Chapter 4 - Compliance

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This chapter describes the issues identified through the complaints received by the Office of the Commissioner of Official Languages and through the investigations and audits conducted in 2010–2011. It also describes the situation regarding services provided by federal institutions in both official languages to the travelling public.

4.1 Complaints

As an ombudsman, the Commissioner of Official Languages is responsible for ensuring that federal institutions respect the language rights of the general public and of their employees.

The Commissioner frequently uses a proactive approach to help federal institutions realize the vision of a Canada where linguistic duality is a core value. He also intervenes when members of the general public or employees of the federal public service draw his attention to a particular situation.

In most cases, when the Office of the Commissioner receives a complaint, it conducts an investigation—based on a facilitated complaint resolution process—to help the federal institution resolve the situation. This approach is used with the consent of both the complainant and the institution. If this does not work or if the situation does not lend itself to this approach, a formal investigation is conducted and a decision is made on whether the complaint is founded. If the complaint is determined to be founded, the Commissioner can issue recommendations to help the federal institution resolve the situation. If an institution refuses to meet its obligations or implement the Commissioner’s recommendations, the complainant or the Commissioner may in some circumstances seek legal recourse before the Federal Court to obtain a remedy that is considered appropriate and just in the circumstances.

Overview of complaints received

Each year, hundreds of Canadians inform the Office of the Commissioner of the difficulties some federal institutions have complying with the Official Languages Act.

In 2010–2011, the Office of the Commissioner received 1,116 complaints, compared with 1,729 in 2009–2010. There are times when a particular problem results in many people joining forces and many complaints being submitted. In 2009–2010, close to 900 complaints were received about a CBC/Radio-Canada decision that affected the French-speaking community of Windsor, Ontario. And this year, over 400 complaints were filed against Air Canada regarding language-of-work issues.

The Office of the Commissioner determined that, of the 1,116 complaints it received, the vast majority (981) were admissible, and could therefore be subject to an investigation. Over 90% of the admissible complaints were from Francophones. The number of admissible complaints filed by Anglophones was relatively low, but nonetheless it increased from 46 in 2009–2010 to 63 in 2010–2011.

This year, complaints pertaining to language of work comprised just over half (52%) of the complaints that the Office of the Commissioner determined to be admissible.

Graph 2 representing the admissible complaints in 2010-2011 by part of the Official Languages Act
Photograph of Nicole Larocque, Chair of SOS CBEF
Nicole Larocque, Ontario

When an official language community rallies together: the SOS CBEF example

Nicole Larocque is the Chair of SOS CBEF, a group that was created following CBC/Radio-Canada’s decision in 2009 to impose cuts on the only Francophone radio station in southwestern Ontario. According to Larocque, "CBEF plays an essential cultural and social role in Windsor’s Francophone community. The elimination of these programs was a considerable shock when you consider that our community is particularly vulnerable, and that CBEF had already undergone major budget cuts in the past. [translation]"

SOS CBEF is a co-applicant in the Federal Court proceedings the Commissioner of Official Languages initiated in 2010 to have his jurisdiction to investigate this type of complaint recognized and to encourage CBC/Radio-Canada to review its decision regarding CBEF. For its part, SOS CBEF is demanding that all programs eliminated in 2009 be reinstated.

Admissible complaints by part of the Official Languages Act

Figure 3 shows the distribution of complaints regarding communications with and services to the public (Part IV of the Act) and highlights the prevalence of complaints related to communications with the public in writing or in person.

Graph 3 representing admissible complaints in 2010-2011 relating to part IV of the Official Languages Act

In 2010–2011, allegations raised about contraventions of Part IV of the Act were mainly from Quebec, the National Capital Region, the Atlantic provinces and Ontario. Most of those who filed complaints under this category were Francophones. The Office of the Commissioner received 16 complaints from French-speaking Canadians in the Atlantic region after Service Canada decided to change the way in which it provides services to the public in that region. The Office of the Commissioner will be examining these complaints in the upcoming year.

Part V of the Act states that "English and French are the languages of work in all federal institutions." In 2010–2011, the Office of the Commissioner determined 512 complaints relating to Part V to be admissible.

This year, the Office of the Commissioner received 109 complaints related to how the Government of Canada and federal institutions fulfilled their obligations regarding the advancement of English and French and the development of official language communities (Part VII of the Official Languages Act). Canadian Heritage, Industry Canada, Statistics Canada and the Treasury Board of Canada Secretariat were each targeted by 21 complaints, for a total of 84 complaints, as a result of the Government of Canada’s decision to eliminate the long-form questionnaire of the 2011 Census.

In 2010–2011, the Office of the Commissioner received 51 complaints regarding the language requirements of federal public service positions (Part XI, section 91 of the Official Languages Act).

4.2 Investigations

This section deals with complaints whose investigations were completed during the 2010–2011 fiscal year.

Some of the recurring situations faced by federal institutions are highlighted in the following paragraphs. Also described is how these institutions have succeeded in overcoming their challenges or how they should address them.

Meeting demand starts with anticipating demand

Federal institutions must be able to measure and anticipate demand in order to offer service of equal quality in English and French. The Office of the Commissioner conducted two investigations following complaints received against the Immigration and Refugee Board of Canada. These investigations clearly demonstrate the importance of good planning.

One investigation dealt with complaints that some refugee status applicants could not obtain a hearing in French within the same timeframe as they could obtain a hearing in English. At the time of the investigation, in fact, there were not enough bilingual members of the Immigration and Refugee Board at its Toronto office. Furthermore, this office could not determine the bilingual capacity required to provide services of equal quality to its French-speaking clients in the Toronto area.

Fortunately, the Immigration and Refugee Board has started to implement a new case management system that will enable it to record official language data on claims for refugee protection.

With these statistics, it will be able to better assess its specific bilingual human resources needs and ensure that more bilingual people are assigned to these positions.

In the context of the second investigation, this one on the administration of justice (Part III of the Official Languages Act), the Commissioner of Official Languages found that under section 20(2) of the Act, the Immigration and Refugee Board had not translated its final decisions, which were issued in English, into French within a reasonable timeframe. The Commissioner concluded that the institution had not established a procedure for having these documents translated and was therefore not able to take the necessary steps to address this challenge appropriately.

To correct the situation and follow up on the Office of the Commissioner’s investigation, the Immigration and Refugee Board adopted a process whereby translations will now be completed within a reasonable timeframe. It also signed an agreement with the Translation Bureau, which assigned translation teams for these decisions.

Citizenship ceremonies: A golden opportunity

Over the past few years, the Office of the Commissioner of Official Languages has received complaints that some judges presiding at citizenship ceremonies organized by Citizenship and Immigration Canada were not bilingual or spoke very little French. These complaints also stated that employees from this department (or individuals acting on its behalf) did not always provide services in both official languages.

Although the Governor in Council appoints citizenship judges, Citizenship and Immigration Canada must ensure that citizenship ceremonies are conducted in both official languages when there is significant demand in accordance with the Official Languages (Communications with and Services to the Public) Regulations. The Office of the Commissioner’s investigation found that, during the ceremonies cited in the complaints, Citizenship and Immigration Canada did not meet the requirements of Part IV of the Official Languages Act.

In response to the Office of the Commissioner’s investigation, Citizenship and Immigration Canada took measures to address the problems raised in the complaints made by the public. It launched a dialogue with certain official language communities to comply with its obligations regarding the promotion of English and French during the ceremonies. Citizenship and Immigration Canada now provides language training to citizenship judges so that they can conduct the ceremonies in both official languages. The speech made by judges during these events will be revised in order to better reflect Canada’s linguistic duality.

These ceremonies are a great opportunity to emphasize the value of linguistic duality across the country, regardless of whether the office is designated bilingual. Unfortunately, this opportunity is not always seized. Citizenship and Immigration Canada has recognized the importance of promoting linguistic duality and has begun taking measures to ensure that it is properly taken into consideration.

Commissioner discusses linguistic duality with new citizens

In June 2010, the Commissioner of Official Languages was a speaker at the citizenship ceremony organized by Citizenship and Immigration Canada in Montréal. At this event, 53 people from 18 countries became Canadian citizens. The Commissioner encouraged them to help promote linguistic duality.

Federal institutions in the digital age

The Official Languages Act does not provide federal institutions with clear answers on how to operate in the digital universe. However, the Commissioner believes that the digital world is essentially an extension of the paper universe and that, consequently, federal institutions must:

  • provide the public with on-line government services of equal quality in both official languages;
  • provide their employees with computer systems in the official language of their choice;

  • maintain a balance between the English and French information they distribute to the Canadian public via the Internet;

  • meet their official languages obligations when communicating with or consulting the public through social media.

If federal institutions do not factor in these four points, members of the public or employees of the federal public service can file a complaint with the Office of the Commissioner of Official Languages. For example, many people have contacted the Office of the Commissioner to complain about the poor quality of the French version of certain federal Web sites, a situation that is sometimes caused by the use of machine translation tools. In 2010, the Office of the Commissioner received complaints about the Royal Canadian Mounted Police, which had decided to direct its visitors to Google Translate, an on-line translation software, as an option to produce a more timely French translation of the texts that interested them.1

These complaints led the Commissioner to take a proactive approach concerning the quality of the English and French used on over 200 federal Web sites. During his review, the Commissioner also checked to see whether English and French had equal prominence on government Web sites.

This intervention found that about a dozen federal Web sites did not comply with the Official Languages Act. The Office of the Commissioner encouraged those responsible to correct the situation and, since then, some of the sites have been adjusted accordingly.

While federal institutions can use computer programs at a certain point in the translation process, they must also plan for translations to be reviewed by a human being to ensure their quality so that English-speaking and French-speaking Canadians receive the services to which they are entitled.

Is machine translation reliable? Not really...

Donald Barabé, Vice-President of the Translation Bureau, notes that machine translation produces much better results today than it did 10 years ago. This is because computers now use probabilities to choose the translation that will most likely fit a given context. "However, in the vast majority of fields, the machine is not capable of producing quality publications. It can only provide the reader with an idea of what the text is about."

That said, can federal institutions benefit from machine translation by including it as a step in their translation process? "I’m not sure," said Mr. Barabé. "Studies conducted by the Translation Bureau show that the computer often produces a first draft that is so bad that it would be better to ask a professional translator to redo the translation than to have him or her edit the work already done. [translation]"

Positive measures can be planned

In 2010–2011, the Office of the Commissioner received a number of complaints that Industry Canada had not taken the needs of French-speaking minority communities into account when designing and implementing the Knowledge Infrastructure Program. The federal government adopted this two-year $2 billion economic measure to stimulate the Canadian economy and create jobs. Among other things, this program enabled repair, maintenance and construction projects to be carried out in Canadian post-secondary institutions.

The Office of the Commissioner’s investigation determined that the program had produced benefits for some official language communities but that these benefits were fortuitous rather than planned. Industry Canada gave priority to projects that would improve the quality of the research and development conducted in universities and to projects that would improve the quality of training facilities in colleges. Some post-secondary institutions located in official language communities benefited from these projects; however, it seems that this positive outcome was more of a pleasant surprise than an anticipated result.

The Office of the Commissioner believes that before, during and after the implementation of the Knowledge Infrastructure Program, Industry Canada should have taken specific, deliberate measures to define the needs and interests of official language communities and to take them into account. The fact that one initiative from one federal institution happened to have had a positive impact on English and French in Canada is not enough. Each institution must consciously work towards obtaining this result to maximize the likelihood that this will happen and ensure optimal compliance with Part VII of the Official Languages Act.

Complying with a directive is not the same as complying with the Official Languages Act

Some federal institutions feel that they do not have to consider the needs and specific characteristics of official language communities when they are complying with a governmental directive. The development of all federal policies and directives, and their implementation by federal institutions, must contribute to achieving the objectives of Part VII of the Official Languages Act.

For example, in 2009, the Fédération franco-ténoise filed complaints against Public Works and Government Services Canada and the Treasury Board of Canada Secretariat. It said that these institutions had not complied with Part VII of the Act because they had not considered the Fédération as a priority purchaser when selling surplus federal land and buildings in Yellowknife, Northwest Territories.

A review of the decision-making process behind this property transaction led the Office of the Commissioner to conclude that Public Works and Government Services Canada should have identified and factored in the needs and specific characteristics of the Fédération franco-ténoise. In its application of Treasury Board’s Directive on the Sale or Transfer of Surplus Real Property, Public Works and Government Services Canada did not take into account the fact that the Fédération franco-ténoise had had an opportunity to acquire a building that could have housed several community associations, which would have contributed to the vitality of this community.

For these reasons, the Commissioner recommended that Public Works and Government Services Canada establish clear internal directives to ensure that the Part VII obligations of the Official Languages Act are understood by managers and taken into account when selling or transferring surplus land and buildings (or in any other type of related transaction).

The Office of the Commissioner reminded the Treasury Board of Canada Secretariat that it must factor in Part VII when developing its policies and directives. In addition, the objectives of Part VII of the Act should be more clearly detailed in the provisions of policy instruments that fall under the authority of the Treasury Board of Canada Secretariat. This would enable federal institutions to take these objectives into account more effectively when conducting these types of transactions. The Commissioner believes that the Treasury Board of Canada Secretariat needs to make the appropriate clarifications.

Linguistic designation of positions

Section 91 of the Official Languages Act states that federal institutions must objectively determine whether a position should be designated unilingual or bilingual. The linguistic designation of a position is to be determined in part by taking into account the obligations regarding the delivery of services to the public and regarding language of work. This means that a position is likely to be designated bilingual if the incumbent must serve the public in both official languages, if the position is located in a region designated as bilingual for language-of-work purposes, or if the incumbent must supervise or provide advice to federal public service employees who have language-of-work rights.

The Public Safety Canada situation

In volume II of his 2009–2010 annual report, the Commissioner of Official Languages indicated that Public Safety Canada intended to implement an action plan to review the linguistic designation of EX minus one positions that have supervisory functions. Since then, the Department has implemented the plan, but appears to be continuing to advertise job postings with linguistic profiles that do not seem to have been established objectively, given the degree of complexity of the tasks that the incumbents have to carry out.

Federal institutions must then establish, equally objectively, the level of language skills that the incumbent must have in order to carry out his or her tasks. Federal government employees in bilingual positions must have language skills in reading comprehension, written expression and oral interaction in their first and second official language. There are three levels for each skill: A (beginner), B (intermediate) and C (advanced). For example, a position with a CBC/CBC linguistic profile requires the incumbent to be able to write in his or her second language at an intermediate level; a position that involves few complex interactions and requires the incumbent to carry out simple, concrete tasks in his or her second language could be designated BBB/BBB. A supervisory or managerial position, or a position that requires the incumbent to work with abstract concepts or give strategic advice should be designated at least CBC/CBC.

The Office of the Commissioner’s investigations found that many federal institutions often make do by assigning the minimum linguistic profile to positions without conducting an objective assessment. This explains why sometimes, within the same institution, positions involving tasks with varying degrees of complexity all have a linguistic profile of BBB/BBB (bilingual position), French essential (unilingual position) or English essential (unilingual position).

Recommendation 3

The Commissioner of Official Languages recommends that, by November 30, 2012, the President of the Treasury Board establish CBC/CBC as the minimum level of language skills required to supervise employees in regions designated as bilingual for language-of-work purposes.

This type of practice is obviously risky because it can lead to language-of-work issues. For instance, a supervisor whose language skills are below recommended levels would have difficulty supervising his or her employees in the official language of their choice because of the nature of the tasks and the complexity of communications.

Unfortunately, Treasury Board’s Directive on the Linguistic Identification of Positions or Functions,2 to which many managers refer, does not take the foregoing into account and states that federal institutions can establish the linguistic profile of supervisory positions at the BBB/BBB level as a minimum.

The Commissioner believes that the level of language skills required to supervise employees in regions designated as bilingual for language-of-work purposes should be at least CBC/CBC. Supervisors must provide feedback and advice to their employees and handle sensitive issues related to human resources management and performance assessments, all in the preferred official language of each employee.

BBB/BBB is not a one-size-fits-all solution

In 2011, the Office of the Commissioner of Official Languages published a study called Beyond Bilingual Meetings: Leadership Behaviours for Managers, which shows that establishing BBB/ BBB as the level of language skills required for intermediate supervisory positions prevents federal institutions from complying with their language-of-work obligations. "In the end, it is not enough to designate supervisory positions as bilingual and to staff them imperatively. All supervisory positions must have a language profile of CBC and the incumbents must maintain their skills in their second official language to ensure actual bilingual capacity and foster a bilingual workplace."3

4.3 Audits

The Office of the Commissioner of Official Languages intervenes in a preventive or targeted manner, depending on the circumstances, by auditing federal institutions’ compliance with the Official Languages Act. These audits usually lead to recommendations for improvement. The Office of the Commissioner conducted three audits this year.

Environment Canada

On June 2, 2010, the Office of the Commissioner published the follow-up to its 2008 audit of the bilingual weather and environmental services provided on the Environment Canada automated telephone network. The 2008 audit had shown major shortcomings in the active offer of bilingual services and the availability of bilingual weather information on the automated telephone network.

The follow-up report revealed that Environment Canada and the Meteorological Service of Canada demonstrated good leadership by taking concrete measures to ensure that Canadians can obtain information on the weather and the environment in the official language of their choice.

Service Canada

On December 7, 2010, the Office of the Commissioner published an audit report on the delivery of bilingual services by Service Canada centres, outreach sites and call centres.

The audit revealed that Service Canada had set up a framework to administer the official languages program and that progress had been made on the active offer of bilingual services. However, shortcomings still exist, particularly with regard to bilingual capacity in some regions and the formal mechanism for consulting with official language minority community representatives. To address these shortcomings, the Commissioner made seven recommendations to Service Canada. The institution has developed an action plan to address the recommendations.

National Defence

On March 8, 2011, the Office of the Commissioner published a follow-up to its 2006 audit of the language of work at National Defence Headquarters. The 2006 audit had shown that Anglophones and Francophones had not received equal treatment with regard to language of work at Headquarters, and that working conditions had not allowed Francophones to use their language.

The follow-up revealed that National Defence had adopted some useful measures and made significant efforts to promote both official languages and to raise employees’ awareness of their rights and obligations. Four years after the audit, however, it seems that there are still not enough bilingual supervisors and military personnel who are able to provide central services in English and French, which makes it difficult to create a work environment that is conducive to the use of both official languages at National Defence Headquarters.

Positive results

The Commissioner has noted that the three institutions that were audited seem determined to act on his findings. The commitment demonstrated by senior management and staff at Environment Canada, Service Canada and National Defence will help these institutions resolve their issues and strengthen linguistic duality for years to come.

Two upcoming audit reports

The Office of the Commissioner of Official Languages conducted two audits in 2010–2011. In spring 2010, it initiated an audit of service delivery in English and French to Air Canada passengers. The report will be released in fall 2011. In March 2011, the Office of the Commissioner began its review on how Industry Canada is fulfilling its responsibilities under Part VII of the Official Languages Act, especially section 41. This report is expected to be released in spring 2012.

4.4 The travelling public

Federal institutions that are called upon to serve the travelling public are often the first point of contact for visitors to Canada. They are therefore well positioned to show that linguistic duality is a fundamental Canadian value. Unfortunately, some of these institutions do not seem to understand that English and French must be treated equally at all times.

A number of federal institutions that are unable to ensure the substantive equality of English and French on site believe that they are properly fulfilling their language obligations because they have bilingual capacity. For example, during investigations conducted by the Office of the Commissioner, the Canada Border Services Agency and the Canadian Air Transport Security Authority have very often insisted that bilingual officers were on duty at the time of an incident described in a complaint. Nonetheless, complainants could not receive service of equal quality as they would have had to wait longer to be served in their preferred official language than those being served in the other official language.

Photograph of Michel Thibodeau, a traveller with Air Canada
Michel Thibodeau, Ontario

French-language service at Air Canada

Michel Thibodeau and his wife took two disappointing trips with Air Canada in 2009. "This carrier repeatedly failed to serve us in French on board the aircraft. It was the same when our luggage arrived at the airport in Toronto and Ottawa. We therefore initiated legal proceedings in the Federal Court to ensure our rights are respected. [translation]"

This is the second case Michel Thibodeau has filed against Air Canada. In the first instance, he won his case before the Federal Court of Appeal in 2007, seven years after he filed his complaint. Taking the language rights of all French-speaking travellers to heart, Michel Thibodeau perseveres. "With the support of the Office of the Commissioner of Official Languages, we have shown that, over the years, Air Canada has systematically failed to meet its obligations under the Official Languages Act. We ask that the Federal Court compensate us for the violations of our language rights and render an order imposing measures to force Air Canada to come up with a definitive solution to the systemic problems hindering its full respect of our rights and those of all Francophones. [translation]"

Commissioners of official languages have long deplored the fact that complainants must go to court to obtain concrete and long-term results from federal institutions.

Some institutions use logistics or technology as pretexts to justify the fact that they do not offer services of equal quality to Anglophones and Francophones. For example, at some border crossings in Ontario, the Canada Border Services Agency considers it appropriate to make French-speaking travellers go to bilingual officers located in the secondary examination area because, logistically, it would be impossible for the bilingual officers to go to the travellers. The Canadian Air Transport Security Authority says that sorting mechanisms, such as floor mat randomizers that automatically select a service point for each traveller, prevent visitors who wish to be served in the official language of their choice from being directed towards a line where bilingual employees are assigned.

Other institutions have a minimalist interpretation of the Official Languages Act. As a result, most major Canadian airport authorities mistakenly continue to interpret their language obligations in a very narrow way, as if they only applied to the travelling public and not the general public, and as if the Act only applied to the area restricted to travellers but not the rest of the airport. For example, most airport authorities believe that passengers with a boarding pass have the right to be served in the official language of their choice at stores located in the area of the airport restricted to passengers, but not in the cafés, restaurants or stores located outside of the security gates.

Recommendation 4

The Commissioner of Official Languages recommends that, by March 31, 2013, the Minister of Transport, Infrastructure and Communities make the necessary legislative changes to clarify the language obligations of airport authorities and thus confirm the right of the general public to communicate with them and receive services in either official language, pursuant to Part IV of the Official Languages Act.

 

Notes

1 See "La GRC propose Google Translate," Radio-Canada, August 2, 2010, on-lineExternal site version accessed March 31, 2011 [French only].

2 Treasury Board of Canada Secretariat, Directive on the Linguistic Identification of Positions or Functions (Ottawa, 2004), on-lineGovernment site version accessed March 31, 2011.

3 Office of the Commissioner of Official Languages, Beyond Bilingual Meetings: Leadership Behaviours for Managers (Ottawa, 2011), p. 8. Also available on-line (accessed March 31, 2011).



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