Schreiber v. Canada, docket T-1770-94

    

     Date : 19991021

     Docket: T-1770-94

BETWEEN:

     THOMAS GEORGE SCHREIBER

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     Defendant

     REASONS FOR JUDGMENT

McGILLIS J.

INTRODUCTION

[1]      In 1992, the Department of Transport ("Department") implemented bilingual air traffic services at the Ottawa Control Tower in order to comply with its obligations under the Official Languages Act, R.S.C. 1985 (4^th Supp.), c. 31. The plaintiff Thomas George Schreiber, who was a unilingual anglophone at that time, was not permitted to continue working operationally in his position as an air traffic controller. In this action, he seeks, among other things, a declaration that his rights were breached on the basis that he was not allowed to work in his position following the introduction of bilingual services.

FACTS

[2]      In early 1975, a controversy arose concerning the introduction and use of the French language in air traffic control services in the province of Quebec. The federal government appointed a Commission of Inquiry, and the Department of Transport ("Department") conducted a full simulation study in the Montreal area to determine the feasibility of providing safe bilingual air traffic control services. As a result of its study, the Department concluded that bilingual air traffic control services could be provided safely. Central to its conclusion was the requirement that all air traffic controllers working in a facility offering bilingual air traffic control services had to be bilingual and had to undergo testing in French phraseology and lexicon. Furthermore, each controller in such a facility had to complete simulation training in a bilingual environment to ensure the requisite knowledge of newly developed procedures. Finally, the air traffic control services in both official languages were to be provided to pilots on one common frequency. The Department submitted its study to the Commission of Inquiry and made recommendations, consistent with the conclusions in its study, for the implementation of bilingual air traffic control services in Quebec.

[3]      In early 1978, the Commission of Inquiry concluded in its report to Parliament that the procedures developed and recommended by the Department constituted a safe approach and that the introduction of bilingual air traffic control services would not diminish the safety or integrity of the system.

[4]      At the end of 1978, the Department began the introduction of bilingual air traffic control services on one frequency in Quebec.

[5]      On July 9, 1983, a few years after his graduation from high school, Mr. Schreiber was appointed to an indeterminate position as an air traffic controller at the Ottawa Control Tower in the Air Traffic Services Branch of the Department. Mr. Schreiber's licence as an air traffic controller contained a specific "airport rating endorsement", permitting him to work only at the Ottawa Control Tower. Like all air traffic controllers, Mr. Schreiber was unable to work at any other control tower unless he took further training and met the "check-out standards" at the other location. At the time of his appointment, Mr. Schreiber spoke no French and had received minimal education in French in high school. The language requirement for his position was "English essential".

[6]      In the mid-1980's, the Department began to consider the implementation of bilingual air traffic control services at the Ottawa Control Tower, in the National Capital Region, in order to comply with the Official Languages Act, R.S.C. 1985, c. O-3. An examination of the human resource situation revealed that the implementation of bilingual services could not be effected "overnight" at the Ottawa Control Tower, as the vast majority of the air traffic controllers had no command of the French language. As such, the Department decided that it would have to use a different approach than that which it used in Quebec in order to achieve the earliest possible implementation of bilingual services in a manner consistent with the overriding principle of safety.

[7]      To understand the situation facing the Department in relation to the implementation of bilingual air traffic control services in the Ottawa Control Tower, it is necessary to describe briefly the operations of air traffic services in the National Capital Region.

[8]      The purpose of the air traffic control system is to prevent mid-air collisions between aircraft, as well as collisions on the ground between aircraft or aircraft and other vehicles. Air traffic control services are provided at the Macdonald-Cartier Airport in Ottawa in a complex located across the field from the main passenger terminal. There is a freestanding control tower, known as the Ottawa Control Tower, as well as, among other things, a research centre and offices. The Terminal Control Unit, which is a "pure radar environment", is in the basement of the complex. Both the Ottawa Control Tower and the Terminal Control Unit are staffed by air traffic controllers, but their functions are very different and not interchangeable. In other words, an air traffic controller licenced to work at the Ottawa Control Tower is not licenced to perform duties at the Terminal Control Unit, without further training, and vice versa.

[9]      Air traffic controllers at the Ottawa Control Tower work in three positions: clearance delivery, ground control and tower control. There is also a supervisor. The controllers perform different functions at each of the positions. For the purposes of the present case, reference need be made only briefly to the duties performed by controllers in relation to aircraft flying by instrument flight rules, namely 99.9% of all commercial aircraft.

[10]      The controller working at clearance delivery is responsible for conveying the flight plan routing information to aircraft departing from Ottawa. The computer generates a strip of paper showing the aircraft identification and its planned route upon departure. The controller at clearance delivery takes the strip of paper and reads the information on it to the pilot of the aircraft. The pilot reads it back to the controller and confirms that it corresponds exactly to the filed flight plan. The controller then reads a clearance to the pilot, who in turn reads it back. If the information read back by the pilot is correct, the controller acknowledges it, writes a number on the strip, and tells the pilot to communicate with the ground controller. The controller at clearance delivery gives the strip to the controller at ground control. A pilot typically communicates with clearance delivery 15 to 30 minutes before the scheduled time of departure. At the time of the communication, the aircraft is immobile at the ramp in front of the terminal.

[11]      The air traffic controller at ground control is responsible for giving instructions to any aircraft, vehicle or person moving on any active or non-active runway or on taxiways leading to a ramp or a runway. The ground controller has the strip from the clearance delivery controller as well as a computer screen showing the aircraft. Prior to taxiing the aircraft, the pilot calls the ground controller who issues instructions to taxi. As the aircraft starts to taxi, the ground controller hands the strip to the tower controller beside him and indicates on his computer that the aircraft has taxi instructions and has started to move. Any aircraft departing from the airport would leave the responsibility of the ground controller and would be assumed by the tower controller.

[12]      The tower controller establishes communication with the pilot and advises that he will provide further instructions in due course. The controller at the tower control position is responsible for any aircraft in the control airspace of the Ottawa Control Tower and for any landings at the airport. In providing clearance for take-off, the tower controller instructs the pilot to call the Terminal Control Unit when airborne. He also "hands the aircraft off" to the Terminal Control Unit by calling downstairs on a "hotline". The departing aircraft is shown on the computer screen in the Terminal Control Unit. From that point on, the controller in the Terminal Control Unit has the aircraft in his control, issues instructions to it to proceed on its course and ensures that there is no conflict between it and any other aircraft. The Terminal Control Unit is responsible for maintaining a three mile "bubble of protection" around the aircraft during its flight.

[13]      The supervisor oversees the operations of the Ottawa Control Tower, handles any situations that may arise and assumes the responsibilities of the other controllers during meal and relief breaks. There are normally three controllers and a supervisor on duty at all times, save and except for the night shift when one controller works alone. During a regular shift, the three air traffic controllers rotate between the clearance delivery, ground and tower positions.

[14]      From time to time trainees work at the Ottawa Control Tower. A trainee typically begins to perform duties in the relatively "quiet" clearance delivery position, and progresses into the more complex ground and tower control positions as his abilities develop. A trainee works at a position with a licenced air traffic controller who monitors all actions. The trainee and the controller each have headsets plugged into the same position. A trainee could work a whole shift at any one of the positions, including clearance delivery. During periods when a trainee works in the Ottawa Control Tower, the normal rotation between the three positions is suspended.

[15]      In the Ottawa Control Tower, the tower control position is the most demanding and "time

sensitive", in that decisions must be made as aircraft are moving. In the ground control position, the air traffic controller can dictate the pace, as no one can move on the runways and taxiways without his authority. However, it can also be very busy. The tower and ground control positions require continuous attention and concentration. The clearance delivery position involves relaying pre-determined clearances in a regimented and standard manner. Since the controller has no responsibility for the movement of aircraft or vehicles, clearance delivery does not require the same degree of concentration as the other positions. Furthermore, the clearance delivery position is the least "time sensitive", and would allow another controller to provide assistance whenever time permits. The air traffic controllers rotate at regular intervals between the three positions in order to provide variety and to alleviate the stress of working in the "time sensitive" positions. The busy times at the Ottawa Control Tower are in the early morning and the late afternoon to early evening hours. The controllers at the Ottawa Control Tower have several tools to assist them in maintaining the necessary spatial orientation or three dimensional mental picture of the ongoing activities: two-way radio communication, electronic display of flight data, the hard copy flight strips, surveillance capacity from the tower, and radar.

[16]      The air traffic services at the Ottawa Control Tower are an "integrated operation" with very close coordination between the three work stations. The air traffic controllers in the three positions are seated beside each other to facilitate communication, and the supervisor is seated at a desk behind them. It is important and useful for an air traffic controller to listen to the other controllers in order to understand and monitor what they are doing. Although controllers cannot listen to each other all of the time while performing their duties, they nevertheless "get pieces of information". It is always beneficial to know what the others are saying. In that sense, the ability to understand a communication in another language would "certainly help". However, the primary responsibility of a controller is to "take care of his position". Safety is the overriding object and takes precedence above everything else.

[17]      For the air traffic controllers at the Ottawa Control Tower, overtime work was "common", due to staff shortages, holidays and illness. It affected the income expectations of air traffic controllers, in that it was a "guarantee" that it would be a component of income "most of the time".

[18]      Air traffic controllers were classified at the AI3 level, until a reclassification to the AI4 level occurred in 1991. Before the implementation of bilingual air traffic services, no air traffic controller at the AI2 level had ever worked at the Ottawa Control Tower.

