Rogers v. Canada (Department of National Defence), 2001 FCT 90

Date: 20010216

Docket: T-2712-95

Neutral Citation: 2001 FCT 90

     IN THE MATTER of an application pursuant to Section 77 of the Official

     Languages Act, R.S.C. 1985, c. 31 (4^th Supp.),

     AND IN THE MATTER of a decision of the Official Languages Commissioner

     dated October 24, 1995, concerning a complaint pursuant to Section 91

     of the Official Languages Act.

BETWEEN:

     DON B. ROGERS

     Applicant

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

(as represented by the Department of National Defence)

     Respondent

     REASONS FOR ORDER

NADON J.

[1]      This is an application pursuant to section 77¹ of the Official Languages Act, R.S.C. 1985, c. 31 (4^th Supp.) (the "Act"), following a decision of the Office of the Commissioner of Official Languages dated October 24, 1995 concerning a complaint made by the applicant pursuant to section 91 of the Act.²

[2]      The applicant, who is representing himself, seeks the following relief:

a)      an order setting aside the language profile set by the Department of National Defence ("DND") for the Administration Officer position at the Land Forces Technical Staff Course as "bilingual CCC";

b)      an order setting the language profile of the position as "bilingual CCB";

c)      an order setting aside the staffing mode set by DND for the bilingual position as "imperative";

d)      an order setting the staffing mode for the bilingual position as "non-imperative";

e)      damages, or financial compensation, in the amount of $220,000, or such lesser amount as the Court may deem fair and just; and

f)      costs, including disbursements.

Background

[3]      In June 1994, the applicant was informed that his position at the Royal Military College (the "RMC") in Kingston would be abolished and that he would be declared surplus. As a result of his search for other available positions, he became interested in the position of Administration Officer (the "position") of the Land Forces Technical Staff Course (the "LFTSC") at the RMC. The position, classified as AS-02, was designated as bilingual CCC³ imperative.⁴ Since the applicant had only attained a language profile of EBB (which was subsequently upgraded to ECB), he was precluded from appointment to the position.

[4]      On March 24, 1995, the applicant filed a complaint pursuant to section 91 of the Act with the Office of the Commissioner of Official Languages (the "OCOL"), challenging the CCC linguistic profile as well as the imperative staffing of the position. On October 24, 1995, the OCOL concluded that the language requirements of the position were justified.

The Report of the Office of the Commissioner of Official Languages

[5]      The final report of the OCOL regarding the applicant's complaint is found in a letter dated October 24, 1995 written by David B. Snook, Group Chief of the Investigations Branch of the OCOL. After setting out the requirements for the C level, Mr. Snook states:

In our opinion, the work description for the position of administrative officer, Land Forces Technical Staff Course, implies that the incumbent should have these [CCC] skills.

For example, the administrative officer must liaise with internal and external agencies and institutions, both English and French speaking; communicate orally and in writing with visitors and guest speakers; conduct audits concerning complaints made by staff and students; and supervise the course material for students in English and in French. Such responsibilities, in our view, require a knowledge of both official languages at the C level in the three skills.

In addition, it is important that RMC Kingston, which is to be the only military college in Canada, develop a good bilingual capacity at all levels.

[6]      As for the imperative staffing mode⁵, Mr. Snook writes the following:

The first two criteria do not apply in the present case because it is a position to be staffed on an indeterminate basis beginning at the end of August 1995 and because it does not involve technical or specialized language use.

However, during our investigation, the managers emphasized that it was a position indispensable for providing service in both official languages beginning in September 1995 upon the arrival of Francophone cadets, professors and staff members from CMR Saint-Jean, and because of its operational impact by virtue of the incumbent's responsibilities for communication in both official languages. Since the position is a point of contact with the public, the cadets and the employees of RMC, and because the incumbent must liaise with both English-speaking and French-speaking internal and external agencies and institutions and communicate orally and in writing with visitors and guest speakers, the decision to staff this position imperatively was justified.

In the result, the OCOL concluded that the language requirements of the position were justified and closed its file.

Applicant's Submissions

[7]      The applicant's Memorandum of Fact and Law consists of 50 single-spaced pages and of 182 paragraphs. In support of his arguments, the applicant submitted in evidence six affidavits (he is the deponent in five of the six affidavits) as well as the transcripts of his cross-examinations of the respondent's witnesses on their affidavits. I will now briefly summarize the applicant's submissions.

