Supreme Court of Canada
Attorney General of Quebec v. Blaikie et al., [1981] 1 S.C.R. 312
Date: 1981-04-06
The Attorney
General of the Province of Quebec (Defendant) Appellant;
and
Peter M. Blaikie,
Roland Durand and Yoine Goldstein (Plaintiffs) Respondents;
and
The Attorney
General of Canada (Intervenor) Respondent;
and
The Attorney
General of Manitoba, the Attorney General of New Brunswick and Georges
Forest Intervenors.
The Attorney
General of the Province of Quebec (Defendant) Appellant;
and
Henri Wilfrid
Laurier (Plaintiff) Respondent;
and
The Attorney
General of Canada (Intervenor) Respondent;
and
The Attorney
General of Manitoba, the Attorney General of New Brunswick and Georges
Forest Intervenors.
1980: November 26 and 27 (rehearing); 1981:
April 6.
Present: Laskin C.J. and Martland, Ritchie,
Dickson, Beetz, Estey and McIntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
QUEBEC
Constitutional law—Application of
s. 133 B.N.A. Act to regulations adopted by the government, municipal and
school by-laws, regulations of the civil administration and of semi‑public
agencies and to rules of practice of the courts—Charter of the French Language,
R.S.Q. 1977, c. C-11, ss. 7 to 13—B.N.A. Act, ss. 92(8), 93, 129, 133—Supreme
Court Rules, rule 61.
Following the dismissal on December 13, 1979
of appellant’s appeal from two judgments of the Quebec Court of Appeal,
affirming two judgments of the Supe-
[Page 313]
rior Court by which Deschênes C.J.S.C. held ultra
vires the Legislature of Quebec ss. 7 to 13 of the Charter of the French
Language, appellant requested a rehearing to obtain a declaration as to the
scope of s. 133 of the B.N.A. Act regarding delegated legislation.
The question presented is as follows: “Does s. 133 of the British North
America Act apply to regulations or orders of statutory bodies or
regulations or by-laws of municipalities and school boards … as distinct from
orders in council and ministerial orders or regulations which were in issue in
the appeal to this Court and which under the judgment of this Court of December
13, 1979 were held to be within the terms of s. 133?”
Held: Section
133 of the British North America Act applies to regulations which
constitute delegated legislation and to rules of practice enacted by the courts
and quasi‑judicial tribunals. It does not apply to municipal or school
bodies by-laws.
(1) Regulations enacted by the government:
legislative powers delegated by the Legislature to the proper constitutional
body, the government of the province, must be viewed as an extension of the
legislative power of the Legislature, and accordingly the enactments of the
government under such delegation must be considered the enactments of the
Legislature for the purposes of s. 133. A large and important part of the
laws in force consists of regulations made by the Executive, and the
requirements of s. 133 of the B.N.A. Act would be truncated should
this section be construed so as not to govern such regulations.
Regulations enacted by the government to alter regulations made by a
subordinate body must also be included in this class.
(2) By-laws of municipal bodies: these are
not covered by s. 133. Municipal corporations have been in existence since
long before Confederation, and the language of municipal by-laws has been
expressly regulated by the Legislature. Since Confederation, the Legislature
has never entertained any doubt about its power to regulate this matter. Since
the provinces were explicitly given the power to make laws relating to
municipal institutions by s. 92(8) of the B.N.A. Act, the absence
of any reference to them in s. 133 cannot be viewed as an oversight if the
intent of the Fathers of Confederation is to be respected. Much the same can be
said about regulations of school bodies, especially as in the area of education
the safeguards provided by s. 93 are of a religious, not of a linguistic
nature. The fact that the municipal by-laws may be subject to the approval or
disallowance of the government does not alter their municipal character nor
[Page 314]
the constitutional intent to subtract them
from the operation of s. 133.
(3) Other regulations: with regard to the
regulations of the civil administration and of semi-public agencies
contemplated by the Charter, it is the connection between the
Legislature and delegated legislation which is the decisive factor in so far as
their being subject to s. 133 is concerned, as is the case with government
regulations. Whenever these regulations are made subject to the approval of the
government, they are assimilated to the enactments of the government and so
become subject to s. 133. Regulations which are subject to disallowance by
the government are different: they have an independent life of their own and
probably are fully effective for the period preceding their disallowance.
(4) Court rules of practice: they are subject
to s. 133. Historically, since 1774, it seems clearly that court rules of
practice have been published in both languages, and the draftsmen of the B.N.A.
