Canada (Commissioner of Official Languages) v. Office of the Superintendent of Financial Institutions

Canada (Commissioner of Official Languages) v. Office of the Superintendent of Financial Institutions
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-08-04
Neutral citation
2021 FCA 159
File numbers
A-355-19, A-453-19
Notes
Une correction fut apportée le 23 mars 2023.
Reported Decision
Decision Content
Date: 20210804
Dockets: A-355-19
A-453-19
Citation: 2021 FCA 159
[ENGLISH TRANSLATION]
CORAM:
DE MONTIGNY J.A.
RIVOALEN J.A.
LOCKE J.A.
Docket: A-355-19
BETWEEN:
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Appellant
and
OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS
Respondent
and
CANADIAN NATIONAL RAILWAY COMPANY
Intervener
Docket: A-453-19
BETWEEN:
ANDRÉ DIONNE
Appellant
and
OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS
Respondent
Heard by online video conference hosted by the Registry
on June 9 and 10, 2021.
Judgment delivered at Ottawa, Ontario, on August 4, 2021.
REASONS FOR JUDGMENT BY:
RIVOALEN J.A.
CONCURRED IN BY:
DE MONTIGNY J.A.
LOCKE J.A.
Date: 20210804
Dockets: A-355-19
A-453-19
Citation: 2021 FCA 159
CORAM:
DE MONTIGNY J.A.
RIVOALEN J.A.
LOCKE J.A.
Docket: A-355-19
BETWEEN:
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Appellant
and
OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS
Respondent
and
CANADIAN NATIONAL RAILWAY COMPANY
Intervener
Docket: A-453-19
BETWEEN:
ANDRÉ DIONNE
Appellant
and
OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS
Respondent
REASONS FOR JUDGMENT
RIVOALEN J.A.
I. INTRODUCTION
[1] André Dionne and the Commissioner of Official Languages of Canada (the Commissioner) are appealing the judgment delivered on July 3, 2019 (amended on September 20, 2019) by Justice Annis of the Federal Court (2019 FC 879) (the Decision). That judgment concerns an application for a Court remedy brought under section 77 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the OLA). Mr. Dionne’s application flowed from a complaint made to the Commissioner against his employer, the Office of the Superintendent of Financial Institutions (the respondent).
[2] In the present case, the Court is being asked to determine the nature and scope of the principle of the substantive equality of language rights with respect to the language of work within federal institutions, and the duty of those institutions to ensure that, in prescribed bilingual regions, their respective work environments are conducive to the effective use of both official languages and accommodate the use of either official language by their employees. Mr. Dionne alleges that the respondent breached its language duties toward him, as an employee holding a bilingual position and working at an office located in a prescribed bilingual region (Montréal), under sections 34, 35 and 36 of Part V of the OLA.
[3] More specifically, Mr. Dionne alleges that, to perform his primary duties, he was forced to work in English with unilingual employees located in a non‑prescribed region (Toronto), in breach of paragraph 36(1)(a) or, in the alternative, of subsection 36(2) of the OLA. He also alleges that he was required to work with regularly and widely used documents produced exclusively in English, in breach of paragraph 36(1)(a), as well as regularly and widely used computer systems available only in English, in breach of paragraph 36(1)(b).
[4] The Federal Court dismissed all of Mr. Dionne’s arguments in support of his application for judicial review.
[5] As for the Commissioner, intervener at trial, he was granted leave to appeal as a party in an order rendered by Justice Martineau of the Federal Court on January 12, 2017. In particular, that order granted the Commissioner leave to make written and oral submissions and to appeal any decision of the Court on a question of law as could a party, with the understanding that the leave to appeal would be limited to questions of law. The Commissioner submits that the errors of law committed by the Federal Court have serious consequences on the interpretation of language rights in Canada and have the effect of arbitrarily restricting the scope of the provisions set out in Part V of the OLA.