[19]      In August 1985, the Department announced plans to provide air traffic control services in both official languages from the Ottawa Control Tower. Following that announcement, Mr. Schreiber began to consider the notion of transferring to another area where bilingualism would not be a requirement in order to "avoid problems down the road".

[20]      In 1986, the Department began planning and preparatory work with a view to implementing bilingual air traffic control services in 1988 at the Ottawa Control Tower. In all instances, the pilot would choose the language to be used in the air traffic communications.

[21]      In deciding what approach to take developing its implementation plan, the Department faced a dilemma, unknown to most other federal institutions, due to the environment in which air traffic control services operated. In other words, it was necessary for the Department to balance the requirement for bilingual services with the requirement for the absolute safety and integrity of its air traffic control services. In order to ensure safety, the Department decided to make bilingualism in the official languages a condition of employment as an air traffic controller at the Ottawa Control Tower, and it changed the linguistic profiles of the existing positions. The Department also decided to "phase in" bilingual services by using two frequencies, one providing air traffic control services in French and the other in English. During that initial "phase in" period, 50 percent of the air traffic controllers were required to have bilingual language skills.

[22]      The Department recognized that the use of two distinct frequencies, one for each of the official languages, was not an ideal situation, in that it would require very close coordination between two air traffic controllers who were responsible for the same aircraft and runway. Due to the complexity of the arrangement, there was a greater chance of error. In short, the use of two frequencies derogated from the level of safety inherent in a single frequency environment. However, the use of two frequencies would permit the Department to make bilingual services available within the shortest time possible in order to comply with its obligations under the Official Languages Act. The use of two frequencies was never contemplated as a permanent option due to the risk. Furthermore, pilots and air traffic controllers were opposed to the use of two frequencies at the Ottawa Control Tower. As a result, the Department's implementation plan contemplated the use of separate frequencies for the two official languages during an initial "phase in" period for bilingual air traffic services at the Ottawa Control Tower, on the understanding that it would revert to the common practice of one frequency for all air traffic communications as soon as there was a sufficient number of qualified persons for staffing purposes.

[23]      On January 17, 1986, the language requirement for Mr. Schreiber's position was changed to "bilingual", and the linguistic profile became "BBB-BBB". On January 20, 1986, Mr. Schreiber's rate of learning in French was assessed as "average to slow", with a projected duration of language training estimated at 1,160 hours.

[24]      In his annual performance review in February 1986, Mr. Schreiber indicated that he would like to work as air traffic controller in the North Bay area.

[25]      In May 1986, the Department made a decision, following consultation with the Public Service Commission, to require oral proficiency at the "C" level in both official languages for air traffic controllers at the Ottawa Control Tower. On May 26, 1986, the linguistic profile for the bilingual positions occupied by Mr. Schreiber and all of the other air traffic controllers at the Ottawa Control Tower was therefore changed to require the attainment of oral proficiency at the "C" level in French and English.

[26]      Mr. Schreiber was assessed for his ability to meet the new linguistic profile of his position. By memorandum dated July 7, 1986 from the Language Training Branch of the Public Service Commission, Mr. Schreiber was informed that he did not "...possess the potential to attain the required level of second language knowledge within the maximum allowable period for language training by means of continuous full-time courses". Mr. Schreiber requested a re-examination. On August 28, 1986, he was again informed that he did not have the potential to meet the language requirements of his position.

[27]      By letter dated January 7, 1987, the responsible managers in air traffic services advised Mr. Schreiber that his transfer would likely not take place until after January 1, 1989, as the qualification training program for bilingual air traffic controllers in the Ottawa Control Tower had taken much longer than anticipated. As a result, there was a shortage of bilingual air traffic controllers and a corresponding need to retain a number of unilingual controllers to meet staffing requirements. Management stated that it would keep Mr. Schreiber informed as to when he could expect to be released for a transfer to another location. In short, his transfer request was denied due to "necessity", in order to enable normal operations to continue at the Ottawa Control Tower. Personnel were normally permitted to transfer on the basis of seniority. However, as the Department was failing to meet its goals for the implementation of bilingualism in the delivery of air traffic control services, it had a reduced ability to release air traffic controllers to permit them to qualify and work at another location.

[28]      By memorandum dated March 22, 1987, Mr. Schreiber advised his manager that he wished to transfer to London rather than North Bay. Mr. Schreiber was not permitted to transfer to London at that time.

[29]      Shortly thereafter, Mr. Schreiber decided for personal and family reasons that he did not want to leave the Ottawa area. As a result, by memorandum dated November 4, 1987, he withdrew his request to be transferred to London. However, he made a request to be transferred from the Ottawa Control Tower to the Terminal Control Unit, where the positions did not yet have bilingual language requirements. By letter dated February 18, 1988, Mr. Schreiber was advised that he could not be released for training for a position in the Terminal Control Unit due to "staffing problems" in the Ottawa Control Tower. Those "staffing problems" were related to the inadequate number of bilingual air traffic controllers.

[30]      The Department had underestimated the length of time required to have a sufficient number of bilingual air traffic controllers. In particular, its attempt to recruit bilingual persons from Quebec was not very successful, and the period for recruiting and training new employees was lengthy, in that an additional period of 12 to 18 months after initial training was required to qualify as an air traffic controller at the Ottawa Control Tower. Furthermore, the Department had a commitment and an obligation to permit its existing staff at the Ottawa Control Tower to take full-time language training. The departure of those employees on French language training created staffing shortages. In order to achieve its implementation goals within its target period, the Department sent its air traffic controllers on language training based on the assessments of the length of time required to meet the language requirements of their positions. In other words, those who required the shorter training times were sent first, and those who required longer periods of training were required to wait.

[31]      In May 1989, the Canadian Air Traffic Control Association, at its national convention, passed a resolution opposing any implementation of bilingual air traffic control services in Ottawa "...unless it can be safely implemented with a full staff of competent and fully qualified bilingual controllers...". It also opposed the use of two separate frequencies.

[32]      By memorandum dated June 22, 1989, Mr. Schreiber requested to be tested again for French language training.

[33]      By memorandum dated December 21, 1989, Mr. Schreiber was assessed as having an "average to slow" rate of learning, with a projected training duration of 1800 hours. It was also noted that, in his training, Mr. Schreiber would perhaps require a "slower rate of learning on training".

[34]      On June 20, 1990, the Department began to provide bilingual air traffic control services, on separate frequencies for English and French, for 16 hours a day, seven days a week. The services were initially only provided for 16 hours a day as there were an insufficient number of bilingual air traffic controllers to work all shifts. The night shift, which required minimal air traffic control, was therefore not staffed by a bilingual employee.

[35]      The Department intended the use of separate frequencies for English and French to be a temporary measure in order to provide bilingual air traffic control services at the earliest possible

date. Due to the shortage of bilingual air traffic controllers licenced to work at the Ottawa Control

Tower, the Department brought in, on a temporary basis, bilingual persons who were not licenced to work in all of the positions, but who were qualified to work in the clearance delivery position. In other words, the Department used people who had the "professional and linguistic skills" necessary to deliver the service at the clearance delivery position. Those individuals were classified at the AI2 level. During the period when the dual frequency system was in effect, Mr. Schreiber and the other unilingual air traffic controllers worked solely in the ground and tower control positions, and did not rotate to the clearance delivery position.

[36]      On March 31, 1991, the Department expanded the bilingual air traffic control services to 24 hours a day at the Ottawa Control Tower.

[37]      On February 10, 1992, Mr. Schreiber met with Mr. N. Odynski, the relatively new manager of the Ottawa Air Traffic Services. During the course of their conversation, they discussed the pending implementation of full bilingual air traffic control services on a single frequency and its impact on unilingual anglophones such as Mr. Schreiber. Mr. Odynski stated that Mr. Schreiber could transfer to another location or take French language training. In response, Mr. Schreiber stated that he had a third option, namely to remain in his position as an anglophone on the basis of his "incumbent's rights". Mr. Odynski stated that it was "not an option" for Mr. Schreiber to remain in his position as a unilingual air traffic controller. Mr. Schreiber asked to work in the Terminal Control Unit, but was refused due to the pending implementation of bilingualism in that section. The next day, Mr. Odynski sent a memorandum to Mr. Schreiber confirming the cancellation of "seniority bid lists" for positions in the Terminal Control Unit for candidates who did not meet "current linguistic requirements". For several years, Mr. Schreiber had been at the top of seniority bid lists.

[38]      In May 1992, Mr. Schreiber began private language training at the Berlitz Language Centre of Canada, Ltd. ("Berlitz") at Ottawa, on a programme of four days a week at $399.00 a day, paid for by the Department. In order to maintain his currency as a licenced air traffic controller, he remained on a operational schedule which enabled him to work some shifts, on Fridays and weekends, and to fill in on overtime. Otherwise, if he had not worked within a 30 day period, another controller would have been required to monitor his performance on his return to ensure that his timing and speed were not compromised. His attendance at a private language school enabled him to remain on an operational schedule and to work from time to time, given the flexibility inherent in private instruction. The Department chose to send Mr. Schreiber to Berlitz hoping that he would acquire the necessary language skills more quickly with private instruction.

[39]      On June 8, 1992, the Director of Berlitz wrote the Department to advise that Mr. Schreiber had certain "shortcomings" in his language training. In the evaluation conducted during the first week, Mr. Schreiber, who was assessed as a "complete beginner", was expected to have an "average to satisfactory training process". However, the Director noted that Mr. Schreiber tended "to take extra-long breaks" and was "often 20 minutes to half an hour late for his classes". Furthermore, he had not done any of his homework assignments. Finally, the Director requested the Department "to correct the situation since we do not intend to rub him the wrong way".