Act must have felt that they were subject to s. 133 by necessary intendment,
the point being not so much that rules of practice partake of the legislative
nature of the Code of Civil Procedure of which they are the complement,
but by reason of the judicial character of their subject-matter.
Attorney General of Quebec v. Blaikie et
al., 1979 CanLII 21 (SCC), [1979] 2 S.C.R. 1016; Liquidators of the
Maritime Bank of Canada v. Receiver General of New Brunswick, [1892] A.C.
437; Trustees of the Roman Catholic Separate Schools for the City of Ottawa
v. Mackell, [1917] A.C. 62; Attorney General for Ontario v. Attorney
General for Canada, [1896] A.C. 348; North Coast Air Services Ltd. v.
Canadian Transport Commission, 1968 CanLII 97 (SCC), [1968] S.C.R. 940; Wilson v. Esquimalt
and Nanaimo Ry. Co., [1922] 1 A.C. 202, referred to.
DECLARATION on the scope of s. 133 of
the B.N.A. Act regarding delegated legislation, following a judgment of
this Court of December 13, 1979.
Henri Brun, Louis Crête and Odette
Laverdière, for the appellant.
A. Ken Twaddle, Q.C., for the intervenor
the Attorney General of Manitoba.
A. Brossard, Q.C., for the respondents
Peter M. Blaikie et al.
David Wood, for the respondent Henri
Wilfrid Laurier.
[Page 315]
Raynold Langlois, James Mabbutt and André
Asselin, Q.C., for the respondent the Attorney General of Canada.
Alain J.J. Hogue and M.B. Nepon, for the
intervenor Georges Forest.
THE COURT—On December 13, 1979, this Court dismissed appellant’s appeal from two
judgments of the Quebec Court of Appeal
affirming two judgments of the Superior Court whereby Deschênes C.J.S.C.,
granted to plaintiffs Blaikie, Durand and Goldstein in one case and to
plaintiff Laurier in the other a declaration that Chapter III of Title I (ss. 7
to 13) of the Charter of the French Language, 1977 (Que.), c. 5, now
R.S.Q. 1977, c. C-11, (the Charter), was wholly ultra vires of
the Legislature of Quebec. Deschênes C.J.S.C., held that ss. 7 to 13 of the Charter
violated s. 133 of the British North America Act, 1867, (the B.N.A.
Act), which section he found to be beyond the competence of the
Legislature to amend.
Section 133 reads:
133. Either
the English or the French Language may be used by any Person in the Debates of
the Houses of the Parliament of Canada and of the Houses of the Legislature of
Quebec; and both those Languages shall be used in the respective Records and
Journals of those Houses; and either of those Languages may be used by any
Person or in any Pleading or Process in or issuing from any Court of Canada
established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of
the Legislature of Quebec shall be printed and published in both those
Languages.
The provisions of the Charter declared ultra
vires include the following:
7. French is
the language of the legislature and the courts in Quebec.
9. Only the
French text of the statutes and regulations is official.
[Page 316]
10. An
English version of every legislative bill, statute and regulation shall be
printed and published by the civil administration.
“Regulations” is not defined in the Charter.
Section 98 and the Annex of the Charter read
as follows:
98. The
various agencies of the civil administration, and the health services and
social services, the public utility firms and the professional corporations
referred to in this act are listed in the Schedule.
SCHEDULE
A. The
civil administration.
1. The Government and the government
departments.
2. The government agencies:
Agencies to which the Government or a minister
appoints the majority of the members, to which, by law, the officers or
employees are appointed or remunerated in accordance with the Civil Service Act
(1965, 1st session, chapter 14), or at least half of whose capital stock or
resources are derived from the consolidated revenue fund except, however,
health services and social services, general and vocational colleges and the
Université du Québec.
3. The municipal and school bodies:
(a) the urban communities:
The Quebec Urban Community, the Montreal
Urban Community and the Outaouais Regional Community, the Quebec Urban
Community Transit Commission, the Greater Québec Water Purification Board, the
Montreal Urban Community Transit Commission, the Outaouais Regional Community
Transit Commission, the Outaouais Development Corporation, the City of Laval
Transit Commission and the Montreal South Shore Transit Commission;
(b) the municipalities:
The city, town, village, country and county
corporations, whether incorporated under a general law or a special act, and
the agencies under the jurisdiction of such corporations which participate in
the administration of their territory;
[Page 317]
(c) the school bodies:
The regional school boards, the school
boards and the corporations of school trustees governed by the Education Act
(Revised Statutes, 1964, chapter 235), the School Council of the island of
Montreal.
