OFFICIAL LANGUAGES |
Rogers v. Canada (Department of National Defence)
T-2712-95
2001 FCT 90, Nadon J.
16/2/01
25 pp.
Application pursuant to Official Languages Act (OLA), s. 77 concerning applicant's complaint with Office of Commissioner of Official Languages (OCOL), challenging CCC linguistic profile as well as imperative staffing position of AS-02 position with Royal Military College as his EBB language profile precluded him from appointment to position--OCOL concluded language requirements of position justified--Applicant seeking order to set aside decision; order setting language profile as bilingual CCB; order setting aside staffing mode as imperative; order setting staffing mode as non-imperative; damages or compensation--Applicant submitting language requirements of bilingual CCC imperative not objectively required to perform duties involved--Applicant also contending Act used as screen to hide true reason for not appointing him to position, therefore constituting abuse of Act--Application dismissed--Little case law concerning Act, s. 91 applications--In order to modify linguistic requirements of position, Court must find that no evidentiary basis to designation, that designation unreasonable, or that language requirements imposed frivolously or arbitrarily--If factual basis for designation, Court should not intervene--Also clear Court can only make determination with regard to objectivity of requirements and manner in which decision to impose requirements taken--Only relevant issue whether or not position objectively requiring linguistic requirements designated--More specifically, quite reasonable to require level C profile for oral interaction to perform tasks--Imperative staffing requirement not frivolous or arbitrary--Not unreasonable to characterize position as important point of contact with public, employees and student, including francophone students--Contrary to Heneghan J.'s finding in Rogers v. Canada (Commissioner of Corrections), [2001] F.C.J. No. 99 (F.C.T.D.), Court not bound by OCOL's determination breach of Act has occurred--Up to Court to decide, on evidence, whether has been breach of Act--On evidence herein, OCOL's determination language requirements for position justified agreed with--Failure to abide by Treasury Board document recommending rationale for decisions to impose imperative staffing should be documented at each stage of process merely administrative omission--Therefore, language requirements objectively required to perform duties and tasks for which staffing action undertaken, in conformity with Act, s. 91--Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 77, 91.