Proceedings of the Standing Senate Committee on
Issue No. 38 - Evidence - Meeting of March 18, 2019
OTTAWA, Monday, March 18, 2019
The Standing Senate Committee on Official Languages met this day at 4 p.m. to examine and report on Canadians’ views about modernizing the Official Languages Act, and, in camera, to consider a draft agenda (future business).
Senator René Cormier (Chair) in the chair.
The Chair: Honourable senators, The Standing Senate Committee on Official Languages is continuing its examination of Canadians’ views about modernizing the Official Languages Act. Today, we continue with the fifth theme of the study, which pertains to federal institutions.
From the Office of the Commissioner of Official Languages, we are pleased to be joined by Mr. Pierre Leduc, Assistant Commissioner, Policy and Communications Branch, Ms. Ghislaine Saikaley, Assistant Commissioner, Compliance Assurance Branch, and Ms. Pascale Giguère, General Counsel, Legal Affairs Branch.
From the Office of the Privacy Commissioner of Canada, we are also pleased to welcome Mr. Brent Homan, Deputy Commissioner, Compliance Sector, and Mr. Regan Morris, Legal Counsel, Legal Services Directorate.
Before I give the floor to our witnesses, I’d like the committee members to introduce themselves, starting with the deputy chair.
Senator Poirier: Good afternoon, and welcome. I am Rose-May Poirier, from New Brunswick.
Senator McIntyre: Paul McIntyre, from New Brunswick.
Senator Smith: Larry Smith, from Quebec.
Senator Maltais: Ghislain Maltais, from Quebec.
Senator Gagné: Raymonde Gagné, from Manitoba.
Senator Moncion: Lucie Moncion, from Ontario.
Senator Jaffer: Mobina Jaffer, from British Columbia.
The Chair: Welcome to our committee. Ms. Giguère, you have the floor.
Pascale Giguère, General Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages: Thank you very much. Good afternoon, Mr. Chair and members of the committee.
Following Commissioner Raymond Théberge’s appearance before this committee last December 10, it is a pleasure for us to be here as his representatives, to give you a technical briefing on some of the enforcement mechanisms that were mentioned by the commissioner and by other witnesses.
With me today are Ghislaine Saikaley, Assistant Commissioner of Compliance Assurance, and Pierre Leduc, Assistant Commissioner of Policy and Communications. Together we will try to answer your questions about the implementation of some of the proposals put forward by the commissioner.
I also note that we are in excellent company with our colleagues from the Office of the Privacy Commissioner.
To help us do that, we thought it might be useful to provide you with a series of documents highlighting the various technical elements that would need to be considered for each proposal. I invite you to open the document that you have before you. As you will see in the table of contents of our compendium, we have included several documents that cover, in section 1 administrative monetary penalties, or AMPs, as we like to call them in English, and SAP in French. We have also included information on compliance agreements and some practical examples in section 2.
Also in the compendium is some information on the process for Federal Court remedies that currently exist in the Official Languages Act, in section 3, as well as an illustration of how administrative tribunals fit into the Canadian judicial system.
Last December, Commissioner Théberge presented his vision on the modernization of the act. This coming May, he will present a more detailed position.
In the meantime, our goal is to assist you and answer your questions on the implementation of some of the enforcement mechanisms that the commissioner has talked about. We will be happy to answer your questions by referencing the different documents before you. Thank you.
The Chair: Thank you, Ms. Giguère.
Mr. Homan, you have the floor.
Brent Homan, Deputy Commissioner, Compliance Sector, Office of the Privacy Commissioner of Canada: Good afternoon, Senators. With me today from my office is Regan Morris, Legal Counsel. I would like to thank the committee for the invitation to speak about compliance agreements in the context of your study on modernizing the Official Languages Act.
The OPC is mandated to conduct independent and impartial investigations into complaints about the management of personal information involving businesses subject to the Personal Information Protection and Electronic Documents Act (PIPEDA), and government bodies subject to the Privacy Act.
The Privacy Commissioner has no direct enforcement powers. He may seek resolution of a complaint through negotiation, persuasion and mediation and may make recommendations to help prevent issues from recurring. He cannot make orders or impose fines.
Should a private sector organization fail to comply with our recommendations under PIPEDA, the commissioner can apply to the Federal Court to seek an order requiring the respondent to take actions to correct its practices. The court may also award damages to the complainant. The OPC can also enter into a voluntary compliance agreement with a private sector organization to help ensure that the organization follows through on commitments it has made to the OPC to rectify its practices.
There is currently no equivalent mechanism under the public sector Privacy Act. The OPC has had the authority to enter into compliance agreements with private sector organizations since 2015, when PIPEDA was amended under the Digital Privacy Act.
To date, we’ve entered into five compliance agreements. Our experience with compliance agreements has generally been positive, but it is clear that there is still room to increase their effectiveness.
On one hand, they allow us to be flexible. We can include any terms in a compliance agreement that we consider necessary to ensure compliance. We may use a compliance agreement to underscore issues of great scope or concern to our office or to the Canadian public. To date, compliance agreements have resulted in positive privacy outcomes. For example, our monitoring of the Ashley Madison Compliance Agreement allowed us to ensure a fulsome implementation of a variety of remedial actions, including the implementation of a comprehensive privacy and security framework.
On the other hand, the commitments, terms and timelines in the compliance agreement must be negotiated with an organization. We do not have the authority to impose specific terms on an organization.
As is the case with our investigations or audits, in the absence of sufficient cooperation, we must file an application with the Federal Court to enforce the terms of our compliance agreement. However, compliance agreements have the advantage of being court enforceable based on their terms, while, absent a compliance agreement, a Federal Court application for an investigation would represent a de novo court proceeding.
Compliance agreements are an arrow in the quiver to support the OPC’s regulatory role, but they are not a substitute for enforcement powers and the ability to levy fines.
Our principles-based law is quite permissive and gives companies wide latitude to use personal information for their own benefit. Under PIPEDA, organizations have a legal obligation to be transparent and accountable, but Canadians cannot rely exclusively on companies to manage their information responsibly.
Commissioner Therrien has called for legislative reform to give Canadians better privacy protection through modern, rights-based legislation that can be effectively enforced. In particular, he has asked for the power to make orders, issue fines and conduct inspections to promote compliance. These powers would bring the OPC in line with many of our international regulatory counterparts in the privacy world.
It is not enough to simply ask or negotiate with organizations to live up to their responsibilities. Canadians need laws that will protect them when organizations fail to do so. Respect for those laws must be enforced by a regulator, independent from industry and the government, with sufficient powers to ensure compliance.
Thank you, and I welcome your questions.
The Chair: Thank you, Mr. Homan.
We will begin our question period with our deputy chair, Senator Poirier.
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 could 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.
The Chair: Thank you.
Senator Jaffer: Thank you very much for your presentations.
