Date:
Docket: T-2936-24
Fredericton (New Brunswick), November 5, 2025
Presiding: Deputy Judge Denise A. LeBlanc
BETWEEN:
DROITS COLLECTIFS QUÉBEC and
ETIENNE-ALEXIS BOUCHER
Plaintiffs
and
REGISTRAR OF THE SUPREME COURT OF CANADA
Defendant
JUDGMENT AND REASONS
I. Overview
A. The Dispute
[1] The plaintiff Droits collectifs Québec (DCQ) is a non-profit organization duly constituted under the Companies Act, CQLR c C-38, whose mission is to contribute to the protection of group rights in Quebec, in particular the language and constitutional rights of citizens. The plaintiff Etienne-Alexis Boucher (Mr. Boucher) is a Canadian citizen; Québécois francophone; and member and executive director of DCQ.
[2] The defendant Registrar of the Supreme Court (RSCC) is an administrative entity created by the Supreme Court Act, RSC 1985, c S-26. Pursuant to s. 17 of this law, the Registrar is responsible, under the direction of the chief justice, for the reporting and publication of Supreme Court decisions.
[3] Until November 2024, the Supreme Court of Canada (SCC) posted on its website decisions that were rendered before 1970, that year being the effective date of the Official Languages Act, RSC 1985, c 31 (4th Supp) [Official Languages Act], only in their original language. In December 2023, Mr. Boucher filed a complaint with the Commissioner of Official Languages, alleging that the posting of decisions on the SCC's website in only one official language constituted a violation of the obligations stipulated by Part IV of the Official Languages Act.
[4] In its final report dated September 16, 2024, the Commissioner affirmed the complaint. It determined that the SCC's posting of decisions on its website constituted a communication to the public by a federal institution and so the institution was obligated to offer the communications in both official languages. As a result, the Commissioner ordered the RSCC to ensure, within 18 months of the decision, that all of the decisions on the SCC website be available in both official languages.
[5] On November 1, 2024, the plaintiffs filed an application in the Federal Court pursuant to s. 77 of Official Languages Act. The main relief sought on this application is to determine whether the RSCC can post on the SCC's website decisions that were rendered before the introduction of the Official Languages Act only in their original language.
[6] On November 8, 2024, the decisions rendered before 1970 were removed from the SCC's website.
B. Historical and procedural context
[7] Following the filing of the application, between December 5, 2024 and April 2, 2025, the parties consented to several adjournments to: (1) allow affidavits to be sworn on both sides; (2) allow a supplementary affidavit to be filed by the plaintiffs; and (3) clarify and set deadlines for complete records.
[8] On April 2, 2025, Associate Judge Molgat ordered that the plaintiffs file their completed record by July 11 and that the defendants do the same by August 4.
[9] On June 25, 2025, Associate Judge Molgat held a case management conference and, with the consent of the parties, extended the deadlines set on April 2. Pursuant to Rules 309 and 310 of the Federal Courts Rules, SOR/98-106 [the Rules], the new deadlines were as follows: (1) the plaintiffs were to serve and file their records by July 25; and (2) the defendants were to do the same by August 29. The hearing of the application was set to for a day and a half on October 27 and 28.
[10] I note that the August 29 deadline for the defendants was set was in response to a verbal request at the case management conference because defendant's counsel would be on vacation. The plaintiffs consented to this extension and out of fairness, received their own extension to July 25.
[11] On July 25, the plaintiffs filed their record and memorandum. On August 28, the eve of the August 29 deadline, the defendant applied for a further seven-day extension to revise, edit and correct its file.
[12] On September 5, seven days after the deadline, the defense served its record on the defendants and filed it in the registry. The same day, they applied for leave to file an additional affidavit.