[8]      The applicant's submissions are to the effect that the language requirements of bilingual CCC imperative set for the position are not objectively required to perform the duties involved. The first issue raised by the applicant relates to the investigation and report of the OCOL. According to the applicant, the OCOL investigator who conducted the investigation telephoned him on June 26, 1995 and informed him of his finding that the position should have been designated by DND as CCC non-imperative. However, the OCOL's final report upheld the bilingual CCC imperative designation. The applicant contests the fact that the investigator was "overruled by his superiors" and that the final report was not signed by the investigator who had conducted the on-site interviews, but by a manager at the OCOL who had no direct involvement with the on-site investigation.

[9]      Moreover, the applicant contends that the OCOL's final report is based on incorrect facts, and therefore carries very little credibility. The applicant provides two examples of factual errors, and argues that those errors show that the OCOL's conclusion was unduly influenced by the erroneous factual beliefs of the OCOL managers. The applicant believes that the OCOL issued a factually flawed report. He submits that the OCOL's final report is so patently superficial and so seriously flawed that it should carry little weight.

[10]      The second issue raised by the applicant deals with the oral language requirements of the position. Essentially, the applicant reviews the Position Analysis Schedule (the "PAS")⁶ for the position, and analyses each section of the PAS to determine if the requirement for both official languages is mentioned. He contends that the omission of mention of both official languages in PART I - SUMMARY of the PAS (which summarizes the responsibilities of the position) is significant. With respect to PART II - DUTIES, he reviews the seven duty headings, as well as the tasks listed under each duty, and concludes that the sum of the tasks requiring both official languages is only 2 out of a total of 41 tasks. Therefore, the applicant claims that the percentage of the position's time which requires both official languages is minimal (4.3% according to his calculation).

[11]      In PART III - FACTOR SPECIFICATIONS, no mention is made of a requirement for both official languages, compared to other LFTSC positions. The applicant refers to (at p. 744 of his Record) a comparative table of the official languages requirements for four LFTSC civilian positions, which in his view shows that there is a very minor requirement for both official languages for the position compared to the others. With regard to the oral components of the tasks of the position, the applicant claims that few of the 41 tasks in the PAS involve oral communication. He submits that of the 4.3% of the position's time taken to perform the two tasks which the position's PAS specifies as requiring the use of both official languages, the oral component of those two tasks accounts for only one-half of that percentage, which is an insignificant fraction of the position.

[12]      The third issue raised by the applicant relates to the staffing mode of the position. The applicant claims that the manager who made the decision that the position be staffed on an imperative basis incorrectly changed the staffing mode requirement from non-imperative to imperative on June 17, 1994. The applicant also contends that in making his decision regarding the staffing mode, the manager relied on an outdated 1981 document ("Treasury Board / Public Service Commission Policy on Staffing Bilingual Positions, TBS/PSC 1981-29") instead of looking at the more recent policy document dated June 1993 (Treasury Board Manual Chapter 4-2: "Staffing of Bilingual Positions"), which was significantly different. According to the applicant, a crucial difference between the two documents is their treatment of the non-imperative staffing option which is open to management. The 1981 document makes virtually no mention of the non-imperative option, whereas the 1993 document discusses more extensively the use of non-imperative staffing. The applicant submits that the failure of the manager, LCol Green, to rely on a current, updated policy document is a serious omission which caused him to make his decision without complete information, and hence without objectivity, contrary to section 91 of the Act.

[13]      The applicant also reviews the four criteria for imperative staffing which are discussed in the OCOL's final report. With regard to the third criteria, the applicant contends that a position in respect of which the work description indicates that only 4.3% of the position's time will be devoted to tasks requiring both official languages, cannot possibly be an indispensable bilingual position. In addition, the applicant claims that the position is not the only point of contact nor an important point of contact for providing service to the public or employees in both official languages. Being a point of contact is not a sufficient reason for staffing a bilingual position on an imperative basis; the position must be the only or an important point of contact. With respect to the fourth criteria, the applicant argues that it is hard to imagine that any position which is devoted to tasks requiring both official languages only 4.3% of the time could have a significant and immediate impact on the organization's activities.

