V- REMEDIES PROVIDED IN PART X OF THE OFFICIAL LANGUAGES ACT
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Part X of the OLA describes the conditions of and procedure for a court remedy, which may be filed in the Federal Court, to compel a federal institution to observe the OLA. Such an action may be brought against a federal institution by a complainant who has filed a complaint with the Commissioner of Official Languages, or by the Commissioner with the complainant’s consent.
This part of the OLA also states that the right of action does not abrogate or derogate from any other right of action, so it is clear that, depending on the circumstances, other court remedies may be used when infringements of language rights are alleged. The remedy or remedies available are thus determined in accordance with the circumstances of each case.
One decision rendered during the period covered by this report looked at the feasibility of the action set out in Part X of the OLA when, following an investigation, the remedy sought is compliance with recommendations made by the Commissioner of Official Languages.
5.1 Jurisdiction of the Federal Court and Arbitrators in language rights disputes
Norton et al. v. Via Rail Canada Inc.
In this case,102 the Federal Court had to rule first on the scope of the recommendations made by the Commissioner of Official Languages in her investigation reports, and second on remedies available in linguistic matters where the issue is covered by a collective agreement.
The applicants had filed a complaint with the Commissioner of Official Languages against Via Rail regarding the language of work, particularly the impact of the failure to observe their OLA rights regarding their opportunities for promotion. In her investigation report, the Commissioner of Official Languages concluded that the complaint was valid and made various recommendations.
The applicants subsequently filed an application against Via Rail in the Federal Court regarding these infringements. They asked the Court to order Via Rail to comply with the Commissioner’s recommendations. In his decision, Prothonotary Morneau considered the documents filed by the applicants as proceedings seeking a remedy in the nature of an injunction or mandamus. After noting that an order for mandamus or injunction could only be granted where the defendant had a specific legal duty to perform, he held that the recommendations made by the Commissioner of Official Languages imposed no legal obligation on Via Rail and their implementation was not executory. The prothonotary then indicated that, in any case, the Court did not have jurisdiction in the case at bar, as the dispute between the applicant and Via Rail was in the nature of a grievance that should be resolved by the arbitration procedure in accordance with the collective agreement.
The applicants appealed this decision to the Federal Court, asking it to quash the prothonotary’s order. In support of their appeal, the applicants argued that as a federal institution, Via Rail had a legal duty to observe the OLA. They noted that section 77 allowed an action to be filed in the Federal Court to ensure compliance with the Act following a complaint to the Commissioner of Official Languages, to obtain an appropriate and just remedy. The Commissioner of Official Languages obtained the status of an intervener in the case to support the applicant in his argument, seeking to clarify the question of the Federal Court’s jurisdiction under the express wording of the OLA. In her submissions, the Commissioner maintained that the applicants had a statutory right to appeal to the Court under the clear and express wording of subsection 77(1) of the OLA. Consequently, according to the Commissioner, the Court had to hear the application to determine whether there had been a breach of the OLA, and, if necessary, determine the appropriate and just remedy in the circumstances.
Rouleau J. of the Federal Court dismissed the appeal. First, he affirmed the decision rendered by the prothonotary, emphasizing the fact that the applicants’ proceedings sought an order to compel Via Rail to carry out the Commissioner’s recommendations. As those recommendations created no duty in law, there was consequently no cause of action against Via Rail for failure to implement the said recommendations.
This part of the judgment also noted that it was impossible for the Court to make an order in a specific case, like the one at bar, when the initial proceeding only pointed to the failure of implementing the recommendations of the Commissioner of Official Languages, without requesting a ruling dealing specifically with the infringement of OLA obligations.
Rouleau J. also considered that the clauses of the collective agreement were responsible for the dispute between the parties, because the problems alleged by the applicants concerning their promotion opportunities resulted from the implementation of the company’s language policy. He therefore concluded that the Court did not have jurisdiction to hear this case, on the same grounds as those given by the prothonotary.
This judgment has been appealed to the Federal Court of Appeal. The appellant and the intervener are essentially arguing that the Federal Court erred in dismissing the application on the basis that it was impossible to give effect to the remedy sought. They considered that section 77 of the OLA clearly provides for a statutory remedy in the Federal Court following a complaint under section 91 of the OLA (as was the case here). They are seeking a just and appropriate remedy, and submit that after hearing the case on the merits, the Court has discretion as to the remedy.
