Judgments

[1993] 2 F.C. 90

T-2806-90

Professional Institute of the Public Service (Applicant)

v.

Her Majesty the Queen (Respondent)

and

Office of the Commissioner of Official Languages (Intervenor)

Indexed as: Professional Institute of the Public Service v. Canada (T.D.)

Trial Division, Joyal J.—Ottawa, December 14 and 15, 1992 and January 26, 1993.

Official languages — Application to set aside decision to staff Revenue Canada position at Halifax on bilingual imperative basis — Decision said to contravene Official Languages Act, s. 91 as not objectively required — Bilingual requirement justified by demographics, proactive component of bilingual policy — Meaning of “objectively” under s. 91 — Object of Act analyzed — Duties of federal institutions with respect to official languages reviewed — Minority language service used if available and made known to public — Commissioner of Official Languages, in annual reports to Parliament, indicating lack of bilingual audit services in Atlantic Region — Designation neither frivolously nor arbitrarily imposed — Objectivity test under s. 91 met.

Public Service — Selection process — Merit principle — Whether bilingual imperative designation for Senior Business Auditor position at Halifax District Office of Revenue Canada in conformity with Public Service Employment Act and Regulations — Duties on federal institutions with respect to minority language rights — Institutional policies and commitments carried out by public servants under Official Languages Act — Bilingual proficiency more common among Francophones than Anglophones — Attention to merit principle required in circumstances — Imperative staffing normal practice, non-imperative exception under Public Service Employment Act.

This was an application to set aside respondent’s decision to staff a position of Senior Business Auditor (AU-02) in the Halifax District Office of Revenue Canada on a bilingual imperative basis. The thrust of the applicant’s case was that such designation was not objectively required and thus contravened section 91 of the Official Languages Act. According to the Director of the Halifax Office, there existed in 1989 an immediate need for a bilingual Senior Business Auditor at the AU-02 level which could not be deferred for the period of time needed to complete language training if the staffing action was conducted on a non-imperative basis. The issue was whether the bilingual imperative designation met the objectivity test under section 91 of the Act.

Held, the application should be dismissed.

Courts have seldom been called upon to intervene on bilingual requirements issues. However, in the case of Canada (Attorney General) v. Viola, the Federal Court of Appeal ruled that language requirements cannot be imposed frivolously or arbitrarily and that the purpose of section 91 is to provide comfort and reassurance, rather than create new law. The objectivity test under section 91 must be studied not only in respect of an individual designation which might be required to meet a demand for bilingual services, but must have regard for the “proactive” obligations imposed on federal institutions to promote the use of an official language in a minority setting. It is not sufficient, under a section 91 challenge, to merely demonstrate that respect for bilingual requirements under the Official Languages Act might also be achieved through other measures or means; there must be a finding that the staffing action proposed has no factual foundation. The object of the Act is not only to permit the use of our official languages and give citizens the right to deal with federal institutions in the language of their choice, but also to promote the use of both languages or, as expressed in the Act’s preamble, “enhancing the vitality and supporting the development of English and French linguistic minority communities”. It is only with respect to minority language rights in any given community that the purposes and objectives of the Act are put to the test. In order to attain these objectives, federal institutions are subject to a double duty. First, they must be in a position to respond to a citizen’s right to communicate or to be provided services in either language. There are variables in the extent of meeting need and availability of such services. These variables are the product of many basic considerations, including demographic factors, the size of the minority constituency and the significant demand for minority language services. Of particular significance, in the context of the Act, is that institutional policies and commitments must be carried out by public servants. This is when the merit principle requires particular attention. The reality is that bilingual proficiency is more commonly found among Francophones than Anglophones. To foster bilingualism or to meet its statutory duties, the government, through its Public Service Commission, had to designate any number of positions as bilingual, but in so doing, assure that non-bilingual candidates for appointment would not be prejudiced. The second duty imposed on federal institutions is reflected in the preamble and section 41 of the Act: it requires them not only to respond to pressures for more or better bilingual services, but to initiate programmes to offer these services where there is a perceived need for them. A purposive or proactive component in language policies is not only in keeping with statutory obligations, but is conducive to effective practices. From the experience of the Halifax Office when a French telephone information service was instituted, one could reasonably conclude that a minority language service would be used if available and made known to the public.

