Dionne v. Office of the Superintendent of Financial Institutions

Dionne v. Office of the Superintendent of Financial Institutions
Court (s) Database
Federal Court Decisions
Date
2019-07-03
Neutral citation
2019 FC 879
File numbers
T-759-15
Notes
A correction was made on September 20, 2019.A correction was made on May 12, 2020.
Reported Decision
Decision Content
Date: 20190920
Docket: T-759-15
Citation: 2019 FC 879
Ottawa, Ontario, September 20, 2019
PRESENT: Mr. Justice Annis
BETWEEN:
ANDRÉ DIONNE
Applicant
and
OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES
Intervenor
AMENDED JUDGMENT AND REASONS
TABLE OF CONTENTS
I. Introduction 4
II. Abridged interpretive conclusions 7
III. Facts 17
A. The Applicant’s duties within the OSFI 17
B. Findings of fact 23
C. History of the complaint 25
(1) Chronology 25
D. Final investigation report 26
(1) Training and professional development services 26
(2) Work tools and computer systems 29
IV. Legal framework 30
V. Issues 30
VI. The Court has jurisdiction to consider whether the OSFI has complied with section 36(1)(c) and section 36(2). 31
VII. Principles of interpretation of institutional official language provisions of the OLA 36
(1) Purposive interpretation 36
(2) The jurisprudence only supports a purposive interpretation to assist provincial official language minority communities 37
(3) Parliament distinguished between the purpose of official bilingualism in federal institutions, and that of supporting provincial minority official language communities 41
(4) The OLA has re-balanced past disadvantages of the Francophone minority community in federal institutions 46
(5) The methodology of applying a purposive interpretation 48
(6) The bilingual interpretation of sections 36(1)(a)(i) and 36(2) 49
VIII. Services provided to federal institution personnel pursuant to paragraph 36(1)(a) of the OLA 52
A. Introduction 52
(1) Treasury Board Policies and Directives on Official Languages and Training and Professional Development 55
(a) The 2004 Policy on Language of Work 55
(b) The 2012 Policy on Official Languages 57
(c) 2017 Policy on Learning, Training, and Development 58
(2) The Submissions of the Parties on the Interpretation of the Services Provision 60
(a) The Applicant’s Submissions 60
(b) The Commissioner’s revised submissions 61
(c) The Respondent’s Submissions 63
B. The Interpretation of section 36(1)(a)(i) 66
(1) Introduction 66
(2) Define and follow the scheme of the provision 68
(3) Definitions of “services” 69
(4) Services provided to employees “as individuals” 73
(5) Services to support employees in the performance of their duties “services auxiliaires” 77
(a) The verbal phrase “provided to support employees in the performance of their duties” is redundant to the meaning of “services” 77
(b) “in the performance of duties” may be deduced contextually in the term “auxiliaire” 80
(6) Services are not required to be “essential” in the support of the performance of duties 81
(7) Services do not include assistance provided by “team employees” to each other in the performance of their duties 86
(8) Central Services 92
(a) “centrally provided” and “centraux” 92
(b) Respondent and Commissioner’s submissions 93
(c) Analysis of centrally provided services 95
C. Conclusion on the Interpretation of Official Language Obligations Pertaining to Services in section 36(1)(a)(i) 100
IX. The Interpretation and Application of Section 36(2) 101
A. Introduction 101
(1) Section 36(2) 101
(2) Section 91 103
B. The Parties’ Submissions 104
(1) Applicant 104
(2) Respondent 108
(3) The Commissioner’s 2014 Final Report 111
C. Section 91 and Collateral Bilingual Staffing 112
(1) No evidence that collateral bilingual staffing practices have been adopted by federal institutions 112
(2) The Parties’ submissions regarding section 91 that the scope of the complaint proscribes its consideration 113
(3) Section 91 is intended to ensure that linguistic requirements of Parts IV and V do not override the merit principle of staffing positions in the public service 119
(a) Extrinsic evidence regarding section 91 119
(b) The Preamble to the OLA 123
(c) Jurisprudence regarding the purpose of section 91 124
(i) Canada (Attorney General) v Viola 124
(ii) Norton v Via Rail Canada, 2009 FC 209 [Via Rail] and other service cases 126
(d) Section 16(1) of the Charter 130
(4) Conclusion on section 91 131
D. Analysis of section 36(2) 133
(1) Introduction 133
