Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill S-209, An Act to amend the Official Languages Act (communications with and services to the public) was tabled in the Senate by the Honourable Maria Chaput on 8 December 2015. When Senator Chaput left the Senate, the Honourable Raymonde Gagné took over sponsorship of the bill, which was referred to the Standing Senate Committee on Official Languages on 17 November 2016.
This is the fourth time that this bill has been introduced in Parliament. Earlier versions died on the Order Paper: Bill S-220, tabled during the 3rd Session of the 40th Parliament; Bill S-211, tabled during the 1st Session of the 41st Parliament; and Bill S-205, tabled during the 2nd Session of the 41st Parliament. The content changed significantly between the first and second versions, after several months of consultations with interested members of the public. The content of the current version is the same as that of the second and third versions.
The only parliamentary committee to study the amendments moved by Senator Chaput was the Standing Senate Committee on Official Languages, which held 10 meetings and heard from 35 witnesses during consideration of Bill S-205.1
Generally speaking, Bill S-209 brings amendments to four aspects of the Official Languages Act (OLA): regulation, supply of services, rights of the travelling public, and consultation. In particular, the bill makes a series of amendments to the OLA to clarify the duties of the federal government provided for in Part IV, which deals with communications with and services to the public, and Part XI, which deals with such areas as consultations and proposed regulations. Those parts have not been amended since being passed in 1988.
The first OLA was passed in 1969, in response to the recommendations of the Royal Commission on Bilingualism and Biculturalism. Its purpose was to give equal status to English and French, not only in Parliament and in the federal courts, but also throughout the federal government. It imposed a number of duties on federal departments and agencies in relation to communications and services in the two official languages.
In 1982, the Canadian Charter of Rights and Freedoms gave the Canadian public the “right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French.”2 That right also applies to federal institutions where there is “significant demand” for one of the official languages or where it is justified by the “nature of the office” (Charter, section 20(1)). Moreover, “English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada” (Charter, section 16(1)).
These new constitutional rules forced Parliament to undertake a review of the official languages legislative framework. The 1969 OLA was therefore replaced by a new Official Languages Act,3 which came into force in 1988. According to section 2 of the 1988 OLA, its purpose is to:
- ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
- support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
- set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Section 82 of the OLA provides that, in the event of any inconsistency, the provisions of parts I to V – which deal with proceedings of Parliament (Part I), legislative and other instruments (Part II), administration of justice (Part III), communications with and services to the public (Part IV) and language of work (Part V) – prevail over any other Act of Parliament or regulation, except the Canadian Human Rights Act. The OLA sets out the government’s commitment to the advancement of official language minority communities and promoting linguistic duality (Part VII). It also includes a series of general provisions involving, among others, consultations and proposed regulation (Part XI).
The Official Languages (Communications with and Services to the Public) Regulations4 were made in December 1991 and came into force in 1992. The effect of the regulations is to clarify the language duties of federal agencies and specify the circumstances in which Canadians may expect to be served in the official language of their choice.
The rules relating to “significant demand” include provisions based on data relating to the size of minority communities taken from the most recent decennial census. A series of statistical formulas is used to prepare a list of offices and points of service that must offer bilingual services. The rules relating to “significant demand” also include provisions based on the volume of demand in the minority language when demographic data are not relevant.
With respect to the “nature of the office,” the regulations apply to specific federal services regardless of the level of demand. The provisions deal, in particular, with signage regarding health, safety and security, national parks, embassies, main federal offices located in the Northwest Territories and Yukon, and national and international events that are open to the public.
With respect to services to the travelling public, the regulations apply to airports, railway stations and federal terminals where there is “significant demand.” They also set out obligations for third parties under contract for such services as those offered by restaurants, car rental agencies, foreign exchange offices and services provided by air carriers in those locations.
Every 10 years, since 1991, the federal government has reviewed the administration of the regulations, although no statutory time frame has been provided. The purpose of the review, called the Official Languages Regulations Re-application Exercise, is to determine the locations where there is a duty to provide services in both official languages under the “significant demand” criterion.
The last review of this kind took place after the release of the 2001 Census data. It took six years, and was completed by 31 March 2007. The Treasury Board Secretariat is currently reviewing the regulations based on the 2011 Census data, and was to complete the review in 2016.5 The final results of the entire exercise were to be announced in early 2017.6 In the meantime, on 17 November 2016, the government imposed “a moratorium on bilingual offices that were slated to become unilingual. They will continue to provide services to the public in both official languages until new and modernized regulations are in place.”7
Data for linguistic minority populations by first official language spoken are used to determine the linguistic obligations of federal offices in every region of the country.8 Each federal office must evaluate its linguistic obligations based on these data. The information produced by the Official Languages Regulations Re-application Exercise is then compiled in Burolis, the database that determines linguistic obligations by region, locality, census metropolitan area and census subdivision.9
Since 1971, a census of the population has been taken every five years. The Official Languages (Communications with and Services to the Public) Regulations state that a review of their application is required based on data from the most recent decennial census. Statistics Canada collects data about language, the main categories being as follows:
Since the enactment of the regulations, the demographic and sociolinguistic context in Canada has undergone numerous changes. Several official language minority communities are faced with such factors as pressures to assimilate, rural exodus, immigration, intermarriage and the presence of community institutions (e.g., schools) that demonstrate a degree of vitality within these communities. The statistical calculations provided for the application of the regulations do not allow changes in these factors to be accounted for.