The Commissioner of Official Languages, an intervenor herein pursuant to subsection 78(1) of the Act, had made some negative comments with respect to the standards of bilingual services at the Halifax Office. These comments were an indication that the respondent’s decision was not the result of an overnight, born-again conviction that instant bilingualism was called for, but that the need had long been outstanding. More- over, according to the Office Director, there was at the time an immediate need for a bilingual AU-02 position which was justified by the demographics and by the proactive component of bilingual policy. The Director had also to take into account a policy directive issued by the Public Service Commission that “imperative staffing constitutes the normal application of the Public Service Employment Act, while non-imperative is an exception”. Curial scrutiny of staffing actions must of necessity be circumscribed; so long as there is a factual basis on which a particular staffing action is taken, and so long as that action is in conformity with relevant statutes and more discrete regulations, courts cannot and should not intervene. The staffing action taken by the respondent, in calling for an AU-02 bilingual imperative designation, met the test imposed by section 91 of the Official Languages Act.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 16, 17, 18, 19, 20, 21, 22.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 4, 5, 6, 7, 10, 11, 12, 13, 21, 22, 24, 28, 30, 32, 33, 39, 41, 46, 47, 48, 56, 66, 78, 80, 91.

Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10, 20.

Public Service Official Languages Appointment Regulations, SOR/81-787.

Public Service Official Languages Exclusion Approval Order, SOR/81-787.

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; (1990), 123 N.R. 83 (C.A.).

considered:

Gariépy v. Federal Court of Canada (Administrator) (1987), 14 F.T.R. 58 (F.C.T.D.).

AUTHORS CITED

Report of the Royal Commission on Bilingualism and Biculturalism, Book I: The Official Languages. Ottawa: Queen’s Printer, 1967.

APPLICATION to set aside decision to staff a position in the Halifax District Office of Revenue Canada on a bilingual imperative basis. Application dismissed.

COUNSEL:

Sean T. McGee for applicant.

Alain Préfontaine for respondent.

Peter B. Annis and Richard Tardif for intervenor.

SOLICITORS:

Nelligan/Power, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

Scott & Aylen, Ottawa, for intervenor.

The following are the reasons for order rendered in English by

Joyal J.:

THE ISSUE

This is an application to set aside a decision by the respondent to staff a position in the Halifax District Office of Revenue Canada on a bilingual imperative basis.

The position is that of Senior Business Auditor, known in the classification nomenclature of the Public Service of Canada as an AU-02 position.

The applicant’s ground for review in this Court is that the respondent’s decision was not objectively required and thus contravenes section 91 of the Official Languages Act [R.S.C., 1985 (4th Supp.), c. 31]. Section 91 reads as follows:

91. Nothing in Part IV or V authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken.

The applicant states that in so designating the position as bilingual imperative, the respondent

a) failed to apply an objective review of the staffing requirements of the position;

b) failed to properly consider the evidence on the nature and scope of the auditor’s duties;

c) made a designation which was not objectively required for the functions of that office;

d) had failed to consider that the French language requirements could have reasonably been met through language training subsequent to appointment;

e) had failed to consider that the obligations under sections 21 and 22 of the Act could have been met without a bilingual imperative designation;

f) had unduly interfered, by reason of the designation, with employment opportunity rights of auditors at the Halifax District Office, as provided under section 39 of the Act.

The respondent, Her Majesty the Queen, and the intervenor, the Office of the Commissioner of Official Languages, contest the application and urge the Court to find that the bilingual imperative designation was made properly under the Official Languages Act, the Public Service Employment Act [R.S.C., 1985, c. P-33] and pertinent regulations, that the designation was objectively based, and that the Court should find that the requirements of section 91 of the Official Languages Act had been met.

THE FACTS

Pursuant to section 80 of the Official Languages Act, proceedings in this Court are determined in a summary manner. As a result, the evidence adduced at the hearing comprised various affidavits and exhibits together with transcripts of cross-examinations on some of these. The whole of the evidence is accordingly quite extensive and I should attempt to summarize it as best as possible.

The issue raised had its origins in 1989 when the Director of the Halifax District Office of Revenue Canada decided to designate as bilingual imperative a new Senior Business Auditor position at the AU-02 level.[1] This did not sit well with a number of auditors in the office and some ten of them signed a “To Whom It May Concern” letter objecting to the designation. In due course, proceedings were taken by the union on their behalf before the Federal Court and the issue became joined.

The opening shot by the applicant union was the evidence, in affidavit form, of Mr. Tom Nader, who was an AU-01 auditor at Halifax and who had originally signed a complaint with respect to the bilingual imperative designation of the AU-02 position. In Mr. Nader’s opinion, there was no need for this designation. He stated that there were already two bilingual auditors, one at the AU-01 level and the other at the AU-03 level. Of the thousands of corporate tax returns filed in Halifax, only 10% were subject to audit and of those selected, only one might be in the French language. The two bilingual auditors could very well handle that task without trouble and, in any event, the duties would only be required for a couple of years, because by that time, the bilingual non-imperative incumbent of the AU-02 position would presumably have completed his or her language training.

