Date:
20090123
Docket:
T-2181-07
Citation:
2009 FC 60
Ottawa,
Ontario, January 23,
2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
ATTORNEY GENERAL
OF CANADA
(Canadian Forces Grievance
Board)
Applicant
and
MICHELINE
ANNE MONTREUIL
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision by Michel Doucet, a member
of the Canadian Human Rights Tribunal (the Tribunal), dated November 20, 2007, allowing the
complaint alleging discrimination on the basis of sex of Micheline Anne
Montreuil (the respondent) pursuant to section 7 of the Canadian Human
Rights Act, R.S.C.
1985, c. H-6 (the Act).
[2]
The
application for judicial review is dismissed for the following reasons.
Factual Background
[3]
The
respondent identifies herself as being transgendered. It has been held by both the Tribunal
and this Court that this “particular condition” (paragraph 6 of the Tribunal's
decision) could form the basis for a claim of discrimination on the grounds of
“sex” as provided in section 3 of the Act.
[4]
The Board
is an independent civilian body of the Canadian Forces which, in accordance
with section 29 of the National Defence Act, R.S.C. 1985, c. N-5,
is responsible for examining military grievances filed by members of the
Canadian Forces, making findings and recommendations to the Chief of Defence
Staff for final decision. The Board was created in 2000, as part of a reform of
military justice that resulted from inquiry reports pointing to the need for an
independent grievance process for the members of the Canadian Forces.
[5]
The Board
created grievance officer positions; the main duties of the holders thereof are
reviewing the files, investigating, and taking part in the drafting of the findings
and recommendations of the Board. Grievance officers also act as specialists
with personnel and Board members.
[6]
When it
was established, the Board had no exact knowledge of the number, nature and
complexity of the grievances submitted to it by the Canadian Forces. But there
is no dispute that there was a significant backlog of grievances. A number of
grievances dated back several years. The Board’s human resources needs were
filled through secondments or transfers.
[7]
In
April 2002, the Board held its first external competition in order to
establish a pool of candidates for grievance officer term positions. A variety
of linguistic profiles were announced, and the Board was to select candidates
from the pool depending on potential future needs. The first internal
competition had been held in February 2002.
[8]
When she
applied on May 6, 2002, the respondent sent, among other things, the
results of the Public Service Commission of Canada English language exam, which
she had written on February
9, 2000. Her
language rating was “ECB”. On November 26, 2002, she wrote another
English-language written expression exam. Despite this attempt, she did not
achieve a “CCC” rating to be considered
bilingual. She did not pursue her training in order to improve her language proficiency.
[9]
On
August 30, 2002, she was asked to report to Valcartier military base to
take a written exam. On October 31, 2002, she was told that she had
passed her exam and that she would be invited to an interview by a selection
board.
[10]
The
interview took place in Ottawa on November 15, 2002. On
December 30 of the same year, she received confirmation that she had
qualified and that her name had been placed on an eligibility list as a
unilingual Francophone candidate. She was ranked third of the four candidates
placed on the list. The three others were included as unilingual Anglophone
candidates.
[11]
In the light
of its operational needs, the Board had concluded that the best way of abiding
by the spirit and the letter of the Official Languages Act, R.S.C. 1985,
c. 31 (4th Supp.), (the OLA) was to staff unilingual English or bilingual
grievance officer positions to meet the needs at that time.
[12]
All the
unilingual English candidates who had been placed on the eligibility list as a
result of the April 2002 competition were hired by the Board between
September 1 and December 18,
2003. During the
same period, the Board hired bilingual and unilingual English officers
(paragraph 46 of the decision).
[13]
The
eligibility list was valid until March 31, 2003, and there was an extension
until December 29, 2004. No candidate with the respondent’s linguistic
profile was hired as a result of the competition or has been so since the
Board’s creation in 2000.
[14]
On
August 27, 2004, the respondent filed a complaint with the Commissioner of
Official Languages alleging that she had suffered discrimination on the basis
of her language, based on the same facts as those set out in her complaint to
the Canadian Human Rights Commission (the Commission).
[15]
On
June 16, 2005, the Commission referred the respondent’s complaint to the
Tribunal.
[16]
On July 27, 2005, the Commissioner of Official
Languages dismissed the respondent’s complaint.
[17]
The
hearings were held before the Tribunal from April 16 to 20 and on
April 23, 2007. On November 20, 2007, the Tribunal held in favour of
the respondent, ruling that the complaint of discrimination on the basis of sex
(transgendered) was substantiated, and ordered the Board to pay her $44,174
plus interest.