Earlier this month, the Fédération des communautés francophones et acadienne du Canada launched a proposition for new wording in the Official Languages Act. They had been calling for the creation of an official languages tribunal since 1988, and I know you know that. The FCFA proposes that a modernized Official Languages Act would create an official languages tribunal that would be empowered to educate alleged language rights violations and issue binding orders. I understand there is no other body that looks at language rights on its own, and that’s why they are proposing this.
Second, they would like to allow the Commissioner of Official Languages, after investigating a complaint, to take upon itself to investigate a systemic issue.
Can you please comment on their suggestions? And what mechanisms or tools do you already have in place to help with this?
Ms. Giguère: Thank you very much.
The legislator has provided since 1988 a system where the complaints are investigated by the office of the commissioner, and the commissioner issues a report in which he concludes whether or not the complaint is founded. That ends the investigation process per se. We do a follow-up on the recommendations, so there is more to the process. However, after the final report is issued, complainants can go to the Federal Court to obtain a remedy, which can be damages for the breach of their language rights, a declaratory order — whichever remedy a complainant feels would be warranted. It could be an excuse letter from the federal institution. Those remedies are available at the Federal Court as a second step of the process.
The FCFA, as you mentioned, has issued a proposed bill, amending the Official Languages Act, in which they change the role of the commissioner by having the commissioner investigate complaints but not make recommendations, and sending the matter up to an administrative tribunal instead of the Federal Court.
I will let the commissioner, when he appears before you, express his views and comments on the proposed bill, but from a legal perspective, I can offer some food for thought about what is being proposed.
There are interesting points in what is being proposed by the FCFA. There are certain things that would probably constitute an increased effectiveness of the mechanism. There are also considerable changes proposed to the role of the commissioner and the manner in which investigations would be conducted that might require a bit more reflection.
Regarding the second part of your question, the FCFA has proposed that the tribunal, for example, would give AMPs, administrative monetary penalties, whereas the commissioner had proposed that his office should be giving these AMPs.
One of the things you will see in the several documents we have provided is the objective of that tool, usually, is to be more proactive. It’s to encourage compliance with the act. It’s not a tool to punish an institution that has failed to comply with its obligations.
In that sense, it can be very effective if it’s used by the body that ensures compliance with the act, as opposed to being saved for later when there is a finding about a violation and we’re at a point where we need a remedy and a point where we’re more into punishing the federal institution.
So, from a legal perspective, while both options are legally possible, there would certainly be some advantages to considering this option earlier on in the process.
Several of the legislative options we’ve provided are able to give an AMP. It can be given by the employees of the federal institutions mandated to oversee compliance with the act. So it’s not given by a tribunal or a court. There are other tools a tribunal can use such as penalties, perhaps. But usually, in many cases, it’s used as a proactive mechanism to ensure compliance.
Senator Jaffer: Do you often look at systemic issues?
Ghislaine Saikaley, Assistant Commissioner, Compliance Assurance Branch, Office of the Commissioner of Official Languages: Yes, actually, we do. Usually when we have a certain number of complaints about an issue, we deal with the complaint in a different way. We join the cases and try to work with the federal institution to encourage them to deal with the issue, bringing with us, in support, the number of complaints that we received. Yes, we try to deal with them in a different way than individually.
When we collect the information about the complaints, that’s when we can decide, for example, to do an audit of a case. Instead of doing individual investigations, we will decide to do an audit of the federal institution because we conclude that there’s a systemic issue.
Senator McIntyre: I want to welcome our representatives from the two commissioners’ offices. Unfortunately, the representatives of the Office of the Information Commissioner are not here today, but they provided a written brief.
As you know, the purpose of our meeting is to strengthen the mechanisms related to compliance and monitoring under the Official Languages Act. According to the testimony we have heard, we have two options to strengthen those mechanisms. First of all, some suggest the creation of an administrative tribunal — you answered a question on that from Senator Poirier — and others ask that the Commissioner of Official Languages be given the power to impose penalties.
That said, Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, and to make consequential amendments to other acts, was tabled last June in the House of Commons and is being studied by a Senate committee at this time. The purpose of the bill is to modernize the Access to Information Act and to give the commissioner more powers, such as the power to make orders.
The Information Commissioner, Ms. Caroline Maynard, still maintains that the power to make orders in the bill is not compelling enough. She would like the orders she makes to be certified by the Federal Court, which would make them binding on the institution at fault. In addition, the Privacy Commissioner, Mr. Daniel Therrien, has for a long time been asking for more power to apply the Privacy Act and the PIPEDA.
What are the advantages and disadvantages of including these mechanisms in the Official Languages Act?
Ms. Giguère: That is a very broad question and I will try to answer as briefly as possible.
In the documents we submitted to you, there is an information document we drafted. At tab 1, in the section highlighted at the top of page 4, you will find a description of an administrative monetary penalty regime. We describe it as being transparent, predictable, detailed, uniform, equitable and impartial.
Under the “Subject” heading on page 3 of the same document, you will also find a description of the regime which says that its main purpose is to encourage compliance through incentives. So the advantage of administrative monetary penalties is to encourage institutions that have not complied with their obligations, for all kinds of reasons, to begin to comply with the law with respect to their obligations.
Your question was also about the Information Commissioner and the effectiveness of the power to make orders. Each tool is improved and becomes complementary due to the fact that there is more than one tool at the commissioner’s disposal, which helps to ensure compliance with the law. Binding agreements, for instance, are an interesting tool. The idea is that commissioners would have a range of tools at their disposal, such as administrative penalties, to allow them to intervene when institutions do not respect commitments made in a binding agreement.
The power to make orders is a very interesting power that other commissioners already have. That is the case, for instance, for the Pay Equity Commissioner. This is an entirely new commissioner’s position that has yet to be staffed. Its enabling legislation is very recent, as it received royal assent in December 2018. However, in the final analysis, if the power to make orders is not accompanied by a mechanism to ensure that the culpable entity is subject to additional penalties, it is not really an effective power.
Indeed, the power to register an order with the Federal Court should the institution not follow up on its commitments would make it more likely that commitments or orders would be respected.
Senator McIntyre: We often hear it said that the Official Languages Act has no teeth, which is why we are considering strengthening compliance and monitoring mechanisms to enforce the law. Thank you, Ms. Giguère.
Senator Moncion: Could you tell us about the success rate of these measures? This is all well and good, but it seems to me that it does not go any further. Is there some way of making things work? If people are asking that a tribunal be created, it is because there must be gaps somewhere. Could you tell us what you think about this?
Ms. Giguère: The success rate depends a lot on the tools in the toolbox. For the system to be effective, we need several tools. If there is a binding agreement and it is not respected, it is advisable that there be administrative penalties to follow up if institutions do not comply with the commitments. The success rate of administrative penalties has been clearly demonstrated, I believe. It is a tool that is amply used in federal legislation. Thanks to a brief search, I found more than 50 laws that allow the imposition of administrative monetary penalties, including several in the new laws which were passed more recently.
