Seesahai v. Via Rail Canada

Seesahai v. Via Rail Canada
Court (s) Database
Federal Court Decisions
Date
2009-09-09
Neutral citation
2009 FC 859
File numbers
T-1915-02
Decision Content
Federal Court
Cour fédérale
Date: 20090909
Docket: T-1915-02
Citation: 2009 FC 859
Ottawa, Ontario, September 9, 2009
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
WENDY SEESAHAI
Applicant
and
VIA RAIL CANADA INC.
Respondent
COMMISSIONER OF OFFICIAL
LANGUAGES OF CANADA
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
[1] By this application under section 77 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the OLA), the applicant, Ms. Wendy Seesahai, challenges the legality of VIA Rail Canada Inc. (VIA)’s bilingual requirements for the Service Manager (SM) and Assistant Service Coordinator (ASC) positions on train routes that have not been designated as bilingual by the Treasury Board Secretariat (TBS).
[2] The application is dismissed. For ease of reference, relevant legislative or regulatory provisions referred to in these reasons are reproduced in an Annex.
I. COMPLAINT TO THE COMMISSIONER
[3] The applicant has been employed by VIA since June 25, 1984. She works as an on-board service employee and is based in Winnipeg. In Western Canada, VIA services consist of the Canadian, its legendary transcontinental train running between Vancouver and Toronto (the Western Transcontinental), which caters mainly to the domestic and foreign tourism markets. VIA also operates four “remote routes”, which include the runs between Winnipeg and Churchill (the Hudson Bay), and Jasper and Prince Rupert (the Skeena). On or around January 20, 2000, the applicant made a complaint under section 58 of the OLA to the present intervener, the Commissioner of Official Languages (the Commissioner).
[4] In her complaint, the applicant alleged that she had been discriminated against by VIA because she was an English-speaking unilingual employee. Similar complaints have been made by 38 other English-speaking on-board service employees based in Winnipeg or Vancouver. All are bound by the terms of “Collective Agreement No. 2 Covering On-Board Service Employees” (the on-board collective agreement) between VIA and the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW).
[5] For example, Mr. Brian Norton stated the following in his complaint letter:
I am writing to lodge a complaint against VIA Rail Canada Inc. which has discriminated against me based on language.
Since 1986, VIA Rail has imposed a bilingual hiring policy on its new employees and has established two positions as bilingual which has prevented me from obtaining promotion within the company. The two positions by which I am affected are Assistant Service Coordinator and Service Manager. When VIA Rail adopted the policy of bilingualism, they failed to provide to myself, a unilingual employee, training, so that I might upgrade my language abilities and have opportunity to qualify for these bilingual positions.
Although the Assistant Service Coordinator replaced the former Passenger Services Assistant, the new position was placed in the dining car and caused the removal of a unilingual position from that work area.
VIA Rail offered French language training to employees prior to 1988, the last classes ended in 1987. Classes were substituted by a correspondence course which comprised of 7 levels and books to be completed on my own time with teachings being regulated over the phone every six weeks. This form of course does not enable one to be fully immersed in the French language in order to efficiently converse and qualify as bilingual within a reasonable period of time. The course takes approximately 4-6 years to complete.
My wages have been affected since the opportunity for career advancement have precluded failure by this correspondence course. Junior bilingual employees have held full time, year round positions which are between $3.00-$8.00 greater than a unilingual position and I have either been laid off annually or prevented from occupying bilingual positions because of language.
In recent years, VIA Rail reclassified its Service Manager position making it also bilingual. In doing so, the corporation reclassified unilingual positions once again in favour of the French language. Although training is being offered in the classroom this time, to be eligible for the French training for the Service Manager, one must already be a Service Manager. In negotiations for our contract in 1998, it was agreed that unilingual employees would have the opportunity to qualify as Service Managers then go on to French language training in order to qualify for the position. In Western Canada, VIA management would not permit unilinguals to interview for this position (even though the training application still states preference given to) and only accepted bilingual even though French language training would have been offered to successful unilingual candidates.
