Date: 20000526
Docket: T-1953-94
OTTAWA, ONTARIO, THE 26TH DAY OF MAY, 2000
Present: THE ASSOCIATE CHIEF JUSTICE
Between:
LOUIS-HUBERT LEDUC
Applicant
- and -
HER MAJESTY THE QUEEN
and
THE MINISTER OF FOREIGN AFFAIRS
AND INTERNATIONAL TRADE
collectively referred to as: Respondents
- and -
THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Third Party
ORDER
IN VIEW OF the application filed by the applicant pursuant to section 77 of the Official Languages Act;
IN VIEW OF the written submissions by the parties and the hearing of May 8, 2000;
THE COURT ORDERS:
The application is dismissed with costs.
| "Allan Lutfy" |
| A.C.J. |
Certified true translation
Martine Brunet, LL.B.
Date: 20000526
Docket: T-1953-94
Between:
LOUIS-HUBERT LEDUC
Applicant
- and -
HER MAJESTY THE QUEEN
and
THE MINISTER OF FOREIGN AFFAIRS
AND INTERNATIONAL TRADE
collectively referred to as: Respondents
- and -
THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Third Party
REASONS FOR ORDER
THE ASSOCIATE CHIEF JUSTICE
[1] The applicant cites section 77 of the Official Languages Act, R.S. 1985 (4th Supp.), c. 31, to invalidate his termination with the Department of Foreign Affairs and International Trade ("the Department"). His employment was terminated following his meetings with two representatives of the Department on January 14 and 17, 1992.
[2] At the commencement of the hearing, the two parties stated that by mutual agreement this litigation essentially raised two issues:
| (a) Were the meetings of January 14 and 17, 1992 held in violation of the Official Languages Act? |
| (b) To the degree that they were, is the remedy sought by the applicant, "appropriate and just" in the circumstances, within the meaning of subsection 77(4) of the Act? |
[3] The two parties also acknowledge that the applicant has the burden of proof concerning the two issues in dispute.
[4] Under paragraph 36(1)(a) of the Official Languages Act, the Department had the duty, within the National Capital Region:
| 36.(1)(a) [to] make available in both official languages to officers and employees of the institution (i) services that are provided to officers and employees, including services that are provided to them as individuals and services that are centrally provided by the institution to support them in the performance of their duties, and (ii) regularly and widely used work instruments produced by or on behalf of that or any other federal institution; |
36.(1)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; |
The meetings of January 14 and 17, 1992
[5] The applicant's complaint is essentially that these two meetings were held in English. Here is what he says in his affidavit:
| [Translation] |
| 2. On January 14, 1992, Mr. James Wright, then director of the Political/Economic Personnel Division, called me to his office to dismiss me, although the Department had no valid reason to do so. The meeting took place in English, in violation of the Official Languages Act; |
| 3. The report of the meeting was recorded in writing by Ms. Janet Graham under number APGP-0028 of January 20, 1992. It gives only the Department's version and is not authoritative; |
| . . . |
| 7. The meeting of January 17, 1992 also took place in English, in violation of the Official Languages Act. I was at a disadvantage since the meeting was being held in my second language, while the Director of the Personnel Division was speaking to me in his mother tongue. I was adversely affected since it was during this meeting that I was forced to draft and sign a document that the Department says is a voluntary resignation; |
| 8. During this second meeting, Mr. Wright presented me with a pad of drafting paper and asked me to submit my resignation. While I was writing under Ms. Graham's supervision, Mr. Wright left to go to his secretary's office to get the typewritten letter on Department letterhead in which he accepted my resignation. He thereby demonstrated that he was anticipating my resignation from the Department; |
| 9. The handwritten document I gave to Mr. Wright was not a resignation, but a letter of intention that had to be subsequently confirmed by a letter of resignation in the prescribed form to endorse my departure from the Department and the public service. It was not addressed to the deputy minister or to anyone else authorized to receive a resignation and a request for retirement; |
| 10. Mr. Wright quickly read it and handed me the letter in which he accepted my resignation; |
[6] The applicant conceded, both before the Court and in his factum, that he made no request that the persons he was with speak to him in French. He says that from the outset of the first meeting he was aware that an offence against the Act was going to be committed. He states the following in his factum:
| [Translation] |
| 33. Knowing that Ms. Graham, the witness who was going to take some notes, understood only English, it seemed to me very clear, from the outset of the first meeting, that an offence against the Official Languages Act was going to be committed. It was not my job to point this out to the personnel director; |
[7] He also conceded during his cross-examination that he did not express any linguistic preference during these meetings:
| [Translation] |
| Q. Did you ask that the meeting take place in French? |
| A. No. |
| Q. Did you express a preference as to the language in which the meeting was to take place? |
| A. No, I did not do so because I knew that the Department had in the past had the documentation, and that he had to speak to me... and that I did not need to request it again. |
| Q. Did you protest the fact that the meeting was taking place in English? |
| A. Absolutely not, I did not protest. |
He gave essentially identical replies in regard to the proceedings in both meetings.
[8] The two officials of the Department who participated in both these meetings give us versions that are essentially different from the applicant's concerning the use of either official language during these meetings.
[9] According to the affidavit of the personnel director, Mr. James R. Wright:
| [Translation] |
| 8. I clearly recall that this meeting of January 14, 1992 took place in both official languages; |
| . . . |
| 11. I clearly recall as well that the discussion, which took place almost exclusively between me and Mr. Leduc, frequently went from one official language to the other; |
| 12. I clearly recall that Mr. Leduc at no time objected to the way in which the said meeting was being conducted in terms of the use of the official languages; |
| . . . |
| 18. Like the meeting of January 14, 1992, the meeting of January 17, 1992 took place in both official languages, again in the presence of Ms. Janet Graham; |
| 19. I clearly recall beginning the discussion in French and that it continued in English and French; |
| 20. Again, I clearly recall that Mr. Leduc at no time objected to the way in which the meeting of January 17, 1992 was taking place in terms of the use of the official languages; |
| 21. No only did he not utter any complaint or any reservation in this regard, but he even stated during this meeting that he was as much at ease in English as in French and that he had no objection to the meeting taking place in either or both of the official languages; |
[10] The defendants' second witness, Ms. Janet Graham, confirms Mr. Wright's statements concerning the use of both official languages during these meetings without objection from the applicant. Furthermore, she specifically adds that Mr. Wright had asked the applicant if he preferred that the meetings be held in English or in French. The following are the relevant paragraphs from Ms. Graham's affidavit:
| 7. My recollection of these two meetings is that the discussions started in French, switched to English and alternated a few times back and forth between the two languages; |
| 8. I do specifically recall that the discussions ended in French with Mr. Wright summarizing in French what had been agreed to with Mr. Leduc; |
| 9. I do also specifically recall that the issue of language preference was raised by |
| Mr. Wright and that Mr. Leduc clearly indicated that he did not mind whether French or English was used; |
On cross-examination, the applicant stated that Ms. Graham "... did not speak French at all and she was unable to follow a conversation in French".
[11] The applicant filed a complaint with the Commissioner of Official Languages concerning these two meetings. In his factum, the applicant informs us that the complaint was made in writing:
| [Translation] |
| 22. Through a letter of January 22, 1994, I asked the Commissioner of Official Languages to open an investigation concerning the linguistic practices followed in the meetings held in Mr. James Wright's office on January 14 and 17, 1992; |
The applicant's letter of complaint was not produced in the case at bar.
[12] The final report concerning this investigation was communicated to the applicant by a letter dated June 21, 1994. Here are the relevant extracts from this correspondence:
| [Translation] |
| This is further to our telephone conversation of last June 15 about our investigation concerning a memorandum and some meetings pertaining to your performance evaluation. |
| To this effect, I received from the Department a letter accepting its responsibility to provide central and personnel services and supervision in the preferred official language. I drew the responsible persons' attention to the importance of asking the employee in which language he preferred to receive his documents so that his linguistic choices could be respected. |
| Consequently, we have closed this file. |
| We thank you for having brought this case to our attention and I urge you to contact us again if you feel that your language rights have not been upheld by a federal institution in other circumstances. The complaints we receive from the public help us in ensuring the equality of both official languages in these institutions. [Emphasis added] |
The Department's letter, referred to in this final report, is not in the record now before me.
[13] In view of the fact that I have little evidence before me concerning the Commissioner's final report, this document is of no help to the applicant in demonstrating that the subject matter of his complaint is a violation of the Official Languages Act.
[14] The applicant says both meetings "[Translation] were held in English". The defendants' two affiants state that the discussions alternated between both official languages.
[15] In evaluating the contrary versions in relation to the language used in the meetings of January 14 and 17, 1992, I have taken into account the fact that the applicant did not cross-examine any of the defendants' affiants.
[16] I accept the version of the defendants' affiants that both languages were used in the course of the two meetings. I accept in particular Mr. Wright's statement that the applicant "even stated during this meeting that he was as much at ease in English as in French and that he had no objection to the meeting taking place in either or both of the official languages". I also conclude from this statement that he was asked his linguistic preference for the purposes of these meetings.
[17] In drawing this conclusion, I likewise rely on the unequivocal statement appearing in Ms. Graham's affidavit, namely: "I do also specifically recall that the issue of language preference was raised by
Mr. Wright and that Mr. Leduc clearly indicated that he did not mind whether French or English was used."
[18] I conclude, on a balance of probabilities, that the applicant was offered the possibility of holding the meetings in the official language of his choice and that both official languages were used during these meetings without any opposition being expressed by him. I do not accept the applicant's version that each meeting took place only in English and that he was not given the possibility that the discussions would be held in French. In any event, the preponderance of the evidence favours the defendants. I conclude, therefore, that the applicant has not discharged his onus of proving the existence of a violation of the Act.
[19] The applicant also alleged at the hearing, albeit not in his factum, that the summary of the two meetings made by Ms. Graham constituted a further violation of the Act because it was written in English. There is no indication that this document was intended for the applicant or that he requested a translation of it. The applicant has similarly failed to discharge his onus of proving that this memorandum constituted a violation of the Act.
[20] Finally, even if the applicant had managed to demonstrate the existence of a violation of the Act, he also had the onus to prove the causal relationship between the Department's contravention and the remedies contemplated in this case: Lavigne v. Canada (Human Resources Development), [1997] 1 F.C. 305 (F.C.T.D.), upheld by (1998), 228 N.R. 124 (F.C.A.), application for leave to appeal dismissed by [1998] A.S.C.C. no. 356. The linguistic dimension of the two meetings was in no way determinative in the applicant's decision to opt for early retirement or to leave the Department in conditions that he characterizes as a constructive dismissal. The applicant acknowledges that he is bilingual and he conceded during his cross-examination that the Department's proposal in regard to his termination of employment was very clear to him: "[Translation] To me, it was very clear. It could not be more so.... As Séraphin Poudrier would have said, it was as clear as rock water." In these circumstances, I also find that the applicant has failed to demonstrate the existence of a causal relationship between the contravention he alleges and the termination of his employment.
[21] For all of these reasons, the application is dismissed with costs. This proceeding raises no "important new principle" within the meaning of subsection 81(2) of the Act.
| "Allan Lutfy" |
| A.C.J. |
Ottawa, Ontario
May 26, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: T-1953-94 |
| STYLE: LOUIS-HUBERT LEDUC - and - |
HER MAJESTY THE QUEEN and
THE MINISTER OF FOREIGN AFFAIRS
AND INTERNATIONAL TRADE - and -
THE COMMISSIONER OF OFFICIAL LANGUAGES
OF CANADA
| PLACE OF HEARING: Ottawa, Ontario |
| DATE OF HEARING: May 8, 2000 |
REASONS FOR ORDER OF THE ASSOCIATE CHIEF JUSTICE
DATED: May 26, 2000
APPEARANCES:
Louis-Hubert Leduc REPRESENTING HIMSELF
René LeBlanc FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario