or functions of the Commissioner under this or any other Act of Parliament except
(a) the power to delegate under this section; and
(b) the powers, duties or functions set out in sections 63, 65 to 69 and 78.
According to the respondent, the remedy provided for in section 65 of the OLA is a means that Parliament considers effective for resolving disputes arising from the application of the sections of the OLA that are excluded from the remedy under subsection 77(1). Section 65 authorizes the Commissioner to send the Governor in Council or even Parliament a report on federal institutions that do not take appropriate action to give effect to his recommendations.
In addition, sections 66 to 69 of the OLA authorize the Commissioner to inform Parliament, in his annual report or a special report, of any matters that should be reviewed by the Standing Committee on Official Languages.
Finally, the respondent argued that subsection 77(5) of the OLA does not create any new remedies but is rather intended to preserve any right of action arising from a statute other than the OLA.
Neither the applicant nor the intervenor agreed with the respondent's arguments. Although they both admitted that subsection 77(1) is of no assistance to the applicant, they argued that by including subsection 77(5) in the OLA, Parliament indicated its intention not to exclude any other right of action or remedy.
According to the applicant and the intervenor, the Commissioner's jurisdiction to consider matters such as compliance with section 20 is not exclusive. Moreover, since the Commissioner has only the power to make recommendations, this is not a case involving an overlap of jurisdiction.
For the following reasons, it is my view that the respondent is correct in arguing that in the case at bar, the applicant cannot exercise the remedy provided for in section 18.1 of the Federal Court Act to obtain a writ of mandamus against the IRB.
The remedy that can be applied for under subsection 77(1) of the OLA is explained in section 80. The application must be heard and determined in a summary manner "in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Court Act". Those rules are the same ones applicable to applications under section 18.1 of the Federal Court Act . As stated above, Part III of the OLA, which includes section 20, cannot be brought before this Court under subsection 77(1).
In my view, subsection 77(5) of the OLA does not confer any new right of action on the applicant. Rather, it allows the applicant to keep or exercise any right of action or remedy when that right of action or remedy is relied on in proceedings other than proceedings under the OLA. In other words, the only possible remedies for any violation of the OLA's provisions are those provided for in the OLA, namely an application to the Federal Court under subsection 77(1) and a complaint to the Commissioner. Moreover, subsection 77(5) does not exclude the remedy provided for in section 18.1 of the Federal Court Act, if it is available.
Subsection 18.1(2) of the Federal Court Act provides that any application for judicial review in respect of a decision of a "federal board, commission or other tribunal" must be made within thirty days after the time the decision was communicated by the federal board, commission or other tribunal to the parties. Subsection 2(1) [as am. by S.C. 1990, c. 8, s. 1] of the Federal Court Act defines "federal board, commission or other tribunal" as follows:
2. (1) . . .
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 ;
In my view, if the applicant in these proceedings can make an application under section 18.1 of the Federal Court Act, that application must relate to the exercise by the federal board, commission or other tribunal (here the IRB) of jurisdiction or powers conferred on it by or under an Act of Parliament. In my opinion, the IRB's decision not to translate all its decisions unless a translation is specifically requested is not reviewable by this Court under section 18.1.
Section 57 of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 47)] states the following in establishing the IRB:
57. (1) The Immigration and Refugee Board, comprising three divisions, to be called the Convention Refugee Determination Division, the Immigration Appeal Division and the Adjudication Division, is hereby continued.
(2) The Board shall consist of the Chairperson of the Immigration and Refugee Board and the members of the Refugee Division, the Appeal Division and the Adjudication Division.
The IRB's mandate is to make immigration and refugee decisions in accordance with the provisions of the Immigration Act (see sections 67 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18], 69(1) [as am. by S.C. 1992, c. 49, s. 59], (2) [as am. idem], (4) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18], 70 [as am. idem; S.C. 1992, c. 49, s. 65; 1995, c. 15, s. 13], 71 [as am. by S.C. 1995, c. 15, s. 14], 77 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 33; S.C. 1992, c. 49, s. 68; 1995, c. 15, s. 15] and 80(1) [as am. by S.C. 1992, c. 49, s. 70] of the Immigration Act). In my view, it is those decisions, which relate to an individual's immigration or refugee status, against which an application for judicial review may be made to the Federal Court under section 18.1. It is those decisions that result from jurisdiction or powers conferred on the IRB by or under an Act of Parliament, namely the Immigration Act.
The OLA creates the position of Commissioner of Official Languages. It does not confer any jurisdiction or powers on the IRB. In the context of the OLA, it is the Commissioner who is the federal board, commission or other tribunal within the meaning of subsection 2(1) of the Federal Court Act. There can be no doubt that under section 18.1, the applicant could have challenged the Commissioner's decision on his complaint about the IRB's failure to comply with section 20 of the OLA.
I am therefore of the opinion that the applicant cannot rely on section 18.1 of the Federal Court Act in this case to challenge the IRB's decision not to translate all the decisions of the Convention Refugee Determination Division, the Immigration Appeal Division and the Adjudication Division into the other official language.
In view of the conclusion I have reached, it will not be necessary to determine whether the applicant had the necessary standing to file an application for judicial review under section 18.1.
Given that my decision may be appealed, I would nevertheless like to add a few comments on the interpretation and application of section 20 of the OLA.
