Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
On 1 March 2022, the Honourable Ginette Petitpas Taylor, Minister of Official Languages, introduced Bill C‑13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts (short title: An Act for the Substantive Equality of Canada’s Official Languages),1 in the House of Commons. A Charter Statement for Bill C‑13 was tabled on 6 April 2022.2
Bill C‑13 incorporates many of the amendments proposed to Bill C‑32, An Act to amend the Official Languages Act and to make related and consequential amendments to other Acts, tabled during the 2nd Session of the 43rd Parliament.3 Bill C‑32, which died on the Order Paper at first reading, had itself been preceded by the release, on 19 February 2021, of a reform proposal entitled English and French: Towards a Substantive Equality of Official Languages in Canada.4 The bill was also preceded by many calls from civil society, parliamentary committees and the Commissioner of Official Languages to modernize theOfficial Languages Act (OLA).5
The following list outlines some of the aspects of Bill C‑13 that are different from its predecessor, Bill C‑32:
The very first Official Languages Act was passed in 1969 in response to the recommendations of the Royal Commission on Bilingualism and Biculturalism. The purpose of the OLA was to give equal status and equal rights to the use of English and French, not only in Parliament and in the federal courts, but throughout the federal public service.
In 1982, the Canadian Charter of Rights and Freedoms (the Charter) recognized certain constitutional rights respecting official languages, which forced Parliament to revise its official languages legislative framework. The Official Languages Act of 1988 replaced the 1969 law in order to comply with the new constitutional provisions and expand its scope. This legislation is the cornerstone of Canada’s language regime.
The courts have interpreted the OLA on many occasions. They have confirmed its quasi‑constitutional status and that its main objectives are closely linked to the values and rights set out in the Constitution.7 Likewise, the courts have confirmed the remedial nature of language rights and the principle of substantive equality of the two official languages.8
Since 1988, the OLA has been amended substantively only once, in 2005, when parliamentarians decided to strengthen the binding nature of the obligations set out in Part VII of the OLA.9 As a result, federal institutions must take positive measures to enhance the vitality of official language minority communities and support and assist their development, and to foster the full recognition and use of both official languages in Canadian society. If federal institutions do not take such measures, they may be subject to complaints to the Commissioner of Official Languages and legal action.
Both before and after the 50th anniversary of the coming into force of the first Official Languages Act, calls to modernize the OLA came from all sides.
In 2017, organizations such as the Fédération des communautés francophones et acadienne du Canada (FCFA) and the Association canadienne‑française de l’Alberta highlighted the need to modernize the OLA. The Quebec Community Groups Network (QCGN) and other official language minority groups joined the cause soon after. That same year, the Standing Senate Committee on Official Languages launched a two‑year, five‑part study of the issue. Additionally, the Office of the Commissioner of Official Languages made modernizing the OLA the one and only recommendation of its annual report that year.10 In 2018, the House of Commons Standing Committee on Official Languages followed suit by conducting its own study of the issue.
In 2019, these stakeholders announced recommendations for modernizing the OLA.11 The proposed amendments ranged from broad to targeted and addressed many aspects of the legislation. A consensus emerged among the stakeholders on the following proposals:
During the 42nd Parliament, the Minister of Tourism, Official Languages and La Francophonie was tasked with beginning a review of the OLA in order to modernize it.12 After holding consultations, the federal government released a summary of stakeholder proposals in June 2019.13
During the 43rd Parliament, the federal government committed to modernizing and strengthening the OLA. This mandate was twice given to the Minister of Economic Development and Official Languages. The second time, the minister was asked to improve oversight and coordination of the implementation of the OLA across government, with the support of the President of the Treasury Board.14 In addition, the government promised to strengthen the OLA in its Speech from the Throne to open the 2nd Session of the 43rd Parliament, on 23 September 2020.15 Furthermore, Budget 2021 allocated funding of $6.4 million and $2.3 million over two years to Canadian Heritage and the Treasury Board of Canada Secretariat, respectively, to modernize the OLA.16
In the winter of 2021, the Quebec government published its own position paper on the modernization of the OLA.17
After Bill C‑32 died on the Order Paper, the government committed to reintroducing a bill to strengthen the OLA. This commitment was referenced in the Speech from the Throne on 23 November 2021, in the mandate letter for the Minister of Official Languages and the Minister responsible for the Atlantic Canada Opportunities Agency and in the Economic and Fiscal Update 2021.18 Budget 2022 included funding to implement this bill.19
On 19 February 2021, the Minister of Economic Development and Official Languages unveiled an official‑languages reform proposal intended to “establish a new linguistic balance.”20 The document, entitled English and French: Towards a Substantive Equality of Official Languages in Canada, outlines dozens of legislative, regulatory and administrative proposals based on the following guiding principles:
The Standing Senate Committee on Official Languages studied the reform proposal and released the key points stemming from its study before Bill C‑32 was introduced.22 The Senate Committee pointed out that many of the commitments in the reform proposal were in line with the recommendations contained in its final report of 2019. The FCFA and the Office of the Commissioner of Official Languages reacted positively to the reform proposal and also noted that a number of their recommendations from 2019 were reflected in the document.23
In general, the commitments to strengthening the provisions of the OLA and better implementing it were applauded. A consensus formed around recognizing the unique reality of French and its vulnerable condition, as well as advancing substantive equality of both official languages. The idea of reconciling support for Indigenous languages with support for linguistic duality was well received. The federal government’s commitment to making regulations specifically for Part VII of the OLA was also met with enthusiasm.
However, the reform proposal did raise concerns among some stakeholders, including the Office of the Commissioner of Official Languages and the QCGN.24 Their fears related to the introduction of asymmetries into the OLA, such as new duties that apply only to the French language in federally regulated private businesses, which they said could contravene the Charter principle of equal status for English and French.
Moreover, some expectations were unmet, in part because the reform proposal failed to include commitments to the following measures:
Bill C‑13, like its predecessor, includes the vast majority of the legislative changes set out in the reform proposal. In some areas, Bill C‑13 goes further than the reform document, taking into account some of the criticisms levelled by stakeholders in the months leading up to its introduction. The new bill also reflects some of the findings of the Federal Court of Appeal, which in a recent decision prescribed the interpretation of Part VII of the OLA.25
In parallel with the introduction of Bill C‑13, some provinces were in the process of amending their own language regimes.
On 13 May 2021, Bill 96, An Act respecting French, the official and common language of Québec, was introduced in the National Assembly of Québec.26 Some of the bill’s provisions, which amend multiple sections of Quebec’s Charter of the French Language,27 have a similar aim to some of the measures in Bill C‑13, notably in areas such as the linguistic obligations of federally regulated private businesses.28 At the time of writing, Bill 96 was receiving clause‑by‑clause consideration at committee stage.
In New Brunswick, the province’s Official Languages Act provides for periodic review of its provisions.29 The last review was completed in December 2021 with the tabling of a first report of the two commissioners appointed by the Government of New Brunswick to conduct the review, in which they recommend improvements to the provincial statute.30 The following month, the two commissioners tabled a second report, this time with recommendations regarding second‑language learning in the province.31 Legislative amendments may be introduced in the Legislative Assembly of New Brunswick later in 2022, but at the time of writing, the Premier had not made any commitment to do so during the current parliamentary session.32
For its part, the Ontario government, in the fall of 2018, promised to study the modernization of the French Language Services Act.33 As well, a number of private members’ bills were introduced in the Legislative Assembly of Ontario during the 1st Session of the 42nd Parliament, but no concrete changes have been made. In December 2021, the Government of Ontario updated its provincial legislation to improve certain aspects of services offered in French, establish a ministry for francophone affairs and ensure the legislation is reviewed periodically.34
In 2021–2022, the Standing Committee on Government Operations of the Legislative Assembly of the Northwest Territories undertook a statutory review of the Official Languages Act, as is required every five years by law.35 A report with recommendations of legislative amendments may be tabled in the fall of 2022.36
Bill C‑13 has 71 clauses. It amends every part of the OLA, except Part I, which deals with the parliamentary proceedings. The bill also enacts an entirely new Act, on the language of service and language of work of federally regulated private businesses in Quebec and in regions with a strong francophone presence. This new Act is entitled the Use of French in Federally Regulated Private Businesses Act (UFFRPBA).