    

[14]      The applicant also submits that alternate administrative arrangements were available to LFTSC management in order to provide services in both official languages while an Administration Officer appointed on a non-imperative basis underwent language training. He also claims that the LFTSC did function effectively in the past without a bilingual Administration Officer through the use of alternate arrangements, and that no complaints were made about the quality of bilingual services during that time. The applicant therefore argues that the position did not meet Treasury Board criteria for imperative staffing, and that even if it did meet the criteria, the LFTSC would clearly have been able to meet its service language obligations under the Act through alternate administrative arrangements while the Administration Officer underwent language training.

[15]      The fourth issue raised by the applicant is that improper, incorrect, and/or incomplete procedures were used in determining the language profile of the position. He contends first that the LFTSC failed to document, at the relevant time, the rationale behind management's decisions regarding the linguistic profile of the position. The applicant submits that the Treasury Board advised management of the importance of documenting the rationale for the decisions taken, but that this was not done in this case. The applicant therefore suggests that the affidavit evidence adduced by the respondent consists of retroactive justification from memory of the decisions taken, and that such evidence should be given little weight.

[16]      The applicant also contends that when the managers recorded their language determination for the position on the Official Languages Input Form - Position Data ("OLIF"), they left blank Box 18 of the form, which must normally be completed if the manager has determined that the position must be staffed on an imperative basis. Therefore, the applicant claims that by leaving Box 18 blank, the management indicated a decision to staff the position on a non-imperative basis. Under cross-examination, the respondent's witnesses acknowledged that they deliberately chose to leave Box 18 empty, which, in their view, was common practice. The applicant refers to a report by the OCOL in a matter where he made a complaint against Correctional Services Canada⁷. In that matter, Box 18 of the OLIF had also been left blank and, as a result, the OCOL concluded that the decision not to fill out Box 18 was a clear indication that Correctional Services Canada was not committed to the imperative staffing mode. The applicant therefore contends that in view of the lack of documentation at the time of management's decision, the position must have been designated as non-imperative and that such designation remained in effect until another OLIF form for the position was created in 1996.

[17]      The last issue raised by the applicant is the lack of objectivity in modifying the position's language requirements from non-imperative to imperative. The applicant claims that in March 1994, management signed the OLIF form for the position, which was designated bilingual, CCC and non-imperative (because Box 18 was left blank). Then, in June 1994, without creating a new PAS and a new revised OLIF, and without supporting documentation of any rationale, management issued a Statement of Qualifications (the "SOQ") for staffing the position as CCC imperative contrary to the signed and approved OLIF for the position. The applicant argues that because the duties of the position had not changed and a revised PAS and OLIF had not been created, the language requirements of the position continued to be CCC non-imperative and, therefore, the applicant should have been eligible for priority appointment to the position. The SOQ itself, without a supporting revised OLIF and PAS, did not change the official language requirement of the position as specified on the original OLIF which remained in force.

[18]      Finally, the applicant argues that the decision to abolish the position he held at the RMC was made 11 days before the SOQ modified the language requirements of the position. He submits that the LFTSC passed him over and hired unilingual-English staff on a temporary basis to perform the tasks of the Administration Officer, not because of his language qualifications, but because they had received information which was not very favourable to him. The applicant contends that the Act was used as a screen to hide the true reason for not appointing him to the position, therefore constituting an abuse of the Act.

Respondent's Submissions

[19]      The respondent's general submission is that the duties of the position required the Administration Officer to discuss complex policies and sensitive issues, and that those duties objectively required a C level for oral interaction in both official languages. In addition, the respondent argues that the position is indispensable to the LFTSC, and has a significant impact on the Course's activities. Therefore, according to the respondent, imperative staffing is objectively required.

[20]      The respondent begins by reviewing the constitutional protection given to minority rights, as well as the purpose of the Act, before discussing the test under section 91 of the Act. The respondent submits that the purpose of section 91 is to establish that language requirements cannot be imposed frivolously or arbitrarily (A.G. Canada v. Viola, [1991] 1 F.C. 373 (C.A.)). The respondent contends that this purpose imposes a heavy burden on the applicant, and that the test that must be met by him to be successful is more demanding than the test used on applications for judicial review (Professional Institute of the Public Service v. R., [1993] 2 F.C. 90 (T.D.)). According to the respondent, the applicant, in order to succeed, must demonstrate that the decision to fix at C the level of linguistic proficiency for oral interaction and the decision to staff the position on an imperative basis are so outrageous in their defiance of logic "that no sensible person who had applied his mind to the question to be decided could have arrived at it" (Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 375 (H.L.); Canada (A.G.) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941).

