A-312-89
Attorney General of Canada (Applicant)
v.
Lise Viola (Respondent)
and
Claudine Brosseau and Marie-Claude Bastien
(Mises en cause)
INDEXED AS: CANADA (ATTORNEY GENERAL) v. VIOLA (C.A.)
Court of Appeal, Pratte, MacGuigan and Décary
JJ.A.—Ottawa, October 25 and November 23,
1990.
Public Service — Jurisdiction — In allowing appeal under
Public Service Employment Act, s. 21, Appeal Board holding
bilingual requirement for position unjustified and established
in arbitrary and improper manner contrary to Official Lan
guages Act — Outside Board's jurisdiction which was limited
to determination of whether merit principle observed — Not
authorized to inquire into qualifications established by
Department for position.
Official languages — 1988 Official Languages Act not
altering rules established by 1969 Act — Outside jurisdiction
of appeal board, established under Public Service Employment
Act, s. 21 to inquire into language requirements of position set
by department — Parliament entrusting delicate task of deter
mining language rights of officials, public to Commissioner
and judges.
Construction of statutes — Official Languages Act — 1988
Act not altering rules established by 1969 Act — Appeal board
under Public Service Employment Act lacking jurisdiction to
ensure language requirements made by department in accord
ance with provisions of Official Languages Act — Constitu
tional entrenchment of language rights and its quasi-constitu
tional extension, Official Languages Act, qualified by
Supreme Court of Canada's appeal to courts for caution in
acting as instruments of change regarding language rights.
The respondent's candidacy for a position in Quebec with the
Correctional Service was rejected because she did not meet the
linguistic requirements of the position. She appealed pursuant
to Public Service Employment Act, section 21 on the ground
that a Bilingual imperative BBB/BBB requirement for the
position was wrongful and unwarranted. The Appeal Board
allowed the appeal, holding that the requirement was unjusti
fied and established in an arbitrary and improper manner
contrary to the Official Languages Act. It held that since the
impropriety raised serious doubt as to whether the same candi
dates would have been selected for appointment if the impro
priety had not occurred, the merit of the proposed appointment
was open to question. In this section 28 judicial review applica
tion, the issue was whether the Appeal Board had jurisdiction
to consider the legality or the merits of the linguistic require
ments of a position established by a department in an appeal
under section 21.
Held, the application should be allowed.
Prior to the 1988 Official Languages Act, an appeal board
did not have jurisdiction to inquire into the validity of the
language requirements of a position set by a department. The
board's function under section 21 was to determine whether the
merit principle had been observed, not to enquire into the
qualifications established by the department for a position. Any
impropriety or illegality in determining the necessary condi
tions was subject to judicial review by the Federal Court, not to
review by an appeal board. Furthermore, although language
could be dealt with in selection standards under subsection
12(1), an appeal board could no more question the language
requirements of a position than it could question the require
ments as to education, knowledge, experience or residence.
Although section 20 allowed the Commission to prescribe the
language qualifications which it "deems necessary", the Com
mission has delegated the responsibility for determining lan
guage requirements to the Department.
The 1988 Official Languages Act was no ordinary statute. It
reflected our constitution and the social and political compro
mise out of which it arose. As quasi-constitutional legislation, it
was to be interpreted in a manner that would advance broad
policy considerations. Even so, the Supreme Court of Canada
has cautioned that the courts should pause before they decide
to act as instruments of change with respect to language rights.
Just as the Charter is not a new source of jurisdiction, the 1988
Official Languages Act did not create new jurisdictions other
than those expressly created. The fact that a department might
be subject to more specific legal duties than in the past when
determining language requirements of a position does not mean
that an appeal board thereby acquires a jurisdiction which was
previously beyond it. The appeal board continued to perform
the function it had until now exercised. The preamble to the
Act is simply a revised statement of the duty to maintain the
principle of selection based on merit already imposed by section
40 of the 1969 Official Languages Act.
Parliament has directed its attention to the matter of selec
tion based on merit. If it had intended to give the appeal board
new jurisdiction, it would have done so when it created the new
judicial remedy contained in Part X. It could be concluded that
Parliament thought it advisable that the delicate task of deter
mining the respective rights of government officials and the
public with respect to language of work and language of service
should be the responsibility of the Commissioner and the judges
rather than of the appeal board. The irregular jurisdiction of
the appeal board is the outcome of a compromise arrived at by
the legislature to accommodate the respective responsibilities
assigned to the Treasury Board, the department and the Public
Service Commission. It should neither be diminished nor
augmented.