(2) Tailleur is a service-driven decision bearing no relevance to section 36(2) 134
(3) The terminological and internal contextual interpretation of section 36(2) 138
(a) The scheme of section 36(2) 138
(b) Work environments 142
(c) The primary objective of appropriate official language work environments: being conducive to the effective use of both official languages 146
(d) The secondary objective of work environments: accommodating or permitting the use of either official language 149
(i) “accommodate/permettre” 151
(ii) “either/l’une ou l’autre” and “both/deux” 156
(iii) Criticism of linguistic accommodation in Beaulac is specific to its particular facts 159
1. Paragraph 24 in Beaulac 159
2. Paragraph 82 in Tailleur 162
(e) The federal institution’s duty to implement appropriate official language work environments by the terms of the English version “such measures as can be reasonably taken reflects the exercise of discretion to attain a threshold 164
(i) A legal standard based on a threshold 164
(ii) The contextual significance of “toutes autres mesures possible” [such measures “as can reasonably be taken”] 168
(iii) “reasonably be taken”/“mesures possibles” 168
(iv) “such measures”/“toutes autres mesures” 172
(v) The significantly serious [importantes et sérieuses] operational difficulties factor 174
(vi) Reasonable measures does not imply an employee’s right to dictate the language requirements of a co-worker 175
(4) Contextual interpretation of section 36(2) 181
(a) Internal contextual interpretation of section 36(2) 181
(b) External contextual interpretation provisions of the OLA: sections 91 and 36(1)(c)(i) 185
(i) Section 91 186
(ii) Section 36(1)(c)(i) 186
(5) Jurisprudence regarding unilingual employees in the workplace 191
(6) Extrinsic evidence as an aid to interpretation of section 36(2) 194
E. Conclusion on the interpretation of section 36(2) 201
F. Applying section 36(2) 202
(1) Primacy to the effective use of both official languages 202
(2) Management’s role 203
(3) Recognizing the additional workload of bilingualism 204
(4) Means to lighten the work efforts of the bilingual employee 207
X. Language Rights in Unilingual Regions 208
XI. Work instruments and Regularly and widely used computer systems 214
A. Work instruments 214
B. Regularly and widely used computer systems 216
XII. Conclusion 217
I.
Introduction
[1] This is an application under subsection 77(1) of the Official Languages Act, RSC 1984, c 31 (4th Supp.) [OLA] by the Applicant in response to a final investigation follow-up report [Follow-up Report], in docket 2010-0783, issued by the Office of the Commissioner of Official Languages [OCOL] in March 2015.
[2] The Applicant raises intractable issues of interpretation of two languages of work provisions found in Part V of the OLA pertaining to bilingual regions. Nonetheless, both issues have the potential of requiring significant staffing changes of unilingual positions in federal institutions to a bilingual designation, not only in prescribed regions [“prescribed” or “bilingual” regions], but as well in non-prescribed regions [“non-prescribed” or “unilingual” regions] of Canada.
[3] The Applicant is a bilingual Francophone employee of the Office of the Superintendent of Financial Institutions [OSFI]. Mr. Dionne has been on sick leave since 2009. At that time, he was leading a team of supervisors, described as “generalists”, who monitor various financial institutions. He is situated in Montréal, a bilingual region prescribed under the OLA. He worked regularly with unilingual employees, described as specialists, situated in Toronto, a unilingual region under the OLA. The generalists and specialists worked regularly together to carry out the functions of supervising financial institutions for the OSFI.
[4] The first issue relates to the interpretation of section 36(1)(a)(i) of the OLA. The Applicant claims the specialists in Toronto are providing him with services pursuant to this provision, and therefore they must be provided to him in his first language, i.e. allow him to work entirely in his first language. Accordingly, the unilingual specialist positions in Toronto are required to be staffed by bilingual personnel. In settling the complaint, the OSFI agreed to change the language requirements to staff 11 specialist positions with bilingual personnel. The Applicant seeks a remedy that would require further specialist positions to be staffed bilingually.
