Norton v Via Rail Canada (2009)

Language rights in the federal public service
Federal Court
2009 FC 704
Province or Territory: 

This caseFootnote 1 arose from complaints filed by a group of 39 VIA Rail employees concerning the impact of their employer’s language policy on their opportunities for advancement. The policy in question addressed, among other things, the language requirements of positions on routes in Western Canada, where there are no language obligations with respect to service to the public. The Commissioner of Official Languages investigated the complaints and issued a report concluding that some aspects of the 39 complaints were well founded. Some of the employees who had filed complaints with the Commissioner of Official Languages filed applications with the Federal Court seeking an order requiring VIA Rail to implement the recommendations made in the investigation report. VIA Rail opposed the applications, submitting that the subject matter of the dispute fell within the exclusive jurisdiction of the grievance arbitrator and that the Federal Court did not have jurisdiction to order VIA Rail to implement the Commissioner’s recommendations.

The Federal Court had to determine two issues: first, whether it had jurisdiction to hear the application filed by employees of VIA Rail pursuant to section 77 of the Official Languages Act (OLA) or whether the matter was within the exclusive jurisdiction of the grievance arbitrator pursuant to the collective agreement; second, whether VIA Rail had breached section 91 of the OLA by imposing bilingual requirements for certain positions where there was no obligation to provide service in both official languages on these routes pursuant to the OLA and its regulations.

In regard to the first issue, the Court determined that it had the jurisdiction to hear and decide the matter under section 77(1) of the OLA and, if appropriate, remedy the situation pursuant to section 77(4) of the OLA. According to the Court, the issue raised by the applicants, requiring that VIA Rail’s policies and staffing actions be measured against the provisions of theOLA and its regulations, exceeded the usual expertise of the grievance arbitrator. The Court therefore dismissed VIA Rail’s proposition that the grievance arbitrator would be better placed to decide the matter, further considering that the delays for filing a grievance had expired long ago, and that VIA Rail had never objected to the Commissioner’s jurisdiction to investigate the complaints.

In regard to the second issue, the Court determined that the duties and functions of the position in question, which included duties related to the safety and security of passengers, objectively justified the bilingual requirements of the position, regardless of whether there was an obligation to provide service in both official languages on the routes in question. The Court expressed the view that the significant demand criteria defined in the Regulations should not be rigidly applied to prevent an institution from going above and beyond its legal obligations set out in the Regulations. According to the Court, the Regulations establish a legal presumption facilitating the proof that the Canadian Charter of Rights and Freedoms or OLA criteria are met, but they are not exhaustive.

The Court added that the objectivity test mentioned in section 91 of the OLA must be studied not only in respect of an individual designation that might be required to meet a demand for bilingual services, but must also have regard for the “proactive” obligations imposed by section 41 of the OLA on federal institutions to promote the use of an official language in a minority setting.

The Federal Court therefore dismissed the complainants’ applications. However, the Court followed the precedent set in Air Canada v ThibodeauFootnote 2 in applying section 81(2) of the OLA to award costs to the complainants even though they were not successful in the result.

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