[40]      By memorandum dated June 22, 1992, Mr. Odynski advised Mr. Schreiber that the pending implementation of bilingual air traffic services on one frequency at the Ottawa Control Tower would affect his status, and that he would be unable to provide air traffic control services unless he was monitored by a bilingual controller.

[41]      On June 26, 1992, the Department began to offer bilingual air traffic control services on one frequency at the Ottawa Control Tower, as there were a sufficient number of qualified bilingual employees. As a result, there was no longer any need for a separate frequency for French language communications, and the dual frequency system was discontinued.

[42]      The implementation of bilingual air traffic control services affected normal operations in the Ottawa Control Tower, in that the clearance delivery positions were staffed with bilingual persons who were qualified to perform only that function and not the duties associated with the ground or tower control positions. In other words, air traffic controllers who were fully licenced to work at the Ottawa Control Tower were working only in the ground and tower control positions. As a result, the normal rotation between all three positions could not occur, as the air traffic controllers working at the clearance delivery position were not licenced to perform the duties of the ground and tower control positions at the Ottawa Control Tower. The Department was required to resort to this procedure in order to implement its bilingual air traffic services, given that it had an insufficient number of bilingual air traffic controllers licenced to work at the Ottawa Control Tower. However, the situation was "less than ideal", in that the controllers could not rotate between all positions and some controllers had to work the undesirable night shift more frequently.

[43]      Following the implementation of bilingual air traffic control services at the Ottawa Control

Tower, Mr. Schreiber was not scheduled to work any more shifts as an air traffic controller on the basis that he did not meet the language requirements for his position. Mr. Schreiber requested to perform his duties with a bilingual monitor, but that request was denied.

[44]      During his attendance at the Berlitz language school in the summer of 1992, Mr. Schreiber was "not in a very good frame of mind", in that he was "...feeling pressured, to some degree harassed in [his] mind and resentful". Simply put, he was under stress, pressured and unhappy. He was also resentful of having to take language training. His negative frame of mind was reflected in his rather dismal performance at his private language training lessons. Furthermore, Mr. Schreiber refused to study or do homework on his own time unless the Department paid him overtime.

[45]      Although the Department refused to pay overtime for his studies outside of his scheduled classes at Berlitz, Mr. Schreiber continued to request it.

[46]      At some point in time during the summer of 1992, Mr. Schreiber had a meeting with Mr. Odynski and Joel Morin, the person responsible for the implementation of the bilingualism program, concerning his lacklustre performance at Berlitz. Mr. Schreiber characterized it as a "problem" meeting, in which he felt pressured. Mr. Odynski stated that he expected Mr. Schreiber to be at a certain level in French at a certain time, and threatened to "pull him out of Berlitz" and send him to the Public Service Commission language training program. In short, the Department concluded that it was an "unwise expenditure of public funds" for Mr. Schreiber to remain at Berlitz, given his attitude and his unacceptable level of performance.

[47]      On September 8, 1992, Mr. Schreiber withdrew from the private language training at Berlitz and requested permission to continue language training in the courses offered by the Public Service Commission. The Department paid approximately $15,000.00 for Mr. Schreiber's unsuccessful language training at Berlitz in the summer of 1992. Following Mr. Schreiber's withdrawal from the program at Berlitz, the Department attempted to place him on a priority list to ensure that his training would begin within a reasonable period of time. However, it expected that there would be a delay of several months. In the meantime, although Mr. Schreiber remained on operational status as an employee of the Ottawa Control Tower, he was unable to perform any duties as an air traffic controller following the implementation of bilingual air traffic control services. As a result, the manager of training for air traffic services indicated that she would "attempt to provide him with alternate duties".

[48]      On September 10, 1992, the manager of training requested arrangements to be made for Mr. Schreiber to have a Public Service Commission language "diagnostic test", and for him to be placed in a language training course as soon as possible, as he was "...unable to perform any of his regular duties and must be replaced with overtime staff".

[49]      On September 25, 1992, Mr. Schreiber was assessed as having the potential to reach the required level of competency in French within the maximum allowable period for language training. The projected duration of his training was 1,860 hours.

[50]      By letter dated October 6, 1992, Mr. Schreiber was advised that he was enrolled in a language training program scheduled to begin on October 19, 1992.

[51]      By memorandum dated October 13, 1992, Mr. Schreiber wrote to Mr. Odynski concerning his status as an employee on language training. In his memorandum, Mr. Schreiber "restated" his position that he was "quite prepared to continue with language training", but felt that Mr. Odynski

was putting "undue pressure" on him concerning his level of progress at Berlitz. Mr. Schreiber noted that he was assessed as having the ability to learn French, albeit at a rate slower than some of his colleagues. The purpose of the memorandum was to clarify Mr. Schreiber's status while on language training. In short, he saw no reason why he could not remain on operational status while attending language training at the Public Service Commission program. He also saw no reason to change his status simply due to a change in the location of his training. In that regard, he noted that employees in the Terminal Control Unit were permitted to retain their operational status while on language training, meaning that they were permitted to perform duties at certain work stations. He asked Mr. Odynski to clarify why the Ottawa Control Tower employees did not have the same rights as the controllers working in the Terminal Control Unit. Furthermore, "under bilingualism and incumbent's rights", he stated that the employee should not be "singled out or adversely affected" by reason of the implementation of bilingual services. He also emphasized that he would attend whatever training program management wanted, but that he wanted to remain on operational status. Finally, if he could only remain on operational status while attending Berlitz, he wished to return there for his language training.

[52]      By requesting to retain his operational status while on language training, Mr. Schreiber wanted to work some shifts in the clearance delivery position where the aircraft are immobile on the ground at the time of the communication. In the event that he received a communication in French, he proposed to respond to the pilot by saying "standby" and to have a supervisor or the air traffic controller in the ground position respond on his behalf by issuing the clearance instructions in French. He believed that this was a viable proposal as the clearance delivery position was not "time sensitive", in that the aircraft requesting clearance are stationary. Mr. Schreiber believed that his proposal would not have an impact on the safety of the operations. However, during his cross-examination, Mr. Schreiber candidly admitted that it was "better" for all of the controllers to be bilingual, rather than having a unilingual controller who required back-up in French communications.

[53]      By memorandum dated October 13, 1992, Mr. Odynski confirmed to Mr. Schreiber that he would be in "non-operational status" during the course of his language training program. Furthermore, upon successful completion of his language training, Mr. Schreiber would return to the Ottawa Control Tower on operational status and would receive retraining to meet the necessary standards. Finally, Mr. Schreiber would be required to do whatever was necessary to "keep pace with the class", including homework and personal efforts outside of the classroom environment. Under the terms of article 13.08 of the collective agreement, the Department concluded that it had the option to change his status to non-operational, given his departure for full-time language training.

[54]      By memorandum dated October 16, 1992, Mr. Schreiber confirmed his conversation with Mr. Odynski that, upon returning from language training, whether successful or unsuccessful, he would be converted back to operational status. Furthermore, while at language training, Mr. Schreiber would be non-operational for purposes of pay and hours of work, but he would remain on operational status for pension purposes. In short, Mr. Schreiber was not permitted to work as an air traffic controller during his language training.

[55]      During the one and a half month period between his departure from Berlitz on September 8, 1992 and the commencement of his other language training on October 19, 1992, Mr. Schreiber had to report every day at the Ottawa Control Tower to sign in and out. However, he was not permitted to remain in the control premises and he had no duties to perform.

[56]      On October 19, 1992, Mr. Schreiber began full-time language training at Language Training Canada, operated by the Public Service Commission.

[57]      By memorandum dated July 22, 1993, Mr. Odynski advised Mr. Schreiber that it was necessary to review his training program and update him on "current expectations". He asked Mr. Schreiber to attend a meeting with himself and others. He noted that, although the meeting was "not a disciplinary process", he had requested the union, the Canadian Air Traffic Control Association, to ensure that Mr. Schreiber had "representation", as there were potential "career implications".

[58]      On July 28, 1993, Mr. Schreiber and his union representative attended a meeting with Mr.

Odynski and others. Mr. Odynski advised Mr. Schreiber that there was a problem in that the Department had miscalculated his maximum number of hours of allowable training time by failing to take into consideration his over 300 hours of training at Berlitz. As a result, he would be required to take his test two months earlier than the rest of his classmates. Mr. Schreiber was upset by the news.

[59]      By letter dated September 27, 1993, Language Training Canada recommended to the Department an extension of Mr. Schreiber's training period by 210 hours to enable him to reach his target level of language proficiency.

[60]      On October 7, 1993, Mr. Schreiber took his language test, approximately two months before the rest of his classmates. His results were CBB. In other words, he attained a C level of proficiency in reading and B levels in writing and in oral interaction. He therefore failed to meet all of the language requirements for his position.

[61]      On October 20, 1993, Mr. Odynski approved the recommended extension of 210 hours for Mr. Schreiber's language training. Mr. Schreiber continued his training.

[62]      On December 10, 1993, Mr. Schreiber was tested for the second time for his proficiency in the French language. In his writing test, he was again awarded a B level. Mr. Schreiber apparently missed attaining a C level in writing by one mark. In oral interaction, Mr. Schreiber, once again, achieved only a B level.