[5] Section 36(2) of the OLA is the second provision of interest. It requires federal institutions to provide work environments that are conducive to the effective use of both official languages and accommodate the use of either in bilingual regions. If applied, this would only permit the Applicant to use his first language in communications with the specialists in Toronto. The Applicant argues that by this provision, he is entitled to communicate using his first language with the specialists in Toronto, thereby similarly requiring their positions to be occupied by bilingual specialists. I use the term “collateral bilingual staffing” to describe the effect of the Applicant’s argument, whereby the Toronto specialists’ positions would be required to be staffed bilingually due to the exercise of language rights by the Applicant pursuant to section 36(2) in a bilingual region, although not required by the objective functions of the position.
[6] In priority to requirements arising out of Parts IV and V, i.e. section 36(2), section 91 prohibits staffing of a position unless the official language requirements are objectively required to perform the functions for which the staffing action is undertaken. By its wording, the bilingual designation of the specialist positions in Toronto could not be objectively required to perform the functions of the position and would infringe the provision. It is therefore, a significant contextual provision limiting the application of section 36(2).
[7] I disagree with the Applicant’s interpretation of section 36(1)(a)(i), which is supported and enhanced by the Commissioner. I find that the generalists and specialists work in a team environment and that skills and lessons learned from the specialists while carrying out their duties would not qualify as a service pursuant to section 36(1)(a)(i). I also conclude that the relationship of the specialists and generalists working together is not a centrally provided service, or “services . . . centraux”, as these terms are used in the provision.
[8] I similarly disagree with the interpretations of the parties and the Commissioner that 36(2) can be interpreted to apply the principle of collateral bilingual staffing, including that such an interpretation is not contextually supported by section 91 of the OLA. Both provisions I conclude express the intent of Parliament that bilingual employees are required to accommodate to some degree unilingual employees in their shared work environment.
II. Abridged interpretive conclusions
[9] I believe it is useful to present a form of executive summary describing somewhat my analytical and interpretive paths that lead me to reject the Applicant’s two principal issues based on my interpretations of sections 36(1)(a)(i) and 36(2) of the OLA. I present them at the introductory stage to assist what is a lengthy and detailed decision that considers two highly ambiguous provisions. The intention is for these comments to serve as a roadmap of my analysis that lies ahead. The relevant legislation is contained in an appendix to these reasons. However, I present the key provisions, with my emphasis, in this introduction to facilitate understanding my analysis and when addressing interpretative issues.
[10] Section 36(1)(a)(i): the services claim:
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
[11] The Commissioner supported the Applicant, although with a much broader interpretation of what constitutes a service under section 36(1)(a)(i) and with a different construction from that originally described in the Final Investigation Report. All parties concluded that the bilingual versions were irreconcilable and that the English version was preferred as being the clearer of the two, with reference to the French version when it suited their purpose. This is perhaps understandable given that four different interpretations in total were provided, as well as two Treasury Board policies that did little to clarify the provision’s meaning. I took a different path from all of the submissions and concluded that the bilingual versions are reconcilable.
[12] The Court’s task of interpreting section 36(1)(a)(i) was not assisted by 2004 and 2012 TBS Language of Work Policy Directives. The policies use the somewhat misleading term “personnel” [les services personnels] to describe the provision of services to employees “as individuals” [à titre individuel]. This adds to the confusion surrounding the distinction with the term “services auxiliaires” in the French version, which is the most ambiguous phrase in the provision. The policies also required a service under section 36(1)(a)(i) to be essential to the performance of duties, which I found was not a requirement of the provision.
[13] On a related matter, I am concerned by the happenstance manner that I came upon the Treasury Board 2017 TBS Policy on Learning, Training, and Development [2017 Learning Policy]. The document is highly relevant to the definition and provision of a service; particularly as training and professional development services were the centerpiece of the Applicant’s and Commissioner’s submissions, at least initially. I ultimately relied upon the 2017 Learning Policy as the example of what should constitute a centrally provided service in section 36(1)(a)(i).
[14] I ultimately concluded that the two versions could be reconciled in light of the more deductive approach used by French language drafters, for example, that did not express the definition of the term “services”, which was implicit by the dictionary definition of the word. As a former director of a French language translation centre I perhaps have an appreciation of the different approaches to interpretation used by Canadian legislative drafters. Broadly speaking, the results of the deductive interpretation of the French version led me to understand that the purpose of the term “auxiliaire” was not to describe an underlying character of a service, but only to distinguish between the two categories of services. This, with the recognition that the English version was somewhat pleonastic, unlocked to some degree my interpretation of the remainder of the provision.