Furthermore, stated Mr. Nader, AU-02 business auditors spend approximately 65% of their time communicating with clients. They are not required to respond to French language enquiries. The bilingual AUs on staff can meet the needs of French taxpayers.

Mr. Nader broke down the Auditors’ Group at Halifax, as of November 1, 1990, as follows:

TOTAL NUMBER OF AUDITORS         54

AU-01 Level	18
AU-02 Level	18
AU-03 Level	14
AU-04 Level	3
AU-05 Level	1         __
AU-06 Level	54     54

He stated that employment turnover at Halifax is low and vacant AU-02 positions are very infrequent. In his 11 years at the Halifax Office, he was aware of only six competitions for AU-02 positions. In the event, stated Mr. Nader, the bilingual imperative designation for an AU-02 competition virtually eliminated any opportunity for advancement by any of the AU-01 employees within the Halifax District Office if they wished to remain in Halifax.

A response to this evidence was provided by Nathan B. Squires, Director of the Halifax District Office. He stated that the decision on the bilingual imperative designation for the new AU-02 position was made in consultation with the Assistant Deputy Minister, Atlantic Region. At that time, the required person-years for a number of new positions had not yet received Treasury Board endorsement, but it was decided to go ahead anyway with a closed competition on an anticipatory basis. As it turned out, there was one successful applicant for the designated AU-02 position in Halifax. He was put on the eligibility list, but as the requested person-year had not been approved by Treasury Board, the position could not be filled. The successful applicant subsequently accepted a position elsewhere, and the eligibility list has long since expired.

According to Mr. Squires, there existed in Halifax at that time a requirement for a bilingual imperative Senior Business Auditor at the AU-02 level. There was a need for this bilingual position to provide service in French consonant with the duties of the position and the unavailability of existing bilingual capacity. Mr. Squires had reached the conclusion that such a need was immediate and could not have been deferred for the two years prescribed, had the position been designated non-imperative.

Mr. Squires stated in his affidavit that an AU-02 deals directly with taxpayers of both official language groups and the incumbent must spend 65% of his time in contact with business establishments. His geographical area of service, while in mainland Nova Scotia for usual tax purposes, extends to the whole of the Atlantic region when dealing with the Scientific Research Experimental Development (SRED) Program.

Mr. Squires added that a business audit by an AU-02 can be very intimidating to a taxpayer, and it is the duty of an auditor to be courteous, considerate, and to conduct his audits in the language of the taxpayer’s choice, meaning, of course, in either official language.

According to departmental records, over a thousand French language tax returns were filed in Halifax in 1986. Of a similar number filed in 1987, some 34 of them showed business income and 13 were corporate tax returns. According to information supplied to the Director by the Fédération Acadienne de la Nouvelle-Écosse, this was not indicative of actual demand. In the Director’s experience, taxpayers, for obvious reasons, are reluctant to ask for bilingual audits.

Mr. Squires further noted that the new Official Languages Act imposes a more active role on federal institutions in making bilingual services available to Canadian citizens. He referred in that respect to the shortcomings of the Halifax Office as reported by the Commissioner of Official Languages in his Annual Report over a number of prior years.

Mr. Squires disclosed that at the time of the designation of one AU-02 position as bilingual imperative, there were approximately 54 auditors at Halifax. Of these, there were two bilingual auditors at the AU-01 level, one bilingual auditor at the AU-03 level and none at the AU-02 level. This resulted in a chronic shortcoming in bilingual capacity and Mr. Squires cited as an example of this, a twenty-line French letter addressed to a taxpayer in June 1989 which contained 49 grammatical and spelling errors. The taxpayer was not amused.

Mr. Squires had also considered the alternative of having certain AU-02 functions performed by the bilingual AU-01 auditors or by the bilingual AU-03 auditor. He had concluded that this had not worked in the past and would not work in the future. This kind of shuffling did not provide the expertise required of an AU-02, and as for the bilingual AU-03, the incumbent had enough to do in his office without having to hit the road in order to conduct audits anywhere within mainland Nova Scotia.

Mr. Squires had concluded that in fact, a bilingual non-imperative competition would not have satisfied the operational requirements of the Halifax Office. Such a designation is, of course, optional to a manager when no immediate need of bilingual proficiency is required. In such event, a unilingual applicant might qualify so long as he undertakes to take language courses. The problem was, however, that until such an applicant had achieved an appropriate level of language proficiency, bilingual services were not available and, for that matter, neither were the services of the incumbent while undertaking training.

