Date: 20190920  
Docket: T-759-15  
Citation: 2019 FC 879  
Ottawa, Ontario, September 20, 2019  
PRESENT: Mr. Justice Annis  
BETWEEN:  
ANDRÉ DIONNE  
and  
Applicant  
OFFICE OF THE SUPERINTENDENT OF  
FINANCIAL INSTITUTIONS  
Respondent  
and  
COMMISSIONER OF OFFICIAL LANGUAGES  
Intervenor  
AMENDED JUDGMENT AND REASONS  
TABLE OF CONTENTS  
I.  
II.  
III.  
Introduction......................................................................................................................... 4  
Abridged interpretive conclusions...................................................................................... 7  
Facts .................................................................................................................................. 17  
Page: 2  
A. The Applicant’s duties within the OSFI ........................................................................... 17  
B. Findings of fact ................................................................................................................. 23  
C. History of the complaint ................................................................................................... 25  
(1)  
Chronology................................................................................................................ 25  
D. Final investigation report .................................................................................................. 26  
(1)  
(2)  
Training and professional development services ...................................................... 26  
Work tools and computer systems............................................................................. 29  
IV.  
V.  
VI.  
Legal framework............................................................................................................... 30  
Issues................................................................................................................................. 30  
The Court has jurisdiction to consider whether the OSFI has complied with  
section 36(1)(c) and section 36(2). ................................................................................... 31  
VII. Principles of interpretation of institutional official language provisions of the OLA ...... 36  
(1)  
(2)  
Purposive interpretation ............................................................................................ 36  
The jurisprudence only supports a purposive interpretation to assist provincial  
official language minority communities.................................................................... 37  
Parliament distinguished between the purpose of official bilingualism in federal  
institutions, and that of supporting provincial minority official language  
communities .............................................................................................................. 41  
The OLA has re-balanced past disadvantages of the Francophone minority  
community in federal institutions.............................................................................. 46  
The methodology of applying a purposive interpretation ......................................... 48  
The bilingual interpretation of sections 36(1)(a)(i) and 36(2) .................................. 49  
(3)  
(4)  
(5)  
(6)  
VIII. Services provided to federal institution personnel pursuant to paragraph 36(1)(a) of the  
OLA .................................................................................................................................. 52  
A. Introduction....................................................................................................................... 52  
(1)  
Treasury Board Policies and Directives on Official Languages and Training and  
Professional Development......................................................................................... 55  
(a) The 2004 Policy on Language of Work.................................................................. 55  
(b) The 2012 Policy on Official Languages ................................................................. 57  
(c) 2017 Policy on Learning, Training, and Development........................................... 58  
(2)  
The Submissions of the Parties on the Interpretation of the Services Provision....... 60  
(a) The Applicant’s Submissions ................................................................................. 60  
(b) The Commissioner’s revised submissions.............................................................. 61  
(c) The Respondent’s Submissions .............................................................................. 63  
B. The Interpretation of section 36(1)(a)(i)........................................................................... 66  
(1)  
(2)  
(3)  
(4)  
(5)  
Introduction ............................................................................................................... 66  
Define and follow the scheme of the provision......................................................... 68  
Definitions of “services” ........................................................................................... 69  
Services provided to employees “as individuals” ..................................................... 73  
Services to support employees in the performance of their duties “services  
auxiliaires”................................................................................................................. 77  
(a) The verbal phrase “provided to support employees in the performance of their  
duties” is redundant to the meaning of “services” ................................................. 77  
(b) “in the performance of duties” may be deduced contextually in the term  
“auxiliaire” ............................................................................................................. 80  
Page: 3  
(6)  
(7)  
(8)  
Services are not required to be “essential” in the support of the performance of duties  
81  
Services do not include assistance provided by “team employees” to each other in  
the performance of their duties.................................................................................. 86  
Central Services......................................................................................................... 92  
(a) “centrally provided” and centraux....................................................................... 92  
(b) Respondent and Commissioner’s submissions....................................................... 93  
(c) Analysis of centrally provided services .................................................................. 95  
C. Conclusion on the Interpretation of Official Language Obligations Pertaining to Services  
in section 36(1)(a)(i) ....................................................................................................... 100  
IX.  
The Interpretation and Application of Section 36(2)...................................................... 101  
A. Introduction..................................................................................................................... 101  
(1)  
(2)  
Section 36(2) ........................................................................................................... 101  
Section 91................................................................................................................ 103  
B. The Parties’ Submissions................................................................................................ 104  
(1)  
(2)  
(3)  
Applicant ................................................................................................................. 104  
Respondent .............................................................................................................. 108  
The Commissioner’s 2014 Final Report ................................................................. 111  
C. Section 91 and Collateral Bilingual Staffing .................................................................. 112  
(1)  
(2)  
(3)  
No evidence that collateral bilingual staffing practices have been adopted by federal  
institutions ............................................................................................................... 112  
The Parties’ submissions regarding section 91 that the scope of the complaint  
proscribes its consideration ..................................................................................... 113  
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................... 119  
(a) Extrinsic evidence regarding section 91 ............................................................... 119  
(b) The Preamble to the OLA..................................................................................... 123  
(c) Jurisprudence regarding the purpose of section 91............................................... 124  
(i)  
(ii)  
Canada (Attorney General) v Viola............................................................... 124  
Norton v Via Rail Canada, 2009 FC 209 [Via Rail] and other service cases 126  
(d) Section 16(1) of the Charter.................................................................................. 130  
(4)  
Conclusion on section 91 ........................................................................................ 131  
D. Analysis of section 36(2) ................................................................................................ 133  
(1)  
(2)  
(3)  
Introduction ............................................................................................................. 133  
Tailleur is a service-driven decision bearing no relevance to section 36(2)........... 134  
The terminological and internal contextual interpretation of section 36(2)............ 138  
(a) The scheme of section 36(2)................................................................................. 138  
(b) Work environments............................................................................................... 142  
(c) The primary objective of appropriate official language work environments: being  
conducive to the effective use of both official languages .................................... 146  
(d) The secondary objective of work environments: accommodating or permitting the  
use of either official language .............................................................................. 149  
(i)  
(ii)  
(iii)  
“accommodate/permettre............................................................................. 151  
“either/l’une ou l’autre” and “both/deux” ..................................................... 156  
Criticism of linguistic accommodation in Beaulac is specific to its particular  
facts............................................................................................................... 159  
Page: 4  
1.  
2.  
Paragraph 24 in Beaulac............................................................................... 160  
Paragraph 82 in Tailleur ............................................................................... 162  
(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 ............ 164  
(i)  
(ii)  
A legal standard based on a threshold ........................................................... 164  
The contextual significance of “toutes autres mesures possible” [such  
measures as can reasonably be taken] ....................................................... 168  
“reasonably be taken”/mesures possibles.................................................. 168  
“such measures”/toutes autres mesures...................................................... 173  
The significantly serious [importantes et sérieuses] operational difficulties  
factor ............................................................................................................. 174  
Reasonable measures does not imply an employee’s right to dictate the  
language requirements of a co-worker.......................................................... 175  
(iii)  
(iv)  
(v)  
(vi)  
(4)  
Contextual interpretation of section 36(2)............................................................... 181  
(a) Internal contextual interpretation of section 36(2)................................................ 181  
(b) External contextual interpretation provisions of the OLA: sections 91 and  
36(1)(c)(i)............................................................................................................. 185  
(i)  
(ii)  
Section 91 ...................................................................................................... 186  
Section 36(1)(c)(i) ......................................................................................... 186  
(5)  
(6)  
Jurisprudence regarding unilingual employees in the workplace ........................... 191  
Extrinsic evidence as an aid to interpretation of section 36(2)............................... 194  
E. Conclusion on the interpretation of section 36(2)........................................................... 201  
F. Applying section 36(2) ................................................................................................... 202  
(1)  
(2)  
(3)  
(4)  
Primacy to the effective use of both official languages .......................................... 202  
Management’s role.................................................................................................. 203  
Recognizing the additional workload of bilingualism ............................................ 204  
Means to lighten the work efforts of the bilingual employee.................................. 207  
X.  
XI.  
Language Rights in Unilingual Regions......................................................................... 208  
Work instruments and Regularly and widely used computer systems ........................... 214  
A. Work instruments............................................................................................................ 214  
B. Regularly and widely used computer systems................................................................ 216  
XII. Conclusion ...................................................................................................................... 217  
I.  
Introduction  
[1]  
This is an application under subsection 77(1) of the Official Languages Act, RSC 1984,  
c 31 (4th Supp.) [OLA] 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.  
 
Page: 5  
[2]  
The Applicant raises intractable issues of interpretation of two languages of work  
provisions found in Part V 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.  
Page: 6  
[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 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  
Page: 7  
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  
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:  
36(1) Every federal institution 36(1) Il incombe aux  
has the duty, within the  
National Capital Region and in région de la capitale nationale  
any part or region of Canada, et dans les régions, secteurs ou  
or in any place outside Canada, lieux désignés au titre de  
institutions fédérales, dans la  
 
Page: 8  
that is prescribed for the  
purpose of paragraph 35(1)(a),  
to  
l’alinéa 35(1)a) :  
(a) make available in both  
official languages to officers  
and employees of the  
institution  
a) de fournir à leur personnel,  
dans les deux langues  
officielles, tant les services  
qui lui sont destinés,  
notamment à titre individuel  
ou à titre de services  
auxiliaires centraux, que la  
documentation et le matériel  
d’usage courant et généralisé  
produits par elles-mêmes ou  
pour leur compte;  
(i) services that are  
provided to officers and  
employees, including  
services that are provided  
to them as individuals and  
services that are centrally  
provided by the institution  
to support them in the  
performance of their duties,  
and  
[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.  
Page: 9  
[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 auxiliairesin 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 auxiliairewas 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  
Page: 10  
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  
Page: 11  
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  
(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  
(2) Il leur incombe également  
de veiller à ce que soient  
prises, dans les régions,  
secteurs ou lieux visés au  
paragraphe (1), toutes autres  
mesures possibles permettant  
de créer et de maintenir [1ere  
catégorie] en leur sein un  
measures are taken in addition milieu de travail propice à  
to those required under  
subsection (1) as can  
l’usage effectif des deux  
langues officielles et [2e  
reasonably be taken to  
establish and maintain work  
catégorie] qui permette à leur  
personnel d’utiliser l’une ou  
environments of the institution l’autre.  
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.  
[19] Section 91: staffing required to be based on merit  
91 Nothing in Part IV or V  
authorizes the application of  
91 Les parties IV et V n’ont  
pour effet d’autoriser la prise  
official language requirements en compte des exigences  
to a particular staffing action  
unless those requirements are  
relatives aux langues  
officielles, lors d’une dotation  
objectively required to perform en personnel, que si elle  
the functions for which the  
staffing action is undertaken.  
s’impose objectivement pour  
l’exercice des fonctions en  
Page: 12  
cause.  
[20] The Parties and Commissioner considered themselves bound by this Court’s earlier  
decision in Tailleur v Canada (Attorney General), [2016] 2 FCR 415, 2015 FC 1230 [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  
Page: 13  
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  
Page: 14  
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  
Page: 15  
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/propiceand “either/both” 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  
Page: 16  
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  
Page: 17  
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.  
A.  
Facts  
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, RSC 1985, c 18  
(3rd Supp), 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.  
   
Page: 18  
[31] The OSFI has approximately 700 employees spread across four (4) 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 (4) 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.  
Page: 19  
[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  
Page: 20  
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.(a) 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 specialistwhich was most of the timea 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 translatora  
considerable additional taskbefore 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.  
Page: 21  
[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  
Page: 22  
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 . . . .  
Page: 23  
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  
[TRANSLATION] “[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.  
 
Page: 24  
[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 auxiliairewithin the meaning of subparagraph 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.  
Page: 25  
[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 (6) 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 (7)  
   
Page: 26  
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  
   
Page: 27  
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  
Page: 28  
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 must take corrective action in this regard.  
[Emphasis added.]  
[59] The Commissioner made a number of recommendations based on the OSFI undertaking  
the bilingual re-designation and staffing of specialist positions in Toronto so as to enable them to  
provide bilingual learning services to the generalists, the most relevant being the first of two  
recommendations, which are as follows:  
[TRANSLATION]  
1.  
Take steps to make, by March 31, 2014, an objective  
determination of the language requirements for all positions where  
the incumbent provides Montréal office employees with training  
and professional development, so that these services are provided  
in the preferred official language of the employees in that office;  
Page: 29  
2.  
Put on hold all staffing actions for all positions where the  
incumbent provides Montréal office employees with training and  
professional development, until recommendation 1 has been fully  
implemented;  
[60] The OSFI disagreed with the Commissioner that the specialists were providing services  
to the generalists. The OSFI claims that the Commissioner agreed with the OSFI, which  
statement was not contradicted by the Commissioner. The OSFI nevertheless re-designated 11  
bilingual specialist positions. In its March 2015 Follow-up Report, the OCOL concluded that  
recommendations 1 and 2 and related recommendations had been implemented.  
(2)  
Work tools and computer systems  
[61] The OCOL described the regularly and widely used work tools for employees as  
including, but not being limited to, the instruction manuals, procedures and directives, policy  
documents, terminology and specialized documents that employees need to perform their tasks.  
The OCOL indicated that specialists produced and shared with Montréal staff internal documents  
that were available only in English, including section notes, supervisory review notes and  
quarterly supervisory reports, and that Montréal staff needed and used regularly to carry out their  
tasks.  
[62] The Commissioner made the following recommendations with respect to the subjects:  
[TRANSLATION]  
“See that all computer systems used regularly by employees in  
bilingual regions are available in both official languages;  
See that all work tools used regularly by employees in bilingual  
regions are available in both official languages.”  
 
Page: 30  
[63] In its initial response, the OSFI indicated that all programs, for instance those of the  
Microsoft Office suite and the intranet platform, were available in both official languages.  
However, OSFI acknowledged that some professional in-house applications were available in  
English only, including BI Tool, which Montréal supervisory staff use for financial analyses.  
[64] In December 2010, the OSFI informed the OCOL that the Information Technology [IT]  
Sector was planning to remedy the situation, but that the project in question had been delayed.  
The OSFI added that the application would soon be replaced and that the new application would  
be available in both official languages.  
[65] Finally, OCOL’s conclusion was as follows:  
[TRANSLATION]  
Despite the outstanding issue of the computer systems and the  
impending end of the working group’s mandate, we can say that,  
overall, OSFI satisfactorily implemented the recommended  
measures, in accordance with its official languages obligations. We  
will close this file.  
IV.  
Legal framework  
[66] The relevant provisions are reproduced in Annex A.  
V.  
Issues  
[67] The issues are as follows:  
1. What is the Court’s jurisdiction to hear this application?  
2. What are the principles for interpreting the provisions of Part V of the OLA?  
   
Page: 31  
3. What are the nature and scope of federal institutions’ duties under section 36(1)(a) of  
the OLA?  
4. What are the nature and scope of federal institutions’ duties under sections 35(1)  
and 36(2) of the OLA?  
5. What are the nature and scope of federal institutions’ duties under section 36(1)(a)  
and section 36(2) of the OLA in non-prescribed regions?  
6. What are the nature and scope of federal institutions’ duties under section 35(1)(b)?  
7. What are the interpretation and scope of the remedy under Part X of the OLA?  
8. Is the remedy sought appropriate and fair?  
VI.  
The Court has jurisdiction to consider whether the OSFI has complied with  
paragraph 36(1)(c) and subsection 36(2)  
[68] The Respondent contends that the Applicant never raised a specific complaint regarding  
either section 36(1)(a) requiring the provision of services by the specialists in the first language  
of the generalists, or section 36(2) regarding the right of the generalists to communicate in their  
first language with the specialists.  
[69] Its submissions at paragraph 32 of its initial memorandum apply to both circumstances,  
as follows:  
[TRANSLATION]  
32. Since the role of the Court is limited to verifying the merits of  
the complaint filed with OCOL and since OCOL did not raise this  
specific issue, the Court should not consider those interactions  
between generalists and specialists that would be contrary to the  
OLA.  
 
Page: 32  
[70] Accordingly, it is argued that the Court does not have jurisdiction to entertain either of  
these issues, as neither is a violation of a right or a duty mentioned in the complaint for which a  
remedy could be sought pursuant to section 77(1) of the Act.  
[71] This submission raises two questions for consideration. First, what is the content of the  
Applicant’s complaints? Second, to what extent can the Commissioner elaborate on the  
complaints, specifically?  
[72] There may have been a third issue as to whether the Applicant may raise a further ground  
in the court case that arises from the facts of the complaint, but not considered by the  
Commissioner, i.e. the OSFI’s noncompliance with section 36(2), but it has not been raised, nor  
have submissions been provided to the Court and I will therefore not pursue it.  
[73] I think the first two questions may be answered by drawing an analogy of sorts with the  
pleading rules in a court action. First, in terms of the requirements of a statement of claim, the  
underlying rule is that the plaintiff need only plead the facts that he or she relies upon. There is  
no need to plead the law which would give rise to the remedy. [Please find Canadian authority to  
the same effect below:  
https://books.google.ca/books?id=E4w6jrivaHkC&pg=PA302&lpg=PA302&dq=lord+denning+  
pleading+facts&source=bl&ots=jA0T7LhL4d&sig=u-  
7sufBzaoCHMjr5DofkC4MjmQs&hl=en&sa=X&ved=0ahUKEwiYg9eV-  
rzcAhVO4VMKHY3PAhgQ6AEIUjAE#v=onepage&q=lord%20denning%20pleading%20facts  
&f=false]See for example, the Federal Courts Rules, SOR/98-106 with my emphasis at sections  
Page: 33  
174: “Every pleading shall contain a concise statement of the material facts on which the party  
relies, …” and 175: “A party may raise any point of law in a pleading.”  
[74] Given that it is common ground that the provisions of the OLA must be interpreted  
liberally and generously for the purpose of fulfilling Parliament’s intention of providing a broad  
inclusive remedy to repair situations of noncompliance of the Act, the interpretation of the facts  
to some extent may be interpreted in the same fashion: Thibodeau v Air Canada, [2014] 3 RC8  
340 at paragraph 112 and the Charter of Rights and Freedoms, Part I of the Constitution Act,  
1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].  
[75] Secondly, in court pleadings there is a distinction made between providing particulars of  
a claim for clarification purposes, as opposed to amending the claim by adding a new one based  
on different facts. That rule would similarly apply to the limits of the Commission’s ability to  
interpret the complaint in terms of the scope of its investigation and findings of fact related to the  
complaint and the application of suitable remedies.  
[76] Using this analogy somewhat, the Commissioner may particularize the complaint by  
seeking additional related facts of the complaint in an investigation that could provide relevant  
details about the nature of the complaint. This obviously extends to thereafter determining  
whether and to what extent the institution has failed to comply with the OLA and seeking the  
appropriate remedy to repair the situation. Accordingly, the only real issue is whether the facts  
stated in the complaint are sufficient to permit an investigation that particularizes those facts and  
applies appropriate remedies as a result.  
Page: 34  
[77] Given that the Respondent’s submission is that the Applicant [TRANSLATION] “did not  
raise this specific issue”, it would be my view that this would not prevent the court having  
jurisdiction so long as the facts described in the complaint, liberally and generously interpreted,  
while being subject to further particularization by an investigation into those facts, bear no  
relation to the violations of the OLA claimed by the Applicant.  
[78] The Court agrees with the Respondent that the complaint makes no specific reference to  
relations between the specialists and generalists in terms of the services they provide, or for that  
matter, in any regard, including any reference even to the specialists being the unilingual co-  
workers situated in the non-designated region of Toronto. The Court nevertheless concludes that  
there is sufficient factual information in the Applicant’s complaint to support the Commissioner  
framing the issue raised as one pertaining to training “services”, as well as the Applicant’s  
additional submission alleging a violation of section 36(2) of the Act.  
[79] It is recalled that the Applicant’s formal complaint is set out in two letters dated  
November 19 and 24, 2010. The letter of November 19, 2010 described the complaint in general  
terms, specifically the claim that [TRANSLATION] “disregard for French is firmly entrenched in  
the organization’s culture” and further that “my right to work in French was violated constantly  
throughout my entire career with this federal employer, but more flagrantly in the latter years”.  
[80] The second letter provided particulars of the complaint in six accompanying handwritten  
documents, some with attachments. Most relevant to this issue are documents #1 and #2 that  
Page: 35  
referred to « un exercice trimestriel appelé ‘Quarterly Monitoring’ », which describes the  
circumstances of English being the language of inter-worker communications, as follows:  
[TRANSLATION]  
“The supervision teams that work in French never obtain these  
analyses in French. Moreover, they never have discussion forums  
in French, because all meetings associated with this process are  
always and systematically held executively in English. This  
significantly prejudices the supervisors who work in French,  
having chosen French as their language of choice in their  
exchanges with OSFI.  
Although the documentation is translated into French, all training  
is administered by unilingual Anglophone employees, and  
therefore provided exclusively in English.”  
[81] In assessing the pith and substance of the Applicant’s complaint as a layperson not  
informed of the intricacies of the OLA, the Court concludes that in the first letter the objection  
referred to a work place environment which was not conducive to the use of French  
([TRANSLATION] “disregard for French is firmly entrenched in the organization’s culture”), while  
the particulars in documents #1 and #2 express the Applicant’s frustration at not being able to  
use his language of choice in communications with fellow employees because English is the  
normal language of work at the OSFI and raises this issue in the context of training.  
[82] The Applicant has largely described his complaint in terms of his work environment  
relating to communications between the generalist and the specialists not being conducive to the  
use of French in that most if not all communications in the OSFI generally occur in English, with  
a training issue being raised as a further example. With this factual foundation, the Court sees no  
overreaching on the part of the Commissioner to conclude that the Applicant’s complaint relates  
to a possible language of work violation under sections 35 and 36 of the OLA.  
Page: 36  
[83] Again, it is not to be overlooked that the protection of language rights constitutes a  
fundamental constitutional objective and requires particular vigilance on the part of the courts.  
This perspective extends not only to the requirement of generously construing the provisions of  
the Act that confer rights along with the remedies that may be applied, but should similarly avoid  
the adoption of technical and restrictive interpretations of what is sufficient in terms of  
describing the essence of a complaint to be processed and acted upon by the Commissioner.  
[84] Moreover, the Commissioner and the institution involved are not in a true adversarial  
relationship, as both seek the same objective, which is to adhere to the requirements of the Act.  
The concept is to get to the bottom of the problem, and having arrived there, to set out the  
circumstances of the complaint and the alleged violation of any right or duty in the Act.  
[85] Accordingly, the Court does not find that the issues raised in this application exceed the  
bounds of the Applicant’s complaint.  
VII. Principles of interpretation of institutional official language provisions of the OLA  
(1)  
Purposive interpretation  
[86] The purpose of the language of work Part V provisions of the OLA is to ensure equality  
of status and equal rights and privileges as to their use in all federal institutions. Beyond the  
recognized principle that the OLA, as a quasi-constitutional statute, must be given a liberal and  
generous interpretation, there is no other principle of interpretation that applies except the  
modern one. It requires a court to read the words of an Act in their entire context and in their  
   
Page: 37  
grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act  
and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, 1998  
837 at para 21.  
[87] The Applicant, supported by the Commissioner, argues that all language right provisions  
must be purposively interpreted with the view to maintaining and developing what is described  
as the official language communities in Canada (as opposed to provincial minority  
communities). The Applicant acknowledges that “official language minority communities”  
whether provincial or pan-Canadian refers to the minority Francophone communities,  
particularly in the institutional setting because of greater bilingual proficiency in comparison  
with the Anglophone community.  
[88] The obvious intent of the Applicant’s argument is that the principle should apply to prop  
up his arguments respecting his language rights under sections 35(1)(a)(i) and 36(2) of the OLA.  
This opinion has been adopted and applied with great vigour in the Tailleur decision, relied upon  
by the Applicant. As indicated, I respectfully disagree with the application of such an interpretive  
principle to the institutional official language provisions of the OLA for the reasons that follow.  
(2)  
The jurisprudence only supports a purposive interpretation to assist provincial  
official language minority communities  
[89] The Court in Tailleur commences its review of the principles of interpretation of the  
OLA by declaring that they are “widely accepted”, as described at paragraph 50 of the decision,  
which is as follows with my emphasis:  
 
Page: 38  
[50] It is widely accepted that language rights in Canada “are  
meant to protect official language minorities in this country and to  
insure the equality of status of French and English” and “must in  
all cases be interpreted purposively, in a manner consistent with  
the preservation and development of official language  
communities” (R v Beaulac, 1999 684 (SCC), [1999] 1  
SCR 768 [Beaulac] at para 25, 41).  
[90] I am in agreement with this statement, but only in so far as it refers to the specific context  
of provincial official language communities. Understandably in the circumstances of provincial  
official language minority community rights, it is absolutely essential that a purposive  
interpretive approach be adopted with the view to their preservation and development. Policy  
underlying this purposive approach is based upon the fact that Francophone provincial minority  
communities, are highly “at risk” because of the assimilative forces that act on them. See for  
example Association des parents de l’école Rose des vents v. British Columbia (Education),  
[2015] 2 SCR 139, 2015 SCC 21 at paragraph 28: “Left neglected, the right to minority language  
education could be lost altogether in a given community. Thus, there is a critical need both for  
vigilant implementation of s. 23 rights, and for timely compliance in remedying violations.”  
[91] The maintenance and preservation of provincial Francophone communities provide  
essential linguistic bridges between the two unilingual official language communities in Canada,  
and therefore represent important real and symbolic bulwarks supporting national unity. The  
principles applying to official language institutional bilingualism are completely language  
neutral.  
[92] The Court in Tailleur did not attempt to define the phrases “official language minorities”  
or “official language communities”, nor how exactly this purposive interpretation should be  
Page: 39  
applied to support his interpretations. In the circumstances, this merits a consideration of the  
statement in Beaulac in relation to the context of the statement being made.  
[93] In the first place, I am satisfied that the reference in Tailleur to the Supreme Court  
decision in Beaulac refers to provincial minorities when addressing the interpretative purpose of  
preserving and developing official language communities in Canada. The short passage in  
Beaulac at paragraph 25 where the interpretive statement is made is as follows:  
Language rights must in all cases be interpreted purposively, in a  
manner consistent with the preservation and development of  
official language communities in Canada; see Reference re Public  
Schools Act (Man.), supra, at p. 850.  
[94] The citation at page 850 in the Reference re Public Schools Act (Man.) decision is  
devoted to the protection of provincial official language communities, even though at times it  
refers to minority language rights without identifying that they relate to those in provinces. The  
relevant passage from the decision at page 850 under the heading of “General Interpretative  
Principles” is as follows, with my emphasis:  
‘Several interpretative guidelines are endorsed in Mahe for the  
purposes of defining s. 23 rights. Firstly, courts should take a  
purposive approach to interpreting the rights. Therefore, in  
accordance with the purpose of the right as defined in Mahe, the  
answers to the questions should ideally be guided by that which  
will most effectively encourage the flourishing and preservation of  
the French- language minority in the province. Secondly, the right  
should be construed remedially, in recognition of previous  
injustices that have gone unredressed and which have required the  
entrenchment of protection for minority language rights. As M. A.  
Green observed in “The Continuing Saga of Litigation: Minority  
Language Instruction” (1990-91), 3 Education & Law Journal 204,  
at pp. 211-12:  
The Court conceded that the majority cannot be  
expected to understand and appreciate all of the  
Page: 40  
diverse ways in which educational practices may  
influence the language and culture of the minority,  
and thus if section 23 is to remedy past injustices  
and ensure that they are not repeated in the future, it  
is important that the minority have a measure of  
control over both facilities and instruction.  
In passing, one should note, as this Court held in Ford v. Quebec  
(Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712,  
at pp. 777-78, that the focus on the historical context of language  
and culture indicates that different interpretative approaches may  
well have to be taken in different jurisdictions, sensitive to the  
unique blend of linguistic dynamics that have developed in each  
province.’  
[95] Preservation of provincial minority communities was relevant to the Beaulac decision,  
inasmuch as Mr. Beaulac was an accused in a criminal matter taking place in a provincial  
criminal court, which is not a federal institution. As a member of the Francophone provincial  
minority in British Columbia, he sought a form of judicial service - that of being tried for murder  
by a judge and jury in the Superior Court of British Columbia who could understand French.  
[96] As a form of service, had it been sought from a federal institution, such as the Federal  
Court sitting in British Columbia, the right to receive the service in French would be  
unquestioned. It would be guaranteed simply by the interpretive principle of the Charter and the  
OLA that stipulates the requirement that the two official languages should enjoy an equality of  
status and use in federal institutions.  
[97] Beaulac involved official language minority rights where judicial services were being  
denied in the province of British Columbia. These facts define the ratio decidendi explaining  
why reference was made to the preservation and development of provincial official language  
Page: 41  
minority communities in a matter and involving the denial of the provision of judicial services,  
although not provided by a federal institution. The case has nothing to do with institutional  
bilingualism or the denial of any rights of a pan-Canadian Francophone minority, which has  
never been recognized as a community to which a purposive interpretation principle should  
apply.  
(3)  
Parliament distinguished between the purpose of official bilingualism in federal  
institutions, and that of supporting provincial minority official language  
communities  
[98] It is also evident from the Preamble and purpose provision (section 2) of the OLA that  
Parliament provided two distinctive purposes for the interpretation of distinct objectives of the  
Act, one of which already includes the protection of provincial official language minorities.  
[99] The first six preamble paragraphs address the purpose of ensuring the equality of status  
and equal rights and privileges as to the use of the official languages in federal institutions –  
what is known as official bilingualism. On the other hand, the last two paragraphs describe an  
entirely different purpose with respect to preserving and developing provincial official language  
minority communities, absent any connection to language rights or official bilingualism in  
federal institutions.  
[100] These distinctions can be seen by comparing the preamble paragraphs (as I have  
numbered them) relating to the two interpretive purposes relating to federal institutions and the  
preservation and development of provincial minority official language communities. They are as  
follows, with my emphasis:  
 
Page: 42  
Preamble  
1.  
WHEREAS the Constitution of Canada provides that  
English and French are the official languages of Canada and  
have equality of status and equal rights and privileges as to  
their use in all institutions of the Parliament and  
government of Canada;  
2.  
3.  
AND WHEREAS the Constitution of Canada provides for  
full and equal access to Parliament, to the laws of Canada  
and to courts established by Parliament in both official  
languages;  
AND WHEREAS the Constitution of Canada also provides  
for guarantees relating to the right of any member of the  
public to communicate with, and to receive available  
services from, any institution of the Parliament or  
government of Canada in either official language;  
4.  
5.  
6.  
7.  
AND WHEREAS officers and employees of institutions of  
the Parliament or government of Canada should have equal  
opportunities to use the official language of their choice  
while working together in pursuing the goals of those  
institutions;  
AND WHEREAS English-speaking Canadians and French-  
speaking Canadians should, without regard to their ethnic  
origin or first language learned, have equal opportunities to  
obtain employment in the institutions of the Parliament or  
government of Canada;  
AND WHEREAS the Government of Canada is committed  
to achieving, with due regard to the principle of selection of  
personnel according to merit, full participation of English-  
speaking Canadians and French-speaking Canadians in its  
institutions;  
AND WHEREAS the Government of Canada is committed  
to enhancing the vitality and supporting the development of  
English and French linguistic minority communities, as an  
integral part of the two official language communities of  
Canada, and to fostering full recognition and use of English  
and French in Canadian society;  
8.  
AND WHEREAS the Government of Canada is committed  
to cooperating with provincial governments and their  
institutions to support the development of English and  
French linguistic minority communities, to provide services  
Page: 43  
in both English and French, to respect the constitutional  
guarantees of minority language educational rights and to  
enhance opportunities for all to learn both English and  
French;  
[101] Paragraphs 5 and 6 of the Preamble are of interest because they would appear specifically  
to contradict any concept of a purposive interpretation of language of work provisions favouring  
one language community in terms of obtaining employment advantages, not based on the merit  
principle. The Applicant is seeking a remedy that would require the linguistic reclassification of  
positions of specialists in Toronto. A similar employment issue arose in Tailleur, although not  
perhaps recognized, but which I discuss. These two paragraphs of the Preamble would reject this  
outcome if obtained by a purposive interpretation principle tending to favour one language  
community creating an equality of rights and privileges as to use, besides being in violation of  
the merit principle.  
[102] The 7th paragraph of the Preamble, by its allusion to developing the English and French  
linguistic minority communities can only refer to the provincial minority communities when  
placed in the subsequent wording that they are “an integral part of the two official language  
communities in Canada”. If one community is part of a larger community, it must be a different  
and smaller community. The reference to the English and French linguistic minority  
communities therefore, can only refer to the provincial minority communities that are part of the  
greater pan-Canadian English and French official language communities.  
[103] The last paragraph in the Preamble confirms Parliament’s intention to refer to the  
objective of supporting and developing minority official language communities by the  
Page: 44  
Government of Canada’s commitment to cooperating with provincial governments for that  
purpose.  
[104] A similar distinction between purposes regarding those solely in respect of federal  
institutions and those to support provincial official language minority communities is found in  
the purpose provision, being section 2 of the OLA, as follows with my emphasis:  
Purpose  
Objet  
2 The purpose of this Act is to 2 La présente loi a pour objet:  
(a) ensure respect for English  
and French as the official  
languages of Canada and  
ensure equality of status and  
equal rights and privileges as  
to their use in all federal  
institutions, in particular with  
respect to their use in  
parliamentary proceedings, in  
legislative and other  
instruments, in the  
administration of justice, in  
communicating with or  
providing services to the  
public and in carrying out the  
work of federal institutions;  
a) d’assurer le respect du  
français et de l’anglais à titre  
de langues officielles du  
Canada, leur égalité de statut  
et l’égalité de droits et  
privilèges quant à leur usage  
dans les institutions  
fédérales, notamment en ce  
qui touche les débats et  
travaux du Parlement, les  
actes législatifs et autres,  
l’administration de la justice,  
les communications avec le  
public et la prestation des  
services, ainsi que la mise en  
oeuvre des objectifs de ces  
institutions;  
(b) support the development  
of English and French  
linguistic minority  
communities and generally  
advance the equality of status  
and use of the English and  
French languages within  
Canadian society;  
b) d’appuyer le  
développement des minorités  
francophones et anglophones  
et, d’une façon générale, de  
favoriser, au sein de la  
société canadienne, la  
progression vers l’égalité de  
statut et d’usage du français  
et de l’anglais;  
[105] The purposes described at the last two preamble items and section 2(b) of the OLA are  
carried forward at Part VII of the Act under the heading “Advancement of English and French”,  
Page: 45  
Sections 41 and 43. Neither refers to the purposes of federal institutions being relevant. Section  
41 restates section 2(b) of the OLA which includes supporting the development of English and  
French linguistic minority communities. Section 43 refers to the specific mandate of the Minister  
of Canadian Heritage. This includes at section 43(d) the mandate to encourage and assist  
provincial governments to support the development of English and French linguistic minority  
communities etc., obviously in their respective provinces.  
[106] Finally, the Treasury Board Secretariat has also indicated in the clearest of terms that the  
reference to English and French linguistic minority communities refers to the provincial minority  
in its 2012 Policy on Official Languages at paragraph 3.4 when speaking to the duties of the  
Minister of Canadian Heritage in the area of official languages described at section 43(1)(a) in  
being required to take measures to enhance the vitality of the English and French linguistic  
minority communities in Canada and support and assist their development, as follows:  
3.4 The OLA also defines the responsibilities and duties of the  
Minister of Canadian Heritage in the area of official languages.  
This role relates to the obligation of institutions to adopt positive  
measures in order to support the development of English and  
French linguistic minority communities and advance the equality  
of status and use of the English and French languages within  
Canadian society.  
English and French linguistic minority communities  
English-speaking population in Quebec and French-speaking  
population outside Quebec.  
[Emphasis added.]  
[107] Thus, it is obvious that the Applicant’s argument for a purpose that favours one language  
community over the other in the interpretation of language of work provisions is in flagrant  
conflict with the stated purpose of institutional bilingualism. Parliament has already indicated  
Page: 46  
that as regards federal institutions, the purpose of the OLA is to ensure the equality of use and  
privileges of the two official languages. By applying statements favouring one language  
community over the other, the result usurps Parliament’s statement of purpose of institutional  
bilingualism set out in the Preamble and purpose section of the OLA. A purposive interpretive  
approach, which is just another manner of stating Parliament’s intention, might have some  
purchase, had Parliament not already set out explicitly what the purposes of the provisions are.  
However, the Applicant’s submission, as endorsed in Tailleur, would override the purpose of  
enacting official language institutional bilingualism expressly decreed by Parliament, contrary to  
the fundamental objective of statutory interpretation.  
(4)  
The OLA has re-balanced past disadvantages of the Francophone minority  
community in federal institutions  
[108] One of the Applicant’s submissions in support of an expansive interpretation of language  
of work rights in the OLA based on a “purposive interpretation” of its provisions, is found at  
paragraph 89 of its initial memorandum. The particular reference is with respect to the  
application of section 36(2) to support contextual bilingual staffing. But the same argument is  
advanced by the Applicant and Commissioner with respect to section 36(1)(a)(i). This  
submission is as follows with my emphasis:  
[TRANSLATION]  
“89. This Honourable Court also noted the principle set out in  
Beaulac, namely that it was not Parliament’s intention to restrict  
the rights of bilingual Canadians, to deny them the right to choose  
their official language of work because they can communicate just  
as well in either language. A contrary interpretation would  
disadvantage official language minorities, who have the highest  
incidence of bilingualism in the country, when language rights  
legislation was precisely designed to assist them.”  
 
Page: 47  
[109] Obviously, the minority with the highest rates of bilingualism refers to the Francophone  
minority in Canada. In essence, what the Applicant implicitly argues is that the re-designation of  
unilingual positions to bilingual positions favours the Canadian Francophone minority given its  
members greater facility to work in two languages. I am not aware of any issue of assimilation or  
the like caused by Francophone Canadians working in federal institutions in bilingual regions.  
[110] There are at least three significant problems with such an argument, beyond the fact that  
it is in total conflict with Parliament’s express purpose of official bilingualism to favour one  
language group over another. First, the Francophone official language community, by its greater  
proficiency in bilingualism as acknowledged by the Applicant, already holds a somewhat  
advantageous position by the effect of the Parts IV and V of the Act: Section 27 requiring the  
bilingual provision of services to Canadians; Section 36(1)(a)(ii) requiring the similar provision  
of bilingual services to co-workers in federal institutions; and particularly Section 36(1)(c)(i) and  
(ii) that requires supervisors and managers be bilingual. Significant job opportunities for  
bilingual Canadians in bilingual regions have been created, to the competitive disadvantage of  
their unilingual compatriots.  
[111] Second, the merit principle is the source of advantages accruing to bilingual Canadians in  
federal institutions. It is not just a tendentious interpretation policy that would favour  
employment opportunities for one language community over another in bilingual regions. The  
only means for a Federal government of two official language communities to function with  
more than 80 % of the population being unilingual is by means of bilingual Canadians. Bilingual  
personnel are essential to the good and competent operation of the Federal public service. The  
Page: 48  
advantage of course arises to bilingual Canadians in that more than 80 % of the population  
cannot compete with them for jobs. Indeed, they cannot really contemplate a career in federal  
institutions in bilingual regions which require a facility in both official languages.  
[112] Given that the services and language of work provisions of the OLA provide the  
Francophone community with a competitive employment advantage in bilingual regions based  
on merit due to its acknowledged proficiency in bilingualism, it is entirely inconsistent to throw  
merit out the window where language skills are not a staffing factor by claiming a different  
advantage on the basis of an alleged purposive interpretation of sections 35(1)(a)(i) or section  
36(2).  
[113] Third, the Applicant is only speaking for bilingual Canadians. I suppose the collective  
good of its bilingual members is to the benefit of all members of a community. Nevertheless, it  
appears highly discriminatory of unilingual Canadians, approximately 55 % of whom make up  
the population of the Province of Québec. It is just because language has always been a means to  
discriminate against different language communities that it would appear that the historical  
discrimination operating on distinctions between language communities, should now be applied  
on a language proficiency basis to override the merit principle in federal institutions.  
(5)  
The methodology of applying a purposive interpretation  
[114] I also have concerns about the methodology of the application of the purposive  
interpretation principle. It should not be resorted to as a means to avoid first undertaking a  
comprehensive and holistic interpretation of provisions such as sections 36(1)(a)(i) and 36(2). By  
 
Page: 49  
this I mean that the parties and the Commissioner in this matter, the Respondent somewhat less  
so, start with their purposive approach, without providing submissions that would assist the  
Court in first reading all the words of the provisions considered in their grammatical and  
ordinary sense, in their context of the provision itself, and harmoniously with the scheme of the  
Act. I respectfully further conclude that this was the method of interpretation adopted by the  
Court in Tailleur, which resulted in a failure to consider the interpretation of most of the key  
elements of section 36(2).  
[115] In my view, a purposive interpretation, which 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 Act. In other words, the Court is  
required to undertake the exercise of completing the initial steps described in the modern  
principle of interpretation, before resorting to extrinsic evidence or turning to any purposive  
policy considerations, presumably because the provision remains ambiguous in its meaning or  
application.  
(6)  
The bilingual interpretation of sections 36(1)(a)(i) and 36(2)  
[116] The bilingual interpretation of sections 36(1)(a)(i) and 36(2) adds to the challenge of the  
Court’s task, because of the different drafting methodologies used for the two linguistic versions.  
For the purposes of clarity’s sake, I will outline what I understand is a three step approach that I  
am required to follow if the provisions are not the same, depending upon the nature of the  
differences.  
 
Page: 50  
[117] The first step is to determine if the provisions although different, are not ambiguous and  
can share some common meaning, in which case the common meaning is adopted. If the  
meanings however, are incompatible with the intention of the legislature, as indicated by the  
ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained:  
R v Daoust, 2004 SCC 6 (), [2004] 1 SCR 217 at paragraph 26 citing Professor Coté, The  
Interpretation of Legislation in Canada (3rd ed. 2000), at 324 [Daoust].  
[118] If however, one provision is ambiguous and the other is clear, then the clearer meaning is  
said to be the common meaning, which is arrived at by the ordinary rules of interpretation.  
[119] Conversely, if both versions are unambiguous, but not reconcilable by having different  
meanings (or structures), then the meaning arrived at by the ordinary rules should be retained:  
Daoust supra, Canada (Citizenship and Immigration) v Khosa, [2009] 1 SCR 339, 2009 SCC 12  
at paragraph 39 [Khosa].  
[120] The parties and the Commissioner applied the second methodology in their interpretation  
concluding that the English version was the clearer in expressing the key element in section  
36(1)(a)(i), “to support them in the performance of their duties”. This appeared to be missing in  
the more abridged French version making it structurally incompatible with the English version.  
[121] I ultimately rejected this conclusion in my interpretation of section 36(1)(a)(i), as I  
concluded that the differing approaches used in French and English legislative drafting provided  
the means to reconcile the two versions of section 36(1)(a)(i). By this I mean that the French  
Page: 51  
method of drafting resorts to a more deductive reasoning approach than that used by English  
drafters. This eliminates the need to express some components of an English co-equivalent, if it  
is deductively considered to be implied by the meaning of another term. Having reconciled the  
two provisions in terms of their structure and scheme by this method, I proceeded to interpret  
them, finding that they essentially both expressed the same meaning.  
[122] As concerns section 36(2), the Court in Tailleur applied the second approach of common  
meaning with respect to the bilingual co-equivalents of “reasonably” and possiblesin terms of  
measures that could be adopted. The Court did so on the basis that “measures …reasonably  
…taken” was the common meaning as it expressed a more limited construction of mesures  
possibles[possible measures].  
[123] I agreed with the choice of the most appropriate term, but rejected the method followed to  
achieve the results. Structurally, the co-equivalents in both versions matched well, and both were  
clear in meaning, but they could not be reconciled on the basis of their meanings.  
[124] I concluded that the concept of reasonably determined measures and that of possible  
measures, both intended to provide an appropriate official language work environment, could not  
be reconciled as they express two entirely different meanings. “Reasonably” describes the  
exercise of discretion in determining measures, whereas “possible” merely describes the extent  
of measures, with no exercise of discretion. It was contextually important that a discretionary  
term be that applied to determine the required measures, as it was compatible with a flexible  
Page: 52  
construction of section 36(2) and the adoption of the term “accommodate” in preference to  
permettre[permit], which is the essence of my interpretation of section 36(2).  
[125] This was the methodology applied by the Supreme Court in Khosa at paragraph 39,  
where the Court concluded that the terms “may” and “is” in section 18.1 of the Federal Courts  
Act could not be reconciled, as follows:  
[39] The English version of s. 18.1(4) is permissive; the court is  
clearly given discretion. In the French version, the words “sont  
prises” translate literally as “are taken” which do not, on the face  
of it, confer a discretion. A shared meaning on this point is  
difficult to discern. Nevertheless, the linguistic difference must be  
reconciled as judges cannot be seen to be applying s. 18.1(4)  
differently across the country depending on which language  
version of s. 18.1(4) they happen to be reading.  
[Emphasis added.]  
[126] That avenue not being available because the provisions were totally irreconcilable, the  
appropriate methodology required adherence to the approach adopted in Khosa. It required a  
holistic interpretation of both terms starting from their very different ordinary meanings, and  
thereafter contextually considering them in respect of the remaining elements of the provision, in  
the context of the Act, and finally its object and Parliament’s intention.  
VIII. Services provided to federal institution personnel pursuant to paragraph 36(1)(a) of the  
OLA  
A.  
Introduction  
[127] The submissions of the parties raise at least three interpretive issues:  
   
Page: 53  
First, what is the basis for the distinction between the personal and central services  
categories?  
Second, if a lesser trained employee simply by working with a more highly trained co-  
employee learns skills or gains knowledge that either assist, or are essential to enable the  
employee to perform his or her duties, is this a “service” within the meaning of the  
provision provided by the more highly trained employee [specialist] to the lesser trained  
employee [generalist]?  
Third, if learning on the job is tentatively the result of a service provided by the  
specialist, is it also a central service?  
[128] Before undertaking any analysis of the language of work service provision, it is first  
necessary to synchronise the English version, being sub-paragraph 36(1)(a)(i) with the French  
paragraph 36(1)a). The French version combines the language of work service sub-paragraph  
with that of the work instruments sub-paragraph into one paragraph. Accordingly, the two  
versions are produced below with the irrelevant portions of the French version being identified  
by the strikethrough font as is the irrelevant sub-paragraph in the English version:  
Minimum duties in relation  
to prescribed regions  
Obligations minimales dans  
les régions désignées  
36 (1) Every federal institution 36 (1) Il incombe aux  
has the duty, within the  
institutions fédérales, dans la  
National Capital Region and in région de la capitale nationale  
any part or region of Canada,  
or in any place outside  
Canada, that is prescribed for  
the purpose of paragraph  
35(1)(a), to  
et dans les régions, secteurs ou  
lieux désignés au titre de  
l’alinéa 35(1)a) :  
Page: 54  
(a) make available in both  
official languages to officers  
and employees of the  
institution  
a) de fournir à leur  
personnel, dans les deux  
langues officielles, tant les  
services qui lui sont destinés,  
notamment à titre individuel  
ou à titre de services  
(i) services that are  
provided to officers and  
employees, including  
auxiliaires centraux, que la  
documentation et le matériel  
d’usage courant et généralisé  
produits par elles-mêmes ou  
pour leur compte;  
services that are provided to  
them as individuals and  
services that are centrally  
provided by the institution  
to support them in the  
performance of their duties,  
and(ii) regularly and widely  
used work instruments  
produced by or on behalf of  
that or any other federal  
institution;  
[129] The lack of coordinated paragraphing of the provision between the English and French  
versions poses problems for the adoption of a common nomenclature to describe the different  
provisions. Accordingly, when generally referring to the provision, the Court adopts the English  
subparagraph, i.e. section 36(1)(a)(i) as the common element of both versions. I will use that  
descriptor, with my normal practice of identifying all provision only as “section”, or “the  
provision” when generally referring to it. To some extent this also accords with the parties and  
Commissioner’s conclusion that the English version is clearer and should be preferred because  
there are more references to its component parts than found in the French version.  
[130] The co-drafters of the legislation have also adopted different styles of presenting  
Parliament’s intention portrayed in section 36(1)(a)(i). This is obvious in comparing both  
versions. This presents some additional problems in describing the co-equivalents that are the  
subject of interpretation. Nonetheless, they are present, if only implied in some circumstances. I  
Page: 55  
would match the co-equivalents as follows using the English order of components, again  
applying strikethrough to assist in matching up the versions of the same component:  
services that are provided to them as individuals” and “les  
services qui lui sont destinés, notamment à titre individuel”  
[individual services]  
“and services that are centrally provided” and “ou à titre de  
services [auxiliaires] centraux”  
“to support them in the performance of their duties” and “ou à titre  
de services auxiliaires [centraux]”  
[together, auxiliary services]  
(1)  
Treasury Board Policies and Directives on Official Languages and Training and  
Professional Development  
[131] Before embarking on the construction of section 36(1)(a)(i), the Court will first consider  
the Treasury Board policies and directives on official languages and training and professional  
development. The parties referred to the Treasury Board policies at different points, and it is  
worth considering their impact on the complaint as well.  
[132] There are three relevant policies, two of which pertain to the language of work. The third  
provides the parameters for training and professional development in the greater public service,  
with intention that its precepts will be adopted and tailored by federal institutions. The first two  
work policies I describe as the “2004 Policy” and the “2012 Policy”. The latter policy repealed  
and replaced the 2004 Policy. The third policy being the 2017 Learning Policy has already been  
already referred to.  
(a)  
The 2004 Policy on Language of Work  
   
Page: 56  
[133] There are six relevant comments to make about the 2004 Policy, four of which pertain to  
the interpretation of section 36(1)(a)(i), the other two are relevant to the interpretation of section  
36(2).  
[134] First, the Policy establishes a clean break between the two categories of “individual” and  
“auxiliary” services and that of “training and professional development” services. Presumably,  
this occurred because training and professional development service were thought to not  
amenably fit in either of the two categories described in section 36(1)(a)(i). This would also  
explain to some extent why the Respondent questioned whether training and professional  
development activities were even a service within the meaning of the provision.  
[135] Second, Treasury Board did not attempt to distinguish what services fell into the  
individual category as opposed to those which were auxiliary services in the long list of  
examples of services that were provided, simply describing them all as falling somewhere in  
both categories of services, as follows:  
Accounting, administrative, financial and budget, computer,  
evaluation and audit, legal, library, archival and  
information/communications, management advisory and  
consultation, materiel management, purchasing and procurement,  
asset management, security, staffing and classification, technical,  
translation, pay and benefits, health care, and vocational guidance  
services, and grievances.  
[136] Third, it is apparent from the 2004 Policy that 16 years after the adoption of language of  
work provisions Treasury Board did not feel sufficiently comfortable in its interpretation of  
section 36(1)(a)(i) to provide but the vaguest guidance as to what constituted a service, even to  
Page: 57  
the point of assigning well-recognized services to the two categories that it had identified were  
covered by the provision.  
[137] Fourth, what is clear however is that all the examples provided were easily identified and  
recognized as forms of administrative units of service providers, except training and professional  
development services. Two ramifications follow from this. First, added to the complexity of  
interpreting section 36(1)(a)(i) is whether it was intended by the French term auxiliaires”  
referred to services described as administrative units, which would give it an entirely different  
meaning to its co-equivalent which provides a definition of service.  
[138] Second, the Applicant and Commissioner appear intent on significantly redrawing the  
services map from what existed at the time the OLA language of work provisions were adopted.  
As a starting point in the construction of the provision, it is therefore difficult to conceive that  
Parliament intended the OLA to significantly enlarge the meaning of services for the purpose of  
identifying a greater number of bilingual positions in bilingual regions, not to mention the same  
result occurring in unilingual regions.  
[139] The first of two comments that are relevant to the interpretation of section 36(2), which  
makes up the second half of my analysis below, is what I consider to be a significant omission to  
refer to what I will describe as the second objective in the English version of “work  
environments” that must “accommodate the use of either official language by its officers and  
employees”.  
(b)  
The 2012 Policy on Official Languages  
 
Page: 58  
[140] The 2004 policy was replaced by the Policy on Official Languages, commencing in  
November 2012 [the 2012 Policy]. It was not in force at the time of the complaint, but has  
remained in force since its issuance.  
[141] The 2012 Policy added somewhat to the 2004 Policy. It maintained the distinction  
between training and professional development services and the two categories of personal and  
central services. It replaced the list of services by providing skeleton definitions and examples of  
personal and central categories of services, as follows:  
These services are those that affect the employee on a personal  
level (their health and well-being, personal development, their  
career) or that are essential for the employee to perform their  
duties. Some examples:  
Personal services: pay and benefits services; career counselling  
services Central services: information systems services and legal  
services  
[142] One significant change was to add the requirement that the central services be essential  
for the performance of the employee’s duties. The Applicant relied upon the essential criterion to  
argue that the specialists were providing services that are essential to the generalists in order for  
them to be able to carry out their duties. The Respondent and Commissioner disagreed with this  
submission that Central services were required to be essential to the performance of the duties,  
with which I am similarly in agreement.  
(c)  
2017 Policy on Learning, Training, and Development  
[143] The relevant excerpts from the TBS’s 2017 Policy on Learning, Training, and  
Development [the 2017 Learning Policy] , with the Court’s emphasis, are as follows:  
 
Page: 59  
3. Context  
3.2 Deputy heads have the authority, pursuant to section 12(1)(a)  
of the Financial Administration Act, to “determine the learning,  
training and development requirements of persons employed in the  
public service and fix the terms on which the learning, training and  
development may be carried out,” and Treasury Board has the  
authority, pursuant to section 11.1(1)(f) to “establish policies or  
issue directives respecting the exercise of the powers granted by  
this Act to deputy heads...”  
Appendix A Definitions  
professional development (perfectionnement professionnel):  
an activity that assists employees further their careers and is  
aligned with departmental business priorities and management  
improvement objectives of the government. Includes courses,  
programs or learning events sponsored by a variety of service  
providers (e.g. in-house, the Canada School of Public Service,  
academic institutions and the private sector).  
training (formation):  
represents an organized, disciplined way to transfer the knowledge  
and know-how that is required for successful performance in a job,  
occupation or profession. It is ongoing, adaptive learning, not an  
isolated exercise.  
[144] While the policy does not apply to separate agencies such as the OSFI, it is indicated at  
section 2.2 that they “may use it to develop their own learning, training and development  
policies”.  
[145] In general terms, the 2017 Learning Policy appears to settle the issue troubling the parties  
as to the appropriate service category for training and professional development. The TBS  
answers this query by first defining “professional development” in a fashion that would suggest  
that it should be considered a personal service, as “an activity that assists employees further their  
Page: 60  
careers”. It is not on the job training, thereby placing it in the first category of section 36(1)(a)(i)  
“provided to them [employees] as individuals”.  
[146] Conversely, the TBS clearly aligns “training” with the second category of a service based  
on the English version of section 36(1)(a)(i), “to support them in the performance of their duties”  
[à titre de services auxiliaires]. It is defined in the policy as a learning experience being “required  
for the successful performance in a job”. Additionally, what is important is that the definition of  
training should be carried out in an organized, disciplined way to transfer the knowledge and  
know-how. Thus, it is not an ad hoc form of learning carried out during interactions between  
employees on the job, as is the principal submission of the Respondent and of the Commissioner.  
[147] As shall be seen, the Commissioner’s submissions move away from its original concept  
of the service being that pertaining to training or professional development described in the Final  
Investigation Report. Instead, he now proposes a much broader generic definition, which  
expands the definition of a service to that of any activity where a group of employees “supports  
another employee in the performance of their duties”.  
(2)  
The Submissions of the Parties on the Interpretation of the Services Provision  
(a)  
The Applicant’s Submissions  
[148] For the most part the Applicant relies upon the Commissioner’s conclusions in the Final  
Investigation Report, as follows with my emphasis:  
[TRANSLATION]  
   
Page: 61  
The information that supervisory staff in Montréal receive from  
employees in the Supervision Support Group is essential for the  
performance of their tasks. This enhances their ability to comply  
with OSFI’s mandate, and these enhancements constitute  
professional development. Thus, the Supervision Support Group  
in Toronto provides professional development, practically every  
day, to supervisory staff in Montréal. Oral and electronic  
communications between the two offices are in English only, even  
though they actually constitute professional development for  
Montréal employees.  
[149] The Commissioner in his submissions to the Court abandons both the requirement that  
the services being essential and that they fell under the category of professional development, as  
opposed to training.  
(b)  
The Commissioner’s revised submissions  
[150] After the parties had filed their submissions, the Commissioner presented a different  
interpretation of section 36(1)(a)(i) from that in the Final Investigation Report. He relies upon a  
purposive interpretation requiring a liberal and teleological interpretation of language of work  
provisions that supports the maintenance and development of the official language communities.  
The Commissioner in reference to official language communities is referring to the Francophone  
official language community, although not stated expressly in those terms. I have given my  
reasons why I reject this submission.  
[151] The Commissioner similarly argues that [TRANSLATION] “providing training in the  
employee’s preferred official language is intimately related to implementing the purpose of  
Part V of the OLA, which is to create a work environment that is conducive to the effective use  
of both official languages within federal institutions”.  
 
Page: 62  
[152] In order to dispose of this argument, I will provide my comments on this submission at  
this point in my reasons. In my view, the Commissioner overreaches in attempting to buttress his  
argument with irrelevant considerations. It is clear from reviewing the various paragraphs and  
sub-paragraphs that make up section 36 that the concept of creating a conducive work  
environment is specifically referred to by Parliament only in the sections 36(1)(c)(i) and 36(2)  
regarding the requirement that managers be bilingual and the requirement to provide appropriate  
official language work environments. Given the specific references to work environments in  
other provisions, if Parliament thought 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. In addition, as pointed out by requiring bilingual employees to use their second language as  
service providers, this effectively contradicts the fundamental right of employees to use their first  
language.  
[153] The Commissioner advances a new broader definition of a service auxiliaire, bringing  
it back to the English wording of to be [TRANSLATION] “a service 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 employee’s work is useful on a regular basis, but not essential, in carrying out  
another employee’s work, it is a “service auxiliaire. His position is probably best summarized at  
paragraphs 62 to 64 of her memorandum as follows:  
[TRANSLATION]  
62. The Commissioner proposes to define training as: “An  
organized activity aimed at imparting information and/or  
instructions to improve and/or maintain the recipient’s  
performance or to help him or her attain a required level of  
knowledge or skill.”  
Page: 63  
63. Thus, training, in its ordinary sense, means sharing knowledge,  
information, techniques or skills with employees so that they can  
use them on their own in performing their duties. In other words,  
training, as opposed to mere information sharing, is aimed  
primarily at allowing employees to acquire personal and  
professional know-how that they will then be able to apply in the  
various circumstances of their work.  
64. The question of whether a specific activity is training for  
employees is a question of fact that must be analyzed by  
considering the specific circumstances of each case.  
[154] Given the focus on training, I repeat my concern that the 2017 TBS Policy on Learning,  
Training, and Development was not included in the evidence presented to the Court. I am  
particularly concerned that I could have unknowingly declared the TBS 2017 Learning Policy to  
not properly reflect the contents of the Policy, without being aware of its existence.  
[155] The Commissioner contends that [TRANSLATION] “the term ‘central’ refers to a service  
that is critical for the institution, in the sense that the institution made the decision, at a central or  
relatively high level in its administration, to provide this service to its employees”. However, he  
indicates that the evidence to demonstrate that such a decision is has been taken can be based  
upon how the institution is has organized the structure of its workplaces in order to provide a  
service. Thus, there is no requirement for a decision actually to be made, or a stipulation by the  
institution that it is providing a service to its employees. It is sufficient that the facts demonstrate  
that a service, by which employees help other employees perform their duties, has been put in  
place by the institution to infer that the service reflects a central character required by section  
36(1)(a)(i), because that is the way that the institution set up the employment structure.  
(c)  
The Respondent’s Submissions  
 
Page: 64  
[156] The OSFI contends that the specialists do not provide the generalists with a “service”. It  
submits that the interactions between the generalist and the specialist do not represent a service  
within the meaning of the Act. In my view its strongest submission is expressed very succinctly  
at paragraphs 43 and 45 of its memorandum, as follows with the OSFI’s emphasis on the term  
[TRANSLATION] “as a team” as follows:  
[TRANSLATION]  
44. Discussions between the two groups are part of their respective  
work. Occasionally, the two groups have to combine their  
respective work. In effect, the generalists and specialists form two  
separate working groups that are called upon to work as a team as  
part of their respective duties and toward a common goal.  
45. Under these circumstances, the specialists do not provide any  
“services” to the generalists. The former are not in the service of  
the latter.  
[Emphasis in original.]  
[157] The Respondent further submits that the generalists and specialists, even as distinct  
groups, work closely together as a team (emphasized by the defendant) to achieve the core  
objectives of the institution’s mandate. It argues that employees executing the core mandate of  
the institution receive services, they do not provide them. I am in agreement with the submission,  
that a team environment is incompatible with the concept of its members providing services to  
each other. Employees executing the core mandate are simply part of that team. I will return to  
the submissions in my analysis below, particularly as to what constitutes the definition of a team  
of employees and whether it inherently proscribes members from being service providers.  
[158] The Respondent’s second argument is that the specialists do not provide the generalists  
with services that are “centrally provided . . . to support them in the performance of their duties”.  
Page: 65  
The phrase “services that are centrally provided . . . to support them in the performance of their  
duties” refers to internal support services or corporate services aimed at supporting, in an  
incidental or secondary way (hence the terms service auxiliaireor “to support them”), all (or  
nearly all) employees of the institution in the performance of their duties (hence the terms  
centrauxor “centrally provided”).  
[159] The Respondent further argues that the generalists could not constitute a “centrally  
provided” service since they only represent a single restricted category of employees of the OSFI  
and lack the degree of definitional organization normally applied to a group of service employees  
as established by the central direction of the institution.  
[160] The BSIF contends that accepting the Applicant’s submission would lead to a totally  
absurd result because nearly any employee would be considered a service provider to other  
employees if the definition extended to employees working together on a common project for the  
employer. This would clearly result in either 1) imposing bilingualism on all employees of the  
federal institutions covered by the OLA regardless of the nature of their duties, or 2) forcing  
federal institutions to create separate Francophone and Anglophone teams.  
[161] The Respondent appears to raise the issue of whether training and professional  
development should fall within Part V of the OLA, as it contains no language dealing  
specifically with these categories of services. In addition, even if the Court were to accept the  
definition of a service in its broadest form as argued by the Commissioner, the interactions of the