[6] The Canadian National Railway Company was granted leave to intervene in this appeal by order of this Court dated December 3, 2020. Its intervention is limited to questions of law concerning the scope of the rights and duties under section 36 of the OLA.
[7] Part V of the OLA imposes duties on federal institutions in prescribed regions within the meaning of section 35 with respect to the language of work in the public service. This Court is being asked to interpret, for the first time, the provisions setting out the minimum duties of federal institutions in prescribed regions, namely paragraphs 36(1)(a) and 36(1)(b) and subsection 36(2).
[8] Part XI of the OLA includes general provisions, including section 91, which limits the authorization to impose certain language profiles on staffing. Rejecting the position taken by all of the parties, the Federal Court concluded that this section was highly relevant to the interpretation of subsection 36(2) (Decision, paragraphs 22–23).
[9] Consequently, this Court’s task in this appeal is to examine the interpretation of paragraphs 36(1)(a) and 36(1)(b) and subsection 36(2) of the OLA and the relevance of section 91 of the OLA and to apply those provisions to the facts of this case to determine whether Mr. Dionne’s language rights were breached.
II. FACTS
[10] There is no dispute between the parties as to the facts set out by the Federal Court and they refer us in this regard to paragraphs 33 to 36 and paragraph 47 of the reasons of the Decision. For the purposes of this appeal, it is sufficient to provide a broad overview of the factual and procedural background.
[11] The respondent is a federal institution subject to the OLA. The respondent’s mandate includes the supervision of federal financial institutions to ensure their sound financial condition and compliance with the applicable statutes and regulations pursuant to paragraph 4(2)(a) of the Office of the Superintendent of Financial Institutions Act, R.S.C. 1985, c. 18 (3rd Supp.), Part I. The respondent is divided into four units, and one of those units—the Supervision Sector—is specifically dedicated to the implementation of that mandate.
[12] At the time of Mr. Dionne’s complaint, the respondent had four offices, one of which was located in a region prescribed under the OLA (Montréal) and another in a non‑prescribed region (Toronto). At that time, all of the employees at the Montréal office were assigned to the Supervision Sector. However, most of the “specialists” in the Supervision Sector worked from the Toronto office. Only one bilingual specialist position existed, and it was located in Montréal (Appeal Book, vol. IV, Affidavit of Natalie Harrington sworn on February 17, 2016, pages 936–37, paragraphs 13, 17).
[13] Mr. Dionne was based at the Montréal office and was a “generalist” and manager in charge of leading a team of four generalists that supervised financial institutions. His position as a manager required him to work on a regular basis with a team of unilingual English specialists located at the Toronto office. The generalists (or, in this case, their manager) frequently rely on the specialists’ expertise, especially when it comes to the various types of risk posed by the practices of regulated financial institutions. In the words of the Federal Court, which accepted the Commissioner’s findings, the specialists assist the generalists “in assessing specific inherent risks, so that they can determine overall risk and make recommendations to financial institutions” (Decision, paragraph 33).
[14] In addition to providing support to the generalists and their managers in highly specialized areas, this collaboration involves the sharing of information of a more general nature with the specialists. Indeed, according to Mr. Dionne’s testimony, [translation] “[m]anagers of supervision work closely with specialists” to ensure that the specialists are fully aware of the overall context of the financial institution being assessed (Decision, paragraph 37) (emphasis in the original).
[15] For Mr. Dionne, the extent of the consultation with the specialists varied depending on the file. For example, Mr. Dionne testified, in reference to a specific file, that he might consult the specialists on a daily basis or several times a week or month. He reports that, for that file, those interactions took place over a period of five years. Though he does not suggest that the support of the specialists in Toronto is always required, most files required their involvement and, thus, interactions in English. Indeed, according to Mr. Dionne, [translation] “every time supervisory activity required the participation of a specialist—which was most of the time—a large part of [his] work had to be done in English” (Decision, paragraph 37) (emphasis in the original). In addition, according to Mr. Dionne, all communications with the specialists were conducted exclusively in English, both verbally and in writing.