I have been prevented in every way, since VIA Rail went bilingual, from achieving the highest pay scale one can reach and been denied the opportunity for acceptable language training. My income and pension is suffering because of this discriminatory act of this corporation and my self-esteem and pride I generally exhibit for this crown corporation is diminishing.
It is my understanding that when the bilingual laws of the land came into effect, that those working under federal jurisdiction would be given French language training and that the new jobs would be phased in objectively with minimal impact so that opportunity in the workplace would not be denied.
My opportunities have been denied and I feel that I have been discriminated against on the basis of language. I respectfully request that you assist me in taking VIA Rail to task for the wrong which they have committed against me.
The SM and ASC positions mentioned in the complaint are two front-line positions staffed by on-board service personnel.
[6] The applicant’s complaint raises similar issues to that of Margaret Temple. Ms. Temple, who made a similar application, Court file T-1165-02, was at the time the local chairperson of the CAW in Winnipeg. In her oral presentation to the Court, she explained that a group of unsatisfied unilingual employees got together and she, in collaboration with Mr. Stan Pogorzelec, who was acting as the Regional Bargaining Representative of the CAW, covering all of Western Canada, drafted a formal complaint. The facts leading to their dispute with VIA are set out in the following section.
II. FACTS LEADING TO THE DISPUTE
[7] VIA was created in 1978 as a Crown corporation to provide Canadians with year-round safe and efficient passenger rail services to both large and small communities, including many where rail travel is the only transportation available. Contrary to its private sector counterparts, VIA is an important instrument of government policy in transportation, employment and promotion of linguistic duality and bilingualism in Canada.
[8] Notably, both as a Crown corporation and a “federal institution” to which the OLA applies, VIA has the constitutional or quasi-constitutional duty to ensure that members of the travelling public can communicate with and obtain its services in their official language at its head office as well as in any local office, railway station or train where there is a “significant demand” or where it is reasonable, due to the “nature of the office”. This duty flows directly from subsection 20(1) of 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 (the Charter), and sections 23 or 24 of the OLA, which are found in Part IV of same.
[9] While reasserting a number of values and language rights recognized in the Charter, the OLA not only imposes on federal institutions a number of prescribed duties; it also encourages them to take active measures to foster the broad objectives of the OLA. In this respect, VIA’s language policies are monitored by various public institutions, including the Official Languages Branch of the Treasury Board, through annual reviews, and the Commissioner who has the mandate to promote and oversee the full implementation of the OLA, to protect the language rights of Canadians and to promote linguistic duality and bilingualism.
[10] In 1986, with the encouragement of the Commissioner, VIA introduced a policy of hiring bilingual persons in front-line positions. Its purpose was to increase bilingual capacity amongst personnel and the availability of bilingual services to its clientele. Since then, VIA has maintained its corporate commitment to providing uniform service throughout Canada, and to protecting the safety and welfare of its passengers by ensuring a bilingual presence on its trains. On this issue, VIA has historically taken a pragmatic approach which consists of designating specific front-line positions as bilingual only when the status quo has failed to fulfill bilingual needs across the system, as reflected in Appendix 6 of the on-board collective agreement.
[11] Thus, the majority of front-line positions on-board trains have not been designated bilingual by VIA. Indeed, prior to 1998, only one position, that of the ASC, had been designated bilingual since its creation in 1986 in order to assure a minimum bilingual presence on VIA trains for safety reasons.
[12] Among the front-line positions that have never been designated bilingual are the former position of SM, whose duties were substantially affected in 1998 by the New ERA Passenger Operations (NEPO) initiative described below, and the positions of Service Coordinator (SC), Activity Coordinator (AC), Senior Service Attendant (SSA) and Service Attendant (SA). In addition to being qualified as a SSA, the applicant is also qualified as a SC and SA.
