T-3317-78
Donald C. Kelso (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, February 21
and March 13, 1979.
Public Service — Position occupied by plaintiff declared
bilingual — Plaintiff a unilingual air traffic controller,
accepted transfer to Cornwall and commuted there from his
home near Montreal — Plaintiff asserts that he had a legal
right to remain in the bilingual position — Whether or not a
declaratory judgment should be granted declaring plaintiffs
entitlement to remain in or to be reinstated in his original
position with its full salary and benefits, and to be reimbursed
for his commuting costs — Public Service Employment Act,
R.S.C. 1970, c. P-32, ss. 20, 31 — Public Service Official
Languages Exclusion Order, SOR/77-886, s. 6.
Plaintiff, a unilingual, anglophone, air traffic controller, had
occupied a position declared to be bilingual, but was trans
ferred from Montreal to Cornwall. He continues to live on a
farm outside Hudson Heights, Quebec, and commutes to Corn-
wall. Relying firstly on a principle set forth in a resolution of
the Senate and the House of Commons and a Treasury Board
directive reflecting that principle, and secondly, on section 6 of
the Public Service Official Languages Exclusion Order, plain
tiff asserts that he had a right in law to remain in his position
and that there was no right to declare him incapable of
performing the duties of that position because he was not
bilingual. Plaintiff seeks a declaratory judgment that he was
entitled (a) to remain in or to be reinstated in his original
position with its full salary and benefits and (b) to be reim
bursed for all extra costs incurred by him as a result of his
commuting to Cornwall from Hudson Heights.
Held, the action is dismissed. A resolution by a House of
Parliament may not create rights and obligations as between
private citizens or between Her Majesty and her servants.
Parliament consists of the Queen, the Senate and the House of
Commons and action by two only of its constituent elements
does not make law. The legal effect of the Treasury Board
directive is the same. It reflects a policy which the Treasury
Board was entitled to, and did, adopt but did not create any
right or impose any obligation on the defendant enforceable by
the plaintiff. The determination that plaintiff was no longer
capable of performing the duties of his original position because
he was unilingual could not be made legally in view of section
6(a) of the Public Service Official Languages Exclusion Order.
Plaintiffs release based on that determination was also illegal.
Although plaintiff, prior to accepting the transfer from his
original position, would have been entitled to a declaration to
that effect, that is all in the past and a judgment will not issue
declaring a past right that has been extinguished. There is no
present right to be reinstated flowing from the fact that the
plaintiff gave it up under threat of illegal removal and under
protest. As to the expenses of commuting between Hudson
Heights and Cornwall, plaintiffs present position requires that
he work in Cornwall; he can live where he wants. The evidence
does not sustain the proposition that he is entitled to be
compensated for those expenses. It is not a right that flows
from his being pressured to accept his new position.
ACTION.
COUNSEL:
John P. Nelligan, Q.C. for plaintiff.
Walter L. Nisbet, Q.C. for defendant.
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The plaintiff is a unilingual,
anglophone, air traffic controller who, in August
1978, was transferred from Montreal, Quebec, to
Cornwall, Ontario. Prior to the transfer, he
occupied a position in the Ministry of Transport,
designated TACQ-0274, to which he had been
appointed by competition from within the Public
Service on June 3, 1969. He has continued to live
on a farm near Hudson Heights, Quebec, and
commutes to Cornwall. He seeks, in addition to
costs, a declaratory judgment that he is entitled
(a) to remain in or be reinstated to position
TACQ-0274 with full salary and benefits of that
position and (b) to be reimbursed for all extra
costs incurred by him as a result of commuting to
Cornwall from Hudson Heights.
In December 1975, controllers at the Montreal
Area Control Centre, where the plaintiff was
employed, were notified that air traffic control
services in the Quebec Region would, in the future,
be provided in French and English. They were
offered the opportunity to apply for transfers out
of the Quebec Region with special benefits, such
as housing cost differential payments and reloca
tion expense allowances, over and above those
generally available in the Public Service. In Febru-
ary 1976, the plaintiff applied for a transfer to
Halifax. In July, he changed his requested destina
tion to Cornwall, to be effective with the removal
there of the Transport Canada Training Institute.
On or about March 31, 1976, position TACQ-
0274 was designated bilingual and the plaintiff
was, thereafter, a unilingual incumbent of a bilin
gual position. The plaintiff had grown up in
Quebec. His experience taught him, and a month
of language training confirmed his opinion, that he
could not attain the necessary proficiency in
French to function, as a bilingual, in his position.
He thereafter refused the opportunity of language
training.
In July 1976, the plaintiff, while continuing to
occupy position TACQ-0274, was assigned to
duties that no longer required him to communicate
with aircraft. It is not necessary to list the series of
assignments given him. In February 1978, he was
advised that his employer wished him to join the
Training Institute in Ottawa on May 1 and that,
with its removal to Cornwall, scheduled in August,
his requested transfer would be effected.
In April, the plaintiff withdrew his request for a
transfer to Cornwall and asserted his right to
remain in position TACQ-0274 at the Montreal
Centre. He was told that he was no longer capable
of performing the duties of the position and that,
having refused language training, the two options
remaining were (a) a transfer to another position
or (b) release for incapacity under section 31 of
the Public Service Employment Act.' The plaintiff
accepted the transfer to Cornwall under protest
and commenced this action before it was effective.
His new position does not carry a lower maximum
rate of pay than that attached to position
TACQ-0274.
The plaintiff asserts that he had a right in law to
remain in position TACQ-0274 and that there was
no right to declare him incapable of performing
the duties of that position because he was not
bilingual. Nothing in the collective agreement
respecting his employment supports his position.
The plaintiff relies, firstly, on the sixth principle
set forth in a Resolution severally adopted by the
1 R.S.C. 1970, c. P-32.
Senate and House of Commons in June, 1973. 2
The pertinent portion follows:
That this House,
(i) aware that, as provided in the Official Languages Act, the
English and French languages possess and enjoy equality
of status and equal rights and privileges as to their use in
all the institutions of the Parliament and Government of
Canada;
cognizant that it is the duty of departments and agencies
of the Government of Canada to ensure, in accordance
with that Act, that members of the public can obtain
available services from and communicate with them in
both official languages; while
recognizing that public servants should, as a general
proposition and subject to the requirements of the Official
Languages Act respecting the provision of services to the
public, be able to carry out their duties in the Public
Service of Canada in the official language of their choice;
do hereby recognize and approve the following Principles
for achieving the foregoing:
(6) that unilingual incumbents of bilingual positions may elect
to become bilingual and undertake language training, or
transfer to another job having the same salary maximum,
or, if they were to decline such a transfer, to remain in
their positions even though the posts have been designated
as bilingual;
On June 29, 1973, the Treasury Board issued its
Circular No. 1973-88 directed to Deputy Heads of
Departments and Heads of Agencies on the sub
ject of language requirements of positions. Para
graph 20 dealt with unilingual incumbents of bilin
gual positions.
20. Unilingual incumbents of positions identified as bilingual
will be given the opportunity of taking up to twelve months in
language training to enable them to become bilingual. If they
choose not to become bilingual, or are unsuccessful in their
efforts to do so, they will be offered a transfer to a unilingual
position which has a salary maximum at least within the range
of one annual increment of the position previously occupied. If
they decline a transfer, they will be entitled to remain in their
position, even though the position has been designated as
bilingual. Where, under the above circumstances, a unilingual
employee occupies a position designated as bilingual, the
Department concerned will be required to make alternative
administrative arrangements to meet the language require
ments of the position. The Treasury Board will provide the
necessary funds and man-years to give effect to these
arrangements.
On March 24, 1976, the Ministry of Transport
made a submission to the Treasury Board on the
2 Journals of the House of Commons of Canada, June 6,
1973, No. 97, p. 384. Journals of the Senate, June 7, 1973, No.
50, p. 214.
subject of air traffic controllers in the Province of
Quebec, in which it was, inter alia, stated:
8. With the implementation of bilingual ground/ground com
munications, controllers throughout Quebec must be fluently
bilingual in both languages at least in the work-related ter
minology and phraseology. Unilingual controllers would require
a bilingual "double" and would in fact become virtually unem
ployable in this environment. It is felt that their continued
presence would constitute a threat to the safety and security
provisions for which Transport is responsible under the
Aeronautics Act, and where they may be unable or unwilling to
function at the necessarily high level of linguistic competence
required for safety reasons, a transfer is the most viable alter
native. This is the first situation where the protection of Life is
related to official languages and where air safety requirements
cannot allow for unilinguals to remain in bilingual positions as
guaranteed by Parliamentary Resolution.
On March 25, as a result of the submission, the
Treasury Board approved, evidently ex post facto,
the offer of added inducements to encourage uni -
lingual controllers in Quebec to apply for transfer.
The plaintiff relies, secondly, on section 6 of the
Public Service Official Languages Exclusion
Order.' The Public Service Employment Act
provides:
20. Employees appointed to serve in any department or other
portion of the Public Service, or part thereof, shall be qualified
in the knowledge and use of the English or French language or
both, to the extent that the Commission deems necessary in
order that the functions of such department, portion or part can
be performed adequately and effective service can be provided
to the public.
The Order, however, provides for certain excep
tions to that requirement of the Act, that provided
by paragraph (a) of section 6 being pertinent in
this case:
6. The following persons are hereby excluded from the oper
ation of section 20 of the Act, in so far as the knowledge and
use of both official languages is required for a bilingual posi
tion, for the period during which he occupies that bilingual
position, namely,
(a) any person who occupies a position, to which he was
appointed for an indeterminate period, that he occupied at
the time it was identified by the deputy head as requiring the
knowledge and use of both official languages;
3 SOR/77-886.
The defendant does not dispute that the plaintiff
fell within the letter of that exclusion but relies on
the following provisions of the Financial Adminis
tration Act: 4
5. (1) The Treasury Board may act for the Queen's Privy
Council for Canada on all matters relating to
(e) personnel management in the public service, including
the determination of terms and conditions of employment of
persons employed therein; ...
7. (1) Subject to the provisions of any enactment respecting
the powers and functions of a separate employer but notwith
standing any other provision contained in any enactment, the
Treasury Board may, in the exercise of its responsibilities in
relation to personnel management including its responsibilities
in relation to employer and employee relations in the public
service, and without limiting the generality of sections 5 and 6,
(a) determine the manpower requirements of the public
service and provide for the allocation and effective utilization
of manpower resources within the public service;
(c) provide for the classification of positions and employees
in the public service;
(i) provide for such other matters, including terms and
conditions of employment not otherwise specifically provided
for in this subsection, as the Treasury Board considers neces
sary for effective personnel management in the public
service.
It is not, I think necessary to recite or even refer to
particular provisions of the Aeronautics Acts
which impose on the Minister of Transport the
duty to provide services which, by necessary
implication, must be conducive to the safety cf
their users. While counsel referred to these, it
appears clear that the designation of position
TACQ-0274 as bilingual, and the determination
that safety considerations precluded its being
occupied by a unilingual incumbent were made by
Treasury Board on the authority cited or by the
Deputy Minister of Transport on that same au
thority delegated pursuant to subsection 7(2) of
the Financial Administration Act and not by a
regulation made by the Minister of Transport
pursuant to section 6 of the Aeronautics Act. The
bona fides of that decision is not questioned in this
action.
R.S.C. 1970, c. F-10.
5 R.S.C. 1970, c. A-3.
The plaintiff, in argument, raised a further basis
for the relief sought, namely, that the defendant
had caused the plaintiff to act to his detriment by
leading him to withdraw his request for a transfer
to Halifax. As I understand it, the inducement was
either the adoption of the sixth principle by Parlia
ment or the subsequent reflection of that principle
in the Treasury Board Circular. I assume that this
may have been advanced as something of an after
thought in the course of argument inasmuch as it
was not pleaded. However, without regard to its
dubious merit in law, the chronology of the events
would not appear to support the proposition that
the plaintiff was led to withdraw the Halifax
request by publication of the policy decision that
unilingual incumbents would be allowed to remain
in positions designated bilingual. The policy was
published in June 1973; the plaintiff did not even
apply for the transfer to Halifax until February
1976. The argument cannot, on the facts, be taken
seriously.
There is no doubt that the plaintiff did not
freely and willingly accept the transfer to Corn-
wall. While the pressure on him cannot, in my
view, fairly be described in the language of the
statement of claim, the pressure was real. It is also
clear that his involuntary transfer was contrary to
the sixth principle of the Parliamentary Resolution
and to the ensuing Treasury Board directive. The
Ministry's March 1976, submission admits that
frankly, invoking the overriding safety consider
ation.
The effect in law, of a resolution of a House of
Parliament is, in my view, accurately stated by the
Canadian parliamentarian and student of Parlia
ment, Dr. John B. Stewart, in what I believe to be
the most current authoritative general study of the
way the Canadian House of Commons does its
work. 6 There, he states:
... The result of a decision by the House is either a resolution
or an order. The House expresses its opinions by resolutions. It
expresses its will by orders.
6 The Canadian House of Commons, Procedure and Reform
(Montreal and London: McGill-Queen's University Press,
1977), p. 36.
Taken alone resolutions bind nobody; but often they are
sought by the government as evidence of support for govern
ment action ....
The orders of the House are narrowly limited in their
immediate effect. They serve to guide the speaker and other
members, and to direct the clerk, the sergeant at arms, and the
other officers of the House.
While Dr. Stewart is dealing specifically with the
House of Commons, there is no basis for finding
that a resolution of the Senate, or, for that matter,
identical resolutions of both Houses, bind anyone.
Specifically, I reject the plaintiff's submission that
while, on authority of Stockdale v. Hansard,'
which dealt with an Order, rather than a Resolu
tion, of the Parliament at Westminster, such an
action by a House of Parliament may not create
rights and obligations as between private citizens,
it does create rights and obligations as between
Her Majesty and her servants. The legislative
power in Canada is vested in a Parliament consist
ing of the Queen, the Senate and the House of
Commons. 8 The action of two only of Parliament's
constituent elements does not make law.
In the result, the legal effect of the Treasury
Board directive is the same. It reflects a policy
which the Treasury Board was entitled to, and did,
adopt in the carrying out of its mandate of person
nel management. It did not, however, create any
right, or impose any obligation on the defendant,
enforceable by the plaintiff.
The Public Service Official Languages Exclu
sion Order is quite another matter. It is law. It
binds both plaintiff and defendant. With the great
est of respect to the defendant's arguments, I
cannot accept that the general personnel manage
ment mandate of the Treasury Board under the
Financial Administration Act, broad as its author
ity is, taken with, or without, the reality of the
safety considerations that dictated the decision,
authorized the Treasury Board to reach a decision
contrary to the clear provisions of the Order. No
specific statutory provision that would admit of
such a result was brought to my attention.
' (1839) 112 E.R. 1112.
8 The British North America Act, 1867, 30 & 31 Vict., c. 3,
s. 17.
In view of paragraph 6(a) of the Order, the
determination that the plaintiff was no longer
capable of performing the duties of position
TACQ-0274 because he was unilingual was not a
determination that could legally be made. His
release for incapacity under section 31 of the
Public Service Employment Act, based on such a
determination, would, it follows, also have been
illegal. The plaintiff would, in my view, prior to
accepting the transfer from position TACQ-0274,
have been entitled to a declaration to that effect.
That, however, is all in the past and a judgment
will not issue declaring a past right that has been
utterly extinguished. While this action appears to
have been commenced before the transfer to posi
tion TACQ-9274 in Cornwall became effective, no
interim relief by way of injunction or otherwise
was sought.
The plaintiff is not entitled to the declarations
sought. As to the expenses of commuting between
Hudson Heights and Cornwall, position TACQ-
9274 requires the plaintiff to work in Cornwall; he
can live where he wants. The evidence does not
sustain the proposition that he is entitled to be
compensated his expenses of commuting between
his home and his place of work. Certainly, that is
not a right that flows from his having been press
ured into accepting the new position. Likewise, a
present right to be reinstated to position TACQ-
0274 does not flow from the fact that the plaintiff
could, successfully, have resisted his removal for
incapacity had such, in fact, been attempted. Nei
ther does an ongoing, or present, right to be rein
stated in the position flow from the fact that the
plaintiff gave it up under threat of illegal removal
and under protest.
JUDGMENT
The action is dismissed with costs.
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