Syndicat des employés du Module du Nord Québécois v Innuulitsivik Health Centre

Background

The Northern Quebec Module (Module du Nord Québécois or “MNQ”) is a healthcare facility in Montreal that provides a link between the Nunavik region of Quebec and the health institutions in the McGill University Integrated Health Network located in Montreal. Nunavik comprises the northern third of the province and is primarily populated by Inuit. MNQ provides services such as accommodation, transport, interpretation and social support for residents of Nunavik seeking medical assistance in Montreal. MNQ is part of the Innuulitsivik Health Centre that provides healthcare services in Nunavik.

In 2009, MNQ’s mandate was redefined. While MNQ used to provide nursing services, these were discontinued in 2009 so that the organization could instead focus on transport, interpretation and social support for beneficiaries from Nunavik. MNQ also moved to a single location in Montreal in 2011 and established a new staffing plan. MNQ replaced several positions that required employees to be bilingual in French and English with new positions that required an ability to speak Inuktitut (the language of the Inuit) as well as either English or French. The grievances addressed in this matter primarily stemmed from the fact that an ability to speak French was not mandatory for the new positions whereas an ability to speak Inuktitut was.

The need for Inuktitut language skills

The arbitrator reviewed conflicting evidence as to the necessity of having MNQ employees speak Inuktitut.

The head of the MNQ living unit estimated that up to 2% of the clients it served were elderly individuals who could only speak Inuktitut. A former associate director of MNQ stated that English was a second language for the Inuit and several of them either could not speak English at all or had only basic skills in the language. She also believed it was essential for MNQ to have employees who could communicate with the Inuit in their own language; employees in the new positions would need to explain the facility’s operating rules in Inuktitut, provide interpretation services to patients, and look after traditional country foods that patients and their escorts bring with them from Nunavik. It was also noted that sometimes patients receive bad news while in Montreal and some of them would even pass away while there, which meant employees might need to provide support to patients’ escorts as well.

The union disputed the need for the new Inuktitut-speaking positions. One of its witnesses estimated that 85% of the Inuit speak English and said there was already one employee per shift who spoke Inuktitut. He also said that French was the language of work at MNQ. Other witnesses for the union said that there was always an escort or other patient around who could translate for patients who were unable to express themselves in English.

The employer called an expert witness, Professor Saladin d’Anglure, who is a professor in anthropology and has visited Nunavik on numerous occasions during his academic career. Saladin d’Anglure was of the opinion that Inuktitut was not only a language but also “the manifestation of and vehicle for the traditional values of the Inuit of Nunavik and their worldview” and “the cement for their social ties”. He estimated that approximately 15-20% of Nunavik Inuit speak English well whereas two-thirds of their population only speaks a simplified English that would be insufficient to answer a series of medical or social questions. Saladin d’Anglure also stated that only a small percentage of Nunavik Inuit speak French fluently and approximately 15-20% of the population could not get by in any language other than Inuktitut. He also believed that in addition to knowledge of Inuktitut employees ought to be provided with informational sessions on the “intangible heritage” of the Inuit as well.

Charter of the French Language

Quebec’s Charter of the French Language establishes French as the province’s only official language and provides Quebec residents with the right to have health and social service providers, among others, communicate with them in French. It also provides workers with the right to carry on their activities in French and sets restrictions on the ability of employers to make employment dependent on knowledge of a language other than French, “unless the nature of the duties requires such knowledge”.

On the other hand, the Charter of the French Language provides certain persons and bodies to use Cree and Inuktitut and exempts them from most of its sections. The exemptions are for persons qualified for benefit under the James Bay and Northern Quebec Agreement (JBQNA), bodies created under the JBQNA, and bodies of which the majority of members are qualified for benefit under the JBQNA. All three categories of exemptions were qualified by the phrase “in the territories envisaged by the [JBQNA]”.

The arbitrator’s decision

The arbitrator noted that spoken and written Inuktitut was entirely different from English and French and he had no doubt that the employer would need to search long and hard to find Francophones or Anglophones who could also express themselves in Inuktitut. In his view, setting out a requirement that candidates speak Inuktitut along with French or English effectively restricted the position to Inuit who are either bilingual or trilingual, and in practice, bilingualism would most likely mean candidates spoke Inuktitut and English.

The arbitrator found the union’s argument that English would be sufficient to interact with Inuit patients to be hardly convincing for reasons of dignity and respect. He noted that in the preamble to the Charter of the French Language the National Assembly of Quebec recognizes “the right of the Amerinds and the Inuit of Québec, the first inhabitants of this land, to preserve and develop their original language and culture”. The arbitrator said that the respect that should be accorded to the Inuit when they visit Montreal for medical reasons required Inuktitut to be used to the extent possible and said that French-speaking Montrealers who for a long time had to work and be served in English ought to be sensitive to this issue.

The arbitrator also found that having Inuktitut-speakers at MNQ to help patients fill out required forms, inform them, accompany them to the hospital and explain what medical staff are saying to them in English or French simply made good sense. He noted that not all the staff at MNQ was perfectly fluent in English and it was preferable for there to be Inuktitut-speakers working there. Furthermore, the arbitrator found there was a safety issue in terms of people having been torn from their ordinary milieu and transported to one that was unfamiliar to them. He felt that the presence of Inuit who speak their language could only have a beneficial effect.

The arbitrator noted that these measures needed to be in accordance with the law. The union argued that the language requirements of the new replacement positions introduced an abusive and discriminatory linguistic criterion that deprived long time employees of their jobs in favour of new Inuktitut-speaking employees. It argued that the number of positions that required knowledge of Inuktitut was contrary to the requirements of necessity and proportionality set out in the case law under the Charter of the French Language.

However, the arbitrator rejected the union’s position that the Charter of the French Language applied to MNQ at all. While he noted that the three categories of individuals and bodies that are exempt from this statute are geographically restricted to “the territories envisaged by the [JBQNA] Agreement”, he found that MNQ was just one of eight departments of the Innuulitsivik Health Centre, which was itself exempt from the language requirements. MNQ had no separate legal personality from the Centre, it reported to the Centre’s senior management and Board of Directors, and its activities were reported on in the Centre’s Annual Report. The arbitrator found that whatever applied to the Centre also applied to its departments, even if they were located in Montreal. On this basis, the arbitrator denied the grievances.