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. II (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 16.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Financial Administration Act, R.S.C., 1985, c. F- I I.
Official Languages Act, S.C. 1968-69, c. 54, s. 40(4).
Official Languages Act, S.C. 1988, c. 38, ss. 2, 21, 22,
34, 35, 39, 58, 76, 77, 78, 82, 91.
Public Service Employment Act, R.S.C., 1985, c. P-33,
ss. 6, 10, 12, 17, 20, 21.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ricketts v. Department of Transport (1983), 52 N.R.
381 (F.C.A.); Kelso v. The Queen, [1981] 1 S.C.R. 199;
(1981), 120 D.L.R. (3d) 1; 35 N.R. 19; Gariépy v.
Federal Court of Canada (Administrator) (1987), 14
F.T.R. 58 (F.C.T.D.); Société des Acadiens du Nouveau-
Brunswick Inc. et al. v. Association of Parents for Fair
ness in Education et al., [1986] 1 S.C.R. 549; (1986), 69
N.B.R. (2d) 271; 27 D.L.R. (4th) 406; 177 A.P.R. 271;
66 N.R. 173.
DISTINGUISHED:
Delanoy v. Public Service Commission Appeal Board,
[1977] I F.C. 562; (1976), 13 N.R. 341 (C.A.).
REFERRED TO:
Bauer v. Public Service Appeal Board, [1973] F.C. 626;
(1973), 40 D.L.R. (3d) 126; 6 N.R. 183 (C.A.); Demers
v. Attorney General of Canada, [1974] 1 F.C. 270;
(1974), 2 N.R. 89 (C.A.); Brown v. Public Service Com
mission, [1975] F.C. 345; (1975), 60 D.L.R. (3d) 311; 9
N.R. 493 (C.A.); Irwin v. Appeal Board of the Public
Service Commission, [1979] 1 F.C. 356; (1978), 22 N.R.
475 (C.A.); Guy v. Public Service Commission Appeal
Board, [1984] 2 F.C. 369; (1984), 8 D.L.R. (4th) 628; 55
N.R. 105 (C.A.); R. v. Big M Drug Mart Ltd. et al.,
[1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R.
(4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97;
18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58
N.R. 81; Hunter et al. v. Southam Inc., [1984] 2 S.C.R.
145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6
W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14
C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9
C.R.R. 355; 84 DTC 6467; 55 N.R. 241; R. v. Therens et
al., [1985] I S.C.R. 613; (1985), 18 D.L.R. (4th) 655;
[1985] 4 W.W.R. 286; 38 Alta. L.R. (2d) 99; 40 Sask. R.
122; 18 C.C.C. (3d) 481; 13 C.P.R. 193; 45 C.R. (3d) 57;
32 M.V.R. 153; 59 N.R. 122; Re B.C. Motor Vehicle
Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. 536; [1986]
1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48
C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R.
266; Robichaud v. Canada (Treasury Board), [1987] 2
S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 87 CLLC
17,025; 75 N.R. 303; Ontario Human Rights Commis
sion and O'Malley v. Simpsons-Sears Ltd. et al., [1985]
2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th)
321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 86 CLLC
17,002; 64 N.R. 161; 12 O.A.C. 241; Canadian National
Railway Co. v. Canada (Canadian Human Rights Com
mission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th)
193; 27 Admin. L.R. 172; 87 CLLC 17,022; 76 N.R. 161;
Scowby v. Glendinning, [1986] 2 S.C.R. 226; (1986), 32
D.L.R. (4th) 161; [1986] 6 W.W.R. 481; 51 Sask. R.
208; 29 C.C.C. (3d) 1; 70 N.R. 241; Singh et al. v.
Minister of Employment and Immigration, [1985] 1
S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R.
137; 14 C.R.R. 13; 58 N.R. I; Winnipeg School Division
No. 1 v. Craton et al., [1985] 2 S.C.R. 150; (1985), 21
D.L.R. (4th) 1; [1985] 6 W.W.R. 166; 38 Man. R. (2d)
1; 15 Admin. L.R. 177; 8 C.C.E.L. 105; 85 CLLC
17,020; 61 N.R. 241; Insurance Corporation of British
Columbia v. Heerspink et al., [1982] 2 S.C.R. 145;
(1982), 137 D.L.R. (3d) 219; [1983] 1 W.W.R. 137; 39
B.C.L.R. 145; 82 CLLC 17,014; [1982] I.L.R. 1-1555;
43 N.R. 168; R. v. Smith, [1989] 2 S.C.R. 1120; (1989),
61 D.L.R. (4th) 462; [1989] 6 W.W.R. 289; 39 B.C.L.R.
(2d) 145; 50 C.C.C. (3d) 308; 71 C.R. (3d) 129; 99 N.R.