Bill S-209 contains eight clauses. It essentially deals with linguistic services to be offered to the public. In fact, it is apparent that its primary objectives are to strengthen the connection between the delivery of services and the development of official language minority communities, and to modernize the OLA to reflect changes in Canadian society.
Clause 1 of the bill amends section 3 of the OLA by adding the definition of the expression “metropolitan area,” an area classified by Statistics Canada, in its most recent census of Canada, as “a census metropolitan area.” This new definition will be used to frame the language duties regarding services offered to the travelling public provided for in clause 2 of the bill. At present, to be considered a census metropolitan area, an area must have, according to the Statistics Canada definition, a population of at least 100,000, of which 50,000 or more live in the urban core.15
Clause 2 of the bill adds new section 23(1.1) to the OLA. This section guarantees access by members of the public to services in the official language of their choice at major transportation hubs, particularly railway stations and airports serving metropolitan areas and the federal, provincial and territorial capitals (sections 23(1.1)(a) and 23(1.1)(b)), as well as ferry terminals serving at least 100,000 passengers annually (section 23(1.1)(c)). Lastly, section 23(1.1)(d) allows for other transportation facilities to be prescribed by regulation.
At present, the regulations provide for services to be offered in airports, railway stations and ferry terminals where “over a year at least 5 per cent of the demand from the public for services is in that language.”16 Only sections 23(1.1)(a) and 23(1.1)(b) amend the current provisions of the regulations dealing with this subject, and they will result in a greater number of airports and railway stations being designated as bilingual. The two sections apply to airports belonging to the National Airports System17 and to railway stations under the jurisdiction of VIA Rail Canada18 that are located in a metropolitan area or serving a capital. According to Burolis, 16 of the 21 airports and 60 of the 86 stations listed are already designated as bilingual.19 Based on available data and according to witnesses heard by the committee,20
Section 23(1.1)(c) essentially maintains the same wording used for transportation terminals in section 7(4)(b) of the regulations.
Clause 3 of the bill adds to the OLA, through new section 23.1, the concepts of services to the public of “equal quality” and of “consultations.” The principle of substantive equality assumes that services can be offered with different content or using different delivery methods to ensure that the minority has access to services of quality equal to that enjoyed by the majority. Developing and implementing such services may necessitate consultation with the communities in question.21 The objective of clause 3 is to codify, in the OLA, principles recognized in Canadian case law.22
New section 23.1(1) creates the duty for federal institutions to take every reasonable measure to ensure that English-speaking and French-speaking Canadians receive services of equal quality. New section 23.1(2) introduces a sort of partnership between federal institutions and official language minority communities with regard to the quality of the services offered. Under this new partnership, these communities must be consulted in order to facilitate service evaluation and to better monitor service quality. The consultation process is to be prescribed by regulation.
Clause 4 of the bill amends section 24(1) of the OLA. Currently, section 24 imposes language duties on offices of federal institutions where the nature of those offices relates to “the health, safety or security of members of the public,” “the location of the office or facility” or “the national or international mandate of the office.” In other words, an office of a federal institution is required to provide services in both official languages with respect to, for example, emergency services or a national park or a consular post. New section 24(1)(a) specifies that those requirements apply in any circumstances that relate not only to the national or international mandate of, but also to the services of the office.
New sections 24(1)(a.1) and 24(1)(a.2) extend those language requirements to:
A regulation of the Governor in Council determines which circumstances are prescribed by the Act.
The objective of clause 4 of the bill is to strengthen the connection between the delivery of services and the development of official language minority communities. To achieve this objective, the Act establishes qualitative criteria – such as services offered to an official language minority located in a particular geographic region or in a linguistic assimilation situation – to be considered when determining the circumstances in which the public may expect to receive services in either official language.
The Governor in Council still has discretion to determine the situations in which the public may expect to receive services in both official languages. The Governor in Council may also consider “any other circumstances prescribed by regulation of the Governor in Council where, due to the nature of the office or facility, it is reasonable that communications with and services from that office or facility be available in both official languages” as set out in section 24(1)(b) of the OLA, which remains unchanged.
Section 32 of the OLA establishes the authority of the Governor in Council to make regulations in respect of Part IV of the Act. Clause 5 of the bill amends section 32 in two ways.