[13] Traditionally, Canadian railway employees in the “running trades” - those engaged in the operation of trains - were grouped, for purposes of collective bargaining, into two broad categories: locomotive engineers and conductors. For decades, these crafts were represented by different bargaining agents; the engineers by the International Brotherhood of Locomotive Engineers (the BLE) and the conductors by the United Transportation Union (the UTU). Each was party to a series of collective agreements and other arrangements negotiated with the Canadian Pacific Railway (CPR), Canadian National (CN), and their successor in providing passenger services, VIA. Other office and train employees were members of different bargaining units, one of which is the train service employees of on-board services, including corporate employees engaged in the preparation of food and beverage for service on trains, which are currently represented by CAW.
[14] In the nineties, despite its bilingual hiring policy and the bilingual designation of the ASC position, VIA continued to be under considerable external pressure, notably from the Commissioner, to provide adequate bilingual services to the travelling public in stations and trains. In 1991, an action for a mandatory order was brought to this Court by the Commissioner to correct alleged deficiencies in the French language services offered to the travelling public in the Montreal-Ottawa-Toronto triangle: Commissioner of Official Languages v. VIA Rail Canada Inc., Federal Court file T-1389-91. At that time, VIA claimed that seniority provisions in various collective agreements prevented it from acting. Indeed, rigid assignment or organizational work rules negotiated with trade unions or inherited from its predecessors were restraining VIA’s provision of bilingual services in different parts of Canada. In 1997, the Court’s proceeding was suspended to give VIA the opportunity to negotiate new work rules with the unions and reach a satisfactory resolution.
[15] In 1998, VIA implemented the NEPO initiative as part of its corporate commitment to provide uniform service in both official languages throughout Canada and ensure adequate bilingual presence on its trains. As a result, train crews were re-organized; more specifically, the NEPO initiative merged the train conductors’ operating responsibilities with those of the locomotive engineer and assigned safety responsibilities to the person occupying the position of SM. The crewing initiatives implemented as a result of NEPO were nationwide and were not limited to the Western region. NEPO involved not only on-board service employees represented by CAW but other groups of employees represented by other trade unions as well.
[16] VIA’s efforts to provide better bilingual services came to fruition with the NEPO initiative, as subsequently reported by the Commissioner in her annual report, where it is noted that the role of seniority in designating the members of a work unit was diminished in favour of ensuring that members of the public could be served in either French or English (see Language Rights 1999‑2000, Commissioner of Official Languages, Minister of Public Works and Government Services Canada, 2001, website: <http://www.ocol.gc.ca>). Indeed, some eight years after the institution of the action for a mandatory order against VIA, as appears from the Court’s record, a Notice of discontinuance was filed by the Commissioner on June 21, 1999.
[17] In view of the NEPO initiative, the former unilingual position of SM was abolished and VIA and CAW agreed in a Memorandum of Agreement dated March 11, 1998 (the 1998 Memorandum) to the creation of three new bilingual SM classifications (SM-Transcontinental, SM-Corridor and SM-Remote) (see articles 2, 3, 4, 5 and 6 of the 1998 Memorandum). Furthermore, there was the introduction of a second ASC position on-board the Western Transcontinental to ensure a bilingual presence while the SM is on night rest (see article 12 of the 1998 Memorandum).
[18] Upon implementation of the NEPO initiative in July 1998, VIA had 24 regular assignments: 31 employees had been trained as SM. By the end of 1998, it had 37 trained employees. The applicant was not one of those employees. That said, in regard to French language training, VIA and the CAW agreed in the most recent round of negotiations that 10 language training opportunities per year would be made available to Union members system-wide for 2005 and 2006, with specific reference to employees seeking to work as SMs on the Skeena.
[19] Thus, for the on-board service employees who could qualify for the newly created positions, the NEPO initiative meant additional work opportunities and a salary increase. Conversely, it represented in turn a loss of work or reduction of responsibilities for the running trade employees whose positions and bargaining units had been merged (locomotive engineers and train conductors). In particular, for train conductors whose responsibilities in respect of safety were transferred to the SMs, the NEPO initiative had dramatic effects. Indeed, a group of former train conductors (formerly represented by the UTU) made a complaint of unfair representation against BLE (their new bargaining agent) to the Canada Industrial Relations Board (the Board), following the negotiation with VIA of the 1998 crewing agreement which severely limited their chances of being qualified to occupy the new position of locomotive engineer.