[63]      On December 16, 1993, Mr. Schreiber received notification of his test results. He immediately requested further language training. He also renewed his request for an assignment to work in the Ottawa Control Tower in the clearance delivery position on the understanding that another controller would handle any French communications. By memorandum dated December 17, 1993, Dennis Malloy, who had replaced Mr. Odynski, denied Mr. Schreiber's request for additional language training. Mr. Schreiber was instructed to report for the "necessary training to operate the flight data entry position" in the Terminal Control Unit, following which he would be assigned to work there. Although not reflected in the memorandum, Mr. Schreiber was told by Mr. Malloy, on several occasions, that he would not be permitted to work in the clearance delivery position in the Ottawa Control Tower. Mr. Schreiber could not understand why the Department would not accommodate him by permitting him to work in the clearance delivery position, when bilingual controllers who were not fully licenced to work all of the positions in the Ottawa Control Tower were permitted to do so.

[64]      The flight plan data entry work, assigned to Mr. Schreiber, was required due to a problem in the radar system caused by the inability of the Toronto and Montreal computer systems to transfer data to the computers at the radar site. As a result, the information generated by the computers from Toronto and Montreal concerning the identification and actual physical routing of aircraft had to be transcribed and input into the radar system. The flight plan data entry work was normally done by clerks or other employees who were not air traffic controllers. Mr. Schreiber had no duties other than those pertaining to flight plan data entry.

[65]      On December 21, 1993, Mr. Schreiber received a copy of a memorandum outlining his schedule. The memorandum indicated that Mr. Schreiber was not to be used "to fill in overtime" in either the Ottawa Control Tower or the Terminal Control Unit. As a result, Mr. Schreiber was assigned no overtime work.

[66]      On January 20, 1994, Mr. Schreiber received a letter from Language Training Canada confirming that he had failed to meet the desired language requirements within the maximum duration of training. On the same date, an internal departmental memorandum noted that Mr. Schreiber had failed to obtain the required level of French, that he had no further entitlement to training, and that he was at work "exercising his incumbent's rights".

[67]      On February 3, 1994, Mr. Schreiber stated as follows in a memorandum to the acting manager of air traffic services, Nicole Barclay:

During previous conversations, I have requested language extensions. To date, I have not received any written response from your office as per my request. In the past, this unit has been generous in providing extensions to individuals upon request, however, I understand that you are not prepared to extend training for me in this case. Would you please advise me when I can expect the written confirmation of these facts as relayed to me. Thanking you in advance for your consideration, co-operation and written response.

[68]      By memorandum dated February 8, 1994, Ms. Barclay informed Mr. Schreiber that he would "not be considered for any further language training". She provided him with a copy of a memorandum dated January 24, 1994 from Francine Hamel, the departmental official languages advisor. In that memorandum, Ms. Hamel stated that Mr. Schreiber had been given a total of 2,057 hours of language training, and that the maximum number of hours permitted by Treasury Board to attain a C level of proficiency was 1,860. She further stated that Mr. Schreiber had benefited from an exceptional extension of the length of his language training. In the circumstances, he had received all of the training to which he was entitled.

[69]      On February 17, 1994, Mr. Schreiber wrote to Ms. Barclay, the acting manager, noting that he appreciated his temporary duties in the Terminal Control Unit. However, he requested to be returned to his "substantive position" in the Ottawa Control Tower as an operational air traffic controller. In responding to Mr. Schreiber on the same date, Ms. Barclay stated that he had not been "removed" from his "substantive position". However, since he did not meet the language requirements of the position, he would be assigned to the duties of the flight data entry position until further notice.

[70]      On February 23, 1994, Mr. Schreiber requested "refamiliarization training" to permit him to resume his normal duties as an air traffic controller.

[71]      On March 3, 1994, he wrote to Dennis Malloy, the acting manager of air traffic services, and requested a reply to an earlier letter he had apparently written. He noted that the situation had caused "undue hardship" to him and his family. He requested a written reply by March 4, 1994.

[72]      On March 5, 1994, Mr. Malloy responded to Mr. Schreiber's earlier letters, which were not adduced in evidence, stating, in part, as follows:

You have exhausted your entitlement to full time, [Public Service Commission] language training, however, if you are interested in continuing language training on your own time to attain level "C", reimbursement of expenses for tuition and/or books may be available. You would be required to submit a request for reimbursement prior to commencement of any course. The Unit would make the necessary arrangements for testing by the [Public Service Commission] at the end of your course. I encourage you to consider this option.

[73]      Mr. Schreiber did not seriously consider the offer to take language training on his own time. He viewed the environment as being "hostile", and did not understand why bilingual controllers who were qualified to work only in clearance delivery were permitted to work at the Ottawa Control Tower for four years following the implementation of bilingual air traffic control services when he could not.

[74]      By letter dated March 9, 1994, Mr. Schreiber wrote to Mr. Malloy and stated that all previous departmental responses had not answered his question as to whether he could begin "refamiliarization training" in his position as an air traffic controller in the Ottawa Control Tower. He requested "a yes or no answer" in writing prior to 10:00 a.m. the next day.

[75]      By memorandum dated March 10, 1994, Mr. Malloy advised Mr. Schreiber that his request to commence "refamiliarization training" was denied on the basis that he did not meet the necessary language requirements for the position to enable him to provide bilingual air traffic control services. However, Mr. Malloy noted that, as an incumbent of a position in the Ottawa Control Tower, he had "certain protections under the Exclusion Order of the Official Languages Act". As a result, Mr. Schreiber had not been removed from his substantive position and would "...not suffer from any loss of pay or benefits as a result of not attaining the required second language proficiency". He confirmed that Mr. Schreiber was assigned to the flight data entry position in the Terminal Control Unit until further notice.

[76]      In March 1994, the problem preventing the computers from sharing their information was

rectified, and there was no longer a need to enter flight plan data manually into the radar computer system in the Terminal Control Unit. Following that point in time, Mr. Schreiber was basically given clerical duties to perform. For example, he had to count the different strips generated by the computers to determine the number of aircraft that had passed through the sector. He gave tours of the complex, found broken chairs to be repaired, ran errands and made photocopies. However, he was busy with those tasks only two to three percent of his time. For the rest of the time, he attempted to comply with his manager's instructions to "find a place to stay out of the way". In short, he really had nothing to do.

[77]      Mr. Schreiber felt like a "leper", as management did not know what to do with him. Indeed, other employees commented that, as an anglophone, he would never work in the Ottawa Control Tower again. There were "linguistic tensions" between Mr. Schreiber and some of the other controllers.

[78]      Throughout all of this, Mr. Schreiber was adamant that, in his opinion, the "law made it clear" that he could return to work in the Ottawa Control Tower. Mr. Schreiber was under a tremendous amount of pressure. In addition to his request to return to his substantive position as an air traffic controller, Mr. Schreiber also had made a "standing request" to receive training for one of the unilingual positions in the Terminal Control Unit, as all operating positions in that area were not yet bilingual.

[79]      On March 14, 1994, Mr. Schreiber presented a grievance under the terms of the Air Traffic Control Collective Agreement between the Treasury Board and the Canadian Air Traffic Control Association ("collective agreement "). In his grievance, Mr. Schreiber stated as follows:

I grieve the decision made by management in response to my letter dated March 9th, 1994 in which they have refused to allow me to return to the tower to commence refamiliarization training to permit me to resume my normal duties as an operational tower controller. This is contrary to my incumbent's rights under the Official Languages Act.

[80]      By way of corrective action, Mr. Schreiber requested to return to the Ottawa Control Tower to begin "refamiliarization training" in order to enable him to resume his duties as an air traffic controller.

[81]      On April 6, 1994, the first level grievance decision was denied by the manager of air traffic services on the basis that all air traffic controller positions in the Ottawa Control Tower provided bilingual air traffic control services, and that Mr. Schreiber had failed to attain the required level of bilingualism to perform such duties. Furthermore, he had been assigned other duties at no loss of pay or benefits.

[82]      On May 4, 1994, the second level grievance decision was denied by the regional director of air traffic services for the following reasons:

This is in response to your grievance at the second level. As pointed out at the first level, all positions in the Ottawa Control Tower provide full time bilingual air traffic control services. A level "C" is required to perform control duties and you have not achieved this level. Management has assigned you other duties which require english [sic] only at no loss of pay or benefits.

As per your specific request which is to commence re-familiarization training I have no choice to deny it [sic] on the basis of safety and security of the service we have to provide and second, on the basis of not meeting the language requirement which is required to provide a bilingual service which will guarantee safety and security of the travelling public.

[83]      Mr. Schreiber never brought his grievance to adjudication.

[84]      By memorandum dated July 25, 1994, G. Chenier, the unit operations manager advised Mr. Schreiber of his "reporting and scheduling arrangements". In particular, he stated that Mr. Schreiber would report directly to the unit operations manager, who would "...assign duties and functions, if any available". There were no duties available for Mr. Schreiber other than those described in paragraph 76 above. On the same date, Mr. Schreiber instituted the present proceeding.

[85]      By memorandum dated July 28, 1994, Mr. Schreiber informed Mr. Malloy that he would be claiming for "equalization of overtime" in the event that he was successful on his grievance. Under the terms of the collective agreement, the overtime was divided as equally as possible between the air traffic controllers. In other words, Mr. Schreiber indicated his intention to claim, as part of his grievance, the lost opportunity for overtime income as a result of the Department's refusal to return him to his position as an air traffic controller. Mr. Schreiber also made exactly the same claim in the action instituted a few days earlier. However, for the purposes of the action, he chose to rely on his "incumbent's rights" to found his claim for overtime.

[86]      After Mr Schreiber instituted his action, the Department explored "every possible option" that would accommodate Mr. Schreiber and that would also meet its absolute safety requirements, "while recognizing its direct obligations under the Official Languages Act and some obligation to employees in relation to incumbent"s rights".