Impugned Decision
[18]
Section 7
of the Act provides that it is a discriminatory practice, directly or
indirectly, to refuse to employ an individual on a prohibited ground of
discrimination, including sex or national or ethnic origin. The burden of proof
is first on the complainant, who must establish a prima facie case of
discrimination (Israeli v. C.H.R.C. and Public Service Commission (1983),
4 C.H.R.R. D/1616; Premakumar v. Air Canada, [2002] C.H.R.D. No. 3
(QL)). The evidence must substantiate allegations that must be complete and
sufficient to warrant a finding in the complainant's favour if they are believed,
in the absence of a response from the opposing party (Ontario (Human Rights
Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202 at page 8; Ontario
(Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 (hereafter
O’Malley)).
[19]
In
the context of employment, prima facie evidence comprises the following:
a) The complainant was
qualified for the employment at issue;
b) The complainant was not hired;
c) Someone no better
qualified but lacking the distinguishing feature, which is the gravamen of the
human rights complaint, subsequently obtained the position.
[20]
This
approach in Shakes v. Rex Pak Ltd. (1982), 3 C.H.R.R. D/1001 at paragraph 8918, has been adapted to situations in
which the complainant was not selected and the employer continued to look for
another candidate. In a similar case discussed
in Israeli, above at page D/1618, the establishment of a prima facie
case requires the following factors:
a) The complainant
belongs to one of the designated groups under the Act;
b) The complainant
applied for a job for which he or she was qualified;
c) Although qualified,
the complainant was rejected;
d) Thereafter, the
employer continued to seek applicants with the complainant's qualifications.
[21]
In
the case at bar, the Tribunal decided that neither of the approaches
specifically resolves the dilemma at hand. The Tribunal
used what it called a “flexible” approach by combining the two approaches and
by rephrasing, where necessary, the criteria to be applied according to the
facts that it had to analyse.
[22]
According
to the Tribunal, once the prima facie case is made out, the burden shifts
to the respondent, who has to provide a reasonable explanation for the alleged
conduct. The standard of proof in discrimination cases is the
ordinary civil standard of the balance of probabilities. According to this standard, discrimination may be inferred
where the evidence offered in support of the discrimination renders such an
inference more probable than the other possible inferences or hypotheses (Premakumar,
above, at paragraph 81). It is consequently
the Tribunal's task to consider all of the circumstances to determine if there
is what has been described as the “subtle scent of discrimination” (Premakumar,
above, at paragraph 79).
[23]
The
Tribunal noted that the respondent insisted on pointing out that the argument
based on language only served to support her complaint based on sex. She
alleged that the language ground had only been a pretext for not giving her the
desired position because of her “sex”. The Tribunal therefore addressed only
the discrimination complaint based on sex. However, it noted that it had to
address the language aspect of the complainant’s argument in its reasons.
[24]
Firstly,
following an analysis of the facts, the Tribunal found that the respondent had
the necessary competencies or qualifications to work as a grievance officer.
[25]
Secondly,
the Tribunal determined that the respondent’s application had been rejected.
The Tribunal explained that the letter dated December 30, 2002, said that the respondent had
qualified for the competition and that her name would be placed on an
eligibility list that would be effective until March 30, 2003.
[26]
In
response to two requests for information, the respondent received a letter on December 18, 2003, informing her that the Board
did not have an operational need for unilingual French grievance officers at
the time. The letter pointed out, however, that the Board was extending the
validity of the eligibility list for unilingual French grievance officer
positions (the respondent being the only unilingual French candidate on the
list) until March 2004 and assured the respondent that the Board would
call on her services should it need a unilingual French grievance officer. The
Tribunal then raised the following question (paragraph 45 of the
decision):
. . . Indeed, I am wondering
why the Board decided to extend this eligibility list when it seemed clear
. . . that the Board would never need a unilingual French grievance
officer since there were enough bilingual officers to handle this task.
[27]
The
Tribunal eventually found that the respondent’s application had been rejected
on the ground that the Board had placed her on an eligibility list for which
there was never any need. The Board had thus imposed a condition that was
impossible to fulfill; hence she would never be hired by the Board. There would
have to be such an increase in files to process in French that there would no
longer be enough bilingual officers to get the work done; only then would the
respondent have to be hired. The Board could simply increase the number of
bilingual officers, making it unnecessary to hire a unilingual French grievance
officer.