4. The health services and the social services:
Establishments within the meaning of the
Act respecting health services and social services (1971, chapter 48).
B. Semipublic
agencies
1. Public utility firms:
If they are not already government
agencies, the telephone, telegraph and cable‑delivery companies, the air,
ship, autobus and rail transport companies, the companies which produce,
transport, distribute or sell gas, water or electricity, and business firms
holding authorizations from the Transport Commission.
2. Professional corporations:
The professional corporations listed in
Schedule I to the Professional Code (1973, chapter 43) under the designation
«professional corporations», or established in accordance with that Code.
In holding that s. 133 of the B.N.A. Act
applied to delegated legislation, Deschênes C.J.S.C., whose reasons for
judgment were adopted by the Court of Appeal and by this Court, did not
undertake to define the extent of the delegated legislation affected. But in
his reasons for judgment, at p. 47, he explicitly mentioned the
legislative power delegated by the Legislature to the Lieutenant-Governor in
Council.
The subject of delegated legislation was barely
touched upon in this Court during the first hearing. Severability was mentioned
in general terms but no allusion was made, either in oral or written argument,
to the possibility that orders of statutory bodies or by-laws of municipalities
and school bodies might be considered as delegated legislation with respect to
the application of s. 133. This Court did not attempt to define the
expression either. However, at p. 1021 of its reasons, it indicated that
it was concerned solely with the impugned provisions of the Charter.
[Page 318]
Appellant applied for a rehearing pursuant to
rule 61 of this Court to obtain a pronouncement on the reach of s. 133 of
the B.N.A. Act with respect to delegated legislation. On March 27, 1980,
a rehearing was ordered in the following terms:
The appellant, the Attorney General of
Quebec, having applied for a rehearing to resolve issues said to arise out of
certain provisions in Chapter III of Title I of the Charter of the French
Language, 1977 (Que.) ch. 5, although not raised on the hearing of the
appeal, and the respondents Blaikie, Durand and Goldstein consenting as do the
intervenors the Attorney General of Canada and the Attorney General of New
Brunswick, and the respondent Laurier and the intervenors the Attorney General
of Manitoba and Georges Forest taking no position, it is ordered that a
rehearing take place, limited to the following question:
Does s. 133 of the British North
America Act apply to regulations or orders of statutory bodies or
regulations or by-laws of municipalities and school boards (in so far as they
come within ss. 9 and 10 of Chapter III of Title I of the Charter of the
French Language), as distinct from orders in council and ministerial
orders or regulations which were in issue in the appeal to this Court and which
under the judgment of this Court of December 13, 1979 were held to be within
the terms of s. 133?
The Attorney General of New Brunswick did not
take part in the rehearing.
Respondents Blaikie, Durand and Goldstein did
not file any factum but their counsel adopted the general position of the
Attorney General of Manitoba and, alternatively, the position of the Attorney
General of Canada.
In the course of the rehearing, members of the
Court were provided with a tentatively exhaustive list of over one hundred
provincial boards, councils, committees, commissions, tribunals, courts, corporations
and other institutions or bodies and classes of institutions or bodies
empowered by provincial statutes to enact regulations, rules, by-laws or other
enactments of a legislative nature.
[Page 319]
Given the fact that some of these classes comprise
several hundred institutions or bodies, such as town councils, there would
appear to be just in the Province of Quebec well over two thousand lawmaking
agencies other than the Legislature. These range from the provincial Government
itself at one end to municipal councils and school boards at the other, with
dozens of boards or other bodies in between.
The phenomenal growth of delegated legislation
since 1867 is illustrated by some relatively recent figures: in 1975, 1976 and
1977, a yearly average of over 700 enactments of a legislative nature, other
than statutes, have been published in the Quebec Official Gazette; these
do not include innumerable by-laws enacted by municipal authorities: Gilles
Pépin, “Le pouvoir réglementaire et la Charte de la langue française”, (1978)
13 R.J.T. 107, at p. 109.
It must be emphasized that regulations or orders
in issue in the case at bar are regulations or orders which constitute
delegated legislation properly so called and not rules or directives of
internal management.
I Regulations enacted by the Government
Appellant and the Attorney General of Manitoba
conceded, properly so in our view, that s. 133 of the B.N.A. Act applies
to enactments of a legislative nature issued by the Government of the province,
including enactments issued by a group of ministers being members of the
Government, such as the “Conseil du Trésor” (Treasury Board) (Financial
Administration Act, R.S.Q. 1977, c. A-6, s. 18) or by a minister.