372; Canada (Attorney General) v. Vincer, [1988] 1 F.C.
714 (1987), 46 D.L.R. (4th) 165; 82 N.R. 352 (C.A.);
Goodyear Tire and Rubber Company of Canada Limited
v. The T. Eaton Company Limited and Others, [1956]
S.C.R. 610; (1956), 4 D.L.R. (2d) 1; 56 DTC 1060.
COUNSEL:
Jean-Marc Aubry, Q.C. and Alain Préfon-
taine for applicant.
Dianne Nicholas for respondent.
Peter B. Annis and Richard Tardif for
intervenor.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Ottawa, for respondent.
Scott & Aylen, Ottawa, for intervenor.
The following is the English version of the
reasons for judgment rendered by
DÉCARY J.A.:
FACTS
In October 1988, the Public Service Commis
sion ("the Commission") announced the holding of
a closed competition to staff the position of supply
ing officer with the Correctional Service of
Canada at Sainte-Anne-des-Plaines, Quebec. The
linguistic requirements of the position to be filled
were determined by the Department of the Solici
tor General. According to these requirements,
"Bilingual imperative BBB/BBB", a candidate had
to have a level B knowledge of French and English.
The respondent was a candidate in this competi
tion. Her candidacy was rejected because she did
not obtain the necessary level B in the examination
to determine the level of her written language
skills. After the competition had been held the
names of the mises -en-cause were put on the
eligible list, in accordance with section 17 of the
Public Service Employment Act [R.S.C., 1985, c.
P-33] ("the Act"). By a notice of appeal dated
April 24, 1989, the respondent appealed against
the proposed appointments pursuant to section 21
of the Act, on the ground that the linguistic
requirement for the position was wrongful and
unwarranted.
On June 12, 1989 the Appeal Board allowed the
appeal for reasons which it summarized as follows:
In short, it seems clear in this case that the requirement to be
proficient in English or in both official languages was unjusti
fied and established in an arbitrary and improper manner
contrary to the provisions of the Official Languages Act.
The impropriety may affect the merit of the proposed personnel
selection. It is not at all certain that the proposed appointments
would have been the same if proficiency in both official lan
guages had not been a condition of appointment ...
Since the improper definition of the language requirements of
the position raises a serious doubt as to whether the same
candidates would have been selected for appointment if the
impropriety had not occurred, the merit of the proposed
appointments is open to question and the appeal must be
allowed.
On June 23, 1989 the applicant filed an origi
nating notice in the Registry of this Court pursu
ant to section 28 of the Federal Court Act [R.S.C.,
1985, c. F-7].
The Commissioner of Official Languages then
requested leave, pursuant to subsection 78(3) of
the Official Languages Act,' to intervene in the
action at bar. On June 25, 1990 he was given leave
to submit arguments in writing and orally regard
ing the following question of law only: should the
decision challenged in these proceedings be set
aside on the ground that in rendering it the Appeal
Board usurped the exclusive jurisdiction of the
Commissioner under the Official Languages Act?
POSITION OF PARTIES AND INTERVENER
The applicant argued that an appeal board
having before it an appeal filed under section 21 of
the Act does not have jurisdiction to consider the
legality or the merits of the linguistic requirements
of a position as established by a department.
The respondent replied that the appointments
proposed by the Commission contravened the 1988
Official Languages Act, that an appeal board has
always had the necessary jurisdiction to consider
the legality or the merits of the linguistic require
ments of a position and that if it did not have this,
the jurisdiction was conferred on it by the new
Official Languages Act adopted in 1988.
The intervener, for his part, submitted that if
this Court concludes that the designation of lin
guistic requirements is part of the merit selection
process, it is not the appeal board but the Commis
sioner of Official Languages himself who alone
has jurisdiction to decide on the merits or legality
of this designation.
APPLICABLE LEGISLATION
The case at bar concerns the application and
interpretation of a number of legislative, and
indeed constitutional, provisions which it will be
helpful to reproduce forthwith.