[20] The Board’s decisions to accept the complaint and to order corrective actions against both VIA and the BLE resulted in a long and complex legal battle (see VIA Rail Canada Inc. (Re) (1998), 45 C.L.R.B.R. (2d) 150, 107 di 92; VIA Rail Canada Inc. v. Cairns, [2001] 4 F.C. 139 (C.A.), leave to appeal to the S.C.C. refused [2001] C.S.S.R. No. 338 (QL) (Cairns 1); (Cairns (Re), [2003] CIRB No. 230, [2003] C.I.R.B.D. No. 20 (QL); VIA Rail Canada v. Cairns, [2005] 1 F.C.R. 205 (C.A.), leave to appeal to the S.C.C. refused [2004] S.C.C.A. No. 358 (QL) (Cairns 2)).
[21] In sharp contrast, after more than ten years, no complaint of unfair representation has been filed by on-board service employees against the CAW as a result of the NEPO initiative or the conclusion of the 1998 Memorandum. That said, Ms. Temple indicated to the Court last April 2009 that applicants could file to the Board a complaint of unfair representation if this Court were to conclude that the bilingual requirements for the SM and ASC positions were contrary to the linguistic rights of unilingual employees in 1998.
III. INVESTIGATION AND REPORT BY THE COMMISSIONER
[22] Before the Commissioner, the 39 complainants directly questioned the validity of bilingual designations made under the 1998 Memorandum, which was expressly negotiated and agreed to by the CAW in the course of mediation conducted in April 1998 by former arbitrator George W. Adams. In their concerted attack against both VIA’s hiring policy and the bilingual requirements for the SM and ASC positions on all trains running in Western Canada, including the Western Transcontinental, the complainants nevertheless acknowledged that VIA had linguistic obligations to the travelling public.
[23] However, the complainants submitted that up to 75% of employees on the Western Transcontinental were already bilingual (a figure which has been challenged by VIA). In their view, bilingual capacity among trained crews had reached a point where VIA could ensure the availability of services to passengers in both official languages without adversely affecting the advancement and employment opportunities of unilingual employees. While recognizing that VIA was taking certain measures to assist unilingual employees, most notably in relation to second-language training, they considered the measures inadequate.
[24] Given that the employment policies and practices that were the subject of the 39 complaints affected only Anglophone employees and given that train crew assignments were deemed to constitute staffing actions, the allegations made by the 39 complainants were investigated by the Commissioner on the basis of sections 39 and 91 of the OLA, taking into account VIA’s linguistic obligations to the travelling public in Western Canada.
[25] Section 39 of the OLA, which is found in Part VI, addresses broad language rights while pursuing employment or advancement. More particularly, subsection 39(2) requires a federal institution “to ensure that employment opportunities are open to both English-speaking Canadians and French-speaking Canadians…” and to take into account “the purposes and provisions of Part IV and V” in appointing and advancing its officers and employees and in determining the terms and conditions of their employment. Part IV has already been mentioned above (see paragraph 8). Part V creates rights and duties in relation to the language of work. Section 91, which is found at Part XI, addresses particular staffing actions of a federal institution; it obliges the federal institution to use objective criteria in determining each position’s language requirements.
[26] The Treasury Board may issue directive guidelines to give effect to Parts IV, V and VI and provide information to the public and to officers and employees of federal institutions relating to the polices and programs that give effect to Parts IV, V and VI (see paragraphs 46(2)(c) and (f) of the OLA. Although VIA, as a Crown corporation and thereby a separate employer, is not subject to TBS policies and guidelines, the Commissioner considered that it was expected as a federal institution to abide by the underlying principles and purpose of the Secretariat’s official language policies. Accordingly, the Commissioner examined the legality of VIA’s bilingual requirements in light of the Treasury Board’s directive for the use of imperative and non-imperative staffing of bilingual positions in the federal public service.
