Tailleur v. Canada (Attorney General)

Tailleur v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-10-30
Neutral citation
2015 FC 1230
File numbers
T-1444-13
Notes
Reported Decision
Decision Content
Date: 20151030
Docket: T-1444-13
Citation: 2015 FC 1230
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 30, 2015
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
LUC TAILLEUR
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
COMMISSIONER OF
OFFICIAL LANGUAGES
Intervener
JUDGMENT AND REASONS
I. Overview [1] This case deals with the tension that exists between two aspects of the Official Languages Act, RSC, c 31 (4th Supp.) [OLA]: the language rights of members of the public to be served by federal institutions in the official language of their choice and the language rights granted to officers and employees of federal institutions to work in either of the two official languages of Canada.
[2] The applicant Luc Tailleur, a Francophone, works in the federal public service. He is a taxpayer services agent at a Canada Revenue Agency [CRA] call centre in Montréal. Mr. Tailleur’s position and the Montréal region where he works are both designated bilingual. In the course of his employment, Mr. Tailleur receives telephone calls from taxpayers and answers their questions about taxes and programs managed by the CRA. In August 2010, Mr. Tailleur served an Anglophone taxpayer in the language of her choice, i.e. English. After finishing his call with the taxpayer, Mr. Tailleur had to write a note in one of the CRA’s computer systems to ensure that the necessary follow-up would be done in the taxpayer’s file. Mr. Tailleur wrote this note in the language of work of his choice, i.e. French. Citing the policies in place at the CRA, Mr. Tailleur’s supervisors directed him to rewrite his note in the language of the taxpayer, which Mr. Tailleur did.
[3] However, Mr. Tailleur filed a complaint with the Commissioner of Official Languages [the Commissioner] claiming that the CRA’s procedure deprived him of his right under the OLA to work in the language of his choice. In June 2013, the Commissioner informed Mr. Tailleur of his decision to stop his investigation into Mr. Tailleur’s complaint (and hence to dismiss it). After noting the CRA’s unsuccessful efforts to reconcile its duties to serve the public and Mr. Tailleur’s language rights, the Commissioner concluded that the procedure put in place by the CRA was reasonable because making notes to the file in the taxpayer’s preferred language is necessary to avoid errors or undue delays in responding.
[4] On August 27, 2013, disagreeing with the Commissioner’s conclusions, Mr. Tailleur filed this application under subsection 77(1) of the OLA. In his application, Mr. Tailleur submits that the CRA infringed his right to work in French. He seeks an order from this Court declaring that the CRA breached his right to work in the language of his choice and directing the CRA to revise its policy so as to respect its employees’ rights regarding language of work. The CRA contends that, through the Attorney General of Canada, it explored all reasonable measures to try to accommodate Mr. Tailleur but that its duty to serve Canadian taxpayers in the language of their choice does not allow it to change its policies in the circumstances.
[5] The Commissioner intervened in this proceeding to argue the interpretation that should be given, in his view, to the sections of the OLA at issue in this case.
[6] Mr. Tailleur’s application raises two issues:
What is the scope of subsection 36(2) of the OLA and of the CRA’s language of work duties? In the circumstances, did the CRA take all reasonable measures to enable Mr. Tailleur to use the language of work of his choice?
[7] For the following reasons, the Court finds that Mr. Tailleur’s application should be dismissed. The Court is of the opinion that the CRA took all reasonable measures to enable Mr. Tailleur and its other employees to use the language of work of their choice, but that the requirement to write the “notepad” in the taxpayer’s language of choice is essential and necessary to ensure that the CRA provides equal service to Anglophone taxpayers; therefore, it must take precedence. With respect to the alternative solution proposed by Mr. Tailleur to establish a mechanism to transfer calls, the Court is of the view that this avenue is beyond the scope of reasonable measures that the CRA can consider in the circumstances.
II. Background [8] Before addressing the issues, it is important to situate the context of Mr. Tailleur’s application, namely the facts surrounding his complaint, the Commissioner’s decision, the type of services provided by the CRA and the statutory framework of the OLA.