[13] The plaintiffs opposed the extension of the deadline. They also opposed the motion for leave to file an additional affidavit because they took the position that the Court should forbid the defendant from making arguments in new areas not already explored by the plaintiff's record. As a result of their position, the defendant's record was removed from the Court's docket on September 12 by a directive of Associate Judge Molgat. On October 23, this directive and the status of the defendant's record were clarified in a message sent to the parties:
Faisant suite à la directive du 12 septembre 2025 et par souci de clarté, le dossier du défendeur, présenté au greffe le 5 septembre 2025 avec son dossier de requête en prorogation de délai et faisant l'objet de ladite requête, est placé au dossier de la Cour comme ayant été reçu, mais non déposé selon la Règle 310.
Following the September 12, 2025 directive and in the interests of clarity, the record of the defendant, which was presented to the registry on September 5, 2025 with a motion to extend its filing deadline, was received by the Court but not filed within the meaning of Rule 310.
II. Analysis
[14] The two applications have been argued in writing pursuant to Rule 369 of the Rules. The first, a motion to extend the deadline for filing, is pursuant to Rule 8, while the second, an application for leave to file an additional affidavit, is pursuant to Rule 312(a).
A. Motion to extend deadline
[15] Rule 8 of the Rules confers a discretionary power on the Court to extend a deadline to allow a party to comply with an order.
[16] To be granted such relief, a party must generally satisfy four criteria established by the Federal Court of Appeal: (1) show a continuous intention to pursue the application; (2) demonstrate potential merit to the application; (3) establish that the delay does not prejudice the other party; and (4) provide a reasonable explanation for the delay (Thompson v. Canada (Attorney General), 2018 FCA 212 [Thompson] at para. 5; Canada (Attorney General) v. Larkman, 2012 FCA 204) at para. 61; Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA) at para. 3.
[17] These criteria are disjunctive. An extension may be granted even if not all of the criteria are satisfied (Larkman at para. 62).
[18] The power is grant an extension is discretionary. The criteria guide the exercise of discretion without limiting it. The overriding consideration is that of "the interests of justice" (Larkman at para. 62 and 85). The Court must show flexibility in the application of the criteria and decide, in each circumstance, whether it is in the interests of justice to grant an extension or not (Thompson at para. 6; Larkman at para. 62).
(1) Analysis of the criteria
[19] The plaintiffs concede that the first criterion, a continuous intention to pursue the application, is satisfied.
[20] On the second criterion, the plaintiffs contend that, absent submissions from the defense on this criterion, this criterion is impossible to evaluate. The plaintiffs argue that, because the burden of establishing the criteria are satisfied is on the defendants, their lack of evidence militates against granting an extension.
[21] I note however that, despite the non-conformance with June 25 order, the defendant's record was served on the plaintiffs on September 5. Even though the record was not properly filed in the registry, the documents demonstrate the serious nature of the primary question before the Court.
[22] On the third criterion, prejudice arising from the delay, the plaintiffs argue that this is the third incident imputable to the defense, leading to yet another delay in the file. In their view, respecting deadlines is a fundamental principle in the administration of justice which guarantees stability in the progression of an application. They add that the identity of the defendant confers greater importance on this principle.
[23] The plaintiffs submit that given the fixed hearing date, any delay results in a real prejudice. Granting the extension to the defense would create a procedural inequity by conferring an undue advantage and reducing the time available to the plaintiffs to prepare for possible interlocutory steps before the hearing in October. They add that a "short extension of seven days" is misleading because the effects of such a delay will be felt beyond this period.
[24] The plaintiffs filed their opposition on September 5 and the defense submitted a reply on September 10. In the circumstances and with limited availability of judicial resources available to hear applications, the defendants' request has caused a delay that exceeds the extension sought, delaying the hearing on the merits from October 2025 to January 2026.
[25] I note that this new date was selected due to the joint unavailability of both parties. The Court offered hearing dates in both November and December 2025. The delay does not confer an undue advantage on the defender, whose record was received and served on September 5, and does not reduce the amount of time available to prepare for possible interlocutory steps before the hearing on the merits.
