Judgments

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A-143-91
Jean-Charles St-Onge (Appellant)
v.
The Commissioner of Official Languages (Respondent)
INDEXED AS: ST-ONCE Y. CANADA (OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES) (CA.)
Court of Appeal, Marceau, Desjardins and Décary JJ.A.—Ottawa, May 19 and June 30, 1992.
Official languages — Appeal from Trial Judge's dismissal of application for relief from Commissioner of Official Lan guages' decision — Appellant complaining about inadequate French language services by PSC in Toronto — Complaint rejected by Commissioner as no breach of Official Languages Act — Commissioner's discretion to refuse or cease to investi gate complaint under Act, s. 58(4)(c) limited to cases not involving contravention or failure to comply with spirit and intent of Act — Commissioner erred in not considering appel lant's difficulty in establishing oral contact in French with PSC and in not taking spirit and intent of Act into account.
This was an appeal from a judgment of the Trial Division dismissing appellant's application for relief from a decision of the Commissioner of Official Languages. In applying for employment in civil engineering at the Toronto office of the Public Service of Canada, the appellant realized that the person responsible for hiring engineers was not bilingual. He com plained to the Commissioner about the difficulty he had exper ienced in obtaining oral communication in French; it was only after having had to speak English to several officials that he was put through to the Director General who spoke French. The appellant felt that he had been disadvantaged in not being able to communicate directly with the person responsible for recruiting people in his specialty. The Commissioner rejected the complaint, there having been no breach of the Official Lan guages Act. Appellant then applied to the Trial Division for a declaratory judgment requiring the Commissioner to make rec ommendations to the Toronto offices of the Public Service Commission that employment application acknowledgment letters written in French be signed by an official able to speak that language and that French language services be available at all times. The Trial Judge observed that the Federal Court only exceptionally has jurisdiction to intervene in decisions of an administrative nature made in accordance with legislation; His Lordship concluded that the Commissioner's decision was within the statutory and discretionary powers conferred on him by the Parliament of Canada and that in exercising these pow-
ers, the Commissioner had committed no error of law or fact that could justify judicial intervention.
Held (Marceau J.A. dissenting), the appeal should be allowed.
Per Desjardins and Décary JJ.A.: It was unfortunate that the Trial Judge had made reference to Chicoutimi and Saskatoon in that it is not possible to compare areas where there is no significant demand for one or other of the official languages with an area such as Toronto where a significant demand does exist and where Parliament, by section 22 of the Official Lan guages Act, has expressly imposed greater obligations on the offices of federal institutions and thereby conferred more extensive rights on the public in communicating with them and receiving their services. In Canada (Attorney General) v. Viola, the Federal Court of Appeal clearly explained the nature and object of the Official Languages Act, pointing out that it is an extension of the rights and guarantees recognized in the Canadian Charter of Rights and Freedoms. In fact, section 22 of the Act essentially reproduces paragraph 20(1)(a) of the Charter, which suggests that the Courts should interpret it in the same way as this provision of the Charter would be inter preted. The appellant's rights to receive service in French in Toronto are not lessened by the fact that he would have to work in English if he were to obtain the employment sought. The phrase "the spirit and intent of this Act", noted in subsec tion 58(4), is also found in subsection 56(1) which gives the Commissioner the duty to take all actions and measures within his authority to ensure recognition of the status of each of the official languages and compliance with the spirit and intent of the Act in the administration of the affairs of federal institu tions. An unusual power to intervene has been conferred on the Commissioner who, when receiving a complaint, is expressly ordered by Parliament to get to the heart of the matter and not simply to examine the technical legality of the actions taken by the government department against which the complaint is laid.
The Commissioner had made two errors. First, he did not investigate the appellant's complaint relating to his difficulty in establishing oral communication in French with the Public Service Commission of Canada. He only noted the letter of May 17, 1990 and the telephone conversation with the Director in French on June 14, 1990, but he did not inquire into the legality of what occurred between these two incidents. Second, the Commissioner did not take the spirit and intent of the Act into account. In accordance with his duty as stated in subsec tion 56(1) of the Act and the power of investigation conferred on him by subsection 58(4), he should have determined whether the Public Service of Canada office in Toronto, as a federal institution in a place where there was a significant demand for the use of French, had complied with the spirit and intent of the Act in its communications with and service to the appellant.