The provincial executive power is vested in the
Queen (Liquidators of the Maritime Bank of Canada v. Receiver General of New
Brunswick) represented
by the Lieutenant-Governor (B.N.A. Act, s. 58) whose office is beyond
the competence of the Legislature to modify (B.N.A. Act, s. 92(1)).
[Page 320]
The Lieutenant-Governor is part and parcel of
the Legislature (B.N.A. Act, s. 71; Legislature Act, R.S.Q. 1977,
c. L-1, s. 1). He appoints members of the Executive Council and ministers
(B.N.A. Act, s. 63; Executive Power Act, R.S.Q. 1977, c. E-18,
ss. 3 to 5) and these, according to constitutional principles of a customary
nature referred to in the preamble of the B.N.A. Act as well as in some
statutory provisions (Executive Power Act, R.S.Q. 1977, c. E‑18,
ss. 3 to 5, 7, 11(1); Legislature Act, R.S.Q. 1977, c. L-1, s. 56(1)),
must be or become members of the Legislature and are expected, individually and
collectively, to enjoy the confidence of its elected branch. There is thus a
considerable degree of integration between the Legislature and the Government.
The Government of the province is not a body of
the Legislature’s own creation. It has a constitutional status and is not
subordinate to the Legislature in the same sense as other provincial
legislative agencies established by the Legislature. Indeed, it is the Government
which, through its majority, does in practice control the operations of the
elected branch of the Legislature on a day to day basis, allocates time, gives
priority to its own measures and in most cases decides whether or not the
legislative power is to be delegated and, if so, whether it is to hold it
itself or to have it entrusted to some other body.
Legislative powers so delegated by the
Legislature to a constitutional body which is part of itself must be viewed as
an extension of the legislative power of the Legislature and the enactments of
the Government under such delegation must clearly be considered as the
enactments of the Legislature for the purposes of s. 133 of the B.N.A.
Act.
It is true that the above-mentioned conventions
of the Constitution were well-established in 1867 and the delegation of
legislative powers to the Executive was not then unknown. But such delegation
was used sparingly and almost by way of exception. The exception has now become
the rule in some matters to the point where a large and important part of the
laws in force in the Province
[Page 321]
consists of regulations made by the Executive. The requirements of s. 133 of the B.N.A.
Act would be truncated, as was said by this Court at p. 1027 of its
reasons, should this section be construed so as not to govern such
regulations.
Regulations enacted by the Government to alter
regulations made by a subordinate body must also be included in this class.
This was not conceded by the Attorney General of Quebec. But there is no valid
reason for distinguishing such regulations from ordinary Government
regulations. (There would appear to be very few regulations of this type under
statutes now in force in Quebec.)
II Municipal and school bodies by-laws
It was submitted by the appellant and the
Attorney General of Manitoba and, subject to certain reservations, conceded by
the Attorney General of
[Page 322]
Canada but not by respondent Laurier and
intervenor Forest, that s. 133 of the B.N.A. Act does not apply to
municipal and school bodies by-laws.
In our opinion, this submission is well founded
in history and in law and must be acceded to.
Municipal corporations have been in existence
since long before Confederation, with power to make regulations of a local
nature. Unlike the language of the Legislature, the language in which these
regulations were to be made and published does not appear to have been the
subject of controversy. But it could not escape being in the minds of the
Fathers of Confederation since any linguistic issue was a sensitive one and the
language of municipal by-laws in Lower Canada had been expressly regulated by
the Legislature before Confederation.
For instance, An Act to incorporate the Town
of Joliette (1863 (Can.), c. 23, s. 43) provided that by-laws be
published only in French (see Claude-Armand Sheppard, The Law of Languages
in Canada, 1971, 10th Study of the Royal Commission on Bilingualism and
Biculturalism, at pp. 229 et reg.).
More importantly, the first subsection of
s. 10 of An Act respecting Municipalities and Roads in Lower Canada (C.S.L.C.
1860, c. 24) provided for the publication of by-laws by municipal councils.
Subsection 2 of s. 10 read in part as follows:
2. In
parishes, the council shall also publish all by-laws, by causing them to be
read in the English and French languages, unless the use of either of the said
languages be dispensed with, and then in that one of the said languages which
should be used …
Section 11 read as follows:
11. The
Governor may, by order in council, declare that the publication to be made
under this Act of any notice, by-law or resolution, shall be made in one
language only, in any municipality the council whereof have shewn that such
publication may be so made without detriment to any of the inhabitants thereof;
the Provincial Secretary shall cause a copy of every such
[Page 323]
order in council to be inserted in The
Canada Gazette, and from the date of such insertion the publication of all
such notices, by-laws and resolutions may be legally made in the municipality
referred to in such order in council, in that language only which is thereby
prescribed.