[28]
The
Tribunal then noted that the respondent was ranked third of the four candidates
that qualified for the eligibility list. The three other candidates, unilingual
Anglophones, were all hired. Nothing in the evidence suggests that the hired
candidates were more qualified to work as grievance officers than the
respondent. The Tribunal accepted the respondent’s argument that the only
difference between her and the other candidates was that she was transgendered.
Language was not the cause of the discrimination but rather a pretext for concealing
it.
[29]
The
Tribunal therefore determined that the respondent had established a prima
facie case of discrimination. The burden was now on the Board to provide a
reasonable explanation for the alleged conduct.
[30]
The
Board’s explanation for not hiring the respondent was that there was no
operational need for a unilingual French grievance officer. There were enough
bilingual grievance officers to handle the processing of the French-language
files. The Tribunal noted, however, that the advertisement for the competition
indicated that the majority of the positions were bilingual imperative “CCC”
but that “some [were] unilingual English or French” (page 1379, Volume VI,
Applicant’s Record). If the Board had been of the opinion that there were not
enough French language files to warrant hiring a grievance officer with this
profile, it would not have advertised that some positions were “unilingual
French”.
[31]
The
Tribunal noted that no evidence was offered to explain how many French-language
files would suffice for there to be an operational need to justify hiring a
unilingual Francophone grievance officer. Even with 35% of files being French
in 2005, the Board considered that it did not have the operational need for a
unilingual French grievance officer. Based on that evidence, the Tribunal found
that the Board would never need a “unilingual French” grievance officer, unless
there was an exceptional change in the linguistic composition of the files.
[32]
In support
of its decision, the Board also relied on the Policy on the Staffing of
Bilingual Positions issued by the Treasury Board of Canada Secretariat,
which provides for imperative staffing of specified term positions, meaning
that only those candidates who meet all the language requirements of the
position at the time of appointment can be accepted. Even though this policy
explains why the respondent could not get one of the bilingual positions, it
does not explain why the Board did not create a “unilingual Francophone”
position, given the job application and the competition notice (pages 1378 and
1379, Volume VI, Applicant’s Record).
[33]
The
Tribunal pointed out that it was not concerned with determining whether the
Board refused to hire the respondent because she was Francophone, but rather
whether the Board refused to hire her because she was transgendered, using her
language profile as a pretext. It recognized that it was not within the
Tribunal’s jurisdiction to determine whether a federal institution had
considered OLA requirements when staffing a position. It was also not within its
jurisdiction to determine whether a language requirement was simultaneously
discriminatory. It did, however, assume jurisdiction to verify whether a
language requirement for staffing was only a pretext for discrimination within
the meaning of the Act, so the Tribunal did not exceed its mandate. The fact
that an activity is subject to the OLA does not preclude the application of the
Act (see subsection 82(2) of the OLA and Canada (Attorney General) v. Uzoaba, [1995] 2 F.C. 569 (T.D.).
Even though the OLA may provide a remedy, this does not strip the Tribunal of
its jurisdiction to address the issue of discrimination.
[34]
The
Tribunal also pointed out that intent is not a precedent condition to a finding
of discrimination (O’Malley). It is therefore not necessary to
demonstrate that the Board members intended to discriminate against the
respondent. The Tribunal was of the opinion that simply saying that bilingual
officers could handle the French-language files if needed was not a
satisfactory answer.
[35]
The Tribunal
therefore found that, on a balance of probabilities, the Board had
discriminated against the respondent on the basis of sex (transgendered), in
violation of sections 3 and 7 of the Act.
[36]
After
having analysed the respondent’s claims, the Tribunal ordered that the
respondent be compensated in the amount of $39,174 for lost wages and that she
be awarded an additional $5,000 as special compensation, as provided for under
subsection 53(3) of the Act, plus interest.
Issues
1. Did
the Tribunal properly define and apply the correct legal test with regard to
the prima facie burden of proof?
2. Was
the Tribunal's decision reasonable in this case, given the evidence on which
the Board based its findings?
3. Did
the Tribunal encroach upon both the Commissioner's jurisdiction under the Official
Languages Act and the employer's management rights?
Relevant legislation
[37]
The
relevant legislation in this case appears in Schedule A, at the end of this
document.
Analysis
Standard of review
[38]
In
International Longshore & Warehouse Union (Maritime
Section), Local 400 v. Oster, [2002] 2 F.C. 430, 2001 FCT 1115, the Court held
that the Tribunal has superior expertise relating to fact-finding in a human
rights context.