Public Service Employment Act, R.S.C., 1985,
c. P-33:
6. (1) The Commission may authorize a deputy head to
exercise and perform, in such manner and subject to such terms
and conditions as the Commission directs, any of the powers,
functions and duties of the Commission under this Act, other
than the powers, functions and duties of the Commission in
relation to appeals under sections 21 and 31 and inquiries under
section 34.
' S.C. 1988, c. 38.
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, and shall be made by the Commission, at the
request of the deputy head concerned, by competition or by
such other process of personnel selection designed to establish
the merit of candidates as the Commission considers is in the
best interests of the Public Service.
12. (1) Subject to subsection (2), the Commission may, in
determining pursuant to section 10 the basis of assessment of
merit in relation to any position or class of positions, prescribe
selection standards as to education, knowledge, experience,
language, residence or any other matters that, in the opinion of
the Commission, are necessary or desirable having regard to
the nature of the duties to be performed.
20. Employees appointed to serve in any department or other
portion of the Public Service, or part thereof, shall be qualified
in the knowledge and use of the English or French language or
both, to the extent that the Commission deems necessary in
order that the functions of the department, portion or part can
be performed adequately and effective service can be provided
to the public.
21. (1) Where a person is appointed or is about to be
appointed under this Act and the selection of the person for
appointment was made from within the Public Service, every
unsuccessful candidate, in the case of selection by closed com
petition, or, in the case of selection without competition, every
person whose opportunity for advancement, in the opinion of
the Commission, has been prejudicially affected, may, within
such period as the Commission prescribes, appeal against the
appointment to a board established by the Commission to
conduct an inquiry at which the person appealing and the
deputy head concerned, or their representatives, shall be given
an opportunity to be heard.
(2) The Commission, on being notified of the decision of the
board on an inquiry into an appointment conducted pursuant to
subsection (1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the
appointment; or
(b) if the appointment has not been made, make or not make
the appointment.
Official Languages Act, S.C. 1988, c. 38:
WHEREAS .. .
... officers and employees of institutions of the Parliament or
government of Canada should have equal opportunities to use
the official language of their choice while working together in
pursuing the goals of those institutions;
AND WHEREAS English-speaking Canadians and French-
speaking Canadians should, without regard to their ethnic
origin or first language learned, have equal opportunities to
obtain employment in the institutions of the Parliament or
government of Canada;
AND WHEREAS the Government of Canada is committed
to achieving, with due regard to the principle of selection of
personnel according to merit, full participation of English-
speaking Canadians and French-speaking Canadians in its
institutions;
2. The purpose of this Act is to
(a) ensure respect for English and French as the official
languages of Canada and ensure equality of status and equal
rights and privileges as to their use in all federal institutions,
in particular with respect to their use in parliamentary
proceedings, in legislative and other instruments, in the
administration of justice, in communicating with or providing
services to the public and in carrying out the work of federal
institutions;
PART IV
COMMUNICATIONS WITH AND SERVICES TO THE
PUBLIC
Communications and Services
21. Any member of the public in Canada has the right to
communicate with and to receive available services from feder
al institutions in accordance with this Part.
22. Every federal institution has the duty to ensure that any
member of the public can communicate with and obtain avail
able services from its head or central office in either official
language, and has the same duty with respect to any of its other
offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant
demand for communications with and services from that
office or facility in that language.
PART V
LANGUAGE OF WORK
34. English and French are the languages of work in all
federal institutions, and officers and employees of all federal
institutions have the right to use either official language in
accordance with this Part.
35. (1) Every federal institution has the duty to ensure that
(a) within the National Capital Region and in any part or
region of Canada, or in any place outside Canada, that is
prescribed, work environments of the institution are condu
cive to the effective use of both official languages and
accommodate the use of either official language by its offi
cers and employees; and
(b) in all parts or regions of Canada not prescribed for the
purpose of paragraph (a), the treatment of both official
languages in the work environments of the institution in parts
or regions of Canada where one official language predomi
nates is reasonably comparable to the treatment of both
official languages in the work environments of the institution
in parts or regions of Canada where the other official lan
guage predominates.
PART VI
PARTICIPATION OF ENGLISH-SPEAKING AND
FRENCH-SPEAKING CANADIANS
39. (1) The Government of Canada is committed to ensur
ing that
(a) English-speaking Canadians and French-speaking
Canadians, without regard to their ethnic origin or first
language learned, have equal opportunities to obtain employ
ment and advancement in federal institutions; and
(b) the composition of the work-force of federal institutions
tends to reflect the presence of both the official language
communities of Canada, taking into account the characteris
tics of individual institutions, including their mandates, the
public they serve and their location.
