A-742-85
Denise Headley and Local 613, Canada Employ
ment and Immigration Union (of the Public Ser
vice Alliance of Canada) (Applicants)
v.
Public Service Commission Appeal Board
(Respondent)
INDEXED AS: HEADLEY v. CANADA (PUBLIC SERVICE COM
MISSION APPEAL BOARD)
Court of Appeal, Pratte, Urie and MacGuigan
JJ.—Toronto, December 10 and 12, 1986; Ottawa,
January 26, 1987.
Public service — Selection process — Competitions —
Applicant screened out as not proficient in any of languages
specified as basic qualification — No denial of equal treat
ment — Incumbents and applicants not constituting similarly
situated groups — Imposition of new qualification neither
unreasonable nor unfair — Inherent right of management to
establish qualifications — Application to set aside respond
ent's decision, dismissed — Public Service Employment Act,
R.S.C. 1970, c. P-32, s. 10 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
Constitutional law — Charter of Rights — Equality rights
— Applicant not meeting language requirement specified as
basic qualification — Whether denied equal treatment in that
incumbents not subject to requirement — Analysis of s. 15 —
Enumerated and non-enumerated grounds of discrimination
— Burden of proving discrimination based on language not
discharged — Prima facie case of unreasonableness not estab
lished — No unequal treatment — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1,
15 — Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
1.
The applicant, who sought a CR-4 position at the Canada
Employment and Immigration Commission, was screened out
on the ground that she did not possess proficiency in any of the
six languages specified as a basic qualification. The applicant
contends that the Public Service Commission Appeal Board
erred in law in dismissing her appeal based on section 15 of the
Charter. She alleges having been denied equal treatment on the
ground that the incumbents of that position were not subject to
such a language requirement.
Held, the section 28 application should be dismissed.
Per MacGuigan J.: The necessity for a complainant to prove
a more than "trivial or insubstantial" violation of rights, as
those words were used in the Supreme Court of Canada
decision in R. v. Edwards Books and Art Ltd. extends to all the
rights and freedoms guaranteed in the Charter. By enumerat
ing specific grounds in section 15, the legislator has made the
fundamental determination that pejorative distinctions based
on those grounds constitute discrimination whereas in other
cases the complainant has to prove that discrimination results.
Non-trivial pejorative distinctions based on section 15 grounds
are intended to be justified by governments under section 1 of
the Charter rather than to be proved as infringements by
complainants under section 15.
The applicant's burden of proving discrimination on the basis
of language, without the benefit of an enumerated ground, has
not been met. Management's right to establish qualifications
for public service positions has been regarded as "inherent" at
least since the decision of this Court in Bauer v. Public Service
Appeal Board, [1973] F.C. 626 (C.A.). The only limitation
section 15 imposes on management is that it must not discrimi
nate in carrying out its responsibilities. The best criterion of
discrimination was that stated by McIntyre J. in MacKay v.
The Queen, [1980] 2 S.C.R. 370. On the basis of that test, the
complainant was required to establish a prima facie case of
unreasonableness. The facts of the case, as found by the Board,
demonstrate that she was unable to do so. Moreover, the
applicant has failed to establish her case on her own proposed
test—which was substantially that of McIntyre J.
Per Pratte J. (concurring in the result): For section 15 to
apply, there must be an inequality; there must also be discrimi
nation. There is inequality when persons who are similarly
situated are treated differently; there is discrimination when
that difference of treatment is neither fair nor reasonable. Both
those elements are absent in the present case. Persons appoint
ed to similar positions in the past and those in the applicant's
situation cannot be said to be similarly situated. Section 15
guarantees equality only to those who, at a given moment, are
in the same situation. Moreover, it is impossible, in view of the
findings of the Board, to conclude that the imposition of a new
qualification was both unreasonable and unfair.