[39]
In
this case, the first issue relates to the definition of the test for prima
facie evidence and its application to the facts. The
standard of review that applies to the definition
is that of correctness. When it comes to applying
this definition, as this is a question of mixed fact and law, the standard is that
of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
[40]
The
second issue is whether the decision was reasonable. As this is a
question of mixed fact and law, the standard of reasonableness applies (Dunsmuir,
above).
[41]
The
third issue concerns the Tribunal's role in relation to the Commissioner of
Official Languages' jurisdiction and the Board's management rights. On
questions of jurisdiction, the applicable standard of review is that of correctness
(Dunsmuir, above, at paragraph 57).
1. Did the Tribunal
properly define and apply the correct legal test with regard to the prima
facie burden of proof?
[42]
Section
7 of the Act provides that it is discriminatory to refuse to employ a person on
a prohibited ground of discrimination. The respondent argues that she
was discriminated against because of her sex, in violation of subsection 3(1).
[43]
The
Tribunal identified and described the two court-recognized approaches to the prima
facie evidence requirement in such matters recognized by the case law. It
;ade the following comments in this respect:
. . . Rather, the circumstances
of each case should be considered to determine if the application of either of
the tests, in whole or in part, is appropriate. Ultimately, the question will
be whether the complainant has satisfied the O'Malley test, that is: if
believed, is the evidence before the Tribunal complete and sufficient to
justify a finding in the complainant's favour, in the absence of an answer from
the respondent? . . . (paragraph 22 of the
decision)
[44]
According
to the applicant, the essential structural basis of the case is lacking because
the Tribunal had to identify the requirements of the particular analytical
approach it was applying.
The Tribunal imposed an ambiguous prima facie burden
of proof on the respondent and an unrealistic burden of justification on the
applicant.
[45]
Firstly,
the applicant is of the opinion that it was unreasonable for the Tribunal to find
that the respondent was qualified for the grievance officer position the term
of which was to end on December 31, 2004, irrespective of the language
requirements of the positions to be filled.
[46]
Secondly,
the applicant challenges the Tribunal's inference that if the number of
French-language files grew, the Board would increase the number of bilingual
officers rather than employ the respondent. This assertion
is not based on any evidence other than the respondent's testimony. The Tribunal drew an adverse inference from the three
extensions of the validity of the eligibility list of unilingual French
candidates without clarifying the meaning or scope of that inference. The applicant argues that the Tribunal failed to consider
that the list of unilingual French candidates was extended on the basis of the
Board's potential future needs.
[47]
The
Tribunal did not refer to any evidence relating the respondent's complaint to
the alleged ground of discrimination, namely sex (transgendered).
[48]
Thirdly,
the Tribunal should have addressed the question whether a person who was not
transgendered and who was no more qualified than the respondent had obtained
the position and not whether the hired candidates had been more qualified than
she was. By raising the wrong question, the Tribunal made an error
that affects the very basis of its decision.
[49]
According
to the applicant, the Tribunal should have considered the language requirements
of the grievance officer positions to be filled and found that the respondent
did not meet those requirements. If it had taken the language
requirements into account, the Tribunal would have found that the hired
candidates were more qualified than the respondent and would have been compelled
to hold that the respondent had not made out a prima facie case of
discrimination.
[50]
The
respondent argues that the Board attempted to circumvent the provisions of the
Act by claiming operational language needs. In her
opinion, the applicant is evading the question, which is discrimination based
on sex.
[51]
The
respondent cites Gendron v. Supply and Services Union of the Public Service
Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, and Richard v.
Sulconam Inc., [1986] R.D.J. 597, 2 A.C.W.S. (3d) 76, to point out
that there is a non-interference rule for superior courts and that this rule of
prudence should be respected in this case.
[52]
She also
relies on Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; Canadian
Association of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of
Canada Ltd., [1989] 2 S.C.R. 983; Miriam Home v. Canadian Union of
Public Employees (Local 2115), [1985] 1 S.C.R. 137, for the definition
of the unreasonableness of a decision.
[53]
In
my opinion, the Tribunal stated the law correctly in its analysis of the
principles recognized by the case law concerning the prima facie burden
that complainants who claim that they have been discriminated against must meet
(paragraphs 15 to 26 of the decision). The Tribunal properly identified
the relevant factors that characterize prima facie evidence.
[54]
What about
the application of these principles to the case at bar? The Tribunal first asked itself the following question: “Does the
complainant have the skills or qualifications necessary to fill the position?”
[55]
The
applicant argues that the respondent was not qualified because she did not meet
the language requirements of the positions (paragraphs 54 to 59, Respondent's
Memorandum of Fact and Law).