(2) In carrying out the commitment of the Government of
Canada under subsection (I ), federal institutions shall ensure
that employment opportunities are open to both English-speak
ing Canadians and French-speaking Canadians, taking due
account of the purposes and provisions of Parts IV and V in
relation to the appointment and advancement of officers and
employees by those institutions and the determination of the
terms and conditions of their employment.
(3) Nothing in this section shall be construed as abrogating
or derogating from the principle of selection of personnel
according to merit.
PART IX
COMMISSIONER OF OFFICIAL LANGUAGES
Investigations
58. (I) Subject to this Act, the Commissioner shall investi
gate any complaint made to the Commissioner arising from any
act or omission to the effect that, in any particular instance or
case,
(a) the status of an official language was not or is not being
recognized,
(b) any provision of any Act of Parliament or regulation
relating to the status or use of the official languages was not
or is not being complied with, or
(c) the spirit and intent of this Act was not or is not being
complied with
in the administration of the affairs of any federal institutions.
PART X
COURT REMEDY
76. In this Part, "Court" means the Federal Court—Trial
Division.
77. (1) Any person who has made a complaint to the Com
missioner in respect of a right or duty under sections 4 to 7,
sections 10 to 13 or Part IV or V, or in respect of section 91,
may apply to the Court for a remedy under this Part.
(4) Where, in proceedings under subsection (1), the Court
concludes that a Federal institution has failed to comply with
this Act, the Court may grant such remedy as it considers
appropriate and just in the circumstances.
(5) Nothing in this section abrogates or derogates from any
right of action a person might have other than the right of
action set out in this section.
78. (1) The Commissioner may
(a) within the time limits prescribed by paragraph 77(2)(a)
or (b), apply to the Court for a remedy under this Part in
relation to a complaint investigated by the Commissioner if
the Commissioner has the consent of the complainant;
(b) appear before the Court on behalf of any person who has
applied under section 77 for a remedy under this Part; or
(c) with leave of the Court, appear as a party to any
proceedings under this Part.
(2) Where the Commissioner makes an application under
paragraph (1)(a), the complainant may appear as a party to
any proceedings resulting from the application.
(3) Nothing in this section abrogates or derogates from the
capacity of the Commissioner to seek leave to intervene in any
adjudicative proceedings relating to the status or use of English
or French.
PART XI
GENERAL
82. (1) In the event of any inconsistency between the follow
ing Parts and any other Act of Parliament or regulation
thereunder, the following Parts prevail to the extent of the
inconsistency:
(a) Part I (Proceedings of Parliament);
(b) Part II (Legislative and other Instruments);
(c) Part IIl (Administration of Justice);
(d) Part IV (Communications with and Services to the
Public); and
(e) Part V (Language of Work).
(2) Subsection (1) does not apply to the Canadian Human
Rights Act or any regulation made thereunder.
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.
Official Languages Act, S.C. 1968-69, c. 54, s.
40(4); R.S.C. 1970, c. O-2, s. 39(4); R.S.C., 1985,
c. O-3, s. 40:
40. ...
(4) In relation to the appointment and advancement in
employment of personnel the duties of whose positions include
duties relating to the provision of services by authorities to
members of the public, it is the duty
(a) of the Public Service Commission, in cases where it has
the authority to make appointments, and
(b) of the authority concerned, in all other cases,
to ensure that, in the exercise and performance of the powers,
duties and functions conferred or imposed upon it by law, due
account is taken of the purposes and provisions of this Act,
subject always to the maintenance of the principle of selection
of personnel according to merit as required by the Public
Service Employment Act.
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]]:
Official Languages of Canada
16. (1) English and French are the official languages of
Canada and have equality of status and equal rights and
privileges as to their use in all institutions of the Parliament
and government of Canada.
(3) Nothing in this Charter limits the authority of Parlia
ment or a legislature to advance the equality of status or use of
English and French.