[21]      The respondent submits that the evidence demonstrates that the linguistic requirements adopted for the position were objectively required by the duties to be performed by the Administration Officer. The respondent suggests that the applicant, rather than concentrating on the minutia of staffing in the Public Service, should have concentrated on challenging the substance of the case, i.e., what the duties of the position entailed. The respondent contends that the procedural sins which the applicant reproaches LCol Green do not affect the substance of his testimony, which is that he established the requirements of the position after consultation with specialists in staffing and in official languages, and that he considered the alternative means of providing the services in the absence of a fully bilingual incumbent, but found these alternatives wanting. In addition, the respondent submits that the applicant's calculations belittle the constitutional nature of the public's right to be served in the official language of its choice. Whether the services requested constitute a significant proportion of the duties of the public servant providing these services is immaterial. For purposes of this review, it is sufficient that the duties of the position include the provision of services in both official languages.

[22]      With respect to the absence of a check mark in Box 18 of the OLIF, the respondent contends that it is immaterial to the issue, and that this defect in form does not translate into a defect of substance. The SOQ used to staff the position clearly identified that it was to be staffed as a bilingual imperative position. The managers involved, the personnel officer responsible for the staffing process and the candidates were all aware of this requirement. The respondent submits that this oversight is not material.

Analysis

[23]      This is an application under section 91 of the Act, which requires that the official language requirements for a particular staffing action be objectively required to perform the functions for which the staffing action is undertaken.

[24]      There have been very few cases concerning section 91 applications. Thus, there is not much guidance with respect to the approach this Court should take. In Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.), the Court of Appeal made the following remarks concerning section 91 at page 388:

[...] By stating that language requirements must be imposed "objectively", s. 91 expressly confirms what has always been implicit, namely that language requirements cannot be imposed frivolously or arbitrarily.

[25]      Two years later, in Professional Institute of the Public Service v. Canada, [1993] 2 F.C. 90, the Trial Division of this Court further discussed the scope of an application made under section 91. In that case, the applicant was seeking to set aside a decision made by the respondent to staff a position in a Revenue Canada office on a bilingual imperative basis on the ground that the language requirements were not objectively required and thus contravened s. 91 of the Act. Joyal J., after reviewing the official languages principles established in the Constitution, the Canadian Charter of Rights and Freedoms and the Act, made the following comments, at page 106, regarding the burden which falls upon an applicant under section 91:

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. [...]

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.

[26]      With respect to the question as to when the Court should intervene in a decision to staff a position requiring particular linguistic requirements, Joyal J. concluded, at page 114, that:

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 narrow scope of review would only lead to obfuscation or semantic confusion.

[27]      I agree entirely with Joyal J.'s remarks. Therefore, it appears that in order to modify the linguistic requirements of a position, this Court must find that there is no evidentiary basis to the designation, that the designation is unreasonable, or that the language requirements are imposed frivolously or arbitrarily. If there is a factual basis for the designation, the Court should not intervene.

[28]      It is also clear, in my view, that this Court can only make a determination with regard to the objectivity of the requirements and the manner in which the decision to impose those requirements was taken. This Court should not consider whether the applicant was unjustly treated by his employer, whether he was disliked or liked by his colleagues, whether he was denied the position for reasons other than the language requirements, whether his level of French is good, whether his previous employer was satisfied with his performance, how other positions are designated, how the interview process for the position is conducted or any technical administrative matters or errors relating to the staffing of the position. The only relevant issue, in my view, is whether or not the position objectively requires the linguistic requirements which were designated.

[29]      For this reason, a substantial portion of the evidence adduced by the applicant, the purpose of which was to demonstrate many of the matters I have just alluded to, as well as a substantial portion of his submissions are not, in my view, germane to the issue which I must determine. If the applicant believes that he was unjustly treated by his employer or that he is being denied the position for reasons other than the linguistic requirements, he should raise these issues before a different forum. This Court, under section 91, is restricted to determining the objectivity of the language requirements. I will therefore discuss the language requirements only and leave aside the applicant's arguments which concern his personal situation.

