Canada (Commissioner of Official Languages) v Office of the Superintendent of Financial Institutions
In this case, the Federal Court of Appeal was asked to rule, for the first time, on the interpretation of subsections 36(1)(a) and 36(2) of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the Act).
Context
In this case, André Dionne—an employee holding a bilingual position and working at an office located in a prescribed bilingual region (Montréal, Quebec)—filed a complaint with the Commissioner of Official Languages (the Commissioner), stating that his employer, the Office of the Superintendent of Financial institutions (OSFI), breached its language duties toward him.
Following his complaint, Mr. Dionne applied for a remedy under section 77 of the Act and alleged that he was forced to work in English with unilingual employees located in a non‑prescribed region (Toronto, Ontario), in breach of subsection 36(1)(a) or, in the alternative, of subsection 36(2) of the Act.
The trial judge dismissed all of Mr. Dionne’s arguments. The judge found that the principles of interpretation established by the Supreme Court in R. v. Beaulac, [1999] 1 S.C.R. 768 (Beaulac) did not apply in this case; that the unilingual specialists in Toronto do not provide a “service” to the bilingual generalists in Montréal within the meaning of subsection 36(1)(a) of the Act; and that section 91 of the Act “has precedence” over the duties set out in subsection 36(2)Footnote 1.
The Commissioner and Mr. Dionne both appealed this decision.
In the appeal, the Commissioner stated that the errors of law committed by the trial judge had serious consequences on the interpretation of language rights in Canada and had the effect of arbitrarily restricting the scope of the provisions set out in Part V of the Act.
Reasons
1. The principles of interpretation set out in Beaulac
For the Federal Court of Appeal, there is no doubt that the trial judge erred in law when he refused to apply the principles of interpretation that apply to the language rights set out in Beaulac.
The Court noted that the trial judge’s analysis is based on the false premise that the broad and liberal interpretative approach set forth in Beaulac applied only to the rights of a provincial language minority—not the protection of institutional bilingualismFootnote 2. This artificial distinction, in addition to finding no support in case law or in the wording of the Act, unduly restricts the scope of language rights, contrary to the doctrine of Beaulac.
By doing so, the Federal Court of Appeal reinstated the rule established by Beaulac, a decision that clearly states that the broad and liberal interpretative approach must be followed “in all cases.”
At the same time, the Court completely refuted the statements made by the trial judge, according to which the Francophone minority received preferential treatment in the federal public service. According to the Court, these comments are unacceptable and reflect negative stereotypes that call into question the value of Francophone employees in the public service.
2. The notion of “services that are centrally provided” under subsection 36(1)(a) of the Act
The Court began by analyzing the purpose and spirit of Part V of the Act, which state that employees working in a prescribed bilingual region have the right to adequate support and tools from their employer in the course of their work in order to be able to provide high-quality services to the public in both official languages. However, this right is illusory in the absence of a work environment that respects the use of both official languages and encourages them to flourishFootnote 3.
After reviewing Parliamentary debates, the Court acknowledged that Parliament’s intent was, at least partially, to recognize a right that is not absolute and that employees must exercise in a reasonable manner. However, a federal institution in a designated bilingual region must maximize the opportunities for employees to use the official language of their choice.
The Court then determined that the ordinary and grammatical meaning of the notion of “services” refers to a common function, organized within an administrative body. It explained that the phrase “to support them in the performance of the duties” (or in French “auxiliaire” notion) in subsection 36(1) of the Act refers to the services the institution provides to employees to assist or support them in the performance of their duties.
The Court agreed with the fact that it is not necessary to have a formal decision by the institution in order for subsection 36(1)(a) of the Act to be applied, contrary to that which was decided by the trial judge.
The Court established that, rather, it was necessary to consider qualitative factors to determine whether a service is “centrally provided,” including the specific context of the institution, how it is structured, its mandate and the nature of the service offered.