A. Facts involving Mr. Tailleur [9] Mr. Tailleur works in the CRA’S Taxpayer Service and Debt Management Branch. As a taxpayer services agent in the Montréal region, Mr. Tailleur receives telephone calls from taxpayers and answers their questions about taxes and programs managed by the CRA. As a bilingual employee, Mr. Tailleur deals with calls from Anglophone and Francophone taxpayers.
[10] The volume of calls received by the CRA is considerable, and Mr. Tailleur (like the other CRA agents assigned to taking calls) continually moves from one call to another during his work day. On each call, Mr. Tailleur receives questions, information and data from taxpayers. In his day-to-day activities, Mr. Tailleur must, among other things, enter in one of the CRA’s computer systems the information obtained from taxpayers in his telephone discussions with them, as well as the issues or actions that may result from these calls.
[11] On August 5, 2010, after dealing with a call from an Anglophone taxpayer and in an effort to resolve her case, Mr. Tailleur wrote a note in the “notepad” part of the CRA’s T1 and Benefit Case Management System [T1BEN]. The T1BEN system is one of the computer software systems put in place by the CRA to assist in processing requests from taxpayers. Specifically, the T1BEN system is used to forward taxpayers’ files for [translation] “action”, to follow up and to create records to enter all the actions taken in a given file.
[12] Because the intended recipient of his note was another Francophone employee who also had a bilingual position at the CRA, Mr. Tailleur wrote his note in the language of work of his choice, i.e. French. However, after some exchanges with his supervisors, Mr. Tailleur was forced to rewrite his note in the taxpayer’s language, i.e. English, as required by the administrative procedure in place at the CRA. Mr. Tailleur argues that this note was not directed to the taxpayer but that its purpose was to ask his Francophone colleague to send an internal request for a payment to be issued. It was therefore unnecessary, according to Mr. Tailleur, to write it in English. Mr. Tailleur adds that this was the first time in almost 20 years in his position at the CRA that he received a request to rewrite a note in the T1BEN system. He indicates that before, he had always written these notes in the language of his choice, i.e. French.
[13] In his written submissions filed with the Court, Mr. Tailleur said that, in his opinion, it was not necessary that all notes and forms be written in the taxpayer’s language for an effective, timely follow-up of the taxpayer’s file. Specifically, Mr. Tailleur stated that his note of August 2010 was never intended for the taxpayer. At the hearing before this Court, counsel for Mr. Tailleur recognized however that it was necessary that notes to the file such as the one that is the subject of this dispute be written and kept in the taxpayer’s language in order to adequately deal with the taxpayer’s file. On the other hand, Mr. Tailleur submits that the CRA could easily implement a system by which calls received by unilingual Anglophone agents who are unable to deal with a taxpayer’s request because of notes to the file in French, could be transferred to bilingual agents.
[14] Although he complied with his supervisors’ request and ultimately wrote his note in English in this case, Mr. Tailleur filed a complaint with the Commissioner. In it, he claimed that the CRA procedure deprived him of his right to work in the language of his choice, as the OLA contemplates.
B. Commissioner’s decision [15] On June 28, 2013, the Commissioner sent Mr. Tailleur an email advising him of the results of the investigation into his complaint.
[16] In his correspondence, the Commissioner indicated that his investigation had taken into account the CRA’s duties under Parts IV (“Communications with and services to the public”) and V (“Language of Work”) of the OLA and that he had considered the CRA’s mandate. The CRA describes this mandate as “to administer tax, benefits and related programs and to ensure compliance on behalf of governments across Canada”. The Commissioner noted in his investigation report that [translation] “the CRA receives and processes millions of income tax returns per year as well as benefit payments” and that [translation] “consequently, there is a very high volume of interactions between CRA agents and taxpayers”.
[17] The Commissioner stated, in particular, that, given the type of services that the CRA provides to taxpayers, the provisions of the OLA on communications with and services to the public prevail over any inconsistent language of work provisions of the OLA and Mr. Tailleur’s right to work in the language of his choice.
