Follow up to the recommendations in Implementing Section 91 of the Official Languages Act: A Systemic Problem

1. Introduction

For years, I have been asserting that more needs to be done within federal institutions to ensure that section 91 of the Official Languages Act (the Act) is respected. This section of the Act, which applies to all federal institutions and organizations subject to the Act, with a few exceptions, states the following and makes it incumbent upon federal institutions to ensure that they establish a position’s language requirements objectively—that is, based on the duties of the position:

Nothing in this Act authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken.

Foundational to my concern over the implementation of section 91 within federal institutions is the substantial number of founded complaints that my office has investigated over the past decade. For example, a review conducted by my office in 2020 showed that between April 1, 2014, and March 31, 2020, 664 (93%) of the 713 complaints that my office resolved through completed section 91 investigations were founded.

Results such as these are worrisome, especially given that members of the public and federal public servants can all be adversely affected when section 91 of the Act is not respected, since an employee who does not have the necessary language requirements for a position will not be able to provide quality service in both official languages. One can therefore reasonably expect that when this situation is replicated on a large scale, the result is a workforce that is insufficiently bilingual to fully meet a federal institution’s obligations to the public, and work environments that are not conducive to the effective use of both official languages. It is important to be aware that, in addition to these consequences, the more federal institutions ignore their obligations regarding section 91, the more difficult it will be to create and maintain inclusive and respectful workplaces that are representative of the richness of Canadian diversity.

Given the importance of section 91 and the high volume of section 91 complaints filed with my office, I published a report in November 2020 called Implementing Section 91 of the Official Languages Act: A Systemic Problem. In my report, I concluded that non-compliance with section 91 of the Act is a systemic problem within federal institutions, and I identified some contributing factors, such as insufficient training and a lack of monitoring mechanisms. To address these issues, I made the following five recommendations to all federal institutions in my report:

  • Adopt internal policies, procedures and tools, or review those already in place, on establishing the language requirements of positions, taking into account the issues raised in this report.
  • Implement a control mechanism to ensure that managers understand the policies, follow the procedures, use the tools and consult their official languages personnel when establishing the language requirements of positions.
  • Conduct regular assessments of the language requirements of positions and of the policies, procedures and tools, and remedy any shortcomings.
  • Ensure that official languages personnel and delegated managers take the appropriate training.
  • Develop and implement a plan to increase awareness among managers and employees of section 91 of the Official Languages Act.

I also made two recommendations for the Treasury Board of Canada in my report:

  • Review its policies and tools on establishing the language requirements of positions, taking into account the issues raised in this report and the needs expressed by the federal institutions.
  • Review, together with the Canada School of Public Service, the courses the latter provides on section 91 of the Official Languages Act to ensure that the training is sufficient (number and content of courses, and target audience) according to the needs identified in this report.

All seven recommendations had an implementation deadline of November 2022.

In the years following the publication of this report, my office continued to receive a significant volume of admissible section 91 complaints: 968 between April 1, 2020, and March 31, 2021, and 640 between April 1, 2022, and December 31, 2022. Given these numbers and considering that it is imperative that federal institutions recognize their roles and responsibilities and take concrete measures to ensure that the language requirements of positions are established objectively at all times, I announced on January 10, 2023, that I would be conducting a follow-up to the recommendations listed above.

The follow-up to these recommendations took place between March 2023 and February 2024 and involved the following 10 federal institutions with a high volume of section 91 complaints in recent years, as well as the Treasury Board of Canada Secretariat (TBS):

  • Canada Border Services Agency
  • Public Services and Procurement Canada
  • Employment and Social Development Canada
  • Health Canada
  • Correctional Service Canada
  • Royal Canadian Mounted Police
  • Immigration, Refugees and Citizenship Canada
  • Agriculture and Agri-Food Canada
  • Global Affairs Canada
  • Shared Services Canada

These institutions had also received, in individual investigation reports, the recommendations from my November 2020 report.

During the follow-up, each institution submitted its responses and documentation, which my office evaluated. My office then provided each institution with a detailed preliminary follow-up report that outlined my assessment of that institution’s implementation of the recommendations. Institutions were invited to provide additional comments and documentation, which my office took into consideration for the final follow-up report that each institution received. This report is a summary of my findings from these follow-ups.

I would like to note that an important development has taken place since the follow-ups were conducted. At the time of the exercise, TBS ’s Directive on Official Languages for People Management stated that BBB was the minimum level of second language proficiency for supervisory positions in regions designated as bilingual for language-of-work purposes. This differed from my position, as I had been reiterating for many years that a CBC level should be required to reflect the complexity of supervisory work and the importance for supervisors to be able to create a workplace conducive to the use of both official language by setting the example. TBS has since updated the Directive, which now states that, beginning on June 20, 2025, new appointments to bilingual positions involving the supervision of employees in designated bilingual regions will require a minimum linguistic profile of CBC/CBC (or equivalent). TBS has also provided institutions with guidance documents to help them in this transition. This is an encouraging development and an important step in improving federal institutions’ compliance with section 91 of the Act.

2. Analysis

2.1 Recommendations made to all federal institutions

Recommendation 1

Adopt internal policies, procedures and tools, or review those already in place, on establishing the language requirements of positions, taking into account the issues raised in Implementing Section 91 of the Official Languages Act: A Systemic Problem.

Status of implementation: Partially implemented

The follow-up examined the extent to which institutions had policies, procedures and tools in place for establishing the language requirements of positions, and assessed the quality of those policies, procedures and tools, especially as it pertained to the issues raised in my November 2020 report.

The follow-up found that all 10 federal institutions provided their employees with basic information on establishing the language requirements of positions objectively. Whether it concerned a policy, procedure or tool, most federal institutions ensured that their employees had access to definitions of key terms (for example, central services, members of the public), links to important resources (for example, the List of Bilingual Regions of Canada for Language-of-Work Purposes, TBS ’s Qualification Standards in Relation to Official Languages), and explanations of basic principles (for example, a position’s language requirements cannot be altered to favour a specific outcome in a staffing process). In addition, institutions often addressed the topic of bilingual capacity, conveying the message that, where an obligation exists, a work unit must have a sufficient combination of bilingual and unilingual positions to ensure that available services are equally accessible in both official languages at all times and of equal quality in English and French. These elements and concepts are foundational to understanding how to establish the language requirements of positions objectively. Including them in policies, procedures and tools is a step in the right direction.

In addition to these fundamentals, institutions’ policy documents often contained more extensive information. For example, they detailed who must be consulted when establishing a position’s language requirements. The follow-up found significant differences between institutions in this respect. While some institutions required delegated authorities to consult official languages specialists, others directed these authorities to human resources personnel. And while consultation was mandatory in some institutions, others required it only when issues arise. I would like to stress that given the importance for Canada to have a public service that has the necessary skills to respect and promote both official languages throughout the country, it is important that managers with delegated authority consult official languages personnel when establishing the language requirements of a position, since these individuals have the most extensive skills and knowledge in this area.

The policies provided within the scope of this follow-up also tended to establish an institution’s position on the appropriate language requirements for supervisory positions in designated bilingual regions. To my disappointment, most policies stated that a BBB/BBB linguistic profile is appropriate, mirroring the standard set out in TBS ’s Directive on Official Languages for People Management at the time. In contrast, one institution supported my position that a CBC/CBC linguistic profile is the minimum requirement for supervisory positions, given the complexity of supervisory work and the obligation to supervise employees in the official language of their choice in designated bilingual regions.

In terms of procedures, the documents provided outlined the administrative steps for modifying or establishing a position’s language requirements. They often involved the delegated authority completing a form or an analysis grid and then submitting it to human resources or official languages personnel for review and action. The basic forms detailed the position’s classification and level, work location and duties as they relate to handling grievances, providing personal or central services, supervising staff and providing services to the public. In contrast, more detailed forms led managers through a step-by-step analysis in determining a position’s language requirements, taking into account the duties of the position, the bilingual capacity of the work unit and the institution’s official languages obligations under the Act. Some went a step further, requesting that a position’s work description and organization chart be submitted with the form. I would like to note that these additional documents are critical in providing official languages personnel with the information they need to determine whether the delegated authority has correctly assessed a position’s language requirements. I noted, however, that only one institution had a mechanism in place for resolving disagreements between official languages personnel and delegated authorities. In the other institutions, it is the delegated authority who ultimately decides a position’s language requirements, even if it is against the advice of official languages personnel. Nonetheless, I would like to commend institutions for having forms and procedures in place, as they are integral to establishing a formal and documented mechanism for determining the language requirements of a position.

With regard to tools for establishing the language requirements of positions, the follow-up found that the number of resources available varies greatly by institution. While some institutions provide their employees with multiple tools, others have none in place at all, and the latter often stated that external resources (for example, TBS ’s tool entitled Determining the Linguistic Profile of Bilingual Positions and the Office of the Commissioner of Official Languages’ Tool for the Linguistic Identification of Positions) are sufficient. However, despite this claim, and as I stated in my November 2020 report, these external tools are not always well understood by managers, which can lead to incorrect assessments of the language requirements of positions. Institutions therefore still need to have internal tools in place. Nonetheless, some of the tools provided for this follow-up are beneficial and should be highlighted. For example, some institutions have Frequently Asked Questions pages, which serve as a quick reference tool for important concepts, and others have best practices documents that provide managers with practical examples.

In general, however, the follow-up found that more needs to be done to equip employees—and managers in particular—with the appropriate resources for establishing the language requirements of positions objectively. For example, almost half of the federal institutions involved in this follow-up were unable to show that they had all three components of the recommendation: a policy, a procedure and a tool. In addition, many of the documents submitted were either in draft mode and therefore not yet operational, or had clearly not been reviewed since the recommendations were made. Some were so out of date that they referenced rescinded TBS directives. In some cases, none of the documents provided by the institution showed managers how to conduct an objective assessment of a position’s language requirements. These results are extremely disappointing, given that the federal institutions had two years to implement the recommendation.

Recommendation 2

Implement a control mechanism to ensure that managers understand the policies, follow the procedures, use the tools and consult their official languages personnel when establishing the language requirements of positions.

Status of implementation: Partially implemented

In response to the recommendation, some institutions shared a communications plan showing that policies, procedures and tools were to be communicated to employees, whereas others provided copies of newsletters or emails in which they shared the aforementioned. Although these initiatives are helpful in promoting an institution’s resources, they do not ensure that delegated managers understand and use them. The federal institutions also provided copies of forms that managers must submit to official languages or human resources personnel when requesting to establish or modify the language requirements of a position. Those that require a full analysis of the position’s duties and work description and consider the bilingual capacity and organization chart of the work unit may serve as a control mechanism in some respects. However, as shown in the previous section, the forms have numerous shortcomings and often do not amount to a complete analysis. This mechanism should be strengthened to ensure that managers fully understand their institution’s policies, procedures and tools. Lastly, as was also stated in the previous section, consultation with official languages personnel was not always mandatory.

Although some efforts have been made toward implementing control mechanisms to ensure that managers understand their institution’s policies, follow their procedures, use their tools and consult official languages personnel, it is evident that more needs to be done.

Recommendation 3

Conduct regular assessments of the language requirements of positions and of the policies, procedures and tools, and remedy any shortcomings.

Status of implementation: Not implemented

The follow-up found that, in general, institutions do not conduct regular assessments of the language requirements of positions. Although some claim that they have a mechanism in place to identify and address trends in staffing and/or that they conduct audits, they were unable to provide further information, such as the frequency of such reviews, or provide supporting documentation demonstrating that this amounted to a regular assessment. Most institutions, however, stated that an assessment was done only during a staffing action.

With regard to conducting regular assessments of policies, procedures and tools, many institutions acknowledged the importance of such a mechanism, but most institutions either had taken no action in this regard or claimed to have a mechanism in place but were unable to provide supporting documentation.

To my disappointment, and despite having two years to put measures in place, the follow-up found that institutions have done very little to implement this recommendation.

Recommendation 4

Ensure that official languages personnel and delegated managers take the appropriate training.

Status of implementation: Partially implemented

The follow-up found that, while most of the institutions provide internal training to delegated managers and official languages personnel on how to establish the language requirements of positions objectively, this training is often recommended rather than mandatory. Moreover, where training is mandatory, institutions were often unable to explain whether or how they monitor whether the training has been completed. The follow-up also found that some institutions provide training only on an ad hoc basis. For example, one institution stated that its official languages program offers presentations to different groups throughout the year, some of which pertain to section 91 of the Act. Although this is beneficial in promoting an understanding of the Act, it does not ensure that all delegated managers and official languages personnel receive the appropriate training. Institutions need to have a system in place to ensure that the appropriate training is mandatory and recurrent.

It should be noted that a few institutions did not implement this recommendation at all. Within these institutions, the situation remains much as it was when my November 2020 report was issued. In other words, when training is provided, the topic of establishing language requirements objectively is addressed generally or in passing among other topics related to management or official languages. These institutions tend to rely on the training offered by the Canada School of Public Service (CSPS), and they provided little information on the training provided to official languages personnel.

Although some progress has been made on this recommendation, it is evident that further improvements must be made to ensure that delegated managers and official languages personnel receive the appropriate training on establishing the language requirements of positions objectively.

Recommendation 5

Develop and implement a plan to increase awareness among managers and employees of section 91 of the Official Languages Act.

Status of implementation: Partially implemented

In response to this recommendation, federal institutions submitted copies of official languages action plans, departmental communications plans and national communications strategies. These detailed, specific initiatives were aimed at increasing awareness of language rights and obligations under the Act through initiatives such as monthly newsletters, mass emails or presentations to employees. Although these plans often covered parts IV and V of the Act in great detail, most only vaguely touched on section 91 and often missed important concepts, such as bilingual capacity or how to establish the language requirements of positions. In addition, while some plans were well structured, others lacked important information, such as time frames for the activities described.

Regrettably, half of the institutions involved in the follow-up were unable to demonstrate that they had taken any action toward developing and implementing a plan to increase awareness among managers and employees of section 91 of the Act. Given the importance of this part of the Act and the need for managers and employees to be made aware of their rights and obligations, it is extremely concerning that these institutions did not take action to implement this recommendation.

2.2 Recommendations made to the Treasury Board of Canada

Recommendation 1

Review its policies and tools on establishing the language requirements of positions, taking into account the issues raised in Implementing Section 91 of the Official Languages Act: A Systemic Problem and the needs expressed by the federal institutions.

Status of implementation: Partially implemented

The follow-up found that, in response to my November 2020 report, TBS established an interdepartmental working group with the mandate of examining the recommendations contained in the report. After gathering and analyzing data on the practices in place and challenges experienced by federal institutions, the working group developed a three-year action plan (2022–2025) aimed at improving compliance with section 91 of the Act across the federal public service.

According to the action plan, at the time of the follow-up, TBS had intended to strengthen policy mechanisms through various initiatives. First, it planned to revise the Directive on Official Languages for People Management by June 2025 to raise the minimum second language requirements for supervisory positions in designated bilingual regions from BBB to CBC (new appointments only). Second, TBS stated that it would review the Qualification Standards in Relation to Official Languages by April 2024 and establish guidelines by December 2024 to help federal institutions in establishing the language requirements of positions.

In terms of tools, TBS said that it will be reviewing its publicly available tool entitled Determining the Linguistic Profile of Bilingual Positions by December 2025. It also said that it is planning to create a collection of tools and best institutional practices in establishing official languages requirements and will make these accessible to federal institutions by February 2024. A glossary, decision tree and a questions and answers document on establishing language requirements will be made available by September 2024.

The action plan also states that TBS intends to increase awareness of language requirements among key stakeholders (including deputy heads, official languages champions and the management community) by creating a virtual orientation kiosk on section 91 of the Act by December 2025. The kiosk will include general information, the revised directive, guidelines, training, awareness and mobilization activities and various tools. TBS also plans to develop and publish articles for information in newsletters for the various official languages key stakeholders to raise awareness of how to establish language requirements objectively.

In terms of completed and ongoing activities, TBS stated that it has included a question about the language requirements of positions on the questionnaire that it sends institutions to inform its Annual Report on Official Languages. In addition, it stated that, in 2022, it gave three presentations on section 91 of the Act to persons responsible for official languages and has published informative articles and newsletters on language requirements, including a decision tree for staffing management positions (2021) and a questions and answers publication on non-imperative staffing (2022). According to TBS , more publications will follow shortly.

In summary, the information provided demonstrates that, at the time of the follow-up, TBS had conducted an analysis of the challenges that affect compliance with section 91 in the federal public service, and has created a plan and actionable steps to improve compliance. While I recognize the efforts TBS has made, the fact remains that, even though the institution has developed a plan to fully implement the recommendation by 2025, there were few tangible results at the time of the follow-up. Indeed, I had intended for the review of policies and tools to be completed within two years of the date of my 2020 report—that is, by November 2022. According to the information provided, the plan itself was not approved by TBS until the fall of 2022, and the updated tools will not be available until 2024–2025. In recognition of the action plan, presentations and tools developed by TBS , and given that the policies and tools have not yet been reviewed, as was stated in the recommendation, this recommendation is considered to have been partially implemented.

Recommendation 2

Review, together with the Canada School of Public Service, the courses the latter provides on section 91 of the Official Languages Act to ensure that the training is sufficient (number and content of courses, and target audience) according to the needs identified in Implementing Section 91 of the Official Languages Act: A Systemic Problem.

Status of implementation: Partially implemented

The action plan referred to in the previous section states that TBS plans to revise the content of specific courses offered by CSPS by March 2024. TBS said that it has proposed to CSPS that the following courses be revised:

  • Respecting Official Languages in the Public Service (FON415)
  • Managing Official Languages Obligations (FON413)
  • Staffing: A Resourcing Tool for Managers (COR132)
  • Authority Delegation Training: Managing People Effectively (COR152)
  • Introduction to Organization and Classification (COR133)

TBS confirmed that it has been asked by CSPS to assist in the revision of the module on official languages for COR132 and will contribute in the same manner for COR152. TBS added that consultations are currently in progress.

In addition, TBS stated that it is currently participating in the development of a training framework for human resources specialists. It stated that it has created an interdepartmental working group composed of federal institutions that play an important role in the acquisition and improvement of official languages knowledge, and explained that this will aid in the development of different training programs.

While I recognize the efforts TBS has made to implement the recommendation, the follow-up found that TBS has an active role in reviewing only two of the courses listed above. Moreover, none of the courses have yet been reviewed, although the deadline to implement this recommendation was November 2022. In light of the above, this recommendation is considered to have been partially implemented.

3. Conclusions

The institutions involved in this follow-up demonstrated various levels of effort and success in implementing the recommendations of my November 2020 report. Although progress is being made toward addressing the issues that impact the effective implementation of section 91 of the Act, the extent of this progress and the rate of implementation within federal institutions is concerning.

As described in this report, the effects of non-compliance with section 91 of the Act are far-reaching. Failure to objectively establish language requirements hinders an institution’s ability to provide services to the public in both official languages, to ensure that employees in designated bilingual regions are supervised in the official language of their choice and to create and maintain work environments that are conducive to the effective use of both official languages.

When section 91 is respected, we can expect to observe increased well-being in the workplace, decreased linguistic insecurity, stronger institutional bilingualism and an environment that reflects the values of inclusion and diversity. Taking section 91 obligations seriously is an important step toward ensuring that the workforce in the federal public service is representative of our Canadian society, which is in constant evolution.

In my November 2020 report, I called for tangible and sustainable results, and although federal institutions had two years to address my recommendations, the fact remains that more needs to be done. I am pleased to see that measures are coming, such as the review of the Directive on Official Languages for People Management; nevertheless, I urge federal institutions to put more formal plans and mechanisms in place to support the full implementation of my recommendations and section 91 of the Act.