Per Urie J. (concurring in the result): It is not necessary, for
the purposes of this application, to decide which interpretation
of section 15 is preferable. The facts clearly indicate that there
was no inequality in treatment. Job qualifications must be
flexible to meet changing operational requirements. Persons
applying for a position and incumbents do not constitute simi
larly situated groups, which is a prerequisite for a finding of
inequality.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713;
MacKay v. The Queen, [1980] 2 S.C.R. 370; Bauer v.
Public Service Appeal Board, [1973] F.C. 626 (C.A.);
The Queen v. Ricketts, judgment dated October 31,
1983, Federal Court, Appeal Division, A-807-82, not
reported.
REFERRED TO:
Shewchuk v. Ricard, [1986] 4 W.W.R. 289; 28 D.L.R.
(4th) 429 (B.C.C.A.); Rebic v. Coliver Prov. J., [1986] 4
W.W.R. 401 (B.C.C.A.); Andrews v. Law Soc. of B.C.,
[1986] 4 W.W.R. 242 (B.C.C.A.); Cromer v. B.C.
Teachers' Fed., [1986] 5 W.W.R. 638 (B.C.C.A.); R. v.
LeGallant, [1986] 6 W.W.R. 372 (B.C.C.A.); R. v.
Oakes, [1986] 1 S.C.R. 103; Re McDonald and the
Queen (1985), 51 O.R. (2d) 745; 21 C.C.C. (3d) 330
(C.A.); Bregman et al. v. Attorney-General of Canada
(1986), 55 O.R. (2d) 596 (H.C.); D & H Holdings Ltd.
v. Vancouver (1985), 15 Admin. L.R. 209 (B.C.S.C.); Re
Blainey and Ontario Hockey Association et al. (1986),
54 O.R. (2d) 513 (C.A.); Reference re an Act to Amend
the Education Act (1986), 53 O.R. (2d) 513 (C.A.); Re
Aluminum Co. of Canada, Ltd. and The Queen in right
of Ontario; Dofasco Inc., Intervenor (1986), 55 O.R. (2d)
522 (Div. Ct.); R. v. Big M Drug Mart Ltd., [1985] 1
S.C.R. 295; Smith, Kline & French Laboratories Ltd. v.
Canada (Attorney General), judgment dated December 9,
1986, Federal Court, Appeal Division, A-909-85, not yet
reported; affirming [1986] 1 F.C. 274 (T.D.).
COUNSEL:
Barbara L. Jackman for applicants.
M. Thomas for respondent.
SOLICITORS:
Chiasson, Jackman, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: As indicated by my brother Mac-
Guigan J., the only question raised by this applica
tion is whether the Board that rendered the deci
sion under attack erred in law in rejecting the
applicant's argument that section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] had been
violated by the decision of the Department of
Manpower and Immigration to require, as a basic
qualification for the position coveted by the appli
cant, Denise Headley, a new qualification that had
not been required and was still not required from
the incumbents of similar positions that had been
appointed in the past.
In answering that question, my brother Mac-
Guigan finds it necessary to express his views on
the interpretation to be given to section 15 and, as
I understand his reasons, his interpretation of that
section differs both from the interpretation adopt
ed by the British Columbia Court of Appeal in the
cases of Shewchuk, Rebic, Andrews, Cromer and
LeGallant' and from that proposed by my brother
Hugessen J. in Smith, Kline & French Laborato
ries Ltd.' If it were necessary, in order to decide
this case, to choose between those various interpre
tations, I confess that I would have to express my
agreement with the interpretation adopted by the
British Columbia Court of Appeal and, more par
ticularly, with the reasons of McLachlin J.A. in
Andrews v. Law Soc. of B.C., supra. True, that
interpretation, as was observed by my brother
Hugessen, leaves little room for the operation of
section 1. However, I do not see that result as
contrary to the teachings of the Supreme Court of
Canada in R. v. Oakes' since it flows from an
analysis of the words used in section 15 rather
than from a confusion or combination of that
section with section 1.
This, however, does not lead me to a conclusion
different from the one proposed by my brother
MacGuigan. There are, in my opinion, two main
reasons why the applicant cannot successfully
invoke section 15. In order for that section to
apply, there must be an inequality; there must also
be discrimination. There is inequality within the
meaning of section 15 when persons who are simi
larly situated are treated differently; there is dis
crimination when that difference of treatment is
neither fair nor reasonable. In my view, both these
elements are absent in this case.
' Shewchuk v. Ricard, [1986] 4 W.W.R. 289 (B.C.C.A.);
Rebic v. Collver Prov. J., [1986] 4 W.W.R. 401 (B.C.C.A.);
Andrews v. Law Soc. of B.C., [1986] 4 W.W.R. 242
(B.C.C.A.); Cromer v. B.C. Teachers' Fed., [1986] 5 W.W.R.
638 (B.C.C.A.); R. v. LeGallant, [1986] 6 W.W.R. 372
(B.C.C.A.).
2 Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), not yet reported, December 9, 1986
(F.C.A.), Court No. A-909-85.
3 [1986] 1 S.C.R. 103, at p. 134.
The decision to require an additional qualifica
tion for the position here in question did not, in my
view, create an inequality within the meaning of
section 15 because the persons who were appointed
to similar positions in the past and those who, like
the applicant, wish to be appointed to such a
position in the future cannot be said to be similarly
situated. It is obvious that if the law is changed,
those who are governed by it will no longer be
treated in the same manner. That does not offend
section 15 because that section guarantees equality
only to those who, at a given moment, are in the
same situation.
The decision to require an additional qualifica
tion did not, either, cause any discrimination. As
my brother MacGuigan indicates, it is impossible,
in view of the findings of the Board, to conclude
that the imposition of a new qualification was both
unreasonable and unfair.
I would dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of my brothers Pratte
and MacGuigan and agree with their proposed
disposition of the section 28 application.
However, I do not believe it either necessary or
desirable to express my views upon the niceties
involved in the interpretation of section 15 of the
Charter. Nor do I wish to decide, for purposes of
this application, whether the approach to the inter
pretation thereof adopted by the British Columbia
Court of Appeal in the Andrews' case or that
expressed by this Court in the Smith, Kline &
French 5 case, is preferable.
On the facts of this case, a detailed analysis of
the principles is unnecessary because it is easy to
find first, that there was no inequality in treatment
between the applicant and others like her and the
incumbents of similar positions by reason of the
4 Andrews v. Law Soc. of B.C., [1986] 4 W.W.R. 242
(B.C.C.A.).
5 Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), not yet reported, December 9, 1986, No.
A-909-85.
change in the qualifications required of applicants
for new positions. Simply put, the two groups are
not similarly situated, which is a prerequisite for a
finding of inequality. Job qualifications cannot be
etched in stone but must be flexible to meet chang
ing operational requirements. Changes occasioned
thereby do not, at least in the circumstances here
present, create inequality because, obviously, the
old groups and the new groups are not similarly
situated.
Secondly, as has been observed by both Pratte
and MacGuigan JJ., in view of the clear and
supportable findings of the Board, it is not possible
to conclude that the applicant has been the victim
of discrimination by her employer, the imposition
of the new job qualifications not being unreason
able or unfair in the circumstances.
I would dismiss the section 28 application.
* * *
The following are the reasons for judgent ren
dered in English by
MACGUIGAN J.: This section 28 application is
brought to review and set aside a decision of the
Public Service Commission Appeal Board ("the
Board") dated September 6, 1985, dismissing the
applicant's appeal to the Board.
The applicant, an employee of the Canada
Employment and Immigration Commission ("the
employer"), alleges that the Board erred in law in
not upholding her appeal on the basis of section 15
of the Canadian Charter of Rights and Freedoms.
The facts are simple. The employer advertised a
closed competition for the position of "CR-4,
Reception Information Clerk" for the Toronto
West Canada Immigration Centre. The applicant
was screened out because she did not have profi
ciency in the use of one of the six languages
(Vietnamese, Chinese, Polish, Portuguese, Italian,
Spanish) the employer had specified as a basic
requirement in the statement of qualifications for
the position.
It is common ground that the merit principle
enshrined in section 10 of to Public Service
Employment Act [R.S.C. 1970, c. P-32] ("the
Act") was fully observed by the selection board in
its actual assessment of candidates and that the
applicant has no complaint vis-à-vis the treatment
of the other candidates. Her allegation of unequal
treatment is essentially in relation to the two other
incumbents of CR-4, Reception Information Clerk
positions in the Toronto West Canada Immigra
tion Centre, neither of whom is required to possess
proficiency in any of the six languages. In fact, one
speaks German in addition to English; the other, in
a designated bilingual imperative position, speaks
Vietnamese and Chinese in addition to English
and French. However, the Board determined that
neither was required to speak any language beyond
English in the first instance or English and French
in the second.
Subsection 15 (1) of the Charter reads as
follows:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
The applicant alleges that she has been deprived
of equality before and under the law and that she
has been deprived for her right to the equal protec
tion and equal benefit of the law under section 15
by being subject to a language requirement in her
application for the CR-4 position where the two
incumbents presently holding that position were
not subject to that requirement and are not now
subject to it. 6
6 It would of course be possible to distinguish among the
various protections of subsection 15(1) since judicial interpreta
tion under the Canadian Bill of Rights [R.S.C. 1970, Appendix
III] limited "equality before the law" to equality in judicial
proceedings and in the administration of the law, whereas the
other three protections clearly refer to the content of the law.
But the applicant argued subsection 15(1) as a whole, without
attempting to separate its protections. I therefore treat it on the
same basis.
In studying the application of subsection 15(1),
I have been greatly aided by the reasons of Strayer
J. at trial and Hugessen J. in this Court in Smith,
Kline & French Laboratories Limited v. Attorney
General of Canada, [1986] 1 F.C. 274 (T.D.), on
appeal no. A-909-85, decided December 9, 1986
(F.C.A.). I have also perused: Andrews v. Law
Soc. of B.C., [1986] 4 W.W.R. 242 (B.C.C.A.);
Re Shewchuk and Ricard; Attorney-General of
British Columbia et al., Intervenors (1986), 28
D.L.R. (4th) 429 (B.C.C.A.); Rebic v. Collver
Prov. J., [1986] 4 W.W.R. 401 (B.C.C.A.); Her
Majesty the Queen v. Le Gallant, no. V000092
(Victoria Registry), decided September 4, 1986
(B.C.C.A.); Re McDonald and the Queen (1985),
51 O.R. (2d) 745; 21 C.C.C. (3d) 330 (C.A.);
Bregman et al. v. Attorney-General of Canada
(1986), 55 O.R. (2d) 596 (H.C.), and on appeal,
decided October 29, 1986 (Ont. C.A.); D & H
Holdings Ltd. v. Vancouver (1985), 15 Admin.
L.R. 209 (B.C.S.C.); Re Blainey and Ontario
Hockey Association et al. (1986), 54 O.R. (2d)
513 (C.A.); Reference re an Act to Amend the
Education Act (1986), 53 O.R. (2d) 513 (C.A.);
Re Aluminum Co. of Canada, Ltd. and The Queen
in right of Ontario; Dofasco Inc., Intervenor
(1986), 55 O.R. (2d) 522 (Div. Ct.).
To my mind the most fundamental feature of
section 15 is that it is one provision of a Charter in
which, despite all their differences, there are many
common characteristics among the provisions.
One such characteristic, common to the majori
ty of the rights and freedoms protected, is the
presence (or absence) of what Professor Dale
Gibson has called "internal limits" or "internal
modifiers", as opposed to the external limits con
tained in section 1. As Professor Gibson writes,
The Law of the Charter: General Principles, Car-
swell, 1986, at page 135:
Several of the rights and freedoms protected by the Charter
are expressed in absolute terms. This is true of the fundamental
freedoms, most of the democratic and mobility rights, and some
of the language rights and legal rights. In many cases, however,
especially in the area of legal rights, qualifying words are used
to describe the substantive rights themselves.
It should not surprise us therefore to find an
apparent internal modifier in subsection 15(1): I
refer to the word "discrimination", which for the
four reasons cogently set forth by McLachlin J.A.
in the Andrews case, supra, at pages 249-251,
must be deemed to mean not just any distinction,
but rather a pejorative distinction.
Even before Supreme Court of Canada decisions
directly on section 15, I believe we can profit from
the Court's approach to other provisions in the
Charter, for instance its treatment of the "freedom
of conscience and religion" in paragraph 2(a) in R.
v. Edwards Books and Art Ltd., [1986] 2 S.C.R.
713, decided December 18, 1986. Dickson C.J.C.,'
at page 752, first restated the R. v. Big M Drug
Mart Ltd. case, [1985] 1 S.C.R. 295:
The Court held, in the Big M Drug Mart Ltd. case, at pp.
331-34, that both the purposes and effects of legislation are
relevant to determining its constitutionality. Even if a law has a
valid purpose, it is still open to a litigant to argue that it
interferes by its effects with a right or freedom guaranteed by
the Charter.
The Chief Justice therefore proceeds to consider
the impact of the Ontario legislation in question,
at pages 758-759:
The first question is whether indirect burdens on religious
practice are prohibited by the constitutional guarantee of free
dom of religion. In my opinion indirect coercion by the state is
comprehended within the evils from which s. 2(a) may afford
protection. The Court said as much in the Big M Drug Mart
Ltd. case .... It matters not, I believe, whether a coercive
burden is direct or indirect, intentional or unintentional, fore
seeable or unforeseeable. All coercive burdens on the exercise
of religious beliefs are potentially within the ambit of s. 2(a).
This does not mean, however, that every burden on religious
practices is offensive to the constitutional guarantee of freedom
of religion. It means only that indirect or unintentional burdens
will not be held to be outside the scope of Charter protection on
that account alone. Section 2(a) does not require the legisla
tures to eliminate every miniscule state-imposed cost associated
with the practice of religion. Otherwise the Charter would offer
protection from innocuous secular legislation such as a taxation
act that imposed a modest sales tax extending to all products,
including those used in the course of religious worship. In my
opinion, it is unnecessary to turn to s. 1 in order to justify
' Although the Chief Justice is explicitly speaking for only
three of the seven Judges who sat on the case, his reasons in the
passages I quote were endorsed also by La Forest J.
legislation of that sort. The purpose of s. 2(a) is to ensure that
society does not interfere with profoundly personal beliefs that
govern one's perception of oneself, humankind, nature, and, in
some cases, a higher or different order of being. These beliefs,
in turn, govern one's conduct and practices. The Constitution
shelters individuals and groups only to the extent that religious
beliefs or conduct might reasonably or actually be threatened.
For a state-imposed cost or burden to be proscribed by s. 2(a) it
must be capable of interfering with religious belief or practice.
In short, legislative or administrative action which increases the
cost of practising or otherwise manifesting religious beliefs is
not prohibited if the burden is trivial or insubstantial: see, on
this point, R. v. Jones, [1986] 2 S.C.R. 284, per Wilson J. at p.
314.
If such a necessity for the complainant to prove a
more than trivial or insubstantial violation of
rights applies to an unqualified freedom like that
of conscience and religion, I believe it must run
through all the guarantees in the Charter.
Professor Gibson, it seems to me, reflects this
understanding of the Charter, supra, at page 141:
[T]he Charter's pattern with respect to the balancing of social
values appears, in general, to be as follows. The alleged victim
of a Charter violation must always establish a prima facie case
before the alleged violator is called upon to respond. Where the
right or freedom in question is expressed in absolute terms, with
no explicit modifier, the prima facie case involves proving the
facts of the incident in question, and establishing to the court's
satisfaction that these facts involved a significant infringement
of the asserted Charter right. At that point the onus shifts to
the alleged violator to establish that the infringement was
authorized by a law that satisfies the requirements of section 1.
If the right or freedom asserted is explicitly modified by an
internal standard like "reasonable" or "arbitrary", the alleged
victim's prima facie responsibility extends to showing that the
violation is one which, in ordinary circumstances, would exceed
that standard. The victim having established that much, the
violator's responsibility to establish a section 1 limit comes into
operation.
As I see it, subsection 15(1) falls into both of
Professor Gibson's categories, depending upon
whether or not the discrimination is alleged to be
in relation to one of the enumerated grounds:
"race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability".
To put it more exactly, I find the internal limit
"discrimination" to be required in all cases, but in
some cases, viz. those based on the enumerated
grounds, the drafters have already made the fun
damental determination that pejorative distinc
tions based on those grounds constitute discrimina
tion, whereas in other cases the complainant has to
prove that discrimination results. In all cases, how
ever, the discrimination has to be more than trivi
al. In result, then, though not in concept, this
analysis resembles the distinction drawn by Ameri-
can courts between strict scrutiny and minimal
scrutiny. 8 In Canada I believe the distinction is not
made on the authority of the courts but on that of
the Constitution itself.
The Constitution itself, I believe, compels this
distinction between enumerated and non-
enumerated grounds. In particular, the fact that
the drafters spelled out as grounds the principal
natural and unalterable facts about human
beings—race, national or ethnic origin, colour,
religion (admittedly, not wholly a natural and
unalterable fact), and sex—can only mean, I
believe, that non-trivial pejorative distinctions
based on such categories are intended to be justi
fied by governments under section 1 rather than to
be proved as infringements by complainants under
section 15. In sum, some grounds of distinction are
so presumptively pejorative that they are deemed
to be inherently discriminatory.
* * *
In the instant case the applicant initially pro
posed a blood theory of language and ethnicity
which would have equated the preferential lan
guage requirement here with preferential treat
ment for the national or ethnic groups which nor
mally spoke the six languages in question. This
s On this see Professor Anne F. Bayefsky, "Defining Equality
Rights" in Equality Rights and the Canadian Charter of
Rights and Freedoms, ed. Bayefsky and Eberts, Carswell,
1985, at pp. 52-59. Professor Walter Tarnopolsky (as he then
was) proposed strict scrutiny for most of the enumerated
grounds, intermediate scrutiny for age and disability, and mini
mal scrutiny for non-enumerated grounds: "Equality Rights" in
The Canadian Charter of Rights and Freedoms: Commentary,
ed. Tarnopolsky and Beaudoin, Carswell, 1982, p. 422.
unhappy argument was not proceeded with in oral
argument.
The applicant was therefore left with the neces
sity of proving discrimination on the basis of lan
guage without the benefit of an enumerated
ground of discrimination. This was a burden she
was not able to meet. Management's right to
establish qualifications for public service positions
has been regarded as "inherent", at least since the
decision of this Court in Bauer v. Public Service
Appeal Board, [1973] F.C. 626 (C.A.), at page
630, per Jackett C.J. The same view was reiterated
by this Court in The Queen v. Ricketts, No.
A-807-82, decided October 31, 1983, at pages 3-5,
per Thurlow C.J.:
The applicant's position is that the determination of the
essential and other requirements for a position in the public
service is not a function of the Public Service Commission
under the Public Service Employment Act, that it is a function
of management falling within the authority of a minister to
manage his department under the statute establishing the
department ....
I agree with the applicant's submission. In my view it is in
accord with the legal position as explained in the judgments of
this Court .... It is unnecessary to repeat what was said in
these cases. The point is sufficiently expressed by Jackett C.J.
in the Bauer decision when in discussing the effects of the
1966-67 legislation he said:
Nothing specific is to be found in the legislation concern
ing the defining, in respect of any particular position, of
"standards of duties, responsibilities and qualifications"; but
a power to do so would seem to be inherent in management.
The employer must be able to define the qualifications and
duties of a position before he seeks for a person to fill that
position.
Given this legal basis, the Board here found on
the facts, (Appeal Book, pages 40-41):
[T]he duties and responsibilities of the position clearly require
conducting interviews, providing information to the public over
the telephone and interpreting during the course of client
interviews in at least two languages. Bearing this in mind, one
cannot conclude other than that the basic requirement at issue
here was warranted. I think such a conclusion cannot be tainted
by the undisputed fact that interpreters were "on tap" as
available covering all six of the languages listed. If the opera
tional objective is more effective and efficient service to clients
approaching the centre, it is difficult to argue with manage-
ments' insistence upon this linguistic qualification.
This conclusion is not undermined, either, by the fact that
members of the centre's staff filled the instant position in an
acting capacity for varying periods without the requisite lin-
guistic facility. Acting appointments made for operational or
career development objectives are just that, and it is not at all
unusual that a person acting in such a capacity may not meet
the full range of requirements for a position if that position was
to be filled via competitive process. Indeed career development
placements can and do serve to provide incumbents with the
opportunity to gain the experience and requirements called for
when the position is to be staffed on an indeterminate basis. I
can see no impropriety in the fact that the requirement in focus
here, implicitly waived for the several acting appointments,
became insisted upon when the position was staffed through the
instant competition.
The position occupied by supervisor Hogan clearly entailed a
different range of duties and responsibilities than those of his
subordinate reception and information clerks, and there is
nothing untoward in the fact that a language requirement for
the latter did not obtain for the former. It appears as though
the language facility now in place was not called for when the
two incumbents of similar positions at the centre were appoint
ed. However, in my view that does not invalidate in any way the
department's present insistence on what (on all counts) seems
to be a defensible requirement.
The applicant nevertheless argued that these
factual findings are vitiated by a mistake of law in
that section 15, like the equal-benefit-of-the-law
provision in American law, makes it necessary for
management's requirement of an additional lan
guage for the new position to be established as an
objective necessity, not merely as an operational
preference. However, the effect of section 1 as an
ultimate criterion of constitutionality in our Chart
er forces Canadian courts to allow for a two-stage
analysis where U.S. courts must be content with
an all-embracing single stage. In the Canadian
context, necessity would be a section 1 consider
ation, rather than a matter to be taken into
account under section 15. The only limitation sec
tion 15 imposes on management is that it must not
discriminate in carrying out its responsibilities.
If the criterion of discrimination is whether or
not management has some rational basis for its
action, as is urged by the applicant herself, also on
the authority of the U.S. cases (although she
might equally well have based it on the language
of McIntyre J. in MacKay v. The Queen, [1980] 2
S.C.R. 370, at page 406), that criterion has been
met, as the Board decision shows.
I am myself inclined to the view that the best
criterion is that of McIntyre J.,—taken as a prima
facie test, in order not to foreclose the final weigh
ing of interests under section 1. Mr. Justice McIn-
tyre's test in the MacKay case is as follows [at
page 406]:
The question which must be resolved in each case is whether
such inequality as may be created by legislation affecting a
special class—here the military—is arbitrary, capricious or
unnecessary, or whether it is rationally based and acceptable as
a necessary variation from the general principle of universal
application of law to meet special conditions and to attain a
necessary and desirable social objective.
In the instant case, on this test the complainant
would have to establish a prima facie case of
unreasonableness, which on the facts, as found by
the Board, she was not able to do. Moreover,
whatever the test ultimately adopted by the courts,
the applicant has failed to establish her case on her
own proposed test (which is substantially that of
McIntyre J.).
The section 28 application must therefore be
dismissed, and the Board's decision affirmed.
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