Date:
File: T-2936-24
Ottawa (Ontario), July 7, 2025
Presiding: Case Management Judge Sylvie M. Molgat
BETWEEN:
DROITS COLLECTIFS QUÉBEC and
ETIENNE-ALEXIS BOUCHER
Plaintiffs
and
REGISTRAR OF THE SUPREME COURT OF CANADA
Defendant
JUDGMENT
HAVING CONSIDERED the motion in writing, submitted by the Fédération des associations de juristes d'expression française de common law inc. [FAJEF] pursuant to Rules 109 and 369 of the Federal Courts Rules, SOR/98-106 [Rules], which seeks:
- (i) leave to intervene in the present proceeding;
- (ii) leave to file an affidavit at most twenty (20) pages long within 15 days of the filing of the plaintiffs' dossier;
- (iii) leave to file a memorandum at most twenty (20) pages long within thirty (30) days of the service of the defendant's memorandum or another time limit which the Court deems reasonable and convenient;
- (iv) leave to make oral submissions at the hearing for at most forty-five (45) minutes or another duration allocated by the hearing judge;
- (v) an order that costs not be awarded against FAJEF in the underlying judicial review;
- (vi) an order that the intervenor application be decided without costs;
HAVING CONSIDERED the motion dossier of the FAJEF and the response dossier of the defendant;
Overview
The underlying proceeding, brought by Droits collectifs Québec and Étienne-Alexis Boucher, is an application for remedies pursuant to s. 77 of the Official Languages Act, RSC 1985, c. 31 [OLA] seeking a declaration that the defendant has not fulfilled its language obligations proscribed by the OLA, violated the language rights of the plaintiffs and in a similar manner, "a fait défaut de respecter et de veiller au respect des droits linguistiques de l'ensemble des citoyens et communautés Francophones du Canada" ("has failed to respect and safeguard the language rights of all Francophone citizens and communities across Canada").
In terms of relief, pursuant to s. 77(4) of the OLA, the plaintiffs seek "une lettre d'excuses formelle et officielle adressée aux citoyens et communautés Francophones du Canada pour avoir déconsidéré et enfreint leurs droits linguistiques et leur accessibilité à la justice en raison de son défaut de rendre l'ensemble de la jurisprudence de la Cour suprême disponible en langue française" ("a formal letter of apology addressed to the Francophone citizens and communities of Canada for having disrespected and infringed on their language rights and their access to justice due to their failure to publish the complete jurisprudence of the Supreme Court in French"), an order requiring the defendant to translate all pre-1970 Supreme Court of Canada [SCC] decisions that remain available on its website only in English and damages of one million ($1,000,000) dollars.
The FAJEF applies for leave to intervene in this proceeding. The proposed intervention includes the right to serve and file an affidavit and a memorandum. It also seeks leave to make oral submissions at the hearing on the merits.
The defendant opposes the intervention, describing it as not useful and being mainly a rehashing of the plaintiffs' arguments.
The plaintiffs did not respond to the FAJEF's motion.
Having considered s. 109 of the Rules and the applicable criteria, the motion is dismissed for the reasons that follow.
Applicable principles
Anyone seeking leave to intervene in a proceeding must explain, in its notice of motion, how it intends to participate in the proceeding, and "how that participation will assist the determination of a factual or legal issue related to the proceeding". Compliance with s. 109 and its listed conditions are mandatory: Pictou Landing First Nation v. Canada (Attorney General), 2014 FCA 21 at para. 10; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 102 [Tsleil-Waututh] at para. 31.
To satisfy the requirements of s. 109(2) of the Rules, a proposed intervenor must "show its potential contribution to the advancement of the issues on the table, not how it will change the issues on the table": Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34 [Canadian Doctors for Refugee Care] at para. 19.
The test for intervention pursuant to s. 109 of the Rules has three elements or criteria, those being usefulness, genuine interest and the interests of justice: Le-Vel Brands, LLC v. Canada (Attorney General), 2023 FCA 66 at paras. 7 and 19; Chelsea (Municipality) v. Canada (Attorney General), 2023 FCA 179 [Chelsea] at para. 9.
In particular, jurisprudence has clarified the following criteria and questions (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13 [Canadian Council for Refugees] at paras. 6 and 9; Chelsea at para. 9):
- I. The proposed intervener will make different and useful submissions, insights and perspectives that will further the Court's determination of the legal issues raised by the parties to the proceeding, not new issues. To determine usefulness, four questions need to be asked:
- (a) What issues have the parties raised?
- (b) What does the proposed intervener intend to submit concerning those issues?
- (c) Are the proposed intervener's submissions doomed to fail?
- (d) Will the proposed intervener's arguable submissions assist the determination of the actual, real issues in the proceeding?
- II. The proposed intervener must have a genuine interest in the matter before the Court such that the Court can be assured that the proposed intervener has the necessary knowledge, skills and resources and will dedicate them to the matter before the Court;
- III. It is in the interests of justice that intervention be permitted. In the determination of the interests of justice, the Court may consider, inter alia: (a) whether the intervention is compatible with s. 3 of the Rules (for example, whether the proceeding's progression or schedule be unduly disrupted); (b) whether the proceeding involves an important or complex question of public interest such that the Court ought to expose itself to perspectives other than those of the existing parties; (c) whether granting leave to multiple intervenors would lead to an "inequality of means" or an imbalance to one side or the apperance of such.
These criteria must be applied liberally and the weight of each criterion depends on the circumstances of the proceeding. The list of criteria is not exhaustive and it is not necessary to satisfy all of them. At the end of the day, the main consideration is whether the interests of justice require the Court of grant or deny leave to intervene: Canadian Council for Refugees at para. 7.
