V. Language Rights Related to Federal Institutions
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Leduc v. The Queen (Foreign Affairs and International Trade Canada)
The right to work in either French or English in the National Capital Region (and in other regions of Canada designated in regulations) is supported by specific obligations imposed on federal institutions by the OLA. Among other things, these include the duty to provide personnel and other services relied on by employees in the performance of their duties.76 The manner in which this duty is implemented was recently raised before the Federal Court in legal action taken against the Department of Foreign Affairs and International Trade for breach of language rights and wrongful dismissal.77 The facts pertain to an employee who attended two meetings the subject of which was his transfer to other duties or an early retirement. According to the employee, these meetings were conducted in English, even though he was francophone and had allegedly been given no choice regarding the official language he preferred to use. Following these meetings the employee signed a letter of resignation, though he subsequently contested its validity.
Prior to engaging legal action, the employee filed a complaint with the Office of the Commissioner of Official Languages. The Commissioner’s final report advised the complainant that the department recognized its responsibilities to provide personnel and central services in the preferred official language of an employee. The report also indicated that the department was advised of the importance of asking an employee which official language he or she preferred regarding the provision of such services. As a result, the file was closed.
The employee then commenced legal action based upon subsection 77(1) of the OLA, which provides that a complainant may apply to the Federal Court for a remedy for breach of rights or duties found in various sections of the OLA, including Part V (language of work). He alleged that the meetings referred to above had been held in breach of the duty to deal with an employee regarding personnel matters in his or her preferred official language. As a remedy, he requested a court order for retroactive salary from the date of termination of his employment, punitive damages, and his reinstatement as an employee of the department.
At trial, the court emphasized that the facts surrounding the meetings in question were subject to conflicting evidence. In weighing all the evidence, the presiding judge found that the credibility of two witnesses from the department was greater than that of the complainant employee. He also noted that the plaintiff had not adduced many significant facts from the report of the Commissioner of Official Languages. Moreover, when placed out of context, this report did not enable the plaintiff to demonstrate that the meetings in question had contravened the OLA. He therefore concluded that the employee had in fact been given the opportunity to state his preference regarding the official language in which the meetings should proceed.78 He also concluded that during the course of the meetings the participants switched back and forth between English and French, the employee having stated that he was equally capable in either official language. He therefore ruled that the employee had failed to meet the burden of proof that a breach of the OLA had occurred.79
Although the institutional duty in question in this case does not explicitly refer to the need to invite an employee to indicate his or her preferred official language, it remains nonetheless implied in the statutory language. Barriers to the use of one or the other official language can be lessened when federal institutions actively seek to know the preference of their employees regarding their language of work. In short, the institution’s obligation to provide personnel and support services to its employees is fully implemented only when positive steps are taken to identify employee preferences.
2. Language of Decisions Rendered by Federal Tribunals
The principle of equality found in subsection 16(1) of the Charter and in section 2 of the OLA can be said to create obligations on federal tribunals regarding the accessibility of their decisions in both official languages. This is reflected explicitly in subsection 20(1) of the OLA, which requires simultaneous bilingual issuance of judgments when proceedings are conducted in both official languages, or when questions of law of general public interest are decided.80 The OLA also requires that decisions rendered in one official language at the conclusion of unilingual proceedings be issued and made available in the other official language “at the earliest possible time.”