[87]      One of the options proposed by Mr. Schreiber, namely that he would perform his duties while monitored by a bilingual air traffic controller, was unacceptable to the Department as it would compromise safety. In particular, an air traffic controller was required to maintain a mental picture of the situation and the proposed course of action. To require someone to step in on the spur of the moment to execute decisions and to control the actions was unworkable, impractical and would derogate from the safety of the operations. The monitoring of a trainee was different in that the trainee and the monitor were both fully aware of everything that was happening and that was planned.

[88]      With respect to the suggestion that Mr. Schreiber could be accommodated by having an interpreter, who was not an air traffic controller, translate French language communications for him, the Department concluded that this proposal was also not acceptable in a dynamic and tactical environment where split second reactions may be needed to deal with unpredictable circumstances. Furthermore, given the nuances of language and the peculiarities of the lexicon in the air traffic control environment, it would be impossible to rely on a third party without the risk of error. In short, from the Department"s perspective, it was not possible to even contemplate the intervention of an interpreter.

[89]      Finally, the Department also considered as an option Mr. Schreiber's proposal that he work in the clearance delivery position with the assistance of another controller for any French language communications. In the view of the Department, that proposal was not a desirable method of operating. However, the Department decided to propose it, as a temporary measure, in an attempt to "find a way out of the impasse". It was intended to be a temporary measure, recognizing that the actions taken in clearance delivery did not "impact on safety as much as on the effectiveness and efficiency" of the operation. However, in the opinion of the Department, the arrangement could not be sustained in the long term in that it could have safety implications, given the integrated nature of the operations. Indeed, the whole notion of "people understanding what is going on in the work environment" was perceived by the Department to be a "key element" in terms of "close coordination and a general awareness" on the part of the individual controllers of the level of activity and what was happening in the area. It would also disrupt the activities of the other controllers who would be required to assist Mr. Schreiber in any French language communications. Furthermore, the presence of one unilingual air traffic controller would force everyone in the unit to operate in the language that he understood. In other words, there would be no cohesiveness in the group effort required in the complex air traffic control environment. Other elements of concern on a long term basis were the inability of the controllers to rotate between the three positions, and the inability of Mr. Schreiber to work the night shift. In the Department' opinion, the option was "not a very attractive proposition", particularly as it had a number of qualified, bilingual controllers approaching the next level of completion in their training. However, it nevertheless decided to propose it as a temporary measure.

[90]      By letter dated August 18, 1994, Mr. Malloy proposed the following options to Mr. Schreiber in an attempt to "address [his] circumstances in a mutually satisfactory manner":

The first option would involve your transfer to a tower control unit in another location in Canada for which you may become qualified. The location would be selected in accordance with your preferences in this regard. This option would entail the application of the existing benefits and provisions governing such relocations in accordance with incumbent rights.

The second option would entail your returning to full time language training in the appropriate departmental language program at the Department's expense. The duration of this training would be determined through language assessment conducted by the appropriate government agency. This will enable you to make one further attempt to obtain the required linguistic profile, notwithstanding the fact that in your case the mandatory allocation of training hours have already been exhausted. This option is a modified version of my earlier proposal that in order to assist you to return to the Tower, the Department cover the cost of tuition and books for further language training on his [sic] own time.

The third option is intended to be a temporary bridging solution which will not affect in any way your incumbent's rights. It will enable you to work at the clearance delivery workstation in the Ottawa Tower subject to the following considerations:

1.      You will requalify in the clearance delivery workstation only.

2.      You will provide English language communications to pilots requesting same.

3.      When you receive French language transmissions, you will respond to same with a "stand-by" and shall request a controller working at any other workstation, or the Shift Supervisor, to deal with these transmissions. This particular workstation has been selected because it is the only one which may permit you to work in the Tower with no impairment to the safe and efficient provision of air traffic control services.

4.      This potential arrangement will modify the current inter-controller coordination and workstation responsibilities in the Tower, and may reduce the access of other controllers to this workstation during your shift. On this point, I believe it would be wise to consult with your Association to ensure that rights of third parties are not adversely affected. Therefore, it will be imperative to monitor this arrangement closely in order to ensure that there are no adverse effects to the operation at the safety, operational and human levels.

[91]      The first option, namely a transfer, was not acceptable to Mr. Schreiber for personal reasons. He and his wife now had a young child and they were settled in the community. Furthermore, his wife, who was from Ottawa, was adamant that she did not want to leave the area. Finally, Mr. Schreiber had started a small business and had a financial commitment in Ottawa.

[92]      The third option was also not acceptable to Mr. Schreiber. Although it was based on the proposal made by him some time ago to perform the clearance delivery function with the assistance of another controller for any French communications, this option was described in the letter as being a "temporary bridging solution". Mr. Schreiber was not interested in a temporary solution, and the Department would not remove that qualification. Furthermore, Mr. Schreiber interpreted paragraph 4 of the third option to require him to "deal with" the concerns of other air traffic controllers. Mr. Schreiber believed that the majority of the air traffic controllers were not sympathetic to his situation, and there were differences within his union, the Canadian Air Traffic Control Association, concerning the stand he had taken. Mr. Schreiber felt that he was "persona non grata" at the Ottawa Control Tower. As a result, he could not accept the third option, given the conditions attached to it. On balance, Mr. Schreiber did not trust the Department and believed that it would be "better in the long run" for him to continue language training to meet the language requirements of his position. As a result, he decided to accept the second option, namely returning to full-time language training at the Department's expense.

[93]      Given his concerns in relation to the first and third options, Mr. Schreiber accepted the second option and agreed to return to full-time language training.

[94]      In the fall of 1994, Mr. Schreiber continued his language training by taking "one on one" courses at the Terminal Control Unit. He was not allowed to work overtime during his language training.

[95]      In February 1996, Mr. Schreiber succeeded in meeting the language requirements for his position as an air traffic controller. He required approximately four to five weeks of retraining to requalify as a licenced air traffic controller at the Ottawa Control Tower.

[96]      On April 22, 1996, Mr. Schreiber resumed his duties as an operational air traffic controller at the Ottawa Control Tower. Following that date, overtime work continued to be a regular feature of his job. From June 26, 1992, the date of the implementation of bilingual air traffic control services at the Ottawa Control Tower, until April 22, 1996 when he resumed his position, Mr. Schreiber worked no overtime. However, he was paid his regular salary and benefits at all times.

[97]      From the implementation of bilingual air traffic services at the Ottawa Control Tower on June 26, 1992, until August 1994 when he agreed to return to full-time language training, Mr. Schreiber consistently maintained his request to return to work operationally in his position as an air traffic controller on the basis that his "incumbent's rights" permitted him to do so. In the alternative, he requested to work only in the clearance delivery position, with the assistance of another controller for any French language communications.

[98]      From May 1992 until February 1996, Mr. Schreiber was on full-time language training, save and except for a period of approximately one and half months, in or about September 1992 between the Berlitz and Language Training Canada courses, and a period of approximately nine months from his failure to achieve the necessary results on December 16, 1993 to his final commencement of training in the fall of 1994.

[99]      Mr. Schreiber is presently a supervisor of air traffic controllers at the Ottawa Control Tower.

ISSUE

[100]      The principal question to be determined in this action is whether Mr. Schreiber is entitled to a declaration that his rights have breached.

ANALYSIS

[101]      In order to determine whether Mr. Schreiber is entitled to a declaration that his rights under the Public Service Official Languages Exclusion Approval Order, SOR/81-787 ("Exclusion Approval Order") were breached, the constitutional and legislative framework governing the interplay between language and employment rights must be reviewed.

[102]      In section 20 of the Public Service Employment Act, R.S.C 1970, c. P-32, the government required employees in the public service to be qualified in the knowledge and use of English or French or both languages "to the extent that the Commission deems necessary". Section 20, which came into force on March 13, 1967, provides as follows¹:

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.

20. Les fonctionnaires affectés à un ministère ou à un autre secteur de la fonction publique, ou à une partie seulement de l'un de ceux-ci, doivent posséder, en ce qui concerne la connaissance et l'usage soit du français, soit de l'anglais, soit des deux langues, les qualifications que la Commission estime nécessaires pour que leur organisme d'affectation puisse remplir son office et fournir au public un service efficace.

[103]      In enacting the original Official Languages Act, R.S.C. 1970, c. O-2, the government expanded on the constitutional guarantee in section 133 of the Constitution Act, 1867 of the right to use English and French in Parliament and before the courts by affirming its commitment to the equality of status of English and French as to their use in all federal institutions. The Official Languages Act was assented to on July 9, 1969, and came into force 60 days later.

[104]      In an attempt to balance the language rights in the Official Languages Act and the obligations imposed in section 20 of the Public Service Employment Act with the not always complementary realities of employment in the public sector, the government took some measures in order to assist a unilingual incumbent of an indeterminate position in which the language requirements were changed to require bilingualism. On June 6, 1973, a Joint Resolution of the House of Commons and the Senate of Canada (Journals of the House of Commons of Canada, June 6, 1973, No. 97) was passed ("Joint Resolution"). The relevant portions of the Joint Resolution read as follows:

That this House,

(i) aware that, as provided in the Official Languages Act, the English and French languages possess and enjoy equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada;

cognizant that it is the duty of departments and agencies of the Government of Canada to ensure, in accordance with that Act, that members of the public can obtain available services from and communicate with them in both official languages; while

recognizing that public servants should, as a general proposition and subject to the requirements of the Official Languages Act respecting the provision of services to the public, be able to carry out their duties in the Public Service of Canada in the official language of their choice;

Do hereby recognize and approve the following Principles for achieving the foregoing:

     ...