JURISDICTION OF APPEAL BOARD CONFERRED BY
SECTION 21 OF ACT
(a) Before coming into effect of 1988 Official
Languages Act
This Court has consistently held, 2 and I adopt
the wording of Thurlow C.J. in Ricketts [at
page 382]:
... that the determination of the essential and other require
ments for a position in the public service is not a function of the
Public Service Commission under the Public Service Employ
ment Act, that it is a function of management falling within the
authority of a minister to manage his department under the
statute establishing the department, that the function of the
Commission under s. 10 of the Public Service Employment Act
is to select from among candidates who have the qualifications
required by the department the candidate who is best qualified
for the position and to appoint him to it and that the function of
an appeal board established under s. 21 of the Public Service
Employment Act is to enquire not into the qualifications estab
lished by the department for a position but into the question
whether the merit principle prescribed by s. 10 has been
observed in the selection and appointment of a candidate who
2 Bauer v. Public Service Appeal Board, [1973] F.C. 626
(C.A.); Demers v. Attorney General of Canada, [1974] 1 F.C.
270 (C.A.); Brown v. Public Service Commission, [1975] F.C.
345 (C.A.); Irwin v. Appeal Board of the Public Service
Commission, [1979] 1 F.C. 356 (C.A.); Ricketts v. Department
of Transport (1983), 52 N.R. 381 (F.C.A.); Guy v. Public
Service Commission Appeal Board, [ 1984] 2 F.C. 369 (C.A.).
has the qualifications determined by the department for the
position.
In short, the function of an appeal board begins
where that of the department ends, and what
happens, or might have happened or should have
happened, at the time the department determines
the necessary qualifications, including those of
language, is not a matter for the appeal board. All
that may concern the appeal board is the selection
of the candidate by the Commission, once the
necessary qualifications have been defined by the
department. This does not mean that the depart
ment's decision is beyond all judicial review, for as
Dickson J.—as he then was—pointed out in Kelso
v. The Queen: 3
No one is challenging the general right of the Government to
allocate resources and manpower as it sees fit. But this right is
not unlimited. It must be exercised according to law. The
government's right to allocate resources cannot override a
statute such as the Canadian Human Rights Act ... .
This means that the department must account not
to the appeal board but rather to the Federal
Court Trial Division, as in Kelso, if it commits an
impropriety or illegality in determining the neces
sary conditions. In Gariépy v. Federal Court of
Canada (Administrator), 4 Muldoon J. expressed a
similar opinion at page 66:
The plaintiff here does not dispute the principle enunciated
in the Bauer case ... referred to by Thurlow, C.J., in Ricketts,
that the power to determine the qualifications for a position is
inherently a function of management. He does challenge the
fairness and reasonability if any, or legality, of the determina
tion of the "bilingual imperative" qualification for the position
of district administrator in Vancouver; but he cannot do so
within the provisions of the Public Service Employment Act,
according to the Ricketts judgment. Thus, the plaintiff has no
recourse other than to commence and to prosecute this action
for declaratory and injunctive relief. [My emphasis.]
Counsel for the respondent properly pointed out
that, in the judgments cited in note 2, this Court
considered the question of linguistic requirements
without even discussing the possible impact of the
1969 Official Languages Act, except for a very
brief reference in Demers. However, in so far as
3 [1981] I S.C.R. 199, at p. 207.
° (1987), 14 F.T.R. 58 (F.C.T.D.). I make no ruling as to the
merits of this decision in other respects.
this Court found that the appeal board lacked
jurisdiction to rule on the merits of the linguistic
requirements made by the department, it was not
required in my opinion to consider whether the
department had complied with the Official Lan
guages Act, as that must be the subject of a
completely different debate which was beyond the
purview of the appeal board. As the 1969 Official
Languages Act guaranteed in section 40 the
"maintenance of the principle of selection of per
sonnel according to merit as required by the Public
Service Employment Act", it would be to say the
least surprising if, in making the decisions it has
made on the question of linguistic requirements,
this Court has not by implication held that this
provision did not in any way alter the appeal
board's jurisdiction, especially as this section
referred to the respective powers of the Commis
sion and the departments concerned.
I would add that "language" is one of the
matters which may be dealt with in selection
standards under subsection 12(1) of the Act, and
that accordingly an appeal board can no more
question the language requirements of a position
than it can, for example, question the requirements
as to education, knowledge, experience or resi
dence. It is true that section 20 of the Act allows
the Commission to prescribe the language qualifi
cations which it "deems necessary", but this provi
sion is of no value in the case at bar since the
Commission, exercising the power of delegation
conferred on it by subsection 6(1) of the Act, has
made the department responsible for determining
the language requirements of the position.
