r v. Canada, 2019 FC 879

T-759-15 2019 FC 879 André Dionne ( Applicant ) v. Office of the Superintendent of Financial Institutions ( Respondent ) and Commissioner of Official Languages ( Intervene

r) Indexed as: Dionne v. Canada ( Office of the Superintendent of Financial Institutions) Federal Court, Annis J.—Montréal, March 20, 2018; Ottawa, July 3 and September 20, 2019.

Official Languages — Language of work — Application for remedy made under Official Languages Act ( OLA ), s. 77(1) in response to final investigation follow-up report issued by Office of the Commissioner of Official Languages (Commissioner) — Applicant, bilingual Francophone leading team of generalists in Montréal, working with unilingual specialists in Toronto — Communicating with specialists in English — Translating specialists’ reports into French — Alleging right to work in French violated — Commissioner concluding complaint justified — While respondent disagreeing with Commissioner that specialists providing services to generalists, nevertheless re-designating specialist positions in Toronto as bilingual — Respondent submitting, inter alia, that interactions between generalists, specialists not a service within meaning of OLA — Arguing employees receiving, not providing, services — Questioning whether training, professional development should fall within OLA ,

Part V — Applicant relying on Tailleur v. Canada (Attorney General) (Tailleur) — Arguing that specialist positions should be redesignated bilingual — Main issue herein determination of nature, scope of federal institutions’ duties under OLA , ss. 35 , 36 — OLA ensuring equality of use, privileges of official languages — Favouring one language community over other usurping Parliament’s statement of purpose of institutional bilingualism — Purposive

interpretation principle should not be resorted to herein — S. 36(1)(c)(

i) describing two categories of services: individual and auxiliary — Individual category applying to services available to all employees without regard to their duties — Auxiliary category referring to services provided to employees to assist or support them in performance of their duties — Generalist, specialist working as interdependent team members — Specialists not providing service to generalists within meaning of Act, s. 36(1)(a)(i) — Term “centrally” limiting extent of services required to be offered in both official languages under s. 36(1)(a)(i) — Parliament providing scope for provision of new services beyond those applicable to all personnel — Institution’s management in most appropriate position to determine whether new service should be designated pursuant to Act, s. 36(1)(a)(i) — Here, no evidence suggesting decision made to have specialists train generalists as service ordained by respondent’s management group — OLA , s. 36(2) governing residual language of work rights of employees in designated regions under OLA ,

Part V — Tailleur concluding institution cannot resort to bilingual capacity of employee to avoid fulfilling its language of work rights — This leading to “no accommodation” rule — In contradistinction to Tailleur, work environments must accommodate use of either official language — Bilingual employees having to accommodate unilingual employees to some degree — Issue resolved by determining whether “work environments” conducive to use of both languages — OLA , s. 91 applying merit principle, prohibiting collateral bilingual staffing [1] — S. 36(2) having to provide for some degree of accommodation by bilingual employees of unilingual employees — Principle of merit should have precedence over language rights in area of staffing — Case law rejecting collateral bilingual staffing — Positions of bilingual service providers staffed on merit — Such staffing procedures not infringing s. 91 — Applying language rights over merit principle undermining legitimacy of federal human resources regime, language rights legislation — Bilingual employees needing to accommodate unilingual employees for work environments to operate — Tailleur service-driven decision — Statement therein that language proficiency of individuals not factor in determining language rights obiter dictum — Principles of precedential comity therefore not applying — Institutions having to establish conducive work environments, accommodate use of either official language, as per objectives of s. 36(2) — Issue of concern herein whether s. 36(2) endowing institution with flexibility to require bilingual employees to accommodate unilingual employees — Scheme of s. 36(2) allowing for more generic solutions to satisfactorily respond to complainant — Tailleur failing to engage with second objective of s. 36(2) — English version of s. 36(2) clearer, less redundant — R. v.

Beaulac not stating interpretive principle denying accommodation — Proposition in Tailleur that requirement for employee to work in second language must be explained as reasonable measure rejected — Approach in Tailleur not representing Parliament’s intention — Test therein irrelevant, disproportionately stringent — S. 36(2) not to be applied to achieve entirely bilingual work environment — To be interpreted to allow for degree of accommodation by bilingual employees of unilingual employees — Merit principle prevailing in matters of staffing — Applicant’s work environment nevertheless having to meet s. 36(2) objectives — Having to be conducive to effective use of both official languages — Unilingual regions not required to possess bilingual capacity in order to work with employees in bilingual regions — S. 91 standing in way of applicant’s insistence to designate bilingual specialist positions in Toronto — Communications between regions having to be in choice of language of employees in unilingual regions — Application dismissed.

Construction of Statutes — Rights relating to language of work — Applicant, bilingual Francophone leading team of generalists in Montréal, working with unilingual specialists in Toronto — Communicating with specialists in English — Translating specialists’ reports into French — Alleging right to work in French violated —Commissioner of Official Languages concluding complaint justified — Respondent disagreeing with Commissioner but nevertheless re-designating specialist positions in Toronto as bilingual — Nature, scope of duties under OLA , ss. 35 , 36 at issue — Applicant relying on Tailleur v.

Canada (Attorney General) (Tailleur) to argue that specialist positions should be redesignated bilingual — Purposive

interpretation principle adopted in Tailleur avoiding comprehensive, holistic

interpretation of OLA , s. 36(1) (a)(i), 36(2) — Failing to interpret key elements of s. 36(2) — Tailleur failing to engage with second objective of s. 36(2) , i.e. that work environments accommodate use of either official language — Interpretive methodology ignoring clearly described objective flawed — Purposive

interpretation should not apply to institutional bilingualism provisions other than to achieve purposes Parliament expressly describing in OLA ,

Preamble, s. 2 — Words making up s. 36(2) conveying internal consistency of flexibility in interpretive approach.

This was an application made under subsection 77(1) of the Official Languages Act (OLA) in response to a final investigation follow-up report issued by the Office of the Commissioner of Official Languages (Commissioner) in March 2015.The applicant raised intractable issues of

interpretation of two languages of work provisions found in

Part V of the OLA pertaining to bilingual regions. The applicant is a bilingual Francophone employee of the respondent who has been on sick leave since 2009. At that time, he was leading a team of supervisors, (generalists) in Montréal, a bilingual region prescribed under the OLA. He worked regularly with unilingual employees (specialists) situated in Toronto, a unilingual region under the OLA. The generalists and specialists work regularly together to carry out the functions of supervising financial institutions for the respondent.

Most of the staff at the Montréal office are Francophones and the vast majority of the specialists in Toronto who provide support to Montréal employees hold English essential positions or speak English only. The Toronto specialists were used on a case-by-case basis. All of the applicant’s communications with staff at the Toronto office were exclusively in English. Every time supervisory activity required the participation of a specialist, a large part of the applicant’s work had to be done in English.

If the financial institution being supervised had asked to be served in French, which is the case for many of the clients served by the Montréal office, the specialist’s report had to be translated by the applicant. In a complaint filed with the Commissioner in 2010, the applicant alleged that his right to work in French had been violated constantly throughout his employment with the respondent. In its Final Investigation Report (Final Report or Final Investigation Report) published in 2014, the Commissioner concluded that the complaint was justified, and made seven recommendations to the respondent.

In a follow- up report, the Commissioner concluded that the respondent had satisfactorily implemented the recommendations found in its Final Report. In its Final Investigation Report, the Commissioner made factual determinations describing the nature of the generalists’ work relationship and dependency on the specialists. The Commissioner made a number of recommendations based on the respondent undertaking the bilingual re-designation and staffing of specialist positions in Toronto to enable them to provide bilingual learning services to the generalists.