(6) that unilingual incumbents of bilingual positions may elect to become bilingual and undertake language training or transfer to another job having the same salary maximum, or, if they were to decline such a transfer, to remain in their positions even though the posts have been designated bilingual;

[105]      The intention of Parliament, as reflected in the Joint Resolution, was embodied in the policy in Treasury Board Circular 1973-88 dated June 29, 1973, in the following terms:

20. Unilingual incumbents of positions identified as bilingual will be given the opportunity of taking up to twelve months in language training to enable them to become bilingual. If they choose not to become bilingual, or are unsuccessful in their efforts to do so, they will be offered a transfer to a unilingual position which has a salary maximum at least within the range of one annual increment of the position previously occupied. If they decline a transfer, they will be entitled to remain in their position, even though the position has been designated as bilingual. Where, under the above circumstances, a unilingual employee occupies a position designated as bilingual, the Department concerned will be required to make alternative administrative arrangements to meet the language requirements of the position. The Treasury Board will provide the necessary funds and man-years to give effect to these arrangements.

[106]      On October 27, 1977, the Exclusion Approval Order, SOR/77-886 was made under the Public Service Employment Act. The Exclusion Approval Order permitted the exclusion of certain employees in the public service from the language requirements of their positions. The Exclusion Approval Order was subsequently replaced by SOR/81-787, but the changes made in 1981 are not material to the question raised in the present proceeding. The relevant portions of the Exclusion Approval Order, as it is presently worded, state as follows²:

Whereas the Public Service Commission has decided that it is not practicable nor in the best interest of the Public Service to apply the provisions of the Public Service Employment Act respecting language requirements to certain persons and positions prescribed in the Order annexed hereto; And Whereas the Public Service Commission is of the opinion that it is desirable to make the annexed Regulations respecting the appointment of persons qualified in the knowledge and use of only one of the official languages to positions requiring the knowledge and use of both official languages. Therefore, His Excellency the Governor General in Counsel, on the recommendation of the Public Service Commission, is pleased hereby, effective October 1, 1981, (a) pursuant to section 39 of the Public Service Employment Act, to approve the annexed Order approving the exclusion of certain persons from language requirements for positions under the Public Service Employment Act; ... 6. Subject to section 7, the following persons are hereby excluded from the operation of section 20 of the Act, in so far as the knowledge and use of both official languages is required for a bilingual position, for the period during which he occupies that bilingual position, namely, (a) any person who occupies a position, to which he was appointed for an indeterminate period, that he occupied at the time it was identified by the deputy head as requiring the knowledge and use of both official languages; ...

Vu que la Commission de la Fonction publique a décidé qu"il n"est ni praticable ni dans les meilleurs intérêts de la Fonction publique d"appliquer les dispositions de la Loi sur l"emploi dans la Fonction publique relatives aux exigences linguistiques dans le cas de certains candidats et de certains postes décrits dans le décret ci-après; Et vu que la Commission de la Fonction publique estime qu"il est souhaitable d"établir le Règlement concernant la nomination de personnes ayant la connaissance et l"usage d"une seule langue officielle, à des postes exigeant la connaissance et l"usage des deux langues officielles, ci-après. À ces causes, sur avis conforme de la Commission de la Fonction publique, il plaît à son Excellence le Gouverneur général en conseil, a) d"approuver, en vertu de l"article 39 de la Loi sur l"emploi dans la Fonction publique, le Décret soustrayant certaines personnes des exigences linguistiques de postes sous le régime de la Loi sur l"emploi dans la Fonction publique, ci-après, ... 6. Sous réserve de l"article 7, les personnes suivantes sont exclues de l"application de l"article 20 de la Loi, en ce qui concerne la connaissance et l"usage des deux langues officielles requis pour un poste bilingue, pour la période où elles occupent ce poste: a) toute personne qui occupe un poste auquel elle a été nommée pour une période indéterminée et qu"elle occupait au moment où il a été identifié par le sous-chef comme nécessitant la connaissance et l"usage des deux langues officielles, ...

[107]      The application of the legislative and policy framework governing language and employment rights in force at that time was considered in [1981] 1 S.C.R. 199">Kelso v. The Queen, [1981] 1 S.C.R. 199. That case involved a unilingual anglophone air traffic controller from Quebec whose position was designated as bilingual following the commencement of the program in 1975 to phase in the implementation of bilingual air traffic services in the province of Quebec. In that case, Mr. [1981] 1 S.C.R. 199">Kelso refused the option of French language training and applied for a transfer. He later changed his mind and advised the Department that he was "withdrawing his transfer request and asserting his right to remain in his position in Montreal". His supervisor told him that he had only two options, namely to transfer or to be released from his position for incapacity. Mr. [1981] 1 S.C.R. 199">Kelso accepted the transfer under protest and instituted an action for a declaration that he was entitled to remain in his position in Montreal.

[108]      In determining that Mr. [1981] 1 S.C.R. 199">Kelso was entitled, by virtue of the Exclusion Approval Order, to remain in his position even though he did not meet its language requirements, Dickson J. (as he then was), writing for the Court, stated as follows, at pages 207 to 208:

I agree that Mr. [1981] 1 S.C.R. 199">Kelso does not have any vested right in, or long-term tenure to, position TACQ-0274; there is no vested right in any particular position in the Public Service; the tenure is in the Service rather than to a position within that Service. 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, S.C. 1976-77, c. 33, or a regulation such as the Exclusion Order. In my view, the meaning and intent of this Order is such as to entitle an employee to remain in a position even though he does not meet the language requirements of the position.

Although the Joint Resolution of the House of Commons and the Senate of Canada passed in June 1973 may not be legally binding, in the sense of creating enforceable legal rights and obligations, it is, nonetheless, indicative of legislative intention. The resolution explicitly provided that unilingual incumbents of bilingual positions are entitled to "remain in their positions even though the posts have been designated as bilingual". Treasury Board Circular 1973-88 reinforces this view.

In short, I conclude that the Exclusion Order prohibits the government from "separating" an incumbent from his position on the sole basis of language. This includes an involuntary transfer as well as dismissal for incapacity under s. 31 of the Public Service Employment Act.

[109]      Following its conclusion that the Department had breached Mr. [1981] 1 S.C.R. 199">Kelso's rights under the Exclusion Approval Order, the Supreme Court of Canada issued a declaration that Mr. [1981] 1 S.C.R. 199">Kelso was entitled to remain in or to be reinstated to his position as an air traffic controller in Montreal, even though he did not meet the specified language requirements.

[110]      Since the decision was rendered in [1981] 1 S.C.R. 199">Kelso v. The Queen, supra, there have been constitutional and legislative changes. In 1982, the Canadian Charter of Rights of Freedoms ("Charter") guaranteed in subsection 16(1) that "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". Furthermore, subsection 20(1) of the Charter guaranteed the right of the public "... to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French...". In terms of legislative changes, the original Official Languages Act was repealed in its entirety and replaced by the Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, which was proclaimed in force on September 15, 1988, save and except for certain provisions not relevant in the present proceeding.

[111]      The new Official Languages Act remedied certain perceived weaknesses of its predecessor

enactment by including enforcement provisions, as well as a general provision designed to ensure

its primacy over other federal legislation. For the purposes of the present proceeding, it is necessary to refer to several provisions of the 1988 Official Languages Act and subsequent jurisprudence in order to determine whether the basis for the analysis in [1981] 1 S.C.R. 199">Kelso v. The Queen, supra has changed.

[112]      In its preamble, the Official Languages Act recognizes the fundamental principles underlying its enactment, including the constitutional foundation for the equality of the English and French languages and for the right of a member of the public to communicate with and receive services in either official language from any institution of Parliament or the government. The preamble also highlights that the government of Canada has engaged itself to various commitments, including the achievement of the full participation of English-speaking Canadians and French-speaking Canadians in its institutions "with due regard to the principle of selection of personnel according to merit", the enhancement of the development of English and French linguistic minority communities, and the enhancement of the bilingual character of the National Capital Region. The importance accorded to the provision of bilingual services by federal institutions is underscored in section 2 of the Official Languages Act, which outlines in the following expansive terms the purpose of the Act:

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; (b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and (c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

2. La présente loi a pour objet : a) d'assurer le respect du français et de l'anglais à titre de langues officielles du Canada, leur égalité de statut et l'égalité de droits et privilèges quant à leur usage dans les institutions fédérales, notamment en ce qui touche les débats et travaux du Parlement, les actes législatifs et autres, l'administration de la justice, les communications avec le public et la prestation des services, ainsi que la mise en oeuvre des objectifs de ces institutions; b) d'appuyer le développement des minorités francophones et anglophones et, d'une façon générale, de favoriser, au sein de la société canadienne, la progression vers l'égalité de statut et d'usage du français et de l'anglais; c) de préciser les pouvoirs et les obligations des institutions fédérales en matière de langues officielles.

[113]      Part IV of the Official Languages Act, entitled "Communications with and Services to the Public", creates certain rights and corresponding duties in relation to communications and the provision of services in the official languages. In particular, section 21 accords to any member of the public the right to communicate with and to receive available services from federal institutions in either official language in accordance with the provisions in Part IV. To implement and give practical effect to that general right, sections 22 to 26 inclusive impose various duties on federal institutions. For the purposes of the present proceeding, only section 22 is relevant, requiring that the communications and services of federal institutions must be in both official languages in certain areas of the country, including the National Capital Region. Section 22 imposes the following duty on federal institutions:

22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available 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.