The effectiveness of this mechanism depends, of course, on the amount of the monetary administrative penalty and on whether the penalty is proportional to the situation you are trying to correct. For example, if the amount is too small, the fact of having to pay administrative penalties may be seen as part of the cost of doing business. If the amount is too large, you will also miss the objective. You can see this in the documents we submitted. We highlighted certain passages in yellow, where it says that the effectiveness of this mechanism depends on a proper assessment of the amount required to attain the objectives of a transparent, predictable, detailed and equitable system. The amount of the administrative monetary penalty has to have been determined properly.
Quite recently, in March 2019, the Office of the Auditor General of Canada issued a press release indicating that the amounts of the administrative monetary penalties imposed by the Canada Border Services Agency, which has the power to impose monetary penalties to promote compliance with its act, were too low. The Auditor General recommended that those monetary penalties be increased. The idea is to have the right tools and also to ensure that those tools are well adapted to every situation.
Senator Gagné: Thank you for your presentations. I’d like to go back to the administrative monetary penalty mechanism for the two commissioners. You mentioned an example where it did not work very well, but I’d like to hear some concrete examples from both commissioners’ offices of cases where this mechanism worked and where it had an effect on a federal organization.
Mr. Homan: With regard to the advantages and disadvantages of compliance agreements, I can comment on the matter of penalties. Compliance agreements allow the organizations to voluntarily demonstrate their commitment to co-operating with our office. However, in the end, these compliance agreements are voluntary. That can be a problem because with a voluntary mechanism, you must negotiate a resolution. What happens if the organization decides not to respect the resolution? We cannot impose fines. I think that is the big advantage in having a system with several tools; not just compliance agreements, but compliance agreements that are supported by the power to make orders and impose fines.
I believe there is another organization, the Financial Consumer Agency of Canada, which has the power to impose administrative monetary penalties. It works for that institution.
Senator Gagné: So, Bill C-58 has not given you the power to impose administrative monetary penalties; have I understood correctly?
Regan Morris, Legal Counsel, Legal Services Directorate, Office of the Privacy Commissioner of Canada: Yes, that is the case, there is no monetary penalty system in the bill.
Senator Gagné: Why are we hesitating? Why this hesitation, since this was requested in the report of the previous commissioner? Is there an explanation? I’m trying to understand.
Mr. Homan: We submitted several recommendations in 2013, including those involving orders, penalties, fines and agreements. Up until now, we have only managed to implement the agreements. I don’t know why the decision was made to not grant the other powers. However, we remain hopeful for the future.
Senator Gagné: So, you are hoping that the Senate will propose this, is that it?
Ms. Giguère: May I add something regarding your question on the effectiveness of this tool? At tab 3, we provided an example of a case where this worked well. It involved climate change and Environment Canada, which has a system of administrative monetary penalties. It is a very interesting system. If you look at the last page of this document, page 17, we discuss the fact that the administrative monetary penalties that are collected go into a fund dedicated to protecting the environment. So, it’s a bit like a polluter-payer system where compliance is ensured by imposing administrative monetary penalties. They are placed in a fund and are used to finance projects to benefit the environment. A recent evaluation has shown that since the fund was created, $4.8 million was collected and used to fund 201 projects throughout Canada. So these penalties generated benefits. The maximum penalty amount is $25,000. I think that this measure did indeed have an effect.
Senator Gagné: So, the penalty was imposed on a federal organization or a private enterprise.
Ms. Giguère: Both. Under this particular system, you will find the reference on page 11 which says that this may be imposed on federal institutions and private, municipal or provincial institutions. So anyone may be subject to them.
Senator Gagné: I have another short question. Are you able to compare the real impact of a penalty imposed on a federal organization and one imposed on a private entity? Is there a difference?
Ms. Giguère: It’s difficult for us to answer that question because we don’t manage that fund, and we are not the body responsible for enforcing the act. However, we can see that the fund was used liberally, and it does not simply exist for appearances’ sake. This mechanism has positive spinoffs for the environment.
We can assume that the same mechanism could be developed for official languages. Last December 10, the commissioner spoke of a fund for linguistic duality. If we had a similar administrative monetary penalty mechanism, we could use it to promote federal institutions’ compliance with the law. In cases where organizations do not comply with the law, we could collect funds to finance projects to promote the development and vitality of official language minority communities. It seems conceivable that that mechanism could readily be applied in the official languages context.
Senator Maltais: How much did the Commissioner of Official Languages collect? You referred to $2 million in fines?
Ms. Giguère: It was not the Commissioner of Official Languages but the Department of the Environment. For the environmental protection fund, the department collected $4.8 million.
Senator Maltais: That’s a substantial amount?
Ms. Giguère: The amount seems interesting to me.
Senator Maltais: Get going then, and crisscross Canada as soon as possible!
I’d like to go back to page 4. When you compare FINTRAC to the Official Languages Act, the administrative penalties cannot compare. FINTRAC is the result of an Criminal Code-related act that applies to the RCMP, the Canada Revenue Agency and the Department of Justice. Since you are a lawyer, you know that administrative penalties are not handled by the same courts; one goes to small claims court and the other to the Supreme Court. So you can’t really make such a comparison.
Ms. Giguère: You are correct. What we presented with respect to FINTRAC is a system that would be on the scale of the organization. The administrative monetary penalties are imposed by the employees of the organization. According to the seriousness of the violations, it is even possible to undertake legal proceedings.
Senator Maltais: All of the commissioners of Official Languages sent compliance notices to Air Canada to at least force the employees of that enterprise to say hello and goodbye in one of the two official languages. However, I travelled on Air Canada a week ago, and nothing has changed. The commissioners of Official Languages have been complaining for 30 years, they all come here to see us, they go to the House, they go everywhere. You have no power. As long as the Commissioner of Official Languages does not wield judicial punitive powers, the situation will remain the same.
Your office does not have the power to enforce the act. How do you expect people to take things seriously? What you say is all well and good; we can read the entire document, it will take us a week. However, what will be the result if on the last page you tell us that you don’t have the power to enforce the law? The situation is the same for official languages. The commissioner came to tell us that he needs punitive powers. I agree, but the government does not want to give him any, and you don’t have any either.
We can come up with all of the theories we like. Unless that legal power is in the act, nothing else matters. These are epistolary exchanges between two bishops who do not understand each other. That is all I had to say.
Ms. Giguère: You are absolutely right. We need powers that are not in the law. The special report tabled in Parliament by Commissioner Fraser, before he completed his mandate, discussed Air Canada. He did in fact ask that more powers be granted, such as the right to impose administrative monetary penalties. The powers in question were not just for his office, in order to give the law more teeth, but he also mentioned other types of powers, such as fines that could be imposed by the courts. The idea was to combine administrative and judicial mechanisms so as to have a good range of mechanisms, so that these institutions could finally be made to comply.