[16] Mr. Dionne also testified that, as a manager of supervision, he was bound by the reports made by specialists and was required to incorporate them into his final report to the financial institution. The financial institutions served by the Montréal office often requested service in French, requiring Mr. Dionne to act as a translator, a considerable additional task, to issue a report in French to the financial institution in question. In his testimony, Mr. Dionne emphasized that there was a risk of the translation being inaccurate, as translation was not his profession.
[17] It was under those circumstances that Mr. Dionne filed a complaint with the Commissioner against the respondent in a letter dated November 19, 2010. He alleged that his right to work in French had been constantly breached during his 22 years of service for the respondent (Appeal Book, vol. III, Affidavit of André Dionne sworn on December 23, 2015, Exhibit A, page 723).
[18] On January 7, 2014, following an investigation, the Commissioner produced a final report confirming that the complaint was justified with respect to five areas, namely: a) communications among employees in different regions; b) training; c) professional development; d) work tools; and e) computer systems. The Commissioner made a series of recommendations to correct the respondent’s breaches of its duties under the OLA. The Commissioner’s first recommendation urged the respondent to [translation] “[t]ake steps to make, by March 31, 2014, an objective determination of the language requirements for all positions where the incumbent provides Montréal office employees with training and professional development, so that these services are provided in the preferred official language of the employees in that office” (Decision, paragraph 59).
[19] In response to the Commissioner’s final report and accompanying recommendations, the respondent heightened the language profile of eleven (11) essential positions at the Toronto office. Those same manager and director positions in the Supervision Sector, which up to that point had been unilingual, were thus designated bilingual. The respondent’s official languages duties were also described in an organizational reference tool provided to all human resources specialists and managers responsible for staffing actions.
[20] In March 2015, in a final follow‑up report to the recommendations made, the Commissioner stated that he was of the opinion that his recommendations had been implemented.
[21] Dissatisfied with the final follow‑up report, Mr. Dionne applied for a Court remedy under section 77 of the OLA because he considered the Commissioner’s intervention to be insufficient to correct the problem in three main areas: a) the relationship between the unilingual English specialists at the Toronto office and the bilingual generalists at the Montréal office; b) the dissemination of the quarterly analysis documents prepared exclusively in English; and c) the use of computer systems available only in English.
[22] The Federal Court dismissed in its entirety Mr. Dionne’s application and held that: 1) the principles of interpretation set out in R. v. Beaulac, [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193 [Beaulac] did not apply in this case; 2) the unilingual specialists in Toronto do not provide a “service” to the bilingual generalists in Montréal within the meaning of paragraph 36(1)(a) of the OLA; 3) subsection 36(2) of the OLA does not impose a duty on the respondent to ensure that the specialists’ support is available in both official languages in prescribed bilingual regions; 4) section 91 of the OLA “has precedence” over the duties set out in subsection 36(2); 5) the dissemination of quarterly analysis documents is not in breach of paragraph 36(1)(a); and 6) the computer systems used by the respondent are not in breach of paragraph 36(1)(b).
[23] Mr. Dionne is asking this Court to set aside the Federal Court’s decision and to issue a judgment declaring that his rights were breached because the respondent did not fulfill its minimum duties under subsections 36(1) and 36(2) of the OLA. Mr. Dionne acknowledges that the evidence on record does not make it possible to determine whether the problems he raised were resolved by the measures adopted by the respondent and that it is therefore impossible for this Court to grant any remedy other than a declaratory judgment.
[24] The Commissioner is asking this Court to set aside the Federal Court’s decision and to declare that Part V of the OLA must be interpreted in accordance with its object, according to the principles established in Beaulac.
