Date: 20040227
Docket: T-490-02
Citation: 2004 FC 296
Ottawa, Ontario, the 27th day of February 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MARIE-CLAIRE PAULIN-KAÏRÉ
Applicant
and
HER MAJESTY THE QUEEN
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Intervener
REASONS FOR ORDER AND ORDER
[1] In a motion under rule 369, the applicant is seeking, pursuant to rules 223, 228, 240 and 244 of the Federal Court Rules (hereinafter the Rules), an order enjoining the respondent to amend its affidavit of documents to include certain documents and, pursuant to rules 240 and 244, requiring the respondent to provide some information pursuant to a cross-examination for discovery of a representative of the respondent.
[2] In the applicant's opinion, the documents sought are relevant for the purposes of the litigation, while the respondent claims the contrary.
SOME FACTS
[3] On April 26, 2000, the applicant was arrested for speeding by an officer of the Royal Canadian Mounted Police (hereinafter the RCMP) on the Trans-Canada Highway in the region of Woodstock, New Brunswick. Notwithstanding her request, the RCMP did not provide French-language services.
[4] The RCMP, a federal institution, provides police services to the officially bilingual province of New Brunswick through a contractual agreement with the provincial government.
BASIS OF LITIGATION
[5] The applicant contends that the facts on which the dispute is based are sufficient to obtain a declaration that all institutions of the government and Parliament of Canada (hereinafter the institutions) are subject to section 16.1 and subsection 20(2) of the Canadian Charter of Rights and Freedoms (hereinafter the Charter) when they act in the province of New Brunswick, and an order providing that the Francophone linguistic minority in that province consequently has the right to receive services in French when dealing with these institutions irrespective of the issue of "significant demand" or other forms of limitation of such rights.
[6] The respondent argues that the facts on which the dispute is based mean that the issue in this case is one of determining the RCMP's obligations under sections and subsections 16.1, 16(1), 20(1) and 20(2) of the Charter and the Official Languages Act, R.S.C. 1985, c. 31 (the OLA), as well as the Official Languages (Communications with and Services to the Public) Regulations (hereinafter the Regulations) when it provides policing services in New Brunswick under the contract with that province.
ISSUE
[7] Does this litigation involve all of the institutions of the government and Parliament of Canada operating in New Brunswick or does it involve only the RCMP? If the answer to the first question is yes, it goes without saying that the relevance of the documents will be quite different than if the litigation is limited to the RCMP.
ANALYSIS
[8] The facts in this case indicate that the RCMP, when acting as a police force in the province of New Brunswick, does so through a contract with the government of the province. In this particular situation, the RCMP does not necessarily have the same obligations as another institution of the government and Parliament of Canada acting in this province without such a contract.
[9] Moreover, there are many institutions of the government and Parliament of Canada operating in New Brunswick and they differ in their respective duties and obligations. In my opinion, it is difficult in this case to generalize and demonstrate the particular features of the various institutions acting in New Brunswick in a way that will produce an enlightened decision.
[10] With these comments in mind, I would add that the relevance of a document is assessed in light of the pleadings, i.e. the statement of claim, the statement of defence and the reasonable interpretation that one can make of them (see SmithKline Beecham Animal Health Inc. v. Canada, [2002] F.C.J. No. 837). In this regard, I have analyzed the two documents and the comparison made by counsel for the respondent in paragraph 9 of its memorandum.
[11] This review of the proceedings and the analysis leads me to observe that the facts alleged concern only the RCMP, with the particular feature that the RCMP, in order to operate as a police force, does so under a contract with the government of the province of New Brunswick.
[12] Bearing in mind the foregoing comments, I will go over each of the requests by the applicant, and comment on them:
(a) Any document in the possession of the Treasury Board Secretariat of Canada pertaining to the implementation of the regulations under the Official Languages Act of Canada in the province of New Brunswick. In the alternative, any correspondence between the Treasury Board Secretariat of Canada and the Royal Canadian Mounted Police of Canada (the RCMP) pertaining to the implementation of the regulations under the Official Languages Act of Canada in the province of New Brunswick;
Comment: The facts associated with this case concern only the RCMP. There are no facts referring to other institutions of the government and Parliament of Canada. This request (including the alternative) seems to me to be very wide-ranging and is not directly related to the facts alleged in the pleadings. I am unable to identify any definite relevance in relation to one or more of the documents.
(b) any correspondence between Marc Laplaine or Joseph Ricciardi and André Bérubé or Gloria Doiron concerning the interpretation and implementation of the regulations under the Official Languages Act of Canada in the province of New Brunswick;
Comment: This request seems to me to be very wide-ranging and is not directly related to the facts alleged in the pleadings. I am unable to identify the relevance of any document in particular.
(c) Any correspondence dealing with the language of service after the execution of the contract between the RCMP and the government of New Brunswick concerning policing services;
Comment: This request is relevant, in my opinion, since it pertains to the facts of the case and could be useful to the applicant. I note that the correspondence is requested for the period following the execution of the contract and that the correspondence is limited to that of the language the service was provided in.
(d) Any correspondence dealing with the language of service during contract negotiations between the RCMP and the government of New Brunswick concerning police services provided by the RCMP in this province;
Comment: This request is irrelevant to this litigation. A contract was signed by the parties and establishes the obligations of the parties. The exchange of correspondence prior to the contract is not relevant since it is the contract that prevails.
(e) Any correspondence or document dealing with steps taken by the RCMP detachment in Woodstock, New Brunswick, to implement paragraph 2(b) of the Official Languages Act of Canada and "support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society";
Comment: I am of the opinion that this request is related to the pleadings of the parties and to the facts of the case and seems relevant to me.
[13] To summarize, I answer in the negative to requests (a), (b) and (d); in the affirmative to requests (c) and (e).
[14] The applicant further asks, pursuant to rules 240 and 244, that the respondent be obliged to provide the following information:
[translation] To determine whether there have been discussions and/or exchanges of correspondence between the RCMP's official languages director, Mr. André Bérubé, and Ms. Carmelle Girouard, official languages coordinator for the RCMP in New Brunswick, concerning the report of the Official Languages Commissioner of Canada in relation to this case. To determine whether RCMP representatives have had outside discussions in relation to the report in question, the identity of the outside contacts and the nature of these discussions?
[15] During the examination for discovery of Ms. Gloria Doiron, a policy advisory for the RCMP, the respondent's counsel objected, on grounds of relevance, to Ms. Doiron answering questions concerning the report of the Official Languages Commissioner and the decisions that had been made in relation to it. The report has to do with the facts of this case.
[16] The cases hold that on an examination for discovery, the approach is less formal than at trial, and the objective is to allow the parties to inquire as to the existence of facts and to assess their relevance. However, these questions must be related to the facts recounted in the pleadings. As the applicant submits, and as Mr. Justice MacKay held in Sydney Steel Corp. v. Omisalj (Le), [1992] 2 F.C. 193:
Counsel for the parties are essentially agreed that the standard for propriety of a question asked in discovery is less strict than the test for admissibility of evidence at trial and the appropriate standard is whether the information solicited by a question may be relevant to the matters which at the discovery stage are in issue on the basis of pleadings filed by the parties.
[17] The request made during the examination for discovery concerning the discussions or exchanges of correspondence addressed to the report of the Commissioner of Official Languages between Mr. A. Bérubé and Ms. C. Girouard and between representatives of the RCMP and people outside the RCMP, in as much as limited to the Treasury Board Secretariat, appears to me to be relevant, since this is a report based on the same facts as this case. Furthermore, the Treasury Board Secretariat plays an important role in enforcing the obligations under the OLA and the regulations thereunder and it is admitted in evidence that the RCMP contacted the Secretariat about this case.
[18] I therefore authorize the request to provide the written information, but I am limiting the outside discussions to those between the Treasury Board Secretariat and the RCMP.
ORDER
THE COURT ORDERS THAT:
- For all these reasons, the motion for an order enjoining the respondent to amend its affidavit of documents to add thereto certain documents is allowed in part and the respondent shall include in the affidavit of documents the documents pertaining to requests (c) and (e). As to the request to provide written information concerning the discussions and correspondence addressed to the Report of the Commissioner of Official Languages, this request is authorized, but the consultation with people outside the RCMP is limited to that between the RCMP and the Treasury Board Secretariat.
- Costs to follow.
"Simon Noël"
Judge
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-490-02
STYLE: Marie-Claire Paulin-Kaïré v. Her Majesty the Queen
WRITTEN MOTION EXAMINED WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE
SIMON NOËL
DATED: February 27, 2004
APPEARANCES:
Michel Doucet FOR THE APPLICANT
G. Robert Basque, Q.C. FOR THE RESPONDENT
SOLICITORS OF RECORD:
Patterson, Palmer
Moncton, N.B. FOR THE APPLICANT
Forbes, Roth, Basque
Moncton, N.B. FOR THE RESPONDENT