Per Marceau J.A. (dissenting): For this Court to be able to allow the appeal, two conditions must be met. First, it must be possible to read the application as being one for an order in the nature of mandamus to force the Commissioner to reopen his inquiry into the complaint made by the applicant. Second, it must be possible to say that, as a public official, the Commis sioner acted without regard to a duty imposed on him by law. As to the first condition, it is very doubtful that a court of appeal could criticize a Trial Judge for not undertaking so extensive a transformation of the application before him. How ever, it is the second condition which seems more clearly absent. This Court could not assume that the Commissioner was concerned only with the formal and express requirements of the Act simply because he spoke in his letter of a "breach of the ... Act". One must rely on a stronger factual basis to con clude that a public official disregarded his mandate and failed in his duty. As this Court and the Trial Court are courts of law, the Commissioner's statement that he had ascertained that no "breach of the ... law" had been committed must be taken as conclusive by them.
The Trial Judge was correct in concluding that it was not his function to become involved in the good faith exercise by the Commissioner of the discretionary powers conferred on him by the Act. This is why the Act expressly provides that a com plaint to the Commissioner and the action he may take on it temporarily suspend but do not in any way abrogate the right of action which the complainant may have against the federal institution which has allegedly not recognized- his rights. The Commissioner, provided he is acting in good faith, is responsi ble to Parliament, not to the courts of law.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 20(1)(a).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 3(1), 22, 27, 35, 36, 50, 56(1), 58(4), 77.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; (1990), 123 N.R. 83 (C.A.).
APPEAL from a judgment of the Trial Division ((1991), 44 F.T.R. 81) dismissing appellant's applica tion for relief from a decision rendered by the Com missioner of Official Languages. Appeal allowed.
COUNSEL:
J. Aidan O'Neill for respondent.
APPEARANCE:
Jean - Charles St - Onge on his own behalf.
SOLICITORS:
Johnston & Buchan, Ottawa, for respondent.
APPELLANT ON HIS OWN BEHALF:
Jean-Charles St-Onge, Timmins, Ontario.
The following is the English version of the reasons for judgment rendered by
MARCEAU J.A. (dissenting): I am sorry, but I am unable to accept the approach taken by my colleagues and, with respect, I must differ from them. In my opinion, this case is not one in which the Court can intervene, and the following is briefly why I think so.
The factual details are not that important. What must be borne in mind is that the decision by the Trial Division [(1991), 44 F.T.R. 81] which is on appeal was one dismissing an application made pur suant to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7], the purpose of which was stated in the originating notice as follows:
[TRANSLATION] The applicant would like to obtain relief in respect of a decision made by the Office of the Commissioner of Official Languages so as to give effect to the new Official Languages Act. The applicant would like the original decision made by the office to be rejected and replaced by a new deci sion that is more fair and more in keeping with the present Act.
For this Court to be able to allow the appeal, quash the decision to dismiss and order the Commissioner of Official Languages to reconsider the appellant's complaint, two conditions must obviously be met. First, it must be possible to read the application as being one for an order in the nature of mandamus to force the Commissioner to reopen his inquiry into the complaint made by the applicant. Second, it must be possible to say that, as a public official, the Commis sioner acted without regard to a duty imposed on him by law. As to the first condition, I will simply say that in my opinion it is very doubtful that a court of appeal could complain about a trial judge not under taking so extensive a transformation of the applica-
tion before him. However, it is the second condition which seems more clearly absent.
As we have seen, the matter starts with the content of a letter sent by the Commissioner to the appellant on August 31, 1990, in answer to a complaint made by the latter under the Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31. Once again, it reads:
[TRANSLATION] After carefully reviewing all the information you sent us, we have concluded that this case indicates no breach of the Official Languages Act. The Act requires federal agencies to use the preferred official language of their clients and this is what the P.S.C. did in the letter sent to you in French on May 17 and in your telephone conversation of June 14 with the Director.
We will therefore not be taking any further action on your complaint.
From the fact that the Commissioner speaks in his letter of reply only of a breach of the Act the appel lant concluded that he failed to go beyond the strict wording of the provisions contained in the Act. He suggested that in doing so the Commissioner erred, as he should not only have considered whether the services in French had in fact been rendered as expressly required by the legislation, which certainly was the case, but also whether the problems that the appellant said he encountered in obtaining a proper telephone conversation in French were not an infringement of the spirit and intent of the Act, within the meaning of subsections 56(1) and 58(4) of the Act, which read:
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 offi cial 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.
58....
(4) The Commissioner may refuse to investigate or cease to investigate any complaint if in the opinion of the Commis sioner
(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.