You mentioned Air Canada, but there are other enterprises that make our “top five” list, year after year. That is certainly not the only entity for whom the commissioner could use new tools to ensure compliance. The commissioners have said that we have reached a point where investigations and recommendations work well in some cases, but not in all cases. Some new tools would help us achieve a better compliance level.
Senator Maltais: I mentioned Air Canada because all of the Commissioners of Official Languages have complained about it daily. Every Monday they find a pile of complaints on their desks. This is due to the fact that that corporation is really delinquent. There are others I will not name and that don’t come to mind but that entity is the most egregious because it carries passengers, and people are in a position to notice the lack of respect for the Official Languages Act.
Senator Moncion: My question is in the same vein as Senator Maltais’ comment. When it comes to official languages, there seems to be a double standard. On the one hand, we don’t impose monetary penalties, we practise moral suasion and things don’t go any further, because we’re dealing with languages. I was a bit amused earlier when you were talking about monetary penalties in the case of polluter-payers. Like Senator Maltais, I thought that all we would need to do is crisscross Canada and collect funds in order to be able to launch projects.
We have repeatedly heard commissioners of Official Languages telling us that they found it difficult to be both judge and party to the dispute. I’d like to hear your thoughts on that.
Ms. Giguère: I don’t think that the administrative monetary penalty mechanism would place the commissioner in an awkward situation. That mechanism is used by several other departments. Employees impose administrative monetary penalties and mechanisms are in place to ensure that the system is fair and transparent for the organizations involved. I think the model has proven its worth. We would need to implement proper mechanisms within the organization. Most of the regimes you will examine include the option of having the administrative penalty reviewed, and then at another point the organization receiving the penalty may appeal, if it feels that the amount is not justified or that it did not deserve it. We have to put in place the proper mechanisms to ensure that the system functions well.
Senator Moncion: You are talking about another regime, are you not? Are you referring to another law besides the Official Languages Act, or are you saying that this mechanism exists within that act?
Ms. Giguère: I am talking about other systems that include administrative monetary penalties. This act does not. Based on our observation of other existing regimes, we think this tool would be useful.
There are two new commissioner positions. I mentioned the Pay Equity Commissioner earlier. There is also the Accessibility Commissioner. I believe Bill C-81 has reached second reading in the Senate. That position will no doubt soon be a reality. If the bill is adopted as is, it would also include the power to impose administrative monetary penalties. It would be the same kind of regime that exists elsewhere, with a mechanism to ensure its effectiveness and compliance. It could be a very interesting tool that would allow us to achieve a better level of compliance.
In the documents, you will see that we mention the fact that some laws are fundamental and establish very important objectives that need to be complied with. You will find this at tab 4, on page 2. We are talking about very important objectives that need to be respected. I would say a parallel can be drawn between what is said there and the Official Languages Act, which does deal with fundamental rights. It is extremely important that the right tools be put in place to achieve maximum compliance.
Senator Gagné: My question is for Mr. Homan. In your presentation, you referred to compliance agreements the Privacy Commissioner may conclude with organizations that do not respect the law. If I remember correctly, you said there had been five. Has it ever been necessary to obtain a court order to get organizations to respect those agreements?
Mr. Homan: No. Up till now, for the five compliance agreements, it has not been necessary to take any cases to court because the agreements were not respected.
Senator Gagné: Fine. Do you think that such agreements could be used to correct systemic gaps within the government order system?
Mr. Homan: In my opinion, systemic issues are a good target for compliance agreements. People need to follow all of the conditions in a compliance agreement, and typically, the more complex the problem, the more difficult it is to follow up and see to it that the conditions are met. So, compliance agreements are effective in doing that.
The Chair: I have a question to ask you before we conclude the meeting. In what way would the addition of a mediation process be useful in those two laws, that is to say the enabling act of the Office of the Privacy Commissioner, and the Official Languages Act? To my mind, since we are trying to give the law some teeth, the mediation process seems weak. I’d like to hear what you have to say, because some witnesses have suggested that a mediation process should be put in place.
Ms. Giguère: Indeed, that is not one of the tools we felt we needed to put forward. However — and Ms. Saikaley could add to this — in the context of the investigations we carry out, we have a process of facilitated complaint resolution. This is a process where we attempt to resolve cases in a more informal way, in a way the commissioner finds satisfactory. It’s very different from mediation that is managed by both parties involved and where both may find a solution they can live with.
In the area of fundamental rights, it’s very difficult to accept less than what is required by law. That is why it would be difficult to practise mediation in the official languages area. I practised family law, where child custody is at issue. It is possible to arrive at a compromise in such situations because there is no perfect situation; but here, in the case of fundamental rights, it’s very difficult to arrive at a compromise that confers anything less than the quasi-constitutional or constitutional rights the law confers on Canadians.
Mr. Homan: Our law already includes mediation, and our office has mediation mechanisms at its disposal. A range of tools is necessary. Sometimes we need to investigate in a more complex and formal way in the case of large organizations, but often there are opportunities to resolve less complex, less systemic issues. There is an opportunity for both parties to resolve an issue outside of the more complex system.
That is very useful, because 60 per cent of our complaints are quickly resolved through mediation or resolution. There is a need for informal tools so that we have the capacity to develop the more formal tools that require more resources.
Ms. Saikaley: At the Office of the Commissioner of Official Languages, 30 per cent of our complaints are resolved through a facilitated complaint resolution process. These are mostly individual rights complaints or quite simple cases. For instance, a sign was not in both official languages, and the institution agreed to change it. However, that is rarely effective in resolving systemic or recurrent complaints that involve service to the public, for instance. We use the process in those cases, but there are limits.
The Chair: Thank you very much. Without wanting to summarize your comments, the word that has come up most often has been the word “tools”. Your offices need more robust tools that would allow you to do your work and that would by the same token give the Official Languages Act more teeth. We take good note of your comments and recommendations. Thank you for answering our questions.
We are continuing our examination of the fifth theme of our study on modernizing the Official Languages Act, which pertains to federal institutions.
From the Public Service Commission of Canada, we are pleased to welcome Mr. Patrick Borbey, President; from the Treasury Board of Canada Secretariat, Ms. Nancy Chahwan, Chief Human Resources Officer; from Innovation, Science and Economic Development Canada, Ms. Guylaine F. Roy, Deputy Minister, Tourism, Official Languages and La Francophonie. Finally, from the Privy Council Office, we are pleased to welcome Ms. Janine Sherman, Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal.
Mr. Borbey, you have the floor.
Patrick Borbey, President, Public Service Commission of Canada: Thank you for inviting me to appear before the committee today as part of your study on modernizing the Official Languages Act. I understand that you are into the fifth part of the study, which involves the powers and obligations of federal institutions.
As you may be aware, I co-wrote the report The next level with my colleague Matthew Mendelsohn, the Deputy Secretary to the Cabinet, Results and Delivery, at the Privy Council Office. I will quickly provide some history of our report, briefly touch on the recommendations made, and then I will be pleased to answer any questions you may have.
