IV- LANGUAGE RIGHTS IN THE FEDERAL PUBLIC SERVICE
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There are essentially three aspects to the language rights applicable within the federal Public Service, namely: (1) the employees’ language of work; (2) the staffing and language designation of positions; (3) equitable participation of both language groups in federal institutions.
The first aspect is covered by Part V of the OLA, which specifies the language obligations imposed on federal institutions regarding employees working in prescribed bilingual regions.98 In particular, institutions must provide staff in these regions with both central and individual services as well as work instruments in both official languages. It also requires certain institutions providing central services to employees of other institutions to do so in both official languages.
The second aspect is covered by section 91 of the OLA, which deals with the language requirements applicable to the staffing of positions in the federal public service. Thus, certain positions are prescribed as bilingual, whether imperative or not, and others are designated unilingual. The requirements must be objectively necessary for the performance of the functions in question.
The third aspect is covered by Part VI of the OLA. In particular, subsection 39(1) indicates the two aspects covered by this provision: (1) equal opportunities for Francophone and Anglophone Canadians to obtain employment and advancement in federal institutions, without regard to their ethnic origins or first language learned; and (2) equitable participation by both official language communities in these institutions, taking into account the special characteristics of their mandates, the public they serve and their location. Subsection 39(2) states that implementation of these aspects must take into account the duties which federal institutions must carry out under Part IV (Communication with and Service to the Public) and Part V (Language of Work) of the OLA. Finally, subsection 39(3) states that selection of personnel continues to be in accordance with the merit principle.
Two judgments rendered during the period covered by this report deal with the scope of these provisions and their application to the situations raised by the actions. The first judgment deals with the question of equitable participation by both language groups in federal institutions, and in particular the means of attaining this objective in a hiring process. It clarifies the body of language rights that a candidate for employment in the federal Public Service can exercise. In particular, it emphasizes the importance of establishing positive measures for the use of official languages in a hiring process to attain the objective of equitable participation. The second judgment concerns staffing and confirms the need to take services to the public into account when determining the language designation of positions.
4.1 Language of the members of a board in a hiring process
Ayangma v. Canada
The judgment of the Federal Court of Appeal in Ayangma99 raises the question of the language obligations applicable to a staffing process following a competition. In particular, it raises the question of the applicability of Part IV of the OLA (Services to the Public) in such a case, as well as the question of whether the commitment mentioned in section 39 of the OLA is executory (equitable participation by Francophone and Anglophone Canadians in federal institutions).
In this case, Mr. Ayangma had filed an action for damages for harm caused by the actions of Health Canada and the Public Service Commission, which, he said, made it impossible for him to be appointed to a position for which he had applied in a public competition. In fact, two of the three members of the selection panel had been unable to conduct the appellant’s interview in French, although French was the appellant’s mother tongue.
Mr. Ayangma’s candidacy was not retained at the end of the selection process and he appealed to the Public Service [Commission] Appeal Board. The Board allowed his application and concluded that the members of the selection board did not have sufficient knowledge of French to communicate with the applicant during the interview, contravening subsection 16(2) of the Public Service Employment Act (PSEA). The Public Service Commission subsequently proposed corrective measures, which were refused by Mr. Ayangma. The Commission ultimately decided to cancel the entire process and proposed to conduct a new competition. The appellant, however, refused to be re-evaluated and re-interviewed for the position. The new competition went ahead without him and the position was filled.
In his statement of claim filed in connection with his action for damages, the appellant maintained that the respondent had contravened the OLA, the PSEA and section 15 of the Charter. He further argued that Her Majesty the Queen had contravened the order by the Public Service Commission Appeal Board. The Federal Court Trial Division judge expressed the view that the issue of an appropriate remedy was res judicata, in view of the fact that the appellant had been successful in the appeal he filed with the Public Service Commission Appeal Board and he had refused the proposed corrective measures.
The judge further indicated that the staffing process used in the impugned competition had not infringed the language rights conferred upon the appellant by Part IV of the OLA, since an internal competition could not be regarded as a "public service" within the meaning of the OLA. Relating to section 39 of the OLA, the judge observed that it was a statement of commitment by the government and the provision was not the basis for an action for compensation under subsection 77(4) of the OLA. Mr. Ayangma appealed this judgment.
The Federal Court of Appeal dismissed this appeal and held that the action for damages was inadmissible. In its judgment, it repeated the findings of the trial judge: the appellant had been successful in the appeal he filed with the Public Service Commission Appeal Board. The Court added that the appellant could not base his action for damages on the fact that he had been successful before that Board. It also confirmed the trial judge’s conclusions that Part IV of the OLA had not been infringed since provision of services did not apply to a competition held under the PSEA. On section 39 of the OLA, it held that this was only a commitment and was not the basis for an action.