The raised issues are found in the notice of application. The plaintiff is required to include a specific statement of orders sought, as well as a complete and concise statement of supporting reasons. A proposed intervenor must take those issues as-is and may not change or add to them: Canadian Doctors for Refugee Care at paras. 18-21.
Intervenors in an application for judicial review must accept the file as-is and may not submit evidence directly or indirectly through submissions of facts or law. The proposed intervenor must limit its submissions to how it can assist the Court based on the existing evidence on file: Tsleil-Waututh at paras. 54-56; Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 [Teksavvy] at paras. 11 and 22; Canadian Doctors for Refugee Care.
Analysis
The FAJEF is a non-profit society founded in 1992 which gathers provincial and territorial Francophone jurist associations and Francophone advocacy organizations. Its mission is to promote and defend the language rights of Francophone and Acadian minorities, notably focusing on the access to justice in French throughout Canada. The FAJEF notably focuses on respect for and implementation of language rights proscribed by the OLA.
The defendant does not contest that the FAJEF has an interest in the proceeding before the Court and expertise in the domain of the official languages. They accept that the FAJEF satisfies the second criteria of genuine interest and that it possesses the necessary resources and competence. However, in their view, genuine interest does not justify granting leave to intervene.
Although the FAJEF cites several examples of matters related to constitutional or quasi-constitutional language rights where they were granted leave to intervene, eight of the nine proceedings were before the Supreme Court of Canada. However, the test for leave to intervene is more restrictive in this Court: Chelsea at para. 4 (see also Canada v. DAC Investment Holdings Inc., 2025 FCA 37 at paras. 3-5).
In regards to the first criteria for leave to intervene and the four sub-questions to determine the usefulness of the proposed intervention, the parties raise questions on the interpretation of Parts III and IV of the OLA. In particular, the meanings of the notions of "services" and "communications" to the public in ss. 21 and 22 of the OLA are contested. If the Court determines that the defendant is not compliant with the OLA, the parties contest whether the relief sought is "appropriate and just".
The FAJEF proposes to make submissions on the same two questions raised by the parties, those being: (a) the interpretations of ss. 21 and 22 of the OLA; and (b) whether it is just and convenient to order the translation and posting of French-language translations of judgments rendered by the SCC before 1970.
To this effect, the FAJEF argues that it offers a "distinct and pertinent" perspective of the Francophone minority outside Quebec and more specifically, the perspective of Francophone jurists who are required to reference judicial decisions to represent the interests and defend the rights of Francophone litigants.
The FAJEF's proposed submissions can be summarized as follows: that the posting of decisions of the SCC is not only a "communication" but also a "service" offered to the public under s. 22 of the OLA which the Francophone community ought to benefit from equally as the Anglophone community, and the importance of a wide and liberal interpretation of Part IV of the OLA. In regards to relief, the FAJEF proposes to emphasize that the removal of single-language judgments militates in favour of relief "plus musclée" ("even more severe").
As stated in its notice of motion, the FAJEF proposes to serve and file a twenty (20) page affidavit from its Executive Director, Mr. Rénald L. Rémillard, discussing the following eight topics: (a) the role and status of French in Francophone jurists' work outside of Quebec and the difficulties that they face while practicing in French; (b) the difficulties of access to justice in French outside Quebec; (c) educational initiatives for and development of Francophone jurists outside Quebec; and (d) the impact of single-language decisions from the Supreme Court of Canada on Francophone jurists outside Quebec.
The Court agrees with the defendant that the topics which the FAJEF proposes to cover exceed the scope of what is pertinent and useful in the interpretation of the defendant's obligations under the OLA.
Additionally, Rule 109 of the Rules does not allow an intevenor to bolster the defendants'TR1 evidence. "In considering this, it must be recalled that acting under the guise of having a different perspective, an intervener cannot adduce fresh evidence or make submissions that are in reality fresh evidence": Tsleil-Waututh at para. 48; Teksavvy at paras. 11 and 22.
Even if its submissions are not doomed to fail, that alone is insufficient to discharge FAJEF's burden to demonstrate that its submissions are actually distinct from those of the plaintiffs and to show how its perspective in the matter would be useful and assist the determination of a question of fact or law in the proceeding.
Even though it focuses on different aspects, for example the impact of the lack of translations on Francophone jurists outside Quebec, the FAJEF's proposed submissions are not sufficiently distinct in assisting the Court in deciding the actual, real issues in the proceeding.
To the contrary, considering the wide scope of the declaratory judgment and other relief sought by the plaintiffs, by a large measure, the Court finds that the proposed submissions would only reinforce and repeat the submissions of the plaintiffs.
The Court concludes that the FAJEF has not satisfied the first criterion, the usefulness of the proposed intervention. For this sole reason, the motion is dismissed.
Finally, in regards to the third criterion, the defendant alleges a lack of urgency on the part of the FAJEF in filing the present motion. Even though this is an important matter of public interest, the underlying questions are nevertheless not complex.
In regards to Rule 3 of the Rules, the defendant submits that the proposed intervention risks the complication and duplication of procedures. For the reasons set out above, the Court agrees.
Conclusion
Having concluded that the proposed intervention would not be useful, the Court is not persuaded that it is in the interests of justice that the FAJEF be granted leave to intervene in the judicial review. The motion is dismissed.
Even though the defendant was successful on this motion and sought costs, the Court exercises its discretion and finds that it would not be appropriate to award costs for this motion.
THE COURT ORDERS that:
- The FJAE'sTR2 motion to intervene is dismissed.
- Parties are bear their own costs.
"Sylvie M. Molgat" Associate Judge