Parlez-vous français? Canada updates its official languages regime

On June 20, Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts¹, received royal assent and is now in force, subject to certain exceptions. Bill C-13 brings about two significant changes: first, Bill C-13 represents the first major revision of the Official Languages Act (OLA) since the late 1980s; second, federally regulated private businesses will now have linguistic obligations in Quebec. This update provides a brief overview of the amendments to the OLA. 

The OLA receives its first major overhaul in over 30 years

The OLA applies to federal institutions, including Parliament, Government of Canada departments, and most Crown corporations and federal agencies. Part I of Bill C-13 amends the OLA in several important ways, including (i) clarifying and expanding federal institutions’ legal obligations relating to official languages, and (ii) providing enhanced powers to the Commissioner of Official Languages (the Commissioner), such as the ability to make orders and impose penalties. 

Interpretative Framework

Bill C-13 contains important amendments relating to the interpretation of the OLA and the rights and obligations contained therein. First, the OLA’s preamble is amended to specify, for the first time, that federal institutions’ obligations relating to official languages apply at all times, including during emergencies. Second, in a new section 3.1, Bill C-13 codifies the OLA’s interpretative framework, which had largely been established through successive court decisions. Specifically, all rights under the OLA are:

• to be given a large, liberal and purposive interpretation;
• to be interpreted in light of their remedial character; 
• to be applied with the goal of achieving substantive equality; and 
• to be interpreted by taking into account that French is in a minority situation in Canada and North America due to the predominant use of English, and that the English linguistic minority community in Quebec and the French linguistic minority communities in the other provinces and territories have different needs.

The principles relating to emergencies and the French language’s minority situation in North America are newly introduced concepts, which have yet to be tested and interpreted in court. As such, their practical and legal impact on the linguistic obligations set out in the OLA is difficult to ascertain at this time. We will closely monitor the impact, if any, of these new provisions on OLA jurisprudence. 

Advancement of English and French: Part VII

Bill C-13 enhances the scope of a federal institution’s obligations to take “positive measures” to implement the general commitments made under Part VII of the OLA to promote the advancement of English and French. These changes include a commitment by federal institutions to specifically protect and promote the French language as a minority language within Canada and North America. Federal institutions must also now consider the possibilities for avoiding, or at least mitigating, direct negative impacts that their structuring decisions may have on the commitments set out in Part VII, and must establish evaluation and monitoring mechanisms in relation to the positive measures they take in fulfilling these commitments.

New powers for the Commissioner of Official Languages

Bill C-13 significantly amends the powers conferred upon the Commissioner. For instance, the amended OLA affords the Commissioner greater investigative discretion, allowing the Commissioner to refuse or cease to investigate a complaint where, for example, the federal institution concerned has taken corrective measures. The Commissioner may also attempt to resolve a complaint by means of alternative dispute resolution other than arbitration.

The Commissioner may now also enter into compliance agreements with federal institutions, either during or after an investigation, as long as there are reasonable grounds to believe the institution has contravened the OLA. Should the federal institution refuse to enter into a compliance agreement, the Commissioner may make an order directing that institution to take any action considered appropriate to rectify the contravention. Any such order would be enforceable by the Federal Court. 

Conversely, if a compliance agreement is entered into and the Commissioner is satisfied that the federal institution has complied with its terms, the Commissioner may not make any orders and must withdraw any related applications pending before the Federal Court. 

Businesses subject to the OLA should also be aware of the Commissioner’s new powers to make public any summary findings or recommendations relating to an investigation. 

Finally, businesses subject to the OLA that operate in the transportation sector and communicate with or provide services to the travelling public should familiarize themselves with the new administrative monetary penalty regime, which allows the Commissioner to issue a notice of violation where there are reasonable grounds to believe the federal institution has contravened Part IV of the OLA (communications with and services to the public). Although the maximum penalty is set out at $25,000, several key components of this regime have yet to be set out via future regulation, including what constitutes a “violation” warranting a monetary penalty. It is of note that the Commissioner may enter into a compliance agreement rather than issue a notice of violation.

Takeaways

Businesses subject to the OLA should carefully review existing policies to ensure they are in a position to fulfill the enhanced obligations under Part VII of the OLA relating to the advancement of English and French. They should also familiarize themselves with the new powers conferred on the Commissioner, which will likely result in changes to the way complaints are processed, requiring more frequent communications with the Commissioner’s office on an ongoing basis. As mentioned above, the government will be publishing a number of regulations on many of the changes to the OLA discussed in this update. We will continue to monitor any such developments.