The respondent disagreed with the Commissioner that the specialists were providing services to the generalists, but nevertheless re-designated 11 bilingual specialist positions. The issues in the case at bar were related to the

interpretation and application of

section 36 of the OLA. The respondent submitted, inter alia , that the interactions between the generalists and the specialists do not represent a service within the meaning of the OLA. The respondent further submitted that the generalists and specialists, even as distinct groups, work closely together as a team to achieve the core objectives of the institution’s mandate. As such, it argued, employees receive services, they do not provide them. In the Final Investigation Report, the alleged services provided by the specialist to the generalists were said to fall under the category of professional development.

The respondent questioned whether training and professional development should fall within

Part V of the OLA, adding that such a broad

interpretation of paragraph 36(1)(

a) is contrary to the objective of the OLA. The applicant relied on the Supreme Court decision in Tailleur v. Canada (Attorney General) ( Tailleur ) in support of his argument that the specialist positions in Toronto should be redesignated bilingual in order to allow them to fully exercise their subsection 36(2) rights. The main issue was to determine the nature and scope of the duties that federal institutions have under sections 35 and 36 of the OLA. Held , the application should be dismissed. The purpose of the OLA is to ensure the equality of use and privileges of the two official languages.

Applying statements favouring one language community over the other, as argued by the applicant and endorsed in Tailleur , would usurp Parliament’s statement of purpose of institutional bilingualism set out in the

Preamble and purpose

section of the OLA. This would override the purpose of enacting official language institutional bilingualism contrary to the fundamental objective of statutory

interpretation. The purposive

interpretation principle should not be resorted to as a means to avoid undertaking a comprehensive and holistic

interpretation of provisions such as subparagraph 36(1) (a)(

i) and subsection 36(2) of the OLA. The Court adopted the purposive approach in Tailleur , which resulted in a failure to consider the

interpretation of most of the key elements of subsection 36(2). A purposive

interpretation that moves the debate from its textual and contextual beginnings to those of policy in searching for the object of the Act and the intention of Parliament should only be resorted to after considering what the words mean in their ordinary sense and ordinary context in relation to other provisions of the OLA. The concept of creating a conducive work environment is specifically referred to only in subparagraph 36(1)(c)(

i) and subsection 36(2) regarding the requirements that managers be bilingual and that appropriate official language work environments be provided. Given the specific references to work environments in other provisions, if Parliament thought that providing services in the language of the employees being served is conducive to the effective use of both official languages, it would have similarly stated so. Subparagraph 36(1)(a)(

i) describes two categories of services: individual and auxiliary. Parliament intended the individual category to apply to services available to all employees of the institution. Because the individual category comprises all employees, there is no need to place a limit on who should receive the service, nor is there any need to indicate that they are centrally provided because services to all employees must be centrally provided.

It would make sense that the languages of work provisions in the OLA were not intended to affect the structures of government, but rather to apply to those services already identified as such, while providing scope for growth or change as required. The fundamental meaning of the term “service” captures all matter of possible services that require the service to be provided in the official language of the person being served. Services provided to employees as individuals appear to be intended to apply to those services provided to all employees of the institution without regard to their duties.

The applicant and the Commissioner focussed on the term “ auxiliaires ”, which lacks clarity compared with the English version describing a service of one employee supporting the other in the performance of their duties. Conversely, the respondent focused on the term “ services auxiliaires ” without any regard to the provision as a whole. The connexion to demonstrate that the service is intended to support the performance of duties of other employees was missing from the respondent’s

interpretation. The term “ auxiliaire ” is used to distinguish the auxiliary category from the individual category. The auxiliary category refers to services provided to employees to assist or support them in the performance of their duties. Subparagraph 36(1)(a)(

i) should not be construed such that services provided to employees of federal institutions are required to be “essential” to the performance of their duties. The generalist and specialist work as interdependent members of a team who share responsibilities and depend on each other to accomplish their tasks. The specialists are not providing a service to the generalists within the meaning of subparagraph 36(1)(a)(i). The term “centrally” is intended to limit the extent of services required to be offered in both official languages under subparagraph 36(1)(a)(i).

On this basis, there is no quantitative limitation on what could constitute centrally provided services. Parliament intended to provide scope for the provision of new services beyond those that apply to all personnel or those that are related to the performance of duties. The institution’s management group is in the most appropriate position to determine

what and when an innovative new service should be designated pursuant to subparagraph 36(1)(a)(i). Here, there was no evidence suggesting that any positive decision was made to have specialists train generalists as a service ordained by the respondent’s management group. The two groups of employees were conceived to work in a broader team environment that involves a hierarchy of participants, bearing no resemblance whatsoever to a service situation. The applicant’s claim based on subsection 36(2) was dismissed. Subsection 36(2) of the OLA governs the residual language of work rights of employees in designated regions under

Part V of the OLA. The Court in Tailleur concluded that the institution cannot resort to the bilingual capacity of an employee to avoid fulfilling its language of work rights to employees. This had the effect that no bilingual employee was required to work in their second language to accommodate a unilingual employee, unless justified by significant considerations to do so (the “no accommodation” rule). In contradistinction to Tailleur , the conclusion herein was that work environments must accommodate the use of either official language. Accordingly, Parliament intended bilingual employees to accommodate unilingual employees to some degree. As a result, based on this

interpretation of subsection 36(2), the issue is resolved largely at the institutional level by determining whether “work environments” are compliant in being sufficiently conducive to the effective use of both languages, while also accommodating the use of either official language.

Section 91 of the OLA, as an application of the merit principle, prohibits the collateral bilingual staffing of positions based on

Part V of the OLA. In this respect,

section 91 is in some degree irreconcilable with subsection 36(2) , which is intended to express a Charter right. Reconciliation of the two fundamental principles of staffing and language rights must be mediated by each other. Subsection 36(2) must provide for some degree of accommodation by bilingual employees of unilingual employees as it reflects a compromise of the right to make effective use of one’s first language, and that work environment will comprise both bilingual and unilingual employees working together.

Section 91 is highly relevant to any consideration of subsection 36(2) . The principle of merit should have precedence over language rights in the area of staffing of positions. It cannot be otherwise, because the principle of staffing meritocracy is the overriding foundational principle underpinning the legitimacy of the federal government. Discrimination was an element of the reasoning underlying

section 91 . Specifically, the population identified who would be the victims of such discrimination were unilingual Canadians who could not apply for a bilingual position.

Section 91 has an individual dimension and a more general dimension—that of promoting bilingualism throughout the country. The positions of bilingual service providers are staffed on merit, due to the essential language qualification to be able to serve patrons in both official languages. Such staffing procedures do not infringe

section 91 . It is highly unlikely that any court would endorse the application of language rights over a foundational principle of a meritocratic federal institutional regime. To do so would undermine not only the legitimacy of Canada’s federal human resources regime, but also the language rights legislation that the Commissioner is mandated to uphold. The logical outcome of work environments consisting of bilingual and unilingual employees is that they will not operate unless bilingual employees are prepared to work in the language of the unilingual employees. This reality is the starting point for any

interpretation of subsection 36(2). Tailleur is a service-driven decision because the determination of the appropriate language of work reflects the operational requirements of providing services to the public. The categorical statement in Tailleur that the language proficiency of individuals should not be a factor in determining language rights is obiter dictum . This means that the principles of precedential comity have no application.

Responding to a complaint regarding the choice of language of work under subsection 36(2) starts with determining whether the institution has established the required appropriate official language work environment in terms of meeting that provision’s two objectives: that such environments be conducive to the effective use of both languages; and that they “accommodate the use of either language”. Whether a work environment meets the requirements of the two objectives will depend upon the flexibility afforded to institutions to require bilingual employees to accommodate unilingual employees.

Institutions may require bilingual employees to work with unilingual employees in circumstances where work environments are not conducive to the effective use of both official languages while accommodating the use of either official language, as described in the English version of subsection 36(2) . The issue of concern throughout the analysis herein was whether subsection 36(2) endows the institution with such a degree of flexibility, in opposition to the conclusion in the Tailleur decision.

Tailleur requires institutions to apply collateral bilingual staffing practices wherever bilingual employees work with other employees unless operationally justified. The terminology in subsection 36(2) contradicts any intention by Parliament to establish a categorical rule for the exercise of individual language rights complainants. The scheme of that provision allows for the investigation of more generic solutions in addition to seeking a range of ways to satisfactorily respond to a complainant. The Court in Tailleur failed to engage with the second objective of subsection 36(2) .

An interpretive methodology that ignores a second objective that is clearly described as one of two objectives required for the attainment of an appropriate official language work environment is flawed. For that reason alone, Tailleur could not be relied upon as a guide to properly consider Parliament’s intention in enacting subsection 36(2) . The requirement described in the English phrase that work environments accommodate the use of either official language is the clearer and less redundant version as opposed to the French version which appears to repeat the same meaning as the first objective.

The Supreme Court in R. v. Beaulac did not state an interpretive principle denying accommodation. In the present matter, the proposition in Tailleur that whenever an employee is required to work in their second official language, it must be explained as a reasonable measure to comply with subsection 36(2) , was rejected. This approach does not represent Parliament’s intention. “Reasonable measures” is the endpoint as Parliament’s instrument to ensure that non-compliant work environments are rendered compliant. The three-factor test enunciated in Tailleur is not relevant and its requirements are overly stringent.

The test sets too high a standard that is not consonant with the concept of what inherently constitutes a reasonable measure, i.e. it is disproportionately stringent in relation to a reasonable measure. No purposive

interpretation should apply to institutional bilingualism provisions, other than to achieve the purposes that Parliament expressly described in the

Preamble and Purpose of Act at

section 2 of the OLA. Great care was taken in the choice of words making up subsection 36(2) . The words are intended to convey an internal consistency of flexibility in the interpretive approach that should be applied to subsection 36(2) . Appropriate work environments must be reasonable in the widest contextual manner where language impacts on federal institutions and its employees. The Court’s decision in Schreiber v. Canada supported the conclusion that subsection 36(2) was not to be applied to achieve an entirely bilingual work environment.

Entirely bilingual environments would only occur when necessary based on merit, such as in situations involving the security of persons using the service. In conclusion, subsection 36(2) should be interpreted so as to allow for some degree of accommodation by bilingual employees of unilingual employees. Bilingual employees are required to work with unilingual employees in their language to some degree.

Section 91 confirms that where the language requirements of

Part IV and V are not a functional requirement for positions, they will be designated unilingual and staffed accordingly. Fundamentally the merit principle prevails in matters of staffing. While collateral bilingual staffing is not acceptable in accordance with

section 91 of the OLA, the applicant’s work environment is, nevertheless, required to meet the objectives of subsection 36(2) . This requires that the work environment be conducive to the effective use of both official languages and

accommodate both either by, inter alia, giving primacy to the effective use of both official languages, ensuring that management has arole in achieving a comfortable bilingual workplace, and recognizing the additional workload that working in two languages entails. Communication between employees occurring back and forth between bilingual and unilingual regions raised a further issue of whetherrights of employees under subsection 36(2) take precedence over language rights of employees in unilingual regions.

The issue was howto resolve a conflict regarding official language rights of employees in differently designated regions. The scheme of the legislation is notintended to let bilingual employees delegate their bilingual functions so that unilingual regions are required to possess a bilingualcapacity in order to work with employees in bilingual regions. The insistence of the applicant’s right to work in his preferred language ofFrench pursuant to subsection 36(2) would have required the designation of bilingual specialist positions in Toronto.

Section 91 stands inthe way of this because the appointment of bilingual specialists is not required in Toronto. Parliament specifically gave

section 91primacy over the application of rights pursuant to subsection 36(2) for the exact purpose of preventing employees, such as the applicant,from exercising a language right that would result in unmeritorious staffing consequences, both in the bilingual and unilingual regions.Accordingly, communications emanating from bilingual regions must be in the choice of language of the employees receiving them inunilingual regions. This conclusion was a further ground to deny the applicant’s claim requiring that positions in Toronto be designatedbilingual essential. STATUTES AND REGULATIONS CITED 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(1), 20. Criminal Code, R.S.C., 1985, c. C-46. Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1. Federal Courts Rules, SOR/98-106, rr. 174, 175. Office of the Superintendent of Financial Institutions Act, R.S.C., 1985 (3rd Supp.), c. 18,

Part I, s. 4(2)(a). Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31,

Preamble, ss. 2, 21–33, 34–38, 41–45, 75–81, 91. Official Languages Act, S.C. 1968-69, c. 54, s. 40. CASES CITED NOT FOLLOWED: Tailleur v. Canada (Attorney General), 2015 FC 1230, [2016] 2 F.C.R. 415. APPLIED: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, ; Canada(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canada (Attorney General) v. Viola, (FCA), [1991] 1 F.C. 373, (1990), 123 N.R. 83 (C.A.). DISTINGUISHED: R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193; Norton v.

Via Rail Canada, 2009 FC 704,181 A.C.W.S. (3d) 1024; Schreiber v. Canada, , 69 C.R.R. (2d) 256, [1999] F.C.J. No. 1576 (QL) (T.D.). CONSIDERED: Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; Reference rePublic Schools Act (Man.), s. 79(3), (4) and (7), (SCC), [1993] 1 S.C.R. 839, (1993), 100 D.L.R. (4th) 723;Professional Institute of the Public Service v. Canada, (FC), [1993] 2 F.C. 90 (T.D.). REFERRED TO: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217.

AUTHORS CITED Business Dictionary, “team”, online: http://www.businessdictionary.com/definition/team.html. Canada. Parliament. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-72, 33rd Parl.,2nd Sess., Issue No. 1 (March 17 and 22, 1988). Canada. Parliament. Senate. Proceedings of the Special Committee of the Senate on Bill C-72, 33rd Parl., 2nd Sess., Issue No. 1 (July 19and 20, 1988). Canada. Treasury Board. “Directive on Official Languages for People Management”, November 19, 2012, online: https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=26168. Canada.

Treasury Board. “Policy on Language of Work” (April 1, 2004), online: https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12520.

Canada. Treasury Board. “Policy on Learning, Training, and Development”, (December 1, 2017), online: https://www.tbs- sct.gc.ca/pol/doc-eng.aspx?id=12405. Canada. Treasury Board. “Policy on Official Languages” (November 19, 2012), online: https://www.tbs-sct.gc.ca/pol/doc-eng.aspx? id=26160. Côté, Pierre-André. The

Interpretation of Legislation in Canada , 3rd ed. Scarborough, Ont.: Carswell, 2000. “Difference Between Person and Individual”, posted June 14, 2011, online: https://www.differencebetween.com/difference-between- person-and-vs-individual/. Free Dictionary (The) , legal dictionary, “reasonable”, online: https://legaldictionary.thefreedictionary.com/reasonable. Larousse Dictionnaire de Français , " accommoder ”, " auxiliaire ”, “ effectif ”, “ milieu ”, “ permettre ”, “ service ” online: http://www.larousse.fr/dictionnaires/francais. Le Petit Robert , “ auxiliaire ”. Lepage, Jean-François and Jean-Pierre Corbeil.

The Evolution of English-French Bilingualism in Canada from 1961 to 2011 , Statistics Canada, May 2013, online: http://publications.gc.ca/site/eng/9.576710/publication.html. Lewis-Kraus, Gideon, “The Great A.I. Awakening: How Google used artificial intelligence to transform Google Translate, one of its more popular services ― and how machine learning is poised to reinvent computing itself”, The New York Times (December 14, 2016), online: https://www.nytimes.com/2016/12/14/magazine/the-great-ai-awakening.html.

Linternaute: Dictionnaire français, “ accessoire ”, “ auxiliaire ”, online: www.linternaute.fr/dictionnaire/fr/definition/auxiliaire/. Mbah-Ndam, Joseph. Practice and Procedure in Civil and Commercial Litigation , Cameroon: Presses Universitaires d’Afrique, 2003. Merriam – Webster Dictionary , “accomodate”, “assist”, “effective”, “ formal”, “individual”, “milieu”, “ milieu ” “organized”, “permit”, “service”, “support”, online: https://www.merriam-webster.com/. Oxford University Press (OUP), “assist”, “support”, online: www.lexico.com. Termium Plus , “ formation ”, online: www.btb.termiumplus.gc.ca.

APPLICATION made under subsection 77(1) of the Official Languages Act in response to a final investigation follow-up report issued by the Office of the Commissioner of Official Languages in March 2015. Application dismissed. APPEARANCES Ronald F. Caza , Érik Labelle Easthaugh and Gabriel Poliquin for applicant. Nadine Dupuis and Helen Kneale for respondent. Isabelle Bousquet and Elie Ducharme for intervener. SOLICITORS OF RECORD Caza Saikaley LLP , Ottawa, for applicant. Deputy Attorney General of Canada for respondent. Office of the Commissioner of Official Languages , Gatineau, Quebec, for intervener.

The following are the amended judgment and reasons rendered by Annis J.: TABLE OF CONTENTS I. Introduction 1 II. Abridged interpretive conclusions 9 III Facts 30 A. The applicant’s duties within the OSFI 30 B. Findings of fact 42 C. History of the complaint 49

(1) Chronology 49 D. Final Investigation Report 54

(1) Training and professional development services 54

(2) Work tools and computer systems 61 IV. Legal framework 66 V. Issues 67 VI. The Court has jurisdiction to consider whether the OSFI has complied with sections 36(1) (

c) and 36(2) . 68 VII. Principles of

interpretation of institutional official language provisions of the OLA 86

(1) Purposive

interpretation 86

(2) The jurisprudence only supports a purposive

interpretation to assist provincial official language minority communities 89

(3) Parliament distinguished between the purpose of official bilingualism in federal institutions, and that of supporting provincial minority official language communities 98

(4) The OLA has re-balanced past disadvantages of the Francophone minority community in federal institutions 108

(5) The methodology of applying a purposive

interpretation 114

(6) The bilingual

interpretation of sections 36(1)(a)(

i) and 36(2) 116 VIII. Services provided to federal institution personnel pursuant to section 36(1) (

a) of the OLA 127 A. Introduction 127

(1) Treasury Board Policies and Directives on Official Languages and Training and Professional Development 131 (

a) The 2004 Policy on Language of Work 133 (

b) The 2012 Policy on Official Languages 140 (c) 2017 Policy on Learning, Training, and Development 143

(2) The submissions of the parties on the

interpretation of the services provision 148 (

a) The applicant’s submissions 148 (

b) The Commissioner’s revised submissions 150 (

c) The respondent’s submissions 156 B. The

interpretation of section 36(1)(a)(i) 163

(1) Introduction 163

(2) Define and follow the scheme of the provision 168

(3) Definitions of “services” 173

(4) Services provided to employees “as individuals” 182

(5) Services to support employees in the performance of their duties “ services auxiliaires ” 193 (

a) The verbal phrase “provided to support employees in the performance of their duties” is redundant to the meaning of “services” 193 (b) “in the performance of duties” may be deduced contextually in the term “ auxiliaire ” 200

(6) Services are not required to be “essential” in the support of the performance of duties 206

(7) Services do not include assistance provided by “team employees” to each other in the performance of their duties 217

(8) Central services 235 (a) “centrally provided” and “ centraux ” 235 (

b) Respondent and Commissioner’s submissions 237 (

c) Analysis of centrally provided services 242

C. Conclusion on the

interpretation of official language obligations pertaining to services in section 36(1)(a)(i) 258 IX. The

interpretation and application of section 36(2) 259 A. Introduction 259 (1) Section 36(2) 260

(2) Section 91 266 B. The parties’ submissions 269

(1) Applicant 269

(2) Respondent 279

(3) The Commissioner’s 2014 Final Report 288 C.

Section 91 and collateral bilingual staffing 291

(1) No evidence that collateral bilingual staffing practices have been adopted by federal institutions 291

(2) The parties’ submissions regarding

section 91 that the scope of the complaint proscribes its consideration 296

(3) Section 91 is intended to ensure that linguistic requirements of Parts IV and V do not override the merit principle of staffing positions in the public service 311 (

a) Extrinsic evidence regarding

section 91 312 (

b) The

Preamble to the OLA 323 (

c) Jurisprudence regarding the purpose of

section 91 326 (

i) Canada (Attorney General) v. Viola 326 (ii) Norton v. Via Rail Canada , 2009 FC 209 ( Via Rail ) and other service cases 330 (d) Section 16(1) of the Charter 340

(4) Conclusion on

section 91 345 D. Analysis of section 36(2) 351

(1) Introduction 351

(2) Tailleur is a service-driven decision bearing no relevance to section 36(2) 355

(3) The terminological and internal contextual

interpretation of section 36(2) 367 (

a) The scheme of section 36(2) 368 (

b) Work environments 381 (

c) The primary objective of appropriate official language work environments: being conducive to the effective use of both official languages 397 (

d) The secondary objective of work environments: accommodating or permitting the use of either official language 407 (i) “accommodate/ permettre ” 413 (ii) “either/ l’une ou l’autre ” and “both/ deux ” 428 (iii) Criticism of linguistic accommodation in Beaulac is specific to its particular facts 439 1. Paragraph 24 in Beaulac 442 2. Paragraph 82 in Tailleur 448 (

e) The federal institution’s duty to implement appropriate official language work environments by the terms of the English version “such measures as can be reasonably taken" reflects the exercise of discretion to attain a threshold 453 (

i) A legal standard based on a threshold 453 (ii) The contextual significance of “ toutes autres mesures possible ” ("such measures as can reasonably be taken") 464

(iii) “reasonably be taken”/“ mesures possibles ” 466 (iv) “such measures”/“ toutes autres mesures ” 478 (

v) The significantly serious ( importantes et sérieuses ) operational difficulties factor 484 (vi) Reasonable measures does not imply an employee’s right to dictate the language requirements of a co-worker 487

(4) Contextual

interpretation of section 36(2) 507 (

a) Internal contextual

interpretation of section 36(2) 508 (

b) External contextual

interpretation provisions of the OLA: sections 91 and 36(1) (c)(i) 519 (

i) Section 91 520 (ii) Section 36(1)(c)(i) 522

(5) Jurisprudence regarding unilingual employees in the workplace 537

(6) Extrinsic evidence as an aid to

interpretation of section 36(2) 543 E. Conclusion on the

interpretation of section 36(2) 562 F. Applying section 36(2) 564

(1) Primacy to the effective use of both official languages 566

(2) Management’s role 571

(3) Recognizing the additional workload of bilingualism 576

(4) Means to lighten the work efforts of the bilingual employee 584 X. Language Rights in Unilingual Regions 589 XI. Work instruments and regularly and widely used computer systems 609 A. Work instruments 609 B. Regularly and widely used computer systems 616 XII. Conclusion 622 I. Introduction [ 1 ] This is an application under subsection 77(1) of the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31 (OLA [or Act]) by the applicant in response to a final investigation follow-up report (Follow-up Report), in docket 2010-0783, issued by the Office of the Commissioner of Official Languages (OCOL) in March 2015. [ 2 ] The applicant raises intractable issues of

interpretation of two languages of work provisions found in

Part V [sections 34–38] of the OLA pertaining to bilingual regions. Nonetheless, both issues have the potential of requiring significant staffing changes of unilingual positions in federal institutions to a bilingual designation, not only in prescribed regions (“prescribed” or “bilingual” regions), but as well in non-prescribed regions (“non-prescribed” or “unilingual” regions) of Canada. [ 3 ] The applicant is a bilingual Francophone employee of the Office of the Superintendent of Financial Institutions (OSFI). Mr. Dionne has been on sick leave since 2009.

At that time, he was leading a team of supervisors, described as “generalists”, who monitor various financial institutions. He is situated in Montréal, a bilingual region prescribed under the OLA. He worked regularly with unilingual employees, described as specialists, situated in Toronto, a unilingual region under the OLA. The generalists and specialists worked regularly together to carry out the functions of supervising financial institutions for the OSFI. [ 4 ] The first issue relates to the

interpretation of section 36(1) (a)(

i) of the OLA. The applicant claims the specialists in Toronto are providing him with services pursuant to this provision, and therefore they must be provided to him in his first language, i.e. allow him to work entirely in his first language. Accordingly, the unilingual specialist positions in Toronto are required to be staffed by bilingual personnel. In settling the complaint, the OSFI agreed to change the language requirements to staff 11 specialist positions with bilingual personnel.

The applicant seeks a remedy that would require further specialist positions to be staffed bilingually. [ 5 ] Section 36(2) of the OLA is the second provision of interest. It requires federal institutions to provide work environments that are conducive to the effective use of both official languages and accommodate the use of either in bilingual regions. If applied, this would only permit the applicant to use his first language in communications with the specialists in Toronto.

The applicant argues that by this provision, he is entitled to communicate using his first language with the specialists in Toronto, thereby similarly requiring their positions to be occupied by bilingual specialists. I use the term “collateral bilingual staffing” to describe the effect of the applicant’s

argument, whereby the Toronto specialists’ positions would be required to be staffed bilingually due to the exercise of language rights by the applicant pursuant to section 36(2) in a bilingual region, although not required by the objective functions of the position. [ 6 ] In priority to requirements arising out of Parts IV [sections 21–23] and V, i.e. section 36(2) ,

section 91 prohibits staffing of a position unless the official language requirements are objectively required to perform the functions for which the staffing action is undertaken. By its wording, the bilingual designation of the specialist positions in Toronto could not be objectively required to perform the functions of the position and would infringe the provision. It is, therefore, a significant contextual provision limiting the application of section 36(2) . [ 7 ] I disagree with the applicant’s

interpretation of section 36(1)(a)(i), which is supported and enhanced by the Commissioner. I find that the generalists and specialists work in a team environment and that skills and lessons learned from the specialists while carrying out their duties would not qualify as a service pursuant to section 36(1) (a)(i). I also conclude that the relationship of the specialists and generalists working together is not a centrally provided service, or “ services […] centraux ”, as these terms are used in the provision. [ 8 ] I similarly disagree with the

interpretations of the parties and the Commissioner that section 36(2) can be interpreted to apply the principle of collateral bilingual staffing, including that such an

interpretation is not contextually supported by

section 91 of the OLA. Both provisions I conclude express the intent of Parliament that bilingual employees are required to accommodate to some degree unilingual employees in their shared work environment. II. Abridged interpretive conclusions [ 9 ] I believe it is useful to present a form of executive

summary describing somewhat my analytical and interpretive paths that lead me to reject the applicant’s two principal issues based on my

interpretations of sections 36(1) (a)(

i) and 36(2) of the OLA. I present them at the introductory stage to assist what is a lengthy and detailed decision that considers two highly ambiguous provisions. The intention is for these comments to serve as a roadmap of my analysis that lies ahead. The relevant legislation is contained in an appendix to these reasons.

However, I present the key provisions, with my emphasis, in this introduction to facilitate understanding my analysis and when addressing interpretative issues. [ 10 ] Section 36(1)(a)(i): the services claim: Minimum duties in relation to prescribed regions 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 . [Emphasis added.] [ 11 ] The Commissioner supported the applicant, although with a much broader

interpretation of what constitutes a service under section 36(1)(a)(

i) and with a different construction from that originally described in the Final Investigation Report. All parties concluded that the bilingual versions were irreconcilable and that the English version was preferred as being the clearer of the two, with reference to the French version when it suited their purpose. This is perhaps understandable given that four different

interpretations in total were provided, as well as two Treasury Board policies that did little to clarify the provision’s meaning. I took a different path from all of the submissions and concluded that the bilingual versions are reconcilable. [ 12 ] The Court’s task of interpreting section 36(1) (a)(

i) was not assisted by 2004 and 2012 TBS Language of Work Policy Directives. The policies use the somewhat misleading term “personnel” (“ les services personnels ”) to describe the provision of services to employees “as individuals” (“ à

titre individuel ” ). This adds to the confusion surrounding the distinction with the term “ services auxiliaires ” in the French version, which is the most ambiguous phrase in the provision. The policies also required a service under section 36(1) (a)(

i) to be essential to the performance of duties, which I found was not a requirement of the provision. [ 13 ] On a related matter, I am concerned by the happenstance manner that I came upon the Treasury Board 2017 TBS Policy on Learning, Training, and Development (2017 Learning Policy). The document is highly relevant to the definition and provision of a service; particularly as training and professional development services were the centerpiece of the applicant’s and Commissioner’s submissions, at least initially.

I ultimately relied upon the 2017 Learning Policy as the example of what should constitute a centrally provided service in section 36(1) (a)(i). [ 14 ] I ultimately concluded that the two versions could be reconciled in light of the more deductive approach used by French language drafters, for example, that did not express the definition of the term “ services ”, which was implicit by the dictionary definition of the word. As a former director of a French language translation centre I perhaps have an appreciation of the different approaches to

interpretation used by Canadian legislative drafters. Broadly speaking, the results of the deductive

interpretation of the French version led me to understand that the purpose of the term “ auxiliaire ” was not to describe an underlying character of a service, but only to distinguish between the two categories of services. This, with the recognition that the English version was somewhat pleonastic, unlocked to some degree my

interpretation of the remainder of the provision. [ 15 ] With respect to the category of services provided to employees as individuals ( à

titre individuel ), this refers to those provided by the simple fact of being an employee of the institution; in other words, available to all employees of the institution. This would include, for example, health, administrative and professional career development services, unrelated to supporting the employees in the performance of their duties. [ 16 ] With respect to the category of services centrally provided to support employees ( à

titre de services auxiliaires centraux ) by the English version in the performance of their duties, I rejected the applicant’s and Commissioner’s

interpretations of section 36(1) (a)(

i) that the specialists were providing services to the generalists, because they were in a “team-like” relationship. This describes a group of employees with complementary skills, operating with a high degree of interdependence, accountable for their collective performance towards a common goal and shared rewards.

A team relationship is mutually exclusive to that of a service relationship. [ 17 ] I further rejected the Commissioner’s submission by concluding that a “centrally provided” service was one arising from a formal decision of management to recognize the activity as a service, as opposed to the nature of the relationship between employees. This is similar to the decision taken by the Treasury Board in the 2017 Learning Policy. It provided for the provision of training and professional development services in the federal Public Service.

I also concluded that individual services are centrally provided, but that this requirement is implied by the definition that such services apply to all employees of the institution and by that fact could only be centrally provided. [ 18 ] Section 36(2): work environments that accommodate ( permettra à ) the use of either official language. 36 … Additional duties in prescribed regions

(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 [1st category] conducive to the effective use of both official languages and [2nd category] accommodate the use of either official language by its officers and employees. [Emphasis added.] [ 19 ]

Section 91: staffing required to be based on merit. Staffing generally 91 Nothing in

Part IV or V authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken. [ 20 ] The parties and Commissioner considered themselves bound by this Court’s earlier decision in Tailleur v. Canada (Attorney General) , 2015 FC 1230 , [2016] 2 F.C.R. 415 ( Tailleur ).

Accordingly, the applicant argued that section 36(2) must be strictly interpreted to impose a peremptory duty on institutions to justify any occasion when bilingual employees are required to use their second language of choice (second language). Justification of the use of second language required the institution to meet a three factor test created by the Court, including that “significantly serious” detriment to the operations of the institution would otherwise result.

The applicant relied upon this reasoning in seeking the collateral bilingual staffing of additional specialist positions in Toronto. [ 21 ] I respectfully disagree with many aspects of the reasoning in Tailleur . It appears that the decision largely endorsed submissions of the Commissioner, which are similar to those made before me. Also the Court was not required to consider

section 91 of the OLA. [ 22 ] There was a dispute over whether the Court should consider

section 91 . I tentatively concluded that the respondent’s highly circumscribed submission that

section 91 should prevent the requirement for additional bilingual specialist positions in Toronto would similarly apply to the staffing of all of the specialists positions. Accordingly, I sought directions from the parties which delayed the completion of these reasons. Both parties submitted that I did not have the jurisdiction to consider the application of

section 91 , as it was not the subject matter of a complaint which provides the foundation of my jurisdiction. The Commissioner did not challenge my jurisdiction, only that

section 91 was not relevant for a number of reasons provided, all of which I rejected. [ 23 ] I concluded that

section 91 was highly relevant to the

interpretation of section 36(2). I concluded that the provision was the embodiment of the merit principle. Parliament has drawn a bright line based on merit indicating that the application of the provisions in Parts IV and V should have no bearing on the staffing of positions unless required for the performance of the positions. This means that work environments in bilingual regions will in some degree comprise a mixture of bilingual and unilingual employees, further meaning that bilingual employees will be required to apply their bilingual skills to accommodate their unilingual colleagues. [ 24 ] Apart from

section 91 , I also concluded that Parliament’s intent in enacting section 36(2) was to provide for some degree of accommodation in work environments by bilingual employees of their unilingual colleagues. It is in this regard that I respectfully disagree with several of the opinions expressed in Tailleur , including the following: • As mentioned, the adoption of a purposive

interpretation of section 36(2) intended to maintain and develop the Francophone Canadian minority community applied throughout the decision. This purpose would usurp and contradict Parliament’s clear expression that the purpose of institutional bilingualism, as specifically described in the

preamble and other provisions of the OLA, is that of maintaining the equality of status and privileges of the use of both official languages. I disagree with the applicant’s argument that this would disadvantage Francophones who have a higher incidence of bilingualism, because bilingual Canadians are already advantaged in bilingual regions by the application of the merit principle in respect of the service and career requirements, among others, for employment in federal institutions. • The

interpretation of the scheme of section 36(2) that did not focus on the requirement that institutions provide linguistically appropriate “work environments” as the overall requirement. This required institutions to comply in meeting the two objectives described in the provision. Recognizing the scheme of the provision being on attaining appropriate official language work environments, directs the attention of the Court to focus on a more collective use of official languages in an institution’s work environments, rather than the sole consideration of the individual complaint. The

interpretation of the scheme of section 36(2) that examines the totality of the linguistic work environment therefore follows a different evidentiary trajectory from that of a single work relationship. Because the parties and Commissioner did not consider the respondent’s obligations in broader terms of providing a suitable linguistic environment, the Court did not have the appropriate evidence with which to decide whether the OSFI failed to comply with section 36(2) by not providing the applicant with a compliant work environment.

• With further respect to the scheme of section 36(2) , the failure to recognize that compliance by the institution was for it to achieve a threshold of providing appropriate official language work environments. It must first be determined that the institution failed to provide an appropriate official language work environment. If not, then it is required to take measures to correct the situation. • The omission to consider or interpret the second objective in the English version that “work environments … accommodate the use of either official language” (the accommodation objective).

This extended to considering the preference of the English version over the French co-equivalent “ qui permet à leur personnel d’utiliser l’une ou l’autre ”. It also led to the failure to consider the term as requiring a compromise of conflicting language use.

This is corroborated by related contextual terms in section 36(2) , which also suggest flexibility in the application of language requirements. • The related omission to interpret or consider the other significant terms in section 36(2) that contextually support the accommodation objective, i.e. “work environments/ milieu de travail ”, “conducive/ propice ” and “either/both/ l’une ou l’autre ” suggesting flexibility in the application of language requirements. • The interpretive methodology and

interpretation of the phrase “such measures as can reasonably be taken” and its co-equivalent “ toutes autres mesures possibles ”.

This failed to recognize that “such” and “reasonably” describe a discretionary approach to the consideration of a compliant work environment, thereby further contextually supporting a solution-oriented resolution of language of work concerns required where linguistic accommodation is necessary. • The differences of opinion regarding (1) the contextual effect of section 36(1)(c)(i) (requirement that managers use an “appropriate or necessary” choice of language with subordinates) for the maintenance of a work environment that is conducive to the use of both official languages; (2) the precedential support of the jurisprudence cited; and (3) the extrinsic evidence from the parliamentary debates at the time of passage of the language of work provisions, which I concluded support the conclusion that Parliament intended workplaces wherein bilingual employees will accommodate unilingual employees to some degree to allow them to work together. [ 25 ] I further concluded that the determination of appropriate official language work environments would require the development of assessment instruments comprising factors that could be applied across a variety of different work environments to determine the compliance of work environments with section 36(2). [ 26 ] In this regard, I conclude that the first objective of work environments, that of being conducive to the effective use of both languages, should be accorded a degree of priority over the accommodation objective when presented with the choice.

This reflects the essential need for a bilingual workforce and the longer-term goal of achieving highly bilingualized work environments in bilingual regions for federal institutions to properly function in both bilingual and unilingual regions.

I also recommend that institutions consider technological and other measures to alleviate the extra burden imposed by working in two languages, which in no way is reflected by the bilingual bonus. [ 27 ] Although relevant to employees working in differently designated regions, the issue of communications between bilingual and unilingual regions was not meaningfully addressed in the proceedings. I conclude that in most cases employees in bilingual regions are required to use the language of unilingual employees in unilingual regions.

In most cases it is understood that communications are not just with individuals, but are intended to be shared in work environments with other employees.

This makes the requirement for translation in a unilingual region operationally wasteful in comparison with the use of the bilingual skills of the employee in a bilingual region. [ 28 ] There is also the presumption that bilingual and unilingual regions reflect the linguistic skills of employees’ in those regions, such that Parliament intended that bilingual employees will communicate in the language of unilingual employees in a unilingual region, without which communications cannot occur. [ 29 ] In addition, as noted by the applicant’s remedy seeking the bilingual staffing of the specialist co-worker’s positions, this would be an exercise of impermissible collateral bilingual staffing, not based on merit under

section 91 , which has application to all positions in federal institutions. III. Facts A. The applicant’s duties within the OSFI [ 30 ] The Canadian Office of the Superintendent of Financial Institutions (OSFI) was created in 1987 under the Office of the Superintendent of Financial Institutions Act , R.S.C., 1985, (3rd Supp.), c. 18,

Part I . The OSFI is a federal institution within the meaning of the OLA. One of its objects, set out in paragraph 4(2) (a), is to supervise financial institutions in order to determine whether they are in sound financial condition and are complying with their governing statute law and supervisory requirements under that law. [ 31 ] The OSFI has approximately 700 employees spread across four offices, located in Ottawa, Toronto, Montréal and Vancouver.

The Ottawa and Montréal offices are in regions designated as bilingual, whereas the Toronto and Vancouver offices are in unilingual English regions. [ 32 ] The OSFI’s activities fall under two general functions: supervision and regulation. At the time of the complaint, the OSFI was composed of four units: the Supervision Sector, the Regulation Sector, the Corporate Services Sector, and the Office of the Chief Actuary.

The employees at the Montréal office were part of the Supervision Sector. [translation] The Supervision Sector includes the following divisions: the Deposit-taking Group, the Life Insurance Group, the Property and Casualty Insurance Group, the Supervision Support Group, and the Supervisory Practices Division. While OSFI’s Head Office is in Ottawa, most of the employees in the Supervision Sector, including all senior directors, are in OSFI’s Toronto office.

The senior supervisors at the Montréal regional office report to the managers and directors in the Deposit-taking Group, the Life Insurance Group, or the Property and Casualty Insurance Group. [Emphasis added.]

[ 33 ] The members of the Supervision Support Group in Toronto are specialists who analyze various types of risk, including credit or capital risk. They assist supervisory staff in the Deposit-taking Group, the Life Insurance Group, and the Property and Casualty Insurance Group in Montréal in assessing specific inherent risks, so that they can determine overall risk and make recommendations to financial institutions.

These specialists are also part of other levels of employees and managers who may be called upon to participate in a file. [ 34 ] Most of the staff at the Montréal office are Francophones, and all employees, except the director and her administrative assistant, are generalists supervising financial institutions.

The vast majority of the specialists in Toronto who provide support to Montréal employees hold English essential positions or speak English only. [ 35 ] Very often in the course of supervisory work, internal supervisory processes require generalists to leverage the expertise of specialists in various areas at the OSFI’s Toronto office to determine the compliance of a situation in a regulated financial institution, because they do not have this specialized knowledge.

Generalists should rely heavily on the support of specialists in the performance of their duties. [ 36 ] The applicant indicated that specialists were used on a case-by-case basis. They could be used less frequently in some files, and more frequently in others. The applicant was once assigned a file that involved highly technical issues that had been in play for five, six years. For that specific file, specialists could be relied upon on a daily basis or several times a week or month. This went on for five years. The applicant explained that the file [translation] “was somewhat special”.

He said that, sometimes, support from the specialists in Toronto was not required for a specific supervision. [ 37 ] The applicant’s supplementary affidavit contains the following additional evidence regarding his ongoing work with specialists: [translation] 12. Under OSFI internal policies, specialists had to prepare their own reports on the issues within their expertise . These reports had to make observations as well as recommendations as to the course of action required of OSFI .

As a manager of supervision, I was bound by specialists’ reports , which I actually had to incorporate into my final reports to the financial institutions. 13. Managers of supervision work closely with specialists as these people assess the file, to share the information required and thereby allow the specialists to properly understand the overall context of the company and the report being assessed. These communications are verbal or written . 14.

In addition to having to incorporate specialists’ final reports and recommendations into my own final reports, I had to consider their various observations in making my own recommendations. Sometimes, specialists’ reports would influence or even dictate my assessment of the file aspects directly under my purview. 15. This means that while the final report issued to the financial institution bore my signature, a very large portion of its contents had been imposed on me by another employee , in accordance with internal supervisory processes. … 28.

Throughout my 22 years at OSFI, all of my communications with staff at the Toronto office were exclusively in English, including all the communications described above. 29. Thus, every time supervisory activity required the participation of a specialist—which was most of the time—a large part of my work had to be done in English . Any communication with the specialist was in this language, including the specialist’s final report. 30.

If the financial institution being supervised had asked to be served in French, which is the case for many of the clients served by the Montréal office, the specialist’s report had to be translated before it could be incorporated into my final report. Since I could not, because of deadline constraints, allow myself to wait for the translation, which could take several weeks, if not months, to complete, most of the time I had to work with the specialist’s English report in preparing the parts of the final inspection report that were under my purview .

In addition to having to use this essential work tool in English, I had to act as a translator—a considerable additional task—before I could send my communication to the financial institution. Moreover, and as a result, there was a risk of rendering words inaccurately, as translation was not my profession . [Emphasis added.] [ 38 ] The applicant testified that roughly half of his institutions had selected French as their language of correspondence (questions 24 and 25). His relevant evidence continues as follows: [translation] 32.

As another example, the Securities Administration Unit manages the eligibility of the assets in trust that financial institutions have to deposit. Nobody in that unit speaks French, even though it often has to deal with Francophone supervisors. This unit must also serve the public , that is, our regulated institutions, which it is unable to do in French. I often had to act as an intermediary between this unit and Francophone institutions. 37. In 2006, OSFI senior management decided to hold a formal meeting in Montréal to have a serious discussion on language issues .

The meeting was mandatory for all members of senior management and all senior directors in Toronto. The director of human resources gave a presentation, entirely in English , on the importance of respecting both official languages at OSFI, and shared copies of the presentation, written only in English, with all Montréal staff. [Emphasis added.] [ 39 ] The respondent provided more detailed evidence that does not contradict but rather complements the applicant’s evidence.

The most comprehensive explanation of the way in which the specialists and generalists work together in a larger work environment, as indicated at paragraph 22 of Natalie Harrington’s supplementary affidavit dated June 19, 2016, is as follows: [translation] 22. Thus, the generalists in charge of supervision are not required to become experts in all areas covered by the specialist

groups. Rather, they are required to incorporate the specialist groups’ risk assessments into their consolidated risk assessments after discussing with these specialists and within the Supervision team the risks they had identified and the best ways to respond to them. I am told that the generalists in charge of supervision are not bound by the specialists’ reports. The specialists provide their opinions, and it is up to the generalists in charge of supervision to decide on the best way to incorporate them into the overall assessment of the institution’s risks.

This decision is made within the Supervision team after discussion. Following these discussions, the specialists’ recommendations are incorporated as is, modified or even left out. [ 40 ] Moreover, the applicant did not attempt to describe or specify why he considered that his communications with specialists fell within the nature of services, when he generally understood the meaning of the expression, as the term has a broad application and use. I concluded that Mr. Dionne was a fair and honest witness who did not evade in any way or fail to answer the questions asked.

He never claimed in his initial complaint or in his affidavits that he received services in the course of his work with the specialists.

It seems that it is not necessarily his opinion that the specialists provided him with services. [ 41 ] The respondent’s affiant testified that it was in fact the Commissioner who had interpreted professional development as including all meetings and discussions between employees (paragraph 51 of his affidavit), and rejected this conclusion at paragraphs 53 and 54: [translation] 51 More specifically, in this regard, OCOL concluded that when Montréal office employees consulted supervision specialists at the Toronto office for advice or input, or when Montréal employees met with Toronto employees, this was professional development that had to be offered in the preferred official language of the employee receiving the professional development. 53 Contrary to OCOL’s conclusion, OSFI is of the view that when generalists at the Montréal office consult specialists in the Supervision Support Group at the Toronto office, they are not receiving professional development.

Rather, they are getting the specialists’ views on certain topics of expertise to incorporate them into their overall risk assessments …. 54 … In responding to generalists, supervision specialists are not providing job training. They are simply performing a task that is included in their regular workload. In short, the interactions between generalists and specialists are part of the regular work of each group. When describing the degree of knowledge required of the Applicant to work with specialists, the affiant writes that “[h]e has to understand the specialists’ advice and the work that they do”. B.

Findings of fact [ 42 ] Overall, I conclude that the generalists and specialists work as interdependent members of a team that can sometimes involve more experienced staff in the hierarchy. While the specialists have superior knowledge of the factors relating to specific areas of risk, they also rely on the generalists to obtain relevant information and to update this information. [ 43 ] When involved, the specialists provide a general, but not final, direction for the reporting and communications provided by the customer institutions.

The generalists exercise their decision-making authority independently, and the two parties agree that there may be situations of disagreement by the generalist who has to sign the report, which seems to be an assignment of certain delegated responsibilities. This will involve the participation of senior managers to finalize the report or the issue. [ 44 ] Generalists need sufficient knowledge of the issues that specialists deal with, to understand what they are recommending and why. But I conclude that this would not extend to knowledge of the level of complexity of specialists.

It would seem that they work at another level of analysis. [ 45 ] There is no doubt that specialists share some knowledge with generalists in their reports and recommendations so that the generalists who have to work with customer institutions can explain the reports and other communications if necessary. However, the applicant clearly lacks evidence describing exactly what this knowledge transfer consists of. The Court was not provided with any examples or analogies to better understand the alleged job training or development of the applicant resulting from these exchanges, if applicable.

To some extent, this undermines the case that the applicant must make. [ 46 ] However, given the very broad meaning that OCOL ascribes in its initial memorandum to the definition of service, it does not seem that a service requires a [translation] “professional development” aspect as presented in the Final Investigation Report. Instead, a service is simply defined as one [translation] “that makes it possible to support or assist employees and that is therefore useful in the performance of their duties”.

Thus, if a group of employees’ work is useful on a regular basis, but not essential, in carrying out another employee’s work, it is a “ service auxiliaire ” within the meaning of section 36(1) (a)(i). It should be noted at this point that the requirement not to render the service essential is an additional change in the Commissioner’s position compared to the one stated in her Final Investigation Report. [ 47 ] Two other factors seem to play into the applicant’s complaint. First, the bilingual generalists have more tasks than the specialists and the generalists who speak English only.

They are forced to work in both languages regularly to accommodate their unilingual co- workers, which include the onerous tasks of translating documents and interpreting conversations to make the organization’s client- institution communication system work. [ 48 ] Second, it would seem that certain relevant service issues could justify the need for bilingual specialists. Of course, services to the public have priority, under

Part IV of the OLA, over employees’ right to work in the language of their choice under

Part V of the Act. If a Francophone institution in Montréal needs to get to the heart of a problem or an issue with a report or risk assessment, it is very possible that these discussions will require the involvement of specialists, given their in-depth knowledge of the analysis of the underlying assessments. Staffing positions according to services is merit-based and inherent in the requirement that the public receive services in the language of their choice.

C. History of the complaint

(1) Chronology [ 49 ] In a complaint filed with the OCOL in November 2010, the applicant alleged that his right to work in French had been violated constantly throughout his 22 years of employment with the OSFI, but more flagrantly in the latter years. In support of his complaint, he had included six documents. [ 50 ] In June 2013, the OCOL issued a preliminary investigation report (Preliminary Report). Then, on July 23, 2013, the OSFI forwarded to the OCOL its comments regarding the Preliminary Report. [ 51 ] On January 7, 2014, the OCOL published its Final Investigation Report.

At the end of the Report, the OCOL concluded that the complaint was justified, and made seven recommendations to the OSFI. The Final Report indicated that the OCOL would follow up on the recommendations in April 2014. [ 52 ] On March 3, 2014, the OCOL sent the OSFI a letter, indicating that it would soon follow up on the recommendations in the Final Report. [ 53 ] On March 11, 2015, after various exchanges between the OCOL and the OSFI, the OCOL published its Follow-up Report, in which it concluded that the OSFI had satisfactorily implemented the recommendations in its Final Report. D. Final Investigation Report

(1) Training and professional development services [ 54 ] The purpose of the OCOL’s investigation was to [translation] “determine to what extent OSFI has met its obligations”. It touched on, among other things, training, professional development, work tools and computer systems, with the first two topics being the most relevant. [ 55 ] During the hearing, the OCOL and the parties indicated that the Court should not rely upon or consider the

definitions and distinctions made in the Final Investigation Report concerning the terms “ formation ” (“training”) and “ perfectionnement professionnel ” (“professional development”). Similarly, it was suggested that the Court disregard the categorization of these services under the two service categories described in the report as “ les services personnels et centraux ” [translation] “personal and central services”. I agree that the

definitions of these terms and how the Commissioner would apply them to the two categories of the services under section 36(1) (a)(

i) is not correct in many respects in the Final Investigation Report. [ 56 ] The alleged services provided by the specialist to the generalists was said to fall under the category of professional development. It should have been described as a training service. The distinction between the two types of learning services is basically that professional development services are intended to assist employees further their careers, whereas training is for the successful performance in a job.

I believe that the Commissioner may have been misled in part by the use of the term “personal services” used in the TBS policies. [ 57 ] Regardless of this distinction, the pertinent passage from the Final investigation Report found at paragraph 4.3 of the report that describes the nature of the generalists’ work relationship and dependency on the specialists is as follows, with the Court’s emphasis: [translation] Employees who work in regions designated as bilingual for language-of-work purposes, for example Francophone employees at the Montréal regional office, are entitled to receive professional development in the official language of their choice...

To perform their tasks, they depend on their co-workers in the Supervisory Practices Division and the Supervision Support Group in Toronto. … As part of their supervisory duties, Montréal employees consult specialists in Toronto for advice on their analysis and supervision of financial institutions. Specialists in the Supervisory Practices Division in Toronto develop frameworks and models, draft guides and guidelines, and train and advise the senior supervisors who work in Montréal.

The members of the Supervision Support Group in Toronto are specialists who analyze various types of risk, including credit or capital risk. They assist supervisory staff in the Deposit- taking Group, the Life Insurance Group, and the Property and Casualty Insurance Group in Montréal in assessing specific inherent risks, so that they can determine overall risk and make recommendations to financial institutions . The specialists who design products, draft material and analyze risk train their co-workers [the generalists] who supervise financial institutions.

These same people assist and support them in their work once they have been trained . [ 58 ] As a result of these factual determinations, the Commissioner indicated that the OSFI would have to change its linguistic environment for the employees in Montréal to encourage them to use their first language, which, although not transparently stated, is a facet of all of the submissions and decisions in regard to this matter and would require the bilingual re-designation of specialist positions and their bilingual staffing in Toronto, by indicating as follows: [translation] In light of the foregoing, OSFI must see that the work environment encourages Montréal employees to use the official language of their choice.

To that end, the language requirements of positions where the incumbent is responsible for providing professional development, training or other personal and central services must be determined in a way that truly reflects the tasks to be performed. OSFI

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