[26] In my view, the third criterion is satisfied.
[27] On the fourth criterion, the explanation for the delay, the plaintiffs submit that an extension of time should not be granted without a reasonable explanation, and even more so when it would be the second occurrence of disrespect of a court order. They recall that the defendants already obtained an extension for counsels' vacation and note that they are now using the same reason. In their view, neither vacation nor a lack of time constitute exception circumstances. There was no force majeure nor any unforeseen circumstances, only times constraints that could have been anticipated and planned around.
[28] I note that in Rule 8(2) of the Rules, a motion for an extension of time may be brought before or after the deadline. In the case at bar, the motion was brought on the eve of the deadline so there has been no non-compliance with a court order. I add that the criterion here requires a reasonable explanation, not force majeure nor an accident.
[29] The plaintiffs argue that the defendants' only grounds for an extension is vacation. Furthermore, they argue that the extension sought is excessive and express doubts and reservations about the actual necessity of the delay to finalize the memorandum.
[30] However, the affidavit of the registrar of the SCC specifies that: (1) writing, revising and editing the memorandum took longer than expected; (2) the summer vacation of RSCC counsel and staff contributed to the delay; and (3) that the delay is necessary to finalize the memorandum and to assure an adequate presentation of their arguments (at para. 4, 5 and 7).
[31] It is well-established that affidavits are presumed to be truthful absent reasons to doubt their accuracy (Maldonado v. Minister of Employment and Immigration, 1979 CanLII 4098 (FCA), [1980] 2 FC 302 at para. 5; Canelas Galindo c. Canada (Citoyenneté et Immigration), 2025 CF 1117 at para. 25). The affidavits of the registrar of the SCC, a lawyer and officer of the court, were made under oath and the plaintiffs' submissions did not question the veracity of the grounds of the motion to extend time.
[32] For the reasons set out above, I conclude that the defense has provided a reasonable explanation for the delay.
(2) The interests of justice
[33] According to the plantiff, with regards to the criteria and the circumstances, it would be manifestly against the interests of justice to grant an extension.
[34] The plaintiffs argue that the behaviour of the defendant shows a lack of deference for the Court and a lack of respect for its procedures. According to them, allowing an extension would discredit the administration of justice by tolerating conduct which undermines respect in its procedures. They add that since the defendant is the RSCC, a public institution being judged for its actions by the Federal Court, its comportment is even more concerning because it falls below the standard for an organization of this class.
[35] The plaintiffs invoke the identity of the defendant to analyze the three criteria and the interests of justice. With respect, I am of the view that the identity of the defendant, in this case the RSCC, does not justify a more rigorous standard nor a stricter application of criteria than usual.
[36] The Court must answer a complex and important question which requires complete and extensive arguments from the two parties. Pursuant to Rule 3, the Rules should be interpreted to result in an outcome which is "just, most expeditious and least expensive". The interests of justice and the spirit of this rule support granting the extension to the defendants.
B. The additional affidavit
[37] Rule 312(a) of the Rules allow a party to file an additional affidavit with leave of the court. In the exercise of this discretion, the Court applies the principles as established by the jurisprudence (Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 88 at para. 6, citing Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 101 at para. 2).
[38] To obtain leave, a party must first show that the affidavit is relevant and admissable. Once these requirements are satisfied, the party must establish that the admission of the new affidavit is in the interests of justice.
[39] In its analysis, the Court can consider whether: (1) the affidavit sought to be adduced was available when the party filed its affidavits under Rule 306 or 308, as the case may be, or could it have been available with the exercise of due diligence; (2) the affidavit is useful, that is whether is relevant to an issue to be determined and sufficiently probative that it could affect the result; and (3) the affidavit will cause substantial or serious prejudice to the other party.
