Two conflicting legal decisions affecting the rights of unilingual ambulance paramedics are on a collision course.
The Brian Gallant government is asking the Court of Queen's Bench to resolve whether Ambulance New Brunswick should weaken its requirement for bilingual paramedics in areas of the province where there's less demand for second-language service.
Earlier this month, a labour arbitrator ordered it to do just that.
But last year, a Court of Queen's Bench judge issued an order that implies it cannot.
"There's a decision on each side of the issue," Chris Hood, executive director of the Paramedic Association of New Brunswick, said Friday.
The Canadian Union of Public Employees was probably premature in celebrating the labour decision by arbitrator John McEvoy, Hood said.
It told Ambulance New Brunswick to look at where the need for bilingual paramedics is not "relevant" and to loosen its hiring practices there.
"This has huge implications for government in general," Hood said. "I had no expectation it was going to end there."
Province seeks judicial review
Health Minister Benoît Bourque announced Thursday the province will ask for a judicial review of McEvoy's 28-page decision. Bourque said the province would risk violating a November 2017 court order if it complies with the ruling.
That order gave legal force to an Ambulance New Brunswick promise to provide services "of equal quality" in both languages at a level "that applies uniformly across the entire territory of the province."
People's Alliance Leader Kris Austin, who has criticized the ambulance service's bilingualism requirements for years, said McEvoy's ruling makes sense.
"Demographics have got to play a part in this," he said. "I think a little common sense would work."
But Michel Doucet, a retired law professor and expert on language rights, said McEvoy has created confusion and his decision needs to be clarified.
"It's important that the matter be dealt with by a higher court. A clear interpretation of what the language rights are, and what they mean, needs to be done by a court of higher jurisdiction than an arbitrator."
Ruling on two grievances
McEvoy's ruling was on two grievances filed by CUPE 4848, the union representing paramedics.
Two former union presidents, Judy Astle and Trent Piercy, complained that Ambulance New Brunswick's policy of having one designated bilingual paramedic on each two-person crew was unfair because it interfered with seniority rights
Because Ambulance NB couldn't find people to fill the bilingual positions, it began hiring non-bilingual workers as temporary employees, favouring the applicant who was closest to meeting the required second-language standard.
The organization would then re-post the vacancy every eight weeks, hoping a qualified bilingual applicant would eventually appear. Often they did not.
Growing reliance on temporary hirings
The growing reliance on temporary hirings interfered with unilingual employees' seniority rights to "bump" other paramedics or to get overtime. Temporary employees also don't get the same full-time wages, benefits and vacation time.
"It is true that the Collective Agreement provides for temporary assignments but it does not contemplate what are, in reality, continuing temporary assignments," McEvoy wrote in his decision. It can't be interpreted "to have envisioned such 'permanent' temporary' positions."
Hood said McEvoy has recognized a real issue. He said of 900 paramedic positions at Ambulance New Brunswick, 120 to 130 are vacant now. All are bilingual positions for which there has been no bilingual, qualified applicant.
"There's not going to be 120 or 130 bilingual paramedics falling out of the sky anytime soon," he said.
Solution may violate law
It's McEvoy's solution that prompted the province to seek a judicial review.
He said there's no explicit written requirement anywhere that Ambulance New Brunswick require every second position to be bilingual.
He ordered the service to analyze call statistics to figure out which areas of the province don't need bilingual service.
"There are areas of the Province where unilingual paramedic teams can serve the public without having bilingual competence because the public served communicate in that same official language," he said.
The ruling doesn't say what the threshold should be in a given region.
If there are rare cases in those areas where people need second-language service, he said, unilingual paramedics could use Ambulance New Brunswick's "language line." The line provides a real-time translation service for patients, such as new immigrants, who speak other languages.
Austin supports 'language line'
That's a solution Austin has been promoting all along.
"We certainly feel that there can be equality of service for both languages without the need for bilingual staff across the board," he said.
In his view, McEvoy's ruling doesn't violate the principle of bilingual service.
"He's not saying one language or the other shouldn't receive service. He's saying that we have technology today to provide that."
Austin said an ANB paramedic told him of a recent case of treating a Vietnamese-speaking patient in Moncton.
"Between the dispatcher on 911 and the translator on the paramedic line, the patient received proper care," he said.
Arbitration not consistent with act
But anything less than fully equal service would appear to violate last year's consent order by Justice Zoël Dionne of the Court of Queen's Bench.
McEvoy's ruling does not mention the consent order. It was part of a settlement in a lawsuit filed by Danny and Murielle Sonier, a brother and sister in Moncton who complained Ambulance New Brunswick couldn't provide French service during a 2013 call.
ANB acknowledged during the case that it violated the Soniers' language rights
While the order doesn't explicitly require one bilingual paramedic per crew, it commits Ambulance New Brunswick to provide service "of equal quality" in English and French everywhere in New Brunswick.
The arbitration decision "seems to contradict, on many points, what the order of the court had said," said Doucet, who represented the Soniers in the lawsuit.
The federal Official Languages Act gives Ottawa flexibility on providing bilingual service "where numbers warrant." But New Brunswick deliberately chose to write its law so that the same standard applies everywhere in the province, he said.
"The arbitrator cannot modify the Official Languages Act or the Charter [of Rights and Freedoms] by putting in some limitations to where those rights exist."
Soniers may intervene
Doucet said the Soniers may apply to intervene in the judicial review. He said it could produce a definitive ruling on whether a union contract takes precedence over legal and constitutional language rights.
"We thought we had clarified that last November but sometimes in New Brunswick you need more clarification," Doucet said.
The McEvoy ruling "goes way beyond the interpretation of the collective agreement," he added. "It goes right down to knowing what the Official Languages Act in New Brunswick really is, and how it should be interpreted by the courts and by arbitrators."
Bourque, Ambulance New Brunswick, CUPE, and Official Languages Commissioner Katherine d'Entremont all refused to comment on the case Friday.