Home Arbitration/Labour Relations Veterans Affairs employee loses court bid for damages in bilingual position dispute

Veterans Affairs employee loses court bid for damages in bilingual position dispute

by HR Law Canada

An employee with Veterans Affairs Canada, who applied for an acting position and was not successful, has lost his bid to have damages tacked on to a declaration of wrongdoing on the employer’s part.

The plaintiff, RD, applied for an opening as an acting National Program Manager. The language requirement for the position was “bilingual imperative” and RD was bilingual. But the job was given to another person, who was not bilingual, despite the language requirement.

Under the Public Service Employment Act, Veterans Affairs Canada can appoint a person who does not meet the linguistic profile for an acting position, but only for a period of 12 months. In this case, the acting position exceeded that — it was for a period of 16 months.

Veterans Affairs Canada conceded that the individual appointed, therefore, did not meet the language requirement. RD filed a complaint with the Federal Public Sector Labour Relations and Employment Board.

In August 2021, the board upheld the employee’s complaint and concluded that Veterans Affairs Canada has abused its authority “in the application of merit.” But that’s as far as the ruling went. It did not make any findings about whether RD was a suitable nominee for the acting position; did not revoke the acting appointment; and did not find that RD was entitled to any particular relief.

Worker appeals

RD appealed, taking the case to the Supreme Court of Prince Edward Island. In his statement of claim, he alleged “abuse of authority” and sought financial compensation.

He sought $2,175.53 in compensation due to loss of income for the acting period. He also argued that the acting position would have been an important stepping stone and that not getting it has had a consequential negative impact on his career.

He sought $75,000 to compensate for this and an additional $25,000 in damages for the impact on his mental health.

Veteran Affairs responds

Veterans Affairs countered, urging the court to defer to the established dispute resolution regime under the Public Service Employment Act, emphasizing that it constituted a comprehensive and exclusive code for such disputes.

The employer’s counsel argued that the statutory regime provided sufficient mechanisms for resolving such disputes, suggesting that RD’s success in obtaining declaratory relief should suffice.

It did state that there may be situations where a court can decline to defer to the regime — such as in cases of whistleblowers or where the regime doesn’t provide a solution to the problem. But a four-month gap (difference between the allowed 12-month period and the actual 16-month period for the position) hardly met the definition of an exceptional circumstance.

The court’s ruling

The court’s decision hinged on the concept of a “remedial gap” or “effective redress.” It noted that while intervention might be warranted in cases where the required remedy is beyond the decision-maker’s power, the key question was whether the board could provide a solution to the problem.

“I am satisfied the dispute between the employer and the employee is governed by a comprehensive dispute resolution regime,” the court said. “Under that regime, the Board has broad remedial authority, including to take ‘any corrective action the Board considers appropriate.'”

In terms of compensation, the court noted there was no evidence RD would have been the successful candidate for the position had the unilingual employee not been placed in that role.

“Stated pointedly by the employer, there ‘could have been someone else in the workplace’ who met the linguistic profile and who should have been the successful applicant. I agree,” the court said.

It noted that the board chose to provide declaratory relief only. It bears repeating that it is not necessary that the redress be identical to the relief that could potentially be available from the courts, it said.

“It is appropriate for this court to take a hands-off approach,” it said. There simply was no basis for it to interfere with the board’s ruling.

RD’s action was dismissed.

For more information, see Doucette v. Attorney General of Canada, 2023 PESC 51 (CanLII)

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