IV- LANGUAGE RIGHTS IN THE FEDERAL PUBLIC SERVICE
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4.2 Bilingual designation of positions determined by the needs of service to the public
Marchessault v. Canada Post Corporation
In Marchessault,100 the Federal Court of Appeal had to rule on the validity of criteria used to identify a position’s language requirement according to the needs of service to the public.101 To do this, it had to consider the basis used to establish the existence of "significant demand" for service in the minority official language in a given region, when the Official Languages (Communications with and Service to the Public) Regulations that define significant demand were not yet in effect.
Mr. Marchessault had made an application to the Federal Court challenging a decision of the Canada Post Corporation to classify the position of postmaster at Coderre in Saskatchewan as a "bilingual imperative position". At the time of the competition, Mr. Marchessault was performing the duties of postmaster on a temporary basis, but because he did not speak French he did not meet the requirements for performing the duties permanently. Mr. Marchessault filed a complaint against the classification with the Commissioner of Official Languages. In his report, the Commissioner concluded the proportion of residents with French as their mother tongue was sufficient to constitute a "significant demand" within the meaning of the OLA, justifying the classification of the position as bilingual, and dismissed the complaint. Mr. Marchessault then filed an application in the Federal Court pursuant to section 77 of the OLA, alleging that under the Official Languages Regulations there was not a significant demand for services in French in that region. The trial judge dismissed his application, noting that the Regulations were not applicable at the time of the classification. In his appeal, Mr. Marchessault alleged that the trial judge made an error in basing his decision on this ground.
In its judgment, the Court of Appeal indicated that the trial judge had not made any error when he decided that the Official Languages Regulations did not apply when the position was posted, namely December 12, 1992, since the Regulations only came into effect on December 16, 1992. It added that, before the Regulations came into effect, federal institutions such as Canada Post had established their own criteria for determining whether a significant demand existed for services in the minority language. Finally, it pointed out that the criteria used had been drawn to the appellant’s attention in a letter, and one of them was the "minority language population of 500 or 10 percent of the total population." Additionally, Mr. Marchessault himself had admitted that if significant demand could be determined based on these criteria, the position in question had been correctly identified as a "bilingual position." Consequently, the Court held that the significant demand had been correctly determined and dismissed the appeal.
