Schreiber v. Canada
T-1770-94
McGillis J.
21/10/99
61 pp.
Action for declaration plaintiff's rights breached on basis not allowed to continue working operationally in his position as air traffic controller following introduction of bilingual services at Ottawa Control Tower to comply with obligations under Official Languages Act-Bilingual air traffic control services meaning pilot chooses language to be used in air traffic communications-In 1986, in order to ensure safety, Department of Transport decided to make bilingualism in official languages condition of employment as air traffic controller at Ottawa Control Tower, and changed linguistic profiles of existing positions from English essential to bilingual-Language Training Branch of Public Service Commission determined plaintiff did not possess potential to meet language requirements of position-Plaintiff's transfer request denied due to necessity in order to enable normal operations to continue at Ottawa Control Tower-After private language training at Berlitz Language Centre, paid for by Department, and Public Service Commission language training, during which plaintiff in non-operational status, after having been given more than maximum number of hours permitted by Treasury Board to attain C level, plaintiff finally met language requirements for position as air traffic controller-Issue whether rights under Public Service Official Languages Exclusion Approval Order breached-Action dismissed-Public Service Employment Act, s. 20 requiring employees in public service to be qualified in knowledge and use of English or French or both languages to extent Public Service Commission deems necessary-Measures taken to assist unilingual incumbent of indeterminate position in which language requirements changed to require bilingualism: Exclusion Approval Order permitting exclusion of certain employees in public service from language requirements of their positions-Kelso v. The Queen, [1981] 1 S.C.R. 199 determined air traffic controller in Montréal entitled, by virtue of Exclusion Approval Order, to remain in his position even though did not meet language requirements thereof-However, given constitutional entrenchment of language rights in Charter, ss. 16(1), 20(1), amendments to Official Languages Act and recent guidance from Supreme Court of Canada in Beaulac v. The Queen, [1999] 1 S.C.R. 768, concerning principles to be applied in interpreting scope, application of language rights, decision of Dickson J. in Kelso not determinative of whether plaintiff entitled, in today's constitutional and legislative framework, to declaration rights breached-Language rights entrenched in Charter, ss. 16(1), 20(1) and Official Languages Act, ss. 21 (right to communicate with and receive services from federal institution), 34 (English and French languages of work in all federal institutions, with employees having right to use either) engaged in present proceeding-Corresponding duties imposed on federal institutions in Official Languages Act, ss. 22, 35, 36 also relevant-Applying purposive approach adopted in Beaulac, and in view of Official Languages Act, s. 2, principle of substantive equality has meaning, and provides that institutionally based language rights require government action for their implementation and therefore create obligations for State-Official Languages Act, ss. 22, 35, 36 respectively require federal institution to ensure member of public can communicate with it and receive available services from it in either official language within National Capital Region and other prescribed areas, and that it provide work environments conducive to effective use of both official languages-In present case, given integrated nature of air traffic control operations and importance of all controllers being aware of level of activity and events transpiring in area, Department chose to comply with its statutory duties, obligations under Official Languages Act to give effect to language rights in ss. 21, 34 by implementing fully bilingual work environment for safe, effective delivery of bilingual air traffic control services-Department also believed fully bilingual work environment necessary to foster cohesiveness in group effort required in complex air traffic control environment, and that presence of unilingual air traffic controller would force everyone to operate in his language, thereby frustrating its goal-Fully bilingual work environment also consistent, on long-term basis, with Department's high safety requirements for provision of air traffic control services-Facts herein establish inconsistency between constitutionally based language rights, corresponding duties imposed on Department in Official Languages Act and Exclusion Approval Order right excluding plaintiff from requirement of bilingualism-By virtue of Official Languages Act, s. 82, provisions of Part IV, V, respectively involving communications with, services to public and language of work, prevail to extent of inconsistency-Plaintiff therefore not entitled to rely on Exclusion Approval Order to exclude him from operation of bilingual requirements in Public Service Employment Act, s. 20-Therefore, plaintiff not entitled to work operationally in his position as air traffic controller at Ottawa Control Tower following implementation of bilingual air traffic control services, until such time as met language requirements of position-However, Department should have permitted him to transfer or to perform other meaningful work consistent with training, expertise-Official Languages Act, R.S.C. 1970, c. O-2-Official Languages Act, R.S.C., 1985, c. O-3-Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 2, 21, 22, 31, 34, 35, 36, 82, Parts IV, V-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 20-Public Service Official Languages Exclusion Approval Order, SOR/81-787-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(1), 20(1).