First, the amendments provided in clause 5(1) ensure the consistency of section 32 with other sections amended by the bill. Amended sections 32(1)(d) and 32(1)(e) reflect the new provisions introduced by clauses 2 and 3 of the bill; new section 32(1)(f) relates to the changes made in clause 4 of the bill; and new section 32(1)(g) gives to the Governor in Council the power to prescribe the manner in which the regulations are to be reviewed, as provided for in clause 6 of the bill.
Second, clause 5(2) replaces sections 32(2)(a) and 32(2)(b) of the OLA by adding two criteria that must be considered when prescribing the circumstances in which federal institutions must offer their services and communications in both official languages (in accordance with sections 32(1)(a) and 32(1)(b) of the OLA). These criteria are:
The variables currently used to calculate “significant demand” are exclusively quantitative (size of the minority population, relative size of the minority population in a given region, and percentage of demand for services in the minority language). New sections 32(2)(a) and 32(2)(b) add other qualitative variables such as institutional vitality. The bill does not provide a clear definition of this variable; however, one can understand the underpinnings by reading Senator Chaput’s speech at the second reading stage of Bill S-211:
First, institutional vitality has to be defined. This definition will have to be made in consultation with the official language communities. I personally believe that education has a significant place in the assessment of the institutional vitality of a community, because the presence of a school is the most important indicator that a community is vital and viable in the long term. I also believe that culture, health, social services and economic development are important factors. The different indicators will have to be weighed in committee and in consultation with the affected communities.
It should be noted that the concept of institutional vitality is not entirely new and its definition is far from abstract. In addition to being recognized as an important factor in Canadian jurisprudence, it has already been the subject of various regulations within the government.23
During parliamentary committee study of Bill S-205, the Commissioner of Official Languages said that the criterion of institutional vitality is “extremely important” and that it is calculated based on the presence of schools, community centres, community media and other community institutions, such as associations of lawyers or business people.24
The amendment to section 32(2) also redefines the concept of “official language minority population” to take into account any person who can communicate in the minority language. At present, the first-official-language-spoken variable is used to calculate data associated with the administration of the regulations.
It is useful to know that the current OLA (in section 32(2)) contains a criterion on the particular characteristics of the minority population that can be used to determine the circumstances for deeming that there is “significant demand” for services to be offered in one of the official languages. However, the Governor in Council has never used that criterion in making the regulations.
Clause 6 of the bill adds new section 32.1 to the OLA, under which a review of all regulations made under the OLA, including the regulations in place at the time, shall be undertaken every 10 years by the President of the Treasury Board, following publication of the census data. This duty has been in force since the 1991 Census. According to new section 32.1(1), the review shall be undertaken in the 60 days following the publication of the decennial census and completed within one year. New section 32.1(2) provides that the review shall be conducted in consultation with the official language minority communities.
The intent in adding this provision is to circumscribe the time for reviewing the regulations made under the OLA and to take into account the specific needs of anglophone and francophone minorities.
Clause 7 of the bill adds new sections 86.1 and 86.2 to the OLA. New section 86.1 follows section 86, which deals with the publication of regulations in the Canada Gazette, and proposes a definition of the expression “regulation” for the purposes of sections 86.1 and 86.2. This definition introduces a reporting mechanism requiring the government to notify Parliament and the public when it intends to:
In either case, the President of the Treasury Board is required to table a draft of the proposed regulation before each House of Parliament at least 30 days before its publication in the Canada Gazette (section 86.1(2)).
New section 86.2 sets out the manner in which the proposed regulations are to be published in the Canada Gazette at least 30 days before the date on which they are to come into force. Only the days on which both Houses of Parliament sit are to be counted when calculating the 30-day period. In addition to this duty, new section 86.2(1) provides a duty to publish proposed regulations, “wherever possible”:
in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that language and in the other official language in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that other language.
New section 86.2(2) exempts the government from the obligation to publish more than once a new draft regulation that has previously been published in accordance with section 86.2(1), even if the proposed regulation has been amended as a result of representation made by interested persons.
The obligations under clause 7 of the bill are designed to facilitate the evaluation of services offered by keeping Parliament, the public and official language minority communities informed about any removal or reduction of those services. English and French linguistic minorities would then have an opportunity to express their views on the provision of services and the possible effects on community vitality.
Clause 8 of the bill provides that the new Act comes into force 180 days after the day on which it receives Royal Assent.
Most of the testimony heard in committee during consideration of the previous, identical version of the bill (S-205) supported modernizing the regulations and changing the criteria used to calculate “significant demand”; however, some institutions covered by the OLA expressed concern about enforcement of that bill in regions where a bilingual workforce is less common than in others.25
At the second reading stage in the Senate of the previous, identical versions of bills S-211 and S-205, questions were raised about the financial impacts of the bills. Some senators also questioned an unexpected increase in the proportion of services to be offered to the public in both official languages. Their concerns can be summarized as follows:
Responsible management of public funds demands that federal services respond to real needs. This bill would undermine that process. By adopting amendments to this bill, we would be causing an increase in the offer of service where the numbers do not warrant it. Speaking of numbers, there is a matter of associated costs, which would likely be significant were this legislation to be adopted.26
On 17 August 2016, the Parliamentary Budget Officer issued a cost estimate for Bill S-209, specifically with regard to the changes to the criterion of “significant demand.”27 He estimated one-time expenses of $146 million and on-going expenses of $9 million to ensure the implementation of these provisions.28 It is, however, impossible to assess what these estimated additional costs represent in relation to the real costs of delivering services in both official languages in every federal institution, since these data are not compiled systematically at the federal level.
At the second reading stage of Bill S-209, other questions were raised about the applicability of the bill.29
In his Annual Report 2015–2016, tabled in Parliament on 19 May 2016, the Commissioner of Official Languages underlined the importance of completing the study of Bill S-209 and reviewing the criteria for defining “significant demand.”30 He also made a recommendation on the need to review Part IV of the OLA and evaluate the effectiveness and efficiency of the policies and directives relating to its implementation.
Based on the data from the first two phases of the Official Languages Regulations Re-application Exercise, 84 of some 9,000 federal offices were subject to new bilingualism obligations, while 74 offices lost their bilingual designation.31 Treasury Board guidelines provide for a transition period so that communities can be consulted in the event that a bilingual office, following the application of new census data, becomes unilingual.32
The third and final phase of the Official Languages Regulations Re-application Exercise is under way. It determines the obligations of offices providing services to a restricted or identifiable clientele or ones subject to special circumstances provided for in the regulations (e.g., the travelling public). The final results for the entire exercise were to be announced early in 2017.33 In the meantime, on 17 November 2016, the government imposed “a moratorium on bilingual offices that were slated to become unilingual.”34 According to a backgrounder made public the same day, bilingual services will be maintained by means of an amendment to the Directive on the Implementation of the Official Languages (Communications with and Services to the Public) Regulations:
The directive will be amended to enable approximately 250 offices that are still involved in this exercise to continue to provide bilingual services to the public. This responds to stakeholder concerns about a reduction in the number of bilingual offices pending the review of the Regulations.35
In 2013, a complaint was filed with the Commissioner of Official Languages on the way that members of francophone minority communities are counted36 – a concern addressed in clause 5(2). The Société franco-manitobaine believes that the calculation method under the current regulations:
During his appearance before the committee, the Chief Executive Officer of the Société franco-manitobaine said that several of the issues raised in this complaint “are exactly those issues that Bill S-205 is trying to address.”38 The Commissioner of Official Languages presented his final report to the complainant in May 2015. Follow-up is taking place to determine whether the Treasury Board Secretariat took steps to undertake “a thorough review of the impact of the Official Languages Regulations on the development and vitality of the official language communities affected by the results of the re-application exercise,” as the Commissioner recommended.39
At the same time, a legal challenge was brought before the Federal Court. In February 2015, the Société franco-manitobaine filed a notice of application challenging certain provisions of the regulations to bring them into compliance with section 20(1)(a) of the Charter. The provisions being challenged pertain to the calculation of “significant demand,” the definition of English and French linguistic minority populations and the circumstances surrounding the enforcement of the obligations in section 22 of the OLA.40 The challenge will be heard in Winnipeg on 10 April 2017.
In a series of court cases brought by VIA Rail employees against their employer, the Federal Court recognized in 2009 that
neither the Regulations nor Burolis can supersede or restrain the OLA or the Charter, but must always be interpreted and applied in a manner consistent with the general objectives of the preamble of the OLA and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism.41
According to the mandate letters to federal ministers in November 2015, the Minister of Canadian Heritage and the President of the Treasury Board must ensure that government services are delivered in “full compliance” with the OLA.42 Appearing before the Standing Senate Committee on Official Languages in the spring of 2016, the Minister of Canadian Heritage and the President of the Treasury Board recognized that new technologies are one of the issues to consider in the broader conversation about the way federal institutions provide their services to and communicate with the public.43 The President of the Treasury Board went further by:
On 17 November 2016, the two ministers made a joint announcement on the review of the regulations and the upcoming consultations with parliamentarians, interested parties and the public.45 According to the backgrounder accompanying the announcement, the review of the regulations will have the following objectives:
According to the timeline that has been established, the new regulations are to be adopted in the spring of 2019. In the meantime, study of Bill S-209 continues in Parliament, in parallel with the measures established by the government.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(2.1 MB, 56 pages), Ottawa, 2015, p 7. [ Return to text ] (211 kB, 9 pages), Ottawa, 17 August 2016. [ Return to text ] (4 MB, 84 pages), Ottawa, 2016, pp. 19–21. [ Return to text ]Bill S-209, An Act to amend the Official Languages Act (communications with and services to the public) was tabled in the Senate by the Honourable Maria Chaput on 8 December 2015. When Senator Chaput left the Senate, the Honourable Raymonde Gagné took over sponsorship of the bill, which was referred to the Standing Senate Committee on Official Languages on 17 November 2016.
This is the fourth time that this bill has been introduced in Parliament. Earlier versions died on the Order Paper: Bill S-220, tabled during the 3rd Session of the 40th Parliament; Bill S-211, tabled during the 1st Session of the 41st Parliament; and Bill S-205, tabled during the 2nd Session of the 41st Parliament. The content changed significantly between the first and second versions, after several months of consultations with interested members of the public. The content of the current version is the same as that of the second and third versions.
The only parliamentary committee to study the amendments moved by Senator Chaput was the Standing Senate Committee on Official Languages, which held 10 meetings and heard from 35 witnesses during consideration of Bill S-205.1
Generally speaking, Bill S-209 brings amendments to four aspects of the Official Languages Act (OLA): regulation, supply of services, rights of the travelling public, and consultation. In particular, the bill makes a series of amendments to the OLA to clarify the duties of the federal government provided for in Part IV, which deals with communications with and services to the public, and Part XI, which deals with such areas as consultations and proposed regulations. Those parts have not been amended since being passed in 1988.
The first OLA was passed in 1969, in response to the recommendations of the Royal Commission on Bilingualism and Biculturalism. Its purpose was to give equal status to English and French, not only in Parliament and in the federal courts, but also throughout the federal government. It imposed a number of duties on federal departments and agencies in relation to communications and services in the two official languages.
In 1982, the Canadian Charter of Rights and Freedoms gave the Canadian public the “right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French.”2 That right also applies to federal institutions where there is “significant demand” for one of the official languages or where it is justified by the “nature of the office” (Charter, section 20(1)). Moreover, “English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada” (Charter, section 16(1)).
These new constitutional rules forced Parliament to undertake a review of the official languages legislative framework. The 1969 OLA was therefore replaced by a new Official Languages Act,3 which came into force in 1988. According to section 2 of the 1988 OLA, its purpose is to:
- ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
- support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
- set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
Section 82 of the OLA provides that, in the event of any inconsistency, the provisions of parts I to V – which deal with proceedings of Parliament (Part I), legislative and other instruments (Part II), administration of justice (Part III), communications with and services to the public (Part IV) and language of work (Part V) – prevail over any other Act of Parliament or regulation, except the Canadian Human Rights Act. The OLA sets out the government’s commitment to the advancement of official language minority communities and promoting linguistic duality (Part VII). It also includes a series of general provisions involving, among others, consultations and proposed regulation (Part XI).
The Official Languages (Communications with and Services to the Public) Regulations4 were made in December 1991 and came into force in 1992. The effect of the regulations is to clarify the language duties of federal agencies and specify the circumstances in which Canadians may expect to be served in the official language of their choice.
The rules relating to “significant demand” include provisions based on data relating to the size of minority communities taken from the most recent decennial census. A series of statistical formulas is used to prepare a list of offices and points of service that must offer bilingual services. The rules relating to “significant demand” also include provisions based on the volume of demand in the minority language when demographic data are not relevant.
With respect to the “nature of the office,” the regulations apply to specific federal services regardless of the level of demand. The provisions deal, in particular, with signage regarding health, safety and security, national parks, embassies, main federal offices located in the Northwest Territories and Yukon, and national and international events that are open to the public.
With respect to services to the travelling public, the regulations apply to airports, railway stations and federal terminals where there is “significant demand.” They also set out obligations for third parties under contract for such services as those offered by restaurants, car rental agencies, foreign exchange offices and services provided by air carriers in those locations.
Every 10 years, since 1991, the federal government has reviewed the administration of the regulations, although no statutory time frame has been provided. The purpose of the review, called the Official Languages Regulations Re-application Exercise, is to determine the locations where there is a duty to provide services in both official languages under the “significant demand” criterion.
The last review of this kind took place after the release of the 2001 Census data. It took six years, and was completed by 31 March 2007. The Treasury Board Secretariat is currently reviewing the regulations based on the 2011 Census data, and was to complete the review in 2016.5 The final results of the entire exercise were to be announced in early 2017.6 In the meantime, on 17 November 2016, the government imposed “a moratorium on bilingual offices that were slated to become unilingual. They will continue to provide services to the public in both official languages until new and modernized regulations are in place.”7
Data for linguistic minority populations by first official language spoken are used to determine the linguistic obligations of federal offices in every region of the country.8 Each federal office must evaluate its linguistic obligations based on these data. The information produced by the Official Languages Regulations Re-application Exercise is then compiled in Burolis, the database that determines linguistic obligations by region, locality, census metropolitan area and census subdivision.9
Since 1971, a census of the population has been taken every five years. The Official Languages (Communications with and Services to the Public) Regulations state that a review of their application is required based on data from the most recent decennial census. Statistics Canada collects data about language, the main categories being as follows:
Since the enactment of the regulations, the demographic and sociolinguistic context in Canada has undergone numerous changes. Several official language minority communities are faced with such factors as pressures to assimilate, rural exodus, immigration, intermarriage and the presence of community institutions (e.g., schools) that demonstrate a degree of vitality within these communities. The statistical calculations provided for the application of the regulations do not allow changes in these factors to be accounted for.
Bill S-209 contains eight clauses. It essentially deals with linguistic services to be offered to the public. In fact, it is apparent that its primary objectives are to strengthen the connection between the delivery of services and the development of official language minority communities, and to modernize the OLA to reflect changes in Canadian society.
Clause 1 of the bill amends section 3 of the OLA by adding the definition of the expression “metropolitan area,” an area classified by Statistics Canada, in its most recent census of Canada, as “a census metropolitan area.” This new definition will be used to frame the language duties regarding services offered to the travelling public provided for in clause 2 of the bill. At present, to be considered a census metropolitan area, an area must have, according to the Statistics Canada definition, a population of at least 100,000, of which 50,000 or more live in the urban core.15
Clause 2 of the bill adds new section 23(1.1) to the OLA. This section guarantees access by members of the public to services in the official language of their choice at major transportation hubs, particularly railway stations and airports serving metropolitan areas and the federal, provincial and territorial capitals (sections 23(1.1)(a) and 23(1.1)(b)), as well as ferry terminals serving at least 100,000 passengers annually (section 23(1.1)(c)). Lastly, section 23(1.1)(d) allows for other transportation facilities to be prescribed by regulation.
At present, the regulations provide for services to be offered in airports, railway stations and ferry terminals where “over a year at least 5 per cent of the demand from the public for services is in that language.”16 Only sections 23(1.1)(a) and 23(1.1)(b) amend the current provisions of the regulations dealing with this subject, and they will result in a greater number of airports and railway stations being designated as bilingual. The two sections apply to airports belonging to the National Airports System17 and to railway stations under the jurisdiction of VIA Rail Canada18 that are located in a metropolitan area or serving a capital. According to Burolis, 16 of the 21 airports and 60 of the 86 stations listed are already designated as bilingual.19 Based on available data and according to witnesses heard by the committee,20
Section 23(1.1)(c) essentially maintains the same wording used for transportation terminals in section 7(4)(b) of the regulations.
Clause 3 of the bill adds to the OLA, through new section 23.1, the concepts of services to the public of “equal quality” and of “consultations.” The principle of substantive equality assumes that services can be offered with different content or using different delivery methods to ensure that the minority has access to services of quality equal to that enjoyed by the majority. Developing and implementing such services may necessitate consultation with the communities in question.21 The objective of clause 3 is to codify, in the OLA, principles recognized in Canadian case law.22
New section 23.1(1) creates the duty for federal institutions to take every reasonable measure to ensure that English-speaking and French-speaking Canadians receive services of equal quality. New section 23.1(2) introduces a sort of partnership between federal institutions and official language minority communities with regard to the quality of the services offered. Under this new partnership, these communities must be consulted in order to facilitate service evaluation and to better monitor service quality. The consultation process is to be prescribed by regulation.
Clause 4 of the bill amends section 24(1) of the OLA. Currently, section 24 imposes language duties on offices of federal institutions where the nature of those offices relates to “the health, safety or security of members of the public,” “the location of the office or facility” or “the national or international mandate of the office.” In other words, an office of a federal institution is required to provide services in both official languages with respect to, for example, emergency services or a national park or a consular post. New section 24(1)(a) specifies that those requirements apply in any circumstances that relate not only to the national or international mandate of, but also to the services of the office.
New sections 24(1)(a.1) and 24(1)(a.2) extend those language requirements to:
A regulation of the Governor in Council determines which circumstances are prescribed by the Act.
The objective of clause 4 of the bill is to strengthen the connection between the delivery of services and the development of official language minority communities. To achieve this objective, the Act establishes qualitative criteria – such as services offered to an official language minority located in a particular geographic region or in a linguistic assimilation situation – to be considered when determining the circumstances in which the public may expect to receive services in either official language.
The Governor in Council still has discretion to determine the situations in which the public may expect to receive services in both official languages. The Governor in Council may also consider “any other circumstances prescribed by regulation of the Governor in Council where, due to the nature of the office or facility, it is reasonable that communications with and services from that office or facility be available in both official languages” as set out in section 24(1)(b) of the OLA, which remains unchanged.
Section 32 of the OLA establishes the authority of the Governor in Council to make regulations in respect of Part IV of the Act. Clause 5 of the bill amends section 32 in two ways.
