5. Actions Provided for by Federal and Provincial Official Languages Legislation
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Several means exist for applying to the courts to ensure that government institutions fulfill the language obligations imposed on them by the Canadian Charter of Rights and Freedoms (Charter) and various other statutes and regulations. Subsection 24(1) of the Charter and certain provisions of federal and provincial legislation provide a right to action for persons who consider that their language rights have not been respected. In some circumstances, it is also possible to ask a court to undertake a judicial review of a ministerial or government decision when it infringes on the language rights of official language minorities. Both court actions and applications for judicial review have proven to be an effective means for enforcing and implementing language rights.
The judgments handed down on the issue of actions in the period covered by this report were primarily concerned with actions available under the federal Official Languages Act (OLA) and the New Brunswick Official Languages Act (N.B. OLA).
At the federal level, the OLA provides a right to action for any person who has filed a complaint with the Commissioner of Official Languages under certain provisions and parts of the OLA.146 The purpose of the action is to determine the merits of the complaint filed with the Commissioner and secure a remedy that is appropriate and just under the circumstances.147 An action may thus be brought against a federal institution, either by a complainant who has filed a complaint with the Commissioner of Official Languages, or by the Commissioner with the complainant’s consent. If the Court considers that the federal institution has not complied with the OLA, it may grant such remedy as it considers appropriate and just in the circumstances. One decision analyzed in this report considers the possibility of bringing an action under Part X of the OLA when the complainants are covered by a collective agreement.
In New Brunswick, the Official Languages Act of 2002 provides for an action in the New Brunswick Court of Queen’s Bench by any individual who has filed a complaint with the Commissioner of Official Languages of that province and is not satisfied with the findings of the investigation. One decision handed down during the period covered by this report deals with the possibility of bringing an action under the N.B. OLA without having previously filed a complaint with the province’s Commissioner of Official Languages.
5.1 Action under Part X of the federal Official Languages Act where a collective agreement exists
Norton v. VIA Rail Canada Inc.
This decision148 considered the actions available under the OLA when the case involves language issues in the context of labour relations subject to a collective agreement.
The appellants were part of a group of 39 VIA Rail Inc. (VIA) employees who had filed complaints with the Office of the Commissioner of Official Languages (OCOL). Their complaints raised issues about the impact of VIA’s language policy on their opportunities for advancement and full-time employment in Western Canada. In particular, the appellants challenged the bilingualism requirement imposed by VIA for certain positions designated bilingual. OCOL investigated these complaints and issued a report concluding that some aspects of the 39 complaints were valid.
Some employees who had filed complaints with OCOL filed applications in Federal Court seeking an order requiring VIA to implement the recommendations made in the investigation report.
VIA objected to the complainants’ application, alleging that the Federal Court was not authorized to hear the applications for two reasons: (1) the Federal Court did not have jurisdiction to require VIA to implement the Commissioner’s recommendations since they entailed no legal duty, and (2) under the collective agreement, the issue fell within the exclusive jurisdiction of the grievance adjudicator.
To begin with, a Federal Court prothonotary ruled in VIA’s favour and rendered an order dismissing the appellants’ applications. On appeal to the Federal Court, the judge also accepted VIA’s arguments. The appellants then appealed to the Federal Court of Appeal, which allowed their appeal.
1) Refusal to terminate action
According to the majority of Federal Court of Appeal judges, the circumstances of this case did not justify the use of the Court’s discretionary power to dismiss the applications filed before a hearing was held. According to the criteria developed previously by the Federal Court of Appeal, such an order should only be made in very exceptional cases where the application “is so clearly improper as to be bereft of any possibility of success.”149 In this case, the Court was not completely persuaded that the complainants’ application was doomed to failure and concluded that it was for the judge hearing the case to assess the merits of the application. For example, before determining whether a remedy was appropriate, the question of whether the collective agreement barred all action under section 77 of the OLA would have to be resolved. Thus, the majority of the Court of Appeal concluded that a debate on the points at issue should not be foreclosed without first holding a hearing. It thus dismissed VIA’s motion to strike the applications, ruling that the Federal Court should not have summarily dismissed them.
VIA filed an application for leave to appeal to the Supreme Court of Canada, which was dismissed. As the procedural questions have now been resolved, the complainants may proceed with their initial applications in the Federal Court.
