On October 25, the Government of Canada tabled significant amendments (the Amendments) to the Official Languages (Communications with and Services to the Public) Regulations (Regulations). As discussed in our April 2018 publication, this regulatory overhaul stems from commitments made in the 2018 federal budget plan to improve access to services offered in the language of the official minority by federal institutions from coast to coast. As part of this endeavour, the government has set out to rethink the circumstances whereby a demand for services in either official language is deemed “significant” and thus mandatory under the authority of the Official Languages Act (OLA). Discussed below are the most significant amendments brought to the Regulations in this regard and their resulting impact on federal institutions in Canada.
A broader, more inclusive definition for official language minorities
In its amendments to the Regulations, the government has proposed a more inclusive method for determining the numeric value of each official language group, i.e., the number of persons belong to each official language community in a given region. To that end, the government’s new definition would seek to include immigrants and bilingual family members who use an official language at home, thus broadening the analysis that currently measures numbers based on the official language first spoken at home. In other words, the proposed calculation method would include the following individuals as being part of an official language group:
- All persons whose first language learned at home and still understood is English or French;
- All persons whose first languages learned at home and still understood are English and French; and
- All persons who, regardless of their first language, currently speak English and/or French at home.
This more inclusive definition will result in more offices of federal institutions meeting the minimum threshold of “significant demand” for bilingual services under the Regulations.
Bilingual designation of all train stations and airports located in provincial and territorial capitals
As the Regulations currently read, both train stations and airports located in provincial and territorial capitals are not consistently designated as “bilingual,” and are therefore not all required to offer services in both official languages. Under the proposed Amendments, train stations and airports engaged in interprovincial travel and located in provincial and territorial capitals would have the duty to ensure that any member of the public be able to communicate with, and obtain available services from, their offices or facilities in both official languages.
Expanded list of key services used by the public
Under the current Regulations, certain key services must be offered and provided to the public in both official languages by at least one federal institution in a region, even if the demand for bilingual services in the region is lower than the otherwise mandated threshold. Such services include those related to income security programs, post offices, employment centres, tax services, the Department of the Secretary of State of Canada, and the Public Service Commission. Following the publication of the next decennial census data, the Amendments would expand the list of key services required to be offered bilingually, so as to include the following:
- Regional development agencies;
- Department of Canadian Heritage;
- Detachments of the Royal Canadian Mounted Police (in certain areas);
- Business Development Bank of Canada; and
- All services offered by Service Canada, including employment, pension and passport services.
Obligation to consult official minority language communities
Currently, the government consults official minority language communities for the purposes of determining the location of bilingual offices pursuant to a government directive. The Amendments incorporate this directive directly into the Regulations, thereby reinforcing the government’s obligation to consult the minority language community when the choice of a bilingual office amongst all offices in a region has to be made.
Recognition of minority schools in a federal office’s service area as an indicia of community vitality
Under the OLA and its current Regulations, factors such as local populations, the nature of the services provided, and the location of the federal institution’s office are used to determine whether a federal institution should communicate and provide services to the public in both official languages. Following the publication of the next decennial census data, the Amendments would require the government to take into account the presence of a minority language school as a factor for determining whether a demand should be deemed as “significant.”
Periodic review of the Regulations every 10 years
The current Regulations have not been updated in over 25 years and often do not reflect the current needs and realities of Canadians. Notably, significant demand for bilingual services is still calculated using the 1986 census data in some circumstances. Under the new Regulations, the government would be required to perform a comprehensive analysis of the Regulations every 10 years, which incidentally is the frequency at which decennial censuses are conducted in Canada.
Depending on the Amendment’s final language when they are registered and thereafter come into force, their impact on federal institutions may be significant. Indeed, certain federal institutions, such as train stations and airport authorities located in provincial and territorial capitals, will be – if they are not already – required to communicate with and offer services to the public in both official languages within one year of the registration of the proposed Regulations.
That being said, the majority of the other Amendments are not expected to come into force before 2023, at which point the federal government has estimated that over 600 offices will be newly designated as “bilingual” under law.
As the Trudeau government dedicates increasing attention and resources to promote official bilingualism and protect language rights in the federal sphere, it is important for federal institutions to turn their mind to related incoming legislative and regulatory changes in this field.
Indeed, the failure to comply with the OLA and the Regulations may lead to a complaint and lengthy investigation before the Office of the Commissioner of Official Languages and, in certain cases, may evolve into litigation before the federal courts. In light of proposed amendments to the Regulations, federal institutions should consider whether they currently have an obligation to provide services in either official language and, if not, whether they will have such obligation under the proposed Regulations.
The authors wish to thank François Savoie, articling student, for his contribution to this legal update.
By Stéphane Erickson, Matthew J. Halpin and Patrick Levesque, Norton Rose Fulbright