Clause 2 of Bill C‑13 amends the wording of certain paragraphs of the preamble to the OLA to align the English and French versions and adds a reference to the territorial governments. In addition, it adds new paragraphs to the preamble to expand its scope, including to confirm the federal government’s commitment to:
Clause 3 of Bill C‑13 amends one of the OLA’s three objectives by adding a reference to the principle of protecting anglophone and francophone minorities and modifying the principle of advancing the equality of status and use of the official languages to recognize the unique reality of French. As a result, the purpose of the OLA encompasses a constitutional principle recognized by the courts – that of minority protection46 – and states that French is in a minority position relative to English in Canada and in North America, which gives the federal government reason to protect and promote its status and use.47
Clause 4 of Bill C‑13 adds provisions on government‑wide coordination of the OLA and on the minister who will take the lead in implementing it, the Minister of Canadian Heritage. This minister, in consultation with the other federal ministers, must “promote and encourage” the implementation of the OLA and the commitments set out in Part VII. This amendment partly addresses the proposals made during the debate on modernizing the OLA, when stakeholders requested that horizontal coordination of the OLA be assigned to a central agency.48 The February 2021 reform proposal set out the federal government’s intention to assign this role to a single minister to “ensure effective governance and implementation.”49
The Minister of Canadian Heritage must also work with the other relevant ministers to adopt a government‑wide official languages strategy that sets out the broad priorities for this issue. In addition, a new provision is included concerning the duty to table this strategy in Parliament and make it public. This amendment makes permanent the federal government’s practice, since 2003, of periodically developing an official languages strategy.50
Lastly, the Minister of Canadian Heritage must establish a process to implement the commitment to contribute to the enumeration of rights‑holders whose children can attend minority‑language schools under section 23 of the Charter, as outlined in new section 41(4) of the OLA. Indeed, the federal government – which is responsible for taking the census – and the provincial and territorial governments – which provide data on school attendance – must collaborate to collect this data.
Clause 6 of Bill C‑13 amends certain definitions in the OLA to correct discrepancies between the English and French versions. In addition, it adds a new definition for “business day,” which relates to the new powers assigned to the Commissioner of Official Languages (clauses 36(1) and 42).
Clause 7 of Bill C‑13 adds three principles for interpreting the OLA that are rooted in official languages case law:
Clauses 8 and 9 of Bill C‑13 change the wording of the OLA’s provisions dealing with legislative instruments, treaties and federal–provincial/territorial agreements, but do not make substantive changes. In addition, new section 10(2) of the OLA and the accompanying marginal note now refer to the territories as well.
In the debate on modernizing the OLA, stakeholders asked that obligations respecting the development, management and implementation of agreements between the federal government and provincial and territorial governments, especially as regards education, be added to the OLA. The issue of mandatory language clauses in federal–provincial/territorial agreements is still being debated.52 The reform proposal of February 2021 stated that administrative measures would be taken to improve transparency, accountability and consultation for these agreements.53
Clause 10 of Bill C‑13 adds the option of bilingual publications to the OLA’s provisions governing federal institutions’ publishing of notices, advertisements and other published matters aimed at the public. In addition, it specifies that these requirements apply to electronic versions of these publications as well.
Clause 11 of Bill C‑13 amends section 16 of the OLA to remove the exception for the Supreme Court of Canada. As a result, the court will be required to be institutionally bilingual, but all of its judges will not need to be bilingual.54 In other words, the Supreme Court judges hearing a case will now need to understand English and French without the assistance of an interpreter, as is already the case for the judges of the other federal courts. The Supreme Court may form panels of five, seven or nine judges to hear its cases.55
During the debate on modernizing the OLA, stakeholders unanimously called on the federal government to pass legislation requiring Supreme Court judges to be bilingual. The official‑languages reform proposal confirmed that the pool of potential judges who are fluent in both official languages has grown since the OLA was passed in 1988 and that recognizing the equal status of English and French in all federal courts is important.56 The proposal also acknowledged the need to ensure representation of Indigenous peoples in the country’s most powerful institutions, including the Supreme Court. As a result, it stated that the federal government “will take into account the case law on the composition and eligibility criteria of the Supreme Court in developing this proposed legislative amendment.”57
In addition, since the five‑year period provided in section 16(3) of the OLA to enable some courts to comply with the duty to ensure understanding of the official languages has already expired, clause 11 of Bill C‑13 removes the provision allowing gradual implementation of this duty.
Clause 12 of Bill C‑13 amends section 20(1) of the OLA to add a requirement respecting the simultaneous publication of federal courts’ final decisions in both official languages to include those with “precedential value.” In the reform proposal of February 2021, the federal government acknowledged that access to federal court decisions in both official languages is not guaranteed, in part because of the time it takes for translation.58 A commitment to limiting the timelines for translating decisions was one of the changes called for during the debate on modernizing the OLA, but Bill C‑13 remains silent on this issue.59 This amendment to section 20(1) of the OLA will come into force one year after the bill receives Royal Assent (clause 71(1)).
Bill C‑13 provides for only a single change to Part IV of the OLA in order to align the English and French versions of section 33 of the OLA, which concerns the making of regulations (clause 13).
Clauses 14 to 18 of Bill C‑13 amend the wording of sections 34 to 38 of the OLA, sometimes in one language and sometimes in both, concerning the language of work. As a result, the amended provisions better correspond to the wording in the other language or use contemporary terms (e.g., the English version of clause 16(2) refers to “computer systems” rather than “automated systems”).60 In the English version, the term “officers” is entirely dropped from Part V of the OLA.
The only notable change to the wording of the provisions on language of work is the one to section 36(1)(c) of the OLA concerning the minimum obligations in designated regions in order to clarify that they apply to “managers and supervisors” (clause 16(3)).
In the official‑languages reform proposal, the government stated that administrative measures would be taken to enhance the status of both official languages in the federal public service in order to achieve the following:
These changes stem in part from the findings of a 2017 report prepared for the Clerk of the Privy Council that set out proposals for improving the standing of both official languages in the federal public service.62
Clause 19 of Bill C‑13 amends section 39(2) of the OLA to refer to the OLA as a whole rather than specific parts of it, which could expand its scope.
Clause 20 of Bill C‑13 amends the wording of section 40 of the OLA, which concerns the making of regulations implementing Part VI, to better align it with language used elsewhere in the OLA.