First of all, it was admitted by each of the parties that section 20 of the OLA applies to the respondent, since it is a "federal court" within the meaning of subsection 3(2) of that Act:
3. . . .
(2) In this section and in Parts II and III, "federal court" means any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament.
The intervenor made a very helpful and, in my view, correct statement about the scope of the duty provided for in section 20 of the OLA. I will reproduce section 20 again:
20. (1) Any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where
(a) the decision, order or judgment determines a question of law of general public interest or importance; or
(b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.
(2) Where
(a) any final decision, order or judgment issued by a federal court is not required by subsection (1) to be made available simultaneously in both official languages, or
(b) the decision, order or judgment is required by paragraph (1)(a) to be made available simultaneously in both official languages but the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance,
the decision, order or judgment, including any reasons given therefor, shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.
(3) Nothing in subsection (1) or (2) shall be construed as prohibiting the oral rendition or delivery, in only one of the official languages, of any decision, order or judgment or any reasons given therefor.
(4) No decision, order or judgment issued by a federal court is invalid by reason only that it was not made or issued in both official languages.
The intervenor began by explaining that the general rule on the language of decisions, orders and judgments is found in subsection 20(2) of the OLA. The rule is that decisions, orders and judgments, including any reasons given therefor, must be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language.
Three qualifiers are associated with this general rule. First, subsection 20(2) also states that each version is effective from the time the first version is effective. Second, subsection 20(3) provides that decisions, orders and judgments and any reasons given therefor may be rendered or delivered orally in only one of the official languages. Finally, subsection 20(4) provides that no decision, order or judgment is invalid by reason only that it was not made or issued in both official languages.
There are two exceptions to this general rule, both of which are found in subsection 20(1): where the decision, order or judgment determines a question of law of general public interest or importance (paragraph 20(1)(a)) or the proceedings leading to its issuance were conducted in whole or in part in both official languages (paragraph 20(1)(b)), it must be made available simultaneously in both official languages.
The first exception includes a sub-exception: where the court is of the opinion that making the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance, the general rule"the "earliest possible time" rule"applies.
The intervenor also added the following cautionary statement: section 20 refers to decisions, orders or judgments "issued" in both official languages, not issued in one language and "translated" into the other. This means that both versions are equally authoritative.
In my view, the terms of section 20 of the OLA are clear. They require all federal courts, including the respondent, to issue their decisions, orders and judgments in both official languages at the earliest possible time in most cases or simultaneously in the cases provided for in paragraph 20(1)(a), unless this would be seriously prejudicial to the public or result in injustice or hardship to any party, and in paragraph 20(1)(b).
The question that arises is whether the IRB is discharging its duty under section 20 of the OLA.
The respondent does not publish the full text of its decisions in a reporter, but it does make its decisions and the edited reasons for decisions rendered following in camera hearings available to members of the public who request them. A translation of the decisions into the other official language is available on request within 72 hours.
The respondent also publishes digests of some of its decisions in its publication, RefLex. Those digests are bilingual, and the decisions are available in their original official language in any of the IRB's regional documentation centres. Translations are also available within 72 hours.
Finally, the respondent provides the Quicklaw database with the full text of the Convention Refugee Determination Division decisions referred to in RefLex and all of the Immigration Appeal Division decisions for which reasons are given.
The respondent argued that it is already discharging its duty under section 20 of the OLA, since decisions relating to a question of law of general public interest are made available simultaneously in both official languages and anyone can request a copy of the full text of IRB decisions in the official language in which they were issued or a translation in the other official language. It argued that the 72-hour translation policy complies with the "earliest possible time" requirement.
Moreover, further to the Commissioner's recommendations, the respondent included a "Notice to Readers" in RefLex indicating that translations of decisions are available on request and explaining the procedure to be followed. It also developed criteria for selecting the decisions that are made available simultaneously in both official languages because of their general public importance or interest.
According to the respondent, the action it has taken complies with section 20 of the OLA and is consistent with what Parliament intended in terms of efficiency, financial resources and public demand. The respondent added that the cost to the IRB of adopting a simultaneous translation policy would be enormous and needless in the circumstances, given the large number of decisions and the low public demand.
Neither the applicant nor the intervenor agreed with the respondent's arguments. In their submission, section 20 does not impose a duty that courts can define themselves based on their own administrative criteria. They do not have a discretion to determine which decisions must be translated or to decide that some decisions will never be issued in both official languages unless a member of the public so requests. Moreover, the on-request translation policy takes no account of members of the public who speak only one language and are not able to determine whether they should request a translation.
In my view, the respondent is not discharging the duty provided for in section 20 of the OLA. The on-request translation policy does not meet the "earliest possible time" requirement, since it means that most decisions will never be issued in the other official language. If Parliament had wanted federal courts to have an on-request translation policy, it could have so specified.
Budget cuts are not a valid reason for not discharging a statutory duty, any more than the fact that the IRB is the administrative tribunal that renders the greatest number of decisions in this country. The OLA is clear, and the only finding I can make is that the respondent is not complying with it.
In conclusion, the applicant in this case cannot exercise the remedy provided for in section 18.1 of the Federal Court Act to challenge the IRB's refusal to translate the decisions of the Convention Refugee Determination Division, the Immigration Appeal Division and the Adjudication Division into the other official language unless a translation is requested. Accordingly, the applicant's application for judicial review will be dismissed.