Date: 20031120
Docket: A-688-02
Citation: 2003 FCA 436
CORAM: NOËL J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
KEVIN MARCHESSAULT
Appellant
and
CANADA POST CORPORATION
Respondent
Heard by video conference between Ottawa, Saskatoon and Regina, on November 18, 2003.
Judgment delivered at Ottawa, Ontario, on November 20, 2003.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY:
NOËL J.A.
PELLETIER J.A.
Date: 20031120
Docket: A-688-02
Citation: 2003 FCA 436
CORAM: NOËL J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
KEVIN MARCHESSAULT
Appellant
and
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] Every federal institution has a duty to ensure that it can serve any member of the public in either official language at any of its offices, "where there is significant demand for ... services from that office ... in that language": Official Languages Act, R.S. 1985, c. 31 (4th Supp.), paragraph 22(b) ("OLA"). The dispute in this case is about the basis for determining the existence of a "significant demand" for service in the minority official language in a particular location.
[2] Kevin Marchessault applied to the Federal Court to challenge the decision of Canada Post Corporation to classify the position of postmaster at Coderre, Saskatchewan, as "bilingual-imperative". The competition was open from December 1 until December 18, 1992. At that time, Mr. Marchessault was acting as temporary postmaster. However, because he does not speak French, he was ineligible for the permanent position.
[3] Mr. Marchessault complained to the Official Languages Commissioner in 1993 about the classification. The Commissioner found that the proportion of residents for whom French was their first language was sufficient to constitute "significant demand" in accordance with the OLA and the Official Languages (Communications with and Services to the Public) Regulations, P.C. 1991-2541 ("the Regulations"). Accordingly, he dismissed the complaint. In 1999, Mr. Marchessault again complained about the classification and, in a letter dated June 28, 2000, the Commissioner again dismissed the complaint.
[4] Mr. Marchessault, who has represented himself throughout this matter, applied to the Trial Division of the Federal Court for a remedy under subsection 77(1) of the OLA, on the ground that there was no "significant demand" in Corderre for service in French to justify a bilingual classification for the position of postmaster. The Applications Judge dismissed the application: Marchessault. v. Canada Post Corporation, 2002 FCT 1202. Mr. Marchessault now appeals that decision to this Court, which heard the appeal by video conference.
[5] Mr. Marchessault submitted that the Applications Judge erred in deciding the case on the basis that the Regulations prescribing criteria for determining whether there was "significant demand" for service in the minority language did not apply to the Canada Post's classification of the position of postmaster. Mr. Marshessault said that, in all the correspondence that he had had with both Canada Post and the Commissioner of Official Languages, it had been assumed that the Regulations applied and that Canada Post's decision to classify the position as bilingual had been made pursuant to the Regulations.
[6] In my view, the Applications Judge was correct to hold that the Regulations did not apply, because they only came into effect on December 16, 1992. The position of postmaster was advertised on December 1, 1992, and therefore the decision to classify the position as "bilingual-imperative" must have been made on or before December 1, which is, of course, before December 16, the date when the Regulations came into effect.
[7] The fact that there may have been some confusion on the part of Canada Post and the Commissioner about the applicability of the Regulations is not material. Whether the statutory criteria for determining "significant demand" applied to a decision taken on or before December 1, 1992, is question of statutory interpretation that must be decided on the basis of the law, not of officials' perceptions of the law.
[8] Before the Regulations came into effect, federal institutions, including Canada Post, established their own criteria for determining when there was "significant demand" for service in the minority language. A letter from Canada Post to Mr. Marchessault, dated December 29, 1999, stated that those criteria included: "minority language population of 500 or 10% of the total population". Mr. Marchessault conceded that the francophone population of Coderre in 1992 exceeded 10%, and that if "significant demand" could be determined on this criterion, the position of postmaster was correctly classified as bilingual.
[9] This is sufficient to dispose of this appeal. Since the Regulations did not apply, it is unnecessary to consider Mr. Marchessault's contention that, whether the francophone population was 30% or more (the test of "significant demand" in the Regulations), should be determined by reference to the 1986 census, not the 1991 census.
[10] I would add, however, that the reasons of the Applications Judge, and the memorandum of fact and law filed on behalf of Canada Post in this appeal, treat this proceeding as if it were an application for judicial review of a decision by the Commissioner of Official Languages. In my view, an application for a remedy under section 77 of the OLA is a sui generis proceeding in which the Court is asked to determine whether conduct that has been the subject of a complaint to the Commissioner (in this case, Canada Post's bilingual classification of the position of postmaster at Corderre) breached the OLA. Thus, in the context of this case the subject of the application is Canada Post's classification, not the Commissioner's dismissal of the complaint.
[11] Nor do I agree with the suggestion of the Applications Judge that, when the Commissioner investigated Mr. Marchessault's second, but identical, complaint against Canada Post, the Commissioner thereby restarted the limitation period in subsection 77(2) within which a person may apply for a remedy under subsection 77(1).
[12] For these reasons, I would dismiss the appeal without costs.
"John M. Evans"
J.A.
"I agree.
Marc Noël J.A."
"I agree.
J.D.Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-688-02
(APPEAL FROM THE ORDER OF THE TRIAL DIVISION DATED NOVEMBER 22, 2002 ( NO. T-1463-00)
STYLE OF CAUSE: KEVIN MARCHESSAULT v. CANADA POST CORPORATION
PLACE OF HEARING: Ottawa, Regina, Saskatoon
(Via Videoconference)
DATE OF HEARING: November 18, 2003
REASONS FOR JUDGMENT: Evans J.A.
CONCURRED IN BY: Noël J.A.
Pelletier J.A.
DATED: November 20, 2003
APPEARANCES:
SOLICITORS OF RECORD:
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