These provisions were continued by s. 129
of the B.N.A. Act and, three years after Confederation, found their way
in expanded form into the first Municipal Code of the Province of Quebec (1870
(Que.), c. 68) the fifth chapter of which is entitled “Of the Languages to be
used in the Council and the Municipal Proceedings” and comprises these four
sections:
241. In the
sessions of council, whoever has a right to be heard, may use either the French
or the English language.
242. The
books, records and proceedings of every municipal council are kept, and all
certificates of publication or service, and every other document produced or
filed in the office of the council, are written in either the French or the
English language.
243. In any
municipality for which there is no order of the lieutenant-governor in council,
in virtue of the tenth section of the consolidated municipal act of Lower
Canada or of the following article, the publication of every notice, by-law,
resolution or order of the council, by posting, reading aloud or insertion in
the newspapers, must be made in the French and English language.
244. The
lieutenant-governor by an order in council, upon a petition being made to him
to that effect by any municipal council, may declare that the publication of
any public notice, by-law, resolution or order of the council, in such
municipality, except such as are required to be made in the official Gazette of
the province, shall be made thereafter in one language only. Such language is
determined by the said order in council.
The resolution under which the petition of
the council is made, cannot be adopted until after a public notice to that
effect has been given to the inhabitants of the municipality.
A copy of such order by the
lieutenant-governor in council, is transmitted without delay to the
secretary-treasurer of the municipality to which it applies.
However, up to this day, under the Cities and
Towns Act, (R.S.Q. 1977, c. C-19), ss. 335, 345, 353, 362, all by-laws
enacted by cities and towns
[Page 324]
must be published in both languages. No
exception is contemplated.
Some municipal corporations must have been
illegally enacting regulations in one language only for the Act to Validate
the Publication of Certain Municipal Notices (R.S.Q. 1941, c. 229) was
passed to legalize the situation for the period prior to April 11, 1935. (See
Claude‑Armand Sheppard, supra, at p. 233.)
Thus, before as well as immediately after
Confederation and later, official bilingualism was not necessarily the rule in
practice with respect to municipal by-laws.
Furthermore, the Legislature never entertained
any doubt about its power to regulate this matter. It simply assumed
jurisdiction and occupied the field unchallenged.
Last but not least, municipal institutions
constitute a distinct albeit subordinate order of government at the local
level, the administration of which is usually in the hands of locally elected
mayors and members of council. Their growth and the multiplication of their
regulations were inherent in their nature and accordingly foreseeable. Since
the provinces were explicitly given the power to make laws relating to those
institutions in s. 92(8) of the B.N.A. Act, the absence of any
reference to them in s. 133 cannot possibly be viewed as an oversight. It
is a purposeful silence to which effect must be given if the intent of the
Fathers of Confederation is to be respected.
Much the same can be said, a fortiori, about
school bodies regulations. Education falls under provincial legislative
authority subject to the denominational principles stated in s. 93 of the B.N.A.
Act. It was quite foreseeable that school districts and school bodies would
be organized along even more homogeneous linguistic lines than municipal
corporations. Yet, the safeguards provided by s. 93 are of a religious,
not of a linguistic nature. As was observed by Lord Buckmaster in Trustees
of the Roman Catholic Separate Schools
[Page 325]
for the City of Ottawa v. Mackell,
at p. 74.
… the only section in the British
North America Act, 1867, which relates to the use of the English and French
languages (s. 133) does not relate to education, and is directed to an entirely
different subject-matter.
Since the B.N.A Act is explicit on the
subject of religious safeguards with respect to education, its silence on the
language of school by-laws is also a deliberate one. It is a silence which
speaks and it speaks against the application of s. 133 to school by-laws.
In oral argument, counsel for the Attorney
General of Canada submitted that municipal by-laws are governed by s. 133
of the B.N.A. Act whenever they are made subject either to approval or
to disallowance by the Government.
In our view, no such extension is warranted.
Municipal by-laws constitute a separate and
distinct class of regulations. As we have seen, they are the legislative
enactments of a third level of government clearly contemplated by the B.N.A.
Act and yet not mentioned in s. 133. The fact that they may be subject
to the control or supervision of the Government by way of required approval or
potential disallowance does not alter their municipal character nor the
constitutional intent to subtract them from the operation of s. 133.
Counsel for respondent Laurier and intervenor
Forest expressed reservations as to the appropriateness of a judgment couched
in general terms in a case where municipal corporations are not represented and
when cases concerning some of them might be pending before lower courts.
This comes close to submitting that we ought not
to have ordered a rehearing. But as is noted in the order itself, neither
respondent Laurier nor
[Page 326]
intervenor Forest objected to the rehearing.
Furthermore, it is not unusual for a constitutional case pending before a lower
court to be overriden by a judgment of this Court.
Counsel for respondent Laurier further
represented that several aspects of the issue relating to municipal by-laws
could not adequately be dealt with in this hearing. Thus, it was conceivable that
some municipal charters did not find their source in post-Confederation
provincial legislation. It was also arguable, in his submission, that language
rights had ceased to be a merely local or provincial matter and, to paraphrase
Lord Watson L.C., in Attorney General for Ontario v. Attorney General for
Canada, at
p. 364, had attained such dimensions as to become a matter of national
concern lying outside the purview of s. 92 of the B.N.A. Act. It
was contended that the question whether the Legislature could validly impose
the majority language of the Province upon the inhabitants of a municipality
speaking another language might have to be reconsidered in that light.
It should be observed in this regard that the
Court is solely concerned with the applicability of s. 133 of the B.N.A.
Act to regulations passed pursuant to a delegation of legislative power by
the Legislature of Quebec. The Court refrains from expressing any view as to
other issues which might relate to language rights and arise in future cases.
III Other regulations
This residual class includes all regulations of
the civil administration and of semi-public agencies contemplated by the Charter
other than government, municipal and school bodies regulations. However,
this class does not include court rules of practice which will be separately
dealt with later.
Appellant’s counsel submitted that none of the
regulations comprised in this class is governed by s. 133 of the B.N.A.
Act. It was contended that the
[Page 327]
main reason why the reach of s. 133 had
been extended by interpretation to cover regulations was the risk that the
provisions of the section be circumvented by the use of regulations: this
was the only reason which suggested a distinction between various classes of
regulations; it could apply solely to regulations enacted by the Government
since only the Government could possibly form the intent to circumvent
s. 133 and exercise sufficient control or influence over the Legislature
to carry it out.
In our opinion, this test is not the correct
one.
The positions of the Attorney General of Canada
and the Attorney General of Manitoba were practically the same on this issue.
According to their submissions, regulations passed by agencies of the
Government were subject to s. 133 of the B.N.A. Act; the correct
test was the extent to which boards and other law-making bodies were controlled
by the Government so that they could be said to be responsible through it to
the Legislature. On the other hand, s. 133 did not govern the regulations
of autonomous law-making agencies such as professional corporations. However,
counsel for the Attorney General of Canada contended that even these were
governed by s. 133 as long as they were subject to approval or
disallowance by the Government.
Under the test proposed by the Attorney General
of Canada and the Attorney General of Manitoba, the application of s. 133
would depend on the facts and circumstances of each case. In our view, this
test is not the right one either. It is also most impractical. The residual
class of regulations under consideration includes rules made by a large number
of boards and other law-making agencies so diverse as to have little in common
except their power to enact delegated legislation.
The number of members of such boards and bodies
varies from one to more than two dozen. These members may be appointed by the
Government with or without consultation of some other institution. They may be
elected. The membership may also be partly elected and partly appointed.
[Page 328]
Some members but not necessarily all must
sometime be chosen from limited groups including the judiciary. Appointments
may be made during pleasure or for a fixed term. Salaries are fixed by the
Legislature or by the Government if they come from the consolidated revenue
fund, but they may come from other sources. The Government may or may not be
given a power of supervision including the power to put a subordinate body
under trusteeship in certain circumstances.
The Government may also be in a position to
exercise some influence over subordinate agencies through the power of the
purse. Given its overall control of the Legislature, it might be held
responsible for practically every agency which, according to public opinion,
may be thought not to be functioning properly. The responsibility of the
Government is a matter of degree and varies infinitely and minutely from case
to case. It cannot, without causing hopeless confusion and uncertainty, be
retained as a criterion for our purposes.
In order to determine the proper test, one must
keep two sets of considerations in mind.
First, the proliferation of these other
regulations was at least as unforeseeable as that of Government regulations
which, unlike municipal and school board by-laws could not have been originally
intended to escape the operation of s. 133 of the B.N.A. Act.
Second, while the ordinary meaning of the words
“Acts … of the Legislature” in s. 133 must be departed from to prevent the
requirements of the section from being frustrated, it cannot be stretched
beyond what is necessary to accomplish this purpose.