In light of this information, it concluded that the “services that are centrally provided” referred to in subsection 36(1)(a) of the Act:
- are those that serve a common function and are provided in an organized manner within an administrative body by the federal institution in a prescribed bilingual region;
- are made available to the majority of employees by the federal institution;
- are provided by employees to provide auxiliary support to other employees of the institution in the performance of their duties;
- do not include all forms of assistance required to enable employees to perform the duties associated with their positions—employees must exercise their right to use the official language of their choice in a reasonable manner; and
- exclude occasional interactions or exchanges of information among employees on the same work teamFootnote 4.
Returning to the case involving Mr. Dionne, the Court concluded that the specialists in Toronto do not provide a service to the generalists in Montréal, because their work does not “support” or “equip” the generalists in their work. These two groups of employees work together on shared files to serve the same clientele (financial institutions).
3. The scope of the duty vested in federal institutions under subsection 36(2) of the Act
With respect to subsection 36(2) of the Act, the Court accepted the Commissioner’s argument that the trial judge had erred in law when it made a narrow interpretation of this subsection, particularly by omitting to apply the principle of substantive equality established in Beaulac and by rejecting the interpretation applied in Tailleur v. Canada (Attorney General), 2015 FC 1230 (Tailleur).
In doing so, the Court reinstated and endorsed the interpretation of subsection 36(2) of the Act as detailed in Tailleur. In this decision, the Federal Court determined that the phrase “such measures … as can reasonably be taken” means all measures that are reasonable to take and that a federal institution must consider and adopt in order to create a work environment that is conducive to the use of both official languages.
A specific measure is determined to be unreasonable: “[1] if it imposes significant or serious operational difficulties on a federal institution or [2] if implementing it would cause a demonstrable conflict with Part IV of the Act on language of service or [3] with a federal institution’s mandate”Footnote 5.
The Federal Court of Appeal then noted that the duty under subsection 36(2) of the Act is of an institutional nature. Relying on the Parliamentary debates, the Court stated that Parliament clearly sought to establish a series of standards common to all federal institutions to maximize the employee’s ability to use the official language of their choice.
It continued by stating that it must be assumed that individuals have the right to perform all of their duties in the official language of their choice and that the use of both official languages is the standard for all of the institution’s activities. This is precisely what enables a unilingual person to work at a federal institution. Any deviation from these principles must be an exception.
However, the Court agreed with OSFI in “that bilingual employees must interact with their unilingual colleagues in their official language, to some extent”Footnote 6. However, it stated that the burden of the duties set out in subsection 36(2) of the Act remains on federal institutions—not on employees.
Returning to the case at hand, the Court determined that OSFI failed in its positive duty to take measures to establish and maintain a work environment that is conducive to the effective use of both official languages, as stipulated in subsection 36(2) of the Act. Mr. Dionne was systematically forced to work in English even though he was required to write his reports in French. The onerous task of translating therefore fell on bilingual employees, like Mr. Dionne, when preparing reports intended for the public. However, the ability to speak both official languages does not automatically enable a bilingual employee to work as a translator.
By applying the approach in Tailleur to this file, the Court determined that an example of a reasonable measure in this case would have been to provide an adequate translation service. In fact, a unilingual English employee would be entitled to an effective translation service if the employee’s duties involved, for example, the preparation of reports in English using documents written in French or information that is partially in French. A bilingual employee in the same situation is equally entitled. In this case, the Court was of the opinion that such a measure would not have been unreasonable.
Finally, the Court noted that, in response to the Commissioner’s final report and accompanying recommendations, OSFI raised the linguistic profiles of 11 essential positions at the Toronto office, which are now identified as “Bilingual.” This measure also supports the establishment and maintenance of a work environment that is conducive to the effective use of both official languages. The Court established that it is up to the federal institution to choose the measures to be taken.
For all these reasons, the Court found that OSFI violated its obligations under subsection 36(2) of the Act.
Having endorsed the approach taken in Tailleur, the Court determined that section 91 of the Act did not apply in this case. This section was not raised in the complaint made to the Commissioner and neither parties ever raised its scope.
Conclusion
For all these reasons, the Federal Court of Appeal found that Mr. Dionne’s complaint was founded. OSFI breached its language duties toward Mr. Dionne under subsection 36(2) of the Act.
The appeals of Mr. Dionne and the Commissioner were allowed, and the Federal Court’s decision was therefore set aside.