4. Language Rights and Service to the Public
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4.7 Bilingualism in the City of Ottawa
Canadians for Language Fairness v. Ottawa (City)
In this case,138 the Ontario Superior Court considered the legality and constitutionality of the City of Ottawa’s policy and municipal by-law on bilingualism.
The applicant, Canadians for Language Fairness, challenged the legality and constitutionality of municipal by-law 2001- 170 (By-law) adopted by the City of Ottawa and the City of Ottawa’s Bilingualism Policy (Policy). It sought a ruling that the By-law and the Policy were ultra vires, or outside the powers of the City, and that the By-law was contrary to the freedom of expression guaranteed in subsection 2(b) of the Charter.
According to the By-law, the citizens of Ottawa have the right to communicate with and receive services from the City in the official language of their choice in accordance with the Policy. The Policy provides, among other things, that members of the City’s work units offering service to employees or the public should be able to communicate in both official languages at all times. This requires, among other things, that senior management positions be designated bilingual.
In the Ontario Superior Court, the applicant argued that the French Language Services Act 139 (FLSA) of Ontario did not authorize the City of Ottawa to adopt the By-law. It further argued that the City had exceeded the jurisdiction conferred on it by the FLSA in adopting a policy requiring all City managers to be bilingual. Further, the applicant maintained that the By-law and the Policy “are discriminatory . . . and they arbitrarily permit designation of various employment positions within the City as bilingual with no limit or regard to the rights of the majority.”140 In its opinion, the process by which positions were designated bilingual was unfair.
The City of Ottawa, for its part, argued that the By-law and Policy were valid since they had been adopted within the scope of its powers and were authorized by several statutes. It also relied on various pieces of evidence dealing with principles of language rights and the history of bilingualism in Ottawa as a basis for arguing that the measures taken were valid and fair.
In its judgment, the Court upheld the validity of the City of Ottawa’s By-law and Policy. In so doing, it dismissed the application.
1) Legality of the By-law and Policy
- Limits of the power conferred on the City of Ottawa
On this point, the Court reviewed the case law cited by the applicant and concluded that the City of Ottawa had acted within the limits of the power conferred on it by the province. Basing itself on sections 8 and 9 of the Municipal Act, 2001,141 it considered the modern method of interpretation applied by the Supreme Court of Canada to municipal powers. In accordance with this approach, the general powers conferred on municipalities by the provinces are intended to give them some flexibility in fulfilling their statutory purposes.142 The Court noted that one of the fundamental characteristics of such powers was the ability of municipalities to develop policies detailing how services would be offered and how their employees would work in both official languages. - Statistics
The applicant also challenged the definition of “Francophone” used by the City, on the ground that the definition exaggerated the number of Francophone residents. The Court disagreed with the calculation method used by the applicant as well as its argument that unilingual Anglophones were placed at a disadvantage by the Policy. Métivier J. also noted that the policy allowed for the appointment of a unilingual person, based on merit, to one of the positions designated bilingual. She further noted that the implementation of the policy had not prevented unilingual Anglophones from being appointed to senior management positions.
The Court noted that the protection of minority rights, including the protection of French language and culture, was one of the primary objectives of Confederation. Citing the unwritten principle of respect for and protection of minority rights, it held that the majority should not be able to determine the methods used to protect minority rights. - Purpose of the French Language Services Act
While subsequently considering the applicant’s argument that the By-law and Policy exceeded the purpose of the FLSA, Métivier J. quickly reviewed the principles for the interpretation of language rights. Relying on the Ontario Court of Appeal’s judgment in Lalonde,143 she concluded that “the purpose of the FLSA is to promote the use of French and English, and to advance the equalization of status or use of English and French while offering services in French and thus protecting the rights of the minority Francophone population in Ontario.”144 She added that the By-law served that purpose. - Language as a work skill
The judge confirmed that the language proficiency required for positions designated bilingual was just one of the skills necessary to perform employment-related duties. Under the Policy, the services offered by the City in various places would vary, the designations would be different for each position and these designations would reflect a variety of needs. In short, the designation process was based on the real needs of each position, and language skills were thus an integral part of the skills required for each position.
The judge noted that all necessary measures have been taken to protect unilingual employees by only designating some positions as bilingual and by applying the merit principle so that the best candidate could obtain a position on condition that he or she learn the other official language. This condition, she explained, is “a reasonable cost in the circumstances.”145
2) Constitutionality of the By-law and Policy
The applicant had also argued in court that the By-law and Policy infringed on the freedom of expression of unilingual Anglophones and were discriminatory. When dismissing this argument, the Court noted that no evidence had been submitted to support this allegation, except for census data indicating that Anglophones were a majority of the City’s population. Noting that the By-law and Policy had been established to ensure observance of the language rights of the City’s inhabitants and that the necessary steps had been taken to protect unilingual employees, the Court concluded there had been no infringement of the Charter. It therefore confirmed the constitutionality of the disputed measures.