[27] Moreover, with respect to the scope of linguistic obligations, the Commissioner heavily relied on Burolis, which is the Government of Canada’s database that lists those offices outside the National Capital Region that the TBS considers to meet the criteria of “significant demand” under the Official Languages (Communications with Services to the Public) Regulations, SOR/92-48 (the Regulations). At the time of the complaints, the Western Transcontinental was designated by TBS as a “bilingual office”, apparently on the basis that it was on an interprovincial route that started in, finished in or passed through a province that had an English or French linguistic minority population that was equal to at least five per cent of the total population in the province (see subparagraph 7(4)(d)(i) of the Regulations). On the other hand, the Western remote routes were not designated by TBS as bilingual, apparently on the basis that there was less than 5% of the demand from the travelling public for services in the French minority language (see subsection 7(2) of the Regulations).
[28] The Commissioner took two years or so to complete its investigation.
[29] On or around May 27, 2002, the applicant was notified of the release of the Commissioner’s final report entitled “Final Investigation Report on Language Requirements and Related Issues concerning VIA Rail in Western Canada”, May 2002 (the final report). Except in one case not related to this application, there is no specific finding with respect to the merits of any individual complaint or any particular staffing action. The complainants are treated as a group, as are their allegations. The Commissioner found in this regard that some of the common allegations about VIA’s policies and practices related to language requirements on trains in Western Canada were well-founded, while others were not.
[30] The common unfounded allegations concerned the Western Transcontinental’s SM position and participation levels in the region. Indeed, the Commissioner considered that both VIA’s linguistic obligations to the travelling public and the SM’s role and duties supported the position’s bilingual requirements on the Western Transcontinental. VIA’s linguistic obligations also accounted for a relatively high level of Francophone participation among the employees in question, given the demographic of the region’s population.
[31] The Commissioner also supported the need for bilingual capacity for at least one ASC position on the Western Transcontinental; however, the bilingual requirements for a second ASC position on the Western Transcontinental were to a certain extent, in the Commissioner’s view, contrary to section 91 and Part VI of the OLA.
[32] Moreover, the Commissioner was also of the opinion that bilingual requirements on SM and ASC positions assigned to remote routes that had not been designated as bilingual by TBS were to a certain extent contrary to section 91 and Part VI of the OLA and second language training should be provided if needed. The Commissioner also invited VIA to pursue discussions with TBS to have those routes designated as bilingual on other regulatory grounds that the significant demand criteria (such as for safety reasons).
[33] Other related issues discussed in the final report of the Commissioner concerned VIA’s hiring policy and the limited number of language training openings in French since 1986.
[34] The Commissioner considered that VIA’s obligations to the travelling public justified its policy of hiring only bilingual candidates for front-line positions and supported its continuation to the extent that it was still necessary to meet its linguistic obligations, as well as other needs such as passenger safety.
[35] With respect to the alleged lack of language training opportunities, the Commissioner considered that the programme directed at former unilingual SMs affected by the NEPO initiative was consistent with the incumbents’ linguistic rights. However, other language training initiatives had been misguided due to the strict application of the seniority principle (which notably had for effect that language courses were offered to employees who were not occupying front-line positions or were too close to retirement).
[36] As the applicant and Ms. Temple, the former local chairperson of the CAW, explained in their oral presentation in Winnipeg, following the issuance of the Commissioner’s final report, five days before the expiration of the 60 day delay to make an application to the Court, the CAW, at the national level, decided to “withdraw their support [to the 39 complainants] because they did not want to be involved in a dispute between the company and the Official Languages Act”.
[37] On September 10, 2002, Justice Blanchard dismissed the applicant’s motion to extend the deadline to complete her application. However, on November 8, 2002, Justice Layden-Stevenson extended the time within which the applicant could file her notice of application until November 15, 2002. Thus, on November 13, 2002, the applicant made the present application.
[38] On November 22, 2002, the applicant filed a motion to include two additional respondents, namely the CAW and the Commissioner of Official Languages. On December 20, 2002, by order of Prothonotary Lafrenière, the applicant’s motion to include two respondents was adjourned sine die upon noting that the applicant’s application was related to similar applications brought by other VIA employees, namely Brian Norton, Brenda Bonner and Margaret Temple, which were ordered struck in a summary manner by Prothonotary Morneau on November 12, 2002 and had since been appealed to the trial division.
[39] Furthermore, in May 2003, the applicant applied for an in-house instructors’ training program. Before setting up an interview for the position, the Regional Manager, Customer Services said to the applicant that the Regional Director of Customer Services wanted to know about the applicant’s intention regarding her present proceedings against VIA before the Federal Court. A final report dated September 2006 with respect to subsection 62(2) of the OLA concluded that the applicant had been intimidated by her employer because of the Federal Court proceedings she had filed.
[40] As examined later (see paragraph 55), on June 1, 2005, the Federal Court of Appeal allowed the appeal of Prothonotary Morneau’s order dated November 12, 2002 and dismissed VIA’s motion to strike the applications of appellants Norton, Bonner and Temple. Furthermore, on March 24, 2006, upon VIA’s motion to stay the proceedings in files T-1280-02, T-1165-02, T-1167-02, T‑1795-02 and T-1915-02, Prothonotary Tabib ordered that the applicant’s proceedings be stayed. Thus, it is only on October 13, 2006 that Justice de Montigny ordered a schedule of dates for the completion of the remaining steps in the present proceedings.
IV. APPLICATION FOR REMEDY TO THE COURT
[41] The present proceeding is not an application for judicial review. It is a sui generis application in regard to a “remedy” specifically provided for by section 77 of the OLA (Marchessault v. Canada Post Corp., 2003 FCA 436, [2003] F.C.J. No. 1723 (QL) at paragraph 10) and is designed:
(a) to verify the merits of a complaint before the Commissioner in view of an alleged breach of the rights and duties provided under the OLA; and
(b) to secure relief, where applicable, that is appropriate and just in the circumstances.
[42] Before this Court, the applicant has considerably narrowed the scope of her original complaint by limiting her attack to the legality of the ASC and SM bilingual requirements on the Western remote routes (the challenged staffing actions). The applicant essentially submits today that VIA acted in a discriminatory or arbitrary manner in 1998 and did not use objective criteria in taking the challenged staffing actions, which are contrary to sections 39 and 91 of the OLA. In this respect, the applicant submits that VIA’s linguistic obligations to the travelling public in Western Canada are limited to the Western Transcontinental, which is designated bilingual by TBS, in contrast to the Western remote routes, which are not designated bilingual by TBS (see Burolis). Where bilingual requirements for the staffing of a position are not based on VIA’s linguistic obligations, it is therefore unfair to exclude otherwise qualified unilingual employees without providing them with appropriate language training that would allow them to fulfill the corporation’s other responsibilities, such as safety. This includes the SM-Remote position and the ASC position on the Western remote trains, as well as the second ASC position on the Western Transcontinental, which the applicant submits she would have held from 1998 through to the present, because of her seniority rank.
[43] At the hearing in Winnipeg, the applicant expressed having being blamed, threatened, bribed and intimated as a result of the present proceedings. Thus, the course of the proceedings have been extremely stressful and the applicant confessed having thought on numerous occasions of leaving VIA.
[44] With respect to the remedies sought by the applicant, only the first, third and fourth recommendations of the Commissioner’s report are relevant. They are that VIA:
1. Take the necessary steps to enable otherwise qualified unilingual employees to apply for bilingual Service Manager positions on non-designated routes and provide second-language training where needed;
3. In accordance with section 91 of the Official Languages Act and taking into account bilingual capacity among crews and existing flexibility, identify opportunities for assigning qualified unilingual employees to one of the two Assistant Service Co-ordinator positions on the Western Transcontinental while providing appropriate second-language training; and,
4. While pursuing discussions with the Treasury Board Secretariat concerning non-designated routes, take the necessary steps to enable otherwise qualified unilingual employees to apply for Assistant Service Co-ordinator positions on these routes and provide second-language training where deemed needed.