22. Il incombe aux institutions fédérales de veiller à ce que le public puisse communiquer avec leur siège ou leur administration centrale, et en recevoir les services, dans l'une ou l'autre des langues officielles. Cette obligation vaut également pour leurs bureaux auxquels sont assimilés, pour l'application de la présente partie, tous autres lieux où ces institutions offrent des services situés soit dans la région de la capitale nationale, soit là où, au Canada comme à l'étranger, l'emploi de cette langue fait l'objet d'une demande importante.

[114]      The remaining provisions of Part IV are not directly relevant for the purposes of the present proceeding, but nevertheless underscore the need for federal institutions to take the necessary steps to ensure, from a practical perspective, that the communications and services are provided in a manner that respects and enhances the language rights created in the enactment. For example, sections 28 to 30 inclusive relate to matters such as signage and other means of communicating that services are available in either official language.

[115]      Part V of the Official Languages Act creates rights and duties in relation to the language of work. The general right in relation to the language of work is embodied in section 34 which provides that "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". In order to give effect to the right relating to the language of work, sections 35 and 36 impose certain duties on federal institutions in relation to various matters, including the work environment. In that regard, paragraph 35(1)(a) imposes a duty on every federal institution to ensure that, within the National Capital Region and other prescribed areas, "...work environments of the institution are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees...". The importance ascribed to the existence of a bilingual work environment is reinforced by paragraphs 36(1)(a) and (b) which require a federal institution to provide the necessary tools, including services, work instruments and automated systems for the processing and communication of data, in both official languages to assist officers and employees in the performance of their duties. By virtue of subparagraph 36(c)(i), supervisors must be able to communicate in both official languages "where it is appropriate or necessary in order to create a work environment that is conducive to the effective use of both official languages". Under subparagraph 36(1)(c)(ii), any management group with responsibility for the general direction of the institution must have "the capacity to function in both official languages". Finally, subsection 36(2) imposes a further duty on federal institutions to take reasonable measures "...to establish and maintain work environments of the institution that are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees".

[116]      For ease of reference, paragraph 35(1)(a) and section 36 provide as follows:

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 conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees; ... 36. (1) Every federal institution has the duty, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), to (a) make available in both official languages to officers and employees of the institution      (i) services that are provided to officers and employees, including services that are provided to them as individuals and services that are centrally provided by the institution to support them in the performance of their duties, and      (ii) regularly and widely used work instruments produced by or on behalf of that or any other federal institution; (b) ensure that regularly and widely used automated systems for the processing and communication of data acquired or produced by the institution on or after January 1, 1991 can be used in either official language; and (c) ensure that,      (i) where it is appropriate or necessary in order to create a work environment that is conducive to the effective use of both official languages, supervisors are able to communicate in both official languages with officers and employees of the institution in carrying out their supervisory responsibility, and      (ii) any management group that is responsible for the general direction of the institution as a whole has the capacity to function in both official languages. (2) Every federal institution has the duty to ensure that, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), such measures are taken in addition to those required under subsection (1) as can reasonably be taken to establish and maintain work environments of the institution that are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees.

35. (1) Il incombe aux institutions fédérales de veiller à ce que : a) dans la région de la capitale nationale et dans les régions ou secteurs du Canada ou lieux à l'étranger désignés, leur milieu de travail soit propice à l'usage effectif des deux langues officielles tout en permettant à leur personnel d'utiliser l'une ou l'autre; ... 36. (1) Il incombe aux institutions fédérales, dans la région de la capitale nationale et dans les régions, secteurs ou lieux désignés au titre de l'alinéa 35(1)a) : a) de fournir à leur personnel, dans les deux langues officielles, tant les services qui lui sont destinés, notamment à titre individuel ou à titre de services auxiliaires centraux, que la documentation et le matériel d'usage courant et généralisé produits par elles-mêmes ou pour leur compte; b) de veiller à ce que les systèmes informatiques d'usage courant et généralisé et acquis ou produits par elles à compter du 1er janvier 1991 puissent être utilisés dans l'une ou l'autre des langues officielles; c) de veiller à ce que, là où il est indiqué de le faire pour que le milieu de travail soit propice à l'usage effectif des deux langues officielles, les supérieurs soient aptes à communiquer avec leurs subordonnés dans celles-ci et à ce que la haute direction soit en mesure de fonctionner dans ces deux langues. (2) Il leur incombe également de veiller à ce que soient prises, dans les régions, secteurs ou lieux visés au paragraphe (1), toutes autres mesures possibles permettant de créer et de maintenir en leur sein un milieu de travail propice à l'usage effectif des deux langues officielles et qui permette à leur personnel d'utiliser l'une ou l'autre.

[117]      Part VI of the Official Languages Act, entitled "Participation of English-speaking and French-speaking Canadians", deals with employment in federal institutions. Paragraph 39(1)(a) affirms the commitment of the government to ensuring that English-speaking and French-speaking Canadians have "equal opportunities to obtain employment and advancement in federal institutions...". In order to give substance to that commitment, subsection 39(2) requires federal institutions "to ensure that employment opportunities are open to both English-speaking Canadians and French-speaking Canadians...". Subsection 39(2) also requires a federal institution to take into account "the purposes and provisions of Part IV and V" in appointing and advancing its officers and employees and in determining the terms and conditions of their employment. In other words, in making its staffing decisions, a federal institution must consider the rights created and the corresponding duties imposed on it under Parts IV and V, respectively in relation to communications and the provision of services to the public, and the language of work, as well as the purposes for which those rights and duties were enacted. However, subsection 39(3) affirms the merit principle, which is the cornerstone of staffing actions in federal institutions, by stating that "[n]othing in this section shall be construed as abrogating or derogating from the principle of selection of personnel according to merit".

[118]      Finally, in order to accord substance and meaning to the rights and duties embodied in Parts I to V inclusive of the Official Languages Act, section 82 ensures the primacy of those Parts over other legislative enactments. Section 82 of the Official Languages Act provides as follows:

82. (1) In the event of any inconsistency between the following 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 III (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.

82. (1) Les dispositions des parties qui suivent l'emportent sur les dispositions incompatibles de toute autre loi ou de tout règlement fédéraux : a) partie I (Débats et travaux parlementaires); b) partie II (Actes législatifs et autres); c) partie III (Administration de la justice); d) partie IV (Communications avec le public et prestation des services); e) partie V (Langue de travail). (2) Le paragraphe (1) ne s'applique pas à la Loi canadienne sur les droits de la personne ni à ses règlements.

[119]      The nature and character of the 1988 Official Languages Act was considered by the Federal Court of Appeal in Canada (Attorney General ) v. Viola, [1991] 1 F.C. 373 (C.A.). In concluding that the Official Languages Act was quasi-constitutional in nature, Décary J.A., writing for the Court, stated as follows, at page 386:

The 1988 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. 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 category 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."

[120]      Recently, in Beaulac v. The Queen, [1999] 1 S.C.R. 768, a case concerning the interpretation of the language rights in section 530 of the Criminal Code, R.S.C. 1985, c. C-46, Bastarache J., writing for the majority, outlined an interpretative framework for language rights. In his analysis, Bastarache J. disapproved of a trilogy of previous cases, MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549 and Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449, which appeared to adopt a restrictive approach to the interpretation of constitutional language guarantees. In his analysis, Batarache J. emphasized the special nature of language rights, noting as follows at page 788:

Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees...

[121]      In interpreting the scope of language rights in an enactment, Bastarache J. outlined the following principles to be applied, at pages 790 to 792:

Though constitutional language rights result from a political compromise, this is not a characteristic that uniquely applies to such rights. A. Riddell, in "À la recherche du temps perdu: la Cour suprême et l'interprétation des droits linguistiques constitutionnels dans les années 80" (1988), 29 C. de D. 829, at p. 846, underlines that a political compromise also led to the adoption of ss. 7 and 15 of the Charter and argues, at p. 848, that there is no basis in the constitutional history of Canada for holding that any such political compromises require a restrictive interpretation of constitutional guarantees. I agree that the existence of a political compromise is without consequence with regard to the scope of language rights. The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation. This being said, I note that this case is not concerned with the possibility that constitutionally based language rights may conflict with some specific statutory rights.

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. It is also useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice.

[122]      Given the constitutional entrenchment of the language rights in subsections 16(1) and 20(1) of the Charter, the amendments to the Official Languages Act and the recent guidance from the Supreme Court of Canada in Beaulac v. The Queen, supra, concerning the principles to be applied in interpreting the scope and the application of language rights, I am of the opinion that the decision of Dickson J. in [1981] 1 S.C.R. 199">Kelso v. The Queen, supra is not determinative of whether Mr. Schreiber is entitled, in today"s constitutional and legislative framework, to a declaration that his rights were breached. In particular, at the time [1981] 1 S.C.R. 199">Kelso v. The Queen, supra, was decided, the languages rights in question were not constitutionally entrenched and the Official Languages Act did not contain a provision analogous to section 82 which asserts the primacy of certain Parts of the Act, including Parts IV and V pertaining to communications with and services to the public and the language of work, to the extent of inconsistency between them and any other Act or Regulation. In his analysis in [1981] 1 S.C.R. 199">Kelso v. The Queen, supra, Dickson J. concluded that the Exclusion Approval Order prohibited the government from removing an incumbent from his position solely on the basis of language. In arriving at that conclusion, he stated at page 207, among other things, that "[t]he government's right to allocate resources cannot override ... a regulation such as the Exclusion Order". Needless to say, since section 82 of the present Official Languages Act was not in force at that time, Dickson J. was not required to consider whether the provisions of the Official Languages Act took precedence over the Exclusion Approval Order. Furthermore, his decision was rendered prior to the proclamation of the Charter, which guaranteed in subsections 16(1) and 20(1) the equality of English and French as the official languages of Canada and the right of members of the public to communicate with and receive services in either official language from federal institutions. In the circumstances, the constitutional and legislative changes implemented following the decision in [1981] 1 S.C.R. 199">Kelso v. The Queen, supra, are significant and, in my respectful opinion, render obsolete the interpretative approach adopted by Dickson J.