III. ISSUES
[25] Having reviewed the nature of the issues raised by the parties, I am of the view that we must determine whether the Federal Court erred:
In holding that the interpretive principles set out in Beaulac apply only to the language rights of a provincial language minority and not to Francophones in Quebec;
In holding that the unilingual specialists at the Toronto office do not provide a “service” to the bilingual generalists at the Montréal office within the meaning of paragraph 36(1)(a) of the OLA;
In holding that subsection 36(2) of the OLA does not impose a duty on the respondent to ensure that the specialists’ support is available in both official languages in prescribed bilingual regions;
In holding that section 91 of the OLA “has precedence” over the duties set out in subsection 36(2) of the OLA; and/or
In holding that the unilingual dissemination of quarterly analysis documents is not in breach of paragraph 36(1)(a) of the OLA and that the computer systems used by the respondent are not in breach of paragraph 36(1)(b) of the OLA.
IV. STANDARDS OF REVIEW
[26] The application to the Federal Court was brought under section 77 of the OLA. The relevant paragraphs of that provision for our purposes read as follows:
Application for remedy
Recours
77 (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV, V or VII, or in respect of section 91, may apply to the Court for a remedy under this Part.
77 (1) Quiconque a saisi le commissaire d’une plainte visant une obligation ou un droit prévus aux articles 4 à 7 et 10 à 13 ou aux parties IV, V, ou VII, ou fondée sur l’article 91, peut former un recours devant le tribunal sous le régime de la présente partie.
…
[…]
Order of Court
Ordonnance
77 (4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.
77 (4) Le tribunal peut, s’il estime qu’une institution fédérale ne s’est pas conformée à la présente loi, accorder la réparation qu’il estime convenable et juste eu égard aux circonstances.
[27] This Court discussed the particular nature of the remedy provided for in section 77 of the OLA in Canadian Food Inspection Agency v. Forum des Maires de la Péninsule Acadienne, 2004 FCA 263, [2004] 4 F.C.R. 276, at paragraphs 15–21 [Forum des maires]; see also DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, at paragraphs 32–38 [DesRochers]). In that case, the Court emphasized, correctly, that any application brought under section 77 concerns the cogency of the complaint made to the Commissioner, and not the cogency of the Commissioner’s report. As the Court explained, “the capacity as an ‘applicant’ to the Court is derived from the capacity as a ‘complainant’ to the Commissioner”, though the report is to some extent a precondition to the exercise of the remedy provided in section 77 (Forum des maires at paragraph 17). However, the Commissioner’s “decision”—or rather, the Commissioner’s report—is not subject to such a remedy; only the arguments made in support of the complaint are truly at issue. The remedy provided for in section 77 therefore does not concern a “decision” of a federal tribunal and cannot be likened to an application for judicial review within the meaning of section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F‑7 (Forum des maires at paragraph 18). In the Court’s view, the application provided for in section 77 “is basically similar to an action” that can be decided by a trial court (Forum des maires at paragraph 19).
[28] In such a context, the case before this Court is not an appeal against a decision on judicial review, thus precluding the application of the analytical framework in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, but rather an appeal against a trial decision. Consequently, the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraphs 8, 10, 27 and 28 apply in this appeal. In other words, the standard of review on a question of law is correctness, and the standard of review on questions of fact or of mixed fact and law is palpable and overriding error, except where a question of law can be isolated, in which case it will be reviewed on the standard of correctness.
[29] In this case, the evidence available on the record to the Court is rather limited. The respondent submitted no evidence at trial to explain why, at the time of the complaint, it had decided to locate its team of specialists in Toronto. This factual vacuum makes this type of case poorly suited to remedial orders issued by an appellate court.
[30] I am of the opinion that the Federal Court made a number of errors of law, particularly with respect to the interpretive principles that form an integral part of the case law. Nevertheless, even by applying a broad and liberal interpretation to the provisions at issue in this case, I arrive at the same conclusion on the merits as the Federal Court with regard to the interpretation of paragraph 36(1)(a). As for the duties related to language rights derived from subsection 36(2), I find that the respondent’s practices (or rather its inaction) breached that provision at the time when Mr. Dionne made his complaint to the Commissioner.