Clause 21 of Bill C‑13 adds new commitments to those set out in section 41 of the OLA. As a result, in addition to enhancing the vitality and supporting and assisting the development of official language minority communities, as well as fostering the full recognition and use of both official languages, the federal government commits to the following:
Clause 21 of Bill C‑13 also adds provisions to new sections 41(5) to 41(10) of the OLA to specify the positive measures to be taken by federal institutions and the scope of these measures, which must:
These amendments, which were not included in Bill C‑32, were added in Bill C‑13 to take into account a January 2022 decision made in January 2022 of the Federal Court of Appeal, which clarified the interpretation of Part VII of the OLA.65 It is important to note that a federal institution must now take “the positive measures that it considers appropriate,” when before they were required to take “positive measures.” [Authors’ emphasis]
Clause 21 of Bill C‑13 outlines in new section 41(6)(c) of the OLA specific examples of areas that require support, notably:
New section 41(11) of the OLA sets out the role of the President of the Treasury Board, after consultation with the Minister of Canadian Heritage, in recommending that the Governor in Council make regulations for the implementation of Part VII. In the debate on modernizing the OLA, stakeholders unanimously called for specifying positive measures in legislation and regulations. In 2018, the Federal Court condemned the lack of implementing regulations for Part VII.67 The February 2021 reform proposal suggested developing regulations that set out the terms and conditions for positive measures.68 Accordingly, the government plans to:
When Bill C‑13 was introduced, the government reiterated its promise to adopt regulations on positive measures.70
Regarding the implementation of Part VII, new section 41(12) of the OLA clarifies that the granting of express powers, duties and functions to certain ministers do not in any way limit the duties of federal institutions.71
Clause 21 of Bill C‑13 adds to section 42 of the OLA the government’s commitment to advancing the use of both official languages in the conduct of Canada’s external affairs and to promoting French as part of Canada’s diplomatic relations.72 Additionally, the Minister of Foreign Affairs is responsible for implementing this commitment. Note that the coordination role assigned to the Minister of Canadian Heritage initially found in section 42 now appears in the purpose of the OLA, in new section 2.1(2), and extends beyond Part VII (clause 4).
Clause 21 of Bill C‑13 also adds section 42.1 to the OLA to recognize the CBC’s role in enhancing the vitality of official language minority communities and in protecting and promoting both official languages, in the context of its programming independence. In the official‑languages reform proposal, the government confirmed that it would strengthen the public broadcaster’s role as a cultural institution and its contribution to protecting and promoting French in the OLA.73
Clause 22(1) of Bill C‑13 amends section 43(1) of the OLA by replacing the measures set out in paragraphs (b) to (g) with the following:
Clause 22(2) of Bill C‑13 amends the wording of section 43(2) to specify the Minister of Canadian Heritage’s obligation to inform the public through consultations on policies and programs to advance the equality of status and use of English and French in Canadian society.
Clause 23 of Bill C‑13 adds new section 44.1 to the OLA to specify the Minister of Citizenship and Immigration’s obligation to adopt a francophone immigration policy that enhances the vitality of francophone minority communities. This policy must include objectives, targets and indicators, as well as a statement that the Government of Canada recognizes that immigration is one of the factors that contributes to maintaining or increasing the demographic weight of French linguistic minority communities in Canada.
As explained in the official‑languages reform proposal, the federal government set a goal to maintain the demographic weight of francophones outside Quebec, which is consistent with its objective of ensuring 4.4% of immigrants outside Quebec are francophones by 2023.75 However, in a study published in November 2021, the Commissioner of Official Languages pointed out that the number of permanent residents admitted outside Quebec in the past 20 years was not sufficient to achieve the federal government’s target.76 That is why Bill C‑13 adds to the OLA’s preamble that francophone immigration contributes to maintaining or increasing the demographic weight of francophone minorities.77
The reform proposal of February 2021 stated that administrative measures will be taken to:
These measures follow on those already outlined in federal strategies to enhance the vitality of francophone minority communities through immigration.79 Bill C‑13 does not provide a similar right for Quebec’s English‑speaking communities because of an agreement between the governments of Canada and Quebec, one of whose goals is to promote French in that province.80
Section 23 of Bill C‑13 will come into force on a day fixed by order of the Governor in Council (clause 71(2)).
Clause 24 of Bill C‑13 amends the wording of section 45 of the OLA to add a reference to the territorial governments. In addition, it adds section 45.1 in order of the Governor in Council to:
In sum, the amendments to Part VII assign specific duties to two new ministers (Foreign Affairs and Citizenship and Immigration) and one new institution (the CBC). They also add numerous responsibilities to those already assigned to the Minister of Canadian Heritage.
Clause 25 of Bill C‑13 adds additional responsibilities to those already assigned to the Treasury Board pursuant to Parts IV, V and VI of the OLA. Clause 25(1) adds a new obligation to section 46(1) of the OLA respecting the coordination of the policies and programs set out in section 41(5). Note that this responsibility does not apply to all of Part VII; it applies only what is set out in section 41(5) – the obligation of federal institutions to take positive measures. The Minister of Canadian Heritage maintains broad powers as regards the implementation of the general commitments set out in Part VII, including those related to contribution programs.
Clauses 25(2) and 25(3) amend the measures the Treasury Board may take to carry out its responsibilities, which are limited to making regulations implementing Parts IV, V and VI and choosing whether to delegate its powers and duties to the deputy head or other administrative head of a federal institution. Clause 25(4) adds, for greater certainty, that the delegation of powers or duties relating to Parts IV, V and VI applies only in respect of that federal institution.
Sections 46(2)(a) and 46(2)(b) of the OLA are moved to new section 46(4) of the OLA (clause 25(4)). As a result, the power to establish policies and issue directives to give effect to Parts IV, V and VI becomes a duty. The provisions on monitoring, evaluating and informing the public and employees about the implementation of Parts IV, V and VI also become duties rather than powers. In addition, the Treasury Board has a duty to establish policies and issue directives that give effect to section 41(5) of the OLA and provide information to employees of federal institutions about them. Most of the powers granted to the Treasury Board become duties rather than discretionary powers.
Clause 26 of Bill C‑13 amends the wording of section 47 of the OLA to refer to new section 46(4)(c), which addresses monitoring. It adds to section 48 of the OLA an obligation for Treasury Board to report annually on the exercise of its powers and the performance of its duties and functions, as well as the status of programs in federal institutions for which it is responsible under section 46, including on its new responsibilities regarding positive measures set out in Part VII.
Those amendments address the proposals made during the debate on modernizing the Act, when stakeholders requested that implementation of the Act be assigned to a central agency.81
Clauses 27 and 28 of Bill C‑13 correct the French versions of sections 51 and 53 of the OLA to better match the English wording.
Clause 29 of Bill C‑13 amends section 57 of the OLA to add policies to the list of items that the Commissioner of Official Languages can review, in addition to regulations and directives. This change stems from the new duties of the President of the Treasury Board.
Clause 30 of Bill C‑13 amends the heading preceding section 58 of the OLA to add compliance agreements and orders. Note that the reference to complaints is no longer in the heading.
Clause 31 corrects the English wording of section 58(2) of the OLA to better match the French wording. It adds to section 58(4) of the OLA four situations in which the Commissioner may refuse or cease to investigate a complaint, including where a compliance agreement has been reached.
Clause 32 of Bill C‑13 adjusts the wording of section 61(2) of the OLA to align the English and French versions.
Clause 33 adds alternative dispute resolution as another way of resolving a complaint. It excludes arbitration, which uses an adversarial model similar to a trial, consistent with the provisions of the new UFFRPBA, which grants the Canada Industrial Relations Board the role of adjudicator of complaints respecting language of work in the private sector. In addition, it adjusts the wording of section 62(2) of the OLA to align the English and French versions.
Clause 34 of Bill C‑13 adds policies to the list of items that the Commissioner of Official Languages can report on to the Treasury Board.
Clause 35 adds section 63.1 to the OLA to authorize the publication of portions of the Commissioner’s investigation reports, namely, the summary, findings and recommendations, while keeping the identity of complainants confidential. The Commissioner must give at least 30 business days’ notice to the deputy head of the federal institution concerned of the Commissioner’s intention to make this information public.
Clause 36 adds sections to the OLA respecting compliance agreements and orders. New section 64.1 grants the Commissioner the ability to enter into a compliance agreement containing any terms that the Commissioner considers necessary with a federal institution that is under investigation. New section 64.2 stipulates that entering into such an agreement precludes the Commissioner from taking other types of measures (e.g., orders, court remedies) and the complainant from pursuing court remedies.
This new section of the OLA will later be amended by order of the Governor in Council to specify that the ability to impose administrative monetary penalties will also be excluded in cases where a compliance agreement is entered into (clause 71(3)). New section 64.3 of the OLA provides that compliance with a compliance agreement will result in the withdrawal of any pending court applications. New section 64.4 provides that, in the case of failure to comply with a compliance agreement, the Commissioner can apply to the Federal Court for an order requiring the federal institution to comply with the agreement, a remedy or a reinstatement of proceedings. In addition, this new section authorizes the federal institution and the complainant to appear as parties to the proceedings, allows the complainant to apply for a remedy and specifies that an application to the Federal Court must be made within one year of the notice given by the Commissioner or any longer period the court allows.
New section 64.5 of the OLA grants the Commissioner the ability to make an order, including after an investigation concerning Parts IV and V of the OLA or if the Commissioner has made recommendations regarding an identical contravention in the past to no effect. This section also provides that the Commissioner must first invite the federal institution concerned to enter into a compliance agreement. It stipulates that the order may include any conditions the Commissioner deems appropriate and requires the Commissioner to notify the federal institution before making the order and allow it 20 days to respond. The institution concerned may either indicate the action taken or the reasons why no action has been taken, or enter into a compliance agreement with the Commissioner. The latter must give a notice when issuing the order and inform the parties of their recourse rights. The order takes effect on the 31st business day after receipt of the notice, which is deemed to have taken place on the 5th business day after the date of the notice.
New section 64.6 specifies that the order made by the Commissioner may, if necessary, be filed with the Federal Court and that, once it is filed, it carries the same weight as though it had been made by a Federal Court judge. The Commissioner therefore has the same remedies as the court would have to enforce the order should the federal institution not comply with it.
Clause 37 of Bill C‑13 adds new sections 65.1 and 65.2 to the OLA, and establishes an administrative monetary penalty system.82 These new sections add two definitions that apply to Crown corporations or corporations subject to the OLA under another Act of Parliament that:
New section 65.3 of the OLA specifies that the purpose of a penalty is to promote compliance with Part VI and not to punish.
According to new section 65.4 of the OLA, regulations may be made to designate which provisions of Part IV or its regulations will be subject to administrative monetary penalties if contravened. Such regulations may also fix the amount of the penalty in respect of each violation. A range of penalties may also be fixed, in which case the criteria set out in new section 65.4(3) shall be taken into account in determining the amount of the penalty. The maximum amount for the administrative monetary penalties isfixed at $25,000 and is subject to regulations. The regulations will address the service of documents required, establish the form and content of notices of violation and take into account any other purposes and provisions of this Part.
New section 65.5 of the OLA stipulates that contravening a provision in Part IV is a violation, and the Crown corporation or transportation sector corporation is liable to a penalty of an amount to be determined based on the violation.
New section 65.6 of the OLA specifies that, when a violation occurs, the Commissioner of Official Languages may issue a notice of violation and cause it to be served, along with the report and any other relevant document, on the designated body. However, the Commissioner must first invite the designated body to enter into a compliance agreement before being permitted to issue a notice of violation. A penalty can be imposed only one time for complaints with the same subject matter.
The notice of violation sets out the name of the designated body that committed the alleged violation, the relevant facts of the violation and the provision at issue and the penalty for the violation (and the criteria used to determine that amount). It also informs the designated body of its right to contest, by way of review, the facts of the alleged violation or the amount of the penalty (or both) and any other information provided by regulation.
The Commissioner has two years from the day of being informed of the facts of an alleged violation, or three years from the day on which the alleged violation occurred, to issue a notice of violation. A document issued by the Commissioner, certifying the date on which they were informed of the facts of the alleged violation, is proof that the Commissioner was informed of the facts of the alleged violation on that day.
New section 65.7 of the OLA provides that by paying the set penalty, the designated body acknowledges responsibility for the violation, bringing an end to the proceedings.
New section 65.8 of the OLA specifies that by not requesting a review within the specified time, the designated body is deemed to have committed the violation and is liable for the penalty.
New section 65.9 of the OLA stipulates that, within 30 business days after the day on which the notice is served, the designated body may, instead of paying the penalty, apply to the Federal Court for a review of the facts of the alleged violation, the amount of the penalty or both. The application for review is heard and determined as a new proceeding, with new evidence and arguments.
New section 65.91 of the OLA provides that the Federal Court may make an order declaring either that the designated body committed the violation and is liable for the penalty set out in the notice of violation, or that the designated body did not commit the violation and is not liable for the penalty. The Federal Court may determine the amount of any penalty in accordance with the range of penalties fixed by regulation and make an order declaring the amount of the penalty the designated body is liable to pay.
New section 65.92 of the OLA specifies that the amount of the penalty set out in the notice of violation or in the Federal Court order is a debt due to Her Majesty and that this debt shall be remitted to the Receiver General. Five years after the debt becomes payable, proceedings to recover the debt may no longer be commenced.
New section 65.93 of the OLA gives the Commissioner of Official Languages the power to issue a certificate for the unpaid amount of any debt. Registration of the certificate in the Federal Court for a debt of the amount set out in the certificate and all related registration costs has the same effect as a judgment of the Federal Court.
According to new section 65.95 of the OLA, the designated body does not have a defence by reason that it exercised due diligence to prevent the violation, or that it reasonably and honestly believed in the existence of facts that, if true, would exonerate it. The rules and principles of common law apply in respect of the violation to the extent that they are consistent with the OLA.
Clause 38(1) of Bill C‑13 adds section 66(2) to the OLA to specify that the Commissioner must include information on complaints, alternative dispute resolution processes, compliance agreements and orders in their annual report. Clause 38(2) specifies that the Commissioner must also include in their annual report information on administrative monetary penalties. This last provision will come into force on a day to be fixed by order of the Governor in Council (clause 71(3)).
Clause 39 of Bill C‑13 amends section 70 of the OLA, which addresses the delegation of the Commissioner’s powers. The Commissioner’s new powers, with regard to compliance agreements, administrative monetary penalties and the publication of parts of the investigation reports, cannot be delegated.
In sum, the amendments to Part IX of the OLA provide for a set of gradually increasing powers for the Commissioner. These changes address a proposal made in 2016 by the then‑Commissioner to expand the range of tools at their disposal to enforce the OLA.83
Clause 40 of Bill C‑13 makes multiple amendments to section 77 of the OLA, concerning the right to court remedies. It amends the wording of section 77(2) to align the English and French versions. It also adds sections 77(4.1) and 77(4.2) to the OLA to set out the two options in case of conflict between different orders:
Clause 41 of Bill C‑13 adds section 78(1.1) to the OLA to deny the Commissioner a court remedy in cases where the Commissioner makes an order. This clause also amends the English wording of section 78(3) to match the French wording.
Clause 42 of Bill C‑13 adds several new sections after section 78 of the OLA. Section 78.1 allows both the complainant and the federal institution concerned to apply for judicial review of an order by the Commissioner. The notice is deemed to have been received on the fifth business day after the date of the notice.
New section 78.2 of the OLA concerns the staying of an order by the Commissioner. If a review is applied for, the order is automatically stayed. It is up to the court to lift the stay of the order. As well, any part of the order that is not the subject of the proceedings becomes operative.
New section 78.3 sets out the right of both the federal institution and the complainant to be parties to the review. If the federal institution applied for the review, the complainant that filed notice of their intent to appear may ask the court to determine any matter they could have brought for review. In other words, a complainant seeking to be a party to a review may raise matters for review even if it was the federal institution that applied for the review.
New section 78.4 of the OLA confirms that the Commissioner may appear on behalf of the complainant or be a party to the review.
New section 78.5 of the OLA provides that a complainant making an application for a review must notify the federal institution concerned. Likewise, a federal institution making an application for a review must inform the Commissioner.
New section 78.6 stipulates that the application for a review is to be heard and determined as a new proceeding, with new evidence and new arguments, without being limited by what was raised in the initial complaint.
Pursuant to new section 78.7, the court may make an order setting out which provisions the federal institution is required to comply with or any other order that it consider appropriate.
New section 78.8 of the OLA concerns situations where the court’s and the Commissioner’s orders cannot be complied with simultaneously. The court’s order then takes precedence, and the incompatible provisions of the Commissioner’s order are rescinded. The court must specify which provisions of the Commissioner’s order are to be rescinded because they are incompatible.
Clause 43(1) of Bill C‑13 adjusts the French version of section 81(1) of the OLA to so that it corresponds to the English version. This provision will come into force by order of the Governor in Council (clause 71(3)).
Clauses 43(2) and 43(3) of Bill C‑13 amend the English version of section 81(2) of the OLA, which concerns costs as part of court proceedings, so that it applies to the judicial review provided in new section 78.1 and, subsequently, in new section 65.9 of the OLA, which will come into effect on a date to be fixed by order of the Governor in Council. Note that the French version of section 81(2) of the OLA does not specifically list the sections to which the costs provision applies.
In summary, the amendments to Part X provide for new recourse rights under the OLA.
Clause 44 of Bill C‑13 amends section 83 of the OLA to recognize the importance of maintaining and enhancing Indigenous languages and to ensure the OLA does not abrogate or derogate from Indigenous language rights, as it already provides for languages other than English and French. The official‑languages reform proposal distinguished between the framework for official languages and the one for Indigenous languages, which is governed by the Indigenous Languages Act of 2019, while noting the complementary visions of both.84
Clauses 44 and 45 of Bill C‑13 amend sections 84 and 85 of the OLA, respectively, to specify that the responsibility to table draft regulations falls to either the Minister of Canadian Heritage or the President of the Treasury Board, as applicable, and that these two ministers have a responsibility to consult official language minority communities when making draft regulations.85 Clause 46(1) of Bill C‑13 amends section 86(1) of the OLA to specify that the publication of proposed regulation falls to either the Minister of Canadian Heritage or the President of the Treasury Board, as applicable. Clause 46(2) of Bill C‑13 amends the wording of the English version of section 86(3) to align it with the French version, while clause 47 amends the French version of section 87(5) to align it with the English version.
Clause 48 of Bill C‑13 amends section 88 of the OLA to add policies to the Act, taking into account the changes to the powers conferred on the President of the Treasury Board. It also amends section 89 of the OLA to specify that the Criminal Code provision respecting contraventions of a federal Act also does not apply to the OLA’s implementing regulations.86
Clause 49 of Bill C‑13 adjusts the wording of section 91 of the OLA, which concerns staffing, to refer to the OLA in general rather than specific parts of it. In November 2020, the Commissioner of Official Languages published a report on the implementation of section 91, after finding systemic problems with its implementation and a high number of complaints to that effect.87 The Commissioner recommended reviewing federal institutions’ staffing practices and policies, after finding that managers had trouble objectively setting the language requirements of positions reporting to them. Nearly 52% of complaints the Commissioner received in 2020–2021 related to section 91 of the OLA.88
Clause 50 of Bill C‑13 adds a new section 93.1 to the OLA to require the Minister of Canadian Heritage to review the provisions and operation of the OLA every 10 years and to table a report on the review in Parliament within 30 sitting days of the report’s completion. During the debate on modernizing the OLA, stakeholders unanimously called for periodic review of the OLA. They referred to similar provisions in effect in some provinces and territories.89
Clause 51 of Bill C‑13 repeals sections 107 and 108 of the OLA, as these provisions are no longer needed.
Clause 52 of Bill C‑13 adds section 7.1 to the Department of Canadian Heritage Act to specify that the Minister of Canadian Heritage may take measures to protect and fund the human rights component of the Court Challenges Program.90 The language rights component of the program is already covered by the OLA itself (clause 22(1)(c)).
Clause 53 enables the Governor in Council to repeal the C.N.R. Company Exemption Order, which exempted CN from section 10(2) of the Official Languages Act of 1969.91 This order concerned services to the public, other than the travelling public, provided outside of Canada. The OLA of 1988 repealed the OLA of 1969, but the order, made on 11 July 1969, was never amended, even after the federal government enacted legislation to privatize this former Crown corporation in 1995.92
Clause 54 of Bill C‑13 enacts the UFFRPBA, which contains 42 sections and is the responsibility of the Minister of Canadian Heritage.93
The UFFRPBA concerns federally regulated private businesses and its provisions will be implemented in two phases:
Clause 54 begins with a preamble to the UFFRPBA, which sets out several commitments of the federal government, including:
In general, the UFFRPBA applies to any “federally regulated private business,” which is defined in section 2(1) of the UFFRPBA as a person that employs employees on or in connection with a federal work, undertaking or business as defined in section 2 of the Canada Labour Code (CLC),96 but does not include:
Section 2(1) of the UFFRPBA includes other definitions, including those for “Board” (which refers to the Canada Industrial Relations Board), “Commissioner” (which refers to the Commissioner of Official Languages for Canada), and “parties” (which refers to the complainant, the federally regulated private business and any other person added as a party to the complaint).
In relation to the carrying out of its functions under the UFFRPBA, section 2(2) of this Act modifies the composition of the Canada Industrial Relations Board (the Board) to exclude the members specified by the CLC as representing employees or employers.98
The composition of the Board is further modified by way of a related amendment to the CLC, which adds to the list of members of the Board in section 9(2) of the CLC to account for the new language‑of‑work duties for federally regulated private businesses.
Section 3 of the UFFRPBA adds two principles for interpreting this legislation that are rooted in official languages case law:
Under section 4 of the UFFRPBA, its purpose is to foster and protect the use of French in federally regulated private businesses. This objective will apply first to businesses in Quebec before being extended to those in regions with a strong francophone presence.
Sections 5 and 6 of the UFFRPBA exclude certain activities and workplaces from the application of this legislation, including those related to the broadcasting sector and, if a federally regulated private business chooses to be subject to Quebec’s Charter of the French Language, its communications with or services provided to consumers in Quebec, and its workplaces in Quebec.100 In effect, federally regulated private businesses in Quebec may elect to comply with the provisions of the provincial law or those of the new UFFRPBA.101 Businesses choosing to be subject to the provincial legislation must give notice they are doing so. In addition, the Minister of Canadian Heritage may enter into an agreement with the Government of Quebec to give effect to this provision and exempt the business from the UFFRPBA.
Sections 7 and 8 of the UFFRPBA set out rights respecting communications and services in French for consumers who do business with federally regulated private businesses. They confirm that these businesses have a duty to ensure that consumers can exercise these rights. These provisions are similar to those that apply to federal institutions and that are set out in sections 21 and 22 of the OLA.
While the rights and duties provided for in sections 7 and 8 of the UFFRPBA apply only to communications with and services to consumers in French, section 7(3) of this legislation stipulates that consumers who speak languages other than French may communicate with these businesses in those languages if they wish and if the businesses are able to do so.
Section 9 of the UFFRPBA sets out the language‑of‑work rights for employees of federally regulated private businesses and confirms that it is the responsibility of these businesses to ensure their employees can exercise these rights. These provisions are similar to those that apply to federal institutions in designated regions and that are set out in section 36 of the OLA. The rights of employees with respect to language of work include
While the rights set out in section 9 pertain to French alone, section 9(3) of the UFFRPBA states that employees can be given communications and documentation in English, provided that the use of French is at least equivalent to the use of English.
Section 10 of the UFFRPBA sets out the duty of every federally regulated private business to foster the use of French in the workplace by informing employees of their rights and of the business’s obligations in this regard and by establishing a committee to support senior management with this mandate. In fulfilling their obligations, businesses must consider the needs of employees nearing retirement, having many years of service or having conditions that could impede their ability to learn French.102
Section 11 of the UFFRPBA specifies that employees of federally regulated private businesses may not be treated adversely because they do not have sufficient knowledge of a language other than French or because they made a complaint to the Commissioner of Official Languages. In addition, it includes an “acquired rights” clause for employees who have insufficient knowledge of French at the time these provisions take effect. These employees cannot be treated adversely for this sole reason. If necessary, businesses must demonstrate that knowledge of a language other than French is objectively required because of the nature of the work to be performed.
Sections 12 and 13 of the UFFRPBA specify that while also being responsible for the administration of this legislation, the Minister of Canadian Heritage is responsible for promoting the consumer and employee rights under this legislation and for providing assistance, education and information to federally regulated private businesses about these consumer and employee rights.
Under section 14 of the UFFRPBA, the Commissioner of Official Languages has a new duty, in addition to those set out in section 56(1) of the OLA. As a result, the Commissioner must ensure that federally regulated private businesses recognize the rights concerning communications with consumers and language of work.
Section 14(2) of the UFFRPBA, which sets out the Commissioner’s investigative duties under this legislation, specifies that the Commissioner must conduct and carry out investigations as a result of complaints they receive. The same section provides that, in the case of a right or duty under section 7 of the UFFRPBA, the Commissioner may conduct investigations on their own initiative and report and make recommendations with respect to those investigations.
Persons who believe that a federally regulated private business has failed to comply with its obligations under the UFFRPBA toward consumers or employees can make a complaint to the Commissioner. Various provisions pertain to remedies in relation to communications with and services to consumers and remedies in relation to language of work.
Section 15 of the UFFRPBA allows any individual or group of individuals to make a complaint to the Commissioner if they believe that a federally regulated private business has failed to comply with its obligations towards consumers under section 7.
Under section 16 of the UFFRPBA, Part IX of the OLA applies in respect of rights and duties under section 7 of the UFFRPBA. Furthermore, in applying Part IX of the OLA:
Section 17 of the UFFRPBA provides that Part X of the OLA applies to complaints made in respect of a right or duty under section 7 of the UFFRPBA. Furthermore, in applying Part X of the OLA:
Section 18 of the UFFRPBA limits the right of an employee referred to in any of sections 9 to 11 to make a complaint to the Commissioner to within 90 days of the date when, in the Commissioner’s opinion, the employee ought to have become aware of the act or omission. The Commissioner may extend this period in certain circumstances.
Section 19 of the UFFRPBA provides that Part IX of the OLA applies to complaints made in respect of a right or duty under new sections 9 to 11. Furthermore, in applying Part IX of the OLA:
Section 20 of the UFFRPBA provides that Part X of the OLA is applicable to complaints made in respect of a right or duty under sections 9 to 11. Furthermore, in applying Part X:
Section 21 of the UFFRPBA specifies that, except where a compliance agreement has been entered into, the Commissioner may, with the consent of the complainant and after giving notice, refer a complaint to the Board if the Commissioner is of the opinion that the Board is better placed to deal with the complaint either because of its nature or complexity, or the seriousness of the failure to comply, along with the relevant evidence. Part X of the OLA no longer applies with respect to the complaint after it has been referred to the Board.
Section 22 of the UFFRPBA stipulates that the Board is responsible for deciding whether a complaint that the Commissioner has referred to it is well‑founded. The complaint is subsequently dealt with by one or more members of the Board or an adjudicator.
Section 23 of the UFFRPBA provides that the Board deals with complaints informally and expeditiously. The Board is not bound by legal or technical rules of evidence.
Section 24 of the UFFRPBA lists the powers of the Board, including summoning witnesses, producing documents, receiving evidence, adjourning or postponing the proceedings, handling complaints and making decisions. The Board may also delegate to any person some or all of its powers, merge complaints that relate to the same subject, and review, rescind or alter any of its orders or decisions. These powers are similar to those set out in section 16 of the CLC.
Section 25 of the UFFRPBA enables members of the Board and external adjudicators to consult with any member of the Board or any employee of the Administrative Tribunals Support Service of Canada regarding any complaint referred to the Board.
Section 26 of the UFFRPBA provides that the Board may make regulations defining its powers, duties and functions under this Act and that the Commissioner may not initiate a review of them. The list of powers, duties and functions that may be the subject of regulations is based in part on the one in section 15 of the CLC.
Section 27 of the UFFRPBA sets out the seven situations in which the Board may reject a complaint, in whole or in part. The Board must notify the parties in writing of the reasons for rejecting the complaint.
Section 28 of the UFFRPBA stipulates that the Board may make an order to require a federally regulated private business that is the subject of a well‑founded complaint to comply with this Act. Depending on the circumstances, the Board may order the business to permit the complainant to return to the duties of their employment or reinstate their employment, or pay compensation to the complainant. It may also take other measures to remedy or counteract the effects of the failure to comply with the UFFRPBA.
Section 29 of the UFFRPBA specifies that the Board must provide a copy of its decision on the merits of a complaint and any order made under section 28, with reasons, to the parties and the Commissioner.
Section 30 of the UFFRPBA provides that an order by the Board made under section 28 may be filed with the Federal Court in the 14 days following the date it is made or its implementation date. The order is registered in the court, meaning that it has the same force and effect as if it were a judgment of that court and all proceedings may be taken as if it were.
Section 31 of the UFFRPBA specifies that the provisions in this Act do not prevent an employee from seeking a civil remedy against an employer.
Section 32 of the UFFRPBA grants the Governor in Council the power to make regulations for the purposes of sections 21 to 31 of this Act.
In sum, with the enactment of the UFFRPBA, Bill C‑13 provides for a different approach to receiving, dealing with and resolving complaints regarding language of work in federally regulated private businesses than that for complaints about the communications of, and services provided by, these businesses.
Section 33 of the UFFRPBA enables the Governor in Council to make regulations to:
Sections 34 to 42 of the UFFRPBA detail various aspects surrounding the making of regulations implementing this Act, including:
The February 2021 reform proposal included a number of details on the forthcoming legislative amendments while noting that no requirements regarding the use of the official languages as languages of service and work within federally regulated private businesses currently exist.104 In March 2021, the federal government appointed an expert panel to study criteria for inclusion in future legislation and regulations.105 The expert panel’s findings were not made public.
Clauses 55 to 63 of Bill C‑13 make amendments to sections 4, 7(1), 9(1), 10(1), 11, 16(1), 19(1), 33(1)(b) and 33(2) to extend the UFFRPBA’s application to regions outside Quebec with a strong francophone presence. These amendments come into force two years after the UFFRPBA does, by order of the Governor in Council, in order to give affected businesses more time to comply with the new provisions.
In addition, clause 63 adds section 41.1 to the UFFRPBA to specify that the powers of the Commissioner of Official Languages to enter into compliance agreements with and make orders respecting federally regulated private businesses in regions with a strong francophone presence will apply on the date fixed by order of the Governor in Council.
Clauses 64 to 67 of Bill C‑13 provide for related amendments to the CLC in order to:
Clause 68 provides that, before the UFFRPBA comes into force, the Minister of Canadian Heritage may take any measures or carry out any activity in Canada that the Minister considers necessary for the administration of the UFFRPBA, for promoting the rights set out in sections 7(1) and 9(1) and for providing assistance, education and information to federally regulated private businesses in relation to those rights.
Clause 69 provides for a coordinating amendment relating to the coming into force by order of the Governor in Council of provisions on administrative monetary penalties in the OLA, clarifying that these provisions do not apply to the UFFRPBA.
Clause 70 of Bill C‑13 provides for a coordinating amendment relating to Bill C‑11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.106 If it is passed, new section 42.1 of the OLA, which recognizes the role of the Canadian Broadcasting Corporation, will take effect the day on which clause 21 of Bill C‑13 and clause 30 of Bill C‑11 both come into force. Furthermore, once Bill C‑13 receives Royal Assent, section 2(3)(b) of the Broadcasting Act will be amended to take into account clauses 2 and 21 of Bill C‑13, which recognize the uniqueness and diversity of official language minority communities and their historical and cultural contributions to Canadian society. At the time of writing, Bill C‑11 was at second‑reading stage in the House of Commons.