Inadequate as they may be, the two tests
suggested by counsel for the Attorney General of Quebec, the Attorney General
of Canada and the Attorney General of Manitoba nevertheless point in the right
direction in that they both emphasize some connexion between the Legislature
and delegated legislation, apart from the delegation itself. This connexion is
the decisive factor in so far as
[Page 329]
the subjection of Government regulations to
s. 133 of the B.N.A. Act is concerned. There is no reason to select
a different element with respect to other regulations. It is because in our
constitutional system the enactments of the Government should be assimilated
with the enactments of the Legislature that they are governed by s. 133.
Other regulations must in our opinion be viewed in the same light when they can
also properly be said to be the enactments of the Government.
This happens whenever these other regulations
are made subject to the approval of the Government.
The particular form of words used in this
respect by various statutes matters little. Whether it be provided that some
regulations “shall have no force and effect until approved and sanctioned by
the Lieutenant-Governor in Council” or “shall not be carried into execution
until approved by the Lieutenant-Governor in Council” or “shall not have force
and effect until confirmed by the Lieutenant-Governor in Council”, they can be
assimilated with the enactments of the Government and therefore of the Legislature
as long as positive action of the Government is required to breathe life into
them. Without such approval or confirmation, they are a nullity (North Coast
Air Services Ltd. v. Canadian Transport Commission) or at least inoperative. The
Government does legislate in approving them in the same way as one house
legislates in a bicameral legislature when it passes a bill already passed by
the other house, or the Lieutenant-Governor when he assents to a bill passed by
the house of the now unicameral Legislature.
Regulations which are subject to disallowance by
the Government are different. They have an independent life of their own. Their
disallowance is a contingency. And even when they are disallowed, they probably
are fully effective for the period
[Page 330]
preceding their disallowance. (See, by analogy,
the effect of disallowance on provincial legislation under a similarly worded
enactment: Wilson v. Esquimalt and Nanaimo Ry. Co.).
Under the statutes now in force in Quebec,
regulations which are subject to the approval of the Government and therefore
to s. 133 of the B.N.A. Act seem to be almost as numerous as those
of the Government itself.
IV Court rules of practice
The status of English and French in Quebec
courts under s. 133 of the B.N.A. Act exhibits a continuous
practice going back almost to the beginning of the British rule. Since 1774,
either French or English was used in court and in court proceedings and court
processes.
(However, a 1785 Ordinance provided for the serving of writs of summons in the
language of the defendant in all suits of £10 or less and in some suits over
£10 (1785, 25 Geo. III, c. 2). It was repealed in 1801 (1801, 41 Geo. III, c.
7)).
[Page 331]
The use of the French language did not go
unchallenged. It was recognized by a four judge Court of King’s Bench in Rex
v. Talon (this is an 1812 case the report of which comes from the private
archives of one of the judges: Maréchal Nantel, “La langue française au
Palais”, (1945) 5 R. du B. 201, at pp. 203-4) but there are single judge’s
decisions to the contrary (Hamel v. Joseph, an 1827 case reported
in 1847-48, 3 R. de L. 400; Maréchal Nantel, supra, at p. 205). The
use of the English language was taken for granted.
Although French ceased to be recognized as an
official statutory language from 1840 to 1846 under s. 41 of the Union
Act, 1840 (1840 (U.K.), c. 35), it continued to be used in court on the
same footing as English, as appears from the reported cases of the period, such
as can be found in the Revue de Législation et de Jurisprudence.
A 1793 Ordinance denied Quebec courts the
legislative power which French courts or “parlements” did exercise in
decisions called “arrêts de règlement” (1793, 34 Geo. III, c. 6,
s. 8), but some Quebec courts were empowered to adopt rules of practice
from 1785 and 1787 (1785, 25 Geo. III, c. 2; 1787, 27 Geo.
III, c. 4; see A.A. Bruneau J.S.C., “De la limite des pouvoirs des juges et des
tribunaux”, (1924) 2 R. du D. 289), starting with the Court of Appeal
to regulate, effectuate and accelerate the
proceedings in all causes of appeal, for the advancement of justice, and to
prevent unnecessary delays and expense in the same.
From that early period to the present time,
rules of practice appear to have been published in both languages except,
oddly, the latest rules of the Court of Appeal, dated June 2, 1978, the English
version of which is still unavailable.