[31] Regardless, I consider it important to provide a detailed response to the issues raised in this appeal to make the necessary corrections to the approach taken by the Federal Court and thus to clarify the state of the law with respect to language rights.
V. ANALYSIS
A. Did the Federal Court err in holding that the interpretive principles set out in Beaulac apply only to the language rights of a provincial language minority and not to Francophones in Quebec?
[32] There is no doubt in my mind that this first question must be answered in the affirmative, because the Federal Court clearly erred in law when it went astray from the principles set out in Beaulac. The parties also agree that the Federal Court repeatedly erred by failing to follow and apply the relevant legal principles with respect to the interpretation of language rights.
[33] It appears to me that the starting point for the Federal Court’s analysis is based on a false premise: the approach set forth in Beaulac applies only to the rights of a provincial language minority (Decision, paragraphs 88, 90). Thus, the purposive approach to interpretation is said not to apply to matters, such as this one, concerning the language rights of the Francophone minority on a pan‑Canadian scale (Decision, paragraph 97). As a Francophone from Quebec, Mr. Dionne is said not to be a member of a “provincial” language minority, but rather of a “national” language minority. The Federal Court also says that it is appropriate to examine the language of the provisions of Part V of the OLA, as dictated by the modern principle of interpretation, before turning to policy considerations typically associated with the purposive approach (Decision, paragraphs 114–15). Mr. Dionne and the Commissioner submit, correctly, that the Federal Court’s position is erroneous.
[34] From the outset, it should be noted that the Federal Court’s remarks have the effect of contrasting interpretive approaches that are essentially one and the same. Contrary to the Federal Court’s conclusion, the purposive approach set forth in Beaulac and the modern method of interpretation are not mutually exclusive. Rather, the modern approach dictates that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, at paragraph 21, citing E. A. Driedger, Construction of Statutes, (2nd ed. 1983), page 87). In this case, the “entire context” is defined by the interpretive principles pertaining to language rights, including the approach set forth in Beaulac.
[35] More important still, the distinction the Federal Court makes between the rights intended to protect a provincial official language minority and those of a pan‑Canadian Francophone minority is in no way supported by either the case law or the wording of the provisions at issue. Such a distinction could unduly restrict the scope of language rights, contrary to the doctrine of Beaulac. That case dictates the approach to be followed for any matters relating to “the equal status of Canada’s official languages and to ensure full and equal access to the country’s institutions by Anglophones and Francophones alike”, as the Supreme Court recently confirmed in Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261 at paragraph 20 [Mazraani]. It is therefore appropriate to take a closer look at that case.
[36] In Beaulac, the Supreme Court held that the establishment of institutional bilingualism requires “equal access to services of equal quality for members of both official language communities in Canada” (at paragraph 22) and that language rights have a remedial function because they provide redress for previous injustices that have been committed against the minority (at paragraph 19). Furthermore, language rights are positive rights that “can only be enjoyed if the means are provided” (at paragraph 20) and thus create “obligations for the State” (at paragraph 24). In short, they must be given a broad and liberal interpretation “in a manner consistent with the preservation and development of official language communities in Canada” (at paragraph 25).
[37] However, the Federal Court held that Beaulac “has nothing to do with institutional bilingualism or the denial of any rights of a pan‑Canadian Francophone minority, which has never been recognized as a community to which a purposive interpretation principle should apply” (Decision, paragraph 97). That holding is erroneous. The Federal Court was bound by the case law and erroneously made artificial distinctions from the approach set forth in Beaulac.
[38] Canada’s courts, including this Court, have confirmed and applied the principles set out in Beaulac numerous times with respect to the interpretation of language rights. The case law reflects a broad consensus, and I have no difficulty to conclude that a strict interpretation of language rights has been definitively rejected in favour of a purposive approach based on the principle of substantive equality (Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at paragraph 31; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, at paragraph 22 [Lavigne]; DesRochers at paragraph 31; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at paragraphs 29–30; Canada (Attorney General) v. Shakov, 2017 FCA 250, at paragraphs 75, 111–16, 119–22 [Shakov]; Mazraani at paragraph 20; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, 447 D.L.R. (4th) 1, at paragraphs 5–20).
