In Québec, section 46 of the Charter of the French language1 (the Charter) prohibits employers from making the obtaining of an employment or office dependent on knowledge, or a specific level of knowledge, of a language other than French (Québec's official language), unless the nature of the duties requires such knowledge.

Anyone who believes his or her employer has contravened section 46 of the Charter may file a complaint with the Commission des relations du travail (the Commission) or file a grievance, as the case may be. In this context, the Commission or arbitrator has broad remedial powers, and, in particular, can issue any order the Commission or arbitrator considers fair and reasonable in the circumstances, including renewal of the staffing process for the employment position or office, or payment by the employer to the complainant of compensation or punitive damages.

By way of defence, the employer can invoke the argument that performance of the duties requires knowledge of a language other than French, but the employer will have the burden of proving that such is the case. In addition, that burden of proof can be difficult to meet in some cases, as illustrated by a recent decision rendered by the Commission.

In Pouliot and Quality Inn & Suites Lévis2, the complainant alleged that his application for a position as building maintenance manager for the defendant hotel operator Quality Inn & Suites Levis had been rejected because of his insufficient knowledge of English. In fact, his candidacy had been disposed of by a receptionist as soon as she discovered that the complainant was refusing to submit to the English language requirement. Quality Inn & Suites Levis argued that it was entitled to require knowledge of English for the position of its hotel maintenance manager, since nearly 40% of its customers were English-speaking. In addition, because there were only four other employees, the building maintenance manager could be called on to communicate directly with customers while carrying out some tasks related to the position, such as bringing extra towels to a room.

Based on its analysis of the job description posted by the employer, the Commission rejected the employer's argument, since the description did not in any way refer to any such customer service functions. Instead, the position sought by the complainant consisted of manual labour for which knowledge of a language other than French could not reasonably be justified. Moreover, the Commission was of the view that by referring to isolated and occasional tasks that were barely related to the employment being offered, the employer was attempting to get around the objectives of the Charter. Consequently, the Commission upheld the complaint and reserved its jurisdiction to rule on the remedies sought.

The decision described above, which was rendered on December 15, 2010, resembles an earlier decision in Richard and Centre hospitalier de St. Mary3. In that case, the employer, a hospital, was accused of contravening section 46 of the Charter for refusing to hire the complainant as a machinist because the complainant failed a written English exam. The employer based its requirement for knowledge of English on the fact that the hospital required bilingualism for all of its employees and that the hospital's patients had the right to receive health and social services in English. These arguments were rejected by the Commission, which ruled that a blanket requirement for bilingualism in filling all positions constitutes an infringement of the Charter. Moreover, performance of the duties of a machinist does not require knowledge of English, since a machinist is not required to work or communicate directly with patients. Finally, sporadic communications with unilingual English-speaking employees cannot justify such a requirement.

Accordingly, the renewal of the staffing process for the position was ordered. The complainant's candidacy was rejected once again and the Commission rendered a second decision ordering the employer to pay $9,984.39 to the complainant in compensation for the rejection of his candidacy.

In light of what has been described above, it must be concluded that an employer looking to fill an employment position or an office cannot systematically require knowledge of a language other than French. It is also up to the employer to ensure that any language prerequisite for a position or office is actually necessary for the accomplishment of the main duties of that position or office and that such prerequisite is clearly spelled out in the job posting.

This is even more important in light of the provision in section 45 of the Charter that employers are strictly prohibited from dismissing, laying off, demoting or transferring a member of their staff for the sole reason that he or she only speaks French, that he or she has insufficient knowledge of a particular language other than French, or that he or she has demanded that a right arising under the Charter be respected. In a similar vein, as occurred in the decision Cloutier and Système Électronique Rayco Ltée4, an employer who fails to verify the English language ability of a candidate at the interview stage will not be allowed to subsequently terminate his or her employment on the grounds that the individual did not have a sufficient knowledge of English for the position. Such a situation can have unfortunate consequences for the employer, since the reinstatement of an employee may be ordered if the complaint is upheld.