First, the amendments provided in clause 5(1) ensure the consistency of section 32 with other sections amended by the bill. Amended sections 32(1)(d) and 32(1)(e) reflect the new provisions introduced by clauses 2 and 3 of the bill; new section 32(1)(f) relates to the changes made in clause 4 of the bill; and new section 32(1)(g) gives to the Governor in Council the power to prescribe the manner in which the regulations are to be reviewed, as provided for in clause 6 of the bill.
Second, clause 5(2) replaces sections 32(2)(a) and 32(2)(b) of the OLA by adding two criteria that must be considered when prescribing the circumstances in which federal institutions must offer their services and communications in both official languages (in accordance with sections 32(1)(a) and 32(1)(b) of the OLA). These criteria are:
The variables currently used to calculate “significant demand” are exclusively quantitative (size of the minority population, relative size of the minority population in a given region, and percentage of demand for services in the minority language). New sections 32(2)(a) and 32(2)(b) add other qualitative variables such as institutional vitality. The bill does not provide a clear definition of this variable; however, one can understand the underpinnings by reading Senator Chaput’s speech at the second reading stage of Bill S-211:
First, institutional vitality has to be defined. This definition will have to be made in consultation with the official language communities. I personally believe that education has a significant place in the assessment of the institutional vitality of a community, because the presence of a school is the most important indicator that a community is vital and viable in the long term. I also believe that culture, health, social services and economic development are important factors. The different indicators will have to be weighed in committee and in consultation with the affected communities.
It should be noted that the concept of institutional vitality is not entirely new and its definition is far from abstract. In addition to being recognized as an important factor in Canadian jurisprudence, it has already been the subject of various regulations within the government.23
During parliamentary committee study of Bill S-205, the Commissioner of Official Languages said that the criterion of institutional vitality is “extremely important” and that it is calculated based on the presence of schools, community centres, community media and other community institutions, such as associations of lawyers or business people.24
The amendment to section 32(2) also redefines the concept of “official language minority population” to take into account any person who can communicate in the minority language. At present, the first-official-language-spoken variable is used to calculate data associated with the administration of the regulations.
It is useful to know that the current OLA (in section 32(2)) contains a criterion on the particular characteristics of the minority population that can be used to determine the circumstances for deeming that there is “significant demand” for services to be offered in one of the official languages. However, the Governor in Council has never used that criterion in making the regulations.
Clause 6 of the bill adds new section 32.1 to the OLA, under which a review of all regulations made under the OLA, including the regulations in place at the time, shall be undertaken every 10 years by the President of the Treasury Board, following publication of the census data. This duty has been in force since the 1991 Census. According to new section 32.1(1), the review shall be undertaken in the 60 days following the publication of the decennial census and completed within one year. New section 32.1(2) provides that the review shall be conducted in consultation with the official language minority communities.
The intent in adding this provision is to circumscribe the time for reviewing the regulations made under the OLA and to take into account the specific needs of anglophone and francophone minorities.
Clause 7 of the bill adds new sections 86.1 and 86.2 to the OLA. New section 86.1 follows section 86, which deals with the publication of regulations in the Canada Gazette, and proposes a definition of the expression “regulation” for the purposes of sections 86.1 and 86.2. This definition introduces a reporting mechanism requiring the government to notify Parliament and the public when it intends to:
In either case, the President of the Treasury Board is required to table a draft of the proposed regulation before each House of Parliament at least 30 days before its publication in the Canada Gazette (section 86.1(2)).
New section 86.2 sets out the manner in which the proposed regulations are to be published in the Canada Gazette at least 30 days before the date on which they are to come into force. Only the days on which both Houses of Parliament sit are to be counted when calculating the 30-day period. In addition to this duty, new section 86.2(1) provides a duty to publish proposed regulations, “wherever possible”:
in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that language and in the other official language in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that other language.
New section 86.2(2) exempts the government from the obligation to publish more than once a new draft regulation that has previously been published in accordance with section 86.2(1), even if the proposed regulation has been amended as a result of representation made by interested persons.
The obligations under clause 7 of the bill are designed to facilitate the evaluation of services offered by keeping Parliament, the public and official language minority communities informed about any removal or reduction of those services. English and French linguistic minorities would then have an opportunity to express their views on the provision of services and the possible effects on community vitality.
Clause 8 of the bill provides that the new Act comes into force 180 days after the day on which it receives Royal Assent.
Most of the testimony heard in committee during consideration of the previous, identical version of the bill (S-205) supported modernizing the regulations and changing the criteria used to calculate “significant demand”; however, some institutions covered by the OLA expressed concern about enforcement of that bill in regions where a bilingual workforce is less common than in others.25
At the second reading stage in the Senate of the previous, identical versions of bills S-211 and S-205, questions were raised about the financial impacts of the bills. Some senators also questioned an unexpected increase in the proportion of services to be offered to the public in both official languages. Their concerns can be summarized as follows:
Responsible management of public funds demands that federal services respond to real needs. This bill would undermine that process. By adopting amendments to this bill, we would be causing an increase in the offer of service where the numbers do not warrant it. Speaking of numbers, there is a matter of associated costs, which would likely be significant were this legislation to be adopted.26
On 17 August 2016, the Parliamentary Budget Officer issued a cost estimate for Bill S-209, specifically with regard to the changes to the criterion of “significant demand.”27 He estimated one-time expenses of $146 million and on-going expenses of $9 million to ensure the implementation of these provisions.28 It is, however, impossible to assess what these estimated additional costs represent in relation to the real costs of delivering services in both official languages in every federal institution, since these data are not compiled systematically at the federal level.
At the second reading stage of Bill S-209, other questions were raised about the applicability of the bill.29
In his Annual Report 2015–2016, tabled in Parliament on 19 May 2016, the Commissioner of Official Languages underlined the importance of completing the study of Bill S-209 and reviewing the criteria for defining “significant demand.”30 He also made a recommendation on the need to review Part IV of the OLA and evaluate the effectiveness and efficiency of the policies and directives relating to its implementation.
Based on the data from the first two phases of the Official Languages Regulations Re-application Exercise, 84 of some 9,000 federal offices were subject to new bilingualism obligations, while 74 offices lost their bilingual designation.31 Treasury Board guidelines provide for a transition period so that communities can be consulted in the event that a bilingual office, following the application of new census data, becomes unilingual.32
The third and final phase of the Official Languages Regulations Re-application Exercise is under way. It determines the obligations of offices providing services to a restricted or identifiable clientele or ones subject to special circumstances provided for in the regulations (e.g., the travelling public). The final results for the entire exercise were to be announced early in 2017.33 In the meantime, on 17 November 2016, the government imposed “a moratorium on bilingual offices that were slated to become unilingual.”34 According to a backgrounder made public the same day, bilingual services will be maintained by means of an amendment to the Directive on the Implementation of the Official Languages (Communications with and Services to the Public) Regulations:
The directive will be amended to enable approximately 250 offices that are still involved in this exercise to continue to provide bilingual services to the public. This responds to stakeholder concerns about a reduction in the number of bilingual offices pending the review of the Regulations.35
In 2013, a complaint was filed with the Commissioner of Official Languages on the way that members of francophone minority communities are counted36 – a concern addressed in clause 5(2). The Société franco-manitobaine believes that the calculation method under the current regulations:
During his appearance before the committee, the Chief Executive Officer of the Société franco-manitobaine said that several of the issues raised in this complaint “are exactly those issues that Bill S-205 is trying to address.”38 The Commissioner of Official Languages presented his final report to the complainant in May 2015. Follow-up is taking place to determine whether the Treasury Board Secretariat took steps to undertake “a thorough review of the impact of the Official Languages Regulations on the development and vitality of the official language communities affected by the results of the re-application exercise,” as the Commissioner recommended.39
At the same time, a legal challenge was brought before the Federal Court. In February 2015, the Société franco-manitobaine filed a notice of application challenging certain provisions of the regulations to bring them into compliance with section 20(1)(a) of the Charter. The provisions being challenged pertain to the calculation of “significant demand,” the definition of English and French linguistic minority populations and the circumstances surrounding the enforcement of the obligations in section 22 of the OLA.40 The challenge will be heard in Winnipeg on 10 April 2017.
In a series of court cases brought by VIA Rail employees against their employer, the Federal Court recognized in 2009 that
neither the Regulations nor Burolis can supersede or restrain the OLA or the Charter, but must always be interpreted and applied in a manner consistent with the general objectives of the preamble of the OLA and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism.41
According to the mandate letters to federal ministers in November 2015, the Minister of Canadian Heritage and the President of the Treasury Board must ensure that government services are delivered in “full compliance” with the OLA.42 Appearing before the Standing Senate Committee on Official Languages in the spring of 2016, the Minister of Canadian Heritage and the President of the Treasury Board recognized that new technologies are one of the issues to consider in the broader conversation about the way federal institutions provide their services to and communicate with the public.43 The President of the Treasury Board went further by:
On 17 November 2016, the two ministers made a joint announcement on the review of the regulations and the upcoming consultations with parliamentarians, interested parties and the public.45 According to the backgrounder accompanying the announcement, the review of the regulations will have the following objectives:
According to the timeline that has been established, the new regulations are to be adopted in the spring of 2019. In the meantime, study of Bill S-209 continues in Parliament, in parallel with the measures established by the government.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(2.1 MB, 56 pages), Ottawa, 2015, p 7. [ Return to text ] (211 kB, 9 pages), Ottawa, 17 August 2016. [ Return to text ] (4 MB, 84 pages), Ottawa, 2016, pp. 19–21. [ Return to text ]© Library of Parliament