Municipalities with bilingual status failed in their attempt to suspend certain articles of the Charter of the French Language (CLF) which were modified by the adoption of Bill 96.
Published yesterday at 4:57 p.m.
Pierre Saint-Arnaud
The Canadian Press
In a decision rendered Tuesday, Judge Silvana Conte, of the Superior Court, refuses to grant these municipalities the reprieve they requested for a handful of articles that affect them more directly while waiting for the courts to decide on the merits of the cases. amendments made to the Charter by this bill.
The judge did not take time to decide, the case having been pleaded on September 30.
Articles of the Charter covered
The request from the 23 municipalities with bilingual status targeted more specifically the articles relating to the drafting of contracts “exclusively” in French and the powers of inspection and seizure of the Office québécois de la langue française (OQLF) which they consider abusive. . They also requested that the articles giving the power to the Minister of the French Language to suspend their subsidies and those relating to the obligation to sanction their employees who contravene the Charter be suspended.
From the outset, Judge Conte recalls that “suspension is an essentially discretionary remedy which must only be granted in exceptional cases”. This legal recourse is subject to the same three criteria as a request for an interlocutory injunction in the sense that the plaintiffs had to demonstrate the existence of: a serious question to be judged; irreparable harm if the request is rejected; that the balance of convenience favors the plaintiff since she will suffer the greatest harm if the request for a stay is refused.
Serious questions
The first criterion is generally met with regard to the language of contracts and the power of inspection and seizure of the OQLF since, as the magistrate explains, “the Court does not decide the merit of the question. It is sufficient that the question is neither frivolous nor vexatious.”
It is different for the minister’s ability to withhold subsidies because, she writes, “the allegations in the request do not allow the Court to conclude that this is a serious constitutional question or a real difficulty of ‘interpretation. The legal basis for claims related to constitutional vagueness is completely absent. »
No serious harm
However, it is around the question of “serious or irreparable harm” that the request fails across the board. In the case of contracts written in French only, the judge sees “no serious or irreparable damage resulting from the refusal to grant the requested stay”.
“First, the majority of contracts concluded by the plaintiffs are written in French and with the exception of the City of Blanc-Sablon and the City of Bonne-Espérance, they have the financial and human resources to comply with the requirements of the CLF. Furthermore, as for contracts which are written only in English, the plaintiffs speculate on the difficulties of these third parties in providing contracts in French, without providing proof,” she writes.
Also, she adds, the requirement to draft contracts in French presents “disadvantages”, but not “serious or irreparable harm which justifies the suspension of article 21 of the CLF”.
As for the OQLF inspections, Judge Conte considers that “the plaintiffs have not demonstrated a real probability of serious or irreparable harm. […] It is a matter of fear or speculation of the risk of abuse.” She recalls in passing that “since the plaintiffs retain their recourses against the OQLF in the event of the abusive exercise of investigative powers, the damage is not irreparable”.
“Purely theoretical” damage
As for the possible withdrawal of subsidies, the judge recognizes that there would then be harm, but she describes it as “purely theoretical” and points out that “this harm would result from a violation of the CLF and not from a refusal to issue a suspended sentence order.
As for the obligation to establish disciplinary measures and establish sanctions to ensure compliance with the CLF, “the proof of serious or irreparable harm is non-existent”, she decides.
This absence of serious or irreparable harm therefore renders obsolete the need to look at the last criterion, namely the balance of inconveniences, argues Silvana Conte: “since the plaintiffs have not demonstrated serious or irreparable harm, the balance of convenience clearly militates against the issuance of a suspended sentence order.”
The municipalities, represented by the famous constitutionalist Julius Grey, hoped to maintain the status quo on these questions until the courts ruled on the merits of the modifications made to the Charter of the French language by what was, before its adoption, Bill 96.
“A creature of the provincial legislator”
The government lawyer, Mr.e Charles Gravel gave a strong response, recalling on the one hand that “municipalities are a creature of the provincial legislator who has total and unreserved jurisdiction” in matters of language. A municipality, he added, “only holds the power conferred upon it by the provincial legislator.”
He also maintained that the municipalities’ request was purely theoretical since they had not presented any witnesses who had suffered the alleged damage.
Municipalities where half or more of the population is English-speaking are entitled to bilingual municipal status, a status which allows them to use English in various situations, provided that they guarantee that they can also serve their population in French. Although around ten of the 23 municipalities in the coalition of municipalities with bilingual status are located in the Montreal region, the majority of them are in the regions, notably in Outaouais, Gaspésie, the North Shore or Estrie, For example.