[18] The Commissioner’s investigation noted, inter alia, that the CRA was basing its position on section 27 of the OLA, which provides that the duty in respect of communications and services in both official languages applies in respect of oral and written communications and in respect of any documents or activities that relate to those communications or services. In addition, the Commissioner’s investigation noted that the CRA also cited section 31 of the OLA, which states that Part IV prevails over any inconsistency in Part V on language of work and therefore gives precedence to the rights of members of the public to communicate and receive their services in their preferred official language. Lastly, the Commissioner observed that the CRA had unsuccessfully tried to reconcile the public’s right with its agents’ rights:
[translation]
The CRA also stated that it had tried to find ways to uphold employees’ rights while complying with its duties to serve the public. However, it was unable to reconcile the two parts of the [OLA] given its official language duties and institutional objectives.
[19] In his decision, the Commissioner indicated that he had met with CRA representatives to obtain explanations on the procedures in effect and to determine whether the front-line CRA agents can find the information necessary to respond to taxpayers’ requests without having to consult the notes to the file. The investigation described some of the CRA’s explanations and findings in the following terms:
[translation]
The CRA confirmed that front-line agents must respond and take action concerning compliance and enforcement. They must be able to understand the notes entered in taxpayers’ files so that they can respond to questions immediately or obtain the necessary information from taxpayers whose file has been found to be non-compliant and has been assigned to a compliance officer.
[20] Based on his investigation, the Commissioner concluded that the procedure established by the CRA requiring that notes to the file be entered in the taxpayer’s language was reasonable:
[translation]
The investigation showed that if a CRA employee wrote notes to the file in the employee’s preferred official language rather than the taxpayer’s, this could cause errors or undue delays in response time. In addition, in order to respond to taxpayers’ calls in real time, the agent has to understand the notes to the file to determine whether they are related to the new request. Therefore, in order to ensure equal, immediate service to all clients, we believe it is reasonable that notes be entered in the files in the taxpayers’ official language of choice.
[21] The Commissioner therefore found that it was appropriate, under subsection 58(3) of the OLA, to exercise his discretion to refuse to investigate Mr. Tailleur’s complaint further because he considered any further investigation unnecessary.
C. CRA [22] The CRA plays a sensitive role in the operation of the federal government. It is the federal institution responsible for the administration and establishment of assessments and the collection of hundreds of billions of tax dollars every year in Canada. Its mandate is to administer tax, benefits and related programs and to ensure tax compliance on behalf of governments across Canada. The CRA receives and processes millions of income tax returns per year as well as benefit payments.
[23] Under the self-assessment tax system in place in Canada, the CRA is responsible for providing accurate information to taxpayers promptly so that taxpayers can comply with Canada’s tax laws.
[24] Under Part IV of the OLA, the CRA has a duty to provide its services to Canadian taxpayers in the official language of their choice. This duty extends to all CRA services, whether they are provided on the Internet, by telephone, in writing or at designated bilingual offices. This is recognized in the Taxpayer Bill of Rights established by the CRA. The purpose of this Bill of Rights is to ensure adequate service for taxpayers, and it states in section 2 that taxpayers have the right to receive services in either official language. Section 6 recognizes the right of taxpayers to complete, accurate, clear and timely information.
[25] Call centres like the one Mr. Tailleur works at are an important component of the services provided by the CRA to Canadian taxpayers. To deliver these telephone services, the CRA publishes national toll-free telephone numbers accessible to callers from both official language groups. Separate telephone numbers are provided for each official language and dedicated to each of the two language clienteles. The CRA considers this an active offer of service put in place to respond, in real time, to requests from members of the Anglophone and Francophone communities in Canada. The volume of telephone interactions between CRA agents and taxpayers is very high: in fact, the CRA received no fewer than 16.5 million calls in 2012-2013.
[26] The CRA has nine call centres throughout Canada. The Montréal call centre, where Mr. Tailleur works, is one of them. Although they are located in different regions of the country, these nine call centres are inter-connected; thus, a taxpayer’s call will be routed to the next available agent in any CRA call centre, regardless of where the agent is located. The calls are in fact redirected to the different call centres based on volume, irrespective of their place of origin and the taxpayer’s location.
[27] We add that employees at the CRA call centres occupy key positions within the federal institution because they are often the point of entry for taxpayers to access their file and tax information. This involves complex work that is generally sensitive and delicate for the taxpayer who has decided to use the CRA’s telephone system.
