Pfahl v. Canada
T-2971-89
McGillis J.
9/12/93
14 pp.
Action for declarations rights as unilingual incumbents of bilingual positions breached; entitled to remain in or be reinstated to positions in emergency department -- Plaintiffs civilian nurses working in emergency department of National Defence Medical Centre (NDMC) from seven to nine years -- NDMC creating bilingual nursing positions in emergency department in response to critical report from Commissioner of Official Languages -- Plaintiffs not bilingual -- Transferred under protest from emergency department to other wards for reasons related solely to language -- Initially working at NDMC as casual or term employees, but acquiring indeterminate status by virtue of lengthy service -- Converted to indeterminate status under Exclusion Approval Orders made under authority of Public Service Employment Act -- Plaintiffs having generic job descriptions and occupying "Type A" positions which would disappear if transferred out -- DND in process of effecting administrative changes necessary to designate emergency department as military specialty area to train nurses in trauma care and other duties required in wartime deployment -- Charter, ss. 16(1), 20(1) guaranteeing equality of English and French as official languages of Canada and right of public to communicate with and receive available services from head or central offices of federal institutions in either language -- Official Languages Act, s. 22 providing every federal institution under duty to ensure public can communicate with and obtain available services from head or central office in either official language -- Public Service Employment Act, s. 20 requiring employees to be qualified in knowledge and use of both official languages "to extent Commission deeming 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" -- Public Service Official Languages Exclusion Approval Order, s. 6(a) excluding from operation of s. 20, in so far as knowledge and use of both official languages required for bilingual position for period during which bilingual position occupied, person occupying position to which appointed for indeterminate period, that he occupied at time identified as requiring knowledge and use of both official languages -- Whether plaintiffs occupying positions to which appointed on indeterminate basis within meaning of Public Service Official Languages Exclusion Approval Order -- Kelso v. The Queen, [1981] 1 S.C.R. 199 holding implicit unilingual incumbent will not be dismissed or adversely affected on basis of language ability -- Joint Resolution of House of Commons and Senate, adopted as government policy in Treasury Board Circular, explicitly providing unilingual incumbents of bilingual positions entitled to remain in their positions even though posts designated as bilingual -- While not legally binding, indicative of legislative intention -- Unilingual incumbents to be permitted to continue working at jobs or "positions" without disruption, despite failure to meet new language requirements applicable to "posts" or locations of work -- To give effect to legislative spirit and intent, "position" must be given ordinary meaning and not interpreted in unduly technical or restrictive manner -- In context of Official Languages Exclusion Approval Order to facts herein, "position" meaning performing job or function -- Plaintiffs occupying "positions" within meaning of Official Languages Exclusion Approval Order and excluded from general requirement of bilingualism in Public Service Employment Act -- No basis for distinguishing between rights accorded by Official Languages Exclusion Approval Order to indeterminate employees appointed to permanently established positions and indeterminate employees appointed to Type A positions -- Proposed designation of emergency department as military specialty area for training nurses in trauma care necessary, legitimate operational requirement of Department of National Defence -- Public interest weighing heavily against exercise of discretion in favour of permitting plaintiffs to return to work in emergency department and serving no useful purpose -- Action allowed in so far as declaration concerning breach of rights, but not concerning reinstatement -- Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 22 -- Public Service Employment Act, R.S.C, 1985, c. P-33, s. 20 -- Public Service Official Languages Exclusion Approval Order, SOR/77-886 -- Public Service Official Languages Exclusion Approval Order, SOR/81-787, s. 6(a) -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 16, 20.