V. Language Rights Related to Federal Institutions
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1. Bilingual Work Environments
The introduction of institutional bilingualism in federal institutions in the 1970s gave rise at the same time to regulations under the Public Service Employment Act aimed at protecting and preserving the rights of public servants who could not meet the new language requirements of positions they already occupied.69 Since these rights were set out in regulations, they could not be qualified or overruled by decisions regarding the allocation of resources and manpower made by government managers. In other words, the general power of management had to be exercised in conformity with statutory law and any regulations adopted pursuant to it.
Schreiber v. Canada
Kelso v. The Queen,70 which established the enforceability of rights under the Exclusion Order, predates the enactment of the current Official Languages Act (the OLA) and the adoption of the Charter. The Federal Court in Schreiber v. Canada71 has recently considered the effect these changes may have on the manner in which mandatory bilingualism is imposed as a condition of employment for specific positions. The facts of the case pertain to a long-time employee of Transport Canada who was unable to meet language proficiency requirements introduced in 1992 for air traffic controllers working at the Ottawa Control Tower (i.e., mandatory bilingualism). As all efforts to meet the requirements through language training proved insufficient, the employee was obliged to accept a transfer to a position with different duties. The employee objected to the transfer and sought to enforce his rights as an incumbent employee occupying an indeterminate position under the Exclusion Order of 1977.
The Federal Court identified a number of provisions in the OLA (adopted in 1988) that have a bearing on the enforcement of incumbent employees' rights under the Exclusion Order. First, Part IV of the OLA confirms the duty of federal institutions to ensure that members of the public can communicate with and receive services in either French or English from their head or central offices, from other offices where there is significant demand, and from all offices located in the National Capital Region. Second, Part V of the OLA establishes the general right to work in either English or French in federal institutions (in conformity with other provisions in that Part and in regulations) and recognizes various duties of federal institutions that are important to the effective exercise of language rights in the workplace. Within the National Capital Region, the OLA obliges all federal institutions to provide work environments that “are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees.”72
The Federal Court found that Transport Canada's decision to require that all air traffic controllers at the Ottawa Control Tower be functionally bilingual was motivated by a desire to implement its statutory obligations under the OLA. In other words, the policy decision to create a bilingual work environment and to provide bilingual air traffic services was mandated by the very terms of the OLA. It was also justified by considerations of air traffic safety related to the routine use of both official languages to communicate with an air traffic control tower. As to the conflict that was evident between a policy of mandatory bilingualism applied to all air traffic controllers at the Ottawa Control Tower and the 1977 Exclusion Order, the Federal Court referred to section 82 of the OLA. That section gives precedence to various provisions in the OLA over any other Act of Parliament or regulation with which they may conflict.73 As a result, any inconsistency between the provisions of the Exclusion Order and the duties of federal institutions regarding bilingual work environments and services to the public must be resolved in favour of the latter.
The Federal Court also found reinforcement for its conclusions in the language rights found in sections 16(1) and 20(1) of the Charter. The principle of equality of French and English regarding their use in all institutions of the government of Canada calls for positive measures to ensure that it be fully implemented, such as the establishment of bilingual work environments and the provision of bilingual government services.74 Moreover, the issue of federal government services is directly addressed in subsection 20(1) of the Charter, which sets out the general right of Canadians to communicate with and receive services from federal institutions in either official language. The statutory duties of federal institutions in this regard (found in the OLA) flow naturally from the underlying constitutional right. The Court also invoked the Supreme Court decision in Beaulac regarding the general interpretive framework that should be used in applying and determining the scope of language rights. Support was also found in a previous Federal Court of Appeal judgment that endorsed the proposition that the OLA “belongs to that privileged category of quasi-constitutional legislation which reflects certain basic goals of our society and must be so interpreted as to advance the broad policy considerations underlying it.”75 In light of all these factors, the claim of the employee in question to be exempt from a mandatory requirement of bilingualism was dismissed.