[15] With respect to the category of services provided to employees as individuals [à titre individuel], this refers to those provided by the simple fact of being an employee of the institution; in other words, available to all employees of the institution. This would include, for example, health, administrative and professional career development services, unrelated to supporting the employees in the performance of their duties.
[16] With respect to the category of services centrally provided to support employees [à titre de services auxiliaires centraux] by the English version in the performance of their duties, I rejected the Applicant’s and Commissioner’s interpretations of section 36(1)(a)(i) that the specialists were providing services to the generalists, because they were in a “team-like” relationship. This describes a group of employees with complementary skills, operating with a high degree of interdependence, accountable for their collective performance towards a common goal and shared rewards. A team relationship is mutually exclusive to that of a service relationship.
[17] I further rejected the Commissioner’s submission by concluding that a “centrally provided” service was one arising from a formal decision of management to recognize the activity as a service, as opposed to the nature of the relationship between employees. This is similar to the decision taken by the Treasury Board in the 2017 Learning Policy. It provided for the provision of training and professional development services in the Federal Public Service. I also concluded that Individual services are centrally provided, but that this requirement is implied by the definition that such services apply to all employees of the institution and by that fact could only be centrally provided.
[18] Section 36(2): work environments that accommodate [permettra à] the use of either official language
(2) Every federal institution has the duty to ensure that, 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), such measures are taken in addition to those required under subsection (1) as can reasonably be taken to establish and maintain work environments of the institution that are [1st category] conducive to the effective use of both official languages and [2nd category] accommodate the use of either official language by its officers and employees.
(2) Il leur incombe également de veiller à ce que soient prises, dans les régions, secteurs ou lieux visés au paragraphe (1), toutes autres mesures possibles permettant de créer et de maintenir [1ere catégorie] en leur sein un milieu de travail propice à l’usage effectif des deux langues officielles et [2e catégorie] qui permette à leur personnel d’utiliser l’une ou l’autre.
[19] Section 91: staffing required to be based on merit
91 Nothing in Part IV or V authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken.
91 Les parties IV et V n’ont pour effet d’autoriser la prise en compte des exigences relatives aux langues officielles, lors d’une dotation en personnel, que si elle s’impose objectivement pour l’exercice des fonctions en cause.
[20] The Parties and Commissioner considered themselves bound by this Court’s earlier decision in Tailleur v Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 [Tailleur]. Accordingly, the Applicant argued that section 36(2) must be strictly interpreted to impose a peremptory duty on institutions to justify any occasion when bilingual employees are required to use their second language of choice [“second language”]. Justification of the use of second language required the institution to meet a three factor test created by the Court, including that “significantly serious” detriment to the operations of the institution would otherwise result. The Applicant relied upon this reasoning in seeking the collateral bilingual staffing of additional specialist positions in Toronto.
[21] I respectfully disagree with many aspects of the reasoning in Tailleur. It appears that the decision largely endorsed submissions of the Commissioner, which are similar to those made before me. Also the Court was not required to consider section 91 of the OLA.
[22] There was a dispute over whether the Court should consider section 91. I tentatively concluded that the Respondent’s highly circumscribed submission that section 91 should prevent the requirement for additional bilingual specialist positions in Toronto would similarly apply to the staffing of all of the specialists positions. Accordingly, I sought directions from the parties which delayed the completion of these reasons. Both parties submitted that I did not have the jurisdiction to consider the application of section 91, as it was not the subject matter of a complaint which provides the foundation of my jurisdiction. The Commissioner did not challenge my jurisdiction, only that section 91 was not relevant for a number of reasons provided, all of which I rejected.
[23] I concluded that section 91 was highly relevant to the interpretation of section 36(2). I concluded that the provision was the embodiment of the merit principle. Parliament has drawn a bright line based on merit indicating that the application of the provisions in Parts IV and V should have no bearing on the staffing of positions unless required for the performance of the positions. This means that work environments in bilingual regions will in some degree comprise a mixture of bilingual and unilingual employees, further meaning that bilingual employees will be required to apply their bilingual skills to accommodate their unilingual colleagues.
