Relaxing bilingual rules for paramedics would violate charter, judge rules

A judge has ruled that Ambulance New Brunswick and the provincial government can't relax the bilingual hiring requirements for paramedics because doing that would violate the Official Languages Act and the Charter of Rights and Freedoms.

The decision by Court of Queen's Bench Justice Denise LeBlanc quashes a 2018 ruling by labour arbitrator John McEvoy.

McEvoy found ANB's practice of not filling permanent, full-time positions with unilingual paramedics violated the union contract because it gave preference to bilingual candidates with less seniority.

McEvoy suggested the province 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.

But in her decision, LeBlanc said previous legal precedents make clear that a radio or phone system does not meet the requirement for equal service in both languages.

The effect of implementing the McEvoy ruling "would be the denial of the right of citizens of New Brunswick to receive services of equal quality in the language of their choice anywhere in the province," she wrote.

And she said that the radio system "does not, in matters regarding official languages, constitute a service of equal quality."

Premier Blaine Higgs said the decision is mostly irrelevant because his government decided not to implement McEvoy's decision and to find other ways to address idled ambulances and a lack of full-time work for unilingual paramedics.

"This decision is something that is related to our requirements as a bilingual province, and I'll respect the outcome of that," he said.

Ruling is 'nothing new'

Retired law professor Michel Doucet said the ruling was not a surprise because it's consistent with court rulings and legislation going back to 1969.

"It's nothing new," said Doucet, who represented Michel Carrier, the official languages commissioner, at the January hearing in the case.

"It's just that the government has to put in place measures to ensure that citizens receive quality services in the language of their choice everywhere in the province of New Brunswick."

Greg McConaghy, the president of Canadian Union of Public Employees Local 4848, which represents paramedics, could not be reached for comment.

The union filed the grievance that led to the McEvoy ruling and had urged the court to uphold it.

"Please allow us time to review the decision and update you soon on what this all means," said a post on the union's Facebook page.

CUPE lawyer Glen Gallant said the union would evaluate whether to file an appeal.

 In the 36-page ruling, LeBlanc writes that  "regrettably," McEvoy's analysis "was made outside and with no consideration of the constitutional language regime particular to New Brunswick" or previous court decisions.

That includes Section 20 (2) of the charter, which says any member of the public "has the right to communicate with, and to receive available services from," the provincial government.

The question of bilingual paramedics became a campaign issue in last year's provincial election.

The Progressive Conservatives and the People's Alliance campaigned on promises to address what they said were slow response times because many bilingual positions were not being filled.

After the PCs took power, Health Minister Ted Flemming said the government would adopt some of McEvoy's ideas, such as relaxing the bilingual requirement in some areas of the province.

But a month later the government abandoned that approach. Instead it said it would offer the unilingual paramedics permanent, full-time positions and assign them to "float teams" to fill spots where no bilingual applicant is available.

At the same time, the province and ANB said they would continue to try to meet the legal obligation to designate at least one bilingual paramedic position on every two-person ambulance team.

Ruling vexes People's Alliance

People's Alliance Leader Kris Austin called the new ruling "unfortunate" and said if he were the premier, he would implement McEvoy's recommendations regardless.

"It's easy for the courts to sit and interpret the law," Austin said. "It's another thing for the government and the province to implement the practicalities of everyday service to the citizens."

Austin also rejected the finding that the radio line translation is unacceptable, citing simultaneous translation used in the legislature — though that translation is required by different sections of the law and the Constitution.

"We might have to look at the law," he said. "That's what we're here to do. We're here to make laws and change laws."

He said he would consider introducing a bill to amend the act and a resolution to amend the charter.

Green Leader David Coon said the ruling should settle the long-running debate about the legal requirement for bilingual ambulance service.

"It should resolve it, because the decision is clearly that we have to provide those services directly, by people," he said.

"The People's Alliance have got to give that up and deal with the reality of New Brunswick, which is that we are a bilingual province, where we provide services to New Brunswickers in both official languages."

Beaulac decision

LeBlanc's decision cites two decades of legal precedents stemming from the Supreme Court of Canada's 1999 Beaulac decision.

That landmark ruling said that language equality requires "equal access to services of equal quality" in both languages and is not an accommodation or compromise for a minority language group.

The ruling also said that governments can't ignore their language obligations over a "mere administrative inconvenience."