Paramedic ruling's impact on language rights debated in court
Previous government sent McEvoy ruling on hiring for a judicial review because of bilingual service concerns
Lawyers argued Thursday over whether a controversial arbitration ruling on bilingual paramedics has sweeping constitutional implication for language rights — or is a narrow labour decision that ought to be upheld.
The case is central to the ongoing debate about how Ambulance New Brunswick should meet its legal obligations to provide bilingual service while respecting the seniority rights of its employees.
Government lawyer Keith Mullin told the judicial review hearing in the Court of Queen's Bench that the 2018 ruling by labour arbitrator John McEvoy would "wipe away" language rights protected by the charter of Rights and Freedoms and the Official Languages Act.
"These are things we all have to follow," he said, asking the judge to quash the McEvoy ruling. "This is the law of the land."
Michel Doucet, a lawyer for the province's official languages commissioner, quoted a 1999 Supreme Court of Canada decision that said language cases must "in all cases" be interpreted broadly, in line with the law's goal of linguistic equality.
But Glen Gallant, a lawyer for the union representing paramedics, Local 4848 of the Canadian Union of Public Employees, argued that McEvoy's ruling is a narrow decision that affects only the employer and the workers.
"It's a labour relations case," he said. "It's not a charter case. It's not a pure language-rights case. … This is a private matter and the decision doesn't go any farther than that."
Justice Denise LeBlanc appeared skeptical of that. "We are talking about services that are offered to the general public," she said.
Gallant answered that McEvoy "was only deciding the rights of the two parties before him."
McEvoy's decision last year gave hope to unilingual paramedics who have not been able to get full-time permanent jobs with Ambulance New Brunswick. At the same time, many positions designated as bilingual have gone unfilled.
McEvoy said this violated the union contract because paramedics with higher second-language abilities were getting positions over unilingual candidates with more seniority.
In the ruling, McEvoy said the province could forgo hiring bilingual paramedics in areas of the province where there is less demand for second-language service. He suggested crews use a "language line" that would let a patient talk to a bilingual staffer over a radio system.
The previous Liberal government sent the ruling for a judicial review.
But in December, the new Progressive Conservative government directed Ambulance New Brunswick to implement the decision, a move denounced by acting language commissioner Michel Carrier as violating the law.
New Brunswick's language law requires equal service in both languages in all areas of the province.
Last week, Health Minister Ted Flemming backtracked and abandoned the December order in favour of a new directive that he says respects bilingualism requirements.
It will see unilingual paramedics hired onto "float teams" that will temporarily fill vacant bilingual-designated positions.
Even so, Thursday's hearing went ahead to establish whether the McEvoy ruling complies with the language law and with charter rights.
Mullin and Doucet both quoted the Supreme Court's 1999 Beaulac case, which said language rights must be interpreted broadly.
The ruling said both languages must be treated equally and governments can't implement policies that treat one language as the primary language and the other as a secondary language that is "accommodated."
Designating regions of the province where ambulance services would not be offered equally in both languages "is exactly what the court said not to do," Mullin argued. He said McEvoy's ruling would "alter" that right.
Doucet quoted a section of the charter that says New Brunswickers have the right to be served equally in English and French.
He pointed out that section was passed by elected members of the legislature.
"It's not up to an arbitrator to disavow or ignore that choice."
Doucet also pointed out that the Official Languages Act allows for a "reasonable delay" in bilingual service from police officers and said if legislators had wanted a similar exception for ambulances, they'd have written it into the law.
Both lawyers argued that because McEvoy's ruling touched on constitutional rights, it has a higher standard of review: it has to be legally correct.
Doesn't touch the charter
But Gallant, the union's lawyer, argued McEvoy "was not deciding a broader issue of constitutional law" so the judge only has to find his ruling "reasonable," not strictly correct.
LeBlanc didn't appear persuaded by that, telling Gallant she felt the case had to be interpreted "in accordance with decisions handed down by the Supreme Court and the [New Brunswick] Court of Appeal."
Gallant also argued McEvoy was only being realistic about the difficulties of providing bilingual service everywhere.
He said weakening the hiring requirements in favour of a "language line" was "not an accommodation but a necessary response to the realities we have in New Brunswick."
He also said it would be "more equal" for a patient to talk to a fully bilingual staffer over a radio line than to deal with a paramedic with only a mediocre ability to speak their language.
LeBlanc, who was appointed a Court of Queen's Bench justice last June, did not give a timeline for when she expects to rule in the case.
"It was not an easy case to argue and I can assure you it's not going to be an easy case to decide," she told the lawyers.