The First Award of Damages for a Violation of Language Rights in New Brunswick: Ouellet v Horizon Health Network, Moncton Hospital, Province of New Brunswick

Overview

The case of Ouellet v Horizon Health Network, Moncton Hospital, Province of New Brunswick, 2025 NBBR 242 evokes the famous battle of David versus Goliath. It is one of the few decisions on language rights in which an ordinary citizen took on an imposing government and its institution.

The case concerns violations of Mr. Paul Ouellet’s language rights committed by the Horizon Health Network at Moncton Hospital.  Most importantly, it confirms that language rights are not merely symbolic: their violation may give rise to financial compensation.

The decision raises the following points, among others:

1. Horizon Health Network and the hospitals it operates must respect the right of members of the public to communicate with them and receive services in the official language of their choice;
2. A motion for summary judgment may be used to decide a constitutional law issue that involves, notably, a language rights issue;
3. This is the first decision by the New Brunswick courts awarding damages for a violation of language rights guaranteed by the Canadian Charter of Rights and Freedoms (the Charter).

Facts

In this case, Mr. Ouellet had to communicate frequently with Moncton Hospital between 2018 and 2020 to check on his brother and sister, both of whom were hospitalized. His official language of choice was French.

Between May and August 2020, Mr. Ouellet reported 13 violations of his language rights, which are the subject of this decision. The incidents primarily involved a failure to actively offer French and a lack of communication in French during calls made to various units at the Moncton Hospital. Some incidents also showed that employees had asked him to speak in English.

As the Court notes, this decision follows a series of three reports published by the Commissioner of Official Languages in response to multiple complaints filed by Mr. Ouellet. These reports concern incidents dating back to 2018.

It was in response to the Official Languages Commissioner’s reports containing recommendations – and due to the lack of sufficient changes in Horizon Health Network’s practices at the Moncton Hospital – that Mr. Ouellet filed this action in the Court of King’s Bench.

Legal Context

When a person believes that their language rights have been violated in New Brunswick, they have two avenues of recourse: (1) filing a complaint with the Commissioner of Official Languages; and (2) filing a lawsuit to assert the violation of their rights as recognized by applicable laws.

It is important to note that the case of Ouellet v Horizon Health Network was brought as a lawsuit, not as a judicial review of a decision by the Commissioner of Official Languages.

In this context, the New Brunswick Official Languages Act (OLA-NB) does not, on its own, provide for monetary compensation, except for the possibility of a declaration of violation.

On this point, Judge Hamou writes as follows:

94 […] The Legislature did not provide for a binding mechanism; according to the Plaintiff, the mechanism provided for by the Legislature has no teeth. Although it is curious that affirmative remedies are limited in this way, this is a choice made by the Legislature, while noting in subsection 43(20) of the OLA-NB that section 43 does not affect any other right of action that a person may have. This leaves open the possibility of an action under the Charter, as in the instant case (Town of Caraquet et al. v Minister of Health and Wellness, 2005 NBCA 34, at para 17)

Thus, even in the event of a violation of the OLA-NB, a person seeking damages must base their claim on a violation of the Charter, to the extent that it is applicable.

Summary Judgment

A summary judgment is an expedited procedure that allows the judge to address the merits of the case more efficiently than through the lengthy and costly trial process. In practice, summary judgment proceedings are conducted primarily through written submissions, generally speeding up the process and significantly reducing the legal costs associated with the litigation.

In the decision Ouellet v. Réseau de santé Horizon, Judge Hamou concluded that a summary judgment was appropriate, since the facts relevant to the decision were set forth in the parties’ affidavits and the defendants had all the information necessary to respond to the motion.  In other words, even though the matter was supposedly “complex” due to its constitutional nature, that circumstance alone did not justify dismissing the motion for summary judgment. Ultimately, the Court had all the facts necessary to resolve the dispute.

Arguments by the Horizon Health Network

The Horizon Health Network attempted to draw a distinction by arguing that Mr. Ouellet was not a person receiving a health service, but merely a visitor, which did not entitle him to language rights. The Court rejected this argument and clarified that actively offering and communicating in the language of choice is required when dealing with the public—any member of the public.

The Court also stated that “The fact that a member of the public understands the other language does not negate their right to choose to communicate and receive services in the language of their choice […]” and that failure to respond in the chosen language, or to refer the person to someone capable of doing so, constitutes a violation of section 27 of the OLA-NB and subsection 20(2) of the Charter (see para. 69).

The Horizon Health Network also alleged that Mr. Ouellet frequently changed his choice of official language and created a sense of intimidation among employees. The Court rejected this argument, noting that it is conceivable that a person unable to receive service in the language of their choice might, out of frustration or necessity, resort to the other language in order to facilitate communication (see para. 72).

Decision

The Court therefore concludes that there has been a violation of section 20(2) of the Charter and sections 27, 28, and 28.1 of the OLA-NB, reproduced below:

                Canadian Charter of Rights and Freedoms

20(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

New Brunswick Official Languages Act

27 Members of the public have the right to communicate with any institution and to receive its services in the official language of their choice.

28 An institution shall ensure that members of the public are able to communicate with and to receive its services in the official language of their choice.

28.1 An institution shall ensure that appropriate measures are taken to make it known to members of the public that its services are available in the official language of their choice.

In awarding Mr. Ouellet $5,000 in damages under section 24(1) of the Charter, the Court emphasizes that “It is the repeated violation of the Plaintiff’s language rights in this case and the stagnation in the implementation of an effective institutional response that militate in favour of a damage award.” (para 101(h))

The Court also awarded $7,500 in costs, noting that the action seeking to assert language rights required the assistance of a lawyer knowledgeable in this area, given the complexity of the legal arguments regarding language rights (para 104).

Key takeaways

• A violation of language rights guaranteed by the Canadian Charter of Rights and Freedoms may give rise to financial compensation.
• New Brunswick’s Official Languages Act offers few remedies when a person seeks financial compensation.
• A summary judgment may be appropriate for resolving a constitutional issue when the record allows for a fair and proportionate decision.

Dominic Caron and Sue Duguay of Pink Larkin were proud to represent Mr. Ouellet in these proceedings.

Disclosure:
The information provided here does not constitute legal advice and is based on details available at time of writing. Perspectives and interpretations around this information will vary depending on the individual circumstances to which they may apply. Consult legal counsel for information and advice relevant to your individual circumstances.