When the B.N.A. Act came into force on
July 1, 1867, the first Quebec Code of Civil Procedure had just been
proclaimed three days previously, on June 28, 1867 (An Act respecting the
Code of
[Page 332]
Civil Procedure of Lower Canada, 1866 (Can.), c. 25). Article 29 provided for the making by the
judges of the Superior Court of
any rules of practice that may be necessary
for regulating proceedings … in causes and matters before them … and all
matters of procedure not regulated by the Code …
Article 1177 granted a similar power to the
Court of Queen’s Bench. This Code was continued in force under s. 129 of
the B.N.A. Act and replaced by another in 1897 (An Act respecting the
Code of Civil Procedure of the Province of Quebec, 1897 (Que.), c. 48) and
still another in 1965 (1965 (Que.), c. 80). The latest Code provides for the
enactment of rules of practice by each court: Article 47.
Rules of practice are not expressly referred to
in s. 133 of the B.N.A. Act. Given the circumstances described
above, they are unlikely to have been overlooked but in our view the draftsmen
must have thought that they were subject to the section by necessary
intendment.
The point is not so much that rules of practice
partake of the legislative nature of the Code of which they are the complement.
A more compelling reason is the judicial character of their subject-matter for
which s. 133 makes special provision. Rules of practice may regulate not
only the proper manner to address the court orally and in writing, but all
proceedings, processes, certificates, styles of cause and the form of court
records, books, indexes, rolls, registers, each of which may under s. 133,
be written in either language. Rules of practice may also prescribe and do
prescribe specific forms for proceedings and processes, such for instance as
the motion for authorization to institute a class action or a judgment in a
class action (Rules of Practice of the Superior Court of the Province of
Quebec in civil matters, November 10, 1978, ss. 49 to 56), a proceeding in
the Superior Court, a process of the Superior Court. All litigants have the
fundamental right to choose either French or English and would be deprived of
this freedom of choice should such rules and compulsory forms be couched in one
language only.
[Page 333]
Furthermore, and as was noted by Deschênes
C.J.S.C., (at p. 49 of his reasons), this fundamental right is also
guaranteed to judges who are at liberty to address themselves to litigants in
the language of their choice. When they so address themselves collectively to
litigants as they peremptorily do in rules of practice, they must necessarily
use both languages if they wish to safeguard the freedom of each judge.
We accordingly reach the conclusion that, given
the nature of their subject-matter, rules of court stand apart and are governed
by s. 133 of the B.N.A. Act.
What was not contemplated in 1867 was the
multiplication of non-curial adjudicative agencies. At p. 1029 of its
reasons for judgment, this Court has already held that it could not ignore this
modern development on overly-technical grounds and refuse to extend to
proceedings before quasi-judicial tribunals the constitutional guarantee of the
right to use either French or English by those subject to their jurisdiction.
It would be equally overly‑technical to hold that the rules of practice
made by such tribunals should remain beyond the reach of s. 133 because
their subject-matter is quasi-judicial in nature, rather than judicial.
V Conclusion
The constitutional question on the rehearing is
answered as follows:
Section 133 of the British North America Act applies
to regulations enacted by the Government of Quebec, a minister or a group of ministers
and to regulations of the civil administration and of semi-public agencies
contemplated by the Charter of the French Language which, to come into
force, are subject to the approval of that Government, a minister or a group of
ministers. Such regulations are regulations or orders which constitute
delegated legislation properly so called and not rules or directives of
internal management.
Section 133 also applies to rules of practice
enacted by courts and quasi-judicial tribunals.
[Page 334]
Section 133 does not apply to municipal or
school bodies by-laws even when subject to the approval of the Government, a
minister or a group of ministers.
No costs were asked for on the rehearing and
there should be no order as to costs.
Judgment accordingly.
Solicitors for the appellant: Bilodeau,
Flynn, Boissonneault & Roy, Montreal; Jean K. Samson, Quebec; Henri Brun,
Quebec.
Solicitors for the respondents Blaikie,
Durand and Goldstein: Chait, Salomon, Gelber, Reis, Bronstein, Litvack,
Echenberg & Lipper, Montreal; Johnston, Heenan & Blaikie, Montreal;
André Brossard, Montreal.
Solicitors for the respondent Laurier:
Wood & Aaron, Montreal.
Solicitors for the respondent the
Attorney General of Canada: Langlois, Drouin, Roy, Fréchette & Gaudreau,
Montreal; James Mabbut, Ottawa.
Solicitor for the intervenor the Attorney
General of Manitoba: Gordon E. Pilkey, Winnipeg.
Solicitor for the intervenor the Attorney
General of New Brunswick: Gordon F. Gregory, Fredericton.
Solicitors for the intervenor Forest:
Hogues, Nepon & Sharp, Winnipeg.
