March 18th 2019 - Study on Canadians’ views about modernizing the Official Languages Act - Various Witnesses
Senator Poirier: Thank you for your presentations. I have a few questions for you. Do you believe an administrative tribunal is the answer to prevent organizations or Canadians from having to go to court, which costs time and money? I’d like to hear your opinion on that.
Ms. Giguère: To answer your question, it all depends on how the administrative tribunal is structured, and by that I mean that administrative tribunals are created pursuant to an act. So depending on the provisions of that act, there could be advantages, but also disadvantages.
Every federal administrative tribunal applies different rules according to its mandate, whether we are talking about the functioning of the tribunal, the procedure to be followed before it, or the periods prescribed to render decisions. In the abstract, without knowing which model would be used, it’s difficult to say whether that is a perfect solution.
However, depending on the legislative structure, I think appearing before an administrative tribunal instead of a court would be advantageous.
In section 3, tab 10 of the report, I included an excerpt of the Official Languages Act, section 80, which is not well known, but which specifies that the intent of the legislator is that applications under the Official Language Act are to be heard in a summary manner, a simplified procedure that differs from the usual procedure used for other cases that come before the Federal Court.
An administrative tribunal may present advantages, but the existing Official Languages Act already includes a mechanism that opens the door to a procedure that could be simplified and accelerated to facilitate the process for complainants who go before Federal Court.
Senator Poirier: Do you believe the powers of the Commissioner of Official Languages should be revised or strengthened? If so, how?
Ms. Giguère: Thank you for your question. Both Commissioner Fraser, before his departure, and Commissioner Théberge, when he appeared before you last December, said that the way in which the different commissioners did things did not necessarily lead to sustainable changes in the behaviour of federal institutions. Perhaps we do need to add some tools to the commissioner’s toolbox.
Last December 10, Commissioner Théberge submitted that administrative monetary penalties and binding agreements could be two mechanisms that might be beneficial. They are tools that would be used when needed. They would not necessarily be used all the time with all federal institutions. Sometimes there are repeat offenders, and traditional tools may not be effective in certain cases. So adding some new tools might help the commissioner to better fulfil their mandate.
Mr. Homan: I’d like to add a comment. In 2013, the Office of the Privacy Commissioner (OPC) recommended several changes to the Personal Information Protection and Electronic Documents Act (PIPEDA). We feel it is very important that there be several tools to protect privacy. We asked for the power to make orders and impose fines. We would like to see a mandatory system requiring that the OPC and Canadians affected by privacy breaches be notified, one which would also involve compliance agreements.
The issues around privacy breaches and compliance agreements are well known. However, as I said, it is important that we have several tools to ensure compliance with the Privacy Act.
The Chair: I have a follow-up question to Senator Poirier’s question on section 80. Regarding summary procedure, the text reads: “An application [...] shall be heard and determined in a summary manner [...]. Pardon my ignorance, but is that clear in terms of time and the type of procedure?
Ms. Giguère: That is, in fact, an excellent question. The legislator included that option, but for the moment, the Rules Committee of the Federal Courts has not established any specific summary procedure for court remedy under the Official Languages Act. The legislator opened the door but the Rules Committee of the Federal Courts has to establish a summary procedure.
For the time being, remedies under Part X of the Official Languages Act are introduced and managed as judicial reviews. They are not judicial reviews, but they follow the same procedure before the Federal Court as judicial reviews. They could follow another procedure if the Federal Court went ahead with this provision.
Senator Poirier: Thank you for being here and for your presentations.
My first question is for anyone who wishes to respond. Have you had the chance to start considering the creation of an administrative tribunal? If so, what do you think about it?
Ms. Roy: I’ve read a number of reports and heard testimony from various parties. Minister Joly is currently conducting consultations. I know that your committee has heard testimony on this issue. Basically, the minister is waiting for your conclusions on this issue.
My colleagues and I each have our responsibilities under the act. Minister Joly has her responsibilities with regard to Part VII. We’re waiting for your recommendations and views on this issue.
Senator Poirier: Would anyone else like to respond?
My second question concerns the recommendations. As you may be aware, our committee has been conducting a study on the modernization of the act for two years. Our study is almost finished. We’ve consulted many people from various sectors across the country, including young people and not-so-young people. On that note, do you have any recommendations to add to the recommendations proposed by the witnesses who have already spoken?
Ms. Roy: I’ll start answering, and my colleagues can then share their thoughts.
First, I want to acknowledge the committee’s excellent work. I’ve read each of your periodic reports. You covered a number of aspects. You consulted young people. You discussed people’s perspectives, the evolution of the Official Languages Act, official language minority communities, and institutions. You also travelled.
As deputy minister, I can tell you the Minister Joly is looking forward to your report in June. The House of Commons Standing Committee on Official Languages also plans to participate in this study. We want to take all these factors into account when modernizing the act.
You’re doing a tremendous job. You’ve divided your work into five periodic reports. Like Minister Joly, I look forward to reading your report in June.
Ms. Chahwan: I want to join my colleague in thanking you for your work, which we’re all following closely and which will inform the work on the modernization of the act.
I want to draw your attention to the regulations, which are the current subject of consultations on Part IV, in particular the definition of the vitality of communities criterion and the most inclusive way to calculate the threshold for taking into account bilingualism with regard to services to the public.
Mr. Borbey: We’re open to all your suggestions on how to improve the recruitment of bilingual candidates who meet the bilingualism standards, including the whole issue of how the qualification standard could be modernized. The decades-old standard isn’t easy to align with international standards. I think that this leads to some challenges, especially for young graduates of the French immersion program with the DELF or other international standards. We must establish comparisons with federal standards. We must ensure that young people who have achieved a good bilingualism level as a result of their high school education can maintain the skill during their university studies and in the labour market.
Senator Poirier: My last question is for Ms. Sherman. You said in your presentation that deputy ministers aren’t required to meet any bilingualism criteria. Instead, deputy ministers are asked to make an effort. In your opinion, should all deputy ministers be bilingual?
Ms. Sherman: Yes. In fact, most deputy ministers are bilingual. Most of them come from the public service. As public service executives, they have language skills. They don’t always have perfect skills, but they have language skills. The people from outside the public service aren’t always bilingual. However, they’re accustomed to using their second official language at their skill level, and the use of both official languages is encouraged by their institution.