Clause 71 of Bill C‑13 provides for a phased coming into force for the clauses addressing the OLA:
Moreover, the provisions on the new UFFRPBA relating to Quebec will come into force by order of the Governor in Council, while provisions relating to regions with a strong francophone presence will come into force two years later (clauses 71(4) and 71(5)).
Most organizations representing francophone minority communities welcomed the legislation introduced in response to the official‑languages reform proposal, but had expectations for what would come next. The primary voice for these communities, the FCFA, recognized that Bill C‑13 included significant gains; however, it criticized the lack of legislative measures to make including enforceable language clauses in agreements between the federal government and provincial and territorial governments mandatory. It called into question the coordination and implementation role of the OLA, which is not fully the responsibility of a central agency. The FCFA will pay close attention to the Commissioner of Official Languages’ new powers and the government’s duty to adopt a new francophone immigration policy.107
Other francophone organizations were also disappointed that there was no requirement to include language clauses. The Commission nationale des parents francophones, the Fédération nationale des conseils scolaires francophones, the Association canadienne‑française de l’Alberta and the Alliance des femmes de la francophonie canadienne all shared this view.108
Meanwhile, organizations representing Quebec’s English‑speaking communities were less enthusiastic about Bill C‑13. The QCGN asked how the government would reconcile the principles of equality of status and use of the two official languages with substantive equality. Furthermore, it called into question the approach for federally regulated private businesses, which promotes only the use of French, without addressing the rights of anglophone workers or consumers in Quebec. Lastly, it said that it had hoped to see changes to Part VI of the OLA to ensure the equitable participation of English‑speaking Quebeckers in the federal public service in Quebec.109 As well, the English‑language organization published a preliminary analysis of Bill C‑13.110
After Bill C‑13 was introduced, the Commissioner of Official Languages promised to carefully follow it through the legislative process. A section of his website will list his positions and statements throughout the legislative process.111 In his 2020–2021 annual report, he called on “all members of Parliament to work together to pass legislation that benefits all Canadians.”112 In response to the tabling of Bill C‑13, the Commissioner said that he was pleased with the improvements to the bill, particularly with regard to the new powers granted to him.113 When he appeared before the Standing Senate Committee on Official Languages in February 2022, he spoke about the importance of strengthening Part V of the OLA, on language of work, and of reviewing Parts IV and V of the Act for consistency, two areas that were not addressed in Bill C‑13.114
In news articles following the tabling of the bill, the Commissioner was quoted as saying that he expected the bill to address recurring issues with language of work and expand the scope of administrative monetary penalties to apply to other entities in the transportation sector, such as border services.115 Unions, for their part, said they expected improved supports for the use of official languages within the federal public service.116
Organizations representing official language minority communities are looking forward to when the regulations implementing Part VII are adopted. The Commissioner of Official Languages will analyze the new regime established under Part VII more closely.
Other stakeholders thought it was important for Bill C‑13 to consider the different impacts on various groups of Canadian society, including women, immigrants and Indigenous peoples.
The Government of Quebec reacted to the tabling of Bill C‑13 by saying that it wanted to impose its own language regime on federally regulated private businesses, which is what Bill 96, currently before the Quebec National Assembly, intends to do.
On 15 June 2021, the House of Commons Standing Committee on Official Languages presented a report to Parliament on how the COVID‑19 pandemic had affected the federal government’s ability to communicate with the public in both official languages. The report added new recommendations for modernizing the OLA, including:
On 29 March 2022, the Senate adopted a motion to call upon the federal government to consider adding a requirement in the OLA to submit a report detailing the efforts made to have a fully bilingual Constitution, as provided in section 55 of the Constitution Act, 1982.118 The Standing Senate Committee on Official Languages addressed this issue in its final report on modernizing the OLA.119
(1.8 MB, 31 pages), 2017, p. 10. [ Return to text ] (5.3 MB, 98 pages), Final report, June 2019; OCOL, 1969–2019: Modernizing the Official Languages Act – The Commissioner of Official Languages’ Recommendations for an Act that is Relevant, Dynamic and Strong (1.1 MB, 48 pages), May 2019; House of Commons, Standing Committee on Official Languages (LANG), Modernization of the Official Languages Act (2.4 MB, 91 pages), Seventeenth report, June 2019; Fédération des communautés francophones et acadienne du Canada (FCFA), Time for Action: The FCFA Proposes a new Wording of the Official Languages Act (1.9 MB, 183 pages), 5 March 2019; and Quebec Community Groups Network (QCGN), English‑speaking Quebec and the Modernization of the Official Languages Act (912 KB, 39 pages), Brief submitted to OLLO, 28 May 2018. [ Return to text ] (9.9 MB, 67 pages), 2019. [ Return to text ] (326 KB, 34 pages), 23 September 2020, pp. 28–29:
[ Return to text ]The Government of Canada must also recognize that the situation of French is unique. There are almost 8 million Francophones in Canada within a region of over 360 million inhabitants who are almost exclusively Anglophone. The Government therefore has the responsibility to protect and promote French not only outside of Quebec, but also within Quebec.
In this vein, 51 years after the passage of the Official Languages Act, the Government is committed to strengthening this legislation among other things, taking into consideration the unique reality of French.
(326 KB, 7 pages) [available in French only]. [ Return to text ] (822 KB, 26 pages), 23 November 2021, p. 20; Prime Minister of Canada, Justin Trudeau, Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency Mandate Letter, 16 December 2021; and Department of Finance Canada, Economic and Fiscal Update 2021 (2.1 MB, 96 pages), p. 69. [ Return to text ] (320 KB, 2 pages), News release, 19 February 2021. [ Return to text ][ Return to text ]The Premier shall initiate a review of this Act, and the review shall be completed no later than December 31, 2021.
(897 KB, 44 pages), December 2021. [ Return to text ] (926 KB, 54 pages), January 2022. [ Return to text ] (490 KB, 52 pages), 42nd Legislature, 2nd Session, Schedule 13 (S.O. 2021, c. 40). [ Return to text ] (184 KB, 20 pages), R.S.N.W.T. 1988, c. O‑1, para. 35(1):
The Legislative Assembly or a committee of the Legislative Assembly designated or established by it shall review the provisions and operation of the Official Languages Act at the next session following December 31, 2007, and subsequently at the next session following each successive fifth anniversary of that date.
The last review took place in 2014. [ Return to text ]
[ Return to text ][T]he Court declares that the Corporation is subject to the OLA, in particular Part VII (sections 41 to 45). It has an obligation to take positive measures to enhance the vitality and support and assist the development of [official language minority communities] under Part VII of the OLA, specifically 41, which imposes an obligation to act in a manner that does not hinder the development and vitality of Canada’s Anglophone and Francophone minorities.
(582 KB, 10 pages), 2019; Government of Canada, “Enhancing the vitality of Francophone minority communities through immigration: A national strategy,” Action Plan for Official Languages – 2018–2023: Investing in Our Future, 2018; and Prime Minister of Canada, Justin Trudeau, Minister of Immigration, Refugees and Citizenship Mandate Letter, 16 December 2021. [ Return to text ]Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
Manitoba Act, 1870, 33 Victoria, c. 3, s. 23:
[ Return to text ]Either the English or the French language may be used by any person in the debates of the Houses of the Legislature, and both those languages shall be used in the respective Records and Journals of those Houses; and either of those languages may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under the British North America Act, 1867, or in or from all or any of the Courts of the Province. The Acts of the Legislature shall be printed and published in both those languages.
16(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
16.1(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.
17(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.
18(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.
Note that, similarly to Bill C‑32, Bill C‑13 does not refer to ss. 19(2) and 20(2) of the Charter, which apply to New Brunswick.
[ Return to text ] (689 KB, 30 pages), October 2020.
A parliamentary committee addressed the impact of the COVID‑19 pandemic in a report published in June 2021, in which it recommended that the OLA be amended so that it takes precedence over all laws and regulations aimed at communications. See LANG, Impact of the COVID‑19 Pandemic on the Government’s Ability to Deliver Information and Services in Both Official Languages, Fifth report, June 2021.
In the reform document, the government indicated that it would take administrative measures to help federal institutions meet their obligations during emergencies. Bill C‑32 did not include any such legislative measures, but Bill C‑13 took into account the expectations of stakeholders. Note that the reference in the bill to emergencies appears only in the Preamble, but not elsewhere.
[ Return to text ] (308 KB, 7 pages), Canadian Megatrends, Statistics Canada, 21 February 2018, pp. 3–4. Language projections show that this downward trend will continue over the next 15 years. See René Houle and Jean‑Pierre Corbeil, Language Projections for Canada, 2011 to 2036 (1.9 MB, 133 pages), Ethnicity, Language and Immigration Thematic Series, Statistics Canada, 25 January 2017, p. 14. [ Return to text ] (5.3 MB, 98 pages), Final report, June 2019, pp. 49–50; FCFA, Time for Action: The FCFA Proposes a new Wording of the Official Languages Act (1.9 MB, 183 pages), 5 March 2019, pp. 12–14; and QCGN, English‑speaking Quebec and the Modernization of the Official Languages Act (912 KB, 39 pages), Brief submitted to OLLO, 28 May 2018, p. 34. [ Return to text ]Since 2018, the government has made orders of the Governor in Council to transfer responsibilities that fall to the Minister of Canadian Heritage under the OLA to the Minister responsible for Official Languages; this situation was not addressed in Bill C‑13.
[ Return to text ]In the debate on modernizing the OLA, all stakeholders called for entrenching this mechanism in the OLA.
[ Return to text ] (3.3 MB, 35 pages), Publication no. 2017‑33‑E, Library of Parliament, 26 November 2020, pp. 7–9. [ Return to text ] (2.2 MB, 25 pages). [ Return to text ] (1.4 MB, 56 pages), Fifth report, May 2017, pp. 9–13; OLLO, Horizon 2018: Toward Stronger Support of French‑Language Learning in British Columbia (47.3 MB, 118 pages), May 2017, pp. 57–58; and Prime Minister of Canada, Justin Trudeau, Minister of Economic Development and Official Languages Mandate Letter, 13 December 2019. [ Return to text ]Since the amendments made to Part VII of the OLA in 2005, the government has clarified positive measures through administrative means instead of legislative or regulatory means. In 2003, an accountability and coordination framework established the following key principles that each federal institution must comply with in relation to the implementation of Part VII:
Then, in 2007, Canadian Heritage published a guide so that federal institutions could have a common understanding of their duties. This guide repeated the same principles, which were maintained in its 2019 update. See Government of Canada, “Annex A: Official Languages Accountability and Coordination Framework,” The Next Act: New Momentum for Canada’s Linguistic Duality (327 KB, 88 pages), 2003, p. 66; Canadian Heritage, Guide for Federal Institutions – Official Languages Act: Part VII – Promotion of English and French (1.5 MB, 18 pages), 2007; and Canadian Heritage, Guide on Part VII of the Official Languages Act: Support to communities and promotion of English and French.
It is undeniable, in my opinion, that the scope of the duty contained in section 41 is hamstrung by the absence of regulations. And, it must be said, this regulatory silence and the resulting vagueness are probably detrimental to the linguistic minorities in Canada, who may be losing a potential benefit under Part VII.
The Federal Court of Appeal reversed this decision on 28 January 2022. See Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development), 2022 FCA 14.
[ Return to text ] (327 KB, 88 pages), 2003, p. 66. [ Return to text ] (2.4 MB, 91 pages), Seventeenth report, June 2019, p. 69. [ Return to text ] (582 KB, 10 pages), 2019, p. 2. [ Return to text ] (1.3 MB, 82 pages), November 2021, p. 71.
In the winter of 2022, both standing committees on official languages began studies on francophone immigration. See OLLO, Order of Reference, 10 February 2022; and LANG, Minutes of Proceedings, 28 February 2022.
[ Return to text ] (582 KB, 10 pages). [ Return to text ] (1.7 MB, 51 pages), June 2016, pp. 24–27. [ Return to text ][ Return to text ](1) Every person who, without lawful excuse, contravenes an Act of Parliament by intentionally doing anything that it forbids or by intentionally omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
(2) Any proceedings in respect of a contravention of or conspiracy to contravene an Act mentioned in subsection (1), other than this Act, may be instituted at the instance of the Government of Canada and conducted by or on behalf of that Government.
(3.2 MB, 47 pages), November 2020. [ Return to text ] (6.7 MB, 34 pages), 2021, p. 24. [ Return to text ]In 2013, the federal government released a detailed account of the language‑of‑work situation in federally regulated private businesses in Quebec. This report showed that employees of these businesses could generally work in French and have access to tools in French. It did not show a need to subject existing businesses to either the federal or provincial language regimes. That said, employees who are not covered by either language regime but wish to assert their right to work in French currently have no legal basis to do so. See Government of Canada, Language of Work in Federally Regulated Private Businesses in Quebec Not Subject to the Official Languages Act.
[ Return to text ][ Return to text ]federal work, undertaking or business means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,
- (a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,
- (b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,
- (c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,
- (d) a ferry between any province and any other province or between any province and any country other than Canada,
- (e) aerodromes, aircraft or a line of air transportation,
- (f) a radio broadcasting station,
- (g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,
- (h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,
- (i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and
- (j) a work, undertaking or activity in respect of which federal laws within the meaning of section 2 of the Oceans Act apply pursuant to section 20 of that Act and any regulations made pursuant to paragraph 26(1)(k) of that Act.
In Quebec, federally regulated private businesses can voluntarily obtain a francization certificate from the Office québécois de la langue française. The official‑languages reform proposal noted that nearly 40% of businesses with 50 or more employees hold such a certificate. These businesses include some of the major banks (e.g., National Bank, Royal Bank and Scotiabank) and large telecommunications companies (e.g., Bell Canada, Videotron and Rogers). Some financial institutions with headquarters in Quebec, such as the Bank of Montreal, do not hold a francization certificate.
[ Return to text ][ Return to text ](1) Every person who, without lawful excuse, contravenes an Act of Parliament by intentionally doing anything that it forbids or by intentionally omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
(2) Any proceedings in respect of a contravention of or conspiracy to contravene an Act mentioned in subsection (1), other than this Act, may be instituted at the instance of the Government of Canada and conducted by or on behalf of that Government.
Private members’ bills to amend the Canada Labour Code, the Official Languages Act or the Canada Business Corporations Act were previously introduced in Parliament to specify the language requirements for federally regulated private businesses. During the 2nd Session of the 43rd Parliament, Bill C‑254, An Act to amend the Canada Labour Code, the Official Languages Act and the Canada Business Corporations Act, sought to stipulate that the Charter of the French Language applies in Quebec, including for businesses operating there. This bill died on the Order Paper at the committee stage.
[ Return to text ]This bill was preceded by Bill C‑10, which died on the Order Paper at committee stage in the Senate. See Bill C‑10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, 43rd Parliament, 2nd Session.
[ Return to text ] (318 KB, 2 pages), News release, 1 March 2022. [ Return to text ] (551 KB, 28 pages), 22 March 2022. [ Return to text ] (6.7 MB, 34 pages), 2021, p. 26. [ Return to text ] (5.3 MB, 98 pages), Final report, June 2019, pp. 21 and 72. [ Return to text ]
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