     The Position and its Context:

[30]      The summary of the Position Analysis Schedule (PAS) describes the duties and tasks related to the position in the following terms:

Under the general direction of the Course Director of the Land Force Technical Staff Course (LFTSC), and in close cooperation with the Director of Administration, and LFTSC instructional staff, provides general administrative, logistics and financial services for the course, overall coordination of the course schedule, organization of visits and guest lecturers, control of course documentation, supervision of the administrative staff, and routine functioning of the course facility. This position is responsible for much of the outgoing routine correspondence of the LFTSC.

[31]      The above duties and tasks are discussed by Col R.L. Aitken in his affidavit dated September 5, 1996. At the relevant time, i.e. from June 1994 to July 1996, Col Aitken was the director of the LFTSC, which position he left in July 1996 to take the position of Base Commander, Canadian Forces Base ("CFB") Kingston. According to Col Aitken, the Administration Officer is the focal point in the provision of general administrative support services to the Department's staff and to students of the Course. In addition, the Administration Officer is responsible for initiating and coordinating visits to external agencies, making contact with and hosting of guest lecturers, from DND staffs, research agencies and industry. These external agencies and guest lecturers are of both official languages. The Administration Officer is also responsible for meeting the administrative needs of students, for providing financial services to the Departments by liaising with CFB Kingston on financial matters, for preparing the budget, for liaison work with instructional staff in the production and publication of course material and must assist in controlling course material.

[32]      At paragraph 12 of his affidavit, Col Aitken states that one third of the students in the Course beginning September 1996 were francophone (6 out of 18). LCol Guy E. Green, project manager for the LFTSC, responsible for the language designation, also makes the same statement in his affidavit dated September 3, 1996. Col Aitken attributes the influx of francophone students and the increase in bilingual requirements at RMC Kingston to the closure of Collège militaire royal in Saint-Jean, Quebec.

     Linguistic Profile: Bilingual CCC:

[33]      The position received a linguistic profile of bilingual CCC. The applicant contests only the oral component of the profile. According to a document published by the Public Service Commission of Canada entitled "Determining the Linguistic Profile for Bilingual Positions", the following are the characteristics of a level C profile for oral interaction (p. 6 of the document):

Level C is the minimum level of second language ability in oral interaction that should be identified for positions which require handling sensitive situations where the understanding and expression of subtle, abstract, or complicated ideas is required or where unfamiliar work-related topics must be dealt with. A person at this level can support opinions or understand and express hypothetical and conditional ideas. However, the ease and fluency of a native speaker is not required or expected. There may be errors and deficiencies in pronunciation, grammar, vocabulary but such errors rarely interfere with communication. Examples of some tasks which can be performed at level C of oral interaction are as follows:

-- giving and understanding explanations and descriptions which may involve complicated details, hypothetical questions or complex and abstract ideas;

-- giving and understanding detailed accounts of events, actions taken, or procedures to be followed;

-- discussing or explaining policies, procedures, regulations, programs and services relating to an area of work;

-- participating effectively in discussions which involve the rapid exchange of ideas;

-- supporting opinions, defending a point of view, or justifying actions in meetings or discussions with employees, colleagues or superiors;

-- counselling and giving advice to employees or clients on sensitive or complex issues;

-- participating in selection boards;

-- making presentations, giving training courses or defending appeals; and

-- dealing with situations which require quick and accurate use of both languages in rapid succession (such as those faced by a receptionist in a busy office).

[34]      At paragraph 33 of his affidavit, LCol Green states that he was and still is of the opinion that the incumbent of the position must be capable of oral interaction in his or her second language at level C, because of the level of service that the Administration Officer must provide to the public, to other employees and to students of the Course. Considering the duties of the Administration Officer and the number of francophone students enrolled in the Course, I am satisfied that a level C profile for oral interaction is not frivolous or arbitrarily imposed. Further, the DUTIES section of the PAS for the position provides that the position involves liaison with internal and external agencies in both official languages and supervising the establishment and maintenance of electronic masters of all student course material in both official languages. In my opinion, it is not unreasonable, but on the contrary quite reasonable, to require a level C profile for oral interaction to perform those tasks.