[28] The CRA directs taxpayers’ calls based on the language chosen by the taxpayer and his or her selection of the English or French toll-free telephone line. In this way, calls from Francophone taxpayers who use the Francophone toll-free number are forwarded to the CRA’s bilingual agents. Calls from Anglophone taxpayers who use the Anglophone toll-free number are sent to unilingual Anglophone agents or to bilingual agents. In other words, the CRA’s bilingual agents (like Mr. Tailleur) deal with calls that may come from Anglophone or Francophone taxpayers, based on the demand.
[29] There is no unilingual Francophone call centre agent at the CRA. Indeed, the CRA’s call centres use only unilingual Anglophone agents or bilingual agents. From the Anglophone taxpayer’s perspective, this means that his or her telephone call may be handled by either a unilingual Anglophone call centre agent or a bilingual call centre agent. However, for a Francophone taxpayer, all telephone calls are handled by bilingual call centre agents. The CRA identifies taxpayers’ files as “French” or “English” based on the preferred official language declared by the taxpayer.
[30] All the front-line agents working in CRA call centres use different computer software to do their work and to quickly clarify the questions that taxpayers ask them when they call. In addition to the T1BEN system described above, this software includes the following:
The Automated Collections and Source Deductions Enforcement System [ACSES]. This system is a record of collection files. It enables agents to view information and enter the steps taken with respect to a taxpayer’s account. It includes a permanent diary that serves as a chronological record of all entries in the diary; the Electronic Letter Creation System [ELCS]. This system is used to send, by letter, information or requests for information to clients or their representatives. It includes a “notepad” where agents can enter notes to the taxpayer’s file; The Electronic Revenue Accounting System [ERA]. This system is used to process financial and non-financial information about a taxpayer’s account. Some of these actions may be carried out by call centre agents while others may be sent to the tax centre; Le système universel Delpac System [SUDS]. This system enables agents to access enforcement actions that are taken if a taxpayer does not file his or her income tax returns.
[31] This dispute deals with a note written by Mr. Tailleur in the “notepad” part of one of the CRA’s electronic systems, the T1BEN system. Mr. Tailleur’s complaint deals only with the notes entered in this “notepad” part (also called “diary”) of the CRA’s electronic systems.
[32] The notes entered in taxpayers’ files by call centre agents compile observations and information in the CRA’s electronic systems. These notes can be used for various purposes. They are used to both initiate actions on taxpayers’ accounts and to find out the status of a file and what has happened in it. In the case of telephone calls, these notes are prepared by call centre agents during or after their conversation with the taxpayer; they may, for example, relate the details of a discussion with a taxpayer, refer to a taxpayer’s aggressive or insistent behaviour or to repeated communications by a taxpayer, identify a step to take or be the vehicle for simply sending a document or for a change of address.
[33] The CRA submits that it is necessary for its call centre agents to understand these notes so that they can provide a service to the public in real time that meets the CRA’s commitments and duties as well as taxpayers’ expectations. The CRA has therefore established procedures for information requests [the Procedure] that its call centre agents must follow. The Procedure, last updated on December 16, 2009, includes a section entitled “Language – Responsibilities and Service Standards”, which sets out the language standards to follow. Because the CRA has a duty to provide its services in the official language chosen by the taxpayer and because the CRA wants to ensure that calls are managed consistently regardless of the taxpayer’s language, the Procedure provides that all data entered in the “notepad” portion or in the “diary” in the CRA’s T1BEN, ELCS, ERA, ACSES and SUDS systems must be entered in the official language chosen by the taxpayer. Accordingly, CRA employees must complete these notes and forms in processing a taxpayer’s file in the taxpayer’s preferred language.
[34] The Court notes that all entries other than the data that must be included in the “notepad” portions may, however, be entered in the CRA’s electronic systems in the official language chosen by the call centre agent.
[35] Mr. Tailleur argues that, prior to 2009, employees could write these notes and forms in their chosen language of work and that that was, in fact, his personal experience at the CRA. The CRA disagrees with this statement and indicates that its language of service procedures have been in place and applied for a long time, in accordance with the requirements of the OLA.