[39] It is also important to keep in mind that Part V of the OLA, which pertains to the language of work in federal institutions, derives its legitimacy from subsection 16(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982, 1982, c. 11 (U.K.) (the Charter), which provides that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. Moreover, given its constitutional roots and its essential role in bilingualism, the OLA has quasi‑constitutional status (Lavigne at paragraphs 22–23; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340 at paragraph 12 [Thibodeau]).
[40] In the light of this rich case law and the principles set out therein, I agree with the appellants in this case, the Commissioner and Mr. Dionne, that the Federal Court erred at paragraphs 88, 90 to 107, 114 to 115 and 485 of the Decision.
[41] More specifically, the Federal Court erred when it held that the purposive approach applied only to the preservation of “provincial minority official language communities” (Decision, paragraph 90 et seq.). It created a false distinction between the rights intended to preserve a language minority on the “provincial” scale, and institutional bilingualism, intended to protect a language minority on the “national” scale. That distinction is not recognized in the law and the case law holds the opposite. It is also contrary to Parliament’s intent, as I will discuss later in these reasons. Language rights must be interpreted, according to Beaulac, “in a manner consistent with the preservation and development of official language communities in Canada” (at paragraph 25) (my emphasis).
[42] Furthermore, Beaulac clearly holds that its interpretive approach must be followed “in all cases” (at paragraph 25) (emphasis in the original). It should be noted that the principles established in Beaulac have been applied in recent cases, regardless of the official language community in question (see, for example: Mazraani at paragraph 20 (SCC); DesRochers at paragraph 31 (SCC); Tailleur v. Canada (Attorney General), 2015 FC 1230, [2016] 2 F.C.R. 415, at paragraph 51 [Tailleur]; Shakov at paragraphs 75, 111–16, 119–21 (FCA); Thibodeau v. Canada (Senate), 2019 FC 1474, at paragraph 28; Thibodeau v. Air Canada, 2019 FC 1102, at paragraph 40). In particular, three months prior to this case being heard before the Federal Court, our Court examined in Shakov the issue of whether the staffing of a management position that required fluency in English only was equivalent to the improper conduct prohibited by section 66 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13. This Court thereby examined the application of the interpretive principles established in Beaulac to Part V of the OLA (at paragraphs 75, 111–16, 119–21).
[43] Similarly, I am of the view that the Federal Court erred at paragraphs 98 to 107 of the Decision when it incorrectly attempted to compartmentalize and differentiate the principles and the objectives of the OLA to go further astray from Beaulac.
[44] In its analysis, the Federal Court propounded a narrow interpretation of the language rights of the pan‑Canadian Francophone minority on the basis of arbitrary conclusions about the Preamble and section 2 (Decision, paragraph 98). The Court undertook a rather peculiar exercise of associating the various paragraphs of the Preamble with either the objective of official bilingualism in federal institutions or the objective of the preservation and development of “provincial minority official language communities” (Decision, paragraph 100).
[45] More specifically, to support its conclusion, the Federal Court stated, at paragraph 102 of its reasons, that the following paragraph of the Preamble of the OLA “can only refer to” provincial minority communities given that “[i]f one community is part of a larger community, it must be a different and smaller community”:
Preamble
Préambule
WHEREAS
Attendu:
…
[…]
AND WHEREAS the Government of Canada is committed to enhancing the vitality and supporting the development of English and French linguistic minority communities, as an integral part of the two official language communities of Canada, and to fostering full recognition and use of English and French in Canadian society;
qu’il s’est engagé à favoriser l’épanouissement des minorités francophones et anglophones, au titre de leur appartenance aux deux collectivités de langue officielle, et à appuyer leur développement et à promouvoir la pleine reconnaissance et l’usage du français et de l’anglais dans la société canadienne;
[46] However, that interpretation is excessively narrow and is contrary to the objectives of language rights. A broad, liberal and purposive interpretation of that paragraph leads to the conclusion that no distinction can be made between provincial and national language minorities, since they are not mentioned. Moreover, that is the only interpretation consistent with “the preservation and development of official language communities in Canada” and the principle that “[l]anguage rights must in all cases” be interpreted in this manner, regardless of the community in question (Beaulac at paragraph 25) (emphasis in the original). Consequently, contrary to the Federal Court’s conclusion, there is no distinction between the language rights intended to preserve a provincial language minority and those promoting institutional bilingualism.
[47] Lastly, I consider it important to address certain concerning remarks by the Federal Court. In its analysis rejecting a purposive interpretation of the provisions of the OLA, the Federal Court, in particular, rejected the appellants’ argument that Beaulac prohibits Parliament from restricting the rights of bilingual Canadians to choose the official language they use at work on the grounds that they are able to communicate in both languages; the appellants argued that such a restriction would disadvantage official language minorities whereas the objective of the Act is to support them. By rejecting that argument, the Federal Court also endorsed the idea that the Francophone minority receives preferential treatment in the federal public service. For example, although Parts IV and V of the OLA protect the official language minorities, the Federal Court refutes the appellants’ argument by insisting on its view that “the Francophone official language community, by its greater proficiency in bilingualism . . . already holds a somewhat advantageous position by the effect of the Parts IV and V of the Act” and that “the services and language of work provisions of the OLA provide the Francophone community with a competitive employment advantage in bilingual regions” (Decision, paragraphs 110, 112) (emphasis in the original). However, for the reasons described above and in the light of the objectives of the OLA, which I will address in the paragraphs to follow, I am of the view that these comments are unacceptable and reflect negative stereotypes that call into question the value of Francophone employees in the public service.
[48] For all of these reasons, I conclude that the Federal Court erred in law as it went astray from the principles set out in Beaulac.
[49] Nevertheless, even when the interpretive principles of Beaulac are followed, for the reasons set out below, I cannot conclude that the unilingual specialists at the Toronto office provide a “service” to the bilingual generalists at the Montréal office within the meaning of paragraph 36(1)(a) of the OLA.
B. Did the Federal Court err in holding that the unilingual specialists at the Toronto office do not provide a “service” to the bilingual generalists at the Montréal office within the meaning of paragraph 36(1)(a) of the OLA?
[50] Paragraph 36(1)(a) of the OLA, which is central to the appellants’ arguments, reads as follows:
Minimum duties in relation to prescribed regions
Obligations minimales dans les régions désignées
36 (1) Every federal institution has the duty, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), to
36 (1) Il incombe aux institutions fédérales, dans la région de la capitale nationale et dans les régions, secteurs ou lieux désignés au titre de l’alinéa 35(1)a) :
(a) make available in both official languages to officers and employees of the institution
a) de fournir à leur personnel, dans les deux langues officielles, tant les services qui lui sont destinés, notamment à titre individuel ou à titre de services auxiliaires centraux, que la documentation et le matériel d’usage courant et généralisé produits par elles-mêmes ou pour leur compte;
(i) services that are provided to officers and employees, including services that are provided to them as individuals and services that are centrally provided by the institution to support them in the performance of their duties, and
[blanc]
(ii) regularly and widely used work instruments produced by or on behalf of that or any other federal institution;
[blanc]
[51] I will pause here to note that, although the OLA has been in effect for over 50 years, this is the first time that this Court has dealt with a case concerning the interpretation of paragraph 36(1)(a) and subsection 36(2). This is unsurprising, given the magnitude of the task for those who wish to litigate such cases before the Courts.