First, as this Court is an appellate court, I do not think it can assume, regardless of the findings of fact made by the Trial Judge, that the Commissioner was concerned only with the formal and express require ments of the Act simply because he spoke in his letter of a "breach of the ... Act". To conclude that a pub lic official disregarded his mandate and failed in his duty and that a court order should be made to compel him to correct the mistake, I think that a stronger fac tual basis is necessary.
Second, as this Court and the Trial Court are courts of law, it seems to me that the Commissioner's state ment that he had ascertained that no "breach of the ... Act" had been committed must be taken as conclusive by them. It is certainly usual for a court of law to refer to what may be called the "spirit of the Act" and the "legislative intent" to resolve problems of legislative interpretation, but these concepts are not for the court something apart from the Act which can be given effect beyond what Parliament has expressly provided. The situation may be different for the Commissioner himself, because of the func tion of supervision, encouragement, criticism, promo tion and development which he is called on to per form and the latitude which Parliament intended he should have in exercising his powers of recommen dation. I think this is what explains the fact that Par liament thought of expressly referring to the afore mentioned sections; but this was intended for the Commissioner alone, to support his action, not for courts of law that might be called on to assess the legality of his acts and positions taken by him.
My colleagues quote a long passage from the deci sion of this Court in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, at pages 386-387, to indi cate the special nature of the Official Languages Act. I think they passed over rather quickly the last part of this citation:
To the extent, finally, that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political compromise, it requires the courts to exercise caution and to "pause before they decide to act as instruments of change", as Beetz J. observed in Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al.:
...legal rights as well as language rights belong to the cate gory of fundamental rights,
Unlike language rights which are based on political com promise, legal rights tend to be seminal in nature because they are rooted in principle.
This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to lan guage rights. [My emphasis.]
I believe that the Trial Judge dealt quite correclty with the application that was before him. I think he was right to conclude that it was not his function to become involved in the good faith exercise by the Commissioner of the discretionary powers conferred on him by the Act, both as regards the accepting of a complaint to assess its validity and the decision whether to pursue it and undertake any inquiry and also as to his decision on the merits of the complaint and whether action should be taken regarding it. Indeed, it seems to me this is why the Act takes the trouble to expressly provide that a complaint to the Commissioner and the action he may take on it tem porarily suspend but do not in any way abrogate the right of action which the complainant may have against the federal institution which has allegedly not recognized his rights (section 77 of the Act). I feel that the system intends that the Commissioner, pro vided he is acting in good faith, is responsible for his action or inaction solely to Parliament and not to the courts of law. Finally, I feel that the reasons given by the Trial Judge in support of his refusal are substan tially correct and I adopt them.
I would dismiss the appeal.
* * *
The following is the English version of the reasons for judgment rendered by
DESJARDINS AND DÉCARY JJ.A.: The appellant is appealing from a judgment rendered by a Trial Judge who dismissed his application for relief from a deci sion rendered by the Commissioner of Official Lan guages on August 31, 1990.
On June 15, 1990, the appellant complained to the Commissioner of Official Languages about the poor quality of the service offered in French by the Public Service Commission of Canada offices in Toronto, serving the Ontario region which covers the town of Timmins where the appellant lives.
The appellant had inquired about the possibility of applying for a job in civil engineering with the Public Service of Canada offices in Toronto and on May 17, 1990, received a letter in French signed by Peter Cor ner, Resourcing Officer, telling him that he had the necessary certificates and qualifications and that his application for employment had been entered in the Public Service Commission national index for con sideration when a position became vacant. The appel lant tried to contact the person who signed the letter by telephone, as the latter was solely responsible for civil engineering opportunities with the Public Ser vice offices in Toronto. What happened then is described by the appellant in the complaint he made to the Commissioner:'
[TRANSLATION] After I had made several calls it was finally explained that Mr. Peter Corner, who is solely responsible for hiring engineers for the Public Service, is not bilingual. Some of the Public Service employees had tried to make me think he was bilingual.
The Director of Personnel, Stephen Bickerstaffe, called the appellant back on June 14, 1990 to tell him there were no openings for civil engineers in the Pub lic Service. This conversation was held in French since Stephen Bickerstaffe is bilingual, but as he was not responsible for civil engineering opportunities, the only person who could have discussed available positions and positions that might be available was Peter Corner. In his complaint to the Commissioner, the appellant explained that he felt he had been put at a disadvantage as he could not communicate directly with the person responsible for recruiting people in
A.B., at p. 12.
his special field, and had to go through third persons who had no connection with the hiring departments.
