Canada (Procureur général) v. Asselin et al., (1995) 100 F.T.R. 309 (TD)

• Judge: Dubé, J.
• Court: Federal Court (Canada)
• Case Date: May 29, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 100 F.T.R. 309 (TD)

Can. (P.g.) v. Asselin (1995), 100 F.T.R. 309 (TD)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Procureur général du Canada (requérant) v. Louis Asselin (intimé) et Le Commissaire aux langues officielles (intervenant)

(T-2493-94)

Indexed As: Canada (Procureur général) v. Asselin et al.

Federal Court of Canada

Trial Division

Dubé, J.

June 1, 1995.

Summary:

Asselin was an unsuccessful candidate in an internal competition for a position in the Department of Transport. He appealed. The chairperson of the appeal board allowed his appeal. The Attorney General asked for judicial review of the appeal board's decision.

The Federal Court of Canada, Trial Division, allowed the application.

Labour Law - Topic 9178

Public service labour relations - Job competitions - Language qualifications - Section 12.1 of the Public Service Employment Act authorized the Public Service Commission to review the qualifications for a position - The Federal Court of Canada, Trial Division, stated that "the new section 12.1 gives the Commission the power to inquire into whether the qualifications in question are objectively necessary for the position. It is not for the Commission to decide whether other qualifications would be even more appropriate" - See paragraph 8.

Labour Law - Topic 9178

Public service labour relations - Job competitions - Language qualifications - The Federal Court of Canada, Trial Division, stated that "the determination of the language requirement of a position does not flow solely from the duties that the person in the position will be required to perform; rather, it transcends the principle of selection according to merit. The Official Languages Act requires that, in addition to the duties to be performed, regard be had to the composition of the work unit, the regional location of the office, the language capacity of the work unit and other requirements ..." - See paragraph 13.

Labour Law - Topic 9178

Public service labour relations - Job competitions - Language qualifications - Asselin was an unsuccessful candidate in an internal competition for a position in the Department of Transport - The chairperson of the Appeal Board allowed his appeal, holding that the language requirement for the position was unreasonable and substituting its own assessment of the level of language skills required for the position - The Federal Court of Canada, Trial Division, set aside the board's decision - The board exceeded jurisdiction by reviewing the language qualifications, a jurisdiction reserved by the Public Service Employment Act to the employer and the Commissioner of Official Languages - The function of the board is to ensure that appointments comply with the merit principle - See paragraphs 2 to 18.

Labour Law - Topic 9193.1

Public service labour relations - Job competitions - Appeals - Jurisdiction of Appeal Board - [See third Labour Law - Topic 9178 ].

Cases Noticed:

Canada (Attorney General) v. Viola et al., [1991] 1 F.C. 373; 123 N.R. 83 (F.C.A.), refd to. [para. 4].

MacNeill v. Canada (Attorney General), [1994] 3 F.C. 261; 169 N.R. 368 (F.C.A.), refd to. [para. 15].

Statutes Noticed:

Official Languages Act, R.S.C. 1985, c. O-3.01, sect. 56, sect. 58, sect. 91 [para. 14].

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 10(1) [para. 7]; sect. 12.1 [para. 3].

Counsel:

Alain Préfontaine, for the applicant;

James G. Cameron, for the respondent;

Richard Tardif, for the intervener.

Solicitors of Record:

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Raven, Jewitt & Allen, Ottawa, Ontario, for the respondent;

Commissioner of Official Languages, Ottawa, Ontario, for the intervener.

This application was heard on May 29, 1995, at Ottawa, Ontario, before Dubé, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on June 1, 1995.