[52] Clearly, cases concerning language of work rights are possible only if employees who feel they have been wronged by their employer’s actions (or inaction) make a complaint to the Commissioner. I acknowledge the courage and perseverance that Mr. Dionne has shown throughout this process, first as a complainant to the Commissioner and later as an applicant before the Federal Court and now as an appellant before this Court. I think it is people like Mr. Dionne who advance the state of the law in the area of language rights and, for that reason, I particularly commend his participation in the controversy concerning the interpretation of Part V of the OLA. In these circumstances, and given the subtleties of the arguments presented by Mr. Dionne and the other parties, I think it is important to consider the various interpretations of paragraph 36(1)(a) that have been submitted to us.
(1) Appellants’ arguments
[53] From Mr. Dionne’s submissions, I essentially gather that he is seeking a certain balance. He is not seeking to have every specialist position in Toronto designated bilingual, nor that every potential interaction be conducted exclusively in French. Instead, he is arguing that it should be possible for certain verbal and written interactions between him and a Toronto specialist to be conducted in French, and that he should not be systematically required to interact in English.
[54] Mr. Dionne submits that the support the specialists provide to the generalists’ work constitutes a “service” within the meaning of paragraph 36(1)(a) of the OLA. Correctly interpreted, the word “service” designates any assistance required to enable the employees to perform the duties associated with their respective positions. According to Mr. Dionne, the Federal Court provided an excessively narrow interpretation of the meaning of the word “service” in concluding that “the concept of providing a service and being a member of the [same] team are mutually exclusive” (Decision, paragraph 220). He submits that such an interpretation is contrary to the object of paragraph 36(1)(a), would lead to absurd outcomes and is not supported by the wording, context or relevant interpretive principles. According to Mr. Dionne, if any “complementary” support regularly provided within a “team” were excluded from the scope of paragraph 36(1)(a), that provision would presumably be stripped of its substance.
[55] In accordance with the modern method of statutory interpretation, Mr. Dionne argues that it is first necessary to define the ordinary and grammatical meaning of the word “service” and of the related phrases “services that are provided to them as individuals” and “services that are centrally provided.” In that regard, he submits that paragraph 36(1)(a) applies to all “services” intended for employees of a federal institution. The “services that are provided to them as individuals” and “services that are centrally provided” thus constitute sub‑categories of a more general concept. Furthermore, Mr. Dionne sees the use of the word “including” in paragraph 36(1)(a) as an indication that the specific types of services referred to in that provision do not limit the scope of the general word “service.” Mr. Dionne also notes that a common meaning emerges from the definitions of “service” in both languages, namely that a service is an activity or a series of activities intended to assist or support another person, particularly by providing an advantage or performing an act that will be helpful to that person.
[56] Mr. Dionne then invites us to place the word “service” in its overall context, in the light of the objects of section 36 and of Part V and of the general scheme of the OLA. Mr. Dionne insists on the fundamental distinction made in Part V between two types of regions: prescribed bilingual regions and non‑prescribed regions. In the light of that distinction, the object of section 36 is to guarantee that, in prescribed bilingual regions, the use of either official language within the public service will be considered a standard, and not an accommodation (Beaulac at paragraphs 20, 24; Tailleur at paragraph 44). As for the general scheme of the OLA, or, more specifically, of Part V, Mr. Dionne submits that, in view of the combined effect of section 34 and subsection 35(1), any bilingual employee working in a prescribed bilingual region has the right to a work environment that is conducive to the use of both official languages and that accommodates their use. That would quite logically imply: a) the right to work in the language of the employee’s choice; and b) the right to use either language in other work‑related activities that are not directly associated with the performance of the employee’s duties. The minimum duties set out in paragraphs 36(1)(a) to (c), intended to promote a “conducive” work environment, are said to relate to the former: employees have the right to work in the language of their choice. As for the duty of federal institutions to take additional measures “as can reasonably be taken” under subsection 36(2), it is intended to protect the right to use either language in other work‑related activities.
[57] Mr. Dionne also submits that, if the Federal Court’s interpretation were to be accepted, it would follow that the provision is ambiguous becau