On August 31, 1990 the Commissioner of Official Languages sent the appellant his answer to the com plaint: 2
[TRANSLATION] After carefully reviewing all the information you sent us, we have concluded that this case indicates no breach of the Official Languages Act. The Act requires federal agencies to use the preferred official language of their clients and this is what the PSC did in the letter sent to you in French on May 17 and in your telephone conversation of June 14 with the Director.
We will therefore not be taking any further action on your complaint. [Emphasis added.]
At that point the appellant, who is representing himself, applied to the Trial Division for a declara- tory judgment directing not only that the Commis sioner of Official Languages make a recommendation to the Public Service Commission office in Toronto that acknowledgments of receipt sent in French be signed by a resourcing officer who could speak French, but also that active service in French be available at all times and that a replacement be avail able in the event of absences. 3
The Trial Judge observed that this Court only exceptionally has jurisdiction to intervene in deci sions of an administrative nature made in accordance with legislation. Subsection 58(4) of the Official Languages Act 4 (the "Act") provides:
58....
(4) The Commissioner may refuse to investigate or cease to investigate any complaint if in the opinion of the Commis sioner
(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
2 A.B., at p. 15.
3 A.B., at p. 102.
4 R.S.C., 1985 (4th Supp.), c. 31.
of this Act, or does not for any other reason come within the authority of the Commissioner under this Act. [Emphasis added.]
On the basis of section 22 5 the Trial Judge con cluded that while the Act requires that services be provided in either official language, it does not pur port to specify in what ways or by what methods the government must provide its services. The Act thus does not indicate any percentage of bilingual public servants or their categories or particular duties in each of the many public departments throughout the country. The Trial Judge went on to observe that the Act allows the Commissioner to examine, analyse or investigate in any area to ensure that service is ade quate and especially that no offences are committed, but the Commissioner is not bound by the representa tions of any individual who complains that service is inadequate or the federal employer is at fault. The Trial Judge added that the Court could take judicial notice of certain aspects of reality in an institution as large as the federal Public Service and that, while the Act requires services to be in the individual's lan guage of choice, it is readily understandable that Chicoutimi, Quebec is not Saskatoon, Saskatchewan and that the situation cuts both ways in either lan guage. However, he noted that the fundamental rule is still the same, that is to provide the individual with public services in the language of his choice. He con cluded that the Commissioner's decision was one which was within the statutory and discretionary powers conferred on the Commissioner by the Parlia ment of Canada, and that in exercising the powers so conferred the Commissioner had committed no error
5 S. 22 of the Official Languages Act:
22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to a� of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language. [Emphasis added.]
The expression "federal institution" defined in s. 3(1) of the Act includes "any board, commission ... established to per form a governmental function by or pursuant to an Act of Parliament ... "
of law or fact that could justify the Court's interven tion.
In this Court, the appellant relied primarily on the part of his complaint that concerned the difficulty he had in obtaining oral communication in French when he first contacted the Commission's offices in Toronto. He told the Court that it was not until after he had been obliged to speak in English to several employees that he was finally put through to the Director General of the Commission's office, with whom he was able to speak in French.
The appellant cited section 27 of the Act, which comes under the heading "Communications with and Services to the Public" and which reads as follows:
27. Wherever in this Part there is a duty in respect of com munications and services in both official languages, the duty applies in respect of oral and written communications and in respect of any documents or activities that relate to those com munications or services. [Emphasis added.]
The respondent acknowledged that paragraph 58(4)(c) of the Act is so worded that the Commis sioner's discretion to refuse or cease to investigate a complaint is limited to cases where the subject-matter of the complaint does not involve a contravention or failure to comply with the spirit and intent of the Act. The respondent further admitted that Toronto was a place where there is a significant demand for the use of French as provided for in section 22 of the Act, which to begin with, distinguishes the Toronto area from the two areas, Chicoutimi and Saskatoon, to which the Trial Judge somewhat unfortunately referred. There could be no question of comparing the legal position of areas in which there is no signifi cant demand with that of areas such as Toronto where a significant demand exists and where Parliament, by section 22 of the Act, has expressly imposed greater obligations on the offices of federal institutions and thereby conferred more extensive rights on the public in communicating with them and receiving their ser vices.
In Canada (Attorney General) v. Viola, 6 this Court said the following:
6 [1991] 1 F.C. 373, at pp. 386-387.
The 1988 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Cana- dian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an exten sion of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects "certain basic goals of our society" and must be so interpreted "as to advance the broad policy considerations underlying it." To the extent, finally, that it is legislation regarding language rights, which have assumed the position of fundamental rights in Canada but are nonetheless the result of a delicate social and political com promise, it requires the courts to exercise caution and to "pause before they decide to act as instruments of change", as Beetz J. observed in Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al.:
... legal rights as well as language rights belong to the cate gory of fundamental rights,
Unlike language rights which are based on political com promise, legal rights tend to be seminal in nature because they are rooted in principle.
This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to lan guage rights.
We feel it is important to note that section 22 of the Act essentially reproduces paragraph 20(1)(a) of the Canadian Charter of Rights and Freedoms, 7 which suggests that the Court should interpret it in the same
7 S. 20(1)(a) of the Canadian Charter of Rights and Free doms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] reads as follows:
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such insti tution where
(a) there is a significant demand for communications with
and services from that office in such language ...
way as this provision of the Charter would be inter preted.
Further, it appears from section 31 of the Act that the provisions of Part IV, dealing with the language of communications with and services to the public (including sections 22 and 27), prevail over inconsis tent provisions of Part V, dealing with the language of work. It follows, in our opinion, that under Part IV the rights of the public in an area such as Toronto where demand is considered to be significant are not diminished by the fact that that area has not been "designated" bilingual with respect to the language of work under sections 35 and 36 of the Act. In other words, the appellant's rights to receive service in French in Toronto are not lessened merely by the fact that the appellant would have to work in English if he were to obtain the employment sought.
The phrase "the spirit and intent of this Act", noted in subsection 58(4) of the Act, is also found in sub section 56(1) of the Act which gives the Commis sioner the duty to take all actions and measures within his authority to ensure recognition of the sta tus of each of the official languages and compliance with the spirit and intent of the Act in the administra tion of the affairs of federal institutions. 8 The spirit and intent of the Act bring us to the preamble of the Official Languages Act, in particular the following paragraph: 9
And Whereas the Constitution of Canada also provides for guarantees relating to the right of any member of the public to communicate with, and to receive available services from, any institution of the Parliament or government of Canada in either official language;
S. 56(1) of the Official Languages Act reads as follows:
56. (1) It is the duty of the Commissioner to take all actions and measures within the authority of the Commissio ner 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 fede ral institutions, including any of their activities relating to the advancement of English and French in Canadian society.
A.B., at p. 34.
This duty imposed on a deputy-headl° to ensure that the spirit and intent of the Act are complied with in a given case is exceptional. A quite unusual power to intervene has been conferred on the Commissioner and, when he receives a complaint, Parliament has expressly ordered him to get to the heart of the matter and not simply to examine the technical legality of the actions taken by the government department against which the complaint is laid.
We have no choice but to conclude that, in his decision of August 31, 1990, the Commissioner made two errors.
First, as to whether there was a contravention of the Act, he did not investigate the aspect of the appel lant's complaint relating to his difficulty in establish ing oral contact in French with the Public Service Commission of Canada, which obliged him to make several telephone calls before he could finally get hold of someone who could answer his questions in the language of his choice. The Commissioner only noted the letter of May 17, 1990 and the telephone conversation with the Director in French on June 14, 1990—as to which there was no need for him to intervene, since the Commissioner concluded to his satisfaction that these two incidents did not involve a contravention of the Act and no basis for intervention had been suggested. However, he did not inquire into the legality of what occurred between these two inci dents. The Court must accordingly return the file to him so he can undertake such an examination.
Second, in considering the matter the Commis sioner did not take the spirit and intent of the Act into account. In accordance with his duty as stated in sub section 56(1) of the Act and the power of investiga tion conferred on him by subsection 58(4) of the Act, the Commissioner should have determined whether the Public Service of Canada office in Toronto, as a federal institution in a place where there was a signif icant demand for the use of French, had complied with the spirit and intent of the Act in its communica tions with and service to the appellant.
10 S. 50 of the Official Languages Act.
The Trial Judge ignored this aspect of the appel lant's complaint, relating to his initial oral contact with the Commission offices in Toronto, and the fail ure by the Commissioner of Official Languages to take the spirit and intent of the Act into account when he considered the matter.
For all these reasons, we would allow the appeal, reverse the judgment rendered by the Trial Division on February 11, 1991, and rendering the judgment which should have been rendered, would return the matter to the Commissioner of Official Languages for it to be decided by him in accordance with these rea sons.
We would award the appellant court costs both in this Court and in the Trial Division.
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