D. Provisions of OLA [36] The OLA is at the heart of this dispute. Its purpose is to “ensure[e] respect for English and French as the official languages of Canada and the equality of status and equal rights and privileges as to their use in all federal institutions” (Thibodeau v Air Canada, 2014 SCC 67 [Thibodeau] at para 9). It also specifies the powers and duties of federal institutions with respect to official languages. In fact, “[t]he OLA and its regulations form a comprehensive statutory regime that governs all matters related to language rights within federal institutions” (Norton v Via Rail Canada Inc., 2009 FC 704 [Norton] at para 61).
[37] Language rights are a cornerstone of Canadian society, and the OLA is therefore a fundamental law of the land, closely linked to the values and rights enshrined in the Canadian Constitution and particularly in the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c 11 [Charter]. Moreover, the Supreme Court of Canada has recognized its quasi-constitutional status (Lavigne v Canada (Commissioner of Official Languages), 2002 SCC 53 [Lavigne] at para 25). Thus, the language rights engaged in this case are all based on the Constitution.
[38] The OLA contains a number of parts including Part IV on communication with members of the public and the right to be served by federal institutions in the official language of their choice, and Part V on language of work and the equality of status and use of both official languages in Government of Canada institutions. Each of these parts has a constitutional foundation: section 20 of the Charter for language of service and subsection 16(1) of the Charter for language of work (Schreiber v Canada, [1999] FCJ No 1576 [Schreiber] at para 125; see also Jennifer Klink et al, “Le droit à la prestation des services dans les langues officielles” in Michel Bastarache and Michel Doucet, eds, Les droits linguistiques au Canada, 3rd ed, (Cowansville QC: Yvon Blais 2014) at pp 523-24).
[39] In Part IV of the OLA, section 21 sets out the right of members of the public to communicate with and to receive available services from federal institutions. Sections 22 and 24 impose a duty on federal institutions to ensure that any member of the public can communicate with and receive available services of equal quality from their offices in either official language. In addition, section 27 provides that the duties of federal institutions in respect of communications and services in both official languages apply in respect of oral and written communications and in respect of any documents or activities that relate to those communications or services.
[40] Lastly, section 31 of the OLA expressly provides that, in the event of any inconsistency, the language rights of members of the public to communicate with and to receive available services from federal institutions in the official language of their choice prevail over the language rights conferred by Part V on officers and employees of federal institutions. Section 31 reads as follows:
Relationship to Part V
Incompatibilité
31. In the event of any inconsistency between this Part and Part V, this Part prevails to the extent of the inconsistency.
31. Les dispositions de la présente partie l’emportent sur les dispositions incompatibles de la partie V.
[41] With respect to Part V of the OLA on language of work, section 34 prescribes that English and French are the languages of work in all federal institutions and confers on officers and employees of these institutions “the right to use” either official language. Sections 35 to 37 of the OLA set out more specifically the duties of federal institutions in respect of language of work.
[42] In particular, section 35 of the OLA creates a distinction between the language rights of employees working in prescribed regions and employees working outside those regions. It sets out a general rule that institutions must establish and maintain an environment that accommodates employees’ use of the official language of their choice in prescribed regions:
Duties of government
Obligations des institutions fédérales
35. (1) Every federal institution has the duty to ensure that
35. (1) Il incombe aux institutions fédérales de veiller à ce que:
(a) within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed, work environments of the institution are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees; and
a) dans la région de la capitale nationale et dans les régions ou secteurs du Canada ou lieux à l’étranger désignés, leur milieu de travail soit propice à l’usage effectif des deux langues officielles tout en permettant à leur personnel d’utiliser l’une ou l’autre;
(b) in all parts or regions of Canada not prescribed for the purpose of paragraph (a), the treatment of both official languages in the work environments of the institution in parts or regions of Canada where one official language predominates is reasonably comparable to the treatment of both official languages in the work environments of the institution in parts or regions of Canada where the other official language predominates.
b) ailleurs au Canada, la situation des deux langues officielles en milieu de travail soit comparable entre les régions ou secteurs où l’une ou l’autre prédomine.
