Dionne v Office of the Superintendent of Financial Institutions
Background
Mr. Dionne occupies a bilingual position at the Office of the Superintendent of Financial Institutions (OSFI) in Montréal, Quebec, a region designated as bilingual for language‑of‑work purposesFootnote 1 under Part V of the Official Languages Act (R.S.C., 1985, c. 31 (4th Supp.)) (the Act). Mr. Dionne is a “generalist” required to interact on a mandatory and frequent basis with “specialist” employees who occupy unilingual English positions at OSFI in Toronto, which is not a region designated as bilingual for language‑of‑work purposes under the Act.
Therefore, Mr. Dionne filed a complaint with the Office of the Commissioner of Official Languages (the Office of the Commissioner), since he considered that his language‑of‑work rights under Part V of the Act were being violated. Following the Office of the Commissioner’s investigation, Mr. Dionne filed an application to the Federal Court because he felt that OSFI had not corrected the situation in a satisfactory manner.
In his application, Mr. Dionne alleged the following:
- His rights to obtain central services and regularly and widely used work instruments in his preferred official language were violated, contrary to subsection 36(1)(a) of the Act.
- The institution did not take reasonable measures to create a work environment conducive to the effective use of both official languages, contrary to subsection 36(2) of the Act.
Judgment
Principles of interpretation of language rights
Before making a decision regarding the case, the Court reviewed the principles of interpretation applicable to the Act.
The Court decided that, since Part V of the Act is aimed at institutional bilingualism and not at the preservation of provincial official language minority communities, the principle of interpretation set out in R. v. Beaulac, [1999] 1 SCR 768 that language rights must be interpreted in a broad and liberal manner does not apply in this case. Indeed, the Court is of the opinion that the case law supports a broad and liberal interpretation of language rights solely to assist provincial official language minority communities. Since Part V of the Act deals with institutional bilingualism, that is, the use of English and French in federal institutions, the Court is of the view that this part is not intended to preserve provincial official language minority communities. Therefore, Part V of the Act should not be interpreted in a broad and liberal manner.
The Court supported its reasoning by pointing out that the legislator made a distinction, in the Act, between the objective of official bilingualism in federal institutions and that of supporting provincial official language minority communities. The Court is of the view that this distinction is apparent from the wording in the preamble and section 2 of the Act.
The Court considered that it should also be taken into account that the Act rebalanced the past disadvantages of the Francophone minority community in federal institutions. Indeed, the Francophone minority, given its greater proficiency in both official languages, has an advantage in federal institutions because of parts IV and V of the Act. The Court concluded that because of the advantages afforded to bilingual employees, “it is entirely inconsistent to throw merit out the window where language skills are not a staffing factor by claiming a different advantage on the basis of an alleged purposive interpretation [. . .] ”Footnote 2 of subsections 35(1)(a) or 36(2).
Finally, the Court said that the purposive approach to interpretation (i.e., a broad and liberal interpretation) should be used only when the Court cannot determine how a provision should be interpreted on the basis of the ordinary and grammatical meaning of its terms in the general context of the Act.
Services provided to staff of federal institutions pursuant to subsection 36(1)(a) of the Act
The Court now turned its attention to the applicant’s position that OSFI did not comply with subsection 36(1)(a) of the Act, because the services provided by the Toronto specialists were in English only. To do this, it interpreted the subsection in question, which states that federal institutions in designated bilingual regions are responsible for providing central and individual services to their employees in both official languages.
The Court therefore focused on the concept of service, which it defines as assistance or support to other employees in the context of subsection 36(1)(a) of the Act. Based on this subsection, the Court considered that it must define the concepts of individual and central services.
The Court considered that individual services are services that are provided to all employees of an institution, regardless of their duties and positions. These services are provided to them by the simple fact that they are employees of the institution. They are not related to their duties.
With respect to central services, the Court considered that they are provided in relation to the employees’ position and duties in the institution. These services are provided to assist federal employees in the performance of their duties.
The Court considered that members of the same team do not provide each other services within the meaning of subsection 36(1)(a) of the Act. This is because the provider of central services must be external to the work team. Therefore, generalists and specialists working as interdependent members of the same team are not providing services to each other.
The Court therefore concluded that there are no language obligations, under subsection 36(1)(a) of the Act, between OSFI’s Toronto specialists and Montréal’s generalists.
Interpretation and application of subsection 36(2)
Section 91 of the Act
The Court is of the opinion that the rights set out in Part V of the Act must be interpreted taking into account section 91 of the Act. It noted a statement by the legislator in section 91 that the merit principle should take precedence over the language rights set out in parts IV and V of the Act. These parts alone cannot justify language requirements in a staffing process if these requirements are not objectively justified for the performance of the duties of the position.
The Court considered that the principle must prevail over the language rights in parts IV and V of the Act in order to support the legitimacy of the public service in the eyes of Canadians.
Accordingly, the Court concluded that section 91 of the Act prohibits collateral bilingual staffing unless it is objectively necessary to perform the duties of the position.
Analysis of subsection 36(2)
Subsection 36(2) of the Act states that federal institutions have the duty to ensure that, in bilingual regions, “such measures are taken . . . 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.” The Court said that this subsection governs the residual language‑of‑work rights of employees in designated bilingual regions under Part V of the Act.
The Court developed a new approach to determine whether an institution has complied with this provision of the Act. It rejected the interpretation given to subsection 36(2) in Tailleur v Canada (Attorney General), 2015 FC 1230, since it considered the facts in this case to be different from those in the Tailleur case.
The Court considered that this subsection contains two objectives: 1) establishing a work environment conducive to the effective use of both official languages and 2) accommodating the use of either official language by its officers and employees.
The obligation of federal institutions to establish a work environment conducive to the effective use of both official languages is subject to the operational constraints and realities of the institution. The Court considered that institutions must take reasonable measures to ensure that their work environment meets this objective.
Once the institution has met this obligation, that is, once it has established a work environment conducive to the use of both official languages, it only needs to allow its employees to use either language. The Court considered that this accommodation rests in part on bilingual employees who must respect the preferred language of unilingual employees.
The Court considered that in order for the applicant to work solely in French, he would have to be able to work with other bilingual employees to allow him to interact in his preferred official language. This would require the re-designation and re-staffing of a number of positions, including specialist positions in Toronto. The Court referred to this process as “collateral bilingual staffing.” In other words, it means that, through the exercise of his right under subsection 36(2), the applicant would determine the language proficiency related to the other positions, as opposed to the requirements of the duties related to them. In the Court’s view, the Act does not permit collateral bilingual staffing. Therefore, subsection 36(2) of the Act does not allow the applicant to require that specialists in Toronto communicate with him in the official language of his choice.
Conclusion
In light of the foregoing, the Court rejected the applicant’s application. It also found that this was not an appropriate case to award costs.
The Commissioner of Official Languages has appealed this decision.