Finally, the respondent relied heavily on Dela-
noy v. Public Service Commission Appeal Board,'
in which this Court recognized that an appeal
board had jurisdiction to consider the legality of a
change to the selection standards made by the
Commission. That case is of no relevance here as
the language requirements were made not by the
Commission but by the Department.
[ 1977] I F.C. 562 (C.A.).
I accordingly conclude that at the time the 1988
Official Languages Act came into effect, an appeal
board had no jurisdiction to question the validity
or legality of the language requirements made by a
department.
(b) Since 1988 Official Languages Act came
into effect
In the event that her first argument was dis
missed, the respondent contended that the 1988
Official Languages Act substantially altered the
applicable rules and gave the appeal board juris
diction to ensure that the language requirements
made by the Department were in accordance with
the provisions of that Act.
The 1988 Official Languages Act is not an
ordinary statute. It reflects both the Constitution
of the country and the social and political compro
mise out of which it arose. To the extent that it is
the exact reflection of the recognition of the offi
cial languages contained in subsections 16(1) and
(3) of the Canadian Charter of Rights and Free
doms, it follows the rules of interpretation of that
Charter as they have been defined by the Supreme
Court of Canada. 6 To the extent also that it is an
extension of the rights and guarantees recognized
in the Charter, and by virtue of its preamble, its
purpose as defined in section 2 and its taking
precedence over other statutes in accordance with
subsection 82(1), it belongs to that privileged cate
gory of quasi-constitutional legislation which
reflects "certain basic goals of our society" and
must be so interpreted "as to advance the broad
policy considerations underlying it."' To the
extent, finally, that it is legislation regarding lan
guage rights, which have assumed the position of
6 R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; R. v.
Therens et al., [1985] I S.C.R. 613; Re B.C. Motor Vehicle
Act, [1985] 2 S.C.R. 486.
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R.
84, at pp. 89-90. See also: Ontario Human Rights Commission
and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R.
536, at p. 547; Canadian National Railway Co. v. Canada
(Canadian Human Rights Commission), [1987] I S.C.R. 1 1 14,
(Continued on next page)
fundamental rights in Canada but are nonetheless
the result of a delicate social and political compro
mise, it requires the courts to exercise caution and
to "pause before they decide to act as instruments
of change", as Beetz J. observed in Société des
Acadiens du Nouveau-Brunswick Inc. et al. v.
Association of Parents for Fairness in Education
et al.: 8
... legal rights as well as language rights belong to the
category of fundamental rights,
Unlike language rights which are based on political compro
mise, legal rights tend to be seminal in nature because they are
rooted in principle.
This essential difference between the two types of rights
dictates a distinct judicial approach with respect to each. More
particularly, the courts should pause before they decide to act
as instruments of change with respect to language rights.
The constitutional entrenchment of language
rights and their quasi-constitutional extension,
qualified by the appeal for caution made to the
courts by the Supreme Court, do not however
imply, in the absence of specific indications to this
effect, an alteration of the powers of 'the courts
which have to interpret and apply these rights.
Just as the Canadian Charter of Rights and Free
doms is not in itself a source of new jurisdictions, 9
so the 1988 Official Languages Act does not
create new jurisdictions other than those, vested in
the Commissioner of Official Languages and the
Federal Court Trial Division, which it creates
expressly. As in the case at bar, the fact that the
Department might be subject to more specific
legal duties than in the past when it comes time to
determine the language requirements of a position
(Continued from previous page)
at p. 1134; Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p.
236; Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, at p. 224; Winnipeg School Division No.
I v. Craton et al., [1985] 2 S.C.R. 150, at p. 156; Insurance
Corporation of British Columbia v. Heerspink et al., [1982] 2
S.C.R. 145, at pp. 157-158.
8 [1986] 1 S.C.R. 549, at p. 578.
9 See supra, note 7, Singh, at p. 222; R. v. Smith, [ 1989] 2
S.C.R. 1120, at pp. 1128-1130; Canada (Attorney General) v.
Vincer, [1988] 1 F.C. 714, at p. 724.
does not mean that an appeal board thereby
acquires a jurisdiction which was heretofore
beyond it. Unless the Act itself contains some
indication that Parliament intended to give an
appeal board a new jurisdiction affecting the
department's managerial rights, the appeal board
will have to resign itself to continuing to perform
the function it has until now exercised, and to
leave to other jurisdictions the responsibility for
deciding whether a department has complied with
the provisions of the 1988 Official Languages Act
in a given case.