[35]      In his Memorandum, the applicant calculates that the tasks involving both official languages only constitute 4.3% of the total tasks of the position, because the use of both official languages is only mentioned in connection with the two tasks discussed in the preceding paragraph. In my opinion, the necessity for both official languages cannot be calculated or evaluated in such a manner. Because of the contact with students and external agencies, the use of French may not be restricted to those two tasks. In addition, even if both languages are required only for those two tasks, the quality of the language has to be appropriate.

     Imperative Staffing Mode:

[36]      The position sought by the applicant was designated as requiring imperative bilingual staffing. As a result, the incumbent must satisfy the language requirements before beginning his or her functions.

[37]      According to the guidelines established by the Treasury Board in its 1993 Manual on Official Languages, in Chapter 4-2: "Staffing of Bilingual Positions", there are four criteria governing the use of imperative staffing. The first two criteria, which do not apply in this case, govern when imperative staffing MUST be used (appointments or deployments to a bilingual position for a specific period and appointments or deployments to a bilingual position requiring technical or specialized language use). The other criteria govern when imperative staffing MUST NORMALLY be used (p. 3 of the document):

2.3 Imperative staffing must normally be used for appointments or deployments to indispensable bilingual positions for providing service to the public or to employees in both official languages. An example of an indispensable bilingual position is one that is the only point of contact or an important point of contact required to provide service to the public or to employees in both official languages under the provisions of Part IV and V of the Official Languages Act and its pursuant regulations.

2.4 Imperative staffing must normally be used for appointments or deployments to bilingual positions having significant operational impact. Such a bilingual position must have an immediate and significant impact on the organization's activities or projects. The appointment or deployment of a candidate who meets the language requirements of this position will ensure that the duties are carried out effectively and the linguistic obligations are met.

[38]      The issue in this case is whether the position falls within the last two criteria and therefore requires imperative staffing. In his affidavit, Col Aitken states that the position should be staffed by a candidate satisfying the language requirements and that, based on his experience, having the other support staff perform the Administration Officer's tasks would not be acceptable. Col Aikten is of the view that the ability of the Department to offer its services in French is directly dependant on the physical presence in the office of a bilingual AS-02 employee. As for LCol Green, he states in his affidavit that he considered alternate methods of providing services in both official languages, but was not satisfied that any alternate method would enable the Department to live up to its linguistic obligations. In LCol Green's opinion, imperative staffing was necessary because the Department had an immediate need for bilingualism.

[39]      In my opinion, LCol Green's decision appears factually based. It does not strike me as being frivolous or arbitrary. It is not unreasonable to characterize the position as being an important point of contact with the public (external organizations and speakers) or with employees, and in this case, also students, including the francophone students.

[40]      In his submissions, the applicant emphasized the fact that the original investigator, Gaétan Sansfaçon, was of the opinion that the imperative designation was not justified. The investigator seems to have concluded that because the position was filled with a unilingual anglophone employee for some time, it did not require imperative staffing. However, as I have already indicated, the investigator was overruled by his supervisors. Why the investigator was overruled by his supervisors is not, in my view, relevant for the present determination. The fact of the matter is that the OCOL concluded that the language requirements for the position were justified. In my view, that determination was a correct one. I am obviously not bound by the OCOL's determination⁸, but on the evidence before me, I agree with the conclusion reached by the OCOL. With respect to the investigator's conclusion regarding the filling of the position, on a temporary basis, by a unilingual employee, I have read and accept the evidence of Col Aitken where, at paragraphs 26, 27 and 28 of his affidavit, he responds to the applicant's contention on this point. Briefly put, Col Aitken's evidence is to the effect that the position was not filled, on a temporary basis, by a unilingual employee. A number of persons were hired, on a short-term basis, to perform various tasks. The hiring of these persons cannot, in my view, be advanced for the proposition that the CCC imperative designation was not objectively justified.

[41]      The applicant also emphasized the fact that there was no documentation explaining the reasons why the imperative designation was required. A document published by the Treasury Board of Canada, entitled "Section 91 of the Official Languages Act and Hiring Practices: Ensuring that the "objectivity" requirement is met", mentions that the rationale for decisions to impose imperative staffing taken at each stage of the process should be documented with particular care (p. 6 of document). In addition, the Civil Personnel Administrative Order ("CPAO") 4.23, published by DND, entitled "Language requirements of civilian positions", states the following (p. 6 of document):

15.      Managers must be prepared to support, with documentation, their objectivity in setting the language requirements and profiles of positions.