[56]
However,
the Tribunal took the competition notice (April 2002) into account, in terms of
both the résumé and the level of experience required for being placed on the
eligibility list. It then noted that the respondent had passed the written exam
and the interview, ranking third of the four candidates to be placed on the
list.
[57]
The
December 30, 2002 letter (page 1112, Applicant’s Record), signed by Mireille
Royer on behalf of the Board and sent to the respondent, persuaded the Tribunal
that the respondent had qualified. The first paragraph of the letter
stated, [translation] “This is to
inform you that the members of the selection board have completed the evaluation
of the candidates and that you have qualified in the abovementioned
competition”.
[58]
In my opinion, this letter is sufficient in itself to
support the Tribunal in its finding that the respondent had the necessary
competencies or qualifications to work as a grievance officer.
[59]
Then
the Tribunal determined that the respondent's application had been rejected. This
finding was the result of a detailed analysis of the files to be processed and
the number of positions filled until December 2004. Even though, technically, the Board did not officially
reject the respondent's application, the Tribunal, after hearing the
applicant's witnesses, found that the Board would never hire a unilingual
French grievance officer.
[60]
The
testimonies of Ms. Laurin and Ms. Korngold-Wexler (applicant's
witnesses) support the Tribunal's finding. In my opinion,
the Court's intervention is not warranted. The same
is true of the Tribunal's finding that the unilingual Anglophone candidates,
all of whom were hired, were not more qualified than the respondent.
2. Was the Tribunal's
decision reasonable in this case, given the evidence on which the Board based
its findings?
[61]
According
to the applicant, the Tribunal never challenged the credibility of the
witnesses who were asked to support the allegations. A number of
relevant facts were omitted or forgotten. For
example, according to the Tribunal, the Board did not explain why it had advertised
different linguistic profiles and why it had decided to create an eligibility
list of qualified unilingual Francophone candidates and to extend the validity thereof
although it later found that it did not have a need for an applicant that
matched that profile. This conclusion is
confusing and blends two distinct elements, namely, transgenderism and insufficient
language proficiency, as if they were inseparable. To find that the respondent was not hired because she is unilingual
Francophone does not mean that she was not hired because she is transgendered.
[62]
The
applicant correctly states that the Tribunal did not rule on the credibility of
its witnesses. However, the Tribunal stated that it was not persuaded by
the grounds invoked by the Board's witnesses for not hiring the respondent.
The Tribunal found that there was a “subtle scent of
discrimination” (paragraph 68 of the decision). It
relied, among other things, on the witnesses who testified in support of the
applicant that there were a sufficient number of French-language files to hire
a unilingual Francophone grievance officer.
[63]
After having verified Ms. Laurin's testimony (page 767,
Applicant’s Record), I note that this assertion is supported by the evidence.
[64]
Moreover, the
Tribunal observed an inconsistency between the statistics shown in a table
submitted by Ms. Korngold-Wexler and her letter dated December 18, 2003, concerning the
French- and English-language grievances the Board had processed. Once
again, if one compares the two documents (table: page 1453 and letter dated
December 18, 2003, page 1115, Applicant’s Record), it is clear that the figures
do not match. The Tribunal was correct, in my
opinion, not to be persuaded by the Board's explanation for not hiring the
respondent.
[65]
The
Tribunal inferred that the Board had not offered a grievance officer position
to the respondent because she was transgendered (paragraphs 68 to 72 of the
decision).
[66]
The
reasons supporting this conclusion are backed up by evidence: the documents and
testimonies that the Tribunal had to analyse, interpret and review. I
am of the opinion that the Tribunal' solution was rational and acceptable
according to the Dunsmuir criteria (herein above at paragraph 47).
3. Did the Tribunal encroach
upon the Commissioner's jurisdiction under the Official Languages Act as
well as the employer's management rights?
[67]
The
applicant argues that, according to the case law, it is exclusively for the
Commissioner of Official Languages to analyze the merits of language
requirements (Canada (Attorney General) v. Asselin (1995), 100 F.T.R.
309, 57 A.C.W.S.
(3d) 956 (F.C.T.D.), at paragraphs 11 and 12).
The Board rightly determined that its operational
needs did not warrant the hiring of a unilingual Francophone candidate and that
this was why the respondent was not employed. The
Tribunal erred in ruling on the merits of the language requirements imposed for
the staffing of positions, thus encroaching upon a jurisdiction conferred
solely on the Commissioner by the OLA.
[68]
The
Tribunal exceeded its jurisdiction. It should have presumed the correctness
of the language requirements determined by the Board and should have dismissed
the complaint.