Let me begin by saying that this topic is near and dear to me and it has been all my life.
As a Franco-Ontarian from northern Ontario, I quickly learned the importance of bilingualism and have made it a priority all through my studies, my career and my personal life.
It is for this reason that I was pleased when the Clerk of the Privy Council asked me to examine official languages in the federal public service context. It was also a pleasure to work with Mr. Mendelsohn on the preparation of our report, entitled The next level: Normalizing a culture of inclusive linguistic duality in the Federal Public Service workplace, which was released in September 2017. It is based on consultations with hundreds of public servants who generously shared their ideas, best practices, hopes and concerns with us.
The recommendations in our report focus on five themes. These themes are leadership, politics, culture, training and tools. The Committee of Assistant Deputy Ministers on Official Languages is now leading the collective efforts to review and follow up on the recommendations.
I want to bring your attention to the co-chairs’ message in the report.
If the recommendations made are fully implemented, we believe that they will lead to important changes in our approach to official languages within our world-class public service. Some current practices must be called into question, since they do not meet the needs of a dynamic and modern public service. We also realize that implementing the recommendations will not be easy and cannot be done overnight.
I could go on talking about official languages and bilingualism, but I will wrap up by thanking the committee for conducting this important study and keeping this important dialogue alive.
One thing that I learned during my career is that few subjects get people talking like the subject of official languages. In fact, people hesitate to even raise this subject publicly since the issues can be somewhat divisive.
However, I believe that, by discussing the issues openly, we can ensure that bilingualism and linguistic duality will remain fundamental values in the public service, now and in the future.
In terms of full disclosure, I will remind you that I was not President of the Public Service Commission at the time the report was drafted. However, I can certainly provide information with respect to the Public Service Commission’s official languages role should that be helpful today or at a future meeting. And, finally, I can assure you that the Public Service Commission is enthusiastically committed to bilingualism and linguistic duality across the public service.
As we proudly celebrate the fiftieth anniversary of the Official Languages Act, we look forward with optimism to the modernization of this legislation, which is a cornerstone for diversity and inclusion in Canada. I would be pleased to answer your questions. Thank you. Meegwetch.
Guylaine F. Roy, Deputy Minister, Tourism, Official Languages and La Francophonie, Innovation, Science and Economic Development Canada: Good afternoon, committee members and colleagues. As deputy minister responsible for official languages, I’m responsible for the Committee of Assistant Deputy Ministers on Official Languages, which we more commonly refer to as the CADMOL. The CADMOL provides key leadership in official languages and helps promote coordinated government action.
In the fall of 2017, the Clerk of the Privy Council entrusted this committee with the follow-up of the implementation of the recommendations of my colleague Patrick Borbey and Matthew Mendelsohn’s report on the use of official languages in the federal public service.
The mandate of the committee has been expanded to address official languages issues that go beyond the implementation of horizontal initiatives. The mandate is now structured around three priorities. The first one is language of work in the federal public service and, of course, the follow-up to Patrick’s report, The next level, regarding the language of work in the federal public service. The second is the implementation of the federal strategy on official languages, the action plan, 2018-2023. And finally, there is the management of other issues of interest related to the Official Languages Act. An example of that is the modernization of the legislation, of course.
The list of federal institutions has also been reviewed by that committee. The committee has grown from 17 to 23 official members, including major employers within the Government of Canada such as National Defence, Correctional Service of Canada and the Canada Border Services Agency.
The members also include the Council of the Network of Official Languages Champions, which represents all federal institutions.
The co-chairs have also been strengthened. In addition to Canadian Heritage and the Treasury Board Secretariat, Justice Canada and the Privy Council Office are co-chairs of the committee and they co-chair meetings in an alternative manner. The committee is now required to report twice a year to the Clerk of the Privy Council on the implementation of the recommendations in the report entitled The Next Level.
The committee meets about five times a year, including a meeting that I chair, to discuss major official languages issues, such as the language of work. Each year, the committee consults the official language minority communities. The committee is also invited to give a presentation each year to the Public Service Management Advisory Committee. This committee is composed of deputy ministers and associate deputy ministers and is chaired by the secretary of the Treasury Board.
I can assure you that my employees and I are fully committed to moving forward with the major official languages file and to following up on the report prepared by Mr. Borbey and Mr. Mendelsohn.
I am going to go fast. I cannot appear before you without talking about the modernization of the legislation and the fiftieth anniversary of the legislation. You know that the Prime Minister has mandated Minister Joly to undertake review of the act. On March 11, the minister announced the launch of the review, and she is holding forums and round tables around the country. The purpose is to get input on major issues and also to see how we can ensure the sustainability of the communities. The review process will conclude with a big symposium at the end of May with experts, members of the communities, federal institutions and so on.
The minister’s approach is complementary to the exercises already under way. These exercises include the work of the House of Commons Standing Committee on Official Languages; your work — and I must say that I read all your reports as soon as they’re released; the work of the Commissioner of Official Languages; and the work of organizations across the country. You must also have read the FCFA proposal, which we’ll take into consideration. In addition, the work being done everywhere, including the work on the language of work, is relevant to our process of modernizing the act for its fiftieth anniversary.
I would be pleased to answer your questions.
Nancy Chahwan, Chief Human Resources Officer, Treasury Board of Canada Secretariat: Good afternoon, senators. Thank you for the opportunity to speak with you today.
As chief human resources officer, my role is to ensure we have a public service that is agile, inclusive, equipped and bilingual. Already, Canada has one of the best in the world, but there is always room for improvement. Our vision is of a workforce that is trusted to deliver the best possible services and does so for French-speaking and English-speaking Canadians in the language of their choice where required.
That’s why I am proud of the work we have done on the review of the Official Languages Regulations as they relate to Part IV of the Official Languages Act.
The proposed regulations recognize the growing diversity of our minority communities and propose a more inclusive method of calculation to estimate the demand for services in the official language of the minority. For the first time, the regulations recognize the vitality of communities and propose that the presence of a minority school become a criterion for determining whether a federal office should offer bilingual services. This more inclusive approach is the one we also apply in other areas, which brings me to language of work.
Today’s public service is much more bilingual than it was 50 years ago. In 1978, only 69.7 per cent of employees in bilingual positions met the language requirements of their positions. In 2017, the percentage was about 96 per cent. Like Canada itself, the public service has also become a much more diverse organization.
On this fiftieth anniversary of the Official Languages Act, we’re at a turning point in several respects.
We are determined to create a workplace for public servants that embraces all people, one that is inclusive of our diversity and conducive to our linguistic duality. In fact, diversity, inclusion and linguistic duality are complementary values, as echoed in the Many Voices One Mind report, the joint task force on diversity and inclusion report, and other important documents.
We therefore have the opportunity to rethink many of the foundations of our bilingual public service. Let me talk about language learning.
Since I’ve taken office, it has become clear to me that we need to take a more comprehensive approach. We must consider language learning as a continuum, which includes recruitment, training, evaluation, practice and continuous improvement of the second official language.
To get there, we need renewal. The report on language of work that my colleague Patrick Borbey spoke to you about earlier and that he prepared with Matthew Mendelsohn contains many important elements. These include language proficiency levels. Our levels are over 35 years old. We need to examine them thoroughly. To this end, we’ll launch a pilot project this year.
In my opinion, we should aim for a more universal but also more open model. For example, the model should help us recognize the language skills of young Canadians across our country, and why not? This would be both an important incentive for young people and an asset for recruitment.
But not everyone in Canada has the same opportunity to become bilingual. That’s why we need to improve the quality and accessibility of language training, while tailoring it to different learner needs, including cultural learning needs. As chief HR officer, I know that no change is simple with an organization the size of the public service, but as I mentioned, our public service is one of the best of the world.
My office, in partnership with my colleagues here today, has embarked on solving the complex challenges raised in the language of work report. I look forward to the inspiring work of this committee and to the questions that you may have today.
The Chair: Thank you very much, Ms. Chahwan.
Ms. Sherman, the floor is yours.
Janine Sherman, Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal, Privy Council Office: Thank you and good afternoon, honourable members of the committee. I’m pleased to be with you today as part of your study on the modernization of the Official Languages Act.
I want to start by providing an overview of the Governor-in-Council appointment process. In February 2016, the Prime Minister announced a new approach to Governor-in-Council appointments, which requires an open, transparent and merit-based selection process to boost confidence in democracy in Canada and ensure the integrity of the country’s public institutions.
This approach applies to more than 1,400 appointments, the positions on federal missions, boards, Crown corporations, agencies and tribunals across the country, including part-time positions. The Senior Personnel Secretariat at the Privy Council Office provides support and advice to the Prime Minister and to the Clerk of the Privy Council on these appointments. The government recognizes the importance of a bilingual GIC community and considers bilingualism proficiency as part of its assessment of candidates in their ability to carry out their duties, whether that be in a local, regional or national context. So, when candidates submit applications online, they are asked to provide information on their second official language proficiency.
Some positions, such as the agents of Parliament, are covered by the Language Skills Act. This act requires that any people appointed be able to speak and understand both official languages at the time of their appointment. In this case, language skills are evaluated through formal examinations of writing and speaking skills.
In cases where bilingualism isn’t required by the act for appointments, notices of appointment opportunities posted online show that proficiency in both official languages is an asset, and that second language proficiency will be evaluated during an interview process.
A selection committee takes into account language skills, among other factors, when submitting its list of qualified candidates for the minister’s consideration.
Since the implementation of the new approach in 2016, over 1,030 appointments have been made through an open, transparent and merit-based process.
More than 53 per cent of these positions have been filled by women, 13 per cent by individuals who self-identified as a visible minority, and over 9 per cent by persons who self-identified as Indigenous. Just over 50 per cent of these appointees have self-identified as bilingual. These results are based on self-identification.
I would also like to take a few minutes to talk about the importance of bilingualism in the federal public service deputy minister community. You may know that deputy ministers are appointed at the discretion of the Governor-in-Council and aren’t subject to the same second language evaluation as federal public servants. However, they must support and promote the objectives of the Official Languages Act by ensuring the use of both official languages in their institutions. It’s part of their terms and conditions of employment.
The majority of deputy ministers have undergone second-language evaluations, although it is not mandatory, and second-language training is available to deputy ministers, as needed.
The Privy Council Office monitors compliance with this obligation of the deputy ministers to support the Official Languages Act through the annual performance management program. This includes input from the Commissioner of Official Languages, as well as information on compliance policy on official languages as assessed through the Management Accountability Framework.
Lastly, thank you again for giving me the opportunity to speak to your committee today. I would be pleased to answer your questions.
The Chair: Thank you for your presentations.
We’ll start the question period. I want to remind my colleagues and the witnesses that we agreed on five minutes per question and answer. Please be brief.
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.
Senator McIntyre: Thank you for your presentations. The witnesses to date have been virtually unanimous on the need to make a central agency responsible for implementing the Official Languages Act. In other words, we should designate a responsible institution with adequate oversight powers and compliance mechanisms. However, there’s no consensus on which of the Privy Council Office, the Treasury Board, Canadian Heritage, or a minister responsible for official languages should take on that task. In New Brunswick, the premier is responsible for implementing the official languages legislation. This would be a model to follow.
My question is the following. Which of these institutions should take on this responsibility?
Ms. Chahwan: Thank you for the question. I can’t respond directly, because these are responsibilities related to Part VIII of the act, which isn’t under my responsibility. We’ll read your report carefully, but we’ll also listen to the people who provide input during the consultations.
I want to provide the information for the following reason. At this time, the Treasury Board is responsible for the official languages policy. Under this policy, at the secretariat, we have some monitoring and audit power. The audit power is mentioned in the act. Even in the absence of a single authority, there are currently provisions regarding either the act or official languages policies that enable us to carry out this monitoring and to ask deputy heads, who are responsible for compliance within their departments and agencies, to act accordingly.
Senator McIntyre: What matters is the coordination of official languages. Ms. Sherman, some people are suggesting that the Privy Council Office should have this responsibility. These witnesses are drawing from a previous experience, when a minister responsible for official languages carried out the coordination task under the act with the support of the Privy Council Office and a committee of deputy ministers responsible for official languages.
Did having a minister responsible for official languages reporting directly to the Privy Council Office have a positive impact on the advancement of official languages? I want to hear your thoughts on this.
Ms. Sherman: Thank you for the question. I think that it’s important to consider the issue in the context of our system of governance. The deputy ministers are given all the administrative powers of the department. In this situation, they must exercise their leadership with regard to official languages.
In terms of coordination, I think that the clerk, as the head of the public service, must now provide leadership with regard to these government priorities. I’m not sure whether there’s a way to review this different role of the head of the public service. As a central agency, we use the powers of moral suasion and coordination with all the deputy ministers. As I said, the deputy ministers’ performance program is a way to verify the coordination and reinforce the importance of official languages throughout the government.
Senator McIntyre: I understand, Ms. Sherman. However, the witnesses have told us that the Official Languages Act doesn’t have any teeth. Do we need a central agency to consolidate all this, or to coordinate official languages efforts and put this all together, yes or no?
Ms. Sherman: It’s not my place to say yes or no. The committee’s work will be an important way to clarify the pros and cons of this proposal. As a deputy minister, I’m comfortable with the responsibility of each department and deputy minister in this way.
I think, in terms of a central agency role, we already have one. I agree that it is not established as it is in the New Brunswick example, but I think there is coordination already through various elements of our governance structure. So I think the work and the proposals that you bring to our attention, to the government’s attention, will help to address that.
Senator Gagné: Thank you for your presentations and for being here this evening. My question is for Ms. Chahwan. I simply want to verify whether the regulations under Part IV will still be adopted by June.
