Annual Report 2015–2016

Canada’s bilingual character

This section presents four initiatives taken by the Office of the Commissioner of Official Languages over the past year to enhance the status of English and French in Canadian society.

Office of the Commissioner of Official Languages’ school presentations taking off

The school presentations project, launched in 2013–2014 by the Office of the Commissioner’s regional teams in the Atlantic provinces and in Manitoba and Saskatchewan, has now been expanded to eight provinces in Canada. Some 3,300 students have attended the presentations, including English-speaking Grade 7 and 8 students in French immersion, French-speaking high school students in linguistic minority communities and students in English- and French-language high schools in Quebec.

One of the project’s great strengths—the main one, according to its creators—is that each presentation is a true reflection of the students’ daily life. Presentations are very flexible and can incorporate numerous references to local organizations and situations. Each presentation also includes photos of participating students and their living environment. Presenters arrive with all of the materials they need to deliver a highly interactive presentation, which delights students and leaves a lasting impression. Project leaders have also received many enthusiastic comments from teachers, who like the fact that the presentations are tailored to students’ lives and appreciate how the project is helping to strengthen their day-to-day work.

Presentations for French-speaking students are designed to foster their pride as Francophones, familiarize them with their language rights and encourage them to take action to ensure that their rights are respected. The presentations for immersion students focus on the benefits of knowing how to speak English and French and encourage students to continue studying their second official language.

The objectives of the presentations given in high schools in Quebec are to promote bilingualism, to briefly explain language rights and to present French linguistic minority communities in Canada and describe the cultural habits they share with the English community.

In 2015–2016, the project was expanded to Ontario, Prince Edward Island and Newfoundland and Labrador.

Issues of concern to official language communities

This section examines some of the main issues for official language communities in 2015–2016: the decrease in funding for community support organizations, the status of minority community media, immigration and early childhood programs. Their specific characteristics aside, community partners are engaging with decision makers regarding the federal government’s responsibilities and the resources allocated to support the development and vitality of official language communities.

Commissioner lends his support to Bill S-205

In April 2015, the Commissioner of Official Languages presented his position in support of Bill S-205, which aimed to update Part IV of the Official Languages Act. In his brief^{Footnote 11} to the Standing Senate Committee on Official Languages, the Commissioner gave three reasons why Part IV needs to be updated.

First, he noted that the criteria set out in section 32(2) of the Act to assess potential demand for services in the minority language are not inclusive, because they do not take into account all of the people who use the minority language in the public or private sphere. For example, the current criteria as they are applied exclude people whose first official language spoken is not the language of the minority but who:

• speak the minority language at home (as can be the case for francophiles, anglophiles and newcomers);
• speak the minority language in the workplace; or
• receive their education in the minority language.

Second, he pointed out that significant demand is defined in relation to the proportion of the minority population (i.e., the 5% rule). However, the chief factor to be considered in determining significant demand in a region served by federal offices should be the presence of an official language community that shows signs of vitality.

Third, he stressed that Bill S-205 is important because it codifies the principle of substantive equality by explicitly imposing on federal institutions the duty to provide service of equal quality in both official languages and to consult with the English and French linguistic minority population concerning the quality of those communications and services.

The Bill died on the order table after the federal election was called in August 2015 and was tabled again in December 2015 as Bill S-209. The Commissioner reiterated that this bill makes an undoubtedly significant contribution to fulfilling the purpose of Part IV of the Act and helps official language communities to strengthen their identity, to develop and to thrive.

Analysis needed of the impact of the Official Languages Regulations on the vitality of official language communities

In 2013, the Société franco-manitobaine made public a complaint that had been filed with the Office of the Commissioner concerning the Official Languages (Communications with and Services to the Public) Regulations.^{Footnote 12} The complaint alleged that the method used to determine the first official language spoken in order to establish what constitutes significant demand does not take into account large segments of the population that speak the minority language and would want or be likely to use it in federal offices.

The objective of the investigation was to determine the nature of the obligations incumbent upon the Treasury Board of Canada Secretariat under Part VII of the Act in the context of the Official Languages Regulations Re-Application Exercise. The exercise seeks to review and update federal institutions’ language obligations every 10 years using census data: in this case, data from the 2011 Census.

In the spring of 2015, the Commissioner released his final investigation report to the parties involved. The Commissioner concluded that the Treasury Board of Canada Secretariat had to identify the impact of the results of the re-application exercise on the vitality of official language communities that would no longer be receiving bilingual services because of changes in the linguistic designation of some federal offices. The Commissioner also concluded that the institution should present options to the President of the Treasury Board to mitigate the negative impact of these results.

Because the Treasury Board of Canada Secretariat had stated that it did not intend to conduct an analysis on the impact of the results, the Commissioner concluded that it had not met its obligations under Part VII of the Act and that the complaint was founded.

The Commissioner therefore recommended that the Treasury Board of Canada Secretariat 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. He also recommended that the findings of the analysis be shared with the President of the Treasury Board, along with opinions and advice on solutions to be considered in order to mitigate any potential negative impact of the Regulations.

A follow-up is under way to determine whether the Treasury Board of Canada Secretariat will be taking the appropriate steps to implement the Commissioner’s recommendations.

Virtual teams must be able to hold bilingual meetings

Against a backdrop of budget cuts, new technologies have made it easier to create virtual teams whose members work in English and French in cities across the country. The situations that have emerged as a result of these changes have uncovered issues regarding the right of federal employees to work in the official language of their choice in regions designated as bilingual for language-of-work purposes and the related issue of managing bilingual meetings.

On September 10, 2015, the Office of the Commissioner released a new guide called Effective practices for chairing bilingual meetings.^{Footnote 13} Managers now have a new tool to help them respect their employees’ rights and to enable those employees to take full part in discussions during meetings, regardless of where they work.

This concise but comprehensive guide presents a series of best practices for managing situations in which some meeting participants are fluently bilingual, some are unilingual and some have varying levels of bilingualism. It emphasizes the importance of leadership by the person chairing the meeting. This person must be skilled in both official languages, as must be the person in charge of taking notes during the meeting. The guide underscores the need to make relevant documents, such as agendas and minutes, available in both official languages at the same time. And it contains advice for meeting chairs: for example, explain how the bilingual meeting will be conducted, assign a “language keeper” to keep track of the balance between the use of English and French, summarize comments in the other official language.

A few weeks later, the Office of the Commissioner posted a video^{Footnote 14} on YouTube explaining these best practices and providing examples. Other institutions followed suit, including the Canada School of Public Service. All of these tools were distributed across federal institutions through the Council of the Network of Official Languages Champions.

For better official languages governance

In recent years, there have been growing signs of the need for improved official languages governance in the top ranks of government.

The Commissioner drew attention to this issue in his 2009–2010 annual report. The budget cuts and major restructuring exercises undertaken by the government of the day prompted the Commissioner to consider the hazards associated with the decentralization process under way and the reduction in staffing and resources allocated to central agencies, such as the Treasury Board of Canada Secretariat and its Official Languages Centre of Excellence. Canadian Heritage, an institution that also guides federal institutions in taking actions related to implementation of Part VII of the Act, had its staffing levels reduced, as well.

After deciding in 2009 to assign responsibility for official languages governance to the deputy heads of federal institutions, the government failed to send a clear message that official languages were still one of its priorities. Some ways it could have shown or could show that official languages are a priority include insisting on the importance of assessing the impact of its decisions on compliance with every part of the Act, fulfilling its duty to consider the needs of the official language communities affected by administrative changes, and proposing solutions or contemplating ways of remedying situations caused by these changes.

Beyond mere words, this kind of approach would be a powerful and persuasive testimony to the central importance of both official languages.

Complaints

Complaints sent to the Office of the Commissioner are not automatically admissible simply because they were filed. To be admissible, a complaint must involve a federal institution, relate to a failure to meet an obligation under the Act, and concern a specific incident or series of incidents. Since he entered into office in 2006, the Commissioner has investigated more than 7,000 admissible complaints. This section presents an overview of the complaints that were received and processed by the Office of the Commissioner in 2015–2016 and provides a summary of the complaints that were investigated over the past decade.

Table 2 shows the admissible complaints that were processed in 2015–2016, by province and territory and by part or section of the Act. A very high proportion of them concern incidents that occurred in Quebec and Ontario, including the National Capital Region. To provide a more accurate picture of the situation, complaints concerning federal institutions that have offices in the National Capital Region are divided into two separate categories: National Capital Region (Quebec) and National Capital Region (Ontario). More than half of the admissible complaints came from the National Capital Region alone.

Complaints are also classified according to the parts of the Act under which the investigations were conducted. Nearly half of all complaints received concerned the right of members of the public to communicate with and receive services from federal institutions in the official language of their choice (Part IV). Of this number, a significant proportion came from the National Capital Region (Ontario), followed by Ontario, which is home to more than half of the French-speaking population outside Quebec.^{Footnote 21}

Complaints made under section 91 (Part XI) of the Act relate to the establishment of official languages requirements during staffing processes. Many federal institutions use generic work descriptions with multiple linguistic profiles, which can result in staffing positions for which the language requirements are often inadequate and do not take into account the specific tasks to be performed. The Commissioner continues to maintain that supervisory positions in regions designated as bilingual for language-of-work purposes should be identified as bilingual and include higher language requirements—i.e., a linguistic profile with a level C in written comprehension and oral proficiency—so that federal employees can fully exercise their right to work in the official language of their choice. For example, a supervisory position in a region designated as bilingual for language-of-work purposes should have a linguistic profile of at least CBC/CBC.

Social media use generated a number of complaints and raised concerns about how the Act is implemented. The Commissioner’s investigations showed that these issues are real. Official languages obligations are still the same in the world of 2.0. With social media use on the rise, representatives of federal institutions have a duty to continue to respect the letter and spirit of the Act.

Table 3 presents an overview of the complaints received over the past decade, by province and territory. Although the geographical distribution of complaints remained relatively constant, the total number of admissible complaints, after a fairly steady decline until 2012–2013, has been rising for the past three years.

The high-number anomalies in the table reflect complaints from people who contended that federal institutions’ decisions did not take linguistic duality or the needs of official language communities into account. For example, 876 of the 956 complaints received from Ontario in 2009–2010 concerned the budget cuts made by CBC/Radio-Canada at CBEF Windsor radio station, which resulted in the elimination of all radio programs in French produced by the station. The Commissioner’s investigation concluded that CBC/Radio-Canada had failed to meet the requirements of Part VII of the Act.

In 2010–2011, 438 of the 505 complaints from Quebec were filed by Air Canada maintenance employees who alleged that their employer had violated Part V of the Act, which covers language of work. As part of a service agreement, many of them had been on loan to Aveos, a private company responsible for Air Canada’s aircraft maintenance. The workers said that their employer had not respected their right to be trained and supervised in French and to have access to work tools in French. The Commissioner’s investigation found that the employees on loan under the service agreement between the two companies were still Air Canada employees and still had language-of-work rights.

The sudden jump in the number of complaints from Alberta in 2014–2015 was the result of many complaints filed against the Calgary-based National Energy Board (NEB) about its decision to post 30,000 pages of documents on its website that had been produced only in English by TransCanada, the proponent of the Energy East project. The Commissioner’s investigation concluded that the National Energy Board had failed to comply with Part VII of the Act because it had not taken steps to enable and encourage Canada’s two official language communities to participate in its public hearing process.

Table 4 provides an overview of the admissible complaints, by part of the Act, received by the Commissioner since he first took office.

After a general decrease until 2012–2013, the number of complaints made under Parts IV, V and VI of the Act has risen.

Some of the high-number anomalies in this table pertain to the files mentioned above, such as the unprecedented number of complaints generated by CBC/Radio-Canada’s budget cuts at CBEF Windsor radio station in 2009–2010, and those against Air Canada about language of work in Montréal in 2010–2011.

The elimination of the Court Challenges Program in 2006–2007 generated an unusually large number of complaints under Part VII of the Act. The Fédération des communautés francophones et acadienne du Canada was among the complainants who took legal action against the government. The case ended with the creation of the Language Rights Support Program in September 2009. The fairly high number of complaints received in 2010–2011 under Part VII was the result of the elimination of the long-form census questionnaire, a decision that has been reversed by the current government.

Conclusions on compliance

Taken individually, the report cards, complaint investigations, audit follow-ups reflect only a part of federal institutions’ compliance with the Act. Together, they provide a more complete picture of the situation.

After 10 years in office, the Commissioner has concluded that the wide range of results obtained with these tools reflects the many issues that federal institutions are having in complying fully with the Act, even though significant progress has been made in some respects.

These results, coupled with an increasing number of complaints and with what is generally felt among interested parties—in particular, the deep concerns and lagging momentum in official language communities and even among those responsible for official languages in the regions—are cause for concern.This is why the government must demonstrate an ongoing commitment to official languages. To do this, federal institutions must take concrete action to improve their compliance with the Act, which is a quasi-constitutional statute that must be respected at all times.

Caron case: French roots run deep in Western Canada

On November 20, 2015, the Supreme Court of Canada handed down its judgment in the Caron case.^{Footnote 24} In a split decision, the Supreme Court ruled that the legislative bilingualism that existed prior to the annexation of Rupert’s Land to Canada was not constitutionalized. The Court concluded that Alberta does not have a duty to enact, print or publish its laws and regulations in both English and French.

This legal saga began in 2003, when Gilles Caron and Pierre Boutet were charged with traffic offences under the Traffic Safety Act, an Alberta statute enacted in English only Mr. Caron and Mr. Boutet argued that the Act and its regulation were unconstitutional because they had not been enacted in French. They also maintained that Alberta’s Languages Act was inoperative because it abrogated what they claimed was a constitutional obligation on the part of Alberta to enact, print and publish its laws and regulations in both English and French. Their challenge was successful at trial but was rejected by the summary conviction appeal court and by the Alberta Court of Appeal.

In 1870, the western territories controlled by the Hudson’s Bay Company became part of Canada following negotiations and an agreement between Canadian officials and representatives of the territories. The result was that the new province of Manitoba was added, as well as a vast land mass called the North-Western Territory and Rupert’s Land—which includes most of what is now Alberta, Saskatchewan, Nunavut, Yukon, the Northwest Territories and parts of Ontario and Quebec. Although Manitoba was annexed by virtue of the Manitoba Act, 1870, which expressly provided for legislative bilingualism, the remainder of the lands under federal administration were annexed under the 1870 Order, which does not contain such an explicit guarantee.

The Supreme Court had to rule on whether language rights were guaranteed by the promise made by Parliament in 1867 (the 1867 Address), which was incorporated into the 1870 Order.

The Supreme Court dismissed Mr. Caron and Mr. Boutet’s position, ruling as follows:

• Never in Canada’s constitutional history have the words “legal rights,” used in the 1867 Address, been understood to confer language rights.
• Legislative bilingualism, if it had been granted, would have been granted in explicit language.
• Contemporaneous discussions show that neither Canada nor the representatives of the territories ever considered that “legal rights” referred to language rights.
• The contemporaneous evidence also shows that the territorial representatives considered that language rights had been assured through the Manitoba Act, 1870, not the 1867 Address nor the 1870 Order.
• Federal legislation and the related debates in relation to the new North-West Territories in 1875 and 1877 show that no one involved thought that there had been any guarantee of legislative bilingualism in 1870.
• The Supreme Court held in the 1988 Mercure case^{Footnote 25} that there was no entrenched right to legislative bilingualism in Saskatchewan and that the constitutional position of Alberta on this point is indistinguishable from that of its neighbour.

The Supreme Court ruled that the historical record and the underlying principles of constitutional interpretation did not support Caron and Boutet’s position and that in the absence of an entrenched guarantee, a province has the authority to decide the language or languages to be used in its legislative process.

Three of the judges gave dissenting opinions as to why they would have allowed the appeal and concluded that Alberta is constitutionally required to enact, print and publish its laws in both English and French. These judges based their argument on the fact that the historic agreement between the Canadian government and the inhabitants of Rupert’s Land and the North-Western Territory contained a promise to protect legislative bilingualism. That agreement is constitutionally entrenched by virtue of the 1867 Address. In their interpretation of the 1867 Address, the judges focused on the expression of the will of the people, an argument presented by the Commissioner in his intervention before the Supreme Court. The judges reached the following three conclusions:

• It can be seen from the historical record that legislative bilingualism was in effect throughout the territories before the annexation.
• Representatives of the territories demanded legislative bilingualism as a peremptory condition for annexation, and Canadian representatives gave assurances that this demand would be met.
• The 1867 Address enshrined the promise of legislative bilingualism, and this interpretation is supported by subsequent documents.

Rose-des-vents case: Measuring equal choices in education

On April 24, 2015, the Supreme Court of Canada handed down a seminal decision regarding our understanding of the scope of constitutional rights with respect to instruction in the official language of the linguistic minority. The ruling in the Rose-des-vents case^{Footnote 26} upheld the legal positions put forward by the parents, the Conseil scolaire francophone de la Colombie-Britannique and the Commissioner: namely, that children attending minority language schools in a province are entitled to receive an education equivalent in quality to that provided by majority language schools.

In 2010, the Association des parents de l’école Rose-des-vents in British Columbia began a legal battle against the provincial government to obtain a declaration that the school—very small, overcrowded and less accessible than the English-language schools in the same area—was unable to provide students from the minority language community with an education equal in quality to that provided to students in majority language schools.

The main issue before the Supreme Court was how to measure the equivalence of instruction and educational facilities provided to the minority community and those provided to the majority. The Supreme Court stated that the focus should be on substantive equivalence, which takes into account all of the factors likely to influence the exercise of minority language education rights, such as the educational facilities, travel time and the quality of instruction, rather than on formal equivalence, which compares the cost per student or focuses on treating official language majority and minority groups alike. “What is paramount is that the educational experience of the children of s. 23 [of the Canadian Charter of Rights and Freedoms] rights holders … be of meaningfully similar quality to the educational experience of majority language students.”^{Footnote 27}

This comparison must be made based on the choices available to the parents, which means examining the majority language schools in the same area that would be a realistic alternative for the parents, not majority language schools elsewhere in the province. The question is whether reasonable parents would be deterred from sending their children to a minority language school because it is inferior to a majority language school in the same area.

The Supreme Court confirmed that the trial court judge’s analysis was correct with respect to the relative weight of the various factors that the parents had to consider. It also endorsed the judge’s finding that the disparity between this school and the majority language schools had limited enrolment and contributed to assimilation. The Supreme Court then called on the government to promptly address the inadequate facilities at Rose-des-vents school, noting that section 23 of the Charter requires good faith on the part of all interested parties and stating that “the situation is urgent.”^{Footnote 28}

Yukon Francophone School Board case: Supreme Court of Canada’s ruling advances the cause

On May 14, 2015, in a case that pitted the Yukon Francophone School Board against the Yukon government,^{Footnote 29} the Supreme Court of Canada ruled that the trial judge’s comments and conduct had given rise to a reasonable apprehension of bias. However, his involvement in the Fondation franco-albertaine had not given rise to the same apprehension.

The Commissioner defended that position. He also intervened in the issue of whether the Yukon Francophone School Board had the unilateral right to admit children of parents who are not automatically rights holders under section 23 of the Canadian Charter of Rights and Freedoms.

Even though the Supreme Court determined that the Government of Yukon had not delegated the function of setting admission criteria to the Yukon Francophone School Board, it stated that “this does not preclude the Board from claiming that the Yukon has insufficiently ensured compliance with s. 23, and nothing stops the Board from arguing that the Yukon’s approach to admissions prevents the realization of s. 23’s purpose.”^{Footnote 30}

The Supreme Court also ruled that the issue of whether the Yukon Francophone School Board could be considered a member of the public and, as such, require the Government of Yukon to communicate with and provide information to it in French had to be decided at a new trial.

The Supreme Court’s decision helped to re-establish dialogue between the school board and the government. The Yukon government also announced the construction of a new French school and gave the Yukon Francophone School Board formal authority to admit French-speaking students. The Commissioner is continuing to follow developments in this case.

CBC/Radio-Canada case: Still no decision on the merits

In 2009–2010, CBC/Radio-Canada made substantial budget cuts throughout the country. As a result, a significant part of the budget was cut for CBEF Windsor, the only French-language radio station serving the Francophone community of southwestern Ontario. After having received hundreds of complaints, the Commissioner concluded that CBC/Radio-Canada had not met its language obligations under Part VII of the Official Languages Act. Specifically, the broadcaster had not considered the impact of its decision on the development and vitality of the French-speaking community in southwestern Ontario, nor had it tried to mitigate that impact. CBC/Radio-Canada refused to cooperate in the investigation and maintained that the Commissioner had no jurisdiction in the matter. Consequently, the Commissioner and a representative of the French-speaking community filed an application to the Federal Court.

In September 2014, the Federal Court confirmed an earlier ruling that the Commissioner has jurisdiction to investigate complaints filed against CBC/Radio-Canada under the Act, more specifically under Part VII.

CBC/Radio-Canada appealed, asking the Federal Court of Appeal to determine, among other things, whether the Canadian Radio-television and Telecommunications Commission has exclusive jurisdiction over official language complaints related to programming.

In its decision on November 12, 2015,^{Footnote 31} the Federal Court of Appeal overturned the September 2014 ruling. The decision to allow the appeal, which set aside the Federal Court decision and dismissed the Commissioner’s application under section 77 of the Act, was based on an examination of procedural flaws in the Federal Court’s two previous decisions, rather than on the substantive issues raised by the appellants.

In the first Federal Court decision, the judge had opined on the question of jurisdiction. However, the resulting order, which included a stay of proceedings, was not reflective of this reasoning. In the second Federal Court decision, the judge appeared to reiterate his reasoning on the question of jurisdiction although, having refused to lift the stay of proceedings imposed in his prior decision, he could not make a determination in law.^{Footnote 32}

Among the principal issues raised by the Federal Court of Appeal was the failure of the Federal Court to determine whether a violation had occurred under section 77(4) of the Act prior to addressing the question of remedy. Furthermore, the Court never considered the evidence, nor did it make any factual findings. As a result, the Federal Court of Appeal was unable to address the issue of jurisdiction, having no findings on which to base its analysis.^{Footnote 33}

The impact of the Federal Court of Appeal’s decision was to overturn the Federal Court’s decision, including its statement that federal institutions have an obligation under Part VII not only to support the development of official language communities but also to act in a manner that does not hinder their development and vitality.^{Footnote 34}

Despite the fact that the Federal Court of Appeal failed to address the merits of the case, it did state that “the CRTC does not have the power under the [Broadcasting Act ] to determine whether there has been a breach of the provisions of the [Official Languages Act],”^{Footnote 34} in effect confirming that only the Commissioner has jurisdiction to deal with matters under the Official Languages Act.

Although it is empowered, pursuant to subsection 46(4) of the [Broadcasting Act], to “have regard to the principles and purposes of the [Official Languages Act]” in determining whether broadcasting services should be renewed and/or extended, the CRTC cannot reach any conclusion regarding breaches of the [Official Languages Act].^{Footnote 35}

Tailleur case: Which take precedence – the public’s language rights or federal employees’ language rights?

The decision handed down by the Federal Court in the Tailleur case^{Footnote 36} on October 30, 2015, concerns the scope of the obligations set out in Part IV (Communications with and Services to the Public) of the Act compared with that of Part V (Language of Work). In a detailed ruling that echoed the Commissioner’s position in large part, the Federal Court remarked on the importance of language rights in Canada, calling them a “cornerstone of Canadian society”^{Footnote 37} and describing the Act as a fundamental law with quasi-constitutional status. Significantly, the Federal Court noted that Parts IV and V of the Act both have a constitutional foundation in the Canadian Charter of Rights and Freedoms.

Luc Tailleur, a taxpayer services agent at a Canada Revenue Agency call centre in Montréal, filed a complaint with the Office of the Commissioner of Official Languages because his employer forced him to write a note in a taxpayer’s file in the taxpayer’s preferred official language of service, as opposed to Mr. Tailleur’s preferred language of work. He claimed that the institution had deprived him of his right to work in the official language of his choice. The Canada Revenue Agency contended that it had explored all reasonable measures to meet Mr. Tailleur’s request, but that its duty to serve Canadian taxpayers in the language of their choice prevented it from doing so, because calls would not be able to be managed consistently, regardless of the taxpayer’s language. The Federal Court ruled that, in this case, it is impossible to reconcile duties and language rights in terms of both communications with and services to the public (Part IV) and language of work (Part V). Given the need to provide equal service to English- and French-speaking taxpayers, Part IV of the Act must take precedence in the circumstances.

In its analysis of section 36(2) of the Act, the Federal Court determined that the common meaning arising from the English and French versions of the section was that federal institutions were required to take “any other measures that it is reasonable to take”^{Footnote 38} in addition to the minimum obligations set out in section 36(1). The Federal Court, reiterating the Commissioner’s position, established that federal institutions have a duty to take the measures set out in section 36(2). This interpretation is also consistent with Parliament’s intent as revealed by the legislative history confirming the intent that “these measures must assist in establishing and maintaining, in a realistic and practical manner, work environments that are conducive to the effective use of both official languages.”^{Footnote 39}

Accordingly, the onus is on the federal institution to justify why a measure would not be reasonable. Taking into account the three relevant criteria put forward by the Commissioner in analyzing the reasonableness of a measure, the Federal Court concluded that in this case, the measure imposed by the institution—namely, that notes in a taxpayer’s file must be written in the language of the taxpayer’s choice—is essential and necessary for the federal institution to provide service of equal quality in both official languages.

Citing the Supreme Court’s 1999 decision in the Beaulac case,^{Footnote 40} the Federal Court noted that the language proficiency of individuals is not a factor in determining language rights, thereby dismissing the institution’s argument concerning the bilingual nature of Mr. Tailleur’s position.

According to the Federal Court, if the notes in a taxpayer’s file are not in the taxpayer’s official language, then a unilingual agent may not be able to respond to the taxpayer, and the delay caused by having to transfer the call would result in service of lesser quality for the taxpayer. The taxpayer would also have to repeat information to the agent who takes over. The Federal Court dismissed Mr. Tailleur’s application. In this case, the Canada Revenue Agency took all reasonable measures to enable Mr. Tailleur to work in the official language of his choice. However, the requirement that notes in a taxpayer’s file must be written in the official language of the taxpayer’s choice is necessary to ensure service of equal quality in both official languages and therefore must take precedence.

Dionne case: Federal Court confirms right of appeal

The Federal Court confirmed^{Footnote 41} that individuals who believe that a federal institution is not meeting its obligations toward them under the Act and who file a complaint with the Office of the Commissioner may also apply to the courts for a remedy, even if the Commissioner states in his final follow-up report to the investigation that the institution implemented his recommendations and took sufficient measures to meet its obligations.

This ruling was handed down on July 14, 2015, after the Attorney General of Canada filed a preliminary objection to proceedings initiated by André Dionne. According to the Attorney General of Canada, an individual who has filed a complaint with the Office of the Commissioner cannot initiate court proceedings if the follow-up report to an investigation states that the Commissioner is satisfied that the institution has implemented his recommendations. Mr. Dionne was of the opinion that his employer—the Office of the Superintendent of Financial Institutions—was still not respecting his language-of-work rights, despite the fact that the Commissioner’s follow-up report was favourable toward the institution, and he chose to apply to the Federal Court for a remedy.

The Commissioner intervened before the Federal Court to ask for a broad and liberal interpretation of the right to legal recourse under the Act. The Federal Court upheld the Commissioner’s position whereby a complainant’s right to file proceedings does not depend on the findings of the Commissioner’s follow-up report. The court stated that the Attorney General of Canada’s interpretation “constitutes an approach devoid of practical meaning, [translation]”^{Footnote 42} which would be tantamount to rendering the Office of the Commissioner’s follow-up process largely ineffective and would lead to an excessive number of court cases on issues concerning the Act. The case is therefore proceeding in Federal Court.

Protection of language rights: Overview of the Commissioner’s interventions before the courts

Nearing the end of his time in office, the Commissioner felt that it was important to report ^{Footnote 43} to the public, to federal institutions and to Parliament about how he exercised his authority to participate in court cases as an intervenor or applicant.

Between 1983 and 2016, the various commissioners of official languages appeared before the courts 104 times. Commissioner Graham Fraser participated in 22 court cases, 9 of which were before the Supreme Court of Canada. Sixty percent of the court cases in which he participated between 2006–2007 and 2015–2016 concerned language rights under the Act whereas roughly 20% concerned language rights protected by section 23 (minority language educational rights) of the Charter.

The decision of whether to intervene in a case or to initiate legal action is made following a strategic analysis that takes a series of factors into account. Generally speaking, the Commissioner will go to court only if he has exhausted all of the non-judicial means at his disposal to persuade a federal institution to meet the language obligations set out in the Act. He will therefore usually wait for the results of his follow-up to an investigation before determining that a court remedy is the only way to compel a federal institution to meet its language obligations.

He will also consider the following:

• Will the case raise new issues with respect to the interpretation of language rights?
• Will the case raise significant procedural or preliminary issues regarding the Federal Court’s jurisdiction or powers?
• Is the court’s decision likely to have an effect on the Commissioner’s mandate and powers?
• What is the likelihood that the decision will set a precedent that will influence future court decisions?
• What additional contribution could the Commissioner make to the debate as Canada’s language ombudsman?
• What impact could the court’s decision have on official language communities?

Experience over the past decade has shown that, too often, legal action still has to be initiated to compel governments and federal institutions to meet their obligations under the Charter and the Act. This imposes a heavy burden in terms of human and financial resources on the people and organizations who have to go to court to ensure that their rights are respected.

The Commissioner therefore calls on the government of Canada, the Parliament of Canada, federal institutions and the provincial and territorial governments to take action to ensure that the language rights guaranteed by the Charter and the Act are fully recognized and respected, thereby reducing the need for Canadians, official language communities and other parties concerned with defending language rights to resort to legal proceedings. To achieve this goal, the dialogue initiated several decades ago between the judicial, legislative and executive branches needs to continue actively and openly, and Canadians and official language communities need to be invited to take part.

Up the Down Escalator

To begin with, let me congratulate you on becoming Commissioner of Official Languages. It is one of the most interesting and challenging positions imaginable, and I consider myself very privileged to have held the job for the past decade. I am proud to pass on a strong team of highly competent, dedicated employees whose commitment to their work made it a pleasure for me to go to work every day.

The mandate represents an ideal that is echoed throughout the Official Languages Act: the equality of English and French as Canada’s official languages. This is spelled out in terms of the federal government’s commitments: ensuring that English and French are the official languages of Canada and have equality of status; enhancing the vitality and supporting the development of English and French linguistic minority communities; fostering full recognition and use of English and French in Canadian society; enhancing the bilingual character of the National Capital Region; and encouraging the business community, labour organizations and voluntary organizations in Canada to foster the recognition and use of English and French.

Just to be clear, the federal government is committed to doing all that. But it is not easy and, unfortunately, even after more than four decades, not automatic. A minority of any kind is always a minority, and majorities are never instinctively sensitive to their needs. Without requirements, reminders, encouragement and inspiration—and your role covers this range—the natural tendency of the majority to ignore the concerns of the minority will prevail.

The toughest phrase in the Act is “equality of status.” “Equality” is a big word. It does not mean a series of accommodations, nor does it mean supplementary service for the unilingual. It means that the service must be of equal quality. Both English-speaking Canadians and French-speaking Canadians have a right to the same quality of service. No member of the public should be required to learn or use the other official language to deal with a federal institution.

Your job is to report to Parliament on whether federal institutions and other institutions subject to the Official Languages Act are actually living up to the ideals and obligations expressed in the Act. In symbolic terms, are both official languages visible and audible in national events and in the national public space? In practical terms, are federal institutions serving members of the public in the official language of their choice? Are federal employees in designated bilingual regions able to work in the official language of their choice? Is there a fair representation of English-speaking and French-speaking Canadians in federal institutions? And are federal institutions taking positive measures to promote the growth and development of linguistic minority communities?

At this point, I would like to sketch out a few of the challenges that I think you will be facing as you take the helm. Some of them I have discussed during my time in office, but I see no likelihood of these issues disappearing in the next few years.

If there is one thing that I have been asked more than anything else, it has been some variation of whether the Official Languages Act is still relevant in the face of Canada’s changing demography. As a way to answer that, we organized a series of forums on cultural diversity and linguistic duality in Toronto, Vancouver, Halifax and Montréal; published a report with Ontario’s French Language Services Commissioner on Francophone immigration and linguistic minority communities; and devoted a significant part of last year’s annual report to the subject of immigration. In my view, the Official Languages Act is all the more important because of the demographic changes brought on by immigration. Canada’s newcomers need to understand the realities of our language policies and the reasons behind them. And immigration needs to be understood as a tool for the growth and development of official language minority communities, not as a threat to their future.

Let me say a word about these communities. Building vital, thriving official language minority communities is like running up the down escalator: stop, and they are carried backwards. The pressures from the majority and the market are constant. But I have been awed by the communities’ determination to ensure that children receive quality education, that health care is available and that social and community services thrive in the minority language.

But the current methods of determining whether services should be available—including measuring whether the minority community represents 5% of the population—contribute to the insecurity of these communities. It means that the right to service in the minority is defined by the growth of the majority. That is why I have endorsed the bill proposed by Senator Maria Chaput that calls for the use of indices of community vitality, such as schools and community centres, for the purpose of designating offices to provide services in both official languages. You may conclude that the time has come for a broader look at the need to revise and modernize the Official Languages Act as its 50th anniversary approaches in 2019. The new bill tabled by Senator Chaput is only one aspect of the conversation that should take place.

One transformative change that has occurred over the past decade has been the explosion of social media. When I became Commissioner in 2006, LinkedIn was three years old, Facebook was two years old and Twitter had been launched just six months earlier. Since then, it has become possible to apply for passports, pay income taxes, apply for pensions and receive a wide range of government information on-line. This has fundamentally changed the way federal institutions communicate and has had a similar impact on language use. This has led me to reflect on two aspects of the realities we all deal with: language spaces and language networks.

By language spaces, I mean the linguistic landscape that indicates that there is a language community present, a landscape that consists of signs, posters and directions, as well as schools and government services available in the minority language. These are the visible indications that a community exists.

They are important not only for the members of the community, but also so that the majority community is aware of the presence of the minority community. These visual markers can also provide critical information for travellers who may otherwise feel that there is no place where their language needs are acknowledged, let alone served.

Language networks are quite different. They can be services that are available on-line or through networks that connect schools, medical clinics or community centres. Canadians can get more and more government services without having to visit a government office and line up at a counter to speak to an official.

Increasingly, these networks are becoming the preferred tool for governments to provide services in the official language of the minority. It is much easier to have a machine helping travellers to check in at the airport in the official language of their choice than it is to have a bilingual employee at the counter. It is much easier to provide bilingual services on-line or at a call centre than at a counter in a government office.

We should not minimize the advantages that these networks offer to individuals seeking services from the state. But we should also recognize that they do very little to strengthen communities. They are invisible. They do not provide a public space where the language is spoken and heard. In fact, they can be deceptive, suggesting to users that both official languages are used publicly more than they actually are.

A few years ago, I spoke to a group of French-speaking immigrants to Canada who told me that they had thought Canada was bilingual coast to coast and were surprised to find that French was rarely seen, spoken or heard in public in Toronto. When I asked them how they had come to believe that English and French were spoken equally in all parts of Canada, they replied that they had got this impression from the bilingual federal websites that they had checked out before coming to Canada. It was an indication to me that a language network—a virtual space—could be quite deceptive about the language space.

I first became conscious of this distinction when I was living in Québec City. The capital of the province of Quebec, Canada’s only officially French-speaking province, has a population of over 500,000 and an English-speaking community of about 15,000: around 3%. I was aware that the post office provided services in both official languages, but I also realized that if I were unable to buy stamps in French, I would have a difficult time living in Québec City. What was much more important for me and my family was the presence of English schools, health services and community organizations like an English library and the Scout movement. It made me understand that the needs of a minority community, who live in a language space, are very different from the needs of the travelling public, who want access to a language network that can provide them with individual service.

Years later, an Ottawa TV host who had been very critical of federal language policy confessed to me privately that when he had been in Québec City covering a political conference, he had felt a sense of relief in the taxi going to the airport, because he knew he could get service in English when he got there.

There is another dual way of looking at the provision of services in both official languages: symbolic and practical. It is a distinction that I have used in talking to organizers of major sporting events in Canada. The presence of both languages sends a symbolic message about the country: this is who we are, this is our identity, we have two official languages.

But there is also a practical need. Canada is really two primarily unilingual language communities that live side by side. Some 90% of English-speaking Canadians do not speak French, while some 60% of French-speaking Canadians do not speak English. So, at a major sporting event, like the Canada Games, it is almost certain that there will be athletes, coaches and parents who do not speak the majority language of the community hosting the Games and who will need brochures, signs and volunteers to provide information in their own language.

These two elements, the symbolic and the practical, will come together in the celebrations of the 150th anniversary of Confederation in 2017. Language has been at the core of the Canadian experience for a century and a half, plus the decades leading up to Confederation. It was discussed at the very beginning and at the very end of the Confederation Debates over the British North America Act. Next year will be an important benchmark that will show us how far we have come and how far we still have to go to achieve the ideal of language equality that is laid out in the Official Languages Act.

The next seven years will be an exciting time for official languages. I wish you good fortune and hope that you enjoy your time as Commissioner of Official Languages as much as I have enjoyed mine.

Graham Fraser

Commissioner’s activities: 2006–2016

To defend the language rights of Canadians, promote linguistic duality or communicate the results of his work, the Commissioner appears before Parliament, intervenes in the media, takes part in legal cases and engages in a dialogue with members of the public and employees of the public service during private meetings and public events. The following tables show the breadth and scope of the Commissioner’s activities between 2006 and 2016.