Mr. Squires offered further evidence when cross-examined on his affidavit by applicant’s counsel. He elaborated on an element in official languages policy which required that official language services not only be provided in response to need, but that such services be actively offered to the public. The number of French language tax returns was not altogether relevant in such circumstances, as he knew from his personal experience in doing audits in French-speaking areas such as Chéticamp and Île Madame, that the taxpayers there were not altogether comfortable in keeping English records and filing English tax returns. Whatever the offer of services might be, it would therefore be extremely difficult to make statistical projections as to what the response to an active offer might be.

In this respect, Mr. Squires noted that when his office was running an enquiries telephone line, a hundred calls or so were received annually from French-speaking taxpayers. When it was later decided to offer a separate French enquiries line, the number per year jumped to something like 1500 calls. This, in the mind of the witness, was an indication that when a bilingual service is actively offered, language groups will respond to it.

Also filed in evidence was the affidavit of Mr. Marcel Pilon, Director of the Official Languages Division in Revenue Canada, Taxation. Mr. Pilon had collected and collated a mass of statistical data, showing a French-speaking population in the central metropolitan area of Halifax of some 7,600 people, and a total French-speaking population in mainland Nova Scotia of 25,000 people. In the area covered by the Halifax office in dealing with the SRED Program, and which included the Atlantic Region generally, francophones made up just under 275,000 of the total population.

Mr. Pilon also listed accounting firms and legal firms in Nova Scotia offering bilingual services to their clients as well as the number of francophone businesses, corporations, fish-processing plants and commercial farmers operating in the area. He related the number of critical comments about the Halifax office made by the Official Languages Commissioner over the years 1982 to 1988, and noted in particular that in 1987, after repeated reminders, the Halifax Office had no more than 2% or 3% bilingual staff and not one professional bilingual auditor.

Further evidence was adduced in the affidavit of Ms. Vera McClay, Director, Official Languages Directorate, Public Service Commission. The witness set out the statutory and regulatory underpinnings upon which the provisions of the Official Languages Act are carried out. These included the Public Service Employment Act, the Public Service Official Languages Exclusion Approval Order [SOR/81-787], and the Public Service Official Languages Appointment Regulations [SOR/81-787].

Ms. McClay stated that it is policy to staff on a bilingual imperative basis when the position requires full bilingual proficiency at the time of the appointment. Conversely, a bilingual non-imperative designation may be made when the candidate need not meet all linguistic requirements of the position immediately. The processes involved are found in the exclusion approval order identified above.

The foregoing references to the facts do not cover all of the evidence adduced and contain only limited comment on the extensive exhibits filed in support. Nevertheless, I believe there is enough material now before us to set out the legal structures under which the issue before the Court has come into focus.

THE LAW

The fountainhead of official bilingualism is found in the Canadian constitution. Sections 16 to 22 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] declare that English and French are the official languages of Canada, that they enjoy equal status, equal rights and equal privileges in all institutions of Parliament and government of Canada. More specifically, section 20 of the Charter gives a right to any member of the public in Canada to communicate with and to receive available services in the language of one’s choice from any federal institution where there is a significant demand or where, due to the nature of the institution, it is reasonable that such communications with or services from it be available in both languages.

Next comes the Official Languages Act, a statute which has been described as a quasi-constitutional document. In its lengthy preamble, the Act repeats the constitutional rights and guarantees of the Charter with respect to communications with and services from the Government of Canada in either official language. The preamble also reflects on the in-house requirement of the government to provide equal opportunities to its employees to choose either language as their language of work.

There is also provision of equal access to government appointments for both English-speaking and French-speaking Canadians, with due regard for the merit principle.

Finally, there is a commitment of the Government of Canada to enhance the vitality and support the development of English and French linguistic minority communities as an integral part of the two language communities in Canada.

Part IV of the Act is relevant to the issue before me. It speaks of communications with and responses from government services in either official language. Paragraph 22(b) repeats the principle laid down in section 20 of the Charter concerning the “significant demand” for communications and services and later, in section 24 of the Act, provides by regulation the institutions of government in which it would “be reasonable” that communications and services be available in both official languages.

Section 28 might be termed the proactive clause. It imposes on federal institutions the duty to ensure that appropriate measures are taken to make it known to the public that services in either official language are available. Likewise, under section 30, these institutions are obliged to use communications media which will effectively and efficiently reach both language groups.

Subsection 32(1), in turn, prescribes in more detail the regulatory authority of the Governor in Council with respect to “significant demand”, to circumstances not otherwise provided, and with respect to the services and the manner of providing them. It also authorizes the Governor in Council to have regard to: the French and English linguistic minority population served by the government; the proportion of that population and its characteristics; the volume of business in either language; and finally, any other factors the Governor in Council considers appropriate.