[40] The additional affidavit, swown by the Registrar of the SCC, Ms. Chantal Carbonneau, has two main topics: (1) clarification of the removal of pre-1970 decisions from the SCC website; and (2) the translation of certain important decisions rendered before 1970.
[41] In her supporting affidavit and additional affidavit, Ms. Carbonneau indicates that the latter corrects certain information submitted by the plaintiffs. After reading the platintiff's record, she decided that it was necessary to clarify that no documents were destroyed and that the pre-1970 decisions were simply de-indexed (removed) from the website for preventative reasons. This retraction, done without admitting the correctness of the plaintiffs' position, was done to avoid criticism of the RSCC for its failure to comply with its Official Languages Act obligations.
[42] In its memorandum (at paras. 78-83), the plaintiffs levy serious accusations against the RSCC. They accuse the defendants of destroying evidence and ask the Court to draw an adverse inference here, alleging a lack of good faith and respect to the claim, specifically in relation to punitive damages (at para. 82).
[43] The RSCC acknowledges that these accusations were already made in-part in Mr. Boucher's affidavit sworn on December 9, 2024. However, the plaintiffs' July 28, 2025 included further allegations of a lack of good faith and intentional destruction of evidence while litigation was ongoing.
[44] Even though the RSCC had a general sense of the plaintiffs' allegations before reading their memorandum, it cannot be said that they were in a position to respond to them. The development of the plaintiff's allegations in their memorandum made it evident that the RSCC ought to clarify the retraction of pre-1970 decisions from the SCC's website.
[45] In her supporting affidavit, Ms. Carbonneau states that the additional affidavit also adds additional information on the translation of historical SCC decisions. She says that on July 29, 2025, an independent panel of two retired judges of the SCC selected twenty-four judgments to translate, that the RSCC began this work and that the first translation would be available in fall 2025.
[46] Ms. Carbonneau adds that the RSCC received a new cost estimate for translating the six-thousand decisions rendered by the SCC between 1877 and 1970. These costs, initially evaluated to be around ten-million dollars in 2023, were now estimated to be between 62.6 and 68.9 million dollars.
[47] The criteria guiding the Court's discretion must be applied flexibly with regards to the special circumstances of applications under s. 77 of the Official Languages Act (Bossé v. Canada (Public Health Agency), 2023 FCA 199 at para. 24; Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) (F.C.A.), 2004 FCA 263 at para. 20).
[48] The additional affidavit is relevant and admissable with regards to Rule 312(a) of the Rules and the jurisprudence. The facts which the defendants wish to place into evidence are: (1) a necessary factual correction to the plaintiffs' record (para. 1-3 of the additional affidavit); (2) new facts that the defendant did not have access to during the swearing of the initial affidavits (para. 4-11 of the additional affidavit).
VI. Disposition
[49] For these reasons, the motion to extend the deadline and the application for leave to file an additional affidavit are allowed, without costs.
THE COURT ORDERS that:
- The defendant's record that was received by the registry on September 5, 2025 is deemed filed on that date and Ms. Chantal Carbonneau's September 5, 2025 affidavit is deemed filed as of September 5, 2025.
- Parties are bear their own costs.
"Denise A. LeBlanc"
Deputy Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2936-24 STYLE OF CAUSE: DROITS COLLECTIFS QUÉBEC ET ETIENNE-ALEXIS BOUCHER c. BUREAU DE LA REGISTRAIRE DE LA COUR SUPRÊME DU CANADA MOTION IN WRITING CONSIDERED AT FREDERICTON, NEW BRUNSWICK, PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES JUDGMENT AND REASONS: DEPUTY JUDGE DENISE A. LEBLANC DATED: NOVEMBER 5, 2025
WRITTEN REPRESENTATIONS BY:
Mr. Raymond Doray
Mr. Guillaume Laberge
FOR THE APPLICANT
Mr. François Côté FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lavery, De Billy, SENCRL FOR THE APPLICANT
Mr. François Côté, LLD FOR THE RESPONDENT