[42]      When cross-examined on their affidavits, Col Aitken and LCol Green admitted that the rationale for the imperative bilingual designation was not documented.⁹ It would certainly have been preferable to establish the objectivity of the decision, considering the fact that Box 18 of the OLIF form for the position was not checked to indicate that the position required imperative staffing. In my opinion, the fact that Box 18 was not checked is, the circumstances of this case, simply an administrative omission. Consequently, I am not prepared to make a finding that behind the omission lies an ulterior motive, i.e. a means of preventing the applicant from applying and perhaps obtaining the position. On the evidence, it is clear that even if the applicant had met the language requirements, he nonetheless would not have been considered for the position. Col Aitken did not consider the applicant to be a suitable candidate for the position. I therefore have great difficulty believing that Col Aitken and LCol Green would have arbitrarily raised the language requirements for the sole purpose of excluding the applicant.

Conclusion

[43]      I am therefore of the opinion that the language requirements herein were objectively required to perform the duties and tasks for which the staffing action was undertaken, in conformity with s. 91 of the Act. I have not been persuaded that the language requirements were frivolously or arbitrarily imposed, or lacked factual basis. Consequently, I see no basis for intervention in the present matter and, as a result, this application will be dismissed, with costs in favour of the respondent.

     Marc Nadon

     Judge

OTTAWA, Ontario

February 16, 2001.

__________________

¹      Subsections 77 (1) and (4) of the Act read as follows:77. (1) Any person who has made a complaint to the Commissioner 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.
(2) 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.

²      Section 91 of the Act states the following: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.

³      The linguistic profile is composed of three categories: Reading, Writing and Oral Interaction. For each category, a letter (A, B, C or E) will be attributed to denote the level of proficiency of an individual. An A represents the lowest level and a C, the highest. An E (for "exemption") will be attributed to individuals of level C who have demonstrated a superior performance such that it is no longer necessary to evaluate their skills in a particular category.

⁴      Imperative bilingual staffing requires that the candidate meet the language requirements of the position immediately, i.e. upon appointment. Non-imperative bilingual staffing allows the position to be filled by a candidate who later undertakes language training in order to meet the position's language requirements.

⁵      According to Chapter 4-2 of the Treasury Board Manual - Official Languages Module, the imperative staffing method must be used:      1)      for appointments or deployments to a bilingual position for a specific period;      2)      for a bilingual position requiring technical or specialized language use;      3)      for a bilingual position indispensable for providing service to the public or to employees in both official languages;      4)      for a position having significant operational impact.

⁶      The PAS is the document which officially describes the duties and tasks of a civilian position in DND.

⁷      In File T-195-97, the applicant brought an application similar to the one before me, contesting the language designation for a position with Correctional Services Canada. On January 26, 2001, Madam Justice Heneghan issued her Order and Reasons for Order whereby she concluded in favour of the applicant.

⁸      In T-195-97, Heneghan J., as I have already indicated (see footnote 7) ruled in favour of the applicant. At p. 20 of her Reasons, paragraph 60, she makes the following remarks:      [60] In my opinion, the nature of the Act as quasi-constitutional legislation means that a report of the Commissioner, after the conduct of an investigation, can be accepted as evidence that a breach of the Act has occurred. The findings and conclusion of the Commission were not seriously challenged by the Respondent. Accordingly, I confirm the findings of the Commission that the staffing mode for the position in question should have been bilingual non-imperative, with a linguistic profile of CBC. Further, I find that the improper designation for the position breached the Applicant's language rights.I simply wish to state that I cannot agree with Heneghan J.'s conclusion that the OCOL's report "can be accepted as evidence that a breach of the Act has occurred". In my view, it is up to this Court to decide, on the evidence, whether there has been a breach of the Act. The answer to that question cannot be given on the basis of the OCOL's report and conclusion. The conclusion that a breach of the Act has occurred, in any given case, must be reached after the judge has heard and weighed the evidence advanced by both parties.

⁹      The questions and answers on that issue can be found in the Applicant's Record at Tab 8, p. 289, Q. 106 and at Tab 9, p. 331, Q. 116-121; p. 355, Q 217 and p. 393, Q. 372.