[45] Thus, the applicant confirmed at the hearing that she seeks the following remedies:
(a) a declaration that VIA has violated sections 39 and 91 of the OLA;
(b) an order enjoining VIA to comply with recommendations 1, 3 and 4 of the Commissioner’s final report by providing the applicant with ASC and SM training, as well as French language training;
(c) monetary compensation for lost wages and reduced pension;
(d) damages for the humiliation and embarrassment suffered; and
(e) any other remedial order the Court considers appropriate and just in the circumstances.
[46] The application is opposed by the respondent. Subject to its objection that a labour arbitrator has exclusive jurisdiction or is better placed than the Court to hear and decide the matter in dispute, VIA submits that language requirements for the SM and ASC positions, which were agreed to by CAW in 1998, were objectively required and did not infringe sections 39 or 91 of the OLA, due in particular to the nature of VIA’s operations, the specific functions and responsibilities associated with those positions, and the consequent service and safety considerations that arise. In any event, the remedies sought today by the applicant under subsection 77(4) of the OLA are not appropriate and just in the circumstances.
[47] The intervener has limited her submissions to two issues. First, the Commissioner takes the position that the Court has jurisdiction to hear and decide the matter under subsection 77(1) of the OLA. Second, while not addressing the actual merits of the applicant’s particular case, the Commissioner nonetheless submits that if a breach of section 91 of the OLA is found (which was one of the Commissioner’s assumptions in her final report), the Court has broad powers under subsection 77(4) of the OLA to remedy the situation, including by ordering VIA to indemnify the applicant for lost wages and reduced pension and awarding damages for the humiliation and embarrassment suffered.
[48] Along with the present proceeding, other similar applications by four on-board service VIA employees who had complained to the Commissioner were heard concurrently with this application in Winnipeg from April 20 to 24, 2009 (T-1165-02, T-1167-02, T-1795-02 and T-1280-02). Although the applications were not consolidated, the Court granted on April 24, 2009, a motion made by the applicants to join the factual evidence of all five proceedings.
V. ISSUES IN DISPUTE AND DETERMINATION
[49] Three issues are raised by the parties in this case:
(a) Does the Federal Court have jurisdiction under subsection 77(1) of the OLA to hear and decide this application (or any part of same)?
(b) If so, are the bilingual requirements for the SM and the ASC positions in issue “objectively required” under section 91 of the OLA?
(c) If the bilingual requirements for the above positions are not “objectively required”, what constitutes an “appropriate and just remedy” within the meaning of section 77(4) of the OLA?
[50] For the reasons which will be found in the following sections of this judgment, the Court’s answers to the questions above are as follows.
[51] First, insofar as the challenged staffing actions are concerned, the Court has jurisdiction to hear and decide the matter.
[52] Second, based on the evidence in the record, the bilingual requirements for the SM and ASC positions were objectively required under section 91 of the OLA in order for VIA to perform the functions for which the challenged staffing actions have been taken.
[53] Third, even if the bilingual requirements for the SM and ASC positions were not objectively required, the Court would not have granted any of the remedies sought by the applicant in her application, except that of declaring the bilingual requirements to be illegal and ordering VIA to post a bulletin inviting all employees to bid for training in the existing ASC and SM positions on Western remote routes, and reserving jurisdiction to finally determine the amount of compensation or damages to be awarded to the applicant if she was chosen for training and found ultimately to be qualified for an assignment in any of these positions.
VI. JURISDICTIONAL ISSUE
[54] From the outset, it has been VIA’s submission that the present application should be dismissed on the ground that the subject matter of the dispute is governed by the on-board collective agreement and falls within the exclusive jurisdiction of the grievance arbitrator.
[55] The prothonotary granted VIA’s motion to strike the application (2002 FCT 1175) and his decision was upheld by a Judge of this Court (2004 FC 406). However, the Federal Court of Appeal overturned these two decisions (Norton v. Via Rail Canada Inc., 2005 FCA 205, [2005] F.C.J. No. 978 (QL) (Norton)). On December 8, 2005, the Supreme Court of Canada dismissed VIA’s application for leave to appeal (Norton v. Via Rail Canada Inc., [2005] S.C.C.A. No. 362 (QL)).