The respondent contended that this new juris
diction was conferred on an appeal board as a
consequence, inter alia, of the wording of part six
of the preamble ("with due regard to the principle
of selection of personnel according to merit"),
subsection 39(3) ("Nothing in this section shall be
construed as abrogating or derogating from the
principle of selection of personnel according to
merit") and section 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 per
form the functions for which the staffing action is
undertaken").
I cannot accept this argument. Essentially, these
provisions are but a revised statement of the duty
already imposed by section 40 of the 1969 Official
Languages Act to maintain the principle of selec
tion based on merit. By stating that language
requirements must be imposed "objectively", sec
tion 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, and it
would be vain to seek in it for any new jurisdiction
of any kind for the appeal board, especially as
subsection 77(1) expressly authorizes a complaint
under section 91 to be brought before the Commis
sioner, not the appeal board, and it appears from
section 35 and subsection 39(2) that the depart
ment concerned, not the Public Service Commis
sion, is responsible for ensuring compliance with
the 1988 Official Languages Act in the establish
ment of languages of work.
That is not all. The foregoing provisions indicate
that Parliament has directed its attention to the
matter of selection based on merit. If it had
intended to take the opportunity of giving the
appeal board a new jurisdiction, it would certainly
have done so at the same time as it undertook to
create the new judicial remedy contained in Part
X. It should not be forgotten that while the 1988
Official Languages Act establishes the right of
government officers to use either official language
(section 34), it also establishes the public's right to
be served in either language in accordance with
the provisions of Part IV (section 21). It may be
concluded that the legislature did not think it
advisable to make the appeal board the proper
decision-making authority to determine the respec
tive rights of government officers and the public in
the particularly sensitive area of language of work
and language of service within the federal govern
ment structure. Parliament might well have pre
ferred to make the Commissioner and the judges
responsible for performing this delicate task. To
raise any question as to that preference would be
incautious.
The somewhat irregular jurisdiction of the
appeal board is itself the outcome of a compromise
arrived at by the legislature to accommodate the
respective responsibilities assigned to the Treasury
Board, the department concerned and the Public
Service Commission by the Financial Administra
tion Act [R.S.C., 1985, c. F-11] and by the Public
Service Employment Act. Just as I would hesitate
to diminish it, for fear of putting at risk the
balance which was sought and has probably been
attained, so I would hesitate to augment it in the
absence of any clear invitation to do so by the
legislature. 10
10 See Goodyear Tire and Rubber Company of Canada
Limited v. The T. Eaton Company Limited and Others, [1956]
S.C.R. 610, in which Fauteux J. said the following at p. 614: "a
Legislature is not presumed to depart from the general system
of the law without expressing its intentions to do so with
irresistible clearness, failing which the law remains undis
turbed."
The intervener, the Commissioner of Official
Languages, put forward an additional argument in
response to those of the respondent: he suggested
that under the 1988 Official Languages Act, he
alone has jurisdiction to see that the Act is proper
ly administered. At the hearing, his counsel quali
fied this to say the least bold proposition and
argued that as a consequence of Gariépy (supra,
note 4), and I would add Kelso (supra, note 3),
and in view of the very wording of subsections
77(5) and 78(3), the exclusive jurisdiction claimed
by the Commissioner ousted only the jurisdiction
of "administrative" tribunals and did not preclude
that of "judicial" tribunals. Since I conclude that
the 1988 Official Languages Act has not given the
appeal board the power to decide on the validity or
legality of the language requirements made by a
department, I do not have to decide whether
recourse to the Commissioner pursuant to that Act
is necessarily the only recourse available in terms
of "administrative" tribunals, in every case where
a breach of the 1988 Official Languages Act is
alleged.
CONCLUSION
In seeking to ascertain whether the language
requirements of the position were justified and to
determine whether they were established arbitrari
ly and improperly, contrary to the provisions of the
1988 Official Languages Act, the president of the
Appeal Board considered and decided a matter
that was beyond his jurisdiction. Accordingly, his
finding that there was reason to doubt the merits
of the disputed appointments cannot be upheld.
JUDGMENT
I would allow the application, set aside the
decision of the Appeal Board and refer the matter
back to it to be again decided on the assumption
that it does not have jurisdiction to inquire into the
validity or legality of the language requirements
set by the Department for the position to be filled.
PRATTE J.A.: I agree.
MACGUIGAN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.