Part VI of the Act declares that the government is committed to the policy of providing opportunities to members of both language groups to obtain employment and advancement. Under subsection 39(2), the government is to take due account of the purposes and provisions of Parts IV and V in so doing. Nevertheless, the government must walk a very tight line, as subsection 39(3) states that the principles of section 39 may not be construed as abrogating or derogating from the principle of selection according to merit.

Part VII of the Act imposes further commitments on government, namely in regard to enhancing the vitality of French and English-speaking minority groups, in supporting and assisting their development, and in fostering the full recognition and use of both English and French in Canadian society.

More specifically, however, Part VIII of the Act, in sections 46 to 48, imposes responsibilities and duties on Treasury Board relating to the implementation of Part IV dealing with communications with and services from government, Part V dealing with language of work, and Part VI dealing with employment opportunities and advancement in the Public Service for both language groups.

Part IX of the Act speaks of the powers and duties of the Commissioner of Official Languages and particularly, under subsection 56(1), the Act provides that the Commissioner has the duty to assure the recognition of the status of each of the official languages and compliance with the spirit and intent of the Act in government administration. To do this, the Commissioner is given wide powers of investigation either on his own or pursuant to a complaint made to him.

Part X deals with Court remedies in respect of any right or duty under sections 4 to 7, sections 10 to 13, Part IV or V, or in respect of section 91. These remedies are available by way of application to the Federal Court, Trial Division, and if the Court should find that the government has failed to comply with the Act, it may grant such remedies as it considers appropriate and just in the circumstances.

The other statute of material importance is the Public Service Employment Act which establishes the principles under which, by regulation, the provisions of the Official Languages Act in the matter of staffing of positions in the Public Service may be carried out.

Section 10 of that Act establishes the well-known doctrine that appointments be according to merit. Section 20, on the other hand, provides that employees appointed shall be qualified in the knowledge and use of the English or French language, or both, to the extent that the Commission deems it necessary for the proper functioning of government and the provision of proper services to the public.

In terms of demographic realities where minority language groups are scattered in many regions of Canada and in order to cope with the problem of unilingual persons applying for bilingual positions, practical or pragmatic steps to maintain an even playing field had to be taken. I interpret what was done in that regard as measures to reconcile duties to the public under the Official Languages Act with the more personal rights of persons who claim equal opportunities for appointment in the Public Service.

In the Public Service Official Languages Exclusion Approval Order and in the Public Service Official Languages Appointment Regulations are found the regulatory schemes to achieve the purpose I have just described. This scheme exempts a person from the bilingual requirements of a position if an undertaking is made to become proficient in both languages within a particular prescribed period following the appointment. The scheme also provides a safety net for a person who cannot become proficient within the prescribed period by allowing for the appointment of that person to another position of a similar nature and for which he is qualified.

The regulations contain various other exemptions not material to the issue before me, but it appears clear from the foregoing orders that exemptions may only apply to what the Approval Order calls the “non-imperative” appointment of a unilingual person.

POSITION OF THE COMMISSIONER OF OFFICIAL LANGUAGES

The Commissioner, under a court order dated January 15, 1991, became an intervenor pursuant to subsection 78(1) of the Official Languages Act. This intervention, in my view, is consonant with the statutory powers and duties of the Commissioner to ensure recognition of the status of our official languages and compliance with the spirit and intent of the Act in federal institutions.

In commenting on the position taken by counsel for the Commissioner, I note that the originating notice of motion was first filed by the applicant on October 23, 1990 and was amended on November 15, 1990. The applicant at that time requested the following relief:

a) an order setting aside the designation of the AU-02 position as “bilingual imperative”;

b) an order declaring that the said position be designated “bilingual non-imperative”.

One will recognize that in the two years which intervened until the hearing of the application on December 14 and 15, 1992, other events had wound their inexorable ways. As noted earlier, the anticipated person-years were not authorized, the AU-02 bilingual imperative staffing process was not completed, and the eligibility list has long since expired.

In the face of counsel for the Commissioner’s admonition that there might no longer be an issue before the Court, the applicant filed at the hearing a second amended originating notice of motion limiting the relief asked of this Court to the following:

- An Order declaring that the Respondent’s announced intention to staff on an imperative basis in competition 89-TAX-NFLD-CC-37 was not objectively required and contravened section 91 of the Official Languages Act.

It was consequently agreed that the hearing should go as planned. In terms of the amount of evidentiary material collected by the parties and the arduous preparations by each of the three counsel, I believe it would have been unconscionable to abort the process before hearing from the parties.