Ms. Chahwan: We sincerely hope so. The consultations are ongoing, and we expect to submit the final regulations in June for review and adoption.
Senator Gagné: I have a follow-up question. When the regulations are adopted — I’ll take a positive approach — and when the government moves forward with the modernization of the Official Languages Act, how can we ensure that we don’t lose the benefits of the new regulations as part of the modernization of the act?
Ms. Chahwan: We’re working closely with our colleagues. The ministers are also helping with the consultations on the entire act. We’re paying close attention to the consultations on the entire act so that we can inform our work, not only in terms of Part IV, but also in terms of all the parts that concern the Treasury Board Secretariat. There have already been significant internal and external consultations. We’re not expecting any surprises when it comes to the comments that will be provided during the comprehensive consultation regarding Part IV specifically.
Senator Gagné: I gather that, given the proposed changes in the regulations, it may be necessary to make adjustments to the Official Languages Act. Can an enterprise approach be used to ensure that these benefits aren’t lost?
Ms. Roy: The regulations are based on the current act. The legal framework for the regulations, which my colleague is working on, is already set out in the act. In terms of drafting the regulations, our regulations must always comply with the legal framework established in the act. As a result, the regulations are consistent with the regulatory framework of the current act.
You’re asking what happens to the regulations if the act is amended. We’ll have to see then, because I can’t speculate on how the act will change. However, I’ll echo what Ms. Chahwan said, namely, that there have been many consultations on these regulations. Our Treasury Board colleagues are well aware of this, including my colleagues at Canadian Heritage and Minister Joly. Many internal and external consultations have been held.
I can say that the current act provides for the establishment of regulations that will go forward. We’ll see what happens with the modernization of the act.
Senator Gagné: I’m thinking about the issue of taking into account institutional vitality and that type of thing, which could affect the potential act.
I have another question for Ms. Chahwan regarding the directive on the sale and transfer of surplus federal lands, made under the Federal Real Property and Federal Immovables Act. Some people, including me, may say that the directive doesn’t go far enough to ensure consultation with official language minority communities when land of interest to them is available for sale. Would the Treasury Board strengthen this directive if it were also made under the Official Languages Act and an enhanced Part VII?
Ms. Chahwan: I know that this issue was also raised with my colleagues in the Department of Public Services and Procurement. This issue is also their responsibility. The Treasury Board Secretariat isn’t responsible for Part VII.
However, I can tell you that my colleagues in the Office of the Comptroller General are looking at the policies and directives for real property transfers and have taken note of these concerns and of the proposal, at least, to strengthen the mechanisms. We currently know that any routine disposal of real property assets, so a disposal not considered strategic for the purposes of the policy and directive, is the subject of a priority circulation process with the levels of government. Even in the absence of the new version of the policy that my colleagues are working on, mechanisms are already in place for groups representing official language minority communities to work with local governments.
Senator Gagné: Yes and no. Thank you.
Senator Moncion: What’s the exclusion order, and what happens when people don’t meet the requirements after two years?
Mr. Borbey: We have orders that may apply to medical issues or in cases where the person plans to retire within two years. Then there are cases where positions are staffed on a non-imperative basis. Non-imperative staffing is very limited. As you were saying, it normally takes two years to reach the language level required for the position. If the skill level isn’t reached, the Public Service Commission must be informed. Normally, the chief officer has the authority to grant an extension of up to four years, and we must be informed.
We still carefully monitor cases that exceed two years. When almost four years have passed, at that point, I speak with the deputy head to ensure that the established plan will achieve the desired results. This is exceptional. There are very few cases. However, the act provides for this flexibility, which may make it possible to staff certain positions with candidates who have certain expertises or profiles, but who don’t have the linguistic profile required for the position.
Senator Mégie: I have a quick question for Ms. Roy. You said that the mandate of the CADMOL had been expanded, and that one of the issues was the 2018-23 action plan for official languages. At the meeting with the previous witnesses, the discussion concerned — and we won’t wait up to 50 years — whether the next review could be carried out in three years, five years or ten years. I see here that you mentioned 2018-23, as if you had tacitly decided that five years would be suitable. Is that the case?
Ms. Roy: The 2018-23 period that I mentioned concerned the action plan for official languages, which was announced in the 2018 budget with a number of initiatives for various departments. This period was more closely linked to the action plan and the funding for official languages.
Regarding the amount of time before a review of the act, I think that the committee will be responsible for recommending the appropriate time. You can see that there are different time frames for different acts. Some acts specify five years, and others ten years. You’ll be responsible for deciding what you want to recommend in your final report.
Senator Mégie: Do you want to provide any suggestions, as did the other witnesses?
Ms. Roy: I’ll wait for your recommendations, but I want to point out that the Official Languages Act is 50 years old. In 1988, when the act was reviewed, I was working at my first job in the public service, and I worked on the review of the act. This doesn’t make me any younger.
Senator Maltais: I have two quick questions. All the people who came to meet and speak with us during our visits, from Prince Edward Island to Victoria, said that, if the commissioner doesn’t have any punitive powers, the Official Languages Act can’t be applied. The example of Air Canada is often provided. The commissioners have been complaining about this for 50 years, and there hasn’t been any change. Do you think that the government can give this punitive power, knowing full well — and this is the other part of my question — that the government is the biggest violator of the bilingualism rules? Let’s be clear. Is it unrealistic to think that the government will give powers to the Commissioner of Official Languages? Feel free to respond.
Ms. Roy: I’ll repeat what I said earlier. As deputy ministers, we support the government. We’ll look at the report that you prepare. In terms of whether the act can be amended, we’ll see how the modernization proceeds. However, once again, I want to note that you’ve heard from many people who have expressed converging and differing views —
Senator Maltais: Everyone agreed on this.
Ms. Roy: You’re responsible for deciding how you will report to the government on this issue.
Senator Maltais: I have one last point. Ms. Sherman, you said that, as of 2016, there haven’t been any more partisan appointments and the appointments have been transparent — I believe those are your words. Were the previous appointments not transparent?
Ms. Sherman: Thank you for the question. The appointments before 2016 were subject to a fairly similar open and transparent process, but at another level. Candidates can now apply online through the web site. The difference is the addition of part-time positions. The major difference is the number.
Senator Maltais: I gather that, when the government was looking for candidates, it would put up posters in different government buildings and people would apply. I gather that today, people apply through a web site.
Ms. Sherman: Yes and no. Of course, the use of the web site facilitates access. The posters for the positions used to be distributed through the media, in newspapers, and so on.
Senator Maltais: This provides greater visibility. The government announces a correctional officer position, for example, and the announcement is distributed a mari usque ad mare through the government website. Is that correct?
Ms. Sherman: Yes.
Senator Maltais: Thank you.
Senator Smith: I have a question for Mr. Borbey. In your report, you said that some current practices must be called into question when they no longer meet the needs of a modern and dynamic public service. Can you provide examples of the biggest issues that you want to improve or change?