[69]
The
applicant cites Gosselin (Tutor of) v. Quebec (Attorney
General), [2005] 1 S.C.R. 238, at paragraph 21, which refers to Mahe v.
Alberta, [1990] 1 S.C.R. 342, in support of his position that the Board's decisions
on the linguistic profiles of the grievance officer positions were licit under
the OLA.
Consequently, the Tribunal’s argument that language was a pretext for concealing
the discrimination against the respondent is not reasonable.
[70]
The
applicant adds that the Commissioner of Official Languages dismissed the
respondent's complaint on July 27, 2005. The respondent
could have sought the remedy provided for under section 77 of the OLA (see Forum
des maires de la Péninsule acadienne v. Canada (Canadian Food
Inspection Agency), 2004 FCA 263, [2004] 4 F.C. 276); she failed
to do so.
[71]
She cannot
now use language characteristics to support the alleged discrimination.
[72]
Lastly,
the applicant submits that the Board's operational needs did not warrant the hiring
of a unilingual Francophone candidate. By substituting its own
assessment for that of the Board, the Tribunal interfered with the management
power of the employer, which has the duty to determine its needs and, as
provided for under subsections 7(1) and 11(2) of the Financial
Administration Act, R.S.C. 1985, c. F-11, take
the appropriate measures to organize and manage its human resources.
[73]
In
reference to paragraphs 60 to 65 of the Tribunal's decision, I note that the
Tribunal took pains to discuss the OLA and an employer's management rights. With
deference for those who hold a different view, I am not of the view that the
Tribunal encroached upon a power that it did not have. Indeed, the Tribunal’s
conclusion in paragraph 65—“Even though there may be recourse under the Official
Languages Act, this does not strip the Tribunal of its jurisdiction to
address the issue of discrimination if need be”—is not unreasonable in the light
of its foregoing analysis.
JUDGMENT
THE COURT ORDERS that the application for
judicial review be dismissed. Costs in the form of a $3,000 lump sum are
awarded to the respondent.
“Michel
Beaudry”
Certified
true translation
François
Brunet, Reviser
Schedule A
Canadian Human Rights Act, R.S.C. 1985, c. H-6:
|
3. (1) For all purposes of
this Act, the prohibited grounds of discrimination are race, national or
ethnic origin, colour, religion, age, sex, sexual orientation, marital
status, family status, disability and conviction for which a pardon has been
granted.
|
3.
(1) Pour l’application de la présente loi,
les motifs de distinction illicite sont ceux qui sont fondés sur la race,
l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe,
l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état
de personne graciée ou la déficience.
|
|
7. It is a discriminatory
practice, directly or indirectly,
(a)
to refuse to employ or continue to employ any individual, or
(b)
in the course of employment, to differentiate adversely in relation to an employee,
on
a prohibited ground of discrimination.
|
7. Constitue un acte
discriminatoire, s’il est fondé sur un motif de distinction illicite, le
fait, par des moyens directs ou indirects :
a)
de refuser d’employer ou de continuer d’employer un individu;
b)
de le défavoriser en cours d’emploi.
|
|
53.
(2) If at
the conclusion of the inquiry the member or panel finds that the complaint is
substantiated, the member or panel may, subject to section 54, make an order
against the person found to be engaging or to have engaged in the
discriminatory practice and include in the order any of the following terms
that the member or panel considers appropriate:
(a)
that the person cease the discriminatory practice and take measures, in
consultation with the Commission on the general purposes of the measures, to
redress the practice or to prevent the same or a similar practice from
occurring in future, including
(i)
the adoption of a special program, plan or arrangement referred to in
subsection 16(1), or
(ii)
making an application for approval and implementing a plan under section 17;
(b)
that the person make available to the victim of the discriminatory practice,
on the first reasonable occasion, the rights, opportunities or privileges
that are being or were denied the victim as a result of the practice;
(c)
that the person compensate the victim for any or all of the wages that the
victim was deprived of and for any expenses incurred by the victim as a
result of the discriminatory practice;
(d)
that the person compensate the victim for any or all additional costs of
obtaining alternative goods, services, facilities or accommodation and for
any expenses incurred by the victim as a result of the discriminatory
practice; and
(e)
that the person compensate the victim, by an amount not exceeding twenty
thousand dollars, for any pain and suffering that the victim experienced as a
result of the discriminatory practice.
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53. (2) À l’issue de
l’instruction, le membre instructeur qui juge la plainte fondée, peut, sous
réserve de l’article 54, ordonner, selon les circonstances, à la personne
trouvée coupable d’un acte discriminatoire :
a)
de mettre fin à l’acte et de prendre, en consultation avec la Commission
relativement à leurs objectifs généraux, des mesures de redressement ou des
mesures destinées à prévenir des actes semblables, notamment :
(i)
d’adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii)
de présenter une demande d’approbation et de mettre en oeuvre un programme
prévus à l’article 17;
b)
d’accorder à la victime, dès que les circonstances le permettent, les droits,
chances ou avantages dont l’acte l’a privée;
c)
d’indemniser la victime de la totalité, ou de la fraction des pertes de
salaire et des dépenses entraînées par l’acte;
d)
d’indemniser la victime de la totalité, ou de la fraction des frais
supplémentaires occasionnés par le recours à d’autres biens, services,
installations ou moyens d’hébergement, et des dépenses entraînées par l’acte;
e)
d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un
préjudice moral.
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53. (3) In addition to any
order under subsection (2), the member or panel may order the person to pay
such compensation not exceeding twenty thousand dollars to the victim as the
member or panel may determine if the member or panel finds that the person is
engaging or has engaged in the discriminatory practice wilfully or
recklessly.
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53. (3) Outre les pouvoirs que
lui confère le paragraphe (2), le membre instructeur peut ordonner à l’auteur
d’un acte discriminatoire de payer à la victime une indemnité maximale de 20
000 $, s’il en vient à la conclusion que l’acte a été délibéré ou
inconsidéré.
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53. (4) Subject to the rules
made under section 48.9, an order to pay compensation under this section may
include an award of interest at a rate and for a period that the member or
panel considers appropriate.
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53. (4) Sous réserve des règles
visées à l’article 48.9, le membre instructeur peut accorder des intérêts sur
l’indemnité au taux et pour la période qu’il estime justifiés.
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National
Defence Act,
R.S.C. 1985, c. N-5:
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29. (1) An officer or
non-commissioned member who has been aggrieved by any decision, act or
omission in the administration of the affairs of the Canadian Forces for which
no other process for redress is provided under this Act is entitled to submit
a grievance.
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29. (1) Tout officier ou
militaire du rang qui s’estime lésé par une décision, un acte ou une omission
dans les affaires des Forces canadiennes a le droit de déposer un grief dans
le cas où aucun autre recours de réparation ne lui est ouvert sous le régime
de la présente loi.
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Official
Languages Act,
R.S.C. 1985, c. 31 (4th Supp.):
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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; and
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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;
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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
(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.
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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) :
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.
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39. (1) The Government of Canada is committed to ensuring
that
(a)
English-speaking Canadians and French-speaking Canadians, without regard to
their ethnic origin or first language learned, have equal opportunities to obtain
employment and advancement in federal institutions; and
(b)
the composition of the work-force of federal institutions tends to reflect
the presence of both the official language communities of Canada, taking into account the
characteristics of individual institutions, including their mandates, the
public they serve and their location.
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39. (1) Le gouvernement fédéral
s’engage à veiller à ce que :
a)
les Canadiens d’expression française et d’expression anglaise, sans
distinction d’origine ethnique ni égard à la première langue apprise, aient
des chances égales d’emploi et d’avancement dans les institutions fédérales;
b)
les effectifs des institutions fédérales tendent à refléter la présence au
Canada des deux collectivités de langue officielle, compte tenu de la nature
de chacune d’elles et notamment de leur mandat, de leur public et de
l’emplacement de leurs bureaux.
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56. (1) It is the duty of the
Commissioner to take all actions and measures within the authority of the
Commissioner with a view to ensuring recognition of the status of each of the
official languages and compliance with the spirit and intent of this Act in
the administration of the affairs of federal institutions, including any of
their activities relating to the advancement of English and French in
Canadian society.
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56. (1) Il incombe au
commissaire de prendre, dans le cadre de sa compétence, toutes les mesures
visant à assurer la reconnaissance du statut de chacune des langues
officielles et à faire respecter l’esprit de la présente loi et l’intention
du législateur en ce qui touche l’administration des affaires des
institutions fédérales, et notamment la promotion du français et de l’anglais
dans la société canadienne.
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58. (1) Subject to this Act,
the Commissioner shall investigate any complaint made to the Commissioner
arising from any act or omission to the effect that, in any particular
instance or case,
(a)
the status of an official language was not or is not being recognized,
(b)
any provision of any Act of Parliament or regulation relating to the status
or use of the official languages was not or is not being complied with, or
(c)
the spirit and intent of this Act was not or is not being complied with
in
the administration of the affairs of any federal institution.