[24] Apart from section 91, I also concluded that Parliament’s intent in enacting section 36(2) was to provide for some degree of accommodation in work environments by bilingual employees of their unilingual colleagues. It is in this regard that I respectfully disagree with several of the opinions expressed in Tailleur, including the following:
As mentioned, the adoption of a purposive interpretation of section 36(2) intended to maintain and develop the Francophone Canadian minority community applied throughout the decision. This purpose would usurp and contradict Parliament’s clear expression that the purpose of institutional bilingualism, as specifically described in the Preamble and other provisions of the OLA, is that of maintaining the equality of status and privileges of the use of both official languages. I disagree with the Applicant’s argument that this would disadvantage Francophones who have a higher incidence of bilingualism, because bilingual Canadians are already advantaged in bilingual regions by the application of the merit principle in respect of the service and career requirements, among others, for employment in federal institutions.
The interpretation of the scheme of section 36(2) that did not focus on the requirement that institutions provide linguistically appropriate “work environments” as the overall requirement. This required institutions to comply in meeting the two objectives described in the provision. Recognizing the scheme of the provision being on attaining appropriate official language work environments, directs the attention of the Court to focus on a more collective use of official languages in an institution’s work environments, rather than the sole consideration of the individual complaint. The interpretation of the scheme of section 36(2) that examines the totality of the linguistic work environment therefore follows a different evidentiary trajectory from that of a single work relationship. Because the parties and Commissioner did not consider the Respondent’s obligations in broader terms of providing a suitable linguistic environment, the Court did not have the appropriate evidence with which to decide whether the OSFI failed to comply with section 36(2) by not providing the Applicant with a compliant work environment.
With further respect to the scheme of section 36(2), the failure to recognize that compliance by the institution was for it to achieve a threshold of providing appropriate official language work environments. It must first be determined that the institution failed to provide an appropriate official language work environment. If not, then it is required to take measures to correct the situation.
The omission to consider or interpret the second objective in the English version that “work environments … accommodate the use of either official language” [the accommodation objective]. This extended to considering the preference of the English version over the French co-equivalent “qui permet à leur personnel d’utiliser l’une ou l’autre”. It also led to the failure to consider the term as requiring a compromise of conflicting language use. This is corroborated by related contextual terms in section 36(2), which also suggest flexibility in the application of language requirements.
The related omission to interpret or consider the other significant terms in section 36(2) that contextually support the accommodation objective, i.e. “work environments/milieu de travail”, “conducive/propice” and “either/both” suggesting flexibility in the application of language requirements.
The interpretive methodology and interpretation of the phrase “such measures as can reasonably be taken” and its co-equivalent “toutes autres mesures possibles”. This failed to recognize that “such” and “reasonably” describe a discretionary approach to the consideration of a compliant work environment, thereby further contextually supporting a solution-oriented resolution of language of work concerns required where linguistic accommodation is necessary.
The differences of opinion regarding (1) the contextual effect of section 36(1)(c)(i) [requirement that managers use an “appropriate or necessary” choice of language with subordinates] for the maintenance of a work environment that is conducive to the use of both official languages; (2) the precedential support of the jurisprudence cited; and (3) the extrinsic evidence from the Parliamentary debates at the time of passage of the language of work provisions, which I concluded support the conclusion that Parliament intended workplaces wherein bilingual employees will accommodate unilingual employees to some degree to allow them to work together.
[25] I further concluded that the determination of appropriate official language work environments would require the development of assessment instruments comprising factors that could be applied across a variety of different work environments to determine the compliance of work environments with section 36(2).
[26] In this regard, I conclude that the first objective of work environments, that of being conducive to the effective use of both languages, should be accorded a degree of priority over the accommodation objective when presented with the choice. This reflects the essential need for a bilingual workforce and the longer-term goal of achieving highly bilingualized work environments in bilingual regions for federal institutions to properly function in both bilingual and unilingual regions. I also recommend that institutions consider technological and other measures to alleviate the extra burden imposed by working in two languages, which in no way is reflected by the bilingual bonus.
[27] Although relevant to employees working in differently designated regions, the issue of communications between bilingual and unilingual regions was not meaningfully addressed in the proceedings. I conclude that in most cases employees in bilingual regions are required to use the language of unilingual employees in unilingual regions. In most cases it is understood that communications are not just with individuals, but are intended to be shared in work environments with other employees. This makes the requirement for translation in a unilingual region operationally wasteful in comparison with the use of the bilingual skills of the employee in a bilingual region.