[43] Section 36 of the OLA further clarifies the rights of employees in prescribed regions, including prescribed bilingual regions like the Montréal region where Mr. Talleur works. The minimum duties of federal institutions are set out at subsection 36(1) while additional duties are contained in subsection 36(2). These provisions, which it is necessary to reproduce in this case, read 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
(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
(ii) regularly and widely used work instruments produced by or on behalf of that or any other federal 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;
(b) ensure that regularly and widely used automated systems for the processing and communication of data acquired or produced by the institution on or after January 1, 1991 can be used in either official language; and
b) de veiller à ce que les systèmes informatiques d’usage courant et généralisé et acquis ou produits par elles à compter du 1er janvier 1991 puissent être utilisés dans l’une ou l’autre des langues officielles;
(c) ensure that,
(i) where it is appropriate or necessary in order to create a work environment that is conducive to the effective use of both official languages, supervisors are able to communicate in both official languages with officers and employees of the institution in carrying out their supervisory responsibility, and
(ii) any management group that is responsible for the general direction of the institution as a whole has the capacity to function in both official languages.
c) de veiller à ce que, là où il est indiqué de le faire pour que le milieu de travail soit propice à l’usage effectif des deux langues officielles, les supérieurs soient aptes à communiquer avec leurs subordonnés dans celles-ci et à ce que la haute direction soit en mesure de fonctionner dans ces deux langues.
Additional duties in prescribed regions
Autres obligations
(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 conducive to the effective use of both official languages and 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 en leur sein un milieu de travail propice à l’usage effectif des deux langues officielles et qui permette à leur personnel d’utiliser l’une ou l’autre.
[44] Subsection 36(2), therefore, creates a positive duty for federal institutions to take measures to establish and maintain work environments that are conducive to the effective use of both official languages.
[45] Finally, Part X of the OLA deals with court remedies and provides in subsection 77(1) that any person who has made a complaint to the Commissioner in respect of language rights under the OLA may apply to the Federal Court for a remedy. If the Court concludes that a federal institution has failed to comply with the OLA, the Court has jurisdiction to grant such remedy as it considers appropriate and just in the circumstances, as contemplated in subsection 77(4).
[46] In Schreiber at para 129, this Court summarized the purpose of the relevant provisions in Parts IV and V of the OLA that are at issue in this case:
[129] As indicated previously, sections 21 and 34 of the Official Languages Act recognize, respectively, the right of a member of the public to communicate with and receive available services from federal institutions and the right of an employee to use either official language at work, as English and French are the languages of work in all federal institutions. The corresponding statutory duties in section 22 and sections 35 and 36 respectively require a federal institution to ensure that a member of the public can communicate with and receive available services from it in either official language within the National Capital Region and other prescribed areas, and that it provide work environments conducive to the effective use of both official languages. Those duties, imposed on federal institutions by the Official Languages Act, conform to the principle of substantive equality which requires positive government action to implement the recognized language rights. In other words, the purpose of the legislative duties imposed on federal institutions in sections 22, 35 and 36 is to implement and to give substantive effect and meaning to the rights recognized in sections 21 and 34. Furthermore, sections 35 and 36 constitute legislative recognition of the fact that right to work in either official language in a federal institution is illusory in the absence of an environment that respects the use of both official languages and encourages them to flourish. The purpose of sections 35 and 36 is therefore to ensure that bilingual workplaces are fostered and developed in federal institutions.
[Emphasis added]
III. Analysis A. What is the scope of subsection 36(2) of the OLA and of the CRA’s language of work duties? [47] The first issue concerns the scope of the duty of federal institutions like the CRA under Part V of the OLA regarding language of work, and the interpretation that should be given to subsection 36(2) of the OLA.
[48] The Commissioner’s submissions were very helpful in this regard. His intervention in this Court did not deal with the facts underlying this case or the isssue of whether the CRA breached its duties under Part V of the OLA. The Commissioner restricted his submissions to the principles of interpretation of the OLA and the legal test for determining whether a federal institution has breached the right of one of its officers or employees to work in the language of their choice and, in particular, the duties listed at subsection 36(2) of the OLA.
(1) Principles of interpretation of the OLA [49] The principles of interpretation that apply to language rights are not an issue in this proceeding.
[50] It is widely accepted that language rights in Canada “are meant to protect official language minorities in this country and to insure the equality of status of French and English” and “must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities” (R v Beulah, [1999] 1 SCR 768 [Beaulac] at para 25, 41). Language rights “are a well-known species of human rights and should be approached accordingly” (R v Mercure, [1988] 1 SCR 234 at p 268).