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58. (1) Sous réserve des
autres dispositions de la présente loi, le commissaire instruit toute plainte
reçue — sur un acte ou une omission — et faisant état, dans l’administration
d’une institution fédérale, d’un cas précis de non-reconnaissance du statut
d’une langue officielle, de manquement à une loi ou un règlement fédéraux sur
le statut ou l’usage des deux langues officielles ou encore à l’esprit de la
présente loi et à l’intention du législateur.
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77. (1) Any person who has
made a complaint to the Commissioner in respect of a right or duty under
sections 4 to 7, sections 10 to 13 or Part IV, V or VII, or in respect of section 91, may
apply to the Court for a remedy under this Part.
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77. (1) Quiconque a saisi le
commissaire d’une plainte visant une obligation ou un droit prévus aux
articles 4 à 7 et 10 à 13 ou aux parties IV, V, ou VII, ou fondée sur
l’article 91, peut former un recours devant le tribunal sous le régime de la
présente partie.
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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.
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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.
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Financial
Administration Act,
R.S.C. 1985, c. F-11:
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7. (1) The Treasury Board may
act for the Queen’s Privy Council for Canada on all matters relating to
(a)
general administrative policy in the federal public administration;
(b)
the organization of the federal public administration or any portion thereof,
and the determination and control of establishments therein;
(c)
financial management, including estimates, expenditures, financial
commitments, accounts, fees or charges for the provision of services or the
use of facilities, rentals, licences, leases, revenues from the disposition
of property, and procedures by which departments manage, record and account
for revenues received or receivable from any source whatever;
(d)
the review of annual and longer term expenditure plans and programs of
departments, and the determination of priorities with respect thereto;
(d.1)
the management and development by departments of lands, other than Canada
Lands as defined in subsection 24(1) of the Canada Lands Surveys Act;
(e)
human resources management in the federal public administration, including
the determination of the terms and conditions of employment of persons
employed in it;
(e.1)
the terms and conditions of employment of persons appointed by the Governor
in Council that have not been established under this or any other Act of
Parliament or order in council or by any other means; and
(e.2)
internal audit in the federal public administration;
(f)
such other matters as may be referred to it by the Governor in Council.
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7.
(1) Le Conseil du Trésor peut agir au nom du
Conseil privé de la Reine pour le Canada à l’égard des questions suivantes :
a)
les grandes orientations applicables à l’administration publique fédérale;
b)
l’organisation de l’administration publique fédérale ou de tel de ses
secteurs ainsi que la détermination et le contrôle des établissements qui en
font partie;
c)
la gestion financière, notamment les prévisions budgétaires, les dépenses,
les engagements financiers, les comptes, le prix de fourniture de services ou
d’usage d’installations, les locations, les permis ou licences, les baux, le
produit de la cession de biens, ainsi que les méthodes employées par les
ministères pour gérer, inscrire et comptabiliser leurs recettes ou leurs
créances;
d)
l’examen des plans et programmes des dépenses annuels ou à plus long terme
des ministères et la fixation de leur ordre de priorité;
d.1)
la gestion et l’exploitation des terres par les ministères, à l’exclusion des
terres du Canada au sens du paragraphe 24(1) de la Loi sur l’arpentage des
terres du Canada;
e)
la gestion des ressources humaines de l’administration publique fédérale,
notamment la détermination des conditions d’emploi;
e.1)
les conditions d’emploi des personnes nommées par le gouverneur en conseil
qui ne sont pas prévues par la présente loi, toute autre loi fédérale, un
décret ou tout autre moyen;
e.2)
la vérification interne au sein de l’administration publique fédérale;
f)
les autres questions que le gouverneur en conseil peut lui renvoyer.
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11.
(2) The
Governor in Council may designate any position to be the position of deputy
head in respect of
(a)
any portion of the federal public administration named in Schedule IV or V
for which there is no chief executive officer; and
(b)
each portion of the federal public administration designated for the purpose
of paragraph (d) of the definition “public service” in subsection (1) for
which there is no chief executive officer.
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11. (2) Le gouverneur en
conseil peut désigner tout poste comme poste d’administrateur général :
a)
pour chacun des secteurs de l’administration publique fédérale figurant aux
annexes IV ou V sans premier dirigeant;
b)
pour chacun des secteurs de l’administration publique fédérale sans premier
dirigeant désigné pour l’application de l’alinéa d) de la définition de
«fonction publique » au paragraphe (1).
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