[123]      The question of whether the Department breached Mr. Schreiber's right under the Exclusion Approval Order to be exempted from the language requirements of his position must therefore be considered in the context of the competing constitutional and legislative rights using the interpretative principles outlined in Beaulac v. The Queen, supra.

[124]      In the present case, the rights at issue arise from the Charter, the Official Languages Act and the Exclusion Approval Order, enacted pursuant to the regulation making power in the Public Service Employment Act.

[125]      From a constitutional perspective, the language rights entrenched in subsections 16(1) and 20(1) of the Charter are engaged in the present proceeding. With respect to the Official Languages Act, the language rights in issue are the section 21 right to communicate with and to receive services from a federal institution and the section 34 right that English and French are the languages of work in all federal institutions, with employees having the right to use either official language in accordance with the provisions in Part V. The language rights in sections 21 and 34 of the Official Languages Act mirror the rights guaranteed respectively in subsections 20(1) and 16(1) of the Charter. The corresponding duties imposed on federal institutions in sections 22, 35 and 36 of the Official Languages Act are also relevant.

[126]      With respect to the employment rights, paragraph 6(a) of the Exclusion Approval Order exempts from the operation of section 20 of the Public Service Employment Act an incumbent of an indeterminate position in which the language requirements were changed to require the knowledge and use of both official languages. As indicated previously, section 20 of the Public Service Employment Act imposes an obligation on employees in the public service to be "qualified in the knowledge and use of English or French or both" to the extent deemed necessary by the Public Service Commission "...in order that the functions of the department...can be performed adequately and effective service can be provided to the public". The only right in issue from the employment perspective is therefore the regulatory right in the Exclusion Approval Order to be exempted from the statutory obligation imposed in section 20 of the Public Service Employment Act. However, there are also the 1973 Joint Resolution and the 1973 policy in the Treasury Board Circular which state that a unilingual incumbent of a position has three options, namely to become bilingual, to transfer to another job or to remain in the position even though the post was designated as bilingual. In [1981] 1 S.C.R. 199">Kelso v. The Queen, supra, the Supreme Court of Canada held, at page 208, that the Joint Resolution and the Treasury Board Circular were not "...legally binding, in the sense of creating enforceable rights and obligations...", but rather were "...indicative of legislative intention".

[127]      In applying the interpretative principles outlined in Beaulac v. The Queen, supra, it must be noted that the present case involves an apparent conflict between the language rights in the Charter and in the Official Languages Act and the regulatory right in the Exclusion Approval Order exempting an incumbent employee in an indeterminate position from the requirement to become bilingual. In Beaulac v. The Queen, supra, there was no conflict between the language right in question and any other statutory right. Despite that distinction between the two cases, the interpretative principles outlined in Beaulac v. The Queen, supra must nevertheless be applied, given the clear and unequivocal statement by Bastarache J., at page 791 that "[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada...".

[128]      In applying the purposive approach adopted in Beaulac v. The Queen, supra, the starting point must be section 2 of the Official Languages Act. That section articulates in expansive and powerful terms the purpose of the Act, including the equality of status and equal rights and privileges of the use of English and French "...in all federal institutions...in communicating with or providing services to the public and in carrying out the work of federal institutions". Section 2 therefore affirms the substantive equality of the language rights recognized in the enactment. As indicated at page 791 of Beaulac v. The Queen, supra, the principle of substantive equality has meaning, and provides that institutionally based language rights "...require government action for their implementation and therefore create obligations for the State...".

[129]      As indicated previously, sections 21 and 34 of the Official Languages Act recognize, respectively, the right of a member of the public to communicate with and receive available services from federal institutions and the right of an employee to use either official language at work, as English and French are the languages of work in all federal institutions. The corresponding statutory duties in section 22 and sections 35 and 36 respectively require a federal institution to ensure that a member of the public can communicate with and receive available services from it in either official language within the National Capital Region and other prescribed areas, and that it provide work environments conducive to the effective use of both official languages. Those duties, imposed on federal institutions by the Official Languages Act, conform to the principle of substantive equality which requires positive government action to implement the recognized language rights. In other words, the purpose of the legislative duties imposed on federal institutions in sections 22, 35 and 36 is to implement and to give substantive effect and meaning to the rights recognized in sections 21 and 34. Furthermore, sections 35 and 36 constitute legislative recognition of the fact that right to work in either official language in a federal institution is illusory in the absence of an environment that respects the use of both official languages and encourages them to flourish. The purpose of sections 35 and 36 is therefore to ensure that bilingual workplaces are fostered and developed in federal institutions.

[130]      To prevent an incumbent employee in an indeterminate position from being adversely affected by reason of a change in the language requirements of the position, the Exclusion Approval Order was enacted in 1977 and amended in 1981, prior to the proclamation of the Charter, to provide an exemption from the requirements of bilingualism. In the circumstances of the present case, Mr. Schreiber, as the incumbent employee of an indeterminate position, has relied on the Exclusion Approval Order, as well as the expressions of intent and policy in the Joint Resolution and the Treasury Board Circular, to support his contention that he had the right to work operationally as an air traffic controller, despite the implementation by the Department of bilingual air traffic control services in the National Capital Region.

[131]      The right accorded under the Exclusion Approval Order to an incumbent employee in an indeterminate position need not always conflict with the rights and duties in the Official Languages Act. For example, circumstances may be envisaged in which it may be possible for a unilingual employee to remain in a position with bilingual language requirements without adversely affecting the implementation of a program to deliver bilingual services. As a result, in order to determine, in the context of the present proceeding, whether there is an inconsistency between the rights and duties in the Official Languages Act and the right in the Exclusion Approval Order, the nature of the bilingual services to be provided must be examined.

[132]      In the present case, given the integrated nature of the air traffic control operations and the importance of all controllers being aware of the level of activity and the events transpiring in the area, the Department chose to comply with its statutory duties and obligations under the Official Languages Act to give effect to the language rights in sections 21 and 34 by implementing a fully bilingual work environment for the safe and effective delivery of bilingual air traffic services. Indeed, since the inception of bilingual air traffic services in Quebec in 1978, the Department has consistently taken the position that all air traffic controllers working in an area offering such services must be bilingual. The Department also believed that a fully bilingual work environment was necessary to foster cohesiveness in the group effort required in the complex air traffic control environment, and that the presence of a unilingual air traffic controller would "force everyone to operate in his language", thereby frustrating its goal. Furthermore, the Canadian Air Traffic Control Association consistently opposed the implementation of bilingual air traffic control services at the Ottawa Control Tower unless it could be "safely implemented with a full staff of competent and fully qualified bilingual controllers". Even Mr. Schreiber, during his cross-examination, admitted that it was "better" for all of the air traffic controllers to be bilingual. The Department therefore sought to create a fully bilingual work environment in order to facilitate the section 21 right of a member of the public to communicate with and to receive services in either official language, and to comply with the section 34 right of its employees to use either official language. Indeed, given the unique nature of air traffic control operations, only a fully bilingual work environment could be "... conducive to the effective use of both official languages and accommodate the use of either official language by officers and employees", as required by paragraph 35(1)(a) of the Official Languages Act . Finally, a fully bilingual work environment was also consistent, on a long term basis, with the Department"s high safety requirements for the provision of air traffic control services.

[133]      In my opinion, the facts of the present case establish that there was an inconsistency between the constitutionally based language rights and the corresponding duties imposed on the Department in the Official Languages Act and the Exclusion Approval Order right excluding Mr. Schreiber from the requirement of bilingualism. By virtue of section 82 of the Official Languages Act, the provisions of Part IV and Part V, respectively involving communications with and services to the public and language of work, prevail to the extent of the inconsistency. In the circumstances of the present case, Mr. Schreiber was therefore not entitled to rely on paragraph 6(a) of the Exclusion Approval Order to exclude him from the operation of the bilingual requirements in section 20 of the Public Service Employment Act. As a result, he was not entitled to work operationally in his position as an air traffic controller at the Ottawa Control Tower following the implementation of bilingual air traffic control services, until such time as he met the language requirements of his position. In other words, given the unique and complex environment of air traffic control services at the Ottawa Control Tower, the Department was entitled to allow only fully bilingual air traffic controllers to work at that location following the implementation of bilingual services in 1992.

[134]      Given the fact that Mr. Schreiber ultimately successfully completed his language training and returned to work as a fully qualified bilingual air traffic controller, it is unnecessary for me to address what other options were available to him, other to state that the Department should have permitted him to transfer or to perform other meaningful work consistent with his training and expertise.

[135]      In light of my conclusion in this matter, it is unnecessary for me to consider the other issues raised by counsel.

DECISION

[136]      The action is dismissed with costs.

D. McGillis

____________________________

Judge

OTTAWA

October 21, 1999

__________________

¹ The original French language version of section 20 was slightly revised by the Statute Revision Committee prior to the publication of the 1985 Revised Statutes of Canada. The French version reproduced in the text of these reasons is that which appears in the Public Service Employment Act , R.S.C. 1985, c. P-33. The English version has never changed since its enactment.

² Section 7 of the Exclusion Approval Order , referred to in paragraph 6(a), has no relevance in the present case.