Mr. Borbey: Access to language training is something that always comes up, not to mention training quality. Every department decides who is eligible for training. Some people are constantly in language training but never become proficient, and taxpayers are on the hook for those costs. Other people don’t have access to language training. One of the more controversial recommendations is to reconsider the bilingualism bonus, which has been in place for some 40 years. Let’s think back to when the measure was introduced. It was meant as a temporary measure to attract a greater number of bilingual people to the public service and remains in place to this day. All public servants in bilingual positions who meet the language requirements of that job receive an $800 bonus every year. The feedback we’ve heard leads us to believe that the money could be better spent. The bonus costs $60 million to $70 million annually but isn’t doing what it’s supposed to. Nevertheless, there is an acute need for language training. That’s why we recommended approaching the unions and, together, discussing the possibility of redirecting the money into other resources that would address language training needs.
It’s an example of a measure that was put in place on a temporary basis but still exists today. However, it no longer serves the original purpose.
The Chair: I have a very broad question for you, so I hope you can provide us with some specific thoughts. The idea of a central agency has been raised by all the witnesses we’ve met with since the beginning of our study. They all agree that strengthening or modernizing the Official Languages Act hinges, first and foremost, on political will. The next requirement is that a modernized act must be “implementable”, if you will, within the government apparatus, which you belong to. In terms of a central agency, the Privy Council, the Treasury Board and Heritage Canada have all been suggested as possible authorities to oversee the implementation of the act. It was even proposed that the portfolio be assigned to its own minister.
That illustrates the need to carefully consider the vision for implementing the Official Languages Act. It has to start with a vision that encompasses implementation and coordination. You’ve frequently referred to the committee since the beginning. The public service is home to very important positions, and you have extensive knowledge of the public service. If you were to give us three things to consider in terms of the best place to house responsibility for the Official Languages Act, what would they be? With your knowledge and expertise, you are no doubt equipped to give us insight and help us consider the issue at a deeper level. If not you, then who?
You are well-versed in how the federal government works. I’ll throw that question out there and whoever would like to respond, can. What should we focus on as we try to figure out where to house responsibility for the implementation of the act?
Ms. Chahwan: Mr. Chair, I think you have a good grasp of where we could give you a bit more input on the matter. If I understood your question correctly, you’d like some parameters to help structure your thought process.
The Chair: Yes.
Ms. Chahwan: I’d just like to point out that the act already gives the Treasury Board and the Treasury Board of Canada Secretariat responsibility for the general direction and coordination of the policies and programs relating to official languages. In response to your question, senator, I would say the act already sets out that mechanism, but the feedback you’re receiving from witnesses suggests that it’s not sufficient. Something that may be worthwhile would be building your recommendations around the deficiencies expressed by the stakeholders you’re hearing from.
As chief human resources officer, under the approved policies of the Treasury Board, which is a cabinet committee, I have the authority to monitor and audit performance. Through the mechanisms in place, I am able to report on my findings. In fact, we publish annual reports. The President reports to Parliament every year. A reporting system already exists. I also have the authority, under our policies, to raise recurring issues of non-compliance within an organization with the deputy minister and to request that action be taken to address them. Several powers are available, so, respectfully, I would encourage you to clearly identify the shortcomings you and the stakeholders you heard from have observed, as well as the corrective measures you feel are in order so that we can be more effective.
Coercive power doesn’t always work. Decisions have to be made vis-à-vis balancing a values-based approach with a more forceful one, including when it comes to implementing the recommendations of the Borbey-Mendelsohn report. Operational requirements, long-term human resources plans and available tools have to be taken into account. Right now, we are updating the qualification standards Mr. Borbey mentioned earlier. It has to be a continuum, as I mentioned in my opening statement. If we move forward with the recommendation to bring in more powers, this would be my question: what are we trying to accomplish and what current deficiencies are we trying to remedy? At that point, the answer may emerge on its own.
The Chair: Here is something to consider. Regarding the assistant deputy minister committee, the witnesses said the assistant deputy ministers were doing a great job. In the witnesses’ view, that wasn’t the problem; they pointed to the fact that assistant deputy ministers were not high enough up the government ladder. Do deputy ministers sit on a committee where they have the opportunity to discuss the Official Languages Act and implementation-related issues? According to what you described, you have the authority to engage your deputy minister colleagues. What I’d like to know, though, is whether a committee of deputy ministers is working on the issue.
Ms. Chahwan: Thank you for that clarification. My authority goes beyond engaging my deputy minister colleagues. I have the power to tell them that their organization is currently not in compliance with the act and to request that action be taken. If it isn’t, I have the power to draw on the Treasury Board’s framework of corrective measures, which can be extensive.
Ms. Sherman mentioned the clerk’s role earlier. Again, I would say that leadership comes from a very high level. CADMOL reports to Ms. Roy, a deputy minister who shares the information with the Public Service Management Advisory Committee. The Secretary of the Treasury Board and I co-chair the committee. Anytime there is an issue that needs examining, the information is certainly brought to the attention of the advisory committee. To answer your question, then, I would say, yes, we do have governance at the deputy minister level.
Senator Poirier: Something we commonly hear from people is that a central agency is needed. If I understand correctly, you’re saying that you already have that authority and that it’s simply a matter of addressing the deficiencies. Can you tell us which deficiencies need to be addressed to respond to the concerns of those who don’t think a central agency exists?
Ms. Chahwan: I fully understand your question. Unfortunately, however, I can’t give you that information, because I don’t know which deficiencies the stakeholders are referring to.
In the course of consultations, what I’ve heard from some stakeholders is that the current act gives the Treasury Board of Canada Secretariat discretionary authority to conduct audits. Some would prefer to see the terminology in the act changed to “the Treasury Board shall” instead of “the Treasury Board may” in reference to auditing federal institutions.
I don’t know whether that would solve the problem. It would be for the committee to decide.
The Chair: Would any other witnesses care to answer this broad question and propose factors the committee should consider?
Mr. Borbey: I would just point out that, decades ago, a delegated management model was chosen for the public service. Making sure that the model fits with your recommendations is important. In other words, responsibility for financial administration, human resources, staffing and so on have been delegated to deputy heads; they are responsible for making sure the standards are met. The model is based on delegated management, so whatever you consider should take that into account.
Ms. Roy: The Treasury Board of Canada Secretariat has certain responsibilities, and Minister Joly has certain responsibilities in relation to Part VII. We often remind people that every federal institution has official languages responsibilities. We want to make sure that accountability of federal institutions remains at the federal institution level.
Every minister, every institution is responsible for complying with the act with respect to services to the public, language of work and the other components of the act. The Treasury Board of Canada Secretariat and the minister have specific responsibilities, but it’s important to remember that every federal institution has obligations under the act. Federal institutions must be accountable under the act.
The Chair: On that note, I’d like to thank you for your input and your presentations. They will certainly be helpful.
(The committee continued in camera.)