III. Minority Language Education Rights
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The Nova Scotia Teachers Union (NSTU) v. Le Conseil scolaire acadien provincial (CSAP) (cont.)
As a strictly practical matter, the board saw far fewer impediments to ensuring that the collective agreement be prepared in both languages than might be encountered in the actual process of negotiations. Regarding the suggestion that the NSTU should consider the nomination of a representative able to conduct negotiations in French, the board observed that “this is not a legal requirement and it may unfairly restrict the rights of the bargaining agent to appoint its best representatives at the negotiating table and at the arbitration hearings. It is also a given that, even if a certain individual could speak French, he/she may not be most effective or comfortable in French as a negotiator or as a presenter at an arbitration hearing. The same goes for any member named by the CSAP to negotiate or to make a presentation to an Arbitration Board. It is possible that a French-speaking person could proceed in English but he/she may be very ineffective in English since French is his/her first language.”
In light of the absence of legal requirements that governed these issues, the evidence before it and the practical realities, the arbitration board directed that either party was free to proceed in either English or French at the bargaining table. The board ordered, however, that where required by any party (as a minimum) consecutive interpretation be made available (through an interpretor not involved in the negotiations), the costs to be borne equally by the NSTU and the Conseil scolaire acadien. The parties were of course free to agree to an alternative form of interpretation, and the board emphasized that flexibility on the issue of language was highly desirable. Nonetheless it ordered that all proposals to be considered at the bargaining table, as well as counter proposals submitted during discussions, be presented in both languages, though this requirement did not extend to any reference materials (legislation, research documents, etc.) prepared in only one language and for which no translation was available. The party submitting a proposal or counter proposal would bear the responsibility of providing the translation. The board took the view that it was important to facilitate the bargaining process by ensuring as much as possible that there were no difficulties of comprehension caused by the linguistic handicap of one party or the other. Furthermore, it felt that its order regarding bilingual proposals and counter proposals would not impede the process to any great extent. The mandatory use of both languages was also ordered with respect to the printing of the final collective agreement.
The use of consecutive interpretation in the negotiating process (where required by one of the parties) was considered more effective than simultaneous interpretation, which is a far more expensive procedure and would result in significant delays in the process, because scheduling would be to a great extent a function of the availability of interpreters. For hearings before the arbitration board, however, where either party could proceed in the language of choice, simultaneous interpretation was ordered. The expenses related to it were to be borne equally by the NSTU, the Conseil scolaire acadien and the Minister of Education pursuant to the provincial Teachers’ Collective Bargaining Act. Simultaneous interpretation was considered both feasible and desirable for hearings before the board because such proceedings are usually shorter than the actual bargaining process and involve counsel arguing legal points more effectively handled by a form of interpretation that did not interrupt the flow of the presentation.
5. Rights of Management
Jean Giroux-Gagné, Claude Nadeau, Claude Snow and les Comités de parents du Nouveau-Brunswick, et al. v. New Brunswick
The Government of New Brunswick introduced dramatic changes to legislation governing education54 in 1997. This legislation abolished all existing school boards within the province and replaced them with two separate but related hierarchical structures. Many francophone parents in the province reacted negatively to these changes. They believed that the new Education Act did not afford them the full rights to the management and control of their school system guaranteed in section 23 of the Charter. In January 2000, several parents filed an action before the Court of Queen’s Bench of New Brunswick to have the legislation declared invalid.55 They argued that the new Education Act did not respect minimal constitutional requirements established by the Supreme Court of Canada, in particular those related to the right of parents to exercise exclusive management and control. Specific powers of management at issue included the expenditure of funds provided for minority language education, the appointment and direction of those responsible for the administration of minority language instruction and facilities, the establishment of programs of instruction, and the recruitment and assignment of teachers and other personnel. Given the significance of the issues at stake, the Commissioner of Official Languages and the Société des Acadiens et Acadiennes du Nouveau-Brunswick had been accorded the status of intervenors in the action before the Court of Queen’s Bench.
The province subsequently questioned the regularity of the form of procedure adopted by the parents. As a result, the parents had to refile their action in July 2000. While this matter was proceeding, a bill (Bill 13) amending the Education Act was adopted by the provincial legislature. The parents indicated that they nevertheless planned to pursue their action and in February 2001 presented amended procedures taking changes to the Act into account. The case is now proceeding, and the Commissioner continues to be an intervenor. All parties to the proceedings will have to review their respective positions in light of the new legislation, however. A decision in the case is expected to have a significant impact on the manner in which minority management rights under section 23 must be implemented and applied.