[51] Courts are therefore required to give the OLA, a quasi-constitutional statute, a liberal and purposive interpretation (DesRochers v Canada (Industry), 2009 SCC 8 [DesRochers] at para 31). However, this does not alter the traditional approach to statutory interpretation, which requires us to read the words of an Act 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 (Thibodeau at para 112; Lavigne at para 25, quoting Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p 87).
[52] The purposes of the OLA also assist in interpreting it:
Purpose
Objet
2. The purpose of this Act is to
2. La présente loi a pour objet:
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
a) d’assurer le respect du français et de l’anglais à titre de langues officielles du Canada, leur égalité de statut et l’égalité de droits et privilèges quant à leur usage dans les institutions fédérales, notamment en ce qui touche les débats et travaux du Parlement, les actes législatifs et autres, l’administration de la justice, les communications avec le public et la prestation des services, ainsi que la mise en œuvre des objectifs de ces institutions;
(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
b) d’appuyer le développement des minorités francophones et anglophones et, d’une façon générale, de favoriser, au sein de la société canadienne, la progression vers l’égalité de statut et d’usage du français et de l’anglais;
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
c) de préciser les pouvoirs et les obligations des institutions fédérales en matière de langues officielles.
[53] In Beaulac at para 24, the Supreme Court of Canada stated that section 2 of the OLA affirms that the OLA protects and contemplates a substantive equality of languages in Canada.
[24] This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State . . . It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. This being said, I note that this case is not concerned with the possibility that constitutionally based language rights may conflict with some specific statutory rights.
(2) Interpretation of subsection 36(2) of the OLA [54] Although the parties agree on the principles of interpretation that apply, they do not agree on the proper interpretation of subsection 36(2) of the OLA. The dispute is twofold: the scope of section 31 of the Act and the meaning of the words “such measures . . . as can reasonably be taken” used in subsection 36(2).
[55] Of course, both section 31 and subsection 36(2) of the OLA must be interpreted in light of the principles of interpretation generally applicable to language rights and bilingual legislation, both versions of which are equally authoritative. Accordingly, “differences between two official versions of the same enactment are reconciled by educing the meaning common to both” (R v Daoust, 2004 SCC 6 [Daoust] at para 26, citing Pierre-André Côté, Interpretation des lois, 3rd ed, (Montréal: Thémis, 1999) at p 410). Thus, the interpretation of a bilingual enactment consists first in searching for the common meaning between the two versions of the statute and, where their scope differs, in preferring the narrower meaning common to both versions (Daoust at para 29). Then, it must be determined whether the common meaning that has been identified is, according to the ordinary rules of statutory interpretation, consistent with Parliament’s intent (Daoust at para 30).
(a) Impact of section 31 [56] The Attorney General submits that it is sufficient to look at section 31 and Part IV of the OLA to resolve the apparent conflict between language of service and language of work in this case, without necessarily having to consider Part V and subsection 36(2) of the OLA or even Mr. Tailleur’s language rights with respect to language of work. The Attorney General is, in effect, arguing that section 31 of the OLA responds to any tension between Parts IV and V of the OLA and that any dispute should be determined in favour of Part IV pursuant to section 31; indeed, where there is a conflict, the right of members of the public to be served in the language of their choice always prevails over the right of employees.
[57] The Court disagrees with this argument and this interpretation of the OLA.
[58] If section 31 of the OLA clearly establishes that Part IV takes precedence over Part V, it does not do so absolutely but to the extent that the provisions of Part V are inconsistent with the provisions of Part IV. In fact, the French version of the section speaks of “dispositions incompatibles de la partie V” while the English version of the OLA provides that Part IV prevails “to the extent of the inconsistency”. Interpreted jointly and with a meaning common to the two versions, this section clearly states that the window of inconsistency that section 31 refers to is limited. Indeed, Part IV will only take preccedence to the extent of the inconsistency that has been identified. How can this inconsistency be measured without first identifying its nature and scope (and therefore analyzing the duties of federal institutions under Part V)?
[59] Since a substantive inconsistency is required to depart from the language rights in Part V in favour of those in Part IV, the Court