[56] Justice Sharlow, speaking for the majority of the Federal Court of Appeal, noted in Norton, above, that the appellants had the right to submit their complaints to the Commissioner under section 58 of the OLA (Norton at paragraph 6) and that “[t]he subject matter of the applications is within subsection 77(1) of the OLA” (Norton at paragraph 9)”, which means that “it will be for the judge who finally hears this application to interpret the complaints and assess their merits” (Norton at paragraph 20). Moreover, she expressed “some doubt about the proposition that all differences related to matters listed in subsection 57(1) of the Canada Labour Code, R.S.C., 1985, c. L-2 (the Labour Code), that is, the interpretation, application, administration or contravention of a collective agreement, are exclusively within the jurisdiction of a labour arbitrator” (Norton at paragraph 19 [emphasis added]), while “the substance of the complaint may be that the language rights of the appellants were breached when the terms of the Collective Agreement were agreed to, either because of what is in the Collective Agreement, or because of what is not in the Collective Agreement” (Norton at paragraph 20). In a case where “the Collective Agreement is intended to bar the appellants from all recourse to section 77 of the OLA”, this raises the issue of “whether it is possible, as a matter of law, to bargain away the right of a person to bring an application under section 77 of the OLA” (Norton at paragraph 21). That said, Justice Sharlow nevertheless left open “the possibility that, after a hearing, a judge may determine that the language rights of the appellants have not been breached, or that their language rights are most appropriately dealt with in the context of the grievance procedure set out in the Collective Agreement, or that there is no remedy that could be granted by the Federal Court without infringing on the jurisdiction of a labour arbitrator” (Norton at paragraph 22).
[57] Since the judgment rendered in 2005 by the Federal Court of Appeal in Norton, above, VIA has not abandoned its claim that the Court does not have jurisdiction to hear and decide the matter on the merits or to craft a remedy, in view of the grievance arbitrator’s general jurisdiction over labour disputes. The parties made full argument on the jurisdictional issue in the Norton application on April 20 and 21, 2009. It was agreed that it would not be necessary to re-argue this issue in the four other related applications.
[58] Leaving for now the issue of the legality under the OLA of the challenged staffing actions, there are a number of parallel issues raised in the original complaint or in the material submitted by the parties in this file or related files which clearly fall under the exclusive jurisdiction of, or would be better resolved, by a labour arbitrator or another specialized tribunal, in view of the limited jurisdiction granted to this Court under subsection 77(1) of the OLA. These issues entail deciding whether VIA’s hiring policy or practices are discriminatory on the basis of language; whether the bilingual capacity of VIA has reached such a level that it is no longer necessary to designate bilingual positions on trains; whether the applicant has been personally discriminated against by VIA on the basis of language since 1986; whether the applicant has been harassed or humiliated in the workplace because she is a unilingual employee; whether VIA has provided adequate language training to unilingual employees, including the applicant; whether VIA’s evaluation of the language level of the applicant is proper; whether under the 1998 Memorandum, bilingualism was a pre-requisite in order to be selected for training in the cases of unilingual candidates who were not already qualified as SM; whether the provisions of Appendix 6 of the on-board collective agreement applied in respect of the crewing initiatives taken as a result of the implementation of the NEPO initiative, including the creation or designation of additional bilingual ASC positions; whether the training bulletins posted as a result of the implementation of the NEPO initiative complied to the 1998 Memorandum or the on-board collective agreement; and whether VIA could legally ask unilingual employees previously not qualified as SM or ASC to occasionally perform their functions – just to name a few situations where this Court cannot or should not be involved because the matters are regulated in an exhaustive manner by the on-board collective agreement.
[59] That said, in view of competing statutory grants of jurisdiction under the OLA and the Labour Code, and given the complexity of this matter as well as the further implications of this Court’s ruling on its own jurisdiction, we shall refrain from hastily and mechanically applying the exclusive jurisdiction model to the challenged staffing actions (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec