Bilingual language requirements for employment opportunities
You are an employer with an establishment in Quebec and you wish to hire someone for a position. Would it be permissible that you require from a prospective candidate, that he or she has specific knowledge of the English language? This is the central question that the Court of Appeal was faced with in Gatineau (Ville de) v. Syndicat des cols blancs de Gatineau Inc., 2016 QCCA 1596.
In 2009, the city of Gatineau ("City") posted a job opening for a financial clerk. The incumbent position holder would be responsible for the billing and the collection of municipal taxes. In addition, he would also have to allot a certain amount of his time for customer service. Due to the fact that a financial clerk will be interacting with the citizens of the City, the job positing listed as a requirement, the ability to speak English.
At first glance, this requirement may seem somewhat banal and you might be asking yourself why it was necessary for the highest court in Quebec to settle such an issue. It must be understood however that in Quebec, article 46 of the Charter of the French language prohibits an employer from requiring a specific knowledge of a language other than French, for the obtainment of an employment, unless the nature of the duties requires such knowledge.
By invoking this article of the Charter, the Syndicat des cols blancs de la ville de Gatineau (" Union ") contested the requirements of this job posting. The lower courts opted for a narrow interpretation of this provision. Based on their rulings, specific knowledge of a language other than French would be deemed necessary only if it is an integral part of the job, such as for the position of translator. It would also be deemed necessary if the law imposes specific knowledge or if a person's fundamental rights come into play. Given that specific knowledge of spoken English did not correspond to any of the above-mentioned exceptions, the City was ordered to repost the job opening but this time without the linguistic requirement.
The Court of appeal rejected this narrow interpretation and rather opts for one that is more encompassing and based on the facts of each case. Henceforth, an employer can require specific knowledge of a language other than French and comply with article 46 of the Charter, if he successfully demonstrates that specific knowledge is necessary in order for the employee to adequately execute his functions in a normal and efficient manner. For the Court of Appeal, the lower courts interpreted the provision of the Charter in a manner that was too limited and was a marked departure from previous decisions rendered in similar cases. It is important to mention that on March 9 2017, the Supreme Court of Canada dismissed the application for leave of the Union and thus, the ruling of the Court of Appeal became final.
Despite the fact that the Court of appeal has interpreted article 46 of the Charter of French language in a more liberal manner, this should not be seen as giving an employer carte blanche to require specific knowledge of the English language for any position. Once more, the employer must demonstrate that it is necessary for the adequate execution of an employee's functions. What is more, given that the burden of proof rests on the shoulders of the employer, it is important that you document the cases in which an employee has to use the English language in the performance of their duties. Such proof is essential if ever you find yourself in a situation where the validity of your job requirements is being contested.