Nevertheless, counsel for the Commissioner took the view that on the basis of the Federal Court of Appeal decision in the case of Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, the Court’s scope of review under a section 91 challenge was somewhat circumscribed. Counsel suggested the following as the limitations on the parameters of the Court’s enquiry:

- whether the decision was based on relevant considerations supported by some but not necessarily sufficient evidence;

- whether the decision was so unreasonable that no other reasonable decision-maker could come to the same conclusion; or

- whether the decision was exercised on any incorrect premise of law.

In effect, counsel for the Commissioner was suggesting that it was not open to the Court to substitute its own opinion for that of the decision-maker simply on the grounds that the Court disagreed with it.

FINDINGS

I should first of all elaborate on what the Federal Court of Appeal said in the Viola case cited above. On the facts, the Court had to decide whether the Public Service Commission Appeal Board had jurisdiction to find that a bilingual imperative designation was grounds for deciding that such a designation in the circumstances was contrary to the merit principle. In deciding that the Appeal Board was without jurisdiction in the matter, the Court referred to the provisions of section 91 of the Official Languages Act in the following terms (at page 388):

By stating that language requirements must be imposed “objectively”, section 91 expressly confirms what has always been implicit, namely that language requirements cannot be imposed frivolously or arbitrarily. The purpose of this section is to provide comfort and reassurance, rather than create new law ...

The thrust of the applicant’s case is that the respondent’s designation lacks objectivity. The applicant assumes a fairly heavy burden in establishing this. I would not suggest that this requires, on the applicant’s part, evidence that the designation was clearly frivolous or patently arbitrary, but at least, as was suggested by counsel for the Commissioner, it requires a finding that there was no evidentiary base to the designation, or that the designation was evidently unreasonable, or that there was an error of law somewhere. This is a more stringent field of enquiry than that which might be encountered in a section 18 application [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)].

On review of the evidence, I should find that the case for the respondent meets the objectivity test under section 91 of the Official Languages Act. That objectivity test, in my respectful view, must be studied not only in respect of an individual designation which might be required to meet a demand for bilingual services, but must have regard for the “proactive” obligations imposed on federal institutions to promote the use of an official language in a minority setting.

The applicant, in this regard, does not object to a bilingual designation but to a bilingual imperative designation. This suggests an even narrower test under section 91 and it indicates, in my view, how much lighter is the burden of establishing an objectively based designation. This means that it is not sufficient, under a section 91 challenge, to merely demonstrate that respect for bilingual requirements under the Official Languages Act might also be achieved through other measures or other means. There must be, in my mind, a finding that the staffing action proposed has no factual foundation. This implies that the field of enquiry proposed by counsel for the Commissioner has some legitimacy.

In the case before me, it is obvious that there exists under the Official Languages Act a broad picture and a narrower one. The object of the Act is not only to permit the use of our official languages and give citizens the right to deal with federal institutions in the language of their choice. It is more than that. It is to promote the use of both languages or, as expressed in the Act’s preamble, “enhancing the vitality and supporting the development of English and French linguistic minority communities”. Such a policy commitment by the Government of Canada imposes a double duty which must sooner or later be exercised in concrete terms.

The first duty is to assure that federal institutions are in a position to respond to a citizen’s right to communicate with or to be provided services from them in either language. Admittedly, there are variables in the extent or depth of meeting need and availability. One must never lose sight of the main issue, namely that it is only with respect to minority language rights in any given community that the purposes and objectives of the Act are put to the test. The majority language rights in any such community are dynamically respected and pose no problems.

These variables are the product of many basic considerations. I need not list them all, but they do include demographic factors, the size of the minority constituency, the exposure of particular federal agencies to citizen relationships, the proper functioning of these agencies to meet their operational requirements, the significant demand for minority language services, as well as the other considerations which are outlined in section 32 and section 33 of the Act.

Of particular significance, in the context of that statute, is that institutional policies and commitments must be carried out by public servants. This is when the merit principle requires tender and loving care.

The reality of the two language groups in Canada is that bilingual proficiency is a more inherent feature of French language groups than English language groups. So too in the federal Public Service, where the same inherent feature applies. To foster bilingualism or to meet its statutory duties, the government, through its Public Service Commission, had to designate any number of positions as bilingual, but in so doing, assure that non-bilingual candidates for appointment would not be prejudiced.

Maintaining equilibrium or balance between the tenets of statutory policy and the realities of people in the public sector obviously demanded a particularly deft and delicate touch. I need not comment in detail on how balance was achieved, except to note the provisions in statutes and regulations respecting “grandfather” rights, exclusion orders, language training at public expense, security of position if language proficiency is not achieved within prescribed delays, and other measures of a similar nature.

I would add that the designations made over the years have not been of a nature to provoke numerous recourses to the courts. This does not mean that fears and susceptibilities flowing from historical experiences or from individual cases have not flared up in many cases, but it is a fact that courts have seldom been called upon to intervene on bilingual requirements issues. There is of course the Viola case which I have cited. There is also the case of Gariépy v. Federal Court of Canada (Administrator) (1987), 14 F.T.R. 58 (F.C.T.D.), where again a challenge was made to a bilingual imperative designation. That case, however, dealt with an application for interlocutory injunction pending trial on the issue of the merits. Admittedly, my colleague Muldoon J. used some fairly strong language in granting the applicant interlocutory relief, but the merits of the issue did not reach trial, the parties having later reconciled their differences in some manner or another.

This brings me to comment on what I view is the second duty which the statute imposes on federal institutions. If there is imposed a tight line in designations of individual positions to protect the majority language group in the Public Service, the other duty is reflected in the preamble to the Act and in section 41 of the Act. My interpretation of section 41 gives credence to the proposition that policy requires the respondent not only to react or respond to pressures for more or better bilingual services, but to initiate programmes to offer these services where there is a perceived need for them, a need which might not be fully reflected in a statistical analysis of the number of enquiries, the number of files, or the current incidence of French and English cases in any particular public office.

Although these factors are relevant to a proper application of the designation rules, they are not exclusive. To hold otherwise would go against sociological profiles of minority language groups drawn in the Report of the Royal Commission on Bilingualism and Biculturalism, Book I (1967), at page XXX, which stated that there are many French Canadians “so accustomed to the inferior status of their own language that they are unaware of it ... “, and which concluded in Chap. V, No. 260 [at page 89], that “When it becomes usual for the language of the minority to receive little or no recognition in a given region, the minority reluctantly falls into line.”

On that premise, a purposive or proactive component in language policies is not only in keeping with statutory obligations, but is conducive to effective practices. In other words, the respondent has to initiate a level of bilingual services and not simply respond to individual or group demands. Otherwise, the syndrome outlined in 1967 would continue indefinitely, and lip service only would increasingly be paid to the statutory duties Parliament has imposed on the respondent.

A clear example of the effect of this approach is of course the experience of the Halifax Office when it instituted a French telephone information service. French enquiries, in the first year of the service’s operation, went from 100 to 1400-1500 calls. From this, one could reasonably conclude that if a minority language service is available, and is made known to the public, it will be used.

Another aspect worthy of review is the Commissioner’s comments with respect to the standards of bilingual services at some of the district offices of Revenue Canada, and more particularly the Halifax Office. The Commissioner’s role in this respect follows again from several provisions of the Official Languages Act. The more generic provision is found in subsection 56(2), which reads as follows:

56. ...

(2) It is the duty of the Commissioner, for the purpose set out in subsection (1), to conduct and carry out investigations either on his own initiative or pursuant to any complaint made to the Commissioner and to report and make recommendations with respect thereto as provided in this Act.

In fulfilling these duties and in reporting annually to Parliament, pursuant to section 66, the Commissioner had this to say regarding the staffing of positions in Revenue Canada:

In 1983 — “weak francophone participation in the Maritimes ... “

In 1984 — “There has been only a slight improvement in the representation of official language minorities in the regional establishments since 1982.”

In 1985 — “The Department should do everything possible to increase the bilingual capacity of its audit and collections services; this deficiency is particularly unfortunate in a department with coercive powers.”

In 1986 — “Little has been done to resolve the language difficulties mentioned last year relating to the audit and collections programmes ... “

“ ... (some) district offices, including Halifax ... have no bilingual auditors.”

In 1987 — “The major weakness in service to the public is to be found in the audit and collections group. Even though we have been bringing this situation to the Department’s attention since 1982, it still has no bilingual auditor in Halifax ... “

In 1988 — “The poor bilingual capability of departmental auditors improved somewhat during 1988 ... now, the Halifax region has three (bilingual auditors) ... “

These comments by the Commissioner might only be material were Revenue Canada to be nominated for a bilingual merit award, but they are an indication to me that the respondent’s decision was not by an overnight, born-again conviction that instant bilingualism was called for, but that the need, at least as perceived by the Commissioner, had long been outstanding.

The door opened in 1989 when the respondent applied to Treasury Board to create new positions in the audit section. No existing positions among AU-01s, AU-02s or AU-03s were designated. No dislocation of current incumbents occurred. The Director, Mr. Squires, decided that two new positions, one at the AU-02 level and the other at the AU-03 level, would be designated bilingual imperative. He lost on the AU-03 position after a complaint was made to the Commissioner. He was left with one anticipated appointment for an AU-02.

Mr. Squires, in consultation with others, reached the conclusion that there was an immediate need for a bilingual AU-02 position. In his view, the demographics justified it. The Halifax Office had to service not only some 7,600 Halifax francophones, but also an additional 25,000 in mainland Nova Scotia and 275,000 in the Atlantic Region in respect of the S.R.E.D. Program.

In his view, the proactive component of bilingual policy also justified it. The experience of the French telephone enquiries line was a strong message to him that the demand for minority language services was there, if such services were not only made available but also made known to the minority language group.

The Director was especially aware of the sensitive role of an AU-02 auditor in exercising compliance duties. His own experience in the field had led him to conclude that many French-speaking taxpayers were uncomfortable in dealing with English-speaking auditors, but these taxpayers, obviously, would have been the last ones to make a big case out of it.

In terms of existing volumes of French language files, he resisted the alternative “fill-in” method of allocating an AU-01 to these files. After all, he had only two bilingual AU-01s and the ensuing rotation would create problems of conflict of duties, illness, leave of absence, promotions and transfers. In any event, the basic competence of an AU-02 auditor to deal with the more complex business files and corporate returns was not necessarily found in an AU-01.

The Director was also aware of concurrent developments among both lawyers and accountants in the Halifax area relating to the provision of bilingual services to their respective clienteles. This indicated to him that these individual elements formed part of the whole in an effort to overcome, in the field of taxation, relative stagnation in the provision of minority language services.

As far as unilingual auditors’ opportunity for advancement was concerned, the Director must have noted that out of a complement of 54 auditors, two AU-01s and one AU-03 were bilingual. There was no single bilingual AU-02 on staff. More than this, any opportunity for advancement among the AU-01 incumbents, of which the witness Mr. Nader was one, was only marginally affected. There were four unilingual AU-02 positions to be filled in Halifax. Furthermore, in the last ten years, unilingual auditors had shown no interest in getting into language training. If some level of bilingual proficiency is one means of advancement in the Public Service, perhaps the Director was getting a message there somewhere.

Finally, Mr. Squires must have been aware of the policy directive, dated September 28, 1981, issued by Mr. Edgar Gallant, Chairman of the Public Service Commission, that “imperative staffing constitutes the normal application of the Public Service Employment Act, while non-imperative is an exception.”

I should add another comment. The carrying on of statutory duties and obligations of the Official Languages Act in the strongly English-speaking environment of the Halifax Office, as well as in other similar places, must not always be easy. Language, as is often noted, includes strong cultural ties and characteristics, and there are historical discordant notes still being heard over language duality in Canada. No matter his background, the individual manager must remain publicly discreet, yet there must come to his ears, from time to time, negative observations from colleagues and friends, which add to the constraints of his office and which impose upon him many conflicting pressures. He often faces ignorance of the law, which in turn breeds fear, and which in turn breeds resentment. The manager must cope with all this and still run a happy ship.

As I said, his role is not an easy one. And yet, those who harbour grievances from time to time might consider that the dynamics of the Public Service, which is comprised of some 75% English-speaking Canadians, should prima facie provide some assurance that position designations, as a rule, will be objectively founded and not frivolously or arbitrarily imposed.

CONCLUSION

I have no hesitation in concluding that the staffing action taken by the respondent in 1989, in calling for an AU-02 bilingual imperative designation, meets the test imposed by section 91 of the Official Languages Act. In reaching this conclusion, I do not wish to imply that the challenge made to this Court by the applicant is devoid of merit. There are always two sides to an issue, and the enquiry opened the door to two divergent perceptions and views, and two opposing analyses of the factual bases on which designations are founded.

I repeat, however, that curial scrutiny of staffing actions must of necessity be circumscribed. I agree with the view expressed by the Court of Appeal in the Viola case (supra) that the test would be the same without the objectivity test imposed by section 91 of the statute and that, of course, no frivolous or arbitrary approach to bilingual staffing can be countenanced. The “spirit and intent” of the Act, as set out in subsection 56(1) must always be respected.

So long, however, as there is a factual basis on which a particular staffing action is taken, and so long as that action is in conformity with relevant statutes and more discrete regulations, this Court cannot and should not intervene. That a court might have reached another conclusion, or that a court might have preferred an alternative to the staffing action taken, are no grounds, in my view, for judicial intervention. To define more extensively this somewhat narrow scope of review would only lead to obfuscation or semantic confusion.

Counsel for the parties were particularly cogent and thorough in their presentations, and I am grateful to them for it. Admittedly, the issue is now moot and my findings, which are retrospective to 1989, might not necessarily apply if further staffing action has or should be taken where the factual basis whereof I spoke might have assumed a different colour. In any event, the comments and observations made herein will hopefully be of some guidance in dealing with future issues.

The application is dismissed with costs.

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