[28] There is also the presumption that bilingual and unilingual regions reflect the linguistic skills of employees’ in those regions, such that Parliament intended that bilingual employees will communicate in the language of unilingual employees in a unilingual region, without which communications cannot occur.
[29] In addition, as noted by the Applicant’s remedy seeking the bilingual staffing of the specialist co-worker’s positions, this would be an exercise of impermissible collateral bilingual staffing, not based on merit under section 91, which has application to all positions in federal institutions.
III. Facts
A. The Applicant’s duties within the OSFI
[30] The Canadian Office of the Superintendent of Financial Institutions [OSFI] was created in 1987 under the Office of the Superintendent of Financial Institutions Act, RSC 1985, c 18 (3rd Supp), Part I. The OSFI is a federal institution within the meaning of the OLA. One of its objects, set out in paragraph 4(2)(a), is to supervise financial institutions in order to determine whether they are in sound financial condition and are complying with their governing statute law and supervisory requirements under that law.
[31] The OSFI has approximately 700 employees spread across four (4) offices, located in Ottawa, Toronto, Montréal and Vancouver. The Ottawa and Montréal offices are in regions designated as bilingual, whereas the Toronto and Vancouver offices are in unilingual English regions.
[32] The OSFI’s activities fall under two general functions: supervision and regulation. At the time of the complaint, the OSFI was composed of four (4) units: the Supervision Sector, the Regulation Sector, the Corporate Services Sector, and the Office of the Chief Actuary. The employees at the Montréal office were part of the Supervision Sector.
[translation]
The Supervision Sector includes the following divisions: the Deposit-taking Group, the Life Insurance Group, the Property and Casualty Insurance Group, the Supervision Support Group, and the Supervisory Practices Division.
While OSFI’s Head Office is in Ottawa, most of the employees in the Supervision Sector, including all senior directors, are in OSFI’s Toronto office. The senior supervisors at the Montréal regional office report to the managers and directors in the Deposit-taking Group, the Life Insurance Group, or the Property and Casualty Insurance Group.
[Emphasis added.]
[33] The members of the Supervision Support Group in Toronto are specialists who analyze various types of risk, including credit or capital risk. They assist supervisory staff in the Deposit-taking Group, the Life Insurance Group, and the Property and Casualty Insurance Group in Montréal in assessing specific inherent risks, so that they can determine overall risk and make recommendations to financial institutions. These specialists are also part of other levels of employees and managers who may be called upon to participate in a file.
[34] Most of the staff at the Montréal office are Francophones, and all employees, except the director and her administrative assistant, are generalists supervising financial institutions. The vast majority of the specialists in Toronto who provide support to Montréal employees hold English essential positions or speak English only.
[35] Very often in the course of supervisory work, internal supervisory processes require generalists to leverage the expertise of specialists in various areas at the OSFI’s Toronto office to determine the compliance of a situation in a regulated financial institution, because they do not have this specialized knowledge. Generalists should rely heavily on the support of specialists in the performance of their duties.
[36] The Applicant indicated that specialists were used on a case-by-case basis. They could be used less frequently in some files, and more frequently in others. The Applicant was once assigned a file that involved highly technical issues that had been in play for five, six years. For that specific file, specialists could be relied upon on a daily basis or several times a week or month. This went on for five years. The Applicant explained that the file [translation] “was somewhat special”. He said that, sometimes, support from the specialists in Toronto was not required for a specific supervision.
[37] The Applicant’s supplementary affidavit contains the following additional evidence regarding his ongoing work with specialists:
[translation]
12. Under OSFI internal policies, specialists had to prepare their own reports on the issues within their expertise. These reports had to make observations as well as recommendations as to the course of action required of OSFI. As a manager of supervision, I was bound by specialists’ reports, which I actually had to incorporate into my final reports to the financial institutions.
13. Managers of supervision work closely with specialists as these people assess the file, to share the information required and thereby allow the specialists to properly understand the overall context of the company and the report being assessed. These communications are verbal or written.
14. In addition to having to incorporate specialists’ final reports and recommendations into my own final reports, I had to consider their various observations in making my own recommendations. Sometimes, specialists’ reports would influence or even dictate my assessment of the file aspects directly under my purview.
15. This means that while the final report issued to the financial institution bore my signature, a very large portion of its contents had been imposed on me by another employee, in accordance with internal supervisory processes.
. . .
28.(a) Throughout my 22 years at OSFI, all of my communications with staff at the Toronto office were exclusively in English, including all the communications described above.
29. Thus, every time supervisory activity required the participation of a specialist—which was most of the time—a large part of my work had to be done in English. Any communication with the specialist was in this language, including the specialist’s final report.
30. If the financial institution being supervised had asked to be served in French, which is the case for many of the clients served by the Montréal office, the specialist’s report had to be translated before it could be incorporated into my final report. Since I could not, because of deadline constraints, allow myself to wait for the translation, which could take several weeks, if not months, to complete, most of the time I had to work with the specialist’s English report in preparing the parts of the final inspection report that were under my purview. In addition to having to use this essential work tool in English, I had to act as a translator—a considerable additional task—before I could send my communication to the financial institution. Moreover, and as a result, there was a risk of rendering words inaccurately, as translation was not my profession.
[Emphasis added.]
[38] The Applicant testified that roughly half of his institutions had selected French as their language of correspondence (questions 24 and 25). His relevant evidence continues as follows:
[translation]
32. As another example, the Securities Administration Unit manages the eligibility of the assets in trust that financial institutions have to deposit. Nobody in that unit speaks French, even though it often has to deal with Francophone supervisors. This unit must also serve the public, that is, our regulated institutions, which it is unable to do in French. I often had to act as an intermediary between this unit and Francophone institutions.
37. In 2006, OSFI senior management decided to hold a formal meeting in Montréal to have a serious discussion on language issues. The meeting was mandatory for all members of senior management and all senior directors in Toronto. The director of human resources gave a presentation, entirely in English, on the importance of respecting both official languages at OSFI, and shared copies of the presentation, written only in English, with all Montréal staff.
[Emphasis added.]
[39] The Respondent provided more detailed evidence that does not contradict but rather complements the Applicant’s evidence. The most comprehensive explanation of the way in which the specialists and generalists work together in a larger work environment, as indicated at paragraph 22 of Natalie Harrington’s supplementary affidavit dated June 19, 2016, is as follows:
[translation]
22. Thus, the generalists in charge of supervision are not required to become experts in all areas covered by the specialist groups. Rather, they are required to incorporate the specialist groups’ risk assessments into their consolidated risk assessments after discussing with these specialists and within the Supervision team the risks they had identified and the best ways to respond to them. I am told that the generalists in charge of supervision are not bound by the specialists’ reports. The specialists provide their opinions, and it is up to the generalists in charge of supervision to decide on the best way to incorporate them into the overall assessment of the institution’s risks. This decision is made within the Supervision team after discussion. Following these discussions, the specialists’ recommendations are incorporated as is, modified or even left out.
[40] Moreover, the Applicant did not attempt to describe or specify why he considered that his communications with specialists fell within the nature of services, when he generally understood the meaning of the expression, as the term has a broad application and use. I concluded that Mr. Dionne was a fair and honest witness who did not evade in any way or fail to answer the questions asked. He never claimed in his initial complaint or in his affidavits that he received services in the course of his work with the specialists. It seems that it is not necessarily his opinion that the specialists provided him with services.
[41] The Respondent’s affiant testified that it was in fact the Commissioner who had interpreted professional development as including all meetings and discussions between employees (paragraph 51 of his affidavit), and rejected this conclusion at paragraphs 53 and 54:
[translation]
51 More specifically, in this regard, OCOL concluded that when Montréal office employees consulted supervision specialists at the Toronto office for advice or input, or when Montréal employees met with Toronto employees, this was professional development that had to be offered in the preferred official language of the employee receiving the professional development.
53 Contrary to OCOL’s conclusion, OSFI is of the view that when generalists at the Montréal office consult specialists in the Supervision Support Group at the Toronto office, they are not receiving professional development. Rather, they are getting the specialists’ views on certain topics of expertise to incorporate them into their overall risk assessments . . . .
54 . . . In responding to generalists, supervision specialists are not providing job training. They are simply performing a task that is included in their regular workload. In short, the interactions between generalists and specialists are part of the regular work of each group.
When describing the degree of knowledge required of the Applicant to work with specialists, the affiant writes that [translation] “[h]e has to understand the specialists’ advice and the work that they do”.
B. Findings of fact
[42] Overall, I conclude that the generalists and specialists work as interdependent members of a team that can sometimes involve more experienced staff in the hierarchy. While the specialists