Question Period Note: Labour Market Development Agreements

British Columbia Labour Market Development Agreement (LMDA) Federal Court Case

• The Government of Canada recognizes the importance of providing employment services and skills training in both official languages.

• The Government of Canada has reviewed the Federal Court of Appeal’s decision regarding the Labour Market Development Agreement with British Columbia.
• On March 24, 2022, the Government of Canada filed the motion for a stay of the ruling.
• The Government of Canada provides more than $3 billion a year through the bilateral labour market transfers with provinces and territories.

• In 2020-2021, more than 147,000participants in British Columbia received training and employment services under the transfers.

• These labour market transfers provide crucial supports to individuals and employers, most recently during the pandemic. Since the beginning of the pandemic, more than 500,000 individuals that were in receipt of federal emergency income benefits took training and employment supports funded by the labour market transfers.

In 2009, Canada signed the Canada-British Columbia (BC) Labour Market Development Agreement (LMDA) to deliver employment insurance (EI) -funded training and employment supports that were previously provided by the Government of Canada, to British Columbians.

In 2020-2021, $329 million was provided to BC under the LMDA, providing training and employment supports to more than 81,000 British Columbians.

On March 18, 2011, the Fédération des francophones de la Colombie-Britannique (FFCB) filed a complaint with the Commissioner of Official Languages (the Commissioner) against ESDC and the Employment Insurance Commission (EIC) regarding the closure of five provincially funded Francophone Employment Services Centres in the province of British Columbia.

An investigation was conducted and in June 2013 the Fédération des francophones de la Colombie-Britannique (FFCB) filed a Notice of Application in Federal Court against Employment and Social Development Canada (ESDC) and the Canada Employment Insurance Commission. The final report was released by the Office of the Commissioner of Official Languages in 2013.

The FFCB alleged breaches of Part IV and Part VII of the Official Languages Act with respect to the access and quality of employment assistance services provided in French by the province of British Columbia under the LMDA.
Part IV of the Official Languages Act pertains to the Government of Canada’s responsibilities related to communications with and services to the public, including services to Canadians provided “on behalf of” Federal Institutions
Part VII of the Official Languages Act pertains to the advancement of English and French by enhancing the vitality of English and French linguistic minority communities, in particular responsibilities of the Government of Canada to take positive measures to ensure the implementation of commitments to vitality.

In late 2014 and 2015, attempts to resolve the dispute through informal mediation were pursued but failed. The case was heard in Federal Court in May 2017.

In May 2018, the Federal Court dismissed the FFCB’s application. The Court concluded that Part IV of the Official Languages Act does not apply to the LMDA as British Columbia is not acting on behalf of ESDC and the Canada Employment Insurance Commission, the province is acting under its own jurisdiction, not under federal delegation or control.

The Court also concluded that ESDC and the Canada Employment Insurance Commission had taken positive measures to ensure the implementation of commitments to vitality of linguistic minority communities at the time the complaints were filed. Costs were awarded to FFCB in recognition of the fact that it raised a novel and important question of law related to the Official Languages Act.

Both FFCB and the Office of the Commissioner of Official Languages filed separate notices of appeal to the Federal Court of Appeal. On September 20, 2019, the Attorney General of Canada filed its factum in response.

On October 20, 2019, the Association des juristes d’expression francophone du Nouveau- Brunswick and the Quebec Community Groups Network submitted their factum to the Federal Court of Appeal. On November 20, 2019, the Attorney General of Canada submitted its factum in response to the two interveners.

The case was heard by the Federal Court of Appeal on October 27-28, 2021. On January 28, 2022, the court ruled that the Government of Canada must provide BC, within 60 days (by March 29, 2022), notice to terminate the Canada-BC LMDA in its present form as of April 1, 2024.

The court further ruled that in the meantime, the Government of Canada can amend the BC LMDA by mutual consent in order to insert terms requiring the implementation of the BC LMDA in compliance with their obligation towards B.C.’s French linguistic minority community under Part VII of the OLA.

Further, the court ruled that the Government of Canada must, either under an amended LMDA or after its termination, restore the network of employment assistance services with the participation of the Francophone organizations based on the model that existed before the signing of the LMDA, while taking into account the current needs of B.C.’s French linguistic minority community.

On March 24, 2022, the Government of